Wik Peoples v The State of Queensland (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996, on whether statutory leases extinguish native title rights. The court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could coexist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights.

The decision provoked a significant debate in Australian politics. It led to intense discussions on the validity of land holdings in Australia. Some political leaders criticised the court for being out of touch and for introducing uncertainty into Australian life. The Howard government formulated a "10-point plan" to bring certainty to land ownership in Australia. This plan led to the longest debate in the Australian Senate’s history.

Background

In 1992, the High Court held in Mabo that the common law of Australia recognises Aboriginal and Torres Strait Islanders had a form of "native title," which reflected the entitlement of indigenous inhabitants to their traditional lands in accordance with their laws or customs. Native title was not defined by the Wik decision. However, it is commonly accepted to include rights to perform ceremonies or to gather foods or medicines. The group comprises the peoples of Wik-Ompom, Wik-Mungkana, Wik-Paacha, Wik-Thinta, Wik-Ngathara, Wik-Epa, Wik-Me'anha, Wik-Nganthara, Wik-Nganychara, and Wik-Liyanh. Their traditional lands centre around the Archer River and the Edward River.

In the 1970s, the then-Aboriginal Development Commission attempted to purchase part of a pastoral lease. This lease was over part of traditional lands used by the "Winchanam" clan. The Bjelke-Petersen government refused to allow the purchase of the lease. A challenge in the High Court ensued, and the action was won by the corporation. However, the Queensland Government frustrated the decision by declaring the land a national park. came into operation. That law came into being because of the High Court’s decision in Mabo v Queensland (No 2).

The original decision

The Wik peoples lodged their claim on 30 June 1993

On 29 January 1996 Drummond gave judgment on the five preliminary questions that had been identified. He found that the granting of the leases over the two land claims extinguished any native title rights to those lands. In Drummond’s opinion, each lease gave exclusive possession to the lessees. Drummond did not have to decide whether the Wik people or the Thayorre people actually were the holders of native title rights in respect of the land. The minority judges wrote a single joint judgment. They focused on the leases as well, but concluded that the leases conferred the right to exclusive occupation of the land thereby extinguishing native title. Some State Premiers went further and publicly commented that suburban backyards were under threat from native title claims. Queensland Premier Rob Borbidge even commented that some of the High Court judges were "dills about history." Prime Minister John Howard in a press conference held up a map of Australia purporting to show how much of Australia was at risk from native title claims. The Bulletin led with a cover in December 1997 depicting "Land Rights: How Much is Too Much" with the clear implication that all land holdings in Australia were under threat from native title claims as a result of the decision.

Others pointed out that the decision only affected leasehold land and not the overwhelming majority of Australia which is freehold land held under “fee simple”. The High Court had made clear that native title was extinguished in that situation. They emphasised the “shared use” of the land with a theme of "co-existence."

The Wik 10 Point Plan

The Howard government promised a response to the decision and came up with the “Wik 10 Point Plan”. Howard argued the decision "pushed the pendulum back too far in the Aboriginal direction (and) the 10 Point Plan will return the pendulum to the centre". The Native Title Amendment Bill 1997 (Cth) was drawn up to implement the plan. It was introduced into the Commonwealth Parliament on 4 September 1997. It was passed by the House of Representatives, however, the Senate made 217 amendments to the bill and returned it to the lower house for reconsideration. The House of Representatives agreed to half of the changes but returned the bill to the Senate again. It was eventually passed one year later on 8 July 1998 by the Senate Philip Hunter notes that criticism of the High Court was "totally unjustified". He states that the High Court recognised that native title was in no way destructive of the title of pastoralists. He points out that where native title clashed with pastoral interests, pastoral interests would always override native title.

Frank Brennan described the approach of the court as taking into account an "incomplete reading of the history". Gim Del Villar goes further and argues that the Wik judgment is "flawed" from a historical perspective. He argues that the court used questionable historical material to reach its conclusion that pastoral leases were not common law leases. He notes that in 1870 the Supreme Court of Queensland held that pastoral leases did confer a right of exclusive possession which reflected a common belief at that time that leases did extinguish native title. Del Villar points to despatches from Earl Grey in which there is the clear implication that native title was not to be respected when granting pastoral leases.

See also

  • Wik languages
  • Koowarta v Bjelke-Petersen
  • List of Australian Native Title court cases

Notes

References

  • Speech given to the Sydney Institute, 10 Mar 1997.
  • (2004) 16 Bond Law Review 29. Retrieved 6 September 2008.