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Native Title

1992 - The Mabo Case 1993 - The Native Title Act 1996 - The Wik Case
1998 - Amendment Bill View Legislation

1996 - The Wik Case

Some 204 years after the British flag was planted on Australian soil, the High Court of Australia's 1992 Mabo decision established that native title is recognised under Australian law.

However, the Mabo decision, and the subsequent Native Title Act, left unresolved the issue of native title on pastoral leases. In December 1996, the High Court made another important decision in the Wik case.

The Wik case concerned land which is, or has been, subject to pastoral leases.

Pastoral leases are a form of land tenure unique to Australia created by the British Colonial Office after concern by British officials over the massive land grab by squatters in the 1830's and 1840's. The British authorities explicitly stated the leases did not grant squatters exclusive tenure, but that the land was owned on behalf of the Australian public by government.

In the 1890's about 93% of the Territory, and substantial areas of Australia, were subject to pastoral leases.

Aboriginal people were never consulted about the granting of these leases. The pastoral leases conferred exclusive rights of use of the land to graze animals, but not exclusive rights of ownership to the land.

Many of the leases were issued unchecked to land speculators and were never occupied or developed and came back under government control early this century. These are known as "historic" or "ghost" leases and many of them are now undeveloped land owned by Governments.

In the Wik case, the governments argued that the mere granting of a pastoral lease last century extinguishes native title, even though the land was never developed.

The Wik decision followed action by the Wik people of Cape York in Queensland who claimed native title could coexist with current pastoral leases and by the Thayorre people who claimed native title on neighbouring Crown land which was briefly covered by pastoral leases early this century.

The court held that native title rights could exist side-by-side with the rights of pastoralists on cattle and sheep stations. This is called coexistence. But it said that when pastoralists and Aboriginal rights were in conflict, the pastoralists' rights would prevail, giving pastoralists certainty to continue with grazing and related activities.

Pastoralists did not lose any rights as a result of this case. Graziers could continue to run their cattle or sheep and undertake all the activities related to doing this such as building fences, dams and other structures. The court explained that pastoralists had an exclusive right to pasture, but not exclusive rights to possession of the land.

Despite this, the Wik decision led to an hysterical attack from pastoralists and conservative leaders, who demanded that native title be extinguished, or wiped out, on pastoral leases. The Howard Government used the decision as an excuse to severely attack native title rights with its Native Title Amendment Bill, based on the so-called Ten Point Plan for native title.

The Wik decision was significant not only because it recognised native title rights on pastoral leases, but also because these leases cover a vast area - some 42% of the Australian land mass. The coexistence of native title provides the means whereby thousands of Aboriginal people, previously the backbone of the grazing industry, who were locked off cattle and sheep stations in the late 1960s and early 1970s, may gain some rights to their traditional lands.