Wik Peoples v Queensland

Facts

The Wik and Thayorre Peoples brought proceedings claiming native title over land in Queensland that had been subject to pastoral leases granted under the Land Act 1910 (Qld) and the Land Act 1962 (Qld). The State of Queensland contended that the grant of pastoral leases had extinguished any native title rights over the relevant land. The primary question was whether the pastoral leases were inconsistent with the continued existence of native title.

Issues

1. Whether the grant of pastoral leases under Queensland legislation extinguished native title over the leased land. 2. Whether pastoral leases conferred exclusive possession on lessees so as to be wholly inconsistent with the continued existence of native title rights.

Holding

By majority (4:3, Toohey, Gaudron, Gummow and Kirby JJ; Brennan CJ, Dawson and McHugh JJ dissenting), the High Court held that the pastoral leases in question did not confer rights of exclusive possession and therefore did not necessarily extinguish native title; native title rights and the rights of pastoralists could co-exist, with pastoral rights prevailing to the extent of any inconsistency.

Ratio decidendi

The grant of a pastoral lease does not automatically extinguish native title; where the statutory pastoral lease does not confer exclusive possession, native title may survive and co-exist with the leasehold rights, with the rights of the lessee prevailing only to the extent of actual inconsistency with the exercise of native title rights.

Obiter dicta

Several members of the majority observed that the precise content of surviving native title rights, and the manner in which inconsistency between native title and pastoral rights is to be resolved on a case-by-case basis, would require further elaboration in future proceedings. The court also noted that the decision did not address whether leases conferring full exclusive possession would extinguish native title.

Significance

Wik fundamentally extended the reach of Mabo v Queensland [No 2] by establishing that native title can survive the grant of non-exclusive pastoral leases over vast areas of Australia, and it prompted the enactment of the Native Title Amendment Act 1998 (Cth), which significantly altered the statutory framework for resolving conflicts between native title and pastoral interests.

Key authorities

• Mabo v Queensland [No 2] Mabo v Queensland [No 2] (1992) 175 CLR 1applied
• Western Australia v Commonwealth Western Australia v Commonwealth (1995) 183 CLR 373applied
• Mabo v Queensland [No 1] Mabo v Queensland [No 1] (1988) 166 CLR 186considered
• Fejo v Northern Territory Fejo v Northern Territory (1998) 195 CLR 96cited
• Attorney-General v Brown Attorney-General v Brown (1847) 1 Legge 312considered
• Council of the Municipality of Randwick v Rutledge Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54considered