Wik Peoples v Queensland
Encyclopedia
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 co-exist 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 criticized 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.
that Aboriginal and Torres Strait Islanders had rights to their land before the arrival of British colonization. Those rights depended on the local laws and customs. Native title was not defined by the Wik decision. However it is commonly accepted to include rights to perform ceremony, or to gather foods or medicines.
are a grouping of Aboriginal Australians
who reside in Northern Eastern Australia. They live in an area on western Cape York Peninsula
between 11° 40' and 14° 50' south latitude. 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
. The term Wik actually means “speech” or “language” in the Aboriginal languages of the region.
The Wik people have previously litigated native title type claims. In 1975 part of the Aurukun
Aboriginal Reserve created in 1957 had been excised by the Queensland Government for a bauxite mining lease. The lease was granted to the Commonwealth Aluminium Corporation Pty Limited (Comalco
) through a special Act of Parliament called the Aurukun Associates Act 1975 (Qld). There was an initial win in the Supreme Court of Queensland
against the lease. However an appeal to the Privy Council
in London led to the decision being overturned. (Corporation of the Director of Aboriginal and Islanders Advancement v Peikinna &Ors, (1978) 52 ALJR 286).
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-Peterson
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.
. The claim was lodged before the commencement of Native Title legislation introduced into Australia following the decision in the Mabo case
. The State of Queensland was the first respondent to the claim. The Commonwealth of Australia was the second respondent. At a later stage, the Thayorre People were also joined as respondents. The Thayorre people also cross-claimed because their claim overlapped the claim of the Wik Peoples.
The matter came on for hearing before Drummond. Five preliminary questions were posed for determination by the Court. Drummond heard the claim between 17 to 26 October and 14 to 15 December 1994. He delivered his decision 29 January 1996 in Brisbane.
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.
On 22 March 1996 Justice Spender granted the appellants leave to appeal to the Full Court of the Federal Court against the judgment. Subsequent to that grant leave, the High Court made orders that the appeal be removed into the High Court for determination by that court.
, Daryl Dawson
, John Toohey, Mary Gaudron
, Michael McHugh
, William Gummow
and Michael Kirby presiding. The court reserved its decision until 23 December 1996. The Court decided in favour of the Wik people by a four/three majority. Each of the majority judges wrote separate judgments in support of their decision. The majority focused on the meaning of a “lease” as used in Australia at the time. The court focused on the purpose for which the leases were granted at that time in light of the social and economic conditions of the times. 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 occupational of the land thereby extinguishing native title.
The majority decision became a proposition for:
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 emphasized the “shared use” of the land with a theme of "co-existence."
Frank Brennan who has 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.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
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 co-exist 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 criticized the court for being out of touch and for introducing uncertainty into Australian life. The Howard Government
Howard Government
The Howard Government refers to the federal Executive Government of Australia led by Prime Minister John Howard. It was made up of members of the Liberal–National Coalition, which won a majority of seats in the Australian House of Representatives at four successive elections. 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 of Australia found in the Mabo caseMabo v Queensland
Mabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
that Aboriginal and Torres Strait Islanders had rights to their land before the arrival of British colonization. Those rights depended on the local laws and customs. Native title was not defined by the Wik decision. However it is commonly accepted to include rights to perform ceremony, or to gather foods or medicines.
The Wik peoples
The Wik peoplesWik peoples
The Wik peoples are an Indigenous Australian group of people from an extensive zone on western Cape York Peninsula in northern Queensland, of several different language groups...
are a grouping of Aboriginal Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
who reside in Northern Eastern Australia. They live in an area on western Cape York Peninsula
Cape York Peninsula
Cape York Peninsula is a large remote peninsula located in Far North Queensland at the tip of the state of Queensland, Australia, the largest unspoilt wilderness in northern Australia and one of the last remaining wilderness areas on Earth...
between 11° 40' and 14° 50' south latitude. 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
Archer River
The Archer River is a major river of the Cape York Peninsula, Far North Queensland, Australia. It rises in the McIlwraith Range, traverses tropical savanna plains and wetlands, flowing through Piccaninny Plains Sanctuary and Mungkan Kandju National Park, and enters the Gulf of Carpentaria on the...
and the Edward River
Edward River (Queensland)
The Edward River is a river in Queensland, Australia.The mouth of the Edward River is located at , on the western shore of Cape York Peninsula, the eastern edge of the Gulf of Carpentaria....
. The term Wik actually means “speech” or “language” in the Aboriginal languages of the region.
The Wik people have previously litigated native title type claims. In 1975 part of the Aurukun
Aurukun, Queensland
Aurukun is an Indigenous community, situated approximately south of Weipa in far North Queensland, Australia. The town faces west to the Gulf of Carpentaria, and during the wet season, roads are impassable....
Aboriginal Reserve created in 1957 had been excised by the Queensland Government for a bauxite mining lease. The lease was granted to the Commonwealth Aluminium Corporation Pty Limited (Comalco
Comalco
Rio Tinto Aluminium is now known as Rio Tinto Alcan after Rio's takeover of Alcan. It was the world's eighth largest aluminium company...
) through a special Act of Parliament called the Aurukun Associates Act 1975 (Qld). There was an initial win in the Supreme Court of Queensland
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
against the lease. However an appeal to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in London led to the decision being overturned. (Corporation of the Director of Aboriginal and Islanders Advancement v Peikinna &Ors, (1978) 52 ALJR 286).
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-Peterson
Joh Bjelke-Petersen
Sir Johannes "Joh" Bjelke-Petersen, KCMG , was an Australian politician. He was the longest-serving and longest-lived Premier of Queensland, holding office from 1968 to 1987, a period that saw considerable economic development in the state...
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.
Basis of the Wik claim
The Wik peoples and the Thayorre people claimed to be the holders of native title over two areas of land. The first is known as the “Holroyd River Holding” and the other is known as the "Michellton Pastoral Leases". Their claim before the court was on the basis that their native title was not extinguished by the granting of the various leases over the land. They asserted that their native title rights continued and co-existed with the pastoral lease. The Wik Peoples also claimed declarations which challenged the validity of the Special Bauxite Mining Leases which had been granted by the Queensland Government pursuant to the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) and the Aurukun Associates Agreement Act 1975 (Qld). These claims were brought before the commencement of the Native Title Act 1993 (Cth) came into operation. That law came into being because of the High Court’s decision in Mabo v Queensland (No 2).The Holroyd River Holding
The Holroyd River Holding is 1119 square miles (2,898.2 km²) in area. The first Holroyd lease was issued to Marie Stuart Perkins in 1945. It was granted under the Land Act 1910 (Qld). This lease was surrendered in 1973. The first lease was granted for pastoral purposes. A second lease for thirty years was issued under the Land Act 1962 (Qld) in 1974 to John Herbert Broinowski, John Darling, James Maurice Gordon and Ross Farm Pty Ltd. The second lease was not limited to pastoral purposes. The Holroyd land was subject solely to a claim by the Wik people.The Mitchellton Lease
The Mitchellton Lease was 535 square miles (1,385.6 km²) in area. It is located north of Normanton, in far north Queensland. The claim extends from the Mitchell River to the Edward River in the north and west to the Gulf of Carpentaria. It is in the District of Cook which was opened up for occupation in 1866 The first Michellton lease was granted to Alfred Joseph Smith, Thomas Alexander Simpson and Marshall Hanley Woodhouse in 1915 under the Land Act 1910. The lessees did not take up actual possession of the land. The first lease was forfeited for non-payment of rent in 1918. A second lease was granted in 1919. The new lessee also did not take up possession. The lease was surrendered in 1921. Each lease was issued for pastoral purposes. Since 1922 the land had been reserved for the benefit of Aboriginals. Both the Wik people and the Thayorre People made claims over the area.The mining leases
There were also what were called the Comalco and Aurukun matters. Comalco Aluminium Ltd held several bauxite mining leases issued by the Queensland State Government under the Comalco Act 1957 (Qld). In each of these claims, the Wik peoples alleged that the mining leases were invalid because the Queensland Government owed fiduciary duties and duties as a trustee to the Wik people, and that those duties had been breached by the granting of the mining leases. The Aurukun claim also included an attack on an agreement called the Aurukun Associates Agreement entered into under the Aurukun Associates Agreement Act 1975 (Qld).The original decision
The Wik peoples lodged their claim on 30 June 1993 in the Federal Court of AustraliaFederal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. The claim was lodged before the commencement of Native Title legislation introduced into Australia following the decision in the Mabo case
Mabo v Queensland
Mabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
. The State of Queensland was the first respondent to the claim. The Commonwealth of Australia was the second respondent. At a later stage, the Thayorre People were also joined as respondents. The Thayorre people also cross-claimed because their claim overlapped the claim of the Wik Peoples.
The matter came on for hearing before Drummond. Five preliminary questions were posed for determination by the Court. Drummond heard the claim between 17 to 26 October and 14 to 15 December 1994. He delivered his decision 29 January 1996 in Brisbane.
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.
On 22 March 1996 Justice Spender granted the appellants leave to appeal to the Full Court of the Federal Court against the judgment. Subsequent to that grant leave, the High Court made orders that the appeal be removed into the High Court for determination by that court.
The appeal
The appeal was heard by the High Court between 11 and 13 June 1996 with Gerard BrennanGerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
, Daryl Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
, John Toohey, Mary Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
, Michael McHugh
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
, William Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
and Michael Kirby presiding. The court reserved its decision until 23 December 1996. The Court decided in favour of the Wik people by a four/three majority. Each of the majority judges wrote separate judgments in support of their decision. The majority focused on the meaning of a “lease” as used in Australia at the time. The court focused on the purpose for which the leases were granted at that time in light of the social and economic conditions of the times. 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 occupational of the land thereby extinguishing native title.
The majority decision became a proposition for:
- A pastoral lease does not confer rights of exclusive possession on the holder of the lease.
- The rights and obligations depend on the nature and terms of the lease.
- Where the rights of the lease are in conflict with native title rights, then the rights under the lease will prevail to the extent of any inconsistency.
- The granting of a lease does not extinguish any remaining native title rights.
Political response to the decision
The decision provoked significant political and public reactions in Australia. Deputy Prime Minister John Anderson said that “country people are concerned with the Wik Native Title problem" 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 emphasized 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 two years later on 8 July 1998 by the Senate after the longest debate in the history of the Senate. One commentator described the amendments to native title law as using a "legal sledge hammer to crack a political nut".Legal commentary on the decision
Maureen Tehan describes the Wik decision as the high point in law for native title in Australia. The decision balanced the rights of the pastoralists and the rights of Aboriginals, but placed the primacy of pastoral title over native title. Richard Bartlett argues that the decision placed great significance on the principle of equality at common law. 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 who has 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
Henry Grey, 3rd Earl Grey
Henry George Grey, 3rd Earl Grey , known as Viscount Howick from 1807 until 1845, was an English statesman.-Background:Grey was the eldest son of Prime Minister Charles Grey, 2nd Earl Grey, by his wife the Hon...
in which there is the clear implication that native title was not to be respected when granting pastoral leases.