Issues

The Wik Decision

On the 30 June 1993 (before the Native Title Act became law), the Wik peoples made a claim for native title in the Federal Court to land on Cape York Peninsula in Queensland. The claim was joined by the adjoining Thayorre People, with the joint claim covering land including two pastoral leases granted by the Queensland Government. The Wik peoples and the Thayorre people argued that native title co-existed with the pastoral leases.

On 9 January 1996, the Federal Court decided that the claim could not succeed over the areas as they were subject to pastoral leases. The Court considered the grant of these leases under Queensland law extinguished any native title rights. The Wik people went to the High Court to appeal that decsision, with the judgment granted on 23 December 1996 finding that:

• Native title can only be extinguished by a written law or an act of the Government which shows a clear and plain intention to extinguish native title.
  
  
• The statute creating pastoral leases in Queensland did not show such an intention.
  
  
• Pastoral leases in Queenland did not show such an intention.
  
  
• The leases were created to meet the special needs of the Australian pastoral industry.
  
  
• Pastoral leases did not give exclusive possession to the pastoralists.
  
  
• The grant of a pastoral lease does not necessarily extinguish native title rights.
  
  
• Native title rights could continue at the same time the land was subject to a pastoral lease, with native title rights subordinate in cases of conflict.