The Wik Peoples v Queensland

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Citation: The Wik Peoples v Queensland (1996) 141 ALR 129

This information can be found in the Textbook: Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 250-258

Contents

Background Facts

  • Wik people and the Thayorre People claim to be the holders of native title over certain parts of Qld, including the Holroyd River Holding and the Mitchellton Pastoral Leases.
  • In 1915 and 1919, pastoral leases had been granted by the Crown to non-Aboriginal lessees over Mitchellton Pastoral Leases under The Land Act 1910 (Cth) - in 1945, the same act was used to give another pastoral lease.
  • Wik people claim their title was not extinguished because of these leases and that there can be concurrent ownership given its size.

Legal Issues

Held

Toohey J (Majority):

  • Recognises that the first step is to see whether leases granted exclusive ownership; the second step is to look deeper into whether this means native title was destroyed.
  • Claims it was in 1842 that management of Crown land was brought under statutory control with the Sale of Waste Lands Act 1842 (Imp).
  • The respondents assume that leases gave them exclusive possession by examining common law principles, claiming that it was actually a matter of statute - establishes that ‘leases’ are a loose term with reference to Wade v New South Wales Rutile Mining Co Pty Ltd [1] and the fact that commercial transactions are generally not concerned with something under common law recognition, such as native title rights.
  • He cites communication between the Secretary of State, Earl Grey, to the Governor of NSW about leases allowing exclusive rights to farm cultivation and cattle, but that natives could still the right to hunt and wander.
  • People in Australia and England were adamant that the Aboriginal people should not be pushed into the sea - in this backdrop, it’s unlikely that leases was to exclude Aboriginal people from them.
    • Hence, it was not about exclusive rights with respect to pastoral leases.
  • Also, there was no clear and plain intention on part of the government to extinguish rights when granting pastoral leases, which is what is required to extinguish any native title rights.
    • Hence, he claims that there was no extinguishment of native title rights - however, if there are conflicts, and then the rights under the statute and lease will have to prevail. Gummow, Gaudron and Kirby JJ agreed with Toohey J that the claim should be upheld.

Brennan CJ (Dissent):

  • Identifies that the strength of native title is that it is enforceable by ordinary courts; however the weakness is that it is not protected by common law the same way Crown tenures are.
    • The problem is that both native title and Crown ownership can’t be exercised at the same time, but the law can attribute priority to one over the other.
  • His honour cites Western Australia v The Commonwealth,[2] a native Title Act Case in which native title exist for ‘land that has not been alienated or appropriated by the Crown’.
  • He thus thinks that their rights have been extinguished as a result of the 1910 Act, as agreed by McHugh and Dawson JJ.

References

  1. (1969) 121 CLR 177
  2. (1995) 183 CLR 373
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