406:. 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 occupation of the land thereby extinguishing native title.
454:
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 one year 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".
313:
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).
331:
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.
356:. 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 and 26 October and 14 and 15 December 1994. He delivered his decision 29 January 1996 in Brisbane.
432:
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.
31:
486:
463:
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.
340:
Queensland
Government owed fiduciary 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).
462:
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 Aboriginal people, but placed the primacy of pastoral title over native title. Richard Bartlett argues that the decision placed great
225:
that the common law of
Australia recognises Aboriginal and Torres Strait Islanders had a form of "native title," which reflected the entitlement of indigenous inhabitants to their traditional lands in accordance with their laws or customs. Native title was not defined by the Wik decision. However, it
431:
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
453:
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)
359:
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.
312:
claimed to be the holders of native titles over two areas of land. The first is known as "Holroyd River Holding" and the other is known as "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
339:
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
321:
The Holroyd River Holding is 1,119 square miles (2,900 km) in area. The first Holroyd lease was issued to Marie Stuart Perkins in 1945. It was granted under the Land Act of 1910 (Qld). This lease was surrendered in 1973. The first lease was granted for pastoral purposes. A second lease for
469:
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
330:
The Mitchellton Lease was 535 square miles (1,390 km) 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
470:
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
363:
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.
322:
thirty years was issued under the Land Act 1962 (Qld) in 1975 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.
208:
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 criticised the court for being out of touch and for introducing uncertainty into Australian life. The
246:
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
299:
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.
295:
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
280:
439:”. The High Court had made clear that native title was extinguished in that situation. They emphasised the “shared use” of the land with a theme of "co-existence."
213:
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.
419:
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.
360:
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.
309:
435:
Others pointed out that the decision only affected leasehold land and not the overwhelming majority of Australia which is freehold land held under “
1193:
511:
622:
352:. The claim was lodged before the commencement of Native Title legislation, introduced into Australia following the decision in the
289:
205:. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights.
1198:
926:
949:"Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act"
201:
on the leaseholder. As a result, native title rights could coexist depending on the terms and nature of the particular
127:
native title rights and pastoral lease rights can coexist, but where they are inconsistent, the pastoral rights prevail
980:
197:
rights. The court found that the statutory pastoral leases under consideration by the court did not bestow rights of
1203:
958:
873:
474:
in which there is the clear implication that native title was not to be respected when granting pastoral leases.
740:
285:
448:
810:
505:
376:
349:
163:
108:
1208:
948:
471:
252:
194:
52:
The Wik Peoples v State of Queensland & Ors; The Thayorre People v State of Queensland & Ors
1175:
1144:
771:
652:
643:
564:
353:
222:
73:
775:
756:
701:
656:
604:
568:
190:
41:
255:. The term Wik actually means "speech" or "language" in the Aboriginal languages of the region.
1120:
863:
806:
466:
392:
239:
171:
97:
372:
The appeal was heard by the High Court between 11 and 13 June 1996 with all 7 judges sitting,
226:
is commonly accepted to include rights to perform ceremonies or to gather foods or medicines.
1162:
885:
802:
400:
267:
147:
93:
1213:
824:
648:
626:
560:
413:
A pastoral lease does not confer rights of exclusive possession on the holder of the lease.
198:
69:
8:
1051:
1031:
718:
691:
594:
384:
296:
263:
258:
The Wik people have previously litigated native title-type claims. In 1975, part of the
243:
135:
1125:
The "Wik Judgment – The case for non-extinguishment, non-discrimination and negotiation"
996:
1132:
833:(1997) 20(2) University of New South Wales Law Journal 488. Retrieved 6 September 2008.
259:
1154:
976:
922:
737:
Corporation of the Director of Aboriginal and Islanders Advancement v Peikinna (1978)
491:
210:
274:
lease. The lease was granted to the Commonwealth Aluminium Corporation Pty Limited (
396:
373:
271:
202:
160:
143:
422:
The granting of a lease does not extinguish any remaining native title rights.
1187:
864:"Disinterested truth : legitimation of the doctrine of tenure post-Mabo"
499:
30:
388:
380:
248:
242:
who reside in north-eastern Australia. They live in an area on the western
167:
139:
919:
Land of Discontent: The Dynamics of Change in Rural and Regional Australia
235:
436:
416:
The rights and obligations depend on the nature and terms of the lease.
193:
delivered on 23 December 1996, on whether statutory leases extinguish
1040:(1997) 4(1) Indigenous Law Bulletin 11. Retrieved 6 September 2008.
403:
150:
1060:(1997) 4(2) Indigenous Law Bulletin 6. Retrieved 6 September 2008.
727:(1997) 4(1) Indigenous Law Bulletin 4. Retrieved 6 September 2008.
275:
123:
the pastoral leases in question did not extinguish native title
1155:"Pastoral Leases and Native Title: A Critique of Ward and Wik"
1080:
1078:
900:
898:
348:
The Wik peoples lodged their claim on 30 June 1993 in the
1180:(2004) 16 Bond Law Review 29. Retrieved 6 September 2008.
1075:
1063:
841:
839:
1052:"Judicial Activism? The High Court and the Wik Decision"
1011:
916:
895:
889:
836:
662:
574:
426:
593:
Australia, Federal Government of (29 January 1997).
481:
595:"The Federal Government's 10 Point Response to Wik"
457:
1149:Speech given to the Sydney Institute, 10 Mar 1997.
1032:"Wik: Equality and the Fallacy of 'Extinguishment"
278:) through a special Act of Parliament called the
1185:
409:The majority decision became a proposition for:
292:in London led to the decision being overturned.
719:"The Wik: A History of Their 400 Year Struggle"
288:against the lease. However, an appeal to the
638:
636:
917:Pritchard, B & McManus, P, eds. (2000).
856:
854:
316:
1152:
1104:
1084:
1069:
512:List of Australian Native Title court cases
861:
794:
792:
712:
710:
633:
617:
615:
613:
552:
550:
548:
546:
29:
1017:
970:
942:
940:
938:
904:
851:
829:University of New South Wales Law Journal
625:. The Law Handbook Online. Archived from
592:
544:
542:
540:
538:
536:
534:
532:
530:
528:
526:
303:
1119:
1029:
1023:
964:
845:
716:
692:"The 'Wik' Peoples of Western Cape York"
685:
683:
681:
679:
677:
668:
580:
442:
343:
325:
284:(Qld). There was an initial win in the
266:created in 1957 had been excised by the
789:
707:
689:
610:
449:Native Title Act 1993 § Amendments
1186:
1049:
935:
751:
749:
523:
1030:Bartlett, Richard (29 January 1997).
946:
763:
674:
557:Wik Peoples v The State of Queensland
182:Wik Peoples v The State of Queensland
16:1996 High Court of Australia decision
334:
822:
816:
746:
690:Martin, David F (29 January 1997).
13:
1194:Native title case law in Australia
1050:Hunter, Philip (29 January 1997).
999:. Western Australia and Federation
772:"Chapter Twelve: The Wik Judgment"
717:Collings, Neva (29 January 1997).
427:Political response to the decision
229:
14:
1225:
825:"An Overview Of The Wik Decision"
769:
961:523. Retrieved 6 September 2008.
484:
458:Legal commentary on the decision
221:In 1992, the High Court held in
1090:
1043:
989:
959:Melbourne University Law Review
953:Melbourne University Law Review
910:
879:
874:Melbourne University Law Review
868:Melbourne University Law Review
823:Gal, Daniel (29 January 1997).
607:12. Retrieved 6 September 2008.
862:Hepburn, S (29 January 2024).
730:
704:8. Retrieved 6 September 2008.
586:
1:
1199:High Court of Australia cases
1113:
973:Adventures in Law and Justice
367:
216:
947:Tehan, M (29 January 2024).
890:Pritchard & McManus 2000
7:
1103:(1870) 2 QCSCR 99 cited by
975:. UNSW Press. p. 376.
477:
286:Supreme Court of Queensland
281:Aurukun Associates Act 1975
10:
1230:
567:1 (23 December 1996),
506:Koowarta v Bjelke-Petersen
446:
350:Federal Court of Australia
317:The Holroyd River Holding
156:
131:
119:
114:
104:
85:
80:
65:
57:
47:
37:
28:
23:
971:Horrigan, Bryan (2004).
799:Wik Peoples v Queensland
644:Mabo v Queensland (No 2)
517:
90:Wik Peoples v Queensland
24:Wik Peoples v Queensland
1056:Indigenous Law Bulletin
1036:Indigenous Law Bulletin
776:Samuel Griffith Society
723:Indigenous Law Bulletin
702:Indigenous Law Bulletin
696:Indigenous Law Bulletin
605:Indigenous Law Bulletin
599:Indigenous Law Bulletin
308:The Wik people and the
191:High Court of Australia
189:) is a decision of the
185:(commonly known as the
72:, (1996) 187
42:High Court of Australia
1204:1996 in Australian law
1170:Cite journal requires
888:27 June 1998 cited by
809:637 (29 January 1996)
304:Basis of the Wik claim
240:Aboriginal Australians
886:Brisbane Courier-Mail
757:Native Title Act 1993
649:[1992] HCA 23
561:[1996] HCA 40
443:The Wik 10 Point Plan
344:The original decision
326:The Mitchellton Lease
268:Queensland Government
70:[1996] HCA 40
199:exclusive possession
244:Cape York Peninsula
623:"The Wik decision"
260:Aboriginal reserve
238:are a grouping of
1153:Del Villar, Gim.
1101:MacDonald v Tully
1099:(1870) QCLLR 17,
1097:Wildash v Brosnan
928:978-0-86840-578-0
492:Queensland portal
335:The mining leases
211:Howard government
178:
177:
1221:
1209:1996 in case law
1179:
1173:
1168:
1166:
1158:
1148:
1142:
1138:
1136:
1128:
1108:
1094:
1088:
1082:
1073:
1067:
1061:
1059:
1047:
1041:
1039:
1027:
1021:
1015:
1009:
1008:
1006:
1004:
993:
987:
986:
968:
962:
956:
944:
933:
932:
914:
908:
902:
893:
883:
877:
871:
858:
849:
843:
834:
832:
820:
814:
796:
787:
786:
784:
782:
767:
761:
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744:
734:
728:
726:
714:
705:
699:
687:
672:
666:
660:
640:
631:
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629:on 22 July 2008.
619:
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572:
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489:
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61:23 December 1996
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1171:
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1140:
1139:
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1129:
1116:
1111:
1105:Del Villar 2004
1095:
1091:
1085:Del Villar 2004
1083:
1076:
1070:Del Villar 2004
1068:
1064:
1048:
1044:
1028:
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520:
490:
485:
483:
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460:
451:
445:
429:
370:
346:
337:
328:
319:
310:Thayorre people
306:
297:Bjelke-Petersen
232:
230:The Wik peoples
219:
17:
12:
11:
5:
1227:
1217:
1216:
1211:
1206:
1201:
1196:
1182:
1181:
1172:|journal=
1150:
1121:Brennan, Frank
1115:
1112:
1110:
1109:
1089:
1074:
1062:
1042:
1022:
1020:, p. 199.
1010:
988:
981:
963:
934:
927:
921:. UNSW Press.
909:
907:, p. 208.
894:
878:
850:
835:
815:
788:
770:Hulme, S E K.
762:
745:
729:
706:
673:
661:
632:
609:
585:
573:
521:
519:
516:
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496:
495:
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459:
456:
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420:
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397:William Gummow
393:Michael McHugh
374:Gerard Brennan
369:
366:
345:
342:
336:
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327:
324:
318:
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305:
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272:bauxite mining
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203:pastoral lease
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101:
96:450; 134
87:
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63:
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59:
55:
54:
49:
48:Full case name
45:
44:
39:
35:
34:
26:
25:
15:
9:
6:
4:
3:
2:
1226:
1215:
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1189:
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1164:
1156:
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1146:
1134:
1126:
1122:
1118:
1117:
1107:, p. 51.
1106:
1102:
1098:
1093:
1087:, p. 44.
1086:
1081:
1079:
1072:, p. 50.
1071:
1066:
1057:
1053:
1046:
1037:
1033:
1026:
1019:
1018:Horrigan 2004
1014:
998:
997:"Issues 2001"
992:
984:
982:0-86840-572-8
978:
974:
967:
960:
957:(2003) 27(2)
954:
950:
943:
941:
939:
930:
924:
920:
913:
906:
905:Horrigan 2004
901:
899:
892:, p. 21.
891:
887:
882:
875:
872:(2005) 29(1)
869:
865:
857:
855:
848:, p. 27.
847:
842:
840:
830:
826:
819:
812:
811:Federal Court
808:
804:
800:
795:
793:
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773:
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738:
733:
724:
720:
713:
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703:
697:
693:
686:
684:
682:
680:
678:
671:, p. 11.
670:
665:
658:
654:
651:, (1992) 175
650:
646:
645:
639:
637:
628:
624:
618:
616:
614:
606:
600:
596:
589:
583:, p. 10.
582:
577:
570:
566:
563:, (1996) 187
562:
558:
553:
551:
549:
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541:
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500:Wik languages
498:
497:
493:
482:
475:
473:
468:
467:Frank Brennan
464:
455:
450:
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438:
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421:
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401:Michael Kirby
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27:
22:
19:
1163:cite journal
1124:
1100:
1096:
1092:
1065:
1055:
1045:
1035:
1025:
1013:
1001:. Retrieved
991:
972:
966:
952:
918:
912:
881:
867:
846:Brennan 1997
828:
818:
798:
779:. Retrieved
765:
755:
736:
732:
722:
700:(1997) 4(1)
695:
669:Brennan 1997
664:
642:
627:the original
603:(1997) 4(2)
598:
588:
581:Brennan 1997
576:
556:
504:
465:
461:
452:
434:
430:
408:
389:Mary Gaudron
381:Daryl Dawson
371:
362:
358:
347:
338:
329:
320:
307:
294:
279:
257:
253:Edward River
249:Archer River
233:
220:
207:
195:native title
187:Wik decision
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89:
86:Prior action
81:Case history
51:
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1214:Wik peoples
1141:|work=
1003:6 September
781:6 September
385:John Toohey
236:Wik peoples
174:JJ decision
1188:Categories
1114:References
876:1 at p 28.
801:(1996) 63
657:High Court
569:High Court
447:See also:
437:fee simple
368:The appeal
217:Background
92:(1996) 63
1143:ignored (
1133:cite book
805:450; 134
472:Earl Grey
354:Mabo case
100: 637
66:Citations
478:See also
251:and the
132:Majority
276:Comalco
264:Aurukun
161:Brennan
157:Dissent
140:Gaudron
76: 1
58:Decided
979:
925:
760:(Cth).
270:for a
172:McHugh
170:&
168:Dawson
146:&
144:Gummow
136:Toohey
647:
559:
518:Notes
148:Kirby
125:(4:3)
121:(4:3)
38:Court
1176:help
1145:help
1005:2008
977:ISBN
923:ISBN
783:2008
743:286.
741:ALJR
399:and
234:The
223:Mabo
807:ALR
803:FCR
739:52
655:1,
653:CLR
565:CLR
262:at
98:ALR
94:FCR
74:CLR
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