The Native Title Act and Wik

The Prime Minister at the time, Paul Keating, said of the Mabo judgement - 'The Court's decision rejected a lie and acknowledged a truth. The lie was terra nullius - the convenient fiction that Australia had been a land of no one. The truth was native title'.

The judgement in Mabo v Queensland [No 2] (1992) 175 CLR 1 (Mabo) led to the Native Title Act 1993 (Cth) ('The Act'). The High Court had legally recognised the Indigenous people's traditional link with the land and the fact that that land had been taken from them. The Act, passed on 21 December 1993, was the Commonwealth government's response to the landmark decision, but it was not a smooth transition from judgement to legislation. The intervening 15 months were marked by great hostility and scaremongering by those who were against the Mabo decision and were anti-native title.

The people with the most to lose from new government legislation on native title were the mining companies and the pastoralists. They both relied on huge tracts of land to run their businesses and many of them felt that their rights to that land would disappear under Native Title legislation. As had happened in the 1970s and 1980s when Land Rights legislation was first passed, there were many false allegations made about what type of land could be claimed by Aboriginal peoples. The old scare stories of suburban backyards being claimed as sacred sites re-emerged. Some politicians began making wild claims, like the Indigenous people could claim up to 90 per cent of Australian land under the new legislation. These myths and fears were of course unjustified by the legislation that was being drawn up. Like with the Land Rights Acts, Indigenous peoples could only claim vacant Crown land that they could prove a continuous connection with. They had to show that the land had been used for traditional celebrations or customs since before 1788 and since then without interruption by white occupation. That left only a very small proportion of Indigenous people who could make land claims. Much of the native title was extinguished long ago, and once extinguished it cannot be revived.

As well as establishing the ground rules for what land could be claimed and by whom, the Act also set in place procedures for future claims. The setting up of the National Native Title Tribunal meant that long battles in the courts would no longer be necessary to decide native title claims (Mabo had taken over ten years to reach a conclusion). The Act also dealt with the issue of extinguishing native title and how that can be done. It said the Indigenous owners must be consulted beforehand and that proper compensation must be paid to them. The Act also gave the holders of native title the right to negotiate over mining on their land - which is a right denied to other land title holders.

The 15 months between the Mabo decision and the Act being passed was also a time of negotiation between the Commonwealth government and the Indigenous community. The Indigenous groups did not want to lose any of the ground they had gained through Mabo, but the government did not want to lose the support of the white community. Certain compromises, therefore, had to be made. One of the major features of the Act is that it confirmed Crown land grants given to non-Indigenous people before 1993. This meant that this land could not be claimed back under native title. The Indigenous community representatives agreed to this, on the condition that they would have the right to negotiate over any future Crown land grants that would affect native title.

In essence, although the Mabo case had been an historic one, and although the Native Title Act 1993 (Cth) was also a huge step forward in Aboriginal land rights, they really only affected a small proportion of the Indigenous community. Not many Aboriginal people could claim a continuous connection with their traditional lands that had not been taken by the Crown. Because of this, an Indigenous Land Corporation was established to buy and set aside land for Indigenous use.

Before the Native Title Act 1993 (Cth) was passed into law, in June 1993 the Wik and Thayorre peoples of Cape York in far north Queensland made a native title claim on the Cape York Peninsula. Their claim was rejected by the Federal Court on the grounds that pastoral leases for that land, granted by the Queensland government over the years, had extinguished their native title. This decision upheld both the Mabo judgement and the Native Title Act 1993 (Cth), in that they had both stated that a lease (a rental agreement) on Crown land was just as effective in extinguishing native title as a freehold title (land that had been bought). See image 1

In December 1996 the High Court heard an appeal on Wik Peoples v State of Queensland and Others (Wik). The Wik people argued that as these pastoral leases had been granted through State legislation and in Land Rights Acts, they were leases under statutory law, and therefore not common law leases. They said that because of this the pastoral leases that had been granted were not exclusive leases like a normal common law lease agreement. The defendants in the case; the State of Queensland, said that a lease was a lease no matter what way you define it. The High Court found in favour of the Wik people on this point and said that there was a difference between these particular statutory leases and a common law lease.

The High Court also found that the statutory pastoral lease granted by the Crown (through the State of Queensland) did not automatically extinguish native title as it did not allow for exclusive use of the land by the lessee (the lease holder). The Court decided that in this case native title and the pastoralist lease could co-exist alongside each other.

Both Mabo and the Native Title Act 1993 (Cth) had said that leases on Crown land had automatically extinguished native title, but the Wik decision created an exception to this. The exception was where the 'lease' in question was a lease in name only, and did not grant the usual exclusive rights of a lease. The ruling meant that pastoralists and miners would have to negotiate with native title holders for access to their land. The ruling however, did not mean that the pastoral leases on the Cape York Peninsula were revoked immediately. A postscript stated that although they did not have exclusive ownership, their leases were not extinguished by native title. The land would, however, revert to native title ownership when the lease ran out.

The Wik decision did not mean that every land lease in Australia could now be called into question. The ruling that leaseholder and Aboriginal rights could co-exist related only to the land in question on Cape York. Not on other land in Queensland or the rest of the country. Other pastoral leases may or may not extinguish native title - but only if native title can be proven and if the lease can be proven to possess characteristics that distinguish it from a common law lease.