As the Federal government responds to the High Court's WIK decision, Monash Law lecturer Pam O'Connor cuts through the political hype and offers a more rational analysis of the judgment and its implications.

Some of the reaction to the Wik Decision suggests a widespread disbelief that Native Title Rights can co-exist with pastoral activities.

However, this concept is hardly revolutionary in property law - every lawyer knows that more than one person may have an interest in the same piece of land.

Its important to point out that ordinary leases do extinguish native title - a largely ignored aspect of the High Court's finding. The leases considered in the Wik case, though, were not leases in the ordinary sense.

In any case, any reaction to the Wik decision should not lose sight of the original intention of Australia's native title legislation - to correct the injustice that is unique to our history of white settlement.

Australia was the last of the former British settler colonies to recognise that indigenous people had legal rights to land arising from prior occupation.

A distinctive feature of our history was that the dispossession of the native peoples was achieved without treaties between the government and the Aborigines. The absence of treaties was used to explain why Aborigines were denied the land rights accorded by law to native peoples in the US, Canada, and New Zealand.

There have been three milestones in rectifying this injustice. The first was the 1992 Mabo decision, where the High Court declared that Australian common law recognises a form of native title to land. Native title exists where the indigenous people have maintained their connection to the land and title has not been extinguished by legislation or government action.

The second milestone was the enactment of the 1993 Native Title Act. The Act complemented the Mabo decision by attempting to make the concept of native title workable. It set up a claims process for native title rights, and regulated future government acts affecting native title land.

The third crucial event was the High Court's recent decision in The Wik Peoples v Queensland. The court held, by majority, that the grant by Queensland Government of pastoral leases over native title and did not give the lease holders a right of possession and did not extinguish native title.

Pastoral leases cover some 40% of Australia's land area, and in some states as much as 80-90%. Pastoral lease-holdings include large tracts of land in remote locations - areas where Aboriginal peoples are most likely to have maintained their traditional connection with the land.

While there are cases where Aborigines have been driven off the land by lease holders, the history of the pastoral industry has generally been one of co-existence of Aboriginal people and graziers. Many pastoral leases covered areas of marginal lands that were only suitable for open-range grazing, and pastoralists depended on the local Aboriginal community for labour.

One of the pastoral leasehold properties considered in the Wik case covered an area of 2830 sq kms, with a stock carrying capacity of one beast per 60 hectares. The pastoralists had built no dams, fencing or dwellings, and seasonal workers were employed for mustering in the dry season. The Wik peoples could carry on their traditional activities with minimal contact with the lease holders and their employees.

When the Wik peoples sought to establish their native title rights, they were met with the argument that their rights had automatically been extinguished when the land was first leased to pastoralists.

By the usual definition, a lease confers on the lease holder the right to exclude everyone else frrom the land. So, it was argued, the grant of a right of exclusive possession was inconsistent with the existence of native title. And the High Court had said in Mabo that native title was extinguished by the grant of an inconsistent interest.

The High Court accepted that an ordinary lease was inconsistent with native title and therefore extinguished it. But, by a majority of four to three, the court decided that the leases in the Wik case did not have that effect because they were not true leases.

Under Queensland law, the decades-old pastoral leases under scrutiny in the Wik case were never intended to give lessees exclusive rights. Travelling stockmen, for example, were entitled to graze their stock over parts of the the pastoral holdings.

These pastoral leases reserved so many rights of entry that it could not be said that the leaseholder was given the right to exclusive possession.

The Wik decision maintains the momentum of progress towards vindicating Aboriginal land rights. The vast open range grazing lands of Australia are not closed to native title claims.

The decision has dismayed many, including pastoralists, miners and state governments, who had assumed the contrary. The Native Title Act will need to be amended to take account of the new understanding.

The government has to face the key problem that some pastoral leases granted over native title land since 1 January 1994 may be invalid. The Wik decision made it impossible to grant pastoral leases over native title land, except for regrants and renewals that honour old commitments.

Just as in the case of freehold, the Crown has to acquire the land on just terms before it can lease it to pastoralists. The government must negotiate with native title holders if it proposes to compulsorily acquire their land or grant a mining right.

Before Wik, such procedures may have been overlooked in the mistaken belief that native title was extinct in land that had previously been under pastoral lease.

More difficult to resolve will be the many issues regarding the rights of co-existing native title holders and pastoral lease-holders. The High Court has said that lease-holder's rights take precedence where there is inconsistency, but offered no test for determining or judging the situation.

The problems of co-existence of interests are not unusual - they arise whenever more than one party has an interest in a piece of land.

Strata title holders, for example, are often in dispute about the common property, but no-one would suggest abolishing strata titles on that account.

There is certainly no justification for legislating to extinguish native title on land that has been under pastoral lease, as some have urged.

Just as the Commonwealth Government legislated to make Mabo workable, so should it amend the Native title Act to regulate the co-existence of native title and pastoral leases.

published in "Montage" (News and Views from Monash University)
Volume 16 March/April 1997.
Reproduced with permission.