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Pastoral Leases and Native Title-the Wik Case
Jennifer Norberry
Law and Bills Digest Group
Background
On 23 December 1996, the High Court delivered its judgment in the Wik
Case. It held that native title could co-exist with pastoral leases.
In June 1993, after the High Court's judgment in Mabo [No.2],
the Wik Peoples began proceedings in the Federal Court claiming native
title rights over land and the adjoining sea in Far North Queensland.
In the event that their native title rights had been extinguished, they
claimed damages. Later, the Thayorre People who claim native title over
part of the land claimed by the Wik Peoples, were joined to the proceedings.
In the Federal Court, a single judge held that pastoral leases granting
exclusive possession to lessees over the areas claimed had extinguished
native title. These findings were appealed by the Wik and Thayorre Peoples
to the Full Court of the Federal Court but were removed to the High Court.
In the High Court, the Wik and Thayorre Peoples argued that their native
title rights were not extinguished by the grant of the pastoral leases
and could co-exist with the rights of pastoral lessees. They acknowledged
that, in the event of an inconsistency between their rights and those
of the pastoralists, the latter would prevail.
It was accepted that the Wik and Thayorre Peoples have, in fact, remained
on their traditional lands. The question before the Court was whether
they had done so in exercise of their native title rights or whether those
rights had been extinguished by the grant of pastoral leases.
What is Native Title and How is it Extinguished?
In Mabo [No.2], the High Court held that the common law recognised
native title rights and that those rights could survive white settlement.
Native title is defined by reference to the traditional laws and customs
of indigenous people. However, it is susceptible to extinguishment. For
example, by laws or acts giving rights to third parties inconsistent with
the continuation of native title rights, and by laws or acts by which
the Crown obtains full beneficial ownership of land previously subject
to native title. Native title can also be lost if indigenous people fail
to maintain their traditional connection with the land.
One of the major questions in the Wik Case was whether the grant of
the particular pastoral leases gave the lessees exclusive possession of
the land-a right inconsistent with the continuation of native title.
The Leases in Question
The leases considered in the Wik case had been granted under the Land
Act 1910 (Qld) and the Land Act 1962 (Qld).
The first Mitchellton Pastoral Lease was granted in 1915 and forfeited
in 1918. It covered 535 square miles. A second Mitchellton lease was granted
in 1919 and surrendered in 1921. Since 1922, the land has been reserved
or held in trust for Aboriginal people.
The first Holroyd Pastoral Lease was granted in 1944. A second lease
was issued in 1974 over an area of 1,120 square miles.
None of these leases contained express reservations in favour of Aboriginal
people.
The Majority Judgments
Four judges comprised the majority: Toohey, Gaudron, Gummow and Kirby
JJ. All delivered separate judgments.
They examined the Land Acts and the pastoral leases issued under the
Acts in the context of the history of land law and settlement in Australia.
They also stressed, following Mabo [No.2], that general words in
a statute should not be presumed to extinguish native title without clear
and plain intention.
As a result, they concluded that undue emphasis should not be placed
on leasehold interests known to the common law (characterised by a right
of exclusive possession). Rather, pastoral leases should be seen as creatures
of statutes designed for uniquely Australian conditions-in particular,
the existence of vast and remote tracts of land where Aboriginal people
were known to live.
The majority noted that the Mitchellton and Holroyd leases gave authorised
third parties access to the leased land-for example, to remove timber
and stone, to search for gold and minerals, and to depasture their stock.
Nor did the leases contain provisions enabling the lessees to expel Aboriginal
people known to be on the land or undertake activities necessarily inconsistent
with native title. The Mitchellton leases were granted for 'pastoral purposes
only.'
Considerations like these led the majority to conclude that the leases
in question did not confer exclusive possession on the lessees.
Lastly, the majority left open the question of whether native title
might be able to revive after an inconsistent title to land issued under
statute has expired.
The Minority Judgment
Three judges comprised the minority: Brennan CJ; Dawson and McHugh JJ.
The Chief Justice delivered a judgment with which the other two judges
concurred.
In deciding what rights were granted to the pastoral lessees, the Chief
Justice examined the statutes under which the leases were granted, the
leases themselves and the technical legal meaning of words such as 'lease.'
He concluded that the existence of express reservations in the leases
authorising access to the land by third parties assumed that the leases
granted exclusive possession to the lessees and, while qualifying the
right of exclusive possession, did not destroy it.
The minority also said that where a word with a technical legal meaning
is used in a statute it should be assumed, in the absence of contrary
evidence, that it bears such meaning. (The word 'lease' generally indicates
exclusive possession).
The minority judges concluded that the lessees were granted the right
of exclusive possession, that this right was inconsistent with the continuation
of native title rights and prevailed over them.
The Chief Justice recognised that, in circumstances where indigenous
people and their forebears had lived on land since 'time immemorial',
this conclusion was 'a significant moral shortcoming.' But, in his view,
this shortcoming could not be remedied by denying the true legal effect
of the statutes and the leases issued under them.
The minority also considered whether native title might revive once
an inconsistent land grant expired. Here, the Chief Justice cautioned
against the development of a new theory of Australian land law which would
throw the whole structure of land titles into confusion.
Why is the Wik Case Important?
In the Preamble to the Native Title Act 1993, the Commonwealth
Parliament recorded its understanding of Mabo [No.2]. In part,
this was that native title is extinguished by valid, inconsistent government
acts such as the grant of freehold or leasehold. However, the Native Title
Act did not contain provisions extinguishing native title over all pastoral
leases. The Government of the Day preferred to leave this question to
the courts.
It has been estimated that about 42% of the Australian land mass is
under pastoral lease. In some States, the percentage is said to be as
high as 70%-80%.
The importance of the decision in the Wik Case was highlighted by Justice
Kirby. He said that, if the grant of a pastoral lease without a reservation
in favour of Aboriginal people necessarily extinguishes native title,
then native title has little real significance. Especially, he said, this
is so because it is on land where pastoral leases are likely to exist
that the laws and traditions of indigenous people are likely to survive.
He also acknowledged that the High Court's decision was important for
pastoralists, others holding title to land, governments and miners.
Toohey J, speaking for the majority, emphasised that:
To say that the pastoral leases in question did not confer rights to
exclusive possession on the grantees is in no way destructive of the title
of those grantees. It is to recognise that the rights and obligations
of each grantee depend upon the terms of the grant of the pastoral lease
and upon the statute which authorised it.
What the High Court did not Decide
The High Court did not decide that native title will always survive
the grant of a pastoral lease-whether in Queensland or elsewhere. It confined
its attention to the particular leases at issue and held that they did
not necessarily extinguish native title.
Nor did the Court decide on the survival, content or nature of the native
title claimed by the Wik and Thayorre Peoples. Evidence of these matters
must be presented to the Federal Court.
This Research Note was prepared on 14 January 1997.
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