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Aboriginal and Torres Strait Islander Social Justice Commissioner
Human Rights and Equal Opportunity Commission
The Wik Case
The Wik and Thayorre Peoples
I believe that my analysis of the High Court's decision in The Wik People and the Thayorre People v State of Queensland & Ors (the 'Wik case')[1] should begin with an introduction to the peoples at the heart of that case.
Connection to country
The Wik and Thayorre peoples come from the remote, resource-rich lands of western Cape York. Wik country stretches from around Weipa in the north to the Edward River in the south.[2] The traditional lands of the Thayorre overlap with the southern end of this area, hugging the edge of the Gulf of Carpentaria down to the Coleman River.[3] This is tropical country, ruled by the 'wet' and the 'dry'. Flat coastal flood plains rise to hills covered in rainforest. Further inland lie forests and pastoral country, draining to the sea through a series of large rivers.[4]
The Wik peoples "are better considered as a 'nation' than a 'tribe'. [5] For some time the name 'Wik' has been used by anthropologists to refer collectively to groups including the Wik-Ompom, Wik-Mungkana, Wik-Me'anha, Wik-Iiyanh, Wik-Paacha, Wik-Thinta, Wik Ngathara, Wik-Epa, Wik-Ngathana and Wik-Nganychara.[6]
The Wik were among the first Aborigines to have contact with Europeans. The Dutch ship Duyfhen landed on the western coast of Cape York in 1606. After spending some time on land, the crew was driven off by the Wik. The location of this landing was subsequently named Cape Keerweer, meaning 'turn around'.[7] It appears that the Dutch continued to visit this area sporadically throughout the next century and a half, and that "[i]t is possible that the strength of Aboriginal resistance to the Dutch in this region was a major deterrent to their colonising Australia a century or so before Cook .[8]
Colonisation first began to have a serious impact on the Wik and Thayorre peoples during the second half of the nineteenth century. In the 1870s, a telegraph line was built through the middle of Cape York.[9] The cattle industry followed. The expansion of white settlement into Wik and Thayorre territory brought with it frontier conflict, devastating diseases, and the kidnapping of men for forced labour on pearlers and luggers. The once-thriving Indigenous populations declined rapidly.[10]
Concern about the suffering of Aborigines in western Cape York led to the establishment of several missions during the late nineteenth century. The most important missions for the Wik and Thayorre peoples were those at Aurukun and Pormpuraaw.
Aurukun mission was established in 1904 by the Presbyterian Church. It was an unusual mission in that its population did not primarily consist of people who had been forcibly relocated from distant areas. Instead, most people who lived at Aurukun were Wik.[11] Outstations were established and people came and went between them and the mission. Many Wik people spent time working on pastoral properties located on their traditional lands.[12] The Wik remained connected to their country and, to a large extent, retained their culture and languages.[13] Today, school children at Aurukun are taught in both Wik-Mungen and English.[14] As Jan Roberts says:
This is one of the strongest tribal communities left in Australia. They retain their languages and their culture. They still dance their sacred dances and hunt and gather on their ancestral lands.[15]
The mission to which most Thayorre people were taken was Pormpuraaw, which was established by the Anglican church in 1938. Pormpuraaw is located within the traditional lands of the Thayorre, near the Edward River.
Ironically, as David Martin has explained, the missions of western Cape York:
...enabled the maintenance of significant aspects of Aboriginal social, cultural and political life, including those relating to land. Aurukun and Pormpuraaw in particular have long been recognised as the bastions of traditional Aboriginal values in Queensland.[16]
Recognition of rights
In considering the Wik case, it should be remembered that it is the most recent episode in a long-fought campaign by the Wik peoples to protect their culture from the impact of dispossession and to gain recognition of their rights to their traditional estates.
The Wik came to national attention in 1975 when the Queensland government issued a foreign consortium with a special lease to mine bauxite in the middle of the Aurukun reserve.[17] This was done without any consultation, either with the people of Aurukun or with mission authorities. Under the terms of the grant, no compensation was to be paid to the Aurukun community. Instead, the Queensland Director of Aboriginal Affairs was to receive 3% of the mine's net profits.[18]
The people of Aurukun were vehemently opposed to the granting of the lease on their traditional lands. They launched a court challenge, financially supported by the Uniting Church. The Wik argued that the Director of Aboriginal Affairs had failed to uphold his statutory duty to act as their 'trustee', as he had agreed to the lease without consulting them or negotiating compensation for the damage to their land. These arguments were upheld by the Supreme Court of Queensland.[19] However, the Queensland government appealed this decision to the Privy Council, which overturned the Supreme Court's decision.[20]
At around the same time, significant numbers of people began to move from Aurukun onto outstations. This was inconsistent with the Bjelke-Petersen government's official policy of assimilation. The government's displeasure at the outstation movement and church-sponsored resistance to mining led it to announce that the Aurukun mission would be brought under State government control.[21] This move was emphatically opposed by the Aurukun community. [22]
Initially, the Fraser Government expressed a degree of support for the community.[23] The Federal Parliament passed legislation which said that if a majority of the community wished, the reserve could be governed by an Aboriginal Council. This was too much for Premier Bjelke-Petersen. Only days before the Federal Bill was passed, the Queensland parliament de-gazetted the reserve, so that it became Crown land and was removed from the scope of the Federal Act. The state then passed legislation which gave the people of Aurukun a 50-year lease over their land, but reclassified the mission as a Shire Council. This classification placed the mission under the control of the Queensland Department of Local Government and outside the reach of Commonwealth power.[24] Only a few months later the Queensland Minister for Local Government dismissed the elected council and appointed an administrator.[25]
The Queensland government also sought to prevent Wik people from buying their traditional lands. During the late 1970s, Old Man Koowarta,[26] a Wik elder, was granted Commonwealth funds to purchase a leasehold property which formed part of his clan's country. The Queensland government refused to process the transfer on the blatantly racist basis that it opposed the acquisition of large freehold or leasehold areas by Aboriginal people.[27] In what became a ground-breaking constitutional case, Old Man Koowarta challenged the actions of the Queensland government in the High Court, claiming that the government had breached the Racial Discrimination Act 1975 (Cth).[28] Although Koowarta won this case, his peoples' joy was to be short-lived. The Queensland Government immediately re-classified the area - which was significantly degraded - as a national park, thus preventing its legal purchase.
As can be seen, the native title claim which gave rise to the Wik case is only the most recent attempt by the Wik to gain recognition of their rights to land through non-Indigenous legal and political processes. The case must be regarded:
...as the latest in a series of actions taken by the Wik people to assert their fundamental customary and legal rights, and to demand recognition of their society and culture by the wider state. It is certainly seen as such by Wik people themselves.[29]
The pastoral leases
A significant proportion of the western area of Wik and Thayorre country is now 'Aboriginal land', held by Community Councils under leases or Deeds of Grant in Trust. Native title proceedings relating to these areas are currently in mediation with the National Native Title Tribunal.[30]
The Wik case primarily concerned areas further inland held under pastoral and mining leases.[31] The two pastoral lease properties involved were referred to by the Court as the 'Mitchellton pastoral lease' and the 'Holroyd pastoral lease'.
The Mitchellton pastoral lease
Two leases were granted over the Mitchellton pastoral lease area, both under Land Act 1910 (Qld). Possession of the land was never taken by the lessee under either of the leases.
The first lease was granted in 1915. It was expressed as being for "pastoral purposes only . After only three years this lease was forfeited for non-payment of rent.
Another lease, again for "pastoral purposes only , was issued in 1919. This lease survived for an even shorter period than the first one. In 1921 the Chief Protector of Aboriginals wrote to the Home Secretary in Brisbane complaining that he had not been consulted about the granting of the second lease. He informed the Home Secretary that there were about 300 "natives roaming on the country who would be "hunted off when the leaseholder commenced operations.[32] The lease was surrendered later that
year. Since 1922 the land has been reserved for the use and benefit of Aboriginal peoples.
In his judgment, Justice Kirby described the situation which existed on this remote piece of land:
Members of the Thayorre continued living on the land in their traditional way. They would have had no reason (there having been no entry) even to be aware of the grant of any pastoral lease over the land. Soon after the surrender of the lease in October 1921, a reserve was created for them. ...[S]o far as they were concerned, nothing of relevance had occurred to their land, save for (as it was put in argument) 'the signing of documents by people in Brisbane'.[33]
The Holroyd pastoral lease
The first Holroyd pastoral lease was granted in 1945 under Land Act 1910 (Qld). It was expressed as being for "pastoral purposes only and was for a term of 30 years.
In 1972 the Holroyd lessees applied for the grant of a new lease, as the current lease was due to expire in 1975. Another 30-year lease was granted over the area, this time under the Land Act 1962 (Qld). It was not expressed as being limited to pastoral purposes. However, like the other leases, it was subject to various reservations, including a reservation of rights in gold and minerals for the Crown. It contained express conditions requiring the lessee to erect a manager's residence and to effect other improvements, including fencing and an airstrip, within five years.
By 1984 an airstrip had been made but no fences or buildings had been constructed. According to a inspector's report in 1988:
...the only cattle on the land were feral cattle. There were no branded cattle and only about 100 unbranded. The only occupants of the land, so far as the lessee was concerned, were two sleeper cutter gangs of six men and the contract musterers in the dry season. A machinery shed had been built. But no residential quarters for employees had been constructed. Timber cutters, using their own money, had erected a toilet and shower system. ...The introduction of helicopter mustering had, in the opinion of the inspector, reduced the necessity to insist on permanent mustering yards.34
Again, as the Court explained:
...it seems a reasonable inference that traditional Aboriginal life would have been little disturbed by the grant of the pastoral lease.... The number of persons entering the land was small and mostly seasonal. The physical improvements were virtually non-existent. In such a large remote terrain, for most of the year, the Wik could go about their lives with virtually no contact with the lessee or the tiny number of stockmen, wood gatherers and occasional inspectors who entered their domain, or, more recently, in the case of helicopter pilots engaged in mustering, who flew over it.[35]
The history of the action
The Wik peoples initiated a common law action in the Federal Court prior to the enactment of the Native Title Act 1993 (Cth) ('NTA'). They sought a declaration that they had "Aboriginal or "possessory title rights over approximately 28,000 square kilometres of their traditional lands; and claimed damages and other relief if it was found that these rights had been extinguished. The Thayorre were joined to the action at a later stage after making a cross-claim for a similar declaration in respect of lands which overlapped with the Mitchellton pastoral lease area.
The claimants alleged that their title had not been extinguished by the granting of pastoral leases and constituted "a valid and enforceable interest in the land co-existing with the interests of the lessees under the pastoral leases and exercisable at all times during the continuation of the pastoral leases. [36] No attack was made on the validity of the pastoral leases. The Wik argued that native title 'co-existed' with the interests of the pastoral leaseholders and accepted that in the event of inconsistency between these rights, the leaseholders' rights would prevail.[37]
After the commencement of the NTA, the Wik peoples made a claim under the Act for a 'determination of native title'. It was subsequently ordered by Justice Drummond in the Federal Court that certain legal issues raised by the initial proceedings should be heard and determined. It was thought that this approach "might resolve the major, if not all, issues in the Federal Court proceedings as well as those in the claim under the Native Title Act. [38]
Justice Drummond formulated several questions of law which he then sought to answer. He concluded that the pastoral leases conferred a right of exclusive possession on the lessees, and that the grant of the leases had necessarily extinguished all native title on the lands in question.[39]
Leave was granted for the Wik and Thayorre peoples to appeal directly to the High Court. The scope of the appeal was defined by the questions of law which had been formulated by Justice Drummond. This made the decision somewhat circumscribed, and narrowed the issues on which it can be considered authoritative.
The crucial questions which were asked by Justice Drummond and appealed can be summarised as follows:
Did the pastoral leases confer a right of exclusive possession on the grantees?
If so, did the grant of the pastoral leases necessarily extinguish all incidents of native title in respect of the leased areas of land?[40]
Exclusive possession
The questions framed by Justice Drummond required the judges to consider whether the leases conferred a right of exclusive possession on the lessees, despite the fact that"'[e]xclusive possession' was not necessarily an element in an inquiry as to extinguishment by the grant of a pastoral lease. [41] The inappropriate emphasis which was placed on this issue was criticised by several of the majority judges, who have been described as having dealt with it "reluctantly .42
There was a crucial difference of opinion between the majority and minority of the Court in relation to this issue. This sprang, in part, from opposing views as to whether Queensland pastoral leases were purely statutory forms of title, or whether they incorporated the common law incidents of a lease.
Chief Justice Brennan wrote the leading minority judgment. He explained that at common law, a 'lease' is an interest in land which confers a right of exclusive possession. He stated that it was a fundamental rule of statutory interpretation that where a statute uses a term that has a technical legal meaning, the term will be taken to bear that meaning in the absence of contrary indications.[43] On this basis he found that the pastoral leases in question conferred the incidents of a common law lease, including a right of exclusive possession.
By contrast, the majority found that the pastoral leases in question were a purely statutory form of title, developed specifically to respond to local circumstances. In Justice Toohey's words, the pastoral leases:
...reflected a regime designed to meet a situation that was unknown to England, namely, the occupation of large tracts of land unsuitable for residential but suitable for pastoral purposes. Not surprisingly the regime diverged significantly from that which had been inherited from England. It resulted in 'new forms of tenure'.[44]
As the pastoral leases in question were "creatures of statute ,[45] the majority declared that in order to determine what rights they conferred one must look solely to the terms of the legislation under which they were granted and the terms of the leases themselves, rather than referring to common law principles.[46] The issue that had to be determined was whether or not the leases conferred a right to exclude native title holders from the leasehold properties.[47]
In order to interpret the statutes under which the leases were granted, the judges considered the circumstances which had surrounded their enactment.[48] As Justice Kirby described, the creation of the statutory pastoral lease was a response to, and an attempt to control, illegal squatting.
Moves to depasture stock outside the concentrated settlements in New South Wales first began without official sanction in the late 1820s. They continued in the following two decades. So-called 'squatters' simply moved onto land unoccupied by other squatters and took possession of that land without any right or title to it. Faced with this fait accompli, the New South Wales legislature enacted the 'Squatting Acts', instituting a system of pastoral licences.... The government was concerned about uncontrolled activities on Crown land, particularly where the land was acquired without payment, unsurveyed and beyond legal and administrative control.[49]
As Justice Toohey explained, the history of pastoral lease legislation in both New South Wales and Queensland reflected the "clear intention of the Crown that the pastoralists should not acquire the freehold of large areas of land, the future use of which could not be readily foreseen. [50]
Historical sources indicated that the new statutory forms of title were also intended to protect Indigenous peoples from being brutally driven from their lands; thus implying that their continued presence on the land was anticipated. In the words of Justice Toohey:
It is apparent from a despatch from Sir George Gipps, transmitting the Crown Lands Unauthorized Occupation Act to the Secretary of State that one of its aims was 'for the purpose of putting a stop to the atrocities which have been committed both on them [the natives] and by them.' Furthermore, under the regulations made pursuant to that Act a licence could be cancelled if the licensee was convicted 'of any malicious injury committed upon or against any aboriginal native or other persons'. The whole tenor of these provisions indicates a contemplation that Aborigines would be upon licensed lands. [51]
In 1842 all grants of Crown land were brought under the legislative supervision of the Imperial Government by its Sale of Waste Lands Act.52 The Order in Council which implemented this Act in New South Wales empowered the Governor to grant leases for pastoral purposes. However, correspondence from Imperial officials indicated that this form of tenure was not intended to permit leaseholders to exclude Indigenous peoples from their traditional lands. Three of the majority judges quoted a despatch from Earl Grey, Secretary of State for the Colonies, in support of this conclusion.[53] Earl Grey advised the Governor of New South Wales that it was:
...essential that it should be generally understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such land as they may require within the large limits thus assigned to them, but that these Leases are not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated [or] fenced in for that purpose.[54]
In the view of these majority judges, the circumstances surrounding the enactment of the pastoral lease legislation suggested that it was not the intention of the legislature to enable lessees to exclude traditional owners from leasehold properties. However, the majority judges stressed that the intention of the legislature must ultimately be determined from the terms and operation of the statutes themselves.[55] Upon analysing the statutes, the majority unanimously concluded that they contained nothing which could be interpreted as conferring a right to exclude native title holders. As Justice Toohey explained:
There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. [56]
After concluding that the leases in question were purely statutory interests which did not confer a right to exclude traditional owners, the judges were faced with the question of whether the granting of those leases had "necessarily extinguished native title.
Extinguishment or co-existence?
As described above, Justice Drummond had asked whether native title was "necessarily extinguished if the pastoral leases conferred a right to exclusive possession on the lessees. Because the majority found that the pastoral leases did not confer a right of exclusive possession, the extinguishment question did not strictly arise. However, the majority resolved the issue at the heart of the case by concluding that the granting of the pastoral leases did not "necessarily extinguish native title.
Although the High Court in Mabo (No.2) discussed the 'extinguishment' of native title, it did so in a limited way, leaving the concept to be further elaborated by the Australian common law.[57] I discussed this issue in my first Native Title Report, [58] in an attempt to encourage a judicial approach which would contemplate native title from an Indigenous perspective and ensure the non-discriminatory protection of Indigenous property rights. As I wrote in 1994:
The extent of common law restrictions on the extinguishment of native title are presently unclear. ...The common law rules relating to extinguishment therefore continue to be of fundamental relevance to the operation of the Native Title Act and its impact on the human rights of Aboriginal and Torres Strait Islander peoples.[59]
The Wik decision has provided considerable "elaboration of the general principles governing the extinguishment of native title [60], the details of which require close examination.
Extinguishment of native title requires a clear and plain expression of legislative intention
In Mabo [No 2], three of the six majority judges found that native title could be extinguished by legislation or by executive grants of interests in land, provided that the action of the legislature or executive revealed a "clear and plain intention to extinguish native title.[61] Such an intention could be indicated by express words, or be implied by 'inconsistency' between native title and the action in question.
In my Native Title Report 1994, I expressed concern about the notion that the property rights of native title holders could be extinguished by inconsistent executive grants, in the absence of a clear and plain legislative intention to achieve that end. As I explained:
That native title can be removed by legislative acts which have a clear and plain intent to extinguish does not place native title in a position different from other property interests. The Parliament has the power to extinguish any property interest through legislation with clear and unambiguous words. However, the executive does not have the power to remove property rights unless authorised to do so by the legislature. ...[T]he reasoning of the High Court in relation to extinguishment departs from this rule by allowing executive acts to extinguish native title without clear and unambiguous legislative authorisation.[62]
The majority in Wik have moved away from this position, by unanimously providing that extinguishment could only occur in situations where a clear and plain legislative intention had been expressed.[63] Justice Kirby set out the relevant principles in some detail, explaining that:
There is a strong presumption that a statute is not intended to extinguish native title. The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication. General provisions of an Act are not construed as extinguishing native title if they are susceptible to some other construction. Whether by necessary implication a statute extinguishes native title depends upon the language, character and purpose which the statute was designed to achieve. This is species of a general proposition applied by courts in the construction of legislation. It is applied out of deference to the presumption that parliament would not normally take away the rights of individuals or groups, without clearly stating such a purpose...
... Although the legislators in 1910 and 1962 did not know of the existence of native title, it should be presumed that, had they known, parliament would have acted to protect such rights against uncompensated expropriation. Especially would it have done so in circumstances where the expropriation asserted was alleged to have occurred by a legal fiction, viz the grant of a leasehold interest but one whose peculiarities would leave traditional Aboriginal life totally, or largely, undisturbed. In Canada, the principle has been approved that courts should attribute to parliament the objective of achieving desired results with as little disruption as possible of the rights and interests of indigenous peoples and affecting their rights and status no more than is necessary. Moreover, the principles of statutory construction to which I have referred are by no means new principles. They were many cases before and at the time of the enactment of the early pastoral leases legislation which adopted analogous principles. Existing proprietary rights might be affected by parliament acting within, and in accordance with, its constitutional powers. However, to deprive a person of pre-existing proprietary interests, the legislation enacted by parliament must clearly do so, either by express enactment or by necessary implication.[64]
Richard Bartlett has explained the majority position on 'clear and plain intention' in the following terms:
In Wik Gaudron J and Toohey J were joined by Gummow J and Kirby J in upholding the rationale of equal status for native title. The Justices formed a majority of four in concluding that a Crown grant can only unilaterally terminate native title by virtue of inconsistency if legislation has manifested a clear and plain intention that extinguishment should result from the grant. The majority applied the principles governing expropriation of all other rights and interests to native title. They rejected the application of a unique and arcane jurisprudence that relies upon a lesser unequal status for native title.[65]
Permanency of 'extinguishment'
It is also extremely significant that the majority judges reached no conclusion as to whether the 'extinguishment' of native title caused by an inconsistent grant must be permanent, or whether native title can revive on the expiration of such a grant. They deliberately left open the possibility that native title may be wholly 'suspended' for the duration of an inconsistent grant, saying that this point did not strictly arise for determination due to their conclusion that native title was not necessarily extinguished by the pastoral leases in question.[66] Justice Toohey acknowledged the unreality of concluding that temporary inconsistent grants must cause native title rights to be lost forever, suggesting that:
...there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished. [67]
Thus, room has been left by the majority for this issue to be explored further. And as the Court has done in the past, it may look to Canadian jurisprudence for guidance.
In Delgamuukw [68], the British Columbia Court of Appeal was of the opinion that even where there was clear and plain legislative authority to issue a grant which was legally inconsistent with Aboriginal rights,[69] such a grant would not extinguish those rights. The Aboriginal rights could be exercised until the grantee actually made use of her or his rights in a fashion which was in conflict with the exercise of the Aboriginal rights.[70] And, in that event, as Associate Professor Kent McNeil of York University in Ontario explains:
...Lambert JA was of the view that the Aboriginal rights would be suspended rather than extinguished, and none of his colleagues expressed disagreement with him on that point. Moreover, Lambert JA's view has since received strong support from Badger, where Cory J said that a treaty right (which in that instance reaffirmed a pre-existing Aboriginal right) would merely be suspended for the duration of inconsistent use of the land by a landowner who had a fee simple estate derived from a Crown grant.[71]
I made a similar point in 1994, after giving quite some consideration to the Canadian and other common law jurisprudence:
... I query how a lease can extinguish native title. If there is inconsistency and the requisite clear and plain intent that the grant will prevail to the extent that the inconsistency exists, then inconsistent native title rights may be impaired or suspended for the term of the lease and the term of any renewal pursuant to a right to renew contained in the original grant. It is not safe to assume that native title holders will cease to maintain a connection to traditional land even where a lease grants exclusive possession. In practice the fact of whether expired leases have extinguished native title could be determined by examining whether the laws and customs of Indigenous people still recognise a traditional title after a lease expires. Indeed, I believe the mere fact that native title continues to exist and Indigenous people continue to observe their laws and customs after an interest expires is itself compelling evidence that the interest was not so inconsistent with native title as to render it extinguished.[72]
We will have to await the conclusion which is ultimately reached about the permanency or otherwise of 'extinguishment' under the Australian common law. In the meantime, the Wik decision confirms that extinguishment of native title will arise from the granting of an inconsistent interest in land where there is a clear and plain legislative intention that such action will extinguish native title. As we have just seen, this was not the opinion of the British Columbia Court of Appeal in Delgamuukw.[73] However, a crucial aspect of the Wik decision is that the judges set down strict tests for determining what will constitute 'inconsistency' indicating a legislative intention to extinguish.
'Inconsistency' leading to extinguishment
Each of the majority judges in Wik took a different approach to resolving the issues in the case, and each judgment contains a different description of when 'inconsistency' giving rise to extinguishment will exist. Although the case did not produce a clear, unanimous statement on this point, there are strong similarities between the approaches and themes which are apparent in the different judgments. This makes it possible to develop principles about this issue which are consistent with the logic of all the majority judges.
In my view, the majority judgments support a 'minimalist' approach to determining when inconsistency leading to extinguishment will arise. Put briefly, this analysis has two main elements. Firstly, it is clear that the judges set a high threshold for determining when 'inconsistency' giving rise to extinguishment will occur. To quote Richard Bartlett:
Mere inconsistency in a Crown grant will not suffice. It must be such an inconsistency that it can be said that the legislature clearly and plainly intended to bring about the expropriation without compensation of native title... .[74]
The majority considered that such an intention was only manifested when the inconsistency was such that native title rights and the rights of the grantee are unable to co-exist...or 'impossible' of co-existence.[75]
Secondly, when the extent of any extinguishment has been determined, surviving native title rights will 'co-exist' with the rights of the lessee. The exercise of rights under the pastoral lease will not 'extinguish' native title in these circumstances but rather will 'prevail' over it to the extent of any practical inconsistency.
How is 'inconsistency' determined?
In my view, the majority judgments indicate that in order to determine whether extinguishment has occurred as the result of a grant, one must consider the rights granted to the leaseholder, rather than any actions which are subsequently performed on the land.[76] In order to resolve the 'extinguishment' issue, the rights granted to the lessee must be compared against the native title rights which are claimed, in order to determine any 'inconsistency' between them.[77]
A vital aspect of the judgments is the way in which they approach this comparison between rights. The majority judges stress that 'inconsistency' will only be found if rights granted to the pastoralist make it impossible for native title rights to survive. The fact that the rights of the pastoralist under the lease may be exercised adversely to native title rights is irrelevant to determining whether there is inconsistency that will bring about extinguishment.[78] There will be no 'inconsistency', and thus no 'extinguishment', where there is any possibility that native title rights could continue to be exercised on the land over which the interest has been granted.
For example, according to Justice Toohey, in order for there to be 'inconsistency' leading to extinguishment, native title rights must be incapable of surviving the exercise of pastoral rights. He defines 'inconsistency' as being the "inability of native title and non-Indigenous title to co-exist.[79] As he explains, "[i]f the two can co-exist, no question of implicit extinguishment arises... . [80]
Gummow takes a similar approach, refusing to find that the leases had extinguished native title in the absence of "clear, plain and distinct authorisation by the relevant grant of acts necessarily inconsistent with all species of native title which might have existed. As Gummow explains, there were no indications that exercise of rights granted under the leases would inevitably lead to the "full abrogation of any native title.[81]
These views are echoed by Justice Kirby, who suggests that 'inconsistency' leading to the extinguishment of native title will only occur if the exercise of
the leasehold rights would make it "impossible for native title rights to be exercised.[82]
It is possible that a grant which would satisfy the tests put forward by the majority and be regarded by them as 'necessarily extinguishing' all incidents of native title is one of exclusive possession. This certainly appears to be the view of Justice Gaudron. Upon determining that the leases did not grant a right of exclusive possession, her Honour concluded that there was no necessary inconsistency between the parties' rights arising from the nature of their respective titles.[83] This conclusion implies the application of a very strict test of 'inconsistency' similar to that of the other majority judges.
I disagree with any suggestion that the exercise of a right of exclusive possession would necessarily make the exercise of native title rights impossible. People may continue to pass on the traditional laws and customs about their country even when they are excluded from it and thus keep their native title alive. The other majority judges do not deal directly with the question of whether a grant of exclusive possession would satisfy their definitions of 'inconsistency' so as to lead to the comprehensive extinguishment of native title. According to the joint majority statement, inconsistency must ultimately be determined by comparing the rights claimed against the rights granted.[84] In theory, this leaves room for the grant of rights inferior to exclusive possession to give rise to inconsistency entailing the extinguishment of some native title rights. However, this theoretical possibility appears quite remote when set firmly against the strict approach to this issue which is taken by the majority judges. As explained, their statements indicate that in order for inconsistency to be found by this 'measuring' process, it must be obvious that the exercise of the grantee's rights would make it impossible for a claimed native title right to be exercised. Without this, there will be no evidence of a 'clear and plain legislative intention' that the grant should extinguish the right in question. It is clear that extinguishment will not result merely from the granting of rights which, when exercised, may be inconsistent with the exercise of native title rights. Wherever any possibility of co-existence remains, there will be no question of extinguishment.
Prevalence, not extinguishment
It has been suggested by some commentators that the majority judgments in Wik leave open the possibility that acts performed under a pastoral lease may 'extinguish' native title, despite the fact that the granting of the lease did not give rise to extinguishment. In other words, the potential for extinguishment may 'hover over' a leasehold property, eventually arising "from the actual performance of conditions under the lease such as the construction of buildings, dams or an airstrip, which created an inconsistency with the exercise of native title rights over 'particular portions' of the land. [85] This has been said to create uncertainty, by making it difficult to determine where native title has been extinguished.[86] It certainly gratuitously expands the circumstances in which native title may be extinguished.
The purported confusion is created by brief comments of Justices Gaudron and Gummow. The relevant section of Justice Gaudron's judgment is as follows:
The questions whether performance of the conditions attached to the Holroyd Pastoral Lease effected any impairment or extinguishment of native title rights and, if so, to what extent are questions of fact and are to be determined in the light of the evidence led on the further hearing of this matter in the Federal Court. [87]
For his part, Justice Gummow stated that the performance by the lessee of conditions contained in the lease:
...would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.[88]
Confusion about whether or not acts performed under Crown grants could, of themselves, 'extinguish' native title was first created by comments of the then Justice Brennan in the Mabo decision. On the one hand, Justice Brennan asserted that 'extinguishment' was something caused by legislative or executive action which revealed a clear and plain intention to extinguish native title. On the other, he suggested that where the Crown reserved land for a public purpose, native title may ultimately be 'extinguished' by inconsistent use of the land, rather than by the reservation itself.[89]
Employment of the term 'extinguishment' by Justice Gaudron in the Wik case has led to further confusion, by giving rise to suggestions that land use may be relevant to determining the issue of 'extinguishment'. Justice Gummow's comments have also been interpreted in this way by some commentators, although he does not actually use the term 'extinguishment'.
Such interpretations fly in the face of statements by all of the judges - including Chief Justice Brennan - indicating that the question of 'extinguishment' must be resolved by reference to the rights of each party, not by considering the acts which have been performed by the holders of Crown-granted titles.
As is explained in the Attorney-General's departmental analysis of Wik, when considering how 'extinguishment' should be determined, "each of the majority judges expressly declare (or at least assume) that the focus of the inquiry should be on the nature or character of the rights granted rather than on the actual use of the land or the activities of the grantee. 90
According to Justice Toohey, the majority were in agreement that, "[w]hether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted or established. 91
Justice Kirby made clear statements in this regard, including the following:
What is in issue is title in respect of land. It is therefore a question about the existence or otherwise of rights of a legal character in respect of the land. [92]
To suggest that the actual conduct of a pastoralist, under a pastoral lease, could alter the rights which the pastoralist and others enjoyed under the lease would be tantamount to conferring on the pastoralist a kind of unenacted delegated power to alter rights granted under the Land Acts. This cannot be. [93]
Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence) will such native title, to the extent of the inconsistency, be extinguished. [94]
Justice Gummow stated emphatically that the question of inconsistency is not determined "by regard, as a matter of fact in a particular case, to activities which are or might be conducted on the land. Rather, in his view, "it requires a comparison between the legal nature and incidents of the existing right and of the statutory right. [95]
Justice Gaudron's judgment is clearly based on a similar approach. She describes as "undoubtedly correct an assertion that it would be the grant of a right of exclusive possession which would extinguish native title, not the exercise of such a right.[96]
It seems that the peculiar circumstances of the Wik case have led some readers to conflate two different aspects of the native title claims process. Confusion has been caused by fact that the Court was asked to decide whether grants had necessarily extinguished all incidents of native title before the nature of those incidents had been clarified. The judges were acutely aware of the problematic nature of the questions which were put to them.[97] The circumstances of the case gave the Court's discussion of extinguishment a hypothetical quality and blurred the distinction between two separate issues, namely:
(i) the nature of the claimants' native title rights as a question of fact; and
(ii) the extent of any 'extinguishment' of those rights as a matter of law.
The first step of the claims process is to determine the nature and extent of the claimants' native title rights. This is a factual issue which requires the Court to consider all evidence relating to the claimants' traditional connection to the area. Many different factors will influence the ability of claimants to establish their native title rights. For example, traditional connection to land may be dramatically affected by acts which are performed by Crown grantees. However, such acts will at most be one factor to be taken into consideration in determining the degree to which claimants have maintained their traditional connection to an area. Use of the term 'extinguishment' in this context is misleading.
It is only when the claimants' rights have been assessed that they can be 'measured' against the grantee's rights, to see whether any of the native title rights are 'extinguished' as a matter of law. As has been seen, the Wik decision indicates that a strict test of inconsistency will be applied. Native title rights which are not extinguished will survive alongside the rights of the grantee. The grant cannot cause any further legal 'extinguishment'. As the pastoralist continues to exercise his or her rights, these actions will 'prevail' over native title to the extent of any inconsistency but will not 'extinguish' native title rights. Assessment of any subsequent loss of connection will, again, be a multi-faceted factual issue.
For these reasons drawn from the majority judgments, I believe 'extinguishment' must be given a narrow scope. In my view, the most coherent analysis of the judgments compels the conclusion that inconsistency between co-existing rights leads to the 'suppression' of native title, not its 'extinguishment'. This distinction is central to the Wik decision, and essential for the protection of native title.
It is notable that the Attorney-General's Department has put forward a similar analysis of the judgment, suggesting that it resolves any 'confusion' or 'inconsistency' arising from the comments of Justices Gaudron and Gummow. As its advice explains:
This apparent inconsistency might be explained if the Court is in effect saying that the use of the land or the exercise of rights by the grantee in a manner inconsistent with surviving native title rights overrides, rather than extinguishes or impairs, such native title rights. That is, the inconsistent exercise of co-existing rights may be a separate issue from that of extinguishment by the grant of inconsistent rights.
...In such circumstances, the native title rights must 'yield'...in the sense of give way to the exercise of the grantee's rights. However, it may not be appropriate to speak in terms of extinguishment or impairment of native title rights in such cases. As the High Court appears to contemplate concurrent and potentially overlapping rights in relation to an area of land, the issue at this level may be simply one of priority between such rights as opposed to their extinguishment or impairment. Any native title rights which survive the grant of the lease must give way to the extent that they are inconsistent with the exercise of the grantee's rights, but not so as to affect the existence of the native title rights for all time (i.e. their extinguishment). It may mean no more than native title rights being unenforceable while inconsistent rights are being exercised, with the possibility that they can once again be enforced if the inconsistency is removed. [98]
As well as providing the most coherent and logical interpretation of the various majority judgments, the 'prevalence' model protects the property rights of native title holders, as it does not rely upon, nor further expand, the extinguishment of those rights. This is of great importance. As I explained in 1994, the concept of 'extinguishment' is the "component of the common law recognition of native title which potentially impinges most greatly on the enjoyment of our human rights. [99]
Conclusion
For the reasons outlined, I interpret the Wik decision as an imprimatur for Australians to take up the notion of co-existing titles, rather than focusing on extinguishment. Our system of property law has long recognised the co-existence of different non-Indigenous proprietary interests in land, without requiring the extinguishment of certain interests by others. As Maureen Tehan has explained, in responding to the Wik case:
...the project should be one of teasing out the boundaries and adjustment at the margins of each interest in order to accommodate co-existence rather than one requiring the extinguishment of one interest in order to accommodate the other. That approach has not been necessary in relation to the multiplicity of common law interests in land and is not necessary here. [100]
As will be seen in the following chapter, the High Court's approach to the issues of extinguishment and co-existence has significant implications for the way in which the relationship between native title and non-Indigenous titles should be accommodated in legislation.
The decision of the High Court in Wik does not end the struggle of the Wik and Thayorre peoples to achieve legal recognition of their native title rights. Gladys Tybingoompa, a Wik woman who danced outside the High Court after the decision was handed down, described the decision as a "gateway on a long journey.[101] She explained that the judgment was of great significance to her people.
To say what you feel about your land, your ceremonies, your ways, your language, practices in hunting and gathering, then as an individual of that right, of your people, you have a right to say of who you are. Before it wasn't like that.
It gives the Wik people more encouragement. It gives us strength. [102]
Flora valley station
The Wik and Thayorre Peoples
Connection to country
Recognition of rights
The pastoral leases
The Mitchellton pastoral lease
The Holroyd pastoral lease
The history of the action
Exclusive possession
Extinguishment or co-existence?
Extinguishment of native title requires a clear and plain expression of legislative intention
Permanency of 'extinguishment'
'Inconsistency' leading to extinguishment
How is 'inconsistency' determined?
Conclusion
[1] Wik Peoples and Ors v State of Queensland and Ors (1996) 141 ALR 129 ('Wik').
[2] Martin, D.F., 'The 'Wik' peoples of western Cape York', Indigenous Law Bulletin vol. 4(1) April 1997, p. 8.
[3] Bottoms, J., 'Thayorre People v Queensland', in Hiley G. (ed.) The Wik Case: Issues and Implications, Butterworths, Sydney, 1997, p. 19.
[4] The Encyclopedia of Aboriginal Australia, AIATSIS, Canberra, 1994, p. 1172, Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 8
[5] The Encyclopedia of Aboriginal Australia, op.cit., p.1179.
[6] The Encyclopedia of Aboriginal Australia, op.cit., p. 1179; Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 8.
[7] Roberts, J., Massacres to Mining: the colonisation of Aboriginal Australia, Blackburn, Dove, 1985, p. 7; The Encyclopedia of Aboriginal Australia, op.cit., pp. 1172, 1179; Schultz, J., 'People Power', Courier Mail, 22 February 1997, p. 24.
[8] The Encyclopedia of Aboriginal Australia, op.cit., p. 1172.
[9] Ibid.
[10] Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 8; Collings, N., 'The Wik: a history of their 400 year struggle', Indigenous Law Bulletin, vol. 4(1) April 1997, p. 5; Schultz, J.,'People Power', op.cit., p. 24; The Encyclopedia of Aboriginal Australia, op.cit., p. 1172.
[11] The Encyclopedia of Aboriginal Australia, op.cit., pp. 72, 1179; Schultz, J.,'People Power', op.cit., p. 24.
[12] Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 9.
[13] The Encyclopedia of Aboriginal Australia, op.cit., pp. 72, 1179; Schultz, J., 'People Power', op.cit., p. 24.
[14] Schultz, J., 'People Power', op.cit., p. 24.
[15] Roberts, J., From Massacres to Mining: the colonisation of Aboriginal Australia, op.cit., p. 118.
[16] Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 9.
[17] The lease was granted by means of special legislation, the Aurukun Associates Agreement Act 1975 (Qld).
[18] Roberts, J., From Massacres to Mining: the colonisation of Aboriginal Australia, op.cit., pp. 119, 120.
[19] Peikinna and ors v Corporation of the Director of Aboriginal and Islanders Advancement W. No. 553 of 1976 (5 October 1976).
[20] Corp. of the Director of Aboriginal and Islanders Advancement v Peikinna & ors (1978) 52 ALJR 286.
[21] The same intention was announced in relation to the Mornington Island Reserve - see Nettheim, G., Victims of the Law - Black Queenslanders Today, Allen & Unwin, Sydney, 1981, p. 10.
[22] Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 9.
[23] Bennett, S., Aborigines and Political Power, Allen & Unwin, Sydney, 1989, p. 78.
[24] Ibid, p. 71.
[25] Nettheim, G., Victims of the Law - Black Queenslanders Today, op.cit., p 12.
[26] It is the tradition of the Wik not to use the first name of a deceased person - see Collings, N., 'The Wik: a history of their 400 year struggle', op.cit., p. 6.
[27] Collings, N., 'The Wik: a history of their 400 year struggle', op.cit., pp. 6-7.
[28] Koowarta v Bjelke-Petersen (1982) 39 ALR 417.
[29] Martin, D.F., 'The 'Wik' peoples of western Cape York', op.cit., p. 9.
[30] Ibid, p. 8.
[31] Ibid. As well as relating to pastoral leases, the claimants "tested the validity of the leases granted for major mining projects at Weipa and Aurukun in Cape York before 1975. They claimed that the state had breached its fiduciary duty...and failed to accord natural justice to the native title holders. All seven judges dismissed this claim of the Aborigines. (Brennan, F., Wik: the Parliament's Opportunity to Restore Certainty and to Rectify a Significant Moral Shortcoming in Australian Land Laws, Uniya Jesuit Social Justice Centre, 10 March 1997, p.3).
[32] Wik, op.cit., per Toohey J., p. 169.
[33] Ibid, p. 270.
34 Ibid.
[35] Ibid, per Kirby J., p. 271.
[36] Ibid, per Brennan C.J., p. 136.
[37] Ibid, per Toohey J., p. 166.
[38] Ibid, per Gaudron J., p 191.
[39] Justice Drummond regarded himself as being bound by the decision of the Full Federal Court in North Ganalanja Aboriginal Corporation v Queensland (1995) 132 ALR 565 - see Bottoms, J., 'Thayorre People v Queensland' in Hiley, G. (ed) The Wik Case: Issues and Implications, op.cit., p 21.
[40] See Justice Drummond's questions 1B (b) and (d) and 1C (b) and (d), in Wik, op.cit., per Brennan J., pp. 136-137.
[41] Bartlett, R., 'The Wik Decision and Implications for Resource Development', Australian Mining and Petroleum Law Journal, vol. 16, 1997, p 30.
42 Ibid.
[43] Wik, op.cit., per Brennan C.J., p 145.
[44] Ibid, p. 172. See also Gaudron J., p. 204, Gummow J., p 224, Kirby J., p. 266.
[45] Gal, D. 'An Overview of the Wik Decision', UNSW Law Journal Forum, vol. 3(2), June 97, p. 2.
[46] Smith, P.A., 'Pastoral Leases and Native Title', in Hiley, G. (ed), The Wik Case: Issues and Implications, op.cit., p. 24.
[47] Bartlett, R 'The Wik Decision and Implications for Resource Development', op.cit., p. 30.
[48] Ibid, p. 31.
[49] Wik, op.cit., p. 266.
[50] Ibid, p. 173.
[51] Ibid, p. 179.
52 Ibid, per Kirby J., p 266.
[53] Ibid, per Toohey, J., p. 179, per Gaudron, J., p.197, per Kirby, J., p.267.
[54] Ibid, per Toohey J., p.179.
[55] Hunter, P., 'The Wik Decision: Unnecessary Extinguishment', in Hiley, G. (ed), The Wik Case: Issues and Implications, op.cit., pp. 12-13.
[56] Wik, op.cit., p. 181.
[57] Mabo and Ors v State of Queensland [No.2] (1992) 175 CLR 1, ('Mabo [No.2]'); see also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report January - June1994 ('Native Title Report 1994'), AGPS, Canberra, 1994, p. 103.
[58] Ibid.
[59] Ibid, p. 77.
[60] Attorney General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', 23 January 1997, p. 4.
[61] Bartlett, R., 'Wik: equality and the fallacy of "extinguishment ', Indigenous Law Bulletin vol.4(1) April 1997, p. 11.
[62] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1994, op.cit., p. 86.
[63] Bartlett, R., 'Wik: equality and the fallacy of "extinguishment ', op.cit., p. 12.
[64] Wik, op. cit., pp. 282-284 (citations omitted).
[65] Bartlett, R., 'Wik: equality and the fallacy of "extinguishment ', op.cit., p. 12.
[66] Wik, op.cit., per Toohey J., pp 170, 185, 188, 190; per Gummow J., p.248; see also Attorney General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., p. 8; Bartlett, R., 'The Wik Decision and Implications for Resource Development', op.cit., pp. 34-35.
[67] Wik, op.cit., per Toohey J., p. 185.
[68] Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA), as cited in McNeil, K., 'Co-existence of indigenous and non-indigenous land rights: Australia and Canada compared in light of the Wik decision', Indigenous Law Bulletin, Vol. 4, Issue 5, August-September 1997, p.4.
[69] Aboriginal rights is the common Canadian term for Indigenous rights, and includes title to land as well as more specific rights such as hunting and fishing rights: McNeil, K., 'Co-existence of indigenous and non-indigenous land rights: Australia and Canada compared in light of the Wik decision', op.cit., p.4.
[70] See McNeil, K., 'Co-existence of indigenous and non-indigenous land rights: Australia and Canada compared in light of the Wik decision', op.cit., p. 9.
[71] Ibid.
[72] Native Title Report, op.cit., p. 95.
[73] I consider the Canadian position further in the following chapter in relation to the proposal by the Commonwealth to legislatively 'confirm' extinguishment by 'exclusive' tenures.
[74] Bartlett, R., 'Wik: equality and the fallacy of "extinguishment ', op.cit., p. 12.
[75] Bartlett, R., 'The Wik Decision and Implications for Resource Development', op.cit., p. 29 (emphasis added).
[76] Attorney-General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., p. 5.
[77] Wik, op.cit., per Toohey J., p. 190.
[78] Attorney-General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., p.4.
[79] Ibid; and Wik, op.cit., per Toohey J., p. 184.
[80] Wik, op.cit., p. 184.
[81] Ibid, pp. 246-247.
[82] Ibid, p. 284.
[83] Ibid, per Gaudron J., p. 218.
[84] Ibid, per Toohey J., p 190.
[85] Bartlett, R., 'The Wik Decision and Implications for Resource Development', op.cit., p 35; Attorney-General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., p. 6; see also footnote no. 76, above.
[86] See Hiley, G., 'Introduction' in Hiley, G. (ed) The Wik Case: Issues and Implications, op.cit., p. 4; Smith, P.A., 'Pastoral Leases and Native Title', in Hiley, G. (ed), The Wik Case: Issues and Implications, op.cit., p. 25.
[87] Wik, op.cit., per Gaudron J., p. 218.
[88] Ibid, per Gummow J., p. 247.
[89] Mabo [No. 2], op.cit., per Brennan J., p 68.
90 Attorney-General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., p. 5; see also Bartlett, R., 'The Wik Decision and Implications for Resource Development', op.cit., p. 35.
91 Wik, op.cit., p. 190.
[92] Ibid, p. 274.
[93] Ibid, p. 275.
[94] Ibid, p. 279.
[95] Ibid, p. 233.
[96] Ibid, p. 193.
[97] Bartlett, R., 'The Wik Decision and Implications for Resource Development', op.cit., pp. 28-29. On page 28 Bartlett notes the view taken by Justice Lee in Ben Ward on behalf of the Miriwung Gajerrong v WA (Federal Court No. WA G6001 of 1995) that "since a finding of extinguishment on account of an inconsistent grant generally entails deciding the nature of that with which the inconsistency is asserted, consideration of the question of extinguishment without a finding as to the content and nature of the native title suggest the possible futility of the exercise.
[98] Attorney-General's Department, 'Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice', op.cit., pp 7-8.
[99] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1994, op.cit., p. 103.
[100] Tehan, M. 'Co-existence of Interests in Land: A Dominant Feature of the Common Law', in Land, Rights, Laws: Issues of Native Title, Native Title Research Unit, AIATSIS, Issues Paper no. 12, January 1997, p 7.
[101] 'Long journey south brings joyful news', Adelaide Advertiser, 24 December 1996, p. 2.
[102] Ibid.