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Nettheim, Garth --- "Book Review - The Wik Case: Issues and Implications" [1997] IndigLawB 96; (1997) 4(6) Indigenous Law Bulletin 27


Book Review -



The Wik Case: Issues and Implications

Graham Hiley (ed)

Butterworths, Sydney 1997

ISBN 0 409 31387 4

Reviewed by Garth Nettheim

This book comprises the full text of Wik Peoples v State of Queensland & Ors ((1996) 141 ALR 129, now reported in (1996) 187 CLR 1). The text is preceded by a sixty-two page collection of contributions. All but one of the writers were involved in the Wik case in one capacity or another.

The editor himself, GE Hiley QC, was a member of the legal team appearing for the Thayorre people. In a brief Introduction he notes the misconceptions surrounding the Wik case, spells out the essence of the decision, and identifies the particular issues which are addressed by the contributors.

Philip Hunter (solicitor for the Wik peoples) explores the issues of co-existence that arise from the decision that pastoral leases do not necessarily extinguish native title. After addressing the hysterical responses to the decision from various quarters, he provides a valuable outline of the protracted litigation history of the Wik peoples' claim. He goes on to summarise the Court's findings about the two pastoral leases in question and the several judgments on the legal issues relating to pastoral leases.

John Bottoms, solicitor, outlines the involvement of his clients, the Thayorre people, in the litigation: the Wik claim overlapped a portion of their country, as did the Mitchellton Pastoral Lease (which had never been taken up). He also provides a sketch of the Waanyi litigation which was proceeding at the same time on the question of pastoral leases (see Re Waanyi People's Native Title Application (1995) 129 ALR 118).

Paul Smith, a Queensland Government lawyer, briefly notes the thorny question whether the extinguishment or impairment of native title depends solely on the rights as granted by the government, or may also turn on the exercise of such rights at some later stage.

Greg McIntyre (counsel in the Wik case for the Pormpuraaw Aboriginal Council and several WA Land Councils) briefly considers the effect on native title of reservations in WA leases for continued Aboriginal access. More generally he concludes that WA land legislation, like that of Queensland, does not grant pastoral leases a right of exclusive possession such as to extinguish native title. But arguments for a contrary view of the effect of reservations are set out in a joint paper by Raelene Webb and Kenneth Pettit, who have acted as counsel, respectively, for the governments of WA and the Northern Territory.

Peter McDermott (who acted as counsel for the Thayorre people) addresses the complex issue of the underlying title to a pastoral lease. The majority in Wik rejected Brennan CJ's analysis that, on grant of a pastoral lease, the Crown's radical title became a full beneficial title so that it acquired a 'reversion expectant' in relation to the lease. It remains to be settled whether any co-existing native title rights can revive as full beneficial ownership on the expiry of a pastoral lease. The Native Title Amendment Bill 1997 would enact a negative answer to the question.

Issues of co-existence during the currency of a pastoral lease have been thought to create problems for pastoralists, miners and others such as to require a legislated response. Mark Love spells out the concerns of pastoralists. One particular concern is that particular acts of management may amount to 'future acts' under the Native Title Act 1993 (Cth) ('the NTA') such as to require the consent of any native title holders. More generally, Wik has necessitated a substantial change to pastoralists' prior assumptions that they were entitled to fully manage the land, subject only to control and regulation by the State.

Simon Williamson of the WA Chamber of Minerals and Energy is also concerned by uncertainty arising from the Wik decision. The clearest problem area concerns the validity of titles granted by governments since the commencement of the NTA (1 January 1994) without complying with NTA processes, and he provides a useful summary of the position in each jurisdiction. He calls for urgent Commonwealth validation of such titles. Williamson is also concerned at delays to mining activity caused by right to negotiate' processes which are now applicable to larger areas of Australia than previously understood. He summarises the record in WA where (since 16 March 1995) the government has worked in accordance with the NTA.

Historian, Dr Jonathan Fulcher, offers a critical comment on the uses of history in the Wik judgments and argues that the writings of Henry Reynolds, in particular, do not present a complete picture of the evolution of Imperial policy in relation to pastoral leases.

Lastly, solicitors Doug Young, John Briggs and Anthony Denholder consider the limits to possible State and Territory legislation in response to Wik that are presented by the Racial Discrimination Act 1975 (Cth) ('the RDA'). They offer brief accounts of the High Court decisions in Mabo v Queensland (No. 1) (1988) 166 CLR 186 and Western Australia v The Commonwealth (The Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373. The Commonwealth has general constitutional competence to legislate inconsistently with its own prior enactments, but the authors point to possible problems should it choose a Wik response which is at odds with the RDA and Australia's Convention obligations. They also note the Commonwealth Parliament's constitutional obligation to provide for 'just terms' for any acquisition of property.

The collection works as a succinct and accessible account by a number of knowledgeable people, with varying perspectives, on the principal legal issues arising from the Wik decision. (Another similarly accessible collection is the University of New South Wales Law Journal Forum 'Wik: The Aftermath and Implications' (Vol. 3, No 2, June 1997)). As such, it represents a valuable resource, together with the full text of the judgment.

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