The Wik decision

The issue of whether a grant of a pastoral lease by a government extinguishes native title was dealt with in 1996 by the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 (the Wik decision). The Court decided that native title could co-exist with certain pastoral leases; their grant does not extinguish all native title rights. If there is a conflict over what activity is allowed between the two co-existing holders of rights, activities allowed by the grant of the pastoral lease prevail over those conferred by the underlying native title.

While the pastoral lease is unaffected by traditional rights over land, some native title rights survive. These might include rights to perform ceremony, or to gather foods or medicines.

In Queensland and Western Australia in particular, some pastoralists claimed that the Wik decision left an unworkable situation that had to be resolved by further Commonwealth legislation. After nearly two years of intense political discussion and the longest debate in its history, the Senate passed the Native Title Amendment Act 1998 (Cth). Amongst other things, it allows the upgrade of activities that can be undertaken on pastoral leases, without regard to native title issues.

Although the Wik decision has little direct impact on Victoria, the Native Title Amendment Act has major effects on native title in the State. Any freehold title or exclusive lease is deemed to have extinguished native title. The Amending Act limits the consideration of native title in processes and decisions concerning land use in respect of reserves, including national parks, which contain much of the land potentially subject to native title in Victoria. The scope and effect of the right to negotiate about mining is reduced, and the balance of rights set out in the Native Title Act is shifted away from the protection and recognition of native title.

Subsequent High Court decisions, such as Western Australia v Ward (2002) 213 CLR 1, have clarified what it takes to extinguish native title. In order to determine whether native title rights have been extinguished it is necessary to identify the native title rights and compare them with the particular rights granted, for example, by a pastoral lease, by a mineral lease, or by the creation of a reserve. Native title is extinguished to the extent of inconsistency between the rights. Thus, native title can be wholly or partially extinguished.

In order to be recognised by the common law, native title rights must be in relation to land or waters. Thus, maintaining or protecting Aboriginal cultural knowledge cannot be protected as a native title right.