Buti, Antonio --- "Review of Graham Hiley (Editor), The Wik Case: Issues and Implications (Butterworths, Sydney, 1997)" [1998] MurdochUeJlLaw 6; (1998) 5(1) Murdoch University Electronic Journal of Law

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Review of Graham Hiley (Editor), The Wik Case: Issues and Implications, (Butterworths, Sydney, 1997)

Author:	Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU) Senior Lecturer, Murdoch University School of Law
Issue:	Volume 5, Number 1 (March 1998)

1. The Wik Case is reproduced in this book as it appeared in (1996) 141 ALR 129 (Wik Peoples v State of Queensland and Others (B8 of 1996), Thayorre People v state of Queensland and Others (B9 of 1996)). Commentary on various aspects and perspectives of the Wik Case are provided by a number of contributors, all except one, were involved in the case.


2. In the introductory chapter, Graham Hiley writes:

[t]he High Court's decision in Wik Peoples and Thayorre People v Queensland ..., and before it in Mabo v Queensland (No2)..., and before that land rights legislation such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) have led to public outcry, largely due to misunderstandings, misreportings and unfounded fears of possible fears of possible consequences. This publication aims to remove much of the misunderstanding about Wik, to identify the real issues decided, and to identify several issues which remain....(at 1).

As the Senate of the Commonwealth Parliament debates the Native Title Amendment Bill 1997 (Cth), which in the main is driven by the Commonwealth Government's attempt to find 'solutions' to their perceived 'problems' with the consequences of the Wik decision, the above statement has great potency and contemporary relevance. Misinformation and scaremongering (for example, Senator Minchin's assertion that freehold title is not 'safe' from native title) and confusion as to what are the consequences of the Wik decision abounds.

3. Hiley succinctly states what Wik decided:

Contrary to popular belief the High Court's decision: (a) did not conclude that the Wik people or Thayorre people, or for that matter any Aboriginal people in Australia, have native title; and (b) did not remove the existing rights of other Australians, in particular the holders of pastoral leases. All that the decision did was to hold that the granting of a pastoral lease, whether or not the lease has now expired (or has otherwise been terminated), did not necessarily extinguish all native title rights and interests that might otherwise exist (at 1).

4. Philip Hunter's article, 'The Wik Decision: Unnecessary Extinguishment' provides a chronological summary of the litigation, which commenced in the Federal Court in 1993. Hunter also provides the most detail summary found in the book on the High Court decision. Considering the current difficulties the Commonwealth Government is having with passage of its Native Title Amendment Bill 1997 (Cth) through the Senate, the ultimate sentence of Hunter's article is prophetic: 'Hopefully, lessons will be learnt from this protracted litigation that many of the issues involved in native title claims cannot be confronted conventionally (at 18).


5. The article 'Thayorre People v Queensland' by John Bottoms outlines how the Thayorre people become involved in the case and the issues which were specific to them. For the Thayorre people the issue was whether the relevant pastoral leases extinguished their native title.


6. Concerns expressed by pastoralists, such as their 'exact' rights which are not clarified by their lease documents or relevant legislation, is discussed in Mark Love's article 'The Farmgate Effect'. Love who appeared for the pastoralists in the Wik case, states his preferred compromise:

The extent to which pastoral activity and the continuing development of the pastoral estate will be curtailed by the Wik decision will depend on the willingness of native title holders to accept the extent of interference which modern pastoral management (outside core grazing) has on the enjoyment of native title rights or which they wish to permit under the right to negotiate procedure in the NTA [Native Title Act 1993 (Cth)]. The extent to which that accommodation will be given is likely to depend on the farmers' acceptance of the reasonable and legitimate claims of native title holders (at 44).

7. The Wik and Thayorre peoples had to overcome two arguments. The first, was that a pastoral lease conferred exclusive possession upon the lessee, extinguishing the rights and interests of others such as native title holders. The counter to this is the 'co-existence' argument. The second argument which has received far less publicity was that:

...the mere granting of an interest in land not only conferred rights upon the grantee, but also enhanced the underlying title of the Crown converting it from mere "radical title" to full beneficial title, such that upon expiry of the term of the lease or other interest full beneficial ownership would revert to the Crown (rather than the land resuming its former status of being land in which the Crown only had radical title) (at 3).

8. The majority in Wik by various ways came to the conclusion that the Crown did not acquire a reversion expectant on the expiry of the pastoral leases. Presumably the native title rights and interests existing at the time of the grant of the leases were not extinguished by the grant. Peter McDermott's article, 'Wik and Doctrines of Tenures: A Synopsis' provides a useful analyses on this aspect of the Wik judgment.


9. As Hiley states, '[t]he decision leaves open several other important issues, some of which were argued before the High Court, but were not necessary for decision in the particular case' (at 4). This books deals with some of those issues. Paul Smith looks at 'what legal test must be applied in order to determine whether or not extinguishment (or impairment) of native title has occurred' in his article, 'Pastoral Leases and Native Title'. In 'How Wik applies to Western Australia', Greg McIntyre argues that in situations where a pastoral lease (or the relevant legislation) provides for Aboriginal reservations (as is the situation for many pastoral leases in Western Australia, South Australia, New South Wales and the Northern Territory), the possibility of extinguishment of native title by force of the granting of a pastoral lease is less likely than the situation in Wik. Raelene Webb and Kenneth Pettit in their article, 'The Effect of Wik on Pastoral Leases with Provision for Access by Aboriginal People', argue the contrary. Simon Williamson in 'Implications of the Wik decision for the Minerals Industry' and Love in his article look at the interaction of the Wik decision with the Native Title Act 1993(Cth), and consider some 'potential problems'.


10. The interrelation between native title and the Racial Discrimination Act 1975 (Cth), which has particular relevance to the present debate over the Native Title Amendment Bill 1997 (Cth), is examined by Doug Young, John Briggs and Anthony Denholder in their article, 'Into the Fray Again: Native Title and the Racial Discrimination Act'. Dr Jonathan Fulcher in 'Sui Generis History? (The Use of History in Wik)' discusses the use of historical materials in the Wik Case. He finds fault in the materials relied on by some of their Honours.


11. The Wik Case: Issues and Implications in many respects is an impressive book. It does correct a number of misconceptions about the Wik decision and its ramifications, and identifies a number of issues that still need to be dealt with. It will serve those, including law students, interested in understanding the Wik Case and its possible implication on native title and land law well. However, in the articles are brief and in some cases lack depth of analysis, which is not surprising considering that the book was published within six months after the Wik decision was handed down. (The book is 229 pages in length, however, 167 pages are taken up with the reproduction of the decision; the 12 articles only read for 62 pages). Further, it is arguable that the contributors arguments and views do significantly reflect their involvement with the Wik Case (ie; advocates for the Wik and Thayorre peoples or the pastoralists, mining industry or governments), even though Hiley in the introduction writes, '[t]he reviews expressed are not intended to be the views of any particular client or interest group' (at 1). However this does not detract from the quality or worth of the book but the discernible student and reader should be aware of this.

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