To counter government and big business lies over the ramifications of the Wik judgment — all faithfully reported by the mainstream media — Â鶹´«Ã½ Weekly has summarised the view of the Aboriginal and Torres Strait Islander Commission, contained in its recently released report A Plain English Guide to the Wik Case.
The Wik people's claim in Cape York Peninsula dates back to 1993, before the Native Title Act became law in December of that year. They were joined by the Thayorre people, who were claiming an area which partly overlapped the Wik people's claim.
The claims included land where two pastoral leases had been granted by the Queensland government, one of 2830 square kilometres (originally granted in 1945) and the other of 1385 square kilometres (granted 1915).
The first lease has never been permanently occupied or fenced. In 1988 it carried only 100 unbranded cattle. The second was forfeited twice and has never been occupied as a pastoral lease. Aboriginal people have been in continuous occupation of the area. In 1922, the area became an Aboriginal reserve and remains so today.
On January 26, 1996, the Federal Court decided that the Wik and Thayorre People's claim could not succeed over areas already covered by pastoral leases, saying that pastoral leases extinguished native title.
The Wik people then asked the High Court to rule on whether the pastoral lease gives exclusive possession rights to the pastoralist. They argued that native title coexisted with pastoral leases.
The High Court ruled that:
lpastoral leases did not give exclusive possession to the pastoralists;
lthe grant of a pastoral lease does not necessarily extinguish all native title rights, and native title rights could continue at the same time that the land was subject to a pastoral lease;
lnative title can be extinguished only by a written law or an act of government, and where there is a conflict in the exercise of those rights, native title rights are subordinate to those of the pastoral holder.
The High Court did not decide what native title rights the Wik and Thayorre peoples have, but only ruled that the Federal Court was wrong on some questions. The Wik people can now return to that court to present their case for native title rights.
In the Mabo judgment, the High Court ruled that native title must be proved with evidence of the customs and traditions of the claimants. Either the Federal Court can decide what the native title rights of the Wik people are, and which of those rights can coexist with the pastoral lease, or the Queensland government can negotiate with the Aboriginal people, using procedures set down in the Native Title Act.
The High Court ruled that only native title rights that are not inconsistent with the rights of the pastoralist can coexist with pastoral leases. If the parties cannot reach an agreement, the Federal Court can make a final determination on native title. It may be, for example, that rights to visit a sacred site will not be inconsistent with the pastoralists' rights.
Pastoralists' rights
The Wik decision made clear that:
- A native title holder cannot restrict a pastoral lease holder from using the lease for pastoral purposes and, therefore, a native title holder cannot have full ownership of the land at the same time as it is the subject of a pastoral lease.
- A native title holder cannot prevent the pastoralist from feeding and watering livestock; interfere with the pastoralist's privacy; or prevent the pastoralist from building fences, gates, windmills and other improvements.
None of the rights of the pastoral leases are taken away by coexisting native title rights. Where there is any inconsistency with pastoralists' rights, the pastoralists' rights override native title.
The High Court also confirmed its view in the Mabo case that state governments have the power to grant pastoral leases. The court said that a pastoral lessee's rights are defined by the relevant state statute.
Pastoral leases in Queensland, the High Court said, are subject to statutory provisions including conditions that: require the land to be developed, improved or enclosed by fencing; require the destruction of noxious plants and control of vermin; prohibit the destruction of trees; make leases subject to the rights granted under mining, petroleum and forestry legislation; and give drovers and others the right to pass through and use pastures while passing through.
In WA, SA and the Northern Territory, statutes give Aboriginal people the right to enter pastoral leases in order to live off the land in their traditional manner. These provisions protect the improved parts of properties.
Pastoralists retain the same legal interest in their leases. There is no legal impact on the value of the pastoral lease or the value of the security which the lease may provide for borrowing money. Stock mortgages (using stock for security for a bank loan) are still valid.
There are no compensation obligations on pastoralists flowing from Wik. If pastoralists' acts, such as fence building, cultivating pastures and creating dams, have the effect of impairing the exercise of coexisting native title rights, those acts are validated by the Native Title Act because they are authorised by statute law. Compensation would be payable by the government which made that law.
Effect on miners
Since the Native Title Act, the granting of mining tenements over land where native title may still exist has to go through a right to negotiate process. This involves governments notifying native title holders of its intention to grant the mining tenement, allowing the native title holders a short time to register their claim and, if that is done, negotiations between the native title holders, the mining company and the government.
If no agreement can be reached, the Native Title Tribunal or a similar state body decides if exploration or mining can go ahead and on what conditions.
There are mechanisms in the Native title Act to avoid or fast-track the right to negotiate in some circumstances.
Because the question of the continued existence of native title on pastoral leases was not resolved by the Mabo case or the Native Title Act, all grants of mining tenements on pastoral leases since January 1994 are required to go through the right to negotiate process.
If native title claims are made over pastoral leases upon which tenements existed prior to the Native Title Act, the native title rights are subject to the rights of the miners to continue mining. In those instances, the right to negotiate process does not apply.
However, if a government granted mining tenements on pastoral leases after the Native Title Act and without going through the right to negotiate process, those mining tenements could prove to be invalid.