Hi!
can someone please explain to me the Wik decision?
I'm getting a bit confused with all the titles - Freehold, leaseholder and native.
Thank you
Hey bananna
I struggled with this, and you are definitely not the only student scratching their head over this either. I'll try and simplify it down into different headings.
Wave Hill Walk Off (This isn't very important to know, but it's just setting context for what is yet to come)
The Wave Hill Mob went on strike for better conditions on a Northern Territory Cattle Station at Wave Hill. “The Wave Hill Walk Off” (1966)
Whitlam Government passed the first land rights legislation in 1975. But this only benefitted a very small amount of Indigenous Australians.
MaboInitially, the Mabo case was brought to the Supreme Court of Queensland – Mabo lost and the court ruled in favour of the QLD govt.
This was appealed, and the decision was reversed! (hooray)
Mabo & Others v Queensland (No. 2) (1992)
Mabo brought forward the case on behalf of the Murray Island people.
Native Title Act 1993 (Cth)
Terra Nullius: FALSE in relation to the Australian situation.
Australia was occupied at the time of British settlement.
Under certain circumstances: Native Title existed.
A continuous, maintained link with the land since before 1788 had to be proved.
Problem: DISPOSESSION! How can Aboriginal Australians prove this link when so many of them were dispossessed of their land? This is where Wik comes in...
WikThe Wik people brought forward a case that claimed Leasehold Title may not automatically extinguish native title.
In fact, the two could exist simultaneously.
However, if in conflict, the Leasehold title would prevail.
This was a High Court decision that say that if Indigenous people can prove a connection to the land, they may be able to gain rights to hold ceremonies and perform other traditional activities, as long as they don't interfere with pastoralist's activities. Pastoralists are cattle farmers (typically) and do not OWN the land - the land is CROWN land (meaning: owned by the state government). So, they have a lease on the land. The pastoralists have Leasehold title (right to farm the land), and the Wik decision said perhaps that doesn't always trump Native Title, and the two can work simultaneously together. Indigenous Australians can access the land for traditional ceremonies as long as it does not interfere with the cattle farming.
Note: Leasehold title and pastoral leases are pretty much interchangeable. Some textbooks use "pastoral lease" and some use "leasehold title."
The Wik Decision holds that Native Title and Leasehold Title might be able to co-exist, but if there is big conflict, the pastoral leaseholder's rights will prevail.
Let me know if it's not clear yet