Fitzgerald, James --- "The Wik Peoples v Queensland and Others" [1994] AboriginalLawB 53; (1994) 3(70) Aboriginal Law Bulletin 12

• The Wik Peoples V Queensland And Others
• Application For Determination Of Native Title
• Preliminary Questions Of Law
• The Pastoral Lease Questions
• The Comalco Question
• The Minerals And Petroleum Question

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The Wik Peoples v Queensland and Others

The Federal Court of Australia, Brisbane, Drummond J – continuing

by James Fitzgerald

The Wik peoples commenced proceedings against Queensland, the Commonwealth, Comalco Aluminium Limited and others in the Federal Court of Australia in 1993, (see AboriginalLB 3/67, p17) after the decision of the High Court in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 but before the enactment of the Native Title Act 1993 (Cth). The Wik peoples sought, among other relief:

• Declarations of native and possessory title to parts of the claim area;
• Declarations that the State of Queensland owes a fiduciary duty to the Wik peoples and that the State of Queensland is in breach of its fiduciary duty;
• Declarations that certain acts of the Queensland Parliament and certain agreements which allowed Comalco and others to occupy and mine parts of the Wik peoples' traditional land were ultra vires and otherwise invalid for procedural unfairness;
• Declarations that certain Queensland and Commonwealth statutes under which Queensland granted mining leases to Comalco over coastal waters are invalid.

Application for determination of native title

On 11 March 1994, after the proclamation of the Native Title Act, Drummond J in the Federal Court ordered that the Wik peoples' claim to native and possessory title over parts of the claim area be adjourned indefinitely to allow the Wik peoples to bring an application for a determination of native title under the Native Title Act. The application was accepted by the National Native Title Tribunal and twenty-five parties, including the Commonwealth of Australia, the State of Queensland, Comalco and a number of pastoralists, have applied to be joined as respondents to the Wik peoples' application. In August 1994, the President of the National Native Title Tribunal appointed Hal Wootten QC as mediator to the Wik peoples' native title claim. Preliminary conferences have been held among the parties' representatives, and formal mediation conferences between claimants, Comalco, Queensland and pastoralists have been arranged for late October and early November 1994.

In accordance with the regime established under the Native Title Act, if the parties reach agreement on the native title claim, the National Native Title Tribunal may make a determination about native title for lodgement and registration as an order of the Federal Court. In the event that the parties cannot agree, the President must refer the matter to the Federal Court for a hearing in accordance with the provisions of Pt.4, Div.1 of the Native Title Act.

Preliminary questions of law

The Native Title Act and the decision of the High Court in Mabo (No.2) leave unanswered many important questions about the scope and content of native title in Australia. For example, the effect of a grant of a pastoral lease upon native title interests is not yet conclusively determined. Political pressure to resolve the pastoral lease issue is not surprising when it is considered that at least two thirds of the land at Cape York and a substantial proportion of the rest of Australia is, or was, subject to pastoral leases. The Wik peoples' Federal Court proceedings may provide the first opportunity for the court to settle the law relating to the effect of the grant of a pastoral lease upon native title.

Although the Solicitors for the Wik peoples filed in court an amended statement of claim more than a year ago, Drummond J has not yet required the respondents to file defences. Instead, Drummond J directed on 26 May 1994 that certain preliminary questions of law should be determined before a hearing of the facts, because of the perceived urgency in the need for a determination of those issues. Accordingly, in the week commencing 17 October 1994, Drummond J will hear argument upon the following (paraphrased) questions.

The pastoral lease questions

• Has the power of the Parliament of Queensland dealing with the leasing or occupation of lands for pastoral purposes at any time been limited to a power to enact only such laws that do not
• extinguish or impair Aboriginal or possessory title of the Wik peoples?
• If Queensland's power to make laws in respect of pastoral leases is unfettered, is there an implied reservation in favour of the Wik peoples in the Holroyd River Holding pastoral lease (a pastoral lease in standard printed form and within the Wik peoples' claim area which does not contain an express reservation in favour of native title interests)?
• Does the Holroyd River Holding pastoral lease confer upon the grantee rights to exclusive possession or merely rights to exclusive possession for the purposes of pastoral activities?
• If the Holroyd River Holding pastoral lease entitles the grantee to exclusive possession and contains no implied reservation in favour of the Wik peoples, did the grant of that pastoral lease necessarily extinguish all incidents of native or possessory title of the Wik peoples in respect of the land demised under the pastoral lease?

The Comalco question

• Did the Comalco Act 1957 (Qld) and subsequent agreements under the Comalco Act purport to grant rights to exploit the resources of the sea bed beyond the territorial limits of Queensland?

The minerals and petroleum question

• If any native or possessory title of the Wik peoples includes rights of ownership, possession or control of minerals or petroleum, have those rights been extinguished by subsequent enactment?

A number of other questions relatively discrete to the parties to the Federal Court proceedings are also set down for hearing in the week commencing 17 October 1994.

On the pastoral lease question, counsel for the Wik peoples will primarily argue that Queensland's power to extinguish native title rights by the creation of pastoral leases was limited by the provisions of the New South Wales Constitution Act 1855 (Imp) from which Queensland's constitution sprang. It will also be argued that "exclusive possession" in the pastoral lease context means "exclusive right to conduct pastoral activities", and not the right to exclude traditional owners from entry or occupation of land.

Given the importance to Aboriginal peoples, pastoralists and governments throughout Australia of the preliminary questions of law touching pastoral leases, organisations not represented in the Federal Court proceedings have understandably expressed interest in making submissions to the Court on these issues. The Thaayorre peoples, who claim an interest in a small portion of land within the Wik peoples' claim area, have joined the Federal Court proceedings in time to be heard on the pastoral lease questions. Although at the time of writing the Thaayorre peoples have not filed in court written submissions upon the pastoral lease questions, it is understood that counsel for the Thaayorre peoples will argue, in terms of the judgment of Brennan J in Mabo (No.2), that in appropriate cases native title is not extinguished by the mere reversion to the Crown of an interest in land at the expiry of the term of a pastoral lease.

In keeping with modern legal practice, the evidence on behalf of both the Wik peoples and the respondents in the Federal Court proceedings consists of affidavits thousands of pages in length. It appears unlikely that the resolution of the preliminary questions of law will have moved far beyond the taking of objections to evidence in the ten days set down for hearing.