–+Wik


 * Wik case**

Wik focused on the situation concerning pastoral leases in Queensland, but provided guidance concerning other types of title. The fundamental question at stake was whether the granting of a pastoral lease necessarily extinguished native title.

The assumption of native title extinguished by grants of exclusive possession included pastoral leases and other non-exclusive tenures was carried through into the Native Title Act. However in 1996, the Wik people of Cape York brought a case to the High Court, which served to test the validity of this assumption. The Wik decision was handed down by the High Court of Australia on 23 December 1996. The High Court ruled that native title may survive on pastoral leases, but added that the rights of pastoral lessees prevail over any rights that native titleholders may have. The implication of the High Court's Wik ruling was exposure of a much greater area of Australia over which native title claims could be made, without deciding whether any particular claim would be successful. The High Court also decided that exclusive tenures, such as freehold, residential, commercial and most agricultural leases, and existing public works, granted on or before December 23, 1996. It also ensured native title holders are entitled to full compensation for any impact on their native title rights.

The "leading" judgment in Wik was handed down by Justice Toohey. The second element of Toohey’s: second step" involves the issue of the possibility of the revival of native title interests when a title expires. A recent decision of the Federal Court found that such revival is impossible if exclusive possession has been granted (i.e. if the title granted was "freehold" or similar). An appeal has been lodged and the matter is now awaiting adjudication by the High Court.

The findings of law in Mabo and Wik become part of the common law of Australia. They may be modified by subsequent statutes and by subsequent decisions of the court, but as law they bind us all. As such, if one recognizes the law of the land, it is impossible not to recognize them.