| The decision of the High Court in the Wik case delivered today shows that there is no easy and general legal answer to the question whether pastoral leases extinguish native title, according to Tribunal President Justice Robert French.
A majority of the Court held that the Queensland pastoral leases under consideration in the Wik case did not confer exclusive possession upon the lessees. The leases were granted under particular statutes and upon a reading of the terms of those statutes and the nature of the rights conferred by them, the majority concluded that lessees did not have the right to exclusive possession in such a way as to make native title holders trespassers on their own land.
Following from that the majority also held that the pastoral leases in question would not necessarily extinguish native title. It would be necessary in each case to consider the nature of the rights conferred by the lease against the nature and content of the native title rights and interests which were able to be established. This would require a trial of the factual aspects of each native title case.
"It would be dangerous to draw too many general conclusions from the decision of the Court," Justice French said.
"However, it seems reasonable to infer that the relationship between pastoral leases and native title across Australia will depend, in each case, upon the terms of the Act under which the leases were granted and the incidents and content of the native title itself.
"With over 450 native title claims around Australia, many of them covering land which is or was the subject of pastoral leases, it is unlikely to be practicable to litigate the factual issues in every single case. This emphasises the need for pastoralists and governments and industry and indigenous people together to negotiate outcomes under which private rights and native title rights can co-exist," he said.
"It should be pointed out that if such negotiated outcomes are possible, then that itself is an indication of the possibility of co-existence which underlies the Court's decision in the Queensland cases that the pastoral leases did not necessarily extinguish native title.
"It may be that the question needs to be addressed at a national level with a concerted attempt across jurisdictions to devise systems for co-existence of native title and pastoral interests that can provide a basis for model agreements or standard form statutory access clauses. Such agreements or clauses may reduce the need for litigation on these issues."
It is open to Government to commission the Tribunal itself to carry out a special inquiry under s.137 of the Act for that purpose and as an incident of such inquiry to convene conferences to try to resolve conflicting interests under s.150 of the Act.
"From the perspective of the Tribunal, the decision means that the Tribunal's workload is, if anything, likely to be greater in the exercise of its mediation function than previously anticipated," Justice French said.
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