Native Title Amendment Act 1998 - History

History

In 1996, the High Court’s decision in Wik Peoples v Queensland was handed down. The case dealt with the question of whether pastoral leases granted between 1910 and 1974 in Far North Queensland had the effect of extinguishing native title. A 4:3 majority of the judges decided that the grant of a pastoral lease did not confer exclusive possession, and that native title could therefore continue to exist – this has been called “coexistence”. Where an inconsistency between the native title and non-native title rights occurs, the non-native title rights prevail.

The NTA had not adequately dealt with the possibilities of native title existing over pastoral leases or of native title rights co-existing with other rights. Since the NTA had come into effect, governments had been taking action on pastoral leases that did not comply with the NTA. Wik raised the possibility that those acts could be invalid and showed that the ‘freehold test’ (the principle used to determine where proposed activities could be done without regard to native title) in relation to future acts was inappropriate. The Federal Government developed the Ten Point Plan, which became the basis for the amendments, to deal with these inadequacies of the NTA.