Wik Peoples V Queensland - Legal Commentary On The Decision

Legal Commentary On The Decision

Maureen Tehan describes the Wik decision as the high point in law for native title in Australia. The decision balanced the rights of the pastoralists and the rights of Aboriginals, but placed the primacy of pastoral title over native title. Richard Bartlett argues that the decision placed great significance on the principle of equality at common law. Philip Hunter notes that criticism of the High Court was "totally unjustified". He states that the High Court recognised that native title was in no way destructive of the title of pastoralists. He points out that where native title clashed with pastoral interests, pastoral interests would always override native title.

Frank Brennan who has described the approach of the court as taking into account an "incomplete reading of the history". Gim Del Villar goes further and argues that the Wik judgment is "flawed" from a historical perspective. He argues that the court used questionable historical material to reach its conclusion that pastoral leases were not common law leases. He notes that in 1870 the Supreme Court of Queensland held that pastoral leases did confer a right of exclusive possession which reflected a common belief at that time that leases did extinguish native title. Del Villar points to despatches from Earl Grey in which there is the clear implication that native title was not to be respected when granting pastoral leases.