Wik Peoples v Queensland

[1996] HCA 40

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

THE WIK PEOPLES v THE STATE OF QUEENSLAND & ORS (Matter No B8 of 1996); THE THAYORRE PEOPLE v THE STATE OF QUEENSLAND & ORS (Matter No B9 of 1996)
Aborigines - Native Title

(1996) 187 CLR 1

23 December 1996
Aborigines - Native Title

CATCHWORDS Aborigines—Native Title- Grant of pastoral leases pursuant to Land Act 1910 (Q) and Land Act 1962 (Q)—History of pastoral tenures and disposal of Crown land considered—Whether leases conferred rights to exclusive possession—Application of principles of statutory construction—Whether legislative intention to confer possession to exclusion of holders of native title rights—Rights and obligations of pastoral lessees determined by reference to the language of the statute authorising the grant and terms of the grant—Grant for "pastoral purposes only"—Whether grant of pastoral lease necessarily extinguished all incidents of Aboriginal title—Whether clear and plain intention to extinguish exists—Inconsistency of native title rights and rights conferred on pastoral lessees—Whether grant or exercise of the rights may operate to extinguish—Whether reversion to the Crown—Whether reversion inconsistent with continued existence of native title rights—Effect of non-entry into possession of lease. Aborigines—Native title—State legislation authorising making of agreement—Agreement to have statutory force—Agreement providing for the grant of mining leases—Statutory construction—Whether challenge to validity of agreement contrary to plain intention of the legislation—Whether relief available for alleged breaches in execution of agreement—"authorise". Land Act 1910 (Q). Land Act 1962 (Q). Aurukun Associates Agreement Act 1975 (Q). Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q).

Orders

ORDER

1. Each appeal allowed in part.

2. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d) and Question 1C(b), (c) and (d). Affirm the answers given by Drummond J to Question 1C(a), Question 4 and Question 5.

3. Answer Questions 1B, 1C, 4 and 5 as follows:
Question 1B
"If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease):
(a) [not pressed]
(b) does the pastoral lease confer rights to exclusive possession on the grantee?

If the answer to (a) is 'no' and the answer to (b) is 'yes':

(c) does the creation of the pastoral lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Wik Peoples and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?

(d) did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the pastoral lease?"

Answer
(b) No.
(c) Does not arise.
(d) Strictly does not arise but is properly answered No.

Question 1C
"If…