First There Was Mabo

The High Court case is really called "Mabo versus Queensland".

In 1992 the High Court decided that Aboriginal people, being the original occupiers of Australia, are entitled to certain rights over parts of the country, really no different to the ownership right you have over your house and land if you are the registered owner and you stay there. This is called "native title". In the same way that your property can be handed down through inheritance, the native title exists down through the generations unless the Government takes it away. There’s nothing very strange about this – it’s pretty much the same situation that already exists in Canada, New Zealand and USA.

Do Aboriginals Own Australia?

The judges of the High Court went out of their way to make this clear – it only effects vacant Crown land, national parks and sometimes leaseholds that must allow for access to the land. If you are the registered owner of the land on title, it’s yours, and your children’s (if it stays in your family).

Is Native Title Automatic?

No. You have to go to court and prove your claim, which is not easy. You have to prove a continual, unbroken association with the land – and if someone can show that the Crown granted them title, the native title loses out.

What About Compensation?

Say your house is compulsorily acquired by the Government to build a new electricity plant – would you expect compensation? Aboriginals can only claim compensation for the loss of their original title if the Crown gave a new title after 1975. It was the 1993 Native Title Act that established a claims process for native title rights.

What If I Don’t Own The Land?

This is where the High Court Wik decision comes in – again, its real name is "The Wik People versus Queensland". What if a farmer has a lease over land? In most situations this means that native title cannot exist over that land. But courts deal only with the issues that are before them, and in this particular case the leases were not the sorts of leases you see in everyday life. The types of leases in Wik are "pastoral leases" – these are often huge areas of remote land where Aboriginals already live, and have lived continually for hundreds of years, and sometimes never lay eyes on the leaseholders. One of the leases in this case was 2830 square kilometres, and has never been permanently occupied or fenced by farmers.

Pastoral Leaseholder’s Rights?

The High Court decided that these leaseholders don’t have the same rights as everyday leaseholders, who would normally extinguish native title (remember what Mabo said?) The leases in Wik were never intended to give the same rights - for example, they reserve lots of rights of entry and in the past travelling stockmen could graze their cattle on them. And the Court decided the aboriginals and pastoralists could occupy the land together – ask any lawyer whether this is really unusual (strata titles and tenancy in common are very similar).

Giving Pastoralists Exclusive Rights

This can only be done if the Government passes a law or does something to extinguish native title. But Wik makes it clear that native title cannot co-exist with the pastoralists’ rights if they are inconsistent. So the aboriginals may be allowed to do things that don’t interfere with the pastoralists, like visit sacred sites. But they cannot interfere with the pastoralists’ way of making a living, or their homes, or their fences etc.

What Does It Mean?

The reaction of many critics was far too quick. In reality Wik and Mabo have not taken anyone’s rights away. Sometimes all that Wik allows is a shared right to fish!

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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