The Wik Vs. Queensland decision in 1996 is a legal case between the Wik and Thayorre peoples of Cape York Peninsula and the State of Queensland.
Explainer: Wik Vs. Queensland
The Wik people, from Western Cape York Peninsula, were the first recorded Aboriginal people in Australia to have contact with Europeans. The history between the Wik people and Europeans goes back to as early as 1605, when the Dutch ship, Duyfken sailed into the west coast of Cape York Peninsula and arrived at Cape Keerweer, South of modern-day, Aurukun. Captain William Janszoon of the ship had the plan to make a settlement, but this objective failed as war broke out and the Duyfken ship soon departed.
After invasion in 1788, from 1904, Rev. Arthur Richter and the Presbyterian Church established the Archer River Mission for children living in Aurukun. As apart of the protection and assimilation policy, First Nations children were placed into these missions and were taught Western culture and way of life. Cape York in Queensland, was no exception.
Native Title recognises First Nations peoples' rights to their traditional lands and acknowledges the continuous connection Aboriginal and Torres Strait Islander people have with Country. Until 1992, Australian law did not recognise this ownership under traditional law, custom and sovereignty.
Native Title grants First Nations people self-determination, the right to govern their traditional lands and have the right to access Country for important cultural practices such as performing ceremony, hunting and protecting land.
Importantly, Native Title extinguishes the notion of Terra Nullius, an international law to describe "nobody's land", that enabled British occupation. It also symbolically decolonises Australian 'ownership' and allows First Nations people to reclaim stolen land.
The Aurora Project, an Indigenous education foundation, metophorises Native Title as a "bundle of sticks".
"Each stick representing specific native title rights, such as the right to live and camp in the area, conduct ceremonies, hunt and fish, collect food, build shelters and visit places of cultural importance. Selling or leasing of the land, reduces the size of the bundle of sticks until sometimes nothing is left."
Under Australian law, public lands or "Crown lands" are claimed to belong to the British Monarch, but held in the right of the State. Since 1788, Australian territory is considered to be land of the Crown, but regulated by State government legislation.
Public lands can be managed by pastoralists —individuals or corporations seeking grazing space for livestock and agricultural activity— who are granted pastoral leases.
Pastoral lease is a legal arrangement made under Commonwealth of Australian law, with government’s legal authority to permit pastoralists the right to use for agricultural, farming and livestock practices. In Queensland, such leases can also be used for other purposes like the production of energy from renewable sources.
There is in estimated 1,000 pastoral leases in existence in Queensland, covering approximately two thirds of the State's total land area. And currently, pastoral leases cover approximately 44 per cent of Australia's mainland.
One of Australia's most significant legal cases was the 1992 Mabo decision lead by activist and Meriam man, Eddie Koiki Mabo.
After a 10 year battle in fighting for land rights and recognised ownership of the Mer, Dauer and Waier Islands (Murray Islands), finally resulted in Meriam people of the Torres Strait being granted the land rights to Murray Island.
This case not only granted the Meriam people access to land, it acknowledged their connection to Murray Island. The case also paved the way for other First Nations' people begin formally reclaiming land through the court system. In particular, the Mabo case acknowledged that the "Terra Nullius" lie.
The Mabo case also changed how Australian land ownership was viewed. The case was a turning point in modern Australian history that complete ownership was not held by the 'new Colony' of The Crown. It changed the way non-Indigenous Australians viewed Country and land ownership.
Since the Mabo case, the 1993 Native Title Act was passed by the Keating Government and was a national system to solely protect and recognise Native Title. The Act enabled First Nations people to claim connection and ownership to land while continue to practice traditional laws and customs on land. Nonetheless, the Act was amended by the Howard government in 1998 in opposition to the result of the Wik case.
In attempt to recognise and gain land rights to two pieces of land in Queensland; Holroyd River Holding and The Mitchellton lease, the Wik People of Cape York Peninsula, and the Thayorre People of South Cape York Peninsula, made a claim that Native Title co-existed with pastoral lease.
Prior, to the court hearing the Wik peoples' focus was to primarily achieve Native Title rights. In doing so, the Wik made a claim to the Federal Court of Australia to reclaim two pieces of land (Holroyd River Holding and The Mitchellton lease) that the State Government was using for pastoral use. When the Wik were challenged with the concept of pastoral leases, they argued that both, Native Title and pastoral lease could both coexist. The case then turned its focus from Wik people pursuing their own Native Title, to pitting Native Title against pastoral leases.
Unlike the Mabo case where Murray Island had fairly small Western economic and political interest, various governments and corporations were in favour of pastoralists' rights in the Cape York Peninsula.
On the 23 December 1996, four judges voted for and three voted against pastoral leases to not extinguish native title rights. The High Court determined that pastoralists did not have exclusive rights to the land. The Wik and Thayorre people were then granted the right to Native Title in two areas of land.
While the hand down decision wasn’t exactly momentous, the decision itself simply stating that the existence of a lease did not extinguish Native Title, for the Wik people and for all First Nations people this was a closer step to formal recognition and self-determination as original and initial owners of a land that had been colonised. Especially when achieved by a group from a remote and isolated community; a place where newspapers are still not delivered.
After the hand down, a euphoric Gladys Tybingoompa, a key claimant, performed a ceremonial dance is celebration.
With concerns that this High Court ruling meant the interests of mining and pastoral leases would be neglected, a somewhat hysterical backlash erupted in Australian politics.
Members of the Howard Government criticised the High Court decision as 'judicial activism' against 'mainstream' interests, and some State premiers even said suburban backyards were under threat of Native Title. While Howard himself said his aim was to strike a "fair balance" between both parties (for and against the High Court ruling), many interpreted his actions as anti-Native Title, as he made sensationalist claims that majority of Australia was "at risk" of being granted Native Title, and that the pendulum had swung too far in the interests of Indigenous people.
In 1998, the Howard Government responded to the Wik decision by introducing the Native Title Amendment Act also known as the 10 Point Plan —a plan that led to the longest debate in the Australian Senate's history. The plan was viewed as a suite of roadblocks and red tape against Native Title opportunities, and outlined clauses such as State governments are empowered to extinguish Native Title over crown lands for matters of "national interest. It was regarded by many as further dispossession of Indigenous rights, and Indigenous people playing by the Government's rules only to have the rules changed on them.
Despite the 60,000+ years of Indigenous civilisation and occupation to modern-day Australia, Native Title claimants and parties are still required to prove their ongoing connection to their traditional lands under the Native Title Act.
Aboriginal culture, language, customs and lores were passed down through oral language and stories and have much of this has been impacted by colonisation and government policies and laws, having a detrimental impact on First Nations culture and by and large prevents First Nations people from proving their ongoing connection to land. This makes it is very difficult to demonstrate Federal and State Government agencies requirements to obtain Native Title.
The Australian law requires high level of evidence of a groups traditional connection to land from the date when the Crown asserted its authority. The process of providing connection information is slow and can take up to 2-3 years of research and up to 3 years being assessed.
It wasn’t until 16 years later that the Wik Vs. Queensland case was finally formalised. On 11 October 2012, the last parcel of land was handed back to the Wik people at ceremony in Aurukun. The areas that were granted as Native Title was Aurukun and Weipa.
More recently, in 2017 the Wik people from Aurukun signed an economic treaty with China. Their economic deal was with corporate investors from Legion Wealths. It took 8 months of negotiations between traditional Wik elders and Legion Wealths before both parties finalised the economic partnership. Wik traditional owners agreed to export wood from tree lopping in their town of Aurukun in exchange of $600 million dollars. The $600 million is said by community to be used to overcome issues like housing and unemployment.
Wik Vs Queensland airs Sunday, 8 July at 8.30 on NITV (Ch.34) and will be available On Demand after broadcast. Join the discussion #WikVsQueensland #NAIDOC2018