As a result, native title rights could coexist depending on the terms and nature of the particular pastoral lease.
Some political leaders criticised the court for being out of touch and for introducing uncertainty into Australian life.
The Howard government formulated a "10-point plan"[3] to bring certainty to land ownership in Australia.
[4] In 1992, the High Court held in Mabo[5] that the common law of Australia recognises Aboriginal and Torres Strait Islanders had a form of "native title," which reflected the entitlement of indigenous inhabitants to their traditional lands in accordance with their laws or customs.
However, it is commonly accepted to include rights to perform ceremonies or to gather foods or medicines.
[7] The group comprises the peoples of Wik-Ompom, Wik-Mungkana, Wik-Paacha, Wik-Thinta, Wik-Ngathara, Wik-Epa, Wik-Me'anha, Wik-Nganthara, Wik-Nganychara, and Wik-Liyanh.
In 1975, part of the Aboriginal reserve at Aurukun created in 1957 had been excised by the Queensland Government for a bauxite mining lease.
Their claim before the court was on the basis that their native title was not extinguished by the granting of the various leases over the land.
[1]: p 64–5 The Wik Peoples also claimed declarations, which challenged the validity of the Special Bauxite Mining Leases which had been granted by the Queensland Government pursuant to the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) and the Aurukun Associates Agreement Act 1975 (Qld).
[1]: p 136 The first Michellton lease was granted to Alfred Joseph Smith, Thomas Alexander Simpson and Marshall Hanley Woodhouse in 1915 under the Land Act 1910.
In each of these claims, the Wik peoples alleged that the mining leases were invalid because the Queensland Government owed fiduciary duties as a trustee to the Wik people, and that those duties had been breached by the granting of the mining leases.
[1]: p 167 The claim was lodged before the commencement of Native Title legislation,[10] introduced into Australia following the decision in the Mabo case.
[1]: p 103 The appeal was heard by the High Court between 11 and 13 June 1996 with all 7 judges sitting, Gerard Brennan CJ, Daryl Dawson, John Toohey, Mary Gaudron, Michael McHugh, William Gummow and Michael Kirby JJ.
Deputy Prime Minister John Anderson said that “country people are concerned with the Wik Native Title problem"[16] Some State Premiers went further and publicly commented that suburban backyards were under threat from native title claims.
Queensland Premier Rob Borbidge even commented that some of the High Court judges were "dills about history.
[20][21] The Native Title Amendment Bill 1997 (Cth) was drawn up to implement the plan.
[4] One commentator described the amendments to native title law as using a "legal sledge hammer to crack a political nut".
[22] Maureen Tehan describes the Wik decision as the high point in law for native title in Australia.
Richard Bartlett argues that the decision placed great significance on the principle of equality at common law.
[citation needed] Frank Brennan described the approach of the court as taking into account an "incomplete reading of the history".
[25] Gim Del Villar goes further and argues that the Wik judgment is "flawed" from a historical perspective.
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.