Greenwood J
By consent, the Federal Court recognised the Wik and Wik Way Peoples’ native title rights and interests over lands and waters in the western and inland areas of Cape York Peninsula. The native title was determined to be held by the Ngan Aak Aboriginal Corporation RNTBC as the relevant Prescribed Body Corporate.
Litigation history
This decision is the fifth and final determination of the remaining part of the Wik and Wik Way Peoples’ native title claim. The applicant first sought a declaration of native title in 1993 over an area of 28,000 square kilometres of land, which included a range of tenures and other interests. In Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1, a majority of the High Court held that the granting of pastoral leases under Queensland legislation did not necessarily extinguish all native title rights and interests in the claim area.
The native title claim was divided into several parts. On 3 October 2000, Drummond J determined in favour of the Wik and Wik Way Peoples in relation to Part A, which consisted of unallocated Crown land or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal People. The remaining Part B area comprised land and waters held under seven pastoral leases and four mining leases. In 2004, two consent determinations were made by Cooper J over approximately 12,530 square kilometres of the claim area. In 2009, the Court made a positive determination in relation to other areas of land and waters within the claim area. The present proceeding relates to the remaining Part B claim and consists of 4,500 square kilometres of inland land and waters.
Rights and interests
Greenwood J recognised the following non-exclusive rights of the Wik and Wik Way peoples in the determination area: to access and move about the area; take and use natural resources for non-commercial purposes; maintain and protect significant sites; maintain springs and wells to ensure the free flow of water; conduct ceremonies and cultural activities; hunt and gather; and teach the physical and spiritual significance of sites and places.
The Court also recognised other interests in the determination area which were held to prevail over native title rights in the event of inconsistency, including specific pastoral leases; rights of the Cook Shire Council; and rights under five Indigenous Land Use Agreements. Further, the Court recognised that native title rights had been wholly extinguished in some parts of the determination area due to the construction of permanent pastoral improvements.
Greenwood J accepted the applicant’s detailed anthropological reports and was satisfied that all procedural requirements under section 87 of the Native Title Act 1993 (Cth) had been met. His Honour described the consent determination as a ‘proud day for the Wik and Wik Way Peoples’ and acknowledged the concerted efforts of the parties involved. Emphasising the importance of having parties with a common interest represented by professional advisers in negotiations and mediation, Greenwood J encouraged the Commonwealth to extend funding for groups such as pastoral lessees.