Why is the Wik Case Important?
In the Preamble to the Native Title Act 1993, the Commonwealth Parliament recorded its understanding of Mabo [No.2]. In part, this was that native title is extinguished by valid, inconsistent government acts such as the grant of freehold or leasehold. However, the Native Title Act did not contain provisions extinguishing native title over all pastoral leases. The Government of the Day preferred to leave this question to the courts. It has been estimated that about 42% of the Australian land mass is under pastoral lease. In some States, the percentage is said to be as high as 70%-80%. The importance of the decision in the Wik Case was highlighted by Justice Kirby. He said that, if the grant of a pastoral lease without a reservation in favour of Aboriginal people necessarily extinguishes native title, then native title has little real significance. Especially, he said, this is so because it is on land where pastoral leases are likely to exist that the laws and traditions of indigenous pe
