The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners

The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners

The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners

The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners


This work traces the debate generated by the High Court's Wik decision. It shows how the Australian government's original native title legislation needed to change to benefit the major interest groups.


The six colonies established on the Australian continent were the only colonies in the history of British colonialism founded without any recognition of the rights of the indigenous peoples to their lands and without any treaties. In 1971, a single judge of the Northern Territory Supreme Court decided that British law did not recognise the communal rights in land which were undoubtedly enjoyed by Aborigines before colonisation and that any rights would be extinguished by the mere assertion of British sovereignty over the territory. It was as if Australia were terra nullius.

The only rights to land enjoyed by Aborigines and Torres Strait Islanders were rights granted under land rights legislation. It was not until the Mabo case in 1992 that Australia's highest court, the High Court of Australia, was required to determine issues about native title. Since Mabo, the nation has been wrestling with a two hundred year history infected by the terra nullius mindset. Despite the wholesale dispossession that occurred, some indigenous Australians have maintained the native title rights of their ancestors. Those rights now have to be respected whenever new developments are to occur on the land. Governments and developers need to know with whom to deal. Aboriginal groups need to be able to resolve conflicting claims.

Native title now involves all levels of government in Australia. It involves the courts as well as our parliaments. For some developers, native title is simply a land management issue. For some indigenous groups, it is the symbolic bedrock of a new recognition and accommodation of indigenous aspirations and perspectives in the life of the nation. The High Court's Wik decision in 1996 clarified that native title was not restricted to vacant crown land. It could survive and perhaps even revive on land to which other citizens had been granted rights.

Between Mabo and Wik, there were changes to the composition of the High Court. Wik was decided by the narrowest margin of four-three. There was then a change of government in Canberra. These legal and political changes affected the responses made to the new questions emerging about native title. Not all questions have been resolved. There will be more court cases . . .

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