A stepping stone in native title: the Wik case, 19 years on

The first native title case after the Mabo decision, ‘Wik’ has paved the way for thousands of square kilometres of land to be returned to Indigenous Australians.

Justice Cooper walks with children in Aurukun after he delivered a decision recognising native title rights of the Wik People in 1996 Source: AAP

Described as the high point of native title by University of Melbourne Associate Professor Maureen Tehan, the 1996 Wik decision, found that pastoral leases granted by the Queensland Government could not extinguish the native title of the Indigenous peoples of that land.

This precedent had implications for approximately 42 per cent of Australian land, which was covered by pastoral leases and other land interests.

It has allowed many later native title claims to be granted, including the 13 claims recognised in November 2015 in the Northern Territory, over a combined area of 40,000 square kilometres.

Since the Wik case and the establishment of the National Native Title Tribunal in 1993 there have been 274 successful claims listed on the Native Title Register, with a further 374 applications pending decisions.

However, like many other native title decisions, the struggle to have land rights recognised was not an easy one.

The Wik and Thuyorre people, who were co-claimants in the case, are the traditional owners of an area on the western side of the Cape York Peninsula. They were claiming native title over two areas of land which were already the subject of numerous pastoral leases and two mining leases that had been granted under Queensland law.

The Indigenous peoples argued that their rights had survived despite the pastoral leases and claimed that the mining agreements which had been made were invalid. However the government claimed that, considering the Mabo case, the leases extinguished any native title right.

While the 1992 Mabo case rejected the concept of terra nullius, the High Court outlined that if the Queensland Government had actively expressed its ownership of the land in a way that showed a "clear and plain intention", it could extinguish any native title claim over the land.

A map of the native title determinations in Australia at 30 September 2015 Source: National Native Title Council

The judgment handed down on the 23rd of December 1996 was the result of two-and-a-half years of trials and appeals.

While it was welcomed by many Indigenous academics, it immediately prompted a public and widespread backlash by some politicians and by the mining and pastoral industries over concerns about the many native title claims that might now occur.

However it wasn't until 2012 that the final parcel of land contested in the Wik case was handed back at a ceremony in Aurukan.

The Wik people already had a history of land disputes with Queensland Government.

In 1975, a lease was granted over part of the Aurukan Aboriginal Reserve in order for the Commonwealth Aluminium Company to mine for bauxite.

A group of Indigenous people had also attempted to purchase part of a pastoral lease over traditional lands, however this was blocked when the Bjelke-Peterson Government declared the land a national park.

The Wik and Thuyorre peoples were unable to have the mining leases on their land ruled invalid and mining has continued.

In August 2015, the Queensland state development minister gave the go ahead to Swiss multi-national Glencore to mine bauxite at Cape York.