Overcoming Uncertainty: Wik Peoples v Queensland.

• Jurisdiction: Australia
• Date: 01 January 1998
• Author: Edgerton, Graeme

Introduction

When Prime Minister Howard travelled to Longreach in 1997 to promote his response to the High Court's Wik judgment,(1) he claimed that he was "absolutely amazed at the level of fear and misinformation" about native title present in the bush.(2) A large factor contributing to the misinformation surrounding Wik has been the language in which the subsequent debate has been cast; in particular, the claim that the decision has created `uncertainty'. This sort of rhetoric has had the effect of obscuring people's rights rather than illuminating potential problems. The lack of clear information about the issues involved has made it easy to dismiss the entire judgment as being uncertain. For groups that felt adversely affected by Wik, there was little incentive to foster a greater understanding of what the decision meant. It would seem that a lack of understanding of the judgment has contributed at least as much to people's uncertainty as the effects which flow from it.

In June 1993, the Wik Peoples started proceedings in the Federal Court in order to claim native title and possessory rights to land and waters in far north Queensland. Three and a half years later, the High Court held that if such rights did exist, they would not have been completely wiped out because of the grant of several pastoral leases. The High Court stated that the grant of a pastoral lease did not confer on the pastoralist a right of `exclusive possession'. Native title rights which did not conflict with rights granted under the pastoral leases could continue to be exercised. Native title rights which were inconsistent with the exercise of rights under the pastoral lease would yield to the extent of the inconsistency, however, they may revive at the end of the lease. The court emphasised that the rights of pastoralists would remain unaffected.

In the aftermath of Wik, the most often heard criticism was that the decision had created `uncertainty'. This term was used by different people in a variety of ways. Pastoral groups, in particular the National Farmers' Federation (NFF), used accusations of `uncertainty' in order to demonstrate that Wik was fundamentally flawed and that remedial legislation would be required by the Federal Government. The Liberal-National Government, which represented a large proportion of Australia's pastoralists, adopted similar terminology. Uncertainty was asserted against the outcome of the decision which overturned what pastoralists considered to be legitimate expectations about extinguishment, based on negotiations surrounding the Native Title Act (the "NTA") in 1993. In particular, pastoralists complained that the decision created uncertainty about the extent of their rights under their pastoral leases. In order to achieve certainty, it was asserted that legislation unilaterally extinguishing native title on pastoral leases was needed.

Extinguishment was an option with an appeal of simplicity. Superficially it appeared to provide certainty, however, inevitable legal challenges and the financial burden that it would impose undermine this perception. Moreover, even if extinguishment were a viable option, it would provide very one-sided certainty. Neva Collings outlines the uncertainty with respect to their land that the Wik Peoples have been subjected to throughout their history and the series of cases which they have fought in order to regain some certainty.(3) Calls for extinguishment ignore the need to balance certainty with justice. In a famous address in 1975, Lord Reid set out the difficult task that judges were confronted with in determining cases. He stated that:

People want two inconsistent things; that the law shall be certain, and that it shall be just and shall move with the times. It is our business to keep both objectives in view.(4) The rhetoric of `uncertainty' ignores the fact that people's impressions have to adjust to the situation after Mabo where native title has become a political reality, and that the certainty sought by pastoral groups may not be achievable without sacrificing the property rights of others. This article will examine the way the terms `certainty' and `uncertainty' have been used by pastoral groups, the High Court and the Federal Government in the wake of Wik, in particular, the way in which `certainty' has been equated with extinguishment of native title. It will be argued that the rhetoric of certainty has obscured other, more important goals; and, moreover, that the Government's response will not deliver the certainty that is sought.

Evolution of the complaint of uncertainty

The term `uncertainty' has been used to sum up the concerns of pastoralists with the Wik decision. The uncertainty created by the decision has been contrasted with the alleged certainty of the pre-Wik situation. The President of the NSW Farmers' Association, Mr Ian Donges, has stated that "(a)ll we are seeking is the same certainty of title we had before the Wik decision was handed down"(5) It will be seen later that this dichotomy is not as clear cut as Mr Donges claims.

The most widely reported claims of uncertainty came from peak pastoral groups and various State and Territory governments. Prominent in the debate have been the National Farmers' Federation (NFF) and the NSW Farmers' Association. The rhetoric of `uncertainty' creates the impression that there must be something wrong with Wik and that pastoralists are being put in a vulnerable position. Claims of uncertainty give the impression of instability, unfairness, arbitrariness, and, significantly, that `certainty' is easily achievable. Pastoral groups have argued for legislation to explicitly extinguish native title.(6) Although the solution to uncertainty is clearly articulated, it has been more difficult to discern what comprises the uncertainty claimed by these groups. When the specific concerns of individual pastoralists are examined, it is clear that their solution does not require the complete extinguishment of native title on pastoral leases. However, the nebulous complaint of `uncertainty' allowed peak pastoral groups to reject the entire judgment and call for a return to the situation before Wik. The tactics employed by pastoral groups to demonstrate the uncertainty flowing from Wik involved the use of exaggerated, emotive imagery. In a situation where individual pastoralists were unlikely to be in a position to inform themselves about the court's decision, claims of uncertainty naturally had an element of truth and could be used as a powerful tool, even though the source of the uncertainty may not have been the judgment itself.

Pastoral groups were quick to characterise the recognition of coexisting native title on pastoral leases as giving new rights to indigenous people, rather than recognising that previously existing rights had not been wiped out. Mr Donges asserts that the debate is about "whether Aborigines should gain native title over pastoral leases" (emphasis added), rather than whether they should lose it.(7) In their view, indigenous people were getting something for nothing and these new rights had been invented by the High Court in an undesirable example of `judicial activism'. It was contended that the result of this caprice has been that farmers are no longer sure of where they stand with respect to their own properties.

One of the most potent images of uncertainty has been the suggestion that pastoralists may not be able to perform essential pastoral activities, such as building a dam, without approval from native title holders. Marr examines the way the image of the unbuilt dam has been used as an emotive tool to symbolise the dangers to pastoralists of the Wik judgment.(8) In January 1997, the Queensland Minister for Natural Resources, Howard Hobbs, stated that Crown law advice suggested that Wik affected every potential aspect of development on pastoral leases: "(t)his could extend to everything which might normally just require a permit, such as a new dam".(9) The response of the Queensland Government to this advice was to put a freeze on all government decisions affecting pastoral leases.(10) The message sent to pastoralists by this action was that there was uncertainty about the rights pastoralists held over their leases.

The image of the unbuilt dam is a potent one because a dam is vital for the very survival of a pastoral operation. However, it is for this very reason that the image is misleading. The High Court has made it clear that pastoralists would retain precisely the legal rights which they had previously held with respect to their leases. These rights, when not explicitly specified, were summed up in the phrase `pastoral purposes'. Justice Toohey observed that although the term `pastoral purposes' was not defined in the statutes under examination in Wik,

(C)learly it includes the raising of livestock. It also includes things incidental thereto such as establishing fences, yards, bores, mills and accommodation for those engaged in relevant activities.(11) The implication is that activities which are essential to the running of a pastoral property are authorised by the grant of a pastoral lease. The building of a dam would clearly fall into this category.

Despite the apparent situation that building dams fell squarely within the rights of pastoral leaseholders, it was still used determinedly as an example of the uncertainty of Wik. In an interview on Four Corners, the President of the NFF, Mr Donald McGauchie, refused to be drawn on what activities pastoralists would be able to continue doing. He asserted that doubtful activities on pastoral leases included:

McGauchie: ... building a dam, and more importantly where that dam might go; building a fence and more importantly where that fence might go. Qn: Aren't things like building dams and fences legitimate pastoral activities? McGauchie: I think that is very uncertain.(12) The threat to pastoralists' dams was one justification...