home | news l

Wik people win back their land

By Ian Gerard

14 October 2004 - AFTER 10 years locked in the courts, a political battle that threatened to split the Coalition and landmark legislation limiting native title, the Wik and Wik-Way people yesterday formally settled their claim over a huge tract of land in western Cape York.

Federal Attorney-General Philip Ruddock used the historic occasion to warn parties involved in other native title matters that they risk losing government funding if they seek their day in court.

In the remote Aboriginal community of Aurukun, traditional landowners were yesterday given native title over more than 12,500sq km of country stripped from them 30 years ago by former Queensland premier Joh Bjelke-Petersen.

The entire town squeezed into the local gymnasium, which was converted into a makeshift Federal Court sitting for the day, to hear judge Richard Cooper formalise the consent determination and set out exclusive and non-exclusive land rights over the land.

However, yesterday's consent determination was rare and native title claims have proved difficult to settle.

More than half the 196 native title claims yet to be settled were filed more than five years ago.

Justice Cooper said yesterday he would prefer to see native title matters settled out of court.

Mr Ruddock said it was important that native title matters were negotiated between parties and warned that "unrealistic" claims were not guaranteed to get funding.

He said the Wik determination was a good example of what could be achieved through negotiation.

"I think what happens in a lot of cases is people think that if we hang out long enough we might be able to get to a point where somebody gives you something beyond what the law allows," he said.

After four years of negotiation between the Wik and Wik-Way people, pastoral leaseholders, fishing groups and state and federal governments, the agreement marks the first time in Queensland that native title had been recognised as continuing to coexist with privately held pastoral leases.

It stems from the landmark 1996 Wik High Court decision, which found that native title could coexist with pastoral land, triggering a raft of legislative changes from the Howard Government to limit its scope.

It also threatened to split the Coalition, stirring threats of a revolt from the Queensland branch of the Nationals.

The Wik and Wik Way people first lodged their claim over more than 17,000sqkm of land more than 10 years ago.

Wik elder Gladys Tybingoompa, who achieved fame when she danced outside court in Canberra in 1996, said it was a shame there were so many elders who died before native title had been granted.

"The people of Wik-Way and Wik, you should be proud today. We have made history and it's a special day," she said.

Darcy Burns, owner of Holroyd Station and a party to the consent determination, said indigenous people now had to ask him before entering his property to hunt or fish.

"This has been positive because it has given us security and lets us know where we are," Mr Burns said.

Source: The Australian

History rewritten as Wik regain their land

By Mark Todd in Brisbane

14 October 2004 - It was one of those energy-sapping hot days common to Aurukun in far north Queensland and all Robert Yeium wanted to do was sit down.

An hour earlier the Federal Court of Australia, in a special sitting before about 1000 people at the remote community, recognised the rights of the Wik and Wik Way to most of their traditional lands and waters on western Cape York Peninsula. It had taken more than a decade to get this far, so yesterday there had been speeches and traditional dances to celebrate, and Mr Yeium's 74-year-old frame was worn out.

"It's a long, long story," he said. "And it's been a struggle."

He recalls being warned off the traditional lands of his people by the state government way back in 1977. And he remembers the day in 1991 when the Wik and Wik Way people decided to take their native title claim to the Federal Court.

The original instructions of the Wik and Wik Way people was to "put Wik law on top".

The journey led to the landmark High Court decision in 1996 that pastoral leases did not necessarily extinguish native title. Yesterday was just as historic - the Federal Court determination recognises the rights of the Wik and Wik Way people to more than 12,500 square kilometres of land.

Mr Yeium said many of the elders who stood with him at the start of the claim had died. But this had always been about future generations.

"This is our home. We've got our own place. No one will come and take it off us," he said.

This latest decision comes after four years of negotiations with state and federal governments, local Aboriginal councils, and private pastoralists.

It was the first negotiated native title determination in Queensland since 2001. It was also the first claim over land in the state subject to pastoral leases.

Justice Richard Cooper yesterday congratulated the parties involved for reaching agreement outside the court.

John Fraser led the negotiations with the traditional owners on behalf of the sprawling Strathburn Station. The real breakthrough came when, after years of going back and forth between legal briefs, the lawyers were told to sit down and be quiet.

"When we had the first meeting we agreed beforehand that both sides would gag their bloody lawyers," Mr Fraser said. "From that point on we started to make some real progress because we could talk about the issues and everyone got an understanding of what was important."

The initial panic that he would lose Strathburn Station subsided and was replaced with a willingness to talk, especially after the Wik people made it clear they wanted the pastoralists to stay.

"We always said we'd agree to pretty much anything they wanted provided that it didn't interfere with our business of running a cattle station," Mr Fraser said. "To use their words, they said 'we don't want you fellas to go away, we need you to stay there, we want to learn things from you'."

Yesterday's settlement represents about 75 per cent of the total land area and waters claimed by the indigenous owners. They hope to soon have their title recognised over the remaining areas, which include pastoral and bauxite mining leases.

Source: Sydney Morning Herald

Wik determination — background information 13 October 2004

Today's consent determination finalises the majority of the Wik and Wik Way peoples' native title claim on Queensland's Cape York Peninsula. It follows the historic High Court decision in 1996 which found that native title may co-exist with some pastoral leases.

The Federal Court determined the claim in parts, making an earlier consent determination in 2000 dealing with a portion of the claimed area. The majority of the remaining area, which required further discussion and negotiation, is being determined today.

Area claimed

The Wik and Wik Way peoples lodged their native title application in 1994 over a 17,700 sq km area of land and waters on the west coast of Cape York Peninsula. The area is situated between Embley River to the north, Edward River to the south, and west of the Peninsula Development Road.

First determination

On 3 October 2000, the Federal Court handed down a consent determination recognising the Wik and Wik Way peoples' native title rights over 6,136 sq km. This was comprised of 'Aboriginal areas' in the Aurukun Shire — part of the 17,700sq km area that the group claimed.

Today's determinations

Today the Federal Court recognised that the Wik and Wik Way peoples have native title rights and interests over a further 12,530 sq km. This area includes pastoral leases, Deed of Grant in Trust (DOGIT) land, Aboriginal land lease land, unallocated state land and certain other lease areas. These are the first native title consent determinations to be made over pastoral leases in Queensland.

Parties to the claim

The parties to the claim are those with state, federal and local government, indigenous, fishing, infrastructure and pastoral interests. They are:
Council of the Shire of Aurukun,
Napranum Aboriginal Council,
Pormpuraaw Aboriginal Council,
Cook Shire Council,
Ports Corporation of Queensland,
Telstra,
Cape York Land Council,
pastoral company — Merluna Cattle Station Pty Ltd,
individual pastoralists
several people with fishing interests
State of Queensland
Commonwealth of Australia

Negotiations leading to today's determination

The parties to the claim and the applicants' legal representative managed the negotiations leading up to today's determination. They provided regular reports and updates on progress to the Federal Court and the National Native Title Tribunal. During the course of the negotiations some delays were experienced following the High Court's Western Australia v Ward decision to allow the parties time to consider the implications of the decision.

Rights recognised

The court made two determinations — one in regard to areas where the Wik and Wik Way peoples' native title rights and interests have been recognised exclusively and the other relating to areas where their native title rights have been determined to be non-exclusive.

In the exclusive areas the court recognised the Wik and Wik Way peoples' right to possess, use, occupy and enjoy the determination area (other than flowing, tidal and underground waters), in accordance with their traditional laws and customs and State and Commonwealth laws.

This includes the right to:
speak for, on behalf of and authoritatively about the area;
inherit and succeed to the native title rights and interests;
give or refuse, and determine the terms of any permission for others to enter, remain on, use or occupy the area by others;
hunt and gather and conduct ceremonies;
live on and erect residences and other infrastructure on the area;
take, use and enjoy the natural resources;
maintain and protect by lawful means those places of importance and areas of significance to native title holders under their traditional laws and customs in the area;
use and enjoy the area and its natural resources for teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the native title holders in relation to the area.

In the non-exclusive areas the court determined that certain of the Wik and Wik Way peoples' native title rights had not been extinguished. These include the right, in accordance with their traditional laws and customs and State and Commonwealth laws, to:
hunt and gather and conduct ceremonies on the area;
maintain wells and springs where underground water rises naturally, to ensure the free flow of water;
take, use and enjoy the natural resources of the area;
maintain and protect by lawful means places of importance and areas of significance to native title holders under their traditional laws and customs.

In relation to the flowing, tidal and underground waters the court recognised the Wik and Wik Way peoples' non-exclusive, non-commercial rights to:
hunt, gather and fish on and in these waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;
take, use and enjoy these waters and natural resources and fish (for non-commercial purposes).

High Court's Wik decision

The Wik native title application led to an historic High Court decision in 1996 which found that native title may co-exist on some pastoral leases. The High Court's decision found that the grant of a non-exclusive pastoral lease did not necessarily extinguish native title and that native title rights could co-exist with the rights of a lessee. The decision also said that where there is a conflict of rights, the rights of a pastoralist prevail.

Source: National Native Title Tribunal

Further information: native title issues page - includes news index and external links