Federal Government could find itself in a worse legal mire than the first Mabo case if it legislates to prevent the Wik people from suing for breach of trust or indigenous title.
At present the Wik breach-of-trust claim, according to most legal advice, is very tenuous. Other Mabo claims on the mainland are also tenuous, but not tenuous as Wik. The original case, remember, applied indigenous title to an agricultural society on a Torres Strait island where land-holdings were well defined.
However, no matter how tenuous, indigenous people have a right to sue; many believe they have good prospects of winning and they do in fact have some chance of winning.
These three elements are precisely the elements that have been used in contract law for three centuries. In contract, if you surrender or forbear to exercise your right to sue that is held to be “”good” or “”valuable” consideration to support a contract. It seems likely therefore that the right to sue is itself property. If the Government then legislates to take it away it could run foul of the constitutional prohibition of legislating to take property without just compensation.
The issue then is not the complex one of whether there is indigenous title? The issue becomes: was there a prospect of winning a case and was that prospect taken away?
The best analogy is someone with a lottery ticket that has one chance in 100 of winning. If you take the lottery ticket away you have taken away property (and under the constitution you must compensate). The compensation would not be as much as if the whole prize itself were taken away, but then the proof requirement is much lower.
Gough Whitlam once said, when you are in trouble send for Barwick. Garfield Barwick once spent a week’s research for a client and charged ten thousand pounds for the advice which boiled down to: do nothing. Perhaps that’s what all governments should have done, pending a mainland case. The legal advice could have been: don’t just do something; stand there.
The tragedy is that the fundamental settlement should never have been a question for lawyers and the courts in the first place, because it is about land and self-determination; not compensation.