It is welcome news that the High Court will rule on the Wik and Thayorre land and native title claims without them first going to the Full Federal Court. Delay adds to uncertainty and costs which is not helpful to the claimants or to those who assert existing title. Ever since the Mabo judgment in 1992, there has been uncertainty as to whether an existing pastoral lease was enough to extinguish the common law native title that the High Court in that case. The Commonwealth’s Native Title Act two years later did not resolve the issue. It deliberately put it in the too-hard basket, leaving it for the courts to decide.
The upshot is bound to be unsatisfactory. For a start there are several types of pastoral lease and a myriad of facts, circumstances and legal provisions that apply differently to each. The High Court cannot and will not give a definitive, overall view. That is not its role. It can only rule on the facts of the cases before it. And what pertains to a 19th century lease in Queensland may not pertain to a post-war lease in Western Australia.
Even if the High Court gives a ruling in favour of the pastoral lessees on the common-law extinguishment question, it will not settle matters. Moral claims and discontent will continue.
It would be better for the parties to negotiate a settlement that enables joint occupation and use of land. But one thing is for sure, common-law courts are winner-take-all places. In this case they will decide, literally, black or white. In which case no-one will win.