The National Party approach on Wik is ignorant, legally unworkable and probably self-defeating. (And that leaves aside the moral question.)
The Nationals want the Commonwealth to legislate to take away native title on pastoral leases.
Native title is a property right. The Constitution (Section 51) says the Commonwealth can legislate for “”the acquisition of property” but only “”on just terms”.
If the Commonwealth is to legislate for the extinguishment of native title, the native title rights would be acquired by the Commonwealth and perhaps passed to the pastoralists. The legislation would therefore have to provide for “just terms”. If it did not, it would be invalid. There are many cases where legislation that does not provide just terms is declared invalid as beyond the Commonwealth’s power.
The next question is what is necessary to satisfy the “just-terms” requirement. In the past the High Court has held two broad requirements: compensation and a just process to set the compensation. The just process requires some sort of judicial supervision or appeal. An administrative procedure without judicial is not enough.
So to get valid legislation to extinguish native title a compensation system with judicial supervision is required — the very thing the National Party is riling against in the native title process.
And there is are a further two snag that have not been thought through.
It may well be that acquisition on “”just terms” with respect to native title is such that mere monetary compensation to some named living Aborigines could never be a just result. This is because native title has communal, social, religious and inter-generational aspects. The common law has always been able to set monetary amounts to compensate for things like pain and suffering in personal injury so might be able to find a formula to compensate for loss of attachment to the land for all generations of all Aborigines in the community. But the process is likely to be messier and more expensive than pastoralists sitting down negotiating joint land uses.
The second snag is that the power to legislate for the acquisition of property is limited by the Constitution to purposes in respect of which the Commonwealth Parliament has power to make laws — things like defence, lighthouses, foreign affairs, etc. A purpose such as converting leases granted to pastoralists by state and colonial governments into freehold land would not be a Commonwealth purposes and any attempt to legislate this way would likely be invalid.
The Nationals should recognise that the Constitution does not permit their land grab.