Co-existence and the test of inconsistency
The Court applied the test of inconsistency as outlined by Justice Brennan in Mabo v Queensland [No.2], where it was stated that:
'Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.' (p89)
In the case of pastoral leases, their general form was determined by the Court to be consistent with native title. Pastoral leases are a kind of title unique to Australia. They provide a statutory right to graze stock over often vast areas of land. They are granted for very limited purposes, they do not provide exclusive rights, and are for a limited period of time. The land itself remains unalienated Crown land. Therefore, it was decided that this was an instance where the two titles could coexist and the interests under each could be enjoyed concurrently. (per Toohey J, at 108, per Gaudron, Gummow and Kirby JJ, at 133) Where any inconsistency arose, the rights under the Crown grant took precedence.
Keywords: Brennan, Justice Gerard, High Court of Australia, Mabo v Queensland No.2, native title claim, pastoral lease, Wik & Co-Existence, 1993
Author: Strelein, Lisa