Gim Del Villar


This paper critically analyzes the Court’s recent jurisprudence concerning pastoral leases and native title. It argues, first, that the approach of the majority in Ward [Ward v Western Australia] is flawed. That approach, which characterizes pastoral leases as statutory interests, overlooks the real possibility that statutory interests are derived from,or are adaptations of, common law leases. It is also inconsistent with the approach adopted by a majority in Wilson [Wilson v Anderson]. Secondly, this paper argues that Wik [Wik Peoples v Queensland], the judicial precursor of the approach in Ward, should be overruled. Significant parts of the reasoning in Wik, when closely examined, are either flawed in their own right or no longer make sense after Ward and Wilson; and the rationale for adhering to the decision is weak.