Wik: Legal Memory and History

Abstract

The furore occasioned by the Wik decision and the subsequent political controversy about the role of the High Court and 'judicial activismn has focused attention on the manner of legal change through the judicial decision-making process. It is evident that there has been a significant change from the position enunciated in Milirrpum v Nabalco Pty Ltd and the Commonwealth (the Gove land rights case) to that in Mabo v Smte of Queens­land (No 2) (Mabo (No 2)).' More recently, The Wik Peoples v The Smte of Queensland ( Wik) represented another extension of this process of legal change whereby legal doctrine has progressively recognised native title on the basis that the historical foundation upon which doctrine rested has been increasingly revealed as a false understanding of Australian history.'