These findings were appealed by the Wik and Thayorre Peoples to the Full Court of the Federal Court but were removed to the High Court. In the High Court, the Wik and Thayorre Peoples argued that their native title rights were not extinguished by the grant of the pastoral leases and could co-exist with the rights of pastoral lessees. They acknowledged that, in the event of an inconsistency between their rights and those of the pastoralists, the latter would prevail. It was accepted that the Wik and Thayorre Peoples have, in fact, remained on their traditional lands. The question before the Court was whether they had done so in exercise of their native title rights or whether those rights had been extinguished by the grant of pastoral leases.
Native title is defined by reference to the traditional laws and customs of indigenous people.
However, it is susceptible to extinguishment. For example, by laws or acts giving rights to third parties inconsistent with the continuation of native title rights, and by laws or acts by which the Crown obtains full beneficial ownership of land previously subject to native title. Native title can also be lost if indigenous people fail to maintain their traditional connection with the land. One of the major questions in the Wik Case was whether the grant of the particular pastoral leases gave the lessees exclusive possession of the land-a right inconsistent with the continuation of native title. The first Mitchellton Pastoral Lease was granted in 1915 and forfeited in 1918.