8 May 2020
Introduction
What you need to know
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The High Court unanimously held that, where existing public access to and enjoyment of certain public lands (such as waterways, foreshores, coastal waters and beaches) has been confirmed in reliance on the Native Title Act 1993 (Cth), it amounts to an "interest" under the Native Title Act and must be listed as an "other interest" in any native title determination made in respect of those lands.
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While the Full Federal Court required Western Australia to point to some kind of positive right of public access (whether in statute or common law) or evidence of actual public access, the High Court has held that the act of confirmation by a State law is sufficient to give rise to an "interest".
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This High Court decision provides certainty that, where native exists in land where public access has been confirmed by State or Territory legislation, the public access interest co-exists with the native title interests.
Western Australia v Manado [2020] HCA 9
In March 2020, the High Court unanimously allowed four appeals from a decision by the Full Federal Court (Manado on behalf of the Bindunbur Native Title Claim Group v Western Australia [2018] FCAFC 238). We covered that Full Court decision in our 2018 Year in Review article Recognising native title: Not all traditional links amount to native title.
The High Court appeals concerned a technical but very important question: did the statutory confirmation of the general public's existing public access to and enjoyment of waterways, foreshores, coastal waters and beaches amount to an "interest" protected by the Native Title Act 1993 (Cth)? That is, is it "an interest in relation to the determination area" that should be recorded in a determination of native title to be balanced with the rights and interests of native title holders?
The High Court unanimously said "yes". We discuss their Honours' reasons, along with the background of the case, in detail below.
The legislative framework
Key to understanding the High Court decision is understanding the provisions of the Native Title Act, and the complementary West Australian legislation, dealing with public access.
Section 212(2) of the Native Title Act provides that a law of the Commonwealth, a State or Territory may "confirm any existing public access to and enjoyment of" waterways, foreshores, coastal waters, beaches, stock routes and areas that were public places when the section commenced. Any statutory confirmation made under this section does not extinguish any native title rights and interests.
Pursuant to that section, Western Australia confirmed public access to and enjoyment of the places listed by passing the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
Section 253 of the Native Title Act provides a definition of "interest" which includes any "right … charge, power or privilege over, or in connection with … the land or waters".
The native title claim and the Full Federal Court appeal
In 2018, the Federal Court determined that the Bindunbur and Jabirr Jabirr/Ngumbarl Native Title Claim Groups held native title in respect of land in the middle Dampier Peninsula in Western Australia. The determination area included waterways, foreshores, coastal waters and beaches.
In the part of the native title determination listing "other interests", the trial judge included "public access to and enjoyment of" certain areas of unallocated Crown land within the determination area being areas of waterways, foreshores, coastal waters and beaches. His Honour reasoned that because public access was not proscribed, it was a privilege that should be acknowledged in the determination. This would notify those concerned of the relationship between the two sets of interests, and people could regulate their conduct accordingly.
On appeal, the Full Federal Court removed the references to public access and enjoyment from the "other interests" section. The Full Court reasoned that the ability of the public to access and enjoy the beaches and foreshores was not an "interest" within the meaning of section 253 and therefore could not be listed as an "other interest" in a native title determination. In the Full Court's view, confirmation of public access by legislation only gave rise to an "interest" if there was an existing positive right of public access or there was evidence of actual public access. As Western Australia could not point to a positive common law or statutory right of public access or show evidence of actual public access in respect of the areas concerned, the Full Court held that there was no existing public access which could give rise to an "interest".
Western Australia and the Commonwealth each sought leave to appeal this decision to the High Court. In a statement, WA Minister for Aboriginal Affairs and Lands, Ben Wyatt, said that the State "always seeks to maintain public access rights to beaches and waterways as part of the determinations of native title".
What did the High Court decide?
Although their Honours disagreed about whether public access amounted to a right or a privilege, the High Court was unanimous in holding that:
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where existing public access to and enjoyment of the places listed in section 212(2) has been confirmed in State and Territory legislation, it amounts to an "interest" within the meaning of the section 253 definition; and
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therefore, it must be listed as an "other interest" in any native title determination made in respect of those lands.
All justices referred to the Senate debate on the bill, and in particular the following statement from then government Senator Evans, as illustrative of Parliament's intention behind section 212(2):
"On the question of beaches, the bill specifically provides that, notwithstanding the possible existence of native title so far as a particular stretch of beach is concerned, the principle of public access shall override that."
In the view of the majority (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ), section 212(2) reposed in all Commonwealth, State and Territory parliaments the authority to confirm public access to and enjoyment of certain lands, "irrespective of the extent to which public access or enjoyment of lands or waters within that territorial jurisdiction is or is not authorised by operation of positive law and irrespective of the extent to which public access or enjoyment has or has not been availed of in practice".
It did not matter that there was no positive right of public access to the waterways, foreshores, coastal waters and beaches in the determination area in Western Australia, nor any evidence of actual public access to those places. The effect of the West Australian confirming legislation, made pursuant to section 212(2) of the Native Title Act, was to create an "interest" to be balanced with native title rights and interests in a native title determination.
This High Court decision provides certainty that, where native title exists in land where public access has been confirmed by State or Territory legislation, the public access interest co-exists with the native title interests.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
