Native Title and Existing Public Access:  Western Australia v Manado [2020] HCA 9

In Western Australia v Manado; Western Australia v Augustine; Commonwealth of Australia v Augustine; Commonwealth of Australia v Manado [2020] HCA 9 (18 March 2020), the High Court of Australia has, in a unanimous decision, allowed four appeals from a judgment of the Full Court of the Federal Court of Australia (see Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 (20 December 2018)). The four appeals were in relation to the "confirmation of existing public access to and enjoyment of land or waters which are the subject of native title determinations" under the Native Title Act 1993 (Cth) (NTA). 

Legislation Giving Rise to the Case

Under the NTA section 212(2) provides that a law of the Commonwealth, a State or a Territory may confirm:

Acting pursuant to the legislation, the Western Australian Parliament enacted the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the TVA) section 14, which commenced operation on 4 July 1995. That section provided that the:

Initial Federal Court Decision

In the Federal Court of Australia (see Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (2 May 2018)), Justice North made two determinations of native title which recognised that the members of the Jabirr Jabirr/Ngumbarl native title claim group and Bindunbur native title claim group (the Claimants) possessed native title rights and interests in areas of land north of Broome in the Dampier Peninsula in Western Australia. The determinations each recognised that the native title holders possessed exclusive native title rights and interests in relation to some parts of the determination areas, and non-exclusive native title rights and interests in relation to the balance. They also recognised as "other interests" within the determination area for the purposes of the NTA section 225(c), public access to and enjoyment of particular waterways, beds and banks or foreshores of waterways, coastal waters and beaches ("public access clauses"). Justice North found that it was appropriate to include the public access clauses in the determinations on the basis that "existing" public access to and enjoyment of the areas described therein had been established, because the public had the ability to access and enjoy those areas, given that there was no prohibition on the public doing so.

Appeal to the Full Federal Court

The Claimants appealed, contending that NTA section 225 required that in order for the public access confirmed by the TVA section 14 to be referred to in a determination, the State of WA needed to satisfy the Court that "the public were possessed of an existing right of access to and enjoyment of the waterways, beds and banks, foreshores of waterways, coastal waters, beaches etc, in the area." Alternatively, the Claimants contended that the Court needed to be satisfied that, at the time the NTA came into operation, the public in fact physically enjoyed access to identified areas. The State of WA contended that the TVA section 14, in accordance with NTA section 212(2), confirmed a legal privilege to access the coastal areas, and that it was unnecessary to define that privilege by reference to actual use.

The Full Court of the Federal Court of Australia (Barker, Perry and Charlesworth JJ) (see Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 (20 December 2018)) on appeal found that there were two ways in which NTA section 212(2) applied in the present case: 

•  First, a public access interest may arise where it is shown to be the subject of an existing common law or statutory right or interest (as defined by  the NTA section 253) at the time that NTA section 212(2) was enacted; 
•  Second, the public access interest may be shown to be a relevant interest where a person asserting an “existing public access to and enjoyment of” land or waters of the type mentioned in NTA section 212(2) establishes that public access and enjoyment, as a matter of fact, existed at the time of the enactment of NTA section 212(2).

In this case the Full Court found, neither of the two ways by which NTA section 212(2) might apply was relied upon by Justice North in making the impugned determinations. No demonstrated common law or statutory right of access had been identified and neither did the State of WA or any other respondent lead any evidence or otherwise attempt to prove at trial that public access to or the enjoyment of the places listed in the determinations actually and physically existed at material times. As a result the Full Court concluded that the primary judge erred in construing NTA section 212 as enabling an ability of, or liberty in, the public to access unallocated Crown land that answers the description of land and waters mentioned in NTA section 212(2), as an “interest” for the purposes of NTA section 253 and thus among the other interests in each determination. The Full Court found that it followed that those parts of the two determinations that purported to determine other interests on the basis of the TVA section 14 should be removed from the determinations.

Grounds for Appeal to the High Court

The State of WA and the Commonwealth both appealed to the High Court. The  State of Western Australia argued among other matters:

• The Full Federal Court erred in law in determining that the existing public access to and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters or beaches, as at 1 January 1994, which was confirmed by the TVA section 14 in accordance with the NTA section 212(2), was not a right or privilege in connection with land or waters within the definition of “interest” in NTA section 253.

The Commonwealth argued among other matters:

• The Full Court erred in construing NTA section 212(2) as requiring the existence of a “right” or the fact of physical access to and enjoyment of a prescribed area before it will be said there was “existing public access to and enjoyment of” a prescribed area.

The High Court's Decision

The High Court found that the appeals of the Commonwealth of Australia and State of Western Australia should be allowed and that the orders of the Full Federal Court should be set aside.

Allowing the appeals, the High Court held that the confirmation of existing public access and enjoyment through legislation enacted in reliance on NTA section 212(2) amounted to an "interest" in relation to land or waters within the meaning of the definition in NTA section 253 and was therefore an "other interest" within the meaning of NTA section 225(c). 

The Commonwealth Parliament as part of passing the NTA also “sought to preserve the principle of public access to beaches” regardless of the possibility that native title might exist in the area. In the High Court’s view there was a clear policy decision by the Commonwealth Government to try to preserve coastal access by members of the public against native title.

The WA State Parliament by making laws confirming public access and enjoyment of beaches and like places, created an interest in land or waters which should be recognised in the Bindunbur and Jabirr Jabirr/Ngumbarl native title Determinations.

The High Court however, used different reasons for deciding whether this was because the "interest" was a "privilege" or a "right". The confirmation of existing public access to and enjoyment of beaches and foreshores pursuant to NTA section 212(2) must therefore be recorded in a native title determination.

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Western Australia v Manado; Western Australia v Augustine; Commonwealth of Australia v Augustine; Commonwealth of Australia v Manado [2020] HCA 9 (18 March 2020) and the High Court Summary, and Short Particulars

Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 (20 December 2018)

Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (2 May 2018)

Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 (23 November 2017)

Kimberly Land Council Web Page (updated 19 March, 2020)