In Western Australia v Manado  HCA 9 (Manado), delivered on 18 March 2020, the High Court unanimously held that state legislation which ‘confirmed’ access to and enjoyment of public areas, such as beaches and waterways as authorised by section 212(2) of the Native Title Act 1993 (Cth) (NTA), must be recorded where those interests fall within a native title determination area. The Court found that such access and enjoyment was an ‘interest’ within the definition found in section 253 of the NTA, and therefore an ‘other interest’ within the meaning of section 225(c) of the NTA to be included in a native title determination.
Native title determinations require, among other things set out in section 225 of the NTA, a determination of the nature and extent of any other interests beyond native title rights and interests in relation to the determination area. Section 253 of the NTA defines ‘interest’ as including “…any other right…charge, power or privilege over, or in connection with: the land or waters; or an estate or interest in the land or waters” (emphasis added).
Section 212(2) of the NTA provides that a law of the Commonwealth, State or Territory may ‘confirm’ public access to and enjoyment of areas such as waterways (including their beds and banks or foreshores), coastal waters, beaches, stock-routes, and other public areas as existing before the enactment of the NTA.
In Manado, Western Australia had enacted the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) which, at section 14, confirmed public access to those public areas in a form which followed the wording of section 212(2) of the NTA.
Native title claimants across Australia seeking native title determinations will need to consider if any parts of the proposed determination area includes public areas of the kind contemplated above, and the extent that similar ‘confirming’ State and Territory legislation may apply and can therefore be recorded in the native title determination.
Brief history of the litigation
Manado arose for consideration from two native title determinations made by the Federal Court in favour of the Bindunbur and Jabirr Jabirr/Ngumbarl native title claimant groups (the Claimants) which were made in respect of large areas of land and waters located on the Dampier Peninsula in the Kimberley region of Western Australia.
North J held that, given the wide definition of ‘interest’ in section 253 of the NTA, public access as envisioned in section 14 of the TVA was likely to be intended to fall within that definition. His Honour held that the purpose of section 225(c) of the NTA was to identify those interests which must coexist with native title interests and allow notification to those concerned of the relationship so they may conduct themselves accordingly.1 In a supplementary judgment, his Honour held that the “ability of the public to access and enjoy coastal areas because access is not proscribed falls within the definition of an interest because it is a privilege in relation to land and waters“(emphasis added).2
The Claimants appealed to the Full Court of the Federal Court (Barker, Perry and Charlesworth JJ), who held that North J was incorrect in finding that the ability for the public to access and enjoy those areas was a ‘privilege’, as it did not accord with the plain ordinary meaning of the word; the ability, liberty or expectation of the public to enter upon unallocated Crown land was neither “something which is invested, given or authorised in any relevant sense” nor “a right, advantage or immunity beyond the common advantages of others“.3 Their Honours held that the ability of the public to access and enjoy the foreshore was neither a ‘privilege’ nor an ‘other interest’ as those terms are used in sections 225(c) and 253 of the NTA .
The High Court’s reasons
Upon appeal by the Commonwealth and Western Australia, the High Court unanimously held that North J was correct to include references to public access and enjoyment in the native title determinations. However, the judges differed slightly in their reasoning.
The lead judgment of Kiefel CJ, Bell, Gageler, Keane and Gordon JJ held that confirmation of public access and enjoyment equated to a ‘right’ or ‘privilege’ within the meaning of the definition of ‘interest’ in section 253 of the NTA.
Their Honours did not consider the words of the legislation as extensively as the courts below, instead relying on the Explanatory Memorandum accompanying the Bill to the NTA, which described the authority of a legislature relying on section 212(2) of the NTA as enabling them to “confirm existing pubic rights of access”.
That authority was said to give formal endorsement to those principles of public enjoyment and access, irrespective of if they are authorised by operation of a law, and irrespective of whether the public had in fact been using those areas. This authority was restricted by the words of section 212(2) of the NTA to ‘existing’ public access and enjoyment (i.e. those at the time of the enactment of the NTA).
Their Honours held that the Commonwealth Parliament’s intention with the passing of the NTA was to preserve public access and enjoyment of areas such as beaches, notwithstanding any native title rights or interests that may exist, and that section 14 of the TVA made use of the authority in section 212(2) of the NTA. The confirmation contained within section 14 of the TVA thus created an ‘interest’ in relation to which native title exists. Their Honours therefore concluded that North J was correct to include references to that confirmation.
Nettle and Edelman JJ also separately discussed the purposes of the NTA by reference to other materials such as records of parliamentary debates, and came to the conclusion that North J was correct to include the references to public access and enjoyment. Nettle J, however, equated public access and enjoyment to a ‘privilege’ but not a ‘right’, relying on the purposes of the NTA revealed by parliamentary records and explanatory material to expand the meaning of ‘privilege’ beyond its plain ordinary meaning. Edelman J equated public access and enjoyment to a ‘right’ but not a ‘privilege’ as his Honour came to a similar conclusion as to the meaning of the word ‘privilege’ as the Full Court, and instead relied upon the plain ordinary meaning of the word ‘right’ as including the ‘general liberty to go to the beach’ which now existed as a result of the government of West Australia confirming the ‘right’ to access and enjoy the beach by enacting section 14 of the TVA.
Other State and Territory legislation
While Manado concerned Western Australian legislation, other Australian States and Territories have passed similar provisions reflecting the language of section 212(2) of the NTA, which also ‘confirm’ public access to and enjoyment of public areas:
- Native Title (New South Wales) Act 1994 (NSW) s 18;
- Land Titles Validation Act 1994 (Vic) s 15;
- Native Title (Queensland) Act 1993 (Qld) s 18;
- Native Title (South Australia) Act 1994 (SA) s 39(4);
- Native Title (Tasmania) Act 1994 (Tas) s 14;
- Native Title Act 1994 (ACT) s 12; and
- Validation (Native Title) Act 1994 (NT) s 13.
Therefore, Manado has general application to claim areas in each of the other States and Territories where such public access to and enjoyment of unallocated Crown land comprised of waterways (including their beds and banks or foreshores), coastal waters, beaches, stock-routes, and other public areas existed before the enactment of the NTA.
As each of the High Court judges noted, confirmation of a public access and enjoyment interest does not extinguish native title, although it may constrain the exercise of such native title rights or interests as may exist in those areas, as reflected in section 212(3) of the NTA.
Claimants seeking a native title determination will now need to closely examine whether any State or Territory legislation affecting their proposed determination area will need recording in their native title determination, and consider locations or lots of unallocated Crown land in which public access and enjoyment needs to be recorded.
North J had originally framed the public access and enjoyment in the native title determinations by identifying specific lots of unallocated Crown land.4 Western Australia had initially proposed a clause which simply repeated the terms of section 14 of the TVA, a clause which his Honour noted had been used in previous consent determinations, but had never been considered.5 His Honour rejected this approach, stating:
The amount of detail required by the reference to the nature and extent of other interests in s 225(c) must be assessed in light of the purpose of the section, namely, to give notice of other interests to those entitled to exercise them. Repeating the terms of the section, as the clause proposed by the State does, fails to specify the extent of the interest.6
North J noted that the parties should attempt a greater degree of identification of the geographical locations of the public access locations than simply stating section 14 of the TVA, even if the identification is short of precise geographical placement.7
It is highly likely that future native title determinations, including consent determinations, will require a similar level of specificity, rather than a mere reference to the relevant ‘confirming’ State and Territory legislation.
This article was written by Philip Hunter, Partner and Ewan Raeside, Graduate.
1  FCA 1367 .
2  FCA 275 .
3  FCAFC 238 .
4  FCA 845 Sch 6.
5  FCA 1367 .
6  FCA 1367 .
7  FCA 1367 .