Section 212(2) of the NTA authorises the Commonwealth, State or Territory to confirm any existing public access to and enjoyment of 'waterways, beds and banks or foreshores of waterways, coastal waters or beaches (beaches and foreshores)'. Under this authority, the State of Western Australia enacted s 14 of the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995. This section confirmed the ability of the public to access and enjoy beaches and foreshores.
As per s 225(c) of the NTA, when determining the existence of native title, it is essential to determine the nature and extent of any other interests, including any other right or privilege, in the given determination area.
In 2018, the Federal Court made two determinations over land and waters of the Dampier Peninsula in Western Australia. In doing so, the single judge recorded the existing public right of access to these beaches and foreshores under s 14 of the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA), within the category of 'other interests'. The judge held that the existing public access and enjoyment was a 'privilege' under s 14, and thus within the category of 'other interests'.
The Court held that s 212(2) of the NTA applied to this scenario in two ways:
- a public interest may arise where it is shown to be the subject of existing common law or a statutory right or interest at the time s 212(2) was enacted; or
- the public access interest may be shown to be a relevant interest where a person asserting an 'existing access to and enjoyment of' land or waters under s 212(2) establishes that public access and enjoyment, as a matter of fact, existed at the time of enactment.
On appeal, the Full Federal Court held that the primary judge erred in his interpretation of s 212(2): any existing public access and enjoyment was neither a 'privilege' nor an 'other interest' so that neither of the two ways discussed by the primary judge might apply in this case.
Decision of the High Court
The High Court allowed the appeal on the part of Western Australia and the Commonwealth and set aside the judgment of the Full Federal Court. The appeal was made on the following grounds:
- That the Full Court had erred in construing that existing public access and enjoyment is neither a privilege nor an 'other interest'.
- That the Full Court had erred in construing that s 212(2) requires the existence of a right and the fact of physical access to and enjoyment of a prescribed area before it will be said that there was existing public access to and enjoyment of a prescribed area.
Detail of the Judgment
The Court held that the confirmation of existing public access to and enjoyment under a legislative enactment, through reliance on s 212(2), amounted to an 'interest' in relation to the land and waters of the determination area. Hence, it is indeed an 'other interest' within the meaning of s 225(c) of the NTA and should be recorded as such in a native title determination. However, while deciding that existing access to and enjoyment of beaches amounted to an 'interest', 'privilege', or a 'right', the court recorded different reasons from the primary judge.
The Court considered parliamentary materials and held that as a part of passing the NTA, the Commonwealth Parliament also sought to preserve the principles of public access to beaches, regardless of the possibility that native title exists in the area.