Posted on April 2, 2020 by Megan Hawley 3

Public Access to Beaches and Native Title Determinations

The High Court has handed down a significant decision protecting beaches from native title determinations excluding public access.

The case involved 40km of coast in northern Western Australia which was subject to a native title claim. The Full Federal Court had found that the claimant had native title rights and interests in the coast which prevailed over the public’s right to access the coast and beaches.

That decision has been overturned by the High Court.

Legislative Background

Section 212 of the Native Title Act 1995 (NT Act) provides for the Commonwealth, a State or Territory to confirm any existing public access to beaches.

The section relevantly states:

212  Confirmation of ownership of natural resources, access to beaches etc.

Confirmation of access to beaches etc.

             (2)  A law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of:

                     (a)  waterways; or

                     (b)  beds and banks or foreshores of waterways; or

                     (c)  coastal waters; or

                     (d)  beaches; or

                   (da)  stock‑routes; or

                     (e)  areas that were public places at the end of 31 December 1993.

The State of Western Australia passed the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (WA Law) to confirm existing public access to and enjoyment of its beaches in terms which followed the wording of s212(2). New South Wales has passed similar legislation (see s18 of the Native Title (New South Wales) Act 1994 (NSW Law)).

Section 225 of the NT Act requires a determination as to whether native title exists to note the native title rights and interests, if any, which are found to exist, the nature of those rights and interests, and the nature and extent of any other interests  (see s225(c), NT Act).

For the purposes of s225 ‘other interests‘ is defined to include a ‘right‘ or a ‘privilege‘ over and in connection with land and waters.

The issue in the case was whether the WA Law had the effect of creating an interest in respect of the public’s access to the relevant beaches which could be noted in the native title determination and therefore protected.

Decisions in the Federal Court 

The Federal Court at first instance, made a determination that the claimants had native title rights and interests, but also noted the ability of the public to access and enjoy the coastal areas as an interest.

On appeal, the Full Court of the Federal Court found that as the relevant land was unallocated Crown land, there was no positive right of the public to access the land, and therefore there was no relevant interest for the purposes of s225 which could be noted in the determination.

The Full Federal Court considered such an interest could only exist in the case of evidence of actual use by the public at the time the law confirming access and enjoyment under s212(2) was made, or where there was, at that time, a positive common law or statutory right of public access. The Court had found that no such right exists in respect of unreserved or unallocated Crown land.

Decision in the High Court

The High Court held that the NT Act (in s212) gave the States the authority to confirm public rights of access and enjoyment of beaches, and that that authority can be exercised ‘irrespective of the extent to which public access is or is not authorised by positive law and irrespective of the extent to which public access and enjoyment has or has not been availed of in practice’.

This interpretation was noted by the Court as being consistent with the debate in Parliament when the Native Title Bill was introduced, including the comments of the then senator Gareth Evans who had carriage of the Bill and who said:

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.

The High Court confirmed that there is no positive right of the public to have access to the coast and beaches generally. The right to access the coast is usually simply a tacit permission from the Crown. However, in NSW some beaches are subject to reservations for public purposes, giving the public a right to access them.

There can be no ‘existing public access and enjoyment’ of a beach for the purposes of s212 if there is some law or prohibition preventing public access which could be case if the land was subject to legislation restricting access due to proximity to airports for example, or if the land was in private ownership . However, otherwise there will be considered to be public access and enjoyment existing which is capable of being confirmed by State legislation such as the WA Law and the NSW Law.

Once the State legislature confirms that access and enjoyment through a law such as the NSW Law or WA Law, that creates a ‘privilege’ which is sufficient to be noted as an interest in a native title determination under s225.

Implications

It was likely that before the High Court’s decision, the public use of popular beaches and those subject to reservations for public purposes could have been noted on native title determinations.

However the High Court’s decision will in addition protect remote beaches in respect of which there is no or little evidence of public use, and which are not subject to specific reservations granting the public access.

It also ensures that as there is no need to prove a positive right of access for the public, in future cases it will not be necessary, in order to protect public access, to identify legislation or reservations which contain such positive rights. The default position will be that where a State has passed a confirming law such as the WA Law and the NSW Law, public access can be acknowledged in the native title determination, unless there was at the time of the confirming law a prohibition on public access.

If you wish to discuss any aspect of the above, please contact Megan Hawley on 8235 9703.

The decision of the High Court can be found here.