State of Western Australia v Manado & Ors; State of Western Australia v Augustine & Ors; Commonwealth of Australia v Augustine & Ors; Commonwealth of Australia v Manado & Ors

The proceedings before the High Court of Australia involved applications for special leave to appeal concerning native title determinations. The parties included the State of Western Australia and the Commonwealth of Australia as applicants, and various native title claim groups, including the Bindunbur Native Title Claim Group and the Jabirr Jabirr/Ngumbarl Native Title Claim Group, as respondents. The core dispute revolved around the interpretation and effect of legislative confirmation of public access rights under section 212 of the Native Title Act 1993 (Cth) and how such rights should be recognised within a native title determination under section 225 of the Act.

The legal issues before the Court centred on whether a legislative confirmation pursuant to section 212 of the Native Title Act 1993 (Cth) results in an interest in relation to land that is to be included in a determination of native title under section 225(c) of the Act. Specifically, the applicants sought to challenge the Full Court's decision, arguing that the trial judge's orders had improperly transformed what was merely a liberty or ability for the public to access certain areas into an enforceable right in rem against the world, including native title holders and the Crown. This was contended to be contrary to the text and function of section 212, which is understood to confirm existing states of affairs rather than create new rights, and section 225, which is designed to declare existing rights and interests.

The State of Western Australia argued that the Full Court correctly identified that section 212 does not create new rights but merely confirms existing ones. It was submitted that prior to legislative confirmation, any public access to Crown lands was a mere liberty, vulnerable to ejectment by the Crown. The trial judge's orders, by including this liberty as an interest in a native title determination, were argued to invert the proper legal order by elevating this liberty into a right enforceable against all, including native title holders who possessed pre-existing enforceable rights to access and use the areas. The applicants contended that this effectively constrained existing native title rights and interests, contrary to the intended operation of the Native Title Act.