KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No P34/2019
STATE OF WESTERN AUSTRALIA APPELLANT
AND
ERNEST DAMIEN MANADO AND OTHERS ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP & ORS RESPONDENTS
Matter No P35/2019
STATE OF WESTERN AUSTRALIA APPELLANT
AND
RITA AUGUSTINE AND OTHERS ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP & ORS RESPONDENTS
Matter No P36/2019
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
RITA AUGUSTINE AND OTHERS ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP & ORS RESPONDENTS
Matter No P37/2019
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
ERNEST DAMIEN MANADO AND OTHERS ON
BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP & ORS RESPONDENTS
Western Australia v Manado Western Australia v Augustine Commonwealth of Australia v Augustine Commonwealth of Australia v Manado
[2020] HCA 9
Date of Hearing: 3 December 2019 Date of Judgment: 18 March 2020
P34/2019, P35/2019, P36/2019 & P37/2019
ORDER
Matter No P34/2019
1.Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P35/2019
1.Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P36/2019
1.Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P37/2019
1.Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation
S P Donaghue QC, Solicitor-General of the Commonwealth, with N Kidson and C I Taggart for the Commonwealth of Australia in each appeal (instructed by Australian Government Solicitor)
J A Thomson SC, Solicitor-General for the State of Western Australia, with G J Ranson for the State of Western Australia in each appeal (instructed by State Solicitor's Office (WA))
B W Walker QC with R W Blowes SC and A Romano for the first respondents in each appeal (instructed by Kimberly Land Council Regional Office Broome)
Submitting appearances for the third respondent in each appeal and the fifth respondent in P35/2019 and P36/2019
No appearance for the fourth to tenth respondents in P34/2019 and P37/2019 and the fourth respondent in P35/2019…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Western Australia v Manado [2020] HCA 9
Case
[2020] HCA 9
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by Western Australia concerning the determination of native title rights and interests. The dispute centred on whether legislation enacted by Western Australia, pursuant to section 212(2) of the *Native Title Act 1993* (Cth), which confirmed public access to and enjoyment of beaches and other areas, gave rise to "any other interests" within the meaning of section 225(c) of the *Native Title Act*. This required the court to determine if such confirmed public access and enjoyment needed to be included in a native title determination.
The legal issues before the High Court were whether section 225(c) of the *Native Title Act* mandated the inclusion of confirmed public access and enjoyment in a native title determination, and whether the act of confirmation through legislation enacted under section 212(2) created a "right" or "privilege" that constituted an "other interest" in relation to a determination area. The court also had to consider whether the access and enjoyment capable of confirmation were limited to legally enforceable rights and privileges.
The High Court reasoned that section 212(2) of the *Native Title Act* permits the confirmation of existing public access and enjoyment, which can extend beyond legally enforceable "claim rights" to include a "liberty" arising from the absence of prohibition. When state or territory legislation legally confirms general expectations of public access and enjoyment, a legal liberty arises for public access and enjoyment of the relevant area. This liberty is considered a "right or privilege" in connection with the land or waters, falling within the definition of "interest" under section 253 of the *Native Title Act*. Consequently, such confirmed interests must be recorded in a native title determination.
The High Court allowed the appeals, setting aside the orders of the Full Court of the Federal Court of Australia and dismissing the appeals to that court. The appellant, Western Australia, was ordered to pay the first respondents' costs of the appeals to the High Court.
Orders
Orders of the court
Matter No P34/2019
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P35/2019
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P36/2019
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Matter No P37/2019
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 20 December 2018 and in their place order that the appeal to the Full Court be dismissed.
3. The appellant pay the first respondents' costs of the appeal to this Court.
Background
Background to the litigation
A consequential question on these appeals is whether the confirmation in s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) gives rise to "any other interest", within ss 225 and 253 of the Native Title Act, requiring the matters confirmed to be included in a native title determination. The answer is that once a law has legally confirmed the general expectations of the public then a legal liberty arises for public access to and enjoyment of the relevant area. That liberty is a "right ... in connection with ... the land or waters" within the meaning of s 253 of the Native Title Act. The background, purpose, and context of s 212 of the Native Title Act The course of the parliamentary debates concerning the provision that became s 212 of the Native Title Act reveals a concern about the recognition of native title preventing the public from undertaking the activities that they reasonably expect to be able to undertake in areas generally understood to be public places. In the parliamentary debates, Senator Macdonald spoke of it being "essential ... that existing rights of public access to and enjoyment of public places, including foreshores, beaches, national parks, recreation reserves, stock routes and the like, are secured for all Australians"[69]. The reference to "stock routes" reveals the genus as particular areas generally understood to be public places even if those areas had not been so prescribed within s 212(2)(e). At the time that Senator Macdonald spoke, stock-routes were not a category of the proposed s 212; they fell only within the residuary of "areas that were public places at the end of 31 December 1993". The 1998 amendments to the Native Title Act, which added the specific category of stock-routes[70], did "not indicate any doubt that stock routes currently have full force and effect and that the rights to use them prevail over any native title rights"[71].[69]Australia, Senate, Parliamentary Debates (Hansard), 15 December 1993 at 4635.[70]Native Title Amendment Act 1998 (Cth), Sch 1, item 36.[71]Australia, House of Representatives, Native Title Amendment Bill 1997, Explanatory Memorandum at 233 [24.26]. As to the specific category of beaches, which relevantly includes those beaches that had become part of the territorial jurisdiction of Western Australia[72], Senator Alston spoke of "ensuring public access to beaches, even if native title was granted"[73]. Senator Evans described public access as a matter of "principle"[74]:"[T]he 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 only other issue I can think of which has any likely bite about it is the provision in the [Native Title Act] about beaches and guaranteeing public access. We are determined, as a matter of public policy, to preserve that principle of access to beaches." [72]Coastal Waters (State Title) Act 1980 (Cth), s 4(1); Coastal Waters (State Powers) Act 1980 (Cth), ss 4-5. See New South Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337; Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 358-359; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 56-57 [63].[73]Australia, Senate, Parliamentary Debates (Hansard), 17 December 1993 at 5062.[74]Australia, Senate, Parliamentary Debates (Hansard), 17 December 1993 at 5063.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ
NETTLE J
EDELMAN J
That is not necessarily to preclude the possibility of "interest" having a different meaning in some of the other provisions of the Native Title Act. For example, it might be, as was held in Kanak[67], that "interest" in s 61 of the Native Title Act has a more restricted meaning. But, for present purposes, it is unnecessary to decide whether that is so. It is sufficient for the determination of this matter that, for the reasons stated, existing public access to and enjoyment of unallocated Crown land foreshore comprised of a lack of proscription of access and enjoyment, if confirmed by State or Territory legislation in accordance with s 212(2) of the Native Title Act, is within the description of "any other interests in relation to the determination area" within the meaning of s 225(c), and thus must be recorded in a native title determination as the primary judge did.[67](2000) 106 FCR 31.Conclusion It follows that each appeal should be allowed. In each matter the orders of the Full Court should be set aside and, in their place, it should be ordered that the appeal to the Full Court be dismissed. Pursuant to the undertaking given by the appellant in each appeal, the appellant in each appeal should pay the first respondents' costs of the appeal to this Court. Introduction Section 212(2) of the Native Title Act 1993 (Cth) provides that "[a] law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of" various places: waterways; beds and banks or foreshores of waterways; coastal waters; beaches; stock-routes; and areas that were public places at the end of 31 December 1993, immediately before the Native Title Act came into operation. The principal issue on these appeals concerns what it is that can be confirmed by such a Commonwealth, State or Territory law. The background to these appeals and the detail of the submissions of the parties are set out in the reasons of Nettle J. There was one matter that was common to the approach taken throughout this litigation by every party, by the primary judge, and by the Full Court of the Federal Court of Australia. That matter was that s 212(2) of the Native Title Act permits confirmation of an existing claim right, in the sense of a common law or statutory right of access to and enjoyment of the various areas conferred upon members of the public that can be vindicated by a legal claim and which is correlative to a duty upon others not to interfere with that right. The principal issue on these appeals is whether s 212(2) is confined to claim rights or is wider, including additional concepts or encompassing claim rights within a wider concept. This issue necessarily requires identification of the meaning of the subject matter that is to be confirmed by a law: "any existing public access to and enjoyment of" the public places referred to in s 212(2). The narrowest approach to this subject matter was that of the native title claimants, the first respondents to these appeals, who submitted that s 212(2) is limited to confirmation of an existing claim right. A second, and broader, approach was taken by the Full Court of the Federal Court: the laws could also confirm existing access or enjoyment as a matter of fact[68]. A third, and still broader, approach was that of the Commonwealth, following the approach of the primary judge, that the confirmation was of an existing claim right or an existing liberty in the sense of "the absence of prohibition". A fourth, and the broadest, approach was that of the State of Western Australia, which argued that the confirmation was of any of an existing claim right, an existing liberty, or an existing factual state of affairs.[68]Manado v Western Australia (2018) 265 FCR 68 at 113 [171].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ,
NETTLE J,
EDELMAN J