Western Australia v Manado

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.