Middle Dampier Peninsula - Decision on appeal to the High Court by the State of Western Australia and the Commonwealth.
In May 2018 the Federal Court of Australia made a determination of native title in the Bindunbur and Jabirr Jabirr/Ngumbarl native title claims (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCA 854). These determinations recognised native title rights across the middle Dampier Peninsula for the Jabirr Jabirr/Ngumbarl, Nimanburr and Nyul Nyul people. The determinations were celebrated on country at Beagle Bay in May 2018.
Following the determinations, the Bindunbur and Jabirr Jabirr/Ngumbarl claim groups appealed to say that the determination should recognise their exclusive possession over beaches and waterways, located on unallocated Crown land, where there was no existing right of public access.
In December 2018, the Full Federal Court of Australia made a decision in relation to the appeal (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238). The of the native title holders was upheld.
The Court held that no evidence had been presented that pre-existing rights of public access existed across areas of unallocated Crown land within the determination, including beaches, waterways and riverbanks where exclusive possession applied. Following this decision, the State of Western Australia and Commonwealth of Australia appealed the decision to the High Court.
On 18 March 2020, the High Court handed down its decision (Western Australia v Manado; Western Australia v Augustine; Commonwealth of Australia v Augustine; Commonwealth of Australia v Manado [2020] HCA 9).
What did the High Court find?
The High Court found that the appeals of the Commonwealth of Australia and State of Western Australia should be allowed and that the orders of the Full Federal Court should be set aside.
The High Court found that:
The Commonwealth Parliament as part of passing the Native Title Act also “sought to preserve the principle of public access to beaches” regardless of the possibility that native title might exist in the area. In the High Court’s view there was a clear policy decision by the Commonwealth government to try to preserve coastal access by members of the public against native title;
The WA State Parliament by making laws to confirm public access and enjoyment of beaches etc. created an interest in land or waters which should be recognised in the Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations.
The High Court rejected the argument of the native title holders that public access to beaches should only be included in native title determinations if there was a pre-existing proven right for the public to access those beaches.
Bindunbur and Jabirr Jabirr/Ngumbarl argued that only in those circumstances should public access to beaches be recognised over native title.
The High Court decided that because the Parliament had not passed laws preventing the public from accessing unallocated crown land (including the coastal areas in the determinations) then the public effectively had permission to access these areas.
In doing this, the High Court has found that public access to beaches (which is not prevented by the laws of the State) has a legal status to co-exist with native title rights and interests recognised in the Bindunbur and Jabirr Jabirr/Ngumbarl determination areas.
What area of land and water does the decision apply to?
The decision relates primarily to public access to areas of unallocated Crown land, landward of the mean high water mark within the Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations.
In the Bindunbur native title area, this relates to areas of coast adjacent to the Aboriginal reserves in the vicinity of Beagle Bay in the middle-Dampier Peninsula. In the Jabirr Jabirr/Ngumbarl native title area, this relates to the coastline adjacent to the Manari Road, between Willie Creek and Coulomb Point Nature Reserve.
Exclusive native title is not recognised in the ocean or the intertidal zone, but does apply to beaches and the banks of rivers within the determination areas. The Bindunbur and Jabirr Jabirr/Ngumbarl determination identifies the specific areas where the public access interest applies. Details of these determinations are available online here and here.
How does native title apply to beaches, waterways, marshes and riverbanks in other native title determinations in the Kimberley or elsewhere?
Native title determinations must include a list of all the other interests held by people other than the native title holders in the determination area, for example pastoral leases, roads, reserves, etc. These interests are usually listed in a schedule to the determination called an “Other Interests” schedule.
The High Court has found that public access to coastal areas in the Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations should be recognised as co-existing with non-exclusive and exclusive native title.
As a result, the “right” of the public to access these areas will again be included in the “Other Interests” schedule to these determinations.
What does this decision mean for access to these coastal areas?
Native title has existed across the Kimberley for almost 20 years. In that time Traditional Owners and the wider community have worked together to find ways of managing access that respects the interests of native title holders.
The High Court decision has not overturned or changed the fact that Bindunbur and Jabirr Jabirr/Ngumbarl native title holders still hold exclusive native title and non-exclusive native title in their determination areas.
The High Court decision has recognised that native title cannot prevent the public from accessing beaches etc. where they are doing so consistently with the laws of the State.
Access to exclusive possession native title land
Exclusive possession native title is the strongest form of native title recognition possible in the Australian legal system. It is the native title equivalent of freehold title and involves the right to speak for and make decisions about country.
The High Court has previously said that exclusive possession native title is a legal entitlement for native title holders to permit or refuse access “for any reason or no reason at all”.
There are many ways that Traditional Owners manage access to and enjoyment of exclusive possession native title land. This can be achieved through the implementation of visitor access permits and the establishment of Indigenous ranger groups to help manage access to areas for the community at large.
Any disputes about whether a member of the public is accessing any part of the determination areas consistent with the native title determinations or the laws of the State (including Aboriginal heritage laws) should be raised with your relevant PBC or the KLC.
Content last updated 19 March, 2020.