Western Australia v Manado [2020] HCA 9

Western Australia v Manado [2020] HCA 9

Legislation confirming public access and enjoyment to specified land or waters under s 212(2) Native Title Act operates to create an 'interest' within the meaning of s 253, being either a right or privilege, even if previously comprised only of a general liberty or absence of prohibition; such confirmed access must be included as an 'other interest' in native title determinations under s 225(c). Inclusion is required to clarify the coexistence of public and native title rights and promote certainty.

Parties
Appellant: State of Western Australia; Appellant: Commonwealth of Australia; Respondents: Ernest Damien Manado and others on behalf of the Bindunbur Native Title Claim Group & Ors; Respondents: Rita Augustine and others on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors
Jurisdiction
Australia
Judgment Date
18 March 2020
Procedural Posture
Appeal / High Court Judgment on Appeal From Full Court of the Federal Court
Outcome
Appeal allowed in each matter; orders of Full Court of the Federal Court set aside and replaced with dismissal of appeal to Full Court; appellants to pay first respondents' costs of the High Court appeal.
Legal Topics
Confirmation of Public Access, Native Title Determinations, Definition of Interest in Native Title Context, Relationship Between Statutory Rights and Native Title, Public Access to Beaches and Foreshores
Native Title Law Aboriginal Law Statutory Interpretation Confirmation of Public Access Native Title Determinations Definition of Interest in Native Title Context Relationship Between Statutory Rights and Native Title Public Access to Beaches and Foreshores

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

State of Western Australia

Appellant

Commonwealth of Australia

Appellant

Ernest Damien Manado and others on behalf of the Bindunbur Native Title Claim Group & Ors

Respondents

Rita Augustine and others on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors

Respondents

Procedural Posture

Appeal / High Court Judgment on Appeal From Full Court of the Federal Court

Legal Issues

  1. 1 Whether confirmation of public access and enjoyment to specified places under s 212(2) Native Title Act 1993 (Cth) creates an 'other interest' to be included in native title determinations under s 225(c).
  2. 2 Whether such confirmation requires a legal right, or can include general public liberty or expectation not prohibited by law.
  3. 3 Whether legislative confirmation of such public access gives rise to a 'right' or 'privilege' within the definition of 'interest' in s 253 Native Title Act.

Ratio Decidendi

Legislation confirming public access and enjoyment to specified land or waters under s 212(2) Native Title Act operates to create an 'interest' within the meaning of s 253, being either a right or privilege, even if previously comprised only of a general liberty or absence of prohibition; such confirmed access must be included as an 'other interest' in native title determinations under s 225(c). Inclusion is required to clarify the coexistence of public and native title rights and promote certainty.

Court Disposition

Appeal allowed in each matter; orders of Full Court of the Federal Court set aside and replaced with dismissal of appeal to Full Court; appellants to pay first respondents' costs of the High Court appeal.

Orders

  • Appeal allowed.
  • 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.