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Native title – First nation peoples – native title rights and interests

Western Australia v Manado; Western Australia v Augustine; Commonwealth of Australia v Augustine; Commonwealth of Australia v Manado [2020] HCA 9 (18 March 2020) were four appeals from a judgment of the Full Court of the Federal Court of Australia.

The appeals turned on the construction of s212(2) of the Native Title Act 1993 (Cth), which provides that “[a] law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of” various places including waterways; beds and banks or foreshores of waterways; coastal waters; beaches and stock-routes among others. The object of s212(2) was to preserve the principle of public access to beaches and other categories of lands and waters notwithstanding the possibility that native title might exist in respect of them.

The question for the High Court was whether the ability of members of the public to access and enjoy unallocated Crown land comprising of waterways, beds and banks or foreshores of waterways, coastal waters or beaches in the mid-Dampier Peninsula, Western Australia, had been validly recorded, pursuant to s225(c) of the Native Title Act 1993 (Cth), in two native title determinations made in respect of large areas of land and waters located north of Broome in the Dampier Peninsula. The High Court answered that question in the affirmative.

Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Nettle and Edelman JJ each separately concurring. Appeal from the Full Court of the Federal Court of Australia allowed.

David Kelsey-Sugg is a Victorian barrister, ph (03) 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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