In this case, the High Court considered a number of appeals that turned on the construction of s 212 (2) of the Native Title Act 1993 (Cth) (‘NTA’), and its application to areas that were considered public places before the NTA came into effect. These four appeals were in were in relation to the ‘confirmation of access to and enjoyment of land or waters which are the subject of native title determinations’ under the NTA. The original judgment made by North J concluded that public access and enjoyment of crown land can be confirmed by State and Territory legislation in accordance with s 212(2) of the NTA, and falls within the description of ‘any other interests in relation to the determination area within the meaning of s 225(c). This decision was overturned on appeal, before being referred on appeal to the High Court.
Kiefel CJ, Bell, Gageler, Keane & Gordon JJ
The justices considered that s 212(2) of the NTA is to enact legislation which gives formal endorsement to the principle of public access to and enjoyment of beaches and other specified categories of land and waters within the jurisdiction of each state and territory. At [8], they found that ‘the statutory consequence of an exercise of the authority under s 212(2) is not to extinguish native title rights or interests, although it may be to constrain the exercise of such native title rights or interests as ay exist in relation to particular land or water.’ Thus North J in the original judgment was correct to include reference to public access and enjoyment in the original judgment and the Full Court were wrong to delete it. The appeal was allowed.
Nettle J
The textual differences between subsections 212(1) and (2) of the NTA imply that subsection (2) is directed to a broader notion of access and enjoyment than legally enforceable rights. His honour concluded at [59] that ‘it is sufficient for the determination of this matter that existing public access to and enjoyment of unallocated crown land can be confirmed by State or Territory legislation in accordance with s 212(2) of the NTA, 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.’ Thus, Nettle J also allowed the appeal.
Edelman J
Came to the same conclusion as the other justices, and provided a broader discussion about section 212 of the NTA.
Conclusion
The appeals were allowed with the following orders made by Nettle J at [60]; ‘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.’