Jedda December 2021 Ref: Native Title Claim for exclusive possession of the beach Dear Jedda, You are inquiring about whether a native title claim will enable the restriction of the public from the beach and if the Native Title Claim ('NTA') will grant an exclusive possession to the beach area. Native Title NTA preserves 'native rights' held by the Indigenous Australians with respect to traditional Indigenous customs and laws.1 Commonwealth, state or territory may provide confirmation of access to beaches and other categories of public places subject to s 212(2) of the NTA. 2 This confirmation does not amount to the extinguishment of native rights and interests or affect the conferral of land and waters or an interest in the land and water which only benefits Indigenous Australians.3 A native title is recognised by determination according to s 225(c) of the provision. Determination establishes whether the community making the claim are native title holders and if a native title does exist concerning a particular area.4 If the native title does exist then a determination of specific other interests is required and must be listed in determination relating to the determination area.5 Interest and Other Interests Interests in connection to land and waters are defined as any other right, power, charge, or privilege which restricts the use of the land or waters.6 Here, confirmation is provided in s 18 of the Native Title (Queensland) Act 1993 ('QLD NTA') enacted in pursuant to s 212(2) NTA does give rise to 'other interest' in accordance with s 253 and s 225 of NTA. Confirmed access and enjoyment to the beach was not proscribed and is identified as a privilege under s 253 NTA which creates an interest in connection to the beach making it "other interest" for the purpose of s 225 (c) for determination as the present confirmation in the legislation falls within the category of other interest. Furthermore, the confirmed access by the law to the public is understood as legal liberty that is viewed as a right in respect to the land and waters within the meaning of s 253 of the NTA. This amounts to an interest in relation to s 253 NTA and hence falls within the meaning of 'other interest' for s 225 (c) and subject to the native title determination. The existing public access to foreshore increases dispute in relation to native title determination in respect to interest of the native title holders and the public consequently undermining the purpose of s 225 (c) NTA. Therefore, the interest must be recognised on the 1 Mabo v Queensland (No 2) (1992) 175 CLR 1. 2 Native Title Act 1993 (Cth) s 212(2). 3 Native Title Act 1993 (Cth) s 212(3). 4 Native Title Act 1993 (Cth), s 225 (c). 5 Ibid. 6 Native Title Act 1993 (Cth), s 253.
native title determination which would mean that the native title holders cannot protect that area due to the inconsistency between those interests. Extinguishment of Native Title The effect