Many Australians regard the beach as a place that belongs to everyone, where no-one can be excluded. But the truth of that notion is on its way to be tested by the High Court.

Key points: The Federal Court has already ruled that the public does not have legal access to beaches north of Broome

The Federal Court has already ruled that the public does not have legal access to beaches north of Broome The Federal and WA Governments are appealing that decision in the High Court

The Federal and WA Governments are appealing that decision in the High Court The Kimberley Land Council says the public's access to beaches should not trump Indigenous connection to those beaches for thousands of years

The Federal Court of Australia has already decided that beaches north of Broome are the exclusive possession of native title holders and, although they are popular camping and fishing areas, the public does not have a legal right of access.

But that decision is being appealed in the High Court by the Federal and WA Governments, and the outcome will be the final word on whether native title can trump public access on an Australian beach.

The High Court is expected to hear the appeal later this year.

Time for change

CEO of the Kimberley Land Council (KLC) Nolan Hunter said the idea that the beach belongs to no-one was a hangover from terra nullius and our colonial history of not recognising Aboriginal ownership of land.

"This is about how the people should not take it for granted that Aboriginal people are just here to be abused, or taken advantage of, or dispossessed," Mr Hunter said.

"It doesn't make it right that people's access to beaches are far greater than people's access to be recognised as the people for the land that they've been connected to for thousands of years."

The Kimberley Land Council's Nolan Hunter says Aboriginal people have to fight for the rights that they get recognised for. ( ABC News: Ben Collins )

Mr Hunter hoped a growing understanding of Indigenous connection to country would help avoid this issue becoming an ugly fight between Aboriginal people and the general public.

"The whole point of recognising native title is that people have the ability to make decisions for their land," he said.

"You can't on the one hand say yes we recognise that you have exclusive possession native title, but it doesn't mean anything because anybody should be able to go there."

Preserving public access

The Federal Court finally determined exclusive possession last year over a 40-kilometre stretch of coast from Willie Creek, north of Broome, to Coulomb Point, 26 years after the first claim was made.

The initial determination also included public access rights to the beaches alongside the traditional owners' exclusive possession.

But the legal basis for this public access was appealed by the Bindunbur and Jabirr Jabirr/Ngumbarl traditional owners, and in December 2018 the Full Federal Court upheld that appeal and removed the right of public access to beaches, waterways, marshes, and riverbanks.

Although this stretch of coast is a popular camping and fishing destination used by Broome locals and squadrons of visiting caravaners and four-wheel drivers, this access had no legal basis such as being gazetted for recreational or conservation purposes.

Last week the High Court granted leave to the Federal and WA Governments to appeal the Federal Court's decision to remove public access rights to this area.

The Attorney-General's office declined to be interviewed about this appeal, but provided a statement to the ABC.

"We are arguing in support of the access clause being consistent with provisions in the Native Title Act which allows governments to confirm existing ability of the public to access and enjoy waterways and coastal areas," the statement read in part.

The WA Minister for Aboriginal Affairs and Lands, Ben Wyatt, also declined to be interviewed on this issue, but also provided a statement.

"The state always seeks to maintain public access rights to beaches and waterways as a part of determinations of native title," the statement read in part.

"We also need to ensure that Aboriginal interest holders who are not native title holders also have their rights of access to these public places protected."

Many Australians regard beach access as a universal right. ( ABC Kimberley: Andrew Seabourne )

Is existing beach access a legal right?

The High Court's decision about the public's right to access the beach will come down to one section of the Native Title Act, and what is meant by public access, according to president of the WA Law Society and native title expert Greg McIntyre.

"It says a law of the Commonwealth, a state or a territory can confirm any existing public access to and enjoyment of waterways, coastal waters, beaches," Mr McIntyre said.

"Public access is not a very often used legal term, and whether it overcomes the right of exclusive possession is, I think, what they're wanting to test in this appeal."

Native title expert Greg McIntyre says the public's right to access the beach comes down to one section of the Native Title Act. ( ABC News: Robert Koenig-Luck )

He doubts that public access will trump exclusive possession in this case because of the lack of a legal basis.

Mr McIntyre said the idea that this could set a precedent for widespread banning of the public from beaches was not likely.

"Theoretically it's possible for native title to exist on beaches because they aren't generally privately owned," he said.

But the requirement of the Native Title Act to demonstrate ongoing connection of a continuous cultural tradition often prevents native title being granted in the first place.

Even if the High Court upholds the exclusive possession in the case of the beaches north of Broome, it remains to be seen how traditional owners may use that right.

"It depends upon the attitude of the title holders as to whether they're going to exercise those rights," Mr McIntyre said.

Mr Hunter said it remained to be seen how traditional owners will use their right to exclude the public from the beaches north of Broome, should the High Court find in their favour.

The KLC website suggests the implementation of visitor permits and the establishment of Indigenous ranger groups are possible outcomes.

But concerns about being able to camp and fish on a beach should pale in comparison to the concerns of Aboriginal people regaining rights to their country, according to Mr Hunter.

"I don't think they should be worried because the flipside of it is that they should respect that people have gotten a legal recognition through the High Court about their ownership to the native title area," he said.

"The only difference to me is that Aboriginal people have to fight for the rights that they get recognised for, but the public have a right that they never had to fight for."