The full High Court has heard arguments on whether native title can remove public access to beaches north of Broome in Western Australia.

The case comes after the closure of the Uluru climb by traditional owners divided Australia, and highlighted the wishes of other traditional owners to restrict access to culturally important areas.

The Federal Court of Australia had already determined the beaches were the exclusive possession of Jabirr Jabirr/Ngumbarl people, and although they were popular camping and fishing areas, the public no longer had 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 exclude public access on an Australian beach.

Does access by the public indicate public access?

The question the High Court will need to answer is whether the fact the public have long visited the beaches means there is a legal right of public access.

That the appeal was given leave to be heard suggests there is a case to be made for this, according to the president of the WA Law Society and native title expert Greg McIntyre.

In question is whether the public has a right or a privilege to access beaches and waterways. ( ABC Kimberley: Andrew Seabourne )

"The High Court has said, 'Yes, we will grant leave to hear that argument', because it has some substance," Mr McIntyre said.

"The state is putting a very strong argument to that effect, as to the way the legislation should be interpreted."

But Mr McIntyre said there was also a strong case to be made opposing the appeal, with the argument that the public may have been accessing these beaches in spite of having no legal right to do so.

"They may have effectively been trespassers or squatters," Mr McIntyre said.

"Nobody was worrying about it, but it may be that there was never any public right, so the High Court will have to grapple with that issue.

"It'll be a fine line for the High Court to draw between those two alternatives."

Right or privilege?

At a hearing this week, the Commonwealth pointed to provisions in the Native Title Act that allow for public access to beaches and waterways, "even if that continued access impaired the unfettered exercise of native title rights".

"The phrase, 'any existing public access' does not mean any existing public access that existed subject to the exercise of exclusive native title rights," solicitor-general Stephen Donaghue said.

"Because what Parliament was doing was confirming that the newly recognised native title rights from Mabo did not change what was thought to exist."

The beaches of James Price Point are popular destinations. ( ABC Kimberley: Ben Collins )

However, the Kimberley Land Council's representative, Bret Walker QC, argued the law did not give the public a legal right of access to beaches and waterways.

"It is almost as if … it is regarded as adequate simply to talk about that aspect of Australian life involving access to beaches, et cetera, as if itself proves for the purposes of producing a state of affairs to be recorded in a determination," he said.

"No common law public right has been advanced."

Little impact for most Australians

The High Court is not expected to make a decision until mid 2020, but it is unlikely to have significant ramifications for most Australians either way because of the rarity of the type of native title required to allow exclusion of the public.

What was not being challenged in court was that the Jabirr Jabirr/Ngumbarl had exclusive possession of the beaches in their native title area north of Broome.

This is the strongest form of native title and gives traditional owners the equivalent rights to freehold land owners to refuse access to the public.

The appeal to the High Court was attempting to have a right of public access exist alongside exclusive possession native title.

Mr McIntyre said exclusive possession native title was not possible in most parts of Australia.

"Most of the beaches in large, metropolitan, populated areas, won't be affected by this because there will be no native title existing," he said.

"If there's no right to exclude, then there's no issue."

'Taking back control'

Jabirr Jabirr/Ngumbarl native title organisation chairman Wayne Barker (right), says most people have little to worry about. ( ABC Kimberley: Ben Collins )

The chairman of the Jabirr Jabirr/Ngumbarl native title organisation, Wayne Barker, said traditional owners were more interested in regulating public access to popular camping areas, rather than restricting it.

"The recreational people that go up there and fish and stuff, you shouldn't be worried too much I would have thought, but just be put on notice that your behaviour out there has got to improve dramatically," he said.

"You know, random fires and people just camping all over the place and destroying our country, so we're taking back control of that and it's a good thing, and it's a good thing for everybody."

Mr Barker said the closing of the Uluru climb illustrated the challenge Jabirr Jabirr/Ngumbarl people had in having their rights to restrict and regulate beach access respected.

"This whole country is full of tenure and permit systems and all of that, and everyone is quite happy to abide by," Mr Barker said.

"But people get quite offended when people in Uluru say, 'Hang on a second, enough climbing on the rock', or Jabirr Jabirr people say, 'Enough desecrating Quandong or Willie Creek'. We've got to start looking after our country because this is not open slather."

The WA Minister for Aboriginal Affairs and Lands, Ben Wyatt, said in a statement the Government wanted to maintain beach access for all people.

"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."