Smirke on behalf of the Jurruru People v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 01 October 2020
• Neutral Citation: [2020] FCA 1410
• Court: Federal Court
• Date: 01 October 2020

Federal Court of Australia

Smirke on behalf of the Jurruru People v State of Western Australia [2020] FCA 1410

File numbers:	WAD 537 of 2018WAD 538 of 2018
Judgment of:	MORTIMER J
Date of judgment:	1 October 2020
Catchwords:	NATIVE TITLE – application for replacement of applicant under s 66B of the Native Title Act 1993 (Cth) and amendment of Form 1 under r 8.21 of the Federal Court Rules 2011 (Cth) – significant delay between authorisation meeting and application
Legislation:	Native Title Act 1993 (Cth) ss 61, 62A, 66B, 84D Federal Court Rules 2011 (Cth) r 8.21
Cases cited:	Daniel v State of Western Australia [2002] FCA 1147; 194 ALR 278 Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	25
Date of hearing:	22 July 2020
Solicitor for Jurruru Applicants:	Mr C McKeller of the Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Mr G Ranson of the State Solicitor’s Office

ORDERS

		WAD 537 of 2018
BETWEEN:	IVAN SMIRKE & ORS ON BEHALF OF THE JURRURU PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondent

order made by:	MORTIMER J
DATE OF ORDER:	1 OCTOBER 2020

THE COURT ORDERS THAT:

1. Ivan Smirke, Kellman Limerick and Alec Alexander jointly replace the current applicant to the Jurruru native title determination application.

2. The Applicant is given leave to amend the Form 1 in accordance with the Minute of Amended Native Title Determination Application filed on 3 July 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		WAD 538 of 2018
BETWEEN:	IVAN SMIRKE & ORS ON BEHALF OF THE JURRURU PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondent

order made by:	MORTIMER J
DATE OF ORDER:	1 OCTOBER 2020

THE COURT ORDERS THAT:

1. Ivan Smirke, Kellman Limerick and Alec Alexander jointly replace the current applicant to the Jurruru native title determination application.

2. The Applicant is given leave to amend the Form 1 in accordance with the Minute of Amended Native Title Determination Application filed on 3 July 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. The Jurruru applicant has filed applications in WAD 537 of 2018 (Jurruru #1) and WAD 538 of 2018 (Jurruru #2). These claims are overlapping with WAD 490 of 2016 (Yinhawangka Gobawarrah) and were subject to a separate question hearing pursuant to orders made by Barker J on 23 February 2018. The separate question hearing has been heard and judgment is currently reserved.

2. The applicant seeks orders:

1. replacing the existing applicant with a new applicant constituted by different individuals, under s 66B of the Native Title Act 1993 (Cth); and

2. granting leave to amend its claim for a determination of native title in each proceeding, under r 8.21 of the Federal Court Rules 2011 (Cth).

3. The applicant relies on affidavits of each of member of the proposed new applicant, as well as an affidavit of Greg Young, a lawyer with the Yamatji Marlpa Aboriginal Corporation. The applicant also filed written submissions in support of the application.

4. The interlocutory application was served on the State and on the Yinhawangka Gobawarrah applicant in WAD 490 of 2016. The Yinhawangka Gobawarrah applicant confirmed via email correspondence to the Court on 21 July 2020 that it did not oppose the applications and did not wish to appear at the interlocutory hearing. The State also confirmed it did not oppose the applications.

5. However, given the somewhat unusual circumstances – in particular the significant delay between the authorisation meeting relied on by the applicant and the filing of the application, as well as the fact that the application was brought many months after the conclusion of the separate question hearing – I considered it was appropriate to list the application for a hearing rather than determining it on the papers.

Background

6. The authorisation meeting at which, on the applicant’s case, the claim group authorised the replacement of the applicant and amendment of the Form 1 in each proceeding was held on 21 March 2019. Before the meeting, in February 2019, Mr Young caused notices to be posted to the members of the Jurruru claim group and caused a notice advertising the meeting to be published in regional newspapers.

7. Twelve members of the claim group attended the meeting, which Mr Young deposes was more than the average for meetings of the claim group. I accept the Jurruru claim group is a numerically small group. The attendees resolved to replace the applicant and amend the Form 1 in each proceeding in the manner sought by the interlocutory applications before the Court. The members of the proposed new applicant are Ivan Smirke, Kellman Limerick and Alec Alexander. Mr Smirke and Mr Limerick are members of the current applicant. The amendment of each Form 1 was intended to “update largely administrative portions” of the forms. No party submits that there was any defect in the notification process, the conduct of the meeting or in the authorisation of the new applicant.

8. Not long after the authorisation meeting, in July 2019, the Court heard the parties’ lay evidence on country in the separate question hearing. Expert evidence was heard in December 2019 and the parties made closing submissions in February 2020. Regrettably, it was not until 3 July 2020 that the applicant filed its interlocutory applications seeking replacement of the applicant and amendment of each Form 1 in accordance with the resolutions made at the authorisation meeting on 21 March 2019.

Relevant legislation

9. Section 66B of the Native Title Act provides:

Application to replace applicant in claimant application

(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i) the person consents to his or her replacement or removal;

(ii) the person has died or become incapacitated;

(iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Court order

(2) The Court may make the order if it is satisfied that the grounds are established.

Federal Court Chief Executive Officer to notify Native Title Registrar

(3) If the Court makes the order, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

Register to be updated

(4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

10. Rule 8.21 of the Federal Court Rules provides:

(1) An applicant may apply to the...