Smirke on behalf of the Jurruru People v State of Western Australia (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 02 December 2020
• Neutral Citation: [2020] FCA 1728
• Court: Federal Court
• Date: 02 December 2020

FEDERAL COURT OF AUSTRALIA

Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728

File number(s):	WAD 537 of 2018WAD 538 of 2018 WAD 490 of 2016
Judgment of:	MORTIMER J
Date of judgment:	2 December 2020
Catchwords:	NATIVE TITLE – separate questions – overlapping claims – whether a language group holds native title through succession where no identifiable apical ancestor with rights and interests at sovereignty in the whole of the overlap area – whether certain apical ancestors from a different language group had native title rights and interests in overlap area at sovereignty – whether continuing connection – whether a sub-group of an existing native title holding group has separate native title in the overlap area – competing native title applications each upheld in part – Court not currently in a position to make findings as to boundary between the two native title areas
Legislation:	Native Title Act 1993 (Cth)
Cases cited:	AB on behalf of the Ngarla People v State of Western Australia (No 4) [2012] FCA 1268; 300 ALR 193 Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2)[2009] FCA 359 Banjima People v State of Western Australia (No 2) [2013] FCA 868; 305 ALR 1 Bodney v Bennell[2008] FCAFC 63; 167 FCR 84 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213 Dale v Moses[2007] FCAFC 82 Daniel v State of Western Australia[2003] FCA 666 De Rose v South Australia (No 2)[2005] FCAFC 110; 145 FCR 290 De Rose v State of South Australia [2002] FCA 1342 De Rose v State of South Australia[2003] FCAFC 286; 133 FCR 325 Dodd v State of South Australia [2012] FCA 519 Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland[2004] FCA 298 Mabo v State of Queensland (No 2)[1992] HCA 23; 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 Moses v State of Western Australia[2007] FCAFC 78; 160 FCR 148 Narrier v State of Western Australia [2016] FCA 1519 Neowarra v State of Western Australia [2003] FCA 1402 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 Sampi on behalf of the Bardi and Jawi People v State of Western Australia[2010] FCAFC 26; 266 ALR 537 Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 Smirke on behalf of the Jurruru People v State of Western Australia [2020] FCA 1410 Smith on behalf of the Nharnuwangga, Wajarri and Ngarla People v State of Western Australia[2000] FCA 1249; 104 FCR 494 Starkey v State of South Australia [2014] FCA 924; 319 ALR 231 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183 Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2)[2019] FCA 1551 Ward on behalf of the Miriuwung and Gajerrony People v State of Western Australia [1998] FCA 1478; 159 ALR 483 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299 State of Western Australia v Ward [2000] FCAFC 191; 99 FCR 316 Western Australia v Ward[2002] HCA 28; 213 CLR 1 Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; 235 FCR 464 Yarmirr v Northern Territory[1998] FCA 771; 82 FCR 533 Murray on behalf of the Yilka Native Title Claim Group v State of Western Australia (No 5) [2016] FCA 752
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	1317
Date of last submission/s:	5 May 2020
Date of hearing:	9-12, 15-17 July 2019 5-6 December 2019 25-26 February 2020
Counsel for the applicants in WAD537/2018 and WAD538/2018:	Stephen Wright SC
Solicitor for the applicants in WAD537/2018 and WAD538/2018:	Yamatji Marlpa Aboriginal Corporation
Counsel for the applicant in WAD490/2016:	Tina Jowett
Solicitor for the applicant in WAD490/2016:	Cross Country Native Title Services
Counsel for the State of Western Australia:	Griff Ranson

Table of Corrections
12 January 2021	In paragraph 153, the name “Windiwarri” has been changed to with the name “Jarndunha”.
12 January 2021	In paragraph 934, the word “decent” has been replaced by “descent”.
12 January 2021	In paragraph 1013, the word “Rover” has been replaced by “River”.
12 January 2021	In paragraph 1275, the word “not” has been replaced by “no”.

ORDERS

		WAD 537 of 2018
BETWEEN:	IVAN SMIRKE, ALEC ALEXANDER, KELLMAN LIMERICK Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

		WAD 538 of 2018
BETWEEN:	IVAN SMIRKE, ALEC ALEXANDER, KELLMAN LIMERICK Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

		WAD 490 of 2016
BETWEEN:	ROY TOMMY, NANCY TOMMY, E.G., MARY MILLS Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

order made by:	MORTIMER J
DATE OF ORDER:	2 december 2020

THE COURT ORDERS THAT:

1. The questions reserved for consideration be answered as follows:

But for any question of extinguishment of native title, are native title rights and interests (as defined in s 223 of the Native Title Act) held...