Smirke on behalf of the Jurruru People v State of Western Australia (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 16 September 2021
• Neutral Citation: [2021] FCA 1122
• Court: Federal Court
• Date: 16 September 2021

Federal Court of Australia

Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122

File numbers:	WAD 490 of 2016WAD 537 of 2018WAD 538 of 2018
Judgment of:	MORTIMER J
Date of judgment:	16 September 2021
Catchwords:	NATIVE TITLE – whether the Court has jurisdiction to make determination that native title exists and is held by a group that includes persons who did not authorise an application for the determination in question – whether the Court should exercise the discretion in s 84D(4) of the Native Title Act 1993 (Cth) – whether the Court is bound to follow Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 – where the Court has previously determined that the native title in question exists and is held by the group in question
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 23, 37M, 37N Judiciary Act 1903 (Cth) s 39B(1A)(c) Native Title Act 1993 (Cth) ss 10, 13, 61(1), 81, 84D(4), 87, 87A, 213, 223, 225, 251B
Cases cited:	Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 Brown v State of South Australia [2009] FCA 206 Cheinmora v State of Western Australia (No 2) [2013] FCA 768 Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; 204 FCR 542 Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792 Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 Hayes v Northern Territory of Australia [1999] FCA 1248; 97 FCR 32 Hazelbane v Northern Territory of Australia [2014] FCA 886 Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 Jango v Northern Territory [2007] FCAFC 101; 159 FCR 531 Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 Kokatha Native Title Claim v South Australia [2005] FCA 836; 143 FCR 544 Kokatha People v State of South Australia [2007] FCA 1057 Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 McKenzie v South Australia [2005] FCA 22; 214 ALR 214 Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 Northern Territory of Australia v Alywarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28l 194 CLR 355 Risk v National Native Title Tribunal [2000] FCA 1589 Sandy on behalf of the Yugara/Yugarapul People v Queensland [2012] FCA 978 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 (No 2) [2020] FCA 1728 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183 Strickland v Western Australia [2013] FCA 677 Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 TJ v Western Australia [2015] FCA 818; 242 FCR 283 Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568 Velickovic v State of Western Australia [2012] FCA 782 Ward v Western Australia [1998] FCA 1478; 159 ALR 483 Western Australia v Ward [2000] FCA 191; 99 FCR 316 Yarmirr v Northern Territory of Australia [1997] FCA 274; 74 FCR 99
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	187
Date of hearing:	6 August 2021
Counsel for the applicant in WAD537/2018 and WAD538/2018:	Stephen Wright SC
Solicitor for the applicant 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
8 November 2021	In the third sentence of paragraph 34, “their” has been replaced with “its”.
8 November 2021	In the third sentence of paragraph 53, “the Jurruru applicants submit” has been replaced with “the Jurruru applicant submits”.
8 November 2021	In the fourth sentence of paragraph 76, the second occurrence of “that” has been deleted.
8 November 2021	In the second sentence of paragraph 103, “-[1309]” has been inserted after “[1308]”.
8 November 2021	In the heading above paragraph 135, “the separate power in s 87(1A)” has been replaced with “the separate powers in s 87 and s 87A”.
8 November 2021	In the first sentence of paragraph 147, “finding” has been replaced with “funding”.
8 November 2021	In the fourth sentence of paragraph 151, the first occurrence of “has” has been deleted.
8 November 2021	In the second sentence of paragraph 160, “the” has been deleted.
8 November 2021	In the second sentence of paragraph 167, “interest” has been replaced with “interests”.
8 November 2021	In the eighth sentence of paragraph 169, “all” has been deleted.

ORDERS

		WAD 537 of 2018
BETWEEN:	IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondent
	WAD 538 of 2018
BETWEEN:	IVAN SMIRKE, ALEX ALEXANDER AND KELLMAN LIMERICK Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondent
	WAD 490 of 2016
BETWEEN:	ROY TOMMY, NANCY TOMMY, MARY MILLS & ORS Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondent

order made by:	MORTIMER J
DATE OF ORDER:	...