Smirke on behalf of the Jurruru People v State of Western Australia (No 4)

• Jurisdiction: Australia Federal only
• Judgment Date: 26 August 2022
• Neutral Citation: [2022] FCA 993
• Date: 26 August 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Smirke on behalf of the Jurruru People v State of Western Australia (No 4) [2022] FCA 993

File number(s):	WAD 490 of 2016WAD 537 of 2018WAD 538 of 2018
Judgment of:	MORTIMER J
Date of judgment:	26 August 2022
Catchwords:	NATIVE TITLE – consent determination – where determination made on the basis of mediation following a contested determination of a separate question – where nominated prescribed body corporate differs from that determined to hold similar native title on behalf of a similar, but not identical, common law native title holding group
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 22, 37M, 37N Native Title Act 1993 (Cth), ss 13(1)(a), 56(2), 57(2), 67(1), 68, 84D(4), 87, 94A, 225 Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), r 11
Cases cited:	Commonwealth v Clifton [2007] FCAFC 90; 164 FCR 335 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 [2018] FCA 1849 Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203 Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497 Freddie v Northern Territory [2017] FCA 867 Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 Jurruru People v State of Western Australia [2012] FCA 2 Lander v State of South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Moses v Western Australia [2007] FCAFC 148; 160 FCR 148 Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 Peterson v State of Western Australia [2013] FCA 518 Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 Thudgari People v State of Western Australia [2009] FCA 1334 Ward v State of Western Australia [2006] FCA 1848 Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	59
Date of hearing:	26 August 2022
Counsel for the applicant in WAD537/2018 and WAD538/2018:	Stephen Wright SC
Solicitor for the applicant in WAD537/2019 and WAD538/2018:	Yamatji Marlpa Aboriginal Corporation
Counsel for the applicant in WAD490/2016, the twelfth to fifteenth respondents in WAD537/2018 and the tenth to thirteenth respondents in WAD538/2018:	Tina Jowett
Solicitor for the applicant in WAD490/2016, the twelfth to fifteenth respondents in WAD537/2018 and the tenth to thirteenth respondents in WAD538/2018:	Cross Country Native Title Services
Counsel for the first respondent in each proceeding:	Griff Ranson SC
Solicitor for the first respondent in each proceeding:	State Solicitor’s Office

ORDERS

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

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

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

order made by:	MORTIMER J
DATE OF ORDER:	26 AUGUST 2022

THE COURT NOTES THAT:

A. Pursuant to s 87(1) of the Native Title Act 1993 (Cth), the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title.

B. The Minute is in relation to an area covered by the entirety of the applications WAD 490 of 2016 and WAD 538 of 2018 (formerly WAD327/2012) and the balance of application WAD 537 of 2018 (formerly WAD6007/2000) (together, the Determination Area).

C. The Minute reflects the Court’s findings in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 and Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122, and also gives effect to agreements subsequently reached by the parties in mediation and after further compromise following mediation.

D. The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.

E. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim groups, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1. There be a determination of native title in the terms proposed in these orders, despite any actual or arguable defect in the authorisation of the applicant in WAD 490 of 2016 to seek and agree to a consent determination pursuant to s 87 of the Native Title Act 1993 (Cth).

BY CONSENT THE COURT ORDERS THAT:

1. Pursuant to subsection 67(1) of the Native Title Act 1993 (Cth), proceedings WAD 490 of 2016, WAD 537 of 2018 and WAD 538 of 2018 be determined together.

2. In relation to the Determination Area, there be a determination of native title in WAD 490 of 2016, WAD 537 of 2018 and WAD 538 of 2018 in the terms provided for in Attachment A (‘the determination’).

3. In respect of the Yinhawangka Area (as defined in paragraph 14 of the determination), the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) shall hold the determined Yinhawangka native title in trust for the Yinhawangka People pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

4. In respect of the Jurruru Area (as defined in paragraph 14 of the determination), the Jurruru Aboriginal Corporation RNTBC (ICN 8251) shall hold the determined Jurruru native title in trust for the Jurruru People pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

5. In respect of the Overlap Area (as defined in paragraph 14 of the determination), the Gobawarrah Yinhawangka...