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

1. Pursuant to s 84C of the Native Title Act 1993 (Cth), the Court orders that, by 31 August 2018, the applicant in native title determination application WAD327/2012 (Jurruru #2 application) is to file and serve a properly authorised interlocutory application to amend the Jurruru #2 application in a manner consistent with the description of the common law holders of native title in the Jurruru People determination made by McKerracher J on 1 September 2015 in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 On 22 December 2017, I dismissed the application of the Jurruru respondents in WAD490/2016, for an order that the application for determination of native title made by the Yinhawangka Gobawarrah (YG) applicant in WAD490/2016 be summarily dismissed. See Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568. 2 The Jurruru respondents are also applicants for native title in WAD6007/2000 (Jurruru #1 native title application) and WAD327/2012 (Jurruru #2 native title application) (Jurruru applicants). 3 The claims made on behalf of the YG and the Jurruru applicants overlap and, as a result of the orders made by me on 22 December 2017, are now being case managed towards a trial in mid-2019 to determine the holder or holders of native title in the overlap area. 4 At the time the application for summary judgment of the Jurruru respondents was heard, the YG applicant also agitated for orders set out in a "minute of proposed orders for case management hearing on 25 May 2017". 5 At paragraphs (1) and (2), the minute sought the joinder of the YG applicant as a respondent in each of the Jurruru #1 native title application and Jurruru #2 native title application. The YG applicant party was joined in these proceedings on 7 July 2017. 6 However, the YG applicant also sought orders in respect of the asserted failure of the Jurruru applicants to amend their two native title applications in a manner consistent with the description of the common law holders of native title in the Jurruru People determination made by McKerracher J on 1 September 2015 in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 - the Jurruru consent determination. 7 More formally, the orders proposed in that regard by the YG applicant are as follows: 3. Pursuant to s 84C of the Native Title Act 1993 (Cth), the Court orders that, by 25 August 2017, the applicant in native title determination application WAD6007/2000 (Jurruru #1 application) is to file and serve a properly authorised interlocutory application to amend the Jurruru #1 application in a manner consistent with the description of the common law holders of native title in the Jurruru People determination made by McKerracher J on 1 September 2015 (refer Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939] (Jurruru determination]. 4. In the event that the applicant for the Jurruru #1 application fails to comply with order 3 above, the Jurruru #1 application shall be struck out pursuant to s 84C of the Native Title Act 1993 (Cth). 5. Pursuant to s 84C of the Native Title Act 1993 (Cth), the Court orders that, by 25 August 2017, the applicant in native title determination application WAD327/2012 (Jurruru #2 application) is to file and serve a properly authorised interlocutory application to amend the Jurruru #2 application in a manner consistent with the description of the common law holders of native title in the Jurruru People determination made by McKerracher J on 1 September 2015 (refer Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939]. 6. In the event that the applicant for the Jurruru #2 application fails to comply with order 5 above, the Jurruru #2 application shall be struck out pursuant to s 84C of the Native Title Act 1993 (Cth). 7. In the event that the Jurruru #1 and Jurruru #2 applications are both dismissed, Toby Smirke, Ivan Smirke, Brenda Smirke, David Smirke, Linda Smirke, Lorraine Smirke and Peggy Smirke shall be removed as respondents to WAD490/2016. 8 The YG applicant says that the Jurruru native title applications, as they currently stand, are not properly authorised pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA) and should be struck out, if not appropriately amended. 9 It recognises, however, that the Jurruru applicants should be given a finite period of time within which to amend the Jurruru #1 native title application and the Jurruru #2 native title application so that they do comply with the NTA and are properly authorised. 10 In its written submissions, it submits no further steps should be taken in the applications until the claims are put on a proper footing. 11 The detailed submissions made on behalf of the YG applicant in this regard were set out in written submissions to the following effect. 12 In the Jurruru determination affecting the un-overlapped part of the Jurruru #1 native title application (as it then was) (see Smirke), the Court held that native title in the determination area is held by the Jurruru People, being those persons who: (1) are descended from Kantitharra or Punartu or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Jurruru People; (2) identify themselves as Jurruru under traditional law and custom and are so identified by other Jurruru People as Jurruru; and (3) have a connection with the land and waters in the determination area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Jurruru People. 13 The YG applicant submits the Jurruru determination was made by consent. The above description of the common law holders of native title was agreed between the Jurruru and the State of Western Australia and endorsed by this Court. 14 In relation to that part of the Jurruru #1 native title application not determined, and the whole of the Jurruru #2 native title application, the YG applicant submits that since the Jurruru determination there has not been any suggestion by the applicant for either claim, or by their legal representatives, that these claims are being advanced on a different basis to that of the Jurruru determination. It submits this means that the Jurruru #1 and #2 applications, as they currently stand, do not comply with the s 61 authorisation requirements of the NTA. 15 In contrast to the description of the Jurruru common law holders in the determination area, the YG applicant notes, the Jurruru #1 claim group description simply comprises a list of 19 persons. It says it is clear that the Jurruru #1 applicant is not authorised "by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed" (see s 61 of the NTA). 16 It also notes that the Jurruru #1 applicant "agreed that the description of the native title claim group in the Jurruru application by reference to 19 named individuals was problematic, principally because of the absence of any reference to the descendants of those named individuals". 17 In relation to the un-overlapped portion of the Jurruru #1 application, the YG applicant submits that this claim group description defect was resolved for the purposes of the Jurruru determination by the exercise of the Court's discretion to allow a description of the common law native holders at variance to the claim group description. However, it submits, the Court did not approve the amendment of the claim group description in relation to what remained of the Jurruru #1 claim area, nor does it appear that the Court was asked to do so. The Jurruru #1 claim group description therefore remained unamended and problematic and non-compliant with s 61 of the NTA. 18 The YG applicant submits that the fact a consent determination was made in relation to the un-overlapped portion of the Jurruru #1 claim (as it then was) does not obviate or excuse the need for the Jurruru to address the Jurruru #1 and #2 claims' inherent s 61 authorisation defects. Unlike in the Jurruru determination area, it submits, the Jurruru #2 claim and what remains of the Jurruru #1 claim are overlapped and strongly contested by the overlapping Yinhawangka Gobawarrah native title claim group. In these circumstances, it is imperative that the Jurruru claims are put on a proper footing, or struck out. The Jurruru have had approximately two years since the Jurruru determination to address these defects, but have failed to do so. 19 For the reasons outlined above, the YG applicant submits the Jurruru #1 claim is, by nature, a "subgroup" claim, made on behalf of only some of the persons claiming to hold the Jurruru native title rights and interests in the Jurruru #1 claim area. It says it is well accepted law that a claim made on behalf of a subgroup is contrary to s 61 of the NTA, and is liable to be struck out. The relevant principles are summarised by McKerracher J in Velickovic v Western Australia [2012] FCA 782 at [31]-[34]. 20 The YG applicant submits that the Jurruru #1 applicant should be given a finite amount of time to seek to amend the Jurruru #1 claim so that it complies with s 61 of the NTA both in terms of including in the native title claim group all the persons who hold common or group rights and interests comprising the particular native title claimed, and being authorised by those persons. 21 Finally, it submits that, in the event the Jurruru #1 claim is not amended to comply with s 61 of the NTA and is not demonstrated to be properly authorised, the Jurruru #1 application should be struck out. 22 Senior counsel for the Jurruru applicants acknowledged that the claim group description in what he called the "remnant application", following the consent determination, required amendment at some point. He indicated that the solicitors for the Jurruru applicants, by reason of other native title commitments, needed until early September 2017 to conduct a claim group meeting, to the extent that would be necessary, to proceed with an amendment to the Form 1 claimant application. 23 In my view, it is appropriate, in the circumstances of the overlapping claims, that the Jurruru applicants duly amend the Jurruru #1 and Jurruru #2 applications on or before 31 August 2018. 24 In all the circumstances, I am not minded to make the suite of orders culminating in the strike out of the Jurruru #1 or the Jurruru #2 claim in the event of non-compliance, as proposed by the YG applicant. It is apparent, having regard to the history of the Jurruru claims and the continuing case management of this matter and from what has been said by senior counsel for the Jurruru applicants from the Bar table, that the Jurruru claim group descriptions will be amended. However, the time for doing so has now arrived. I will therefore simply make the order substantively proposed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.