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

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 2018 WAD 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