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Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939

Date:

1 September 2015

Sub Category:

Consent Determination (Native Title Act)

Place:

Located in the vicinity of Ashburton

State/Country:

Western Australia, Australia

Legal Status:

Registered on the National Native Title Register.

Legal Reference:

Tribunal file no.: WCD2015/002; Federal court file no.: WAD6007/2000.

Subject Matter:

Native Title

URL:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/939.html?stem=0&synonyms=0&query=jurruru%20people

Summary Information:

Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939

Between:

BRENDA SMIRKE, DAVID SMIRKE, IVAN SMIRKE, LINDA SMIRKE, LORRAINE SMIRKE, PEGGY SMIRKE AND TOBY SMIRKE (applicants);

and

STATE OF WESTERN AUSTRALIA, BAMBI PTY LTD AND CHEELA PLAINS PASTORAL CO PTY LTD, ANDREW NICHOLAS GLENN, PETER ROBERT GREY, SUSAN JEAN GREY, DONALD RAYMOND HAMMARQUIST, WENDY RUTH HARVEY, DANIEL JOHN HASTIE, JASON GARY HASTIE, STAMCO BEEF PTY LTD and YAMATJI MARLPA ABORIGINAL CORPORATION (respondents).

Judge: McKerracher J

Where made: Perry Flats, Kooline Station, Western Australia

Determination:

Native title exists in parts of the determination area. It consists of non-exclusive native title rights.

Native title is held by the Jurruru People.

Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:

- enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area;
- hunt, fish, gather, take and use the traditional resources of the land;
- take and use water;
- engage in cultural activities on the Determination Area, including:
(i) visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and
(ii) conducting ceremony and ritual; and
- the right to be accompanied by those people who, though not Jurruru people, are:
(i) spouses, parents or descendants of one or more Jurruru person; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.

The native title rights and interests are subject to and exercisable in accordance with:

- the laws of the State and the Commonwealth, including the common law; and
- the traditional laws and customs of the Jurruru People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

The native title rights and interests do not confer:

- possession, occupation, use or enjoyment to the exclusion of all others;
- a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

There are no native title rights in or in relation to:

- minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 196 (WA);
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- water captured by the holders of the Other Interests pursuant to those Other Interests.

Non-native title rights and interests that exist within the determination area:

1. Reserves
(a) The following reserves:

Reserve No.	Current Purpose
1110	Watering place
1112	Watering place
1113	Watering place
1114	Watering place
1115	Watering place
1119	Watering place
18498	Water

(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; and
(c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights.

2. Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

Pastoral Lease	Station Name
PL N050360 (formerly 3114/0647)	Wyloo
PL N050044 (formerly 3114/0773)	Dooley Downs
PL N050594 (formerly 3114/1014)	Glenflorrie
PL N050036 (formerly 3114/1218)	Ashburton Downs
PL N049418 (formerly 3114/1236)	Kooline
PL N050510 (formerly 3114/1241)	Pingandy
PL N050545 (formerly 398/782)	Cheela Plains
PL N049994 (formerly K981339)	Ullawarra

3. Easements
The following easement and the rights and interests of the holders from time to time of that easement:

Easement No.	Purpose
F 924685	For the purpose described in the government gazette on 4 July 1995, commencing on page 2799 at "LA 801 Goldfields Gas Pipeline Agreement Act 1994 Public Works Act 1902 Land Acquisition".

4. Mining Tenements

(a) The rights and interests of the holders of the following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA):

(i) Mining Leases

Tenement ID	Tenement ID	Tenement ID
M 0800011	M 0800012	M 0800027
M 0800066	M 0800071	M 0800098
M 0800105	M 0800192	M 0800197

(ii) Exploration Licenses

Tenement ID	Tenement ID	Tenement ID
E 0801628	E 0801629	E 0801630
E 0801631	E 0801632	E 0801633
E 0801650	E 0801741	E 0801746
E 0801841	E 0801915	E 0801916
E 0801949	E 0801950	E 0801954
E 0802033	E 0802038	E 0802232
E 0802237	E 0802240	E 0802250
E 0802258	E 0802280	E 0802281
E 0802282	E 0802296	E 0802372
E 0802373	E 0802472	E 0802474
E 0802487	E 0802494	E 0802550
E 0802557	E 0802562	E 0802567
E 0802613	E 0802614

(iii) Prospecting Licenses

Tenement ID	Tenement ID	Tenement ID
P 0800540	P 0800616	P 0800648
P 0800670	P 0800675	P 0800676

(b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following tenements:

Tenement ID.	Tenement Type
PL24	Pipeline Licence

5. Access to Mining and Petroleum Areas
(a) Without limiting the operation of any other clause in Schedule Four, but subject to clause (5)(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in clauses 4 of Schedule Four to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.
(b) Nothing in clause (5)(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause (5)(a).

6. Other
The following rights and interests:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;
(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under common law, including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate; and
(iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;
(d) The right to access the Determination Area by;
(i) an employee, agent or instrumentality of the State;
(ii) an employee, agent or instrumentality of the Commonwealth;
(iii) an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993;
(f) Any other:
(i) legal or equitable estate or interest in the land or waters; or
(ii) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,
- the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Rights of the applicant, the State of Western Australia and any respondents:

- the parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters.

Provisions relevant to the Native Title rights:

- the Jurruru Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;

- native title is held in trust for the Jurruru People.

Detailed Information:

Background

The native title application was first made on 14 February 2000, and has since been substantially amended twice to reflect the final decision of the Jurruru People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Jurruru People as the holders of native title rights and interests over their country.

The parties have agreed that, in respect of the balance of the land and waters of the Jurruru Application (namely those areas of the Jurruru Application which are overlapped by native title determination application WAD 6173 of 1998 ("Gobawarrah Minduarra Yinhawanga Application"), no determination was to be made.

The successful native title claim has provided the Jurruru People with formal recognition of approximately 10,066 square kilometres of land.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Jurruru People in relation to part of the land and waters covered by the Jurruru claim. The signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

Smirke on behalf of the Jurruru People v State of Western Australia [2018] FCA 2079

Organisation

State of Western Australia - Respondent

Bambi Pty Ltd - Respondent

Cheela Plains Pastoral Co Pty Ltd - Respondent

Stamco Beef Pty Ltd - Respondent

Yamatji Marlpa Aboriginal Corporation - Respondent

Jurruru Aboriginal Corporation RNTBC

People

Brenda Smirke and others on behalf of the Jurruru People - Native Title Applicant