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

South West Pilbara

Between: Ian Smirke, Brenda Smirke, Nathaniel Tommy and Kelly Limerick (Applicant) and State of Western Australia, Peter Robert Gray, Susan Jean Grey and Stamco Beef Pty Ltd (Respondents)

Judge: Banks-Smith J

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests. 

Native title holders

Native title is held by the Jurruru People.

Exclusive native title rights and interests over part of the determination area

This
is the right to possession, occupation, use, and enjoyment of the area described in Schedule 2, to the exclusion
of all others.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area and include the right 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: 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 conducting ceremony and ritual; and
• be accompanied by those people who, though not Jurruru people, are: spouses, parents or descendants of one or more Jurruru person; or people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area.
  

Other rights and interests in the determination area are described in Schedule 4 and include those in relation to:

• Pastoral Leases: Wyloo (PL N050360), Glenflorrie (PL N050594), Kooline (PL N049418), Ullawarra (PL N049994);
• Mining Tenements pursuant to the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA): Mining Leases (M 0800191, M 0800192, M 0800193), Exploration Licenses (E 0802754, E 0802848, E 0802904, E 0802897, E 0802945);
• Access to Mining Areas: the rights of the holders of a mining tenement can use such portions of existing roads and tracks in the determination area as necessary for their purposes (while leaving the roads in substantially the same condition as prior to use); and
• Other: rights and interests granted by the Crown; rights and interests held by reason of the force and operation of the laws of the State or Commonwealth; rights and interests of members of the public arising under common law (including rights to fish, navigate and use and enjoy any roads); right to access the determination area as required to perform statutory or common law duties; any existing public access to waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public places at the end of 31 December 1993; and any other legal or equitable estate or interest or general right.
  

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

The Jurruru Aboriginal Corporation Registered Native Title Body
Corporate (RNTBC) is the prescribed body corporate. It performs the
functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Jurruru People.

Full text of the determination is available via the URL link above.

Background

The Jurruru #3 application was filed with the Federal Court on 4 February 2016, pursuant to s 61 of the Native Title Act 1993 (Cth).

The application related to a determination area consisting of two discrete areas of land totaling around 466 square kilometers. The determination area shares boundaries with other recognised native title claimants. The eastern boundary shares a border with the Combined Thiin-Mah Warriyangka Tharrkari Jiwarli determination area. The northern part of the determination area contains various pastoral stations and boarders the Puutu Kunti Kurrama and Pinikura People determination area. Finally, the southern part of the determination area borders the Wajarri Yamatji #1 determination area.

The Jurruru #3 application was made on behalf of the same native title claim group as those in the case Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 a few years prior.

Following the 2015 determination, Ivan Smirke emphasised that the court's decision was a display of 'recognition, respect and acknowledgement of the wider Australian community and its leaders of our nation that the laws, culture and heritage of our ancestors still exist' (Shepherd, 2015).

Details of Judgment

The parties reached agreement as to the terms of the determination of native title 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.

Related Entries

References

Glossary