Smirke on behalf of the Jurruru People v State of Western Australia (No 3)

The case of Smirke on behalf of the Jurruru People v State of Western Australia (No 3) concerns a dispute about native title, specifically whether the Federal Court of Australia has the jurisdiction to make a determination that native title exists and is held by a group that includes persons who did not authorise the application for the determination. The case was heard by the Federal Court, which was tasked with resolving several legal issues, including whether the court should exercise its discretion under s 84D(4) of the Native Title Act 1993 (Cth) and whether the court is bound by the decision in Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355. The case was also concerned with determining whether the court should proceed to a determination of native title in the Yinhawangka Gobawarrah application WAD 490 of 2016, once the parties had reached an agreement on the boundaries around the Ashburton River.

The court found that the Federal Court does have the jurisdiction to make a determination that native title exists and is held by a group that includes persons who did not authorise the application for the determination, as long as the court exercises its discretion under s 84D(4) of the Native Title Act. The court also found that it was not bound by the decision in Commonwealth of Australia v Clifton, as the present case involved different circumstances and required a different approach. The court held that the interests of the administration of justice would not be served by a dismissal of the Yinhawangka Gobawarrah application, and that it would be more appropriate for the application to proceed to a determination of native title, once the parties had reached an agreement on the boundaries around the Ashburton River. The court further found that any further programming towards determinations of native title in all three proceedings should be referred to case management and/or mediation before Judicial Registrar McGregor. Finally, the court held that if any party sought to be heard on the costs of the separate question, submissions on that matter should be the subject of programming in accordance with Order 3.

In conclusion, the Federal Court found that it had the jurisdiction to make a determination that native title exists and is held by a group that includes persons who did not authorise the application for the determination, as long as the court exercised its discretion under s 84D(4) of the Native Title Act. The court held that it was not bound by the decision in Commonwealth of Australia v Clifton and that the Yinhawangka Gobawarrah application should proceed to a determination of native title, once the parties had reached an agreement on the boundaries around the Ashburton River. The court also found that any further programming towards determinations of native title in all three proceedings should be referred to case management and/or mediation before Judicial Registrar McGregor.