In this matter, Barker J ordered that pursuant to s 84C of the Native Title Act 1993 (Cth) (NTA), by 31 August 2018, 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 in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.
[1] On 22 December 2017, Barker J 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 Jurruru #1 and WAD327/2012 (Jurruru #2 application) (Jurruru applicants).The claims made on behalf of the YG and the Jurruru applicants overlap and, as a result of the orders made by Barker J 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 and Jurruru #2 applications. 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. See Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939.
[23] – [24] In Barker J’s view, it was 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. In all the circumstances, Barker J was 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. His Honour in having regard to the history of the Jurruru claims and the continuing case management of this matter and from what had been said by senior counsel for the Jurruru applicants from the bar table, that the Jurruru claim group descriptions would be amended.