FEDERAL COURT OF AUSTRALIA

Mullett on behalf of the Gunai/Kurnai People v State of Victoria (No. 2)

[2010] FCA 1514

UPON THE UNDERTAKING of counsel for the applicant to file an affidavit outlining the process undertaken for nominating the Gunaikurnai Land and Waters Aboriginal Corporation to be the holder of native title,

THE COURT ORDERS THAT:

1.    The application of Ms Pauline Mullett is dismissed.

2.    The hearing is adjourned until 11 am this day at Knobs Reserve.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

UPON THE UNDERTAKING of counsel for the applicant to file an affidavit outlining the process undertaken for nominating the Gunaikurnai Land and Waters Aboriginal Corporation to be the holder of native title.

THE COURT ORDERS THAT:

1.    The application of Ms Pauline Mullett is dismissed.

2.    The hearing is adjourned until 11 am this day at Knobs Reserve.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Ms Pauline Mullett has throughout the course of the applications for a determination of native title brought by the Gunai Kurnai people sought to speak on behalf of the Kurnai Clans. She has raised a number of matters which are dealt with in this specially called directions hearing on the morning of the proposed application by the Gunai Kurnai people for a consent determination of native title.

2    No notice of the issues to be raised was given in any formal way by Ms Mullet to the parties to those applications. Nonetheless, Ms Mullett has been a persistent and passionate advocate for the people for whom she claims to speak for a very long time, and it is thought right to have given her an opportunity on the morning of these applications to air her remaining arguments.

3    Overarching all of the arguments which she puts is a deeply held concern that the Kurnai Clans have not been given the final say in relation to the applications. She has maintained that the Kurnai Clans, that is to say the descendants of Larry Johnson and Kitty Perry Johnson, are the only people for the Gippsland area and that no determination of native title might be made unless they agree.

4    The judgment of the Court in the Kurnai Clans application rejected this proposition: Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460. To the extent that it is repeated today, it is not tenable.

5    I agree with Mr Keely, who appeared as counsel for the Gunai Kurnai people, that Ms Mullett’s objection is taken too late in the proceedings. The listing of the application for a consent determination has been known for some time. There have been many directions hearings at which the issue might have been raised. It has not been.

6    To the extent that Ms Mullet argued that there was some defect in the authorisation process, s 84D(4) of the Native Title Act 1993 (Cth) (the Act) would allow the Court to hear whether a consent determination should be made today. This is the course I propose to adopt.

7    Next, Ms Mullett contended that it was unclear from the list of apical ancestors in the proposed consent determination whether the descendants of Larry Johnson and Kitty Perry Johnson were included as part of the Gunai Kurnai people. Behind this argument lies the argument which Ms Mullet put in the Kurnai Clans application, and it relates to the biological descent of Larry and Kitty. Ms Mullett does not accept that the apical ancestors included in the determination reflect the proper parentage of Larry and Kitty.

8    It has always been the position of the Gunai Kurnai people that Larry and Kitty and their descendants are part of the claim Gunai Kurnai people. They have offered in a spirit of generosity to include a note to Schedule 4 of the proposed determination which makes that clear. In view of the oft repeated acknowledgments that the descendant of Larry and Kitty are part of the Gunai Kurnai people, it seems is unnecessary, for this amendment of the proposed consent determination to be included at the eleventh hour. There is no doubt that the Gunai Kurnai people accept the Kurnai Clans as members of the larger group.

9    Finally, Ms Mullett raised a question about the role of the Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC) and whether it was the proper vehicle for the holding of the native title. It is not altogether clear the basis upon which Ms Mullett makes complaint about the GLaWAC. From what I have been told by Mr Keely it seems that it may be the result of a recent altercation at a meeting of that group at which Ms Mullett was ejected. The general tenor of her objection is, again, that the Kurnai Clans are required to be given a voice, and perhaps even a veto, and have not been given such a voice.

10    Mr Keely has told me from the bar table his instructions about the process by which the GLaWAC has been nominated as the holder of the native title rights and interests should a consent determination be made. It is desirable that his instructions are reduced to the form of evidence before the Court. On the undertaking by Mr Keely to provide such evidence conforming with the instructions which he had told the Court he has, I would find that the nomination of the GLaWAC conforms with the requirements of the Act.

11    For these reasons, I am not persuaded by the arguments which I can distil Ms Mullett has made. It seems that she is repeating her deep-seated view, now rejected by the Court in a reasoned judgment, that the Kurnai Clans are, on their own, the right people for Gippsland. Rather, the judgment of the Court is that they form part of a larger group of Aboriginal people of the Gippsland area who have historically had rights and interests here.

Associate:

Dated:    24 February 2011

ATTACHMENT A

VID6007/1998

ALBERT MULLETT, SANDRA MIDDLETON PATTEN, GRAHAM (BOOTSIE) THORPE AND OLIVE TREGONNING ON BEHALF OF THE GUNAI/KURNAI PEOPLE

Applicant

STATE OF VICTORIA AND OTHERS

Respondents

RESPONDENT PARTIES

01 Government Interests – State of Victoria

East Gippsland Region Water Authority

Gippsland Water

South Gippsland Region Water Authority

Southern Rural Water Authority

State of Victoria

West Gippsland Catchment Management Authority

02 Government Interests- Commonwealth

Commonwealth of Australia

03 Government Interests - Local

East Gippsland Shire Council

South Gippsland Shire Council

The Baw Baw Shire Council

Wellington Shire Council

04 Land Users 1

A and J Morphett Nominees

Bila, Hermann and Pam May

Bilney, Roger John

Boger, David V

Brown, Ian

Brown, Martin Robert and Beverly Joan

Carruthers, Penelope Anne

Coleman, Albert F and Marion J

De Voil, Thomas Robin and Philippa Hamilton

Dubelaar, Jacobus

Estate of Herbert Bubb

Fleming, Brian Charles

Foards Freeholds Pty Ltd

Gerald Anthony Feely

Gibbons, John F

Harper, Maurice Edward and Silvia Mary

Hector McLeod and Robyn Elizabeth Stagg

Matthews, Graham Lesley and Marie Lynette

Mt Hotham Alpine Resort Management Board

Mulvany, Thelma Jean

Pagels, Albert Gordon

Sherar, Glenda Joy

Stuart, Kenneth John

The Estate of H.C. Thurlby

Vaccaro, Ugo and Teresa

Wilson, Ian Geoffrey and Tana Lorraine

Wise, Peter John and Beverley Anne

Woodbridge, Peter and Lynette

05 Land Users 2 (VFF)

Albert, F.T.

Baldwin, Reginald David and Mary Winifred

Balfour, Davie and Sue Ellen

Chesterfield Pty Ltd

Coulson, Margaret Ann

Coverdale, Harold Edward and Janice Nola

Crawford, Maxwell Irving

Cropley, Raymond Searle

Davies, Judith Haydon

Ferguson, Anthony and Bernadette

Fiddelaers, Henricus Hubertus Franciscus and Gail

Gallagher, D.C.

Gates, Tanya and Ashley

Geary, Gerald Patrick and Barbara Marie

Gell, John William and Leonie Adele

Gunter, JDS

Heywood, Bruce Alfred and Elsie Faye

Kingham, Rex William

Knee, Bruce William and Rae

Lafferty, John Anthony

Lawlor, Simon and Sonia Nicole

Morley, Ian Donald and Faye Lorraine

Moyes, Ray and Diane

Nardino, Peter John and Paula Alice

Ramsay, Andrea Christine

Rendell, Clement Allen

Rodwell, Marjory Jean

Ryson's Creek Stud Pty Ltd

Stewart, Murray John and Debra Joy

Stringer, Dennis Webster

Tabuteau, Boyd Sylvester and Sandra May

The Estate of Kenneth Thompson Riley

The Estate of G Petersen

Waddell, Rosemary Patricia

Walker, Adrian Hurst

Walker, Robert Anthony and Dianne Elizabeth

06 Water Rights 1

Harrison, Jacqueline Ann and Kate Jessica

07 Water Rights 2 (VFF)

Bridle, Richard John and Lynne Maree

Chambers, John Sydney

Clay, Gary J and Trudy K

Cliff, Barry Selwyn and Suzanne Jane

Condron, Allan Desmond, Barbara May and Gary Allan

Crooke, Richard Alister James

Dean, KF

Di Marco, Gino

Donahoe, Timothy John and Margaret Mary Jose

Estate of RA Deppeler

Evenden, Reginald Robert

FH Grumley and Co

Greenaway, Albert William, Eric John and Margaret Ann

Hillbrich, Bronwyn Hamlyn and Gordon Mark

Hobson, Harold Rex, Hilary, Ronald James, Jennifer Lillian, Peter John and Louana Jane

Kennedy, Charles Hector and Heather Margaret

Killeen, Kevin Francis and Marion Enid

Kleinitz, Gregory Phillip and Leanne Myrtle

Lavery, E and BM

Logan, James Raymond and Barbara Dianne

Mancarella, P JNR

McGregor Bolton, Arnold Jack and Marguerita

Morrison, Glenn Alan and Belinda Lucia

Mosley, Jane

Newcomen, Barry Chisholm and Alicen Joan

Newcomen, Evan Owen

Nielsen, Otto Christian and Orla Sigfred

Osborn, Eileen Heather

Smith, David Ian and Heather Grace

Stewart, Peter James and Margaret May

Stuart, Kenneth John

Thomson, AW and RC

White, Peter Charles Armitstead and Wendy

09 Telecommunication Interests

Telstra Corporation Limited

10 Forestry Interests

Auswest Timber

Midway Pty Ltd

Paper Australia Ltd

Victorian Plantations Corporation

12 Recreational User Interests

Howard, Gary Michael

O'Reilly, Esmonde John

Loch Sport Boat Club Inc

13 Public Access 1

SPI Powernet Pty Ltd

14 Public Access 2

GasNet Australia (Operations) Pty Ltd

16 Forestry Interests II

Grand Ridge Plantations

17 Mining Interests I

Monash Energy Coal Limited

18 Mining Interests II

Ignite Energy Resources Pty Ltd

Loy Yang Power

19 Mining Interests III

Esso Australia Pty Ltd

HRL Developments Pty Ltd

20 Mining Interests IV

TRUenergy Yallourn Pty Ltd

21 Victorian Commercial Fishing Licence

A and A Reynolds Pty Ltd

Allen, Arthur

Anedda, Nicolino

Arendsen, Christopher Richard

Australian Aquaculture Products

Avery, Kenneth Norman

Barrett, John M

Chandler, Gilbert Wayne

Clarke, Neville David

Clyde Thomas Pty Ltd

Cripps, Brett Charles

Cripps, Gary Alan

Dunstone, Raymond Leslie

Extraband Pty Ltd

Gabes Investments Pty Ltd

Garland, Eugene R

Goulden, Matthew Charles

Haliotis Fisheries Pty Ltd

Hunt, David Anthony

Ingram Abalone Pty Ltd

J and M Armstrong Pty Ltd

Kazakas, Tony

Laub, Maxwell John and Dianne Patricia

Leckford Pty Ltd

Minehan, John Michael

Mitchelson, Harry Kevin

Mollusc Pty Ltd

Newman, Kevin Ronald

P and D Clarke

Pinzone, Joseph Domonic

PJ and H Johnston Pty Ltd

Pollard, Anthony Thomas

R Carstairs and "Mako" Fishing Charters

Seyah Pty Ltd

Shorland Fisheries Pty Ltd

Simon Tidswell and Ocean Depths Pty Ltd

Thirteenth Mount Cope Pty Ltd

22 Australian Commercial Fishing Licence

Lakes Entrance Fishermen's Co-Operative Society Limited

23 Work Authority Holder

Ian Sloan Pty Ltd

24 Petroleum 1

Basin Oil Pty Ltd

Santos Ltd

Santos Offshore Pty Ltd

29 Public Access 5

Jemena Eastern Gas Pipeline (1) Pty Ltd and Jemena Eastern Gas Pipeline (2) Pty Ltd

Tasmanian Gas Pipeline Pty Ltd

VID482/2009

GWEN ATKINSON, SHEILA BAKSH, BERYL BOOTH, RITA WATKINS, RICHARD YOUNG, SHIRLEY FOSTER, RHODA GREEN, MARGARET DONNELLY, LORRAINE SELLINGS, SANDRA PATTEN, JAMIE THOMAS, JULIE MONGTA AND LYNETTE WALSH ON BEHALF OF THE GUNAI/KURNAI PEOPLE

Applicant

STATE OF VICTORIA AND OTHERS

Respondents

RESPONDENT PARTIES

01 Government Interests – State of Victoria

State of Victoria

02 Government Interests- Commonwealth

Commonwealth of Australia

03 Government Interests - Local

South Gippsland Shire Council

Baw Baw Shire Council

East Gippsland Shire Council

LaTrobe City Council

Wellington Shire Council

04 Land Users 1

Scripture Union Victoria

John & Barbara Butler

16 Forestry Interests II

Grand Ridge Plantations

18 Mining Interests II

Mt Wills Gold Mines NL

Ignite Energy Resources Pty Ltd

Australian Gold Mines NL

Loy Yang Power Management Pty Ltd

Orion Gold NL