FEDERAL COURT OF AUSTRALIA

Gunaikurnai People Native Title Claim Group v State of Victoria [2018] FCA 23

ORDERS

THE COURT ORDERS THAT:

1.    The application under s 66B of the Native Title Act 1993 (Cth) to change the constitution of the applicant be granted.

2.    The Applicant in VID737/2014, jointly comprising Beryl Booth, Roderick Mullett and Barry Kenny be replaced with Beryl Booth, Collon Mullett, Russell Mullett and Wayne Thorpe.

3.    The application by Ms Pauline Mullett to be joined under s 84(5) of the Native Title Act be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    The orders I have made deal with two applications. The first is an application under s 66B of the Native Title Act 1993 (Cth) by the applicant to change the constitution of the applicant.

2    The second is an application by Ms Pauline Mullett to be joined as a party to the proceeding. By orders made on 25 September 2017, Ms Mullett was taken to have made an oral application to be joined. That order was made to avert a procedural issue which arose because Ms Mullett had initially applied using a prescribed form for joinder which, technically, can only be used once a native title application has been notified under s 66 of the Native Title Act. For reasons that form some of the background to the s 66B application, despite this proceeding having been filed in 2014, this claim had still not been through the notification processes in Part 3 of the Native Title Act until I made orders in August 2017 requiring that to occur. The claim has now been notified and the notification period has concluded.

3    For that reason, out of an abundance of caution I determined it was more appropriate to treat Ms Mullett’s application as an oral one. In doing so, that has no effect on the substance of my consideration of the merits of her application.

4    In these reasons, I refer to the decision of North J in Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47. His Honour’s decision related to a claim by the Gunaikurnai over an area to the north-east of the current claim area. That claim was ultimately determined by consent not long after North J’s decision in Rose (2010): see Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144.

5    The different versions of the name of the claim group was raised in the applicant’s submissions opposing the joinder of Ms Mullett, where the applicant noted that after the consent determination in 2010, the Gunaikurnai chose to combine the names “Gunai” and “Kurnai” in an effort to eradicate perceptions of difference between the two. Accordingly, I refer to the claim group as Gunaikurnai.

6    The relevance of Rose (2010), and the consent determination over the adjacent area to the north-east is that the objections from Ms Pauline Mullett and those who share her views about the composition of the Gunaikurnai claim group were also an issue in that native title claim. Ms Mullett made the same arguments before North J in Rose (2010) as she raises in this proceeding, although the process adopted by the Kurnai (with Ms Mullett as the leading advocate) in Rose (2010) was different. In Rose (2010), pursuant to s 61 of the Native Title Act, the Kurnai sought a separate determination of native title in favour of the Kurnai people. That application was dismissed by North J, on the basis that the Kurnai formed part of a larger society, the Gunai/Kurnai and could not, on their own, make out the requirements for a determination of native title under the Native Title Act.

7    As I explain below, Ms Mullett has not demonstrated any basis on which the Court should depart from the findings of North J in Rose (2010). Those findings are fatal to the arguments of Ms Mullett as currently presented, and have led me to refuse her joinder application. Those findings also mean there is no basis to refuse the s 66B application because of any deficiencies in the claim group description, nor in the authorisation process. The only matters which could have affected the Court’s satisfaction that the requirements of s 66B had been met were in substance the matters raised by Ms Mullett.

The sECtIOn 66B application

8    This application was filed on 18 September 2017. Without going into detail about the history of the original Prescribed Body Corporate (PBC) established for the Gunaikurnai people — the Gunaikurnai Land and Waters Aboriginal Corporation RNTBC (GLaWAC) — the applicant’s “Progress Reports” filed with the Court indicated that there had been a failure of the PBC, and that its office holders had eventually been replaced with different individuals, so that the corporation is now functioning again.

9    After the Court raised the issue of whether the applicant remained properly constituted, this application under s 66B was filed. The following orders are sought:

The Applicant in VID737/2014, jointly comprising Beryl Booth, Roderick Mullett and Barry Kenny be replaced with Beryl Booth, Collon Mullett, Russell Mullett and Wayne Thorpe.

10    The background to the application is set out in the affidavit of Ms Ju-Lin O’Connor, a managing lawyer employed by what was then called Native Title Services Victoria Limited. The entity is now called First Nations Legal and Research Services.

11    Affidavits were also filed by Collon David Mullett, Beryl Olive Booth, Russell William Mullett and Wayne Russell Thorpe.

12    Ms O’Connor deposed that it had become apparent over the last 12 months that “not all the individuals originally authorised to be the applicant in the Gunaikurnai Application either had the capacity to make the application and to deal with matters arising in relation to it, or continued to be authorised by the claim group”.

13    Accordingly an authorisation meeting was held on 2 September 2017, for the purposes of the claim group members deciding whether to authorise a new set of individuals to constitute the applicant for the purposes of this claim. Resolutions were passed at that meeting authorising Beryl Booth, Collon Mullett, Russell Mullett and Wayne Thorpe to constitute the applicant.

14    For the reasons I set out below, I am satisfied it is appropriate to make the order sought by the applicant under s 66B of the Native Title Act.

15    Section 66B provides:

66B Replacing the applicant

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    the person consents to his or her replacement or removal;

(ii)    the person has died or become incapacitated;

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:     Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Court order

(2)    The Court may make the order if it is satisfied that the grounds are established.

Registrar of Federal Court to notify Native Title Registrar

(3)    If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

Register to be updated

(4)    If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

16    The applicable principles in considering an application under s 66B of the Native Title Act, and the relevant authorities, have recently been set out by Rangiah J in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [40]-[54]. I respectfully adopt his Honour’s description of those principles.

17    Each of the five deponents were present at the 2 September 2017 meeting. Each deposed to what occurred at the meeting and there are no material inconsistencies in their accounts.

18    Ms O’Connor deposed to the advertising of the authorisation meeting, which I am satisfied was adequate for the purposes of notifying members of the claim group of the meeting. In the notifications this claim was called the “Wilson’s Promontory Native Title Claim”, as the claim area includes Wilson’s Promontory National Park in south-east Victoria. Ms O’Connor deposed to the correspondence sent by First Nations Legal and Research Services to claim group members on its database.

19    She also deposes to sending the same correspondence to the additional 5 “members who identify as ‘Kurnai Clans’ including Ms Pauline Mullett”. Ms Mullett, and some people who share her views, attended the 2 September 2017 meeting.

20    Ms O’Connor deposes that the following sequence of events occurred at the meeting:

11.    After preliminaries and welcome to country, the meeting:

(a)    confirmed that quorum had been met (Item 3 of annexure JO-4);

(b)    confirmed the agreed and adopted decision making process to be used at the meeting (Resolution 1 of annexure JO-4);

(c)    confirmed the Gunaikurnai native title claim group description (Resolution 2 of annexure JO-4);

(d)    passed resolutions to replace the applicant in Gunaikurnai Application pursuant to section 66B of the NTA (Resolutions 3, 4, 5, 6 and 8 of annexure JO-4);

(e)    instructed NTSV to do all things necessary to prepare and file the application to replace the applicant in Gunaikurnai Application pursuant to section 66B of the NTA (Resolution 7 of annexure JO-4).

21    The record of the meeting, exhibited to Ms O’Connor’s affidavit, reveals that 46 claim group members attended the meeting. Ms Pauline Mullett is listed as one of them. There were apologies from 29 claim group members.

22    A quorum of 30 claim group members had been agreed to and used in the past at Gunaikurnai full group meetings, and the meeting agreed to continue to use this as quorum. The meeting also resolved to continue to use the decision-making process which had been used on previous occasions. The meeting resolved:

Resolution 1

The Gunaikurnai native title claim group resolve to adopt the following agreed decision making process for the purpose of this native title application and associated matters:

•    the decision making for the Gunaikurnai native title group for is by consensus;

•    if consensus cannot be reached, the process for decision making will be by majority vote;

•    the voting process will be by show of hands.

In favour: Majority, Against: 4, Abstaining: 2

Motion carried by the majority

23    The meeting then considered the claim group description. It is this issue which is the contentious issue so far as Ms Mullett and those who share her views are concerned. It is appropriate to describe the issue here, as this issue is also at the heart of Ms Mullett’s joinder application. I have called this issue the “claim group composition debate”, for the purposes of these reasons only.

The claim group composition debate

24    There are 25 identified individuals, or couples, who are said by the applicant to comprise the apical ancestors for this claim group. One couple is described as “Jemmy Bull and Mary”.

25    Ms Mullett says that the Kurnai are a separate people, and the only apical ancestors of the Kurnai are Larry and Kitty Johnson. The position of the applicant in this current proceeding is that Larry and Kitty Johnson are descendants of Jemmy Bull and Mary and King Tom Kee-lum-bedine and Mary War-gyle, and form part of the Gunai/Kurnai people, being a single “society” for the purposes of the Native Title Act. Ms Mullett has always denied that Kitty Johnson is a descendant of Jemmy Bull and Mary and this denial is a core part of her position that the Kurnai are a separate people.

26    It is important to note that there is no dispute about the sincerity of Ms Mullett’s position, nor the position of those who share her views. In Rose (2010), North J said at [204]:

The conduct of the Kurnai case has been dominated by Ms Mullett. For much of the case she has conducted the Kurnai side of the proceeding without legal representation. Her knowledge of the ancestors, the history of Gippsland Aborigines, and the evidence led in this case and in the Gunai/Kurnai application is very impressive. Her commitment to and passion for the cause of the Kurnai is absolute. Indeed, in some instances it goes to the point of blindness to the evidence and arguments put against the Kurnai.

27    The content of North J’s decision, and the continued adherence of the claim group members (aside from Ms Mullett and those who share her views) in the current Wilson’s Promontory claim to the position advanced before North J explains the course taken at the 2 September 2017 meeting.

The course of the rest of the 2 September 2017 meeting

28    The way the claim group composition issue was handled is set out in the meeting record in the following way:

It became apparent that certain members at the meeting did not agree that all the ancestors listed should comprise the apicals of the native title claim group. Those people were: Pauline Mullett, Cheryl Drayton, Sandra Mullett and Marion Flo Hood. Pauline Mullett stated that the ancestors of the Kurnai were Larry and Kitty Johnson. NTSV pointed out that these two ancestors were descendants of Jemmy Bull and Mary (2) and King Tom Kee-lum-bedine and Mary War-gyle (14). Pauline Mullett denied that this was the case.

29    I note here that the meeting record shows that First Nations Legal and Research Services officers put forward another set of apical ancestors for Kitty and Larry Johnson, aside from Jemmy Bull and Mary. North J’s reasons for judgment do not deal specifically with the relationship of that other set of apical ancestors, being Mary War-gyle and King Tom Kee-lum-bedine, to Larry and Kitty Johnson.

30    These exchanges having occurred, the meeting record shows that the following resolution was passed:

Resolution 2

The members of the Gunaikurnai native title group present at the meeting on 2 September 2017 confirm that the native title claim group description is those descendants of the apical ancestor sets listed and that only those people who were descendants of one or more of the listed apical ancestors could vote at this meeting.

In favour: Majority, Against: 4, Abstaining: 1

Motion carried by the majority

31    In other words, the majority of members present and voting at the meeting, in accordance with the process decided upon, rejected Ms Mullett’s arguments again, and adopted the position of the composition of the claim group which was found by North J in Rose (2010), and was the subject of the consent determination in Mullett.

32    The next step at the meeting was the taking of nominations for members of the applicant. Two of the people who share Ms Mullett’s views — Cheryl Drayton and Marion Flo Hood — nominated to become members of the applicant. In doing so, they (and Ms Mullett and Sandra Mullet) expressed their disagreement with the broader composition of the claim group. A majority of those present and voting at the meeting decided that Ms Drayton and Ms Hood should not be nominated as members of the applicant to represent the Gunaikurnai claim group, by the following resolution:

Resolution 3

The members of the Gunaikurnai native title group present at the meeting on 2 September 2017 resolve that only those nominees who recognise and agree with the native title claim group description in the Gunaikurnai People native title determination application VID737/2014 can be appointed as Applicant to the native title claim.

In favour: Majority, Against: 4, Abstaining: 2

Motion carried by the majority

33    The meeting then resolved, by a fourth resolution, that Barry Kenny, Beryl Booth and Ricky Mullett were no longer authorised as the applicant in this proceeding and were to be removed as the applicant. In their place, by a fifth resolution, a majority of the meeting resolved that Beryl Booth, Russell Mullett, Collon Mullett and Wayne Thorpe were authorised:

…to replace the current Applicant on the Gunaikurnai People native title determination application VID737/2014 and to deal with all matters arising under the Native Title Act 1993 in relation to the Application, subject to the Federal Court making a section 66B order under the Native Title Act 1993[.]

34    These individuals were then authorised to make the present s 66B application.

35    I am satisfied for the purposes of s 66B that the claim group comprises the descendants of the 25 individuals and couples who are identified as apical ancestors in resolution two of the 2 September 2017 meeting. Whether that claim group can satisfy the matters set out in ss 223 and 224 of the Native Title Act is not a matter for the Court to determine in this application. It is sufficient for the Court to accept that this composition of the claim group is the same as the composition accepted by North J for the 2010 consent determination in Mullett, on the basis of evidence and findings his Honour had examined in detail in reaching the conclusion he did in Rose (2010). I consider it is the members of that claim group, who were properly notified of the 2 September 2017 meeting, a sufficient number of whom attended and voted at the meeting, who should determine which individuals are authorised to act as the applicant in this proceeding. As the evidence shows, and North J made clear in Rose (2010), this includes Ms Mullett and those who share her views.

36    I am further satisfied that the claim group chose to adopt a particular decision-making process, in accordance with s 251B(b) of the Native Title Act. I have set out the description of that process at [20]-[22] above.

37    I am satisfied that the decisions taken at the 2 September 2017 meeting were taken in accordance with that process, ultimately by majority because consensus could not be achieved due to the opposition to the proposed course by Ms Mullett and those who supported her. I note however, that the voting record actually shows four people voting against resolutions 2 to 5, with two abstaining from resolutions 3 to 5 and one abstaining from resolution 2. Whether all those supported, fully or in part, Ms Mullett’s position is not disclosed on the evidence. The answer to that question is not material for the satisfaction of s 66B.

38    As Rangiah J notes in Gomeroi at [46], referring to the decision of Reeves J in Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [21] and [29], the Native Title Act does not require a “meeting” to be held. It simply requires authorisation. How authorisation is achieved can be the subject of a range of flexible arrangements, so long as the express requirements of s 251B, and s 66B, are met. In any event, there are no challenges to the conduct of the meeting on 2 September 2017 of the kind with which Rangiah J was faced in Gomeroi. The issue raised by Ms Mullett is about the correct composition of the claim group. From this flows her further argument that the decision-making process adopted by the claim group, as initially adopted at the July 2014 meeting and continued at the 2 September 2017 meeting, is not in accordance with Kurnai traditional laws and customs and so does not meet the requirements of s 251B.

39    That is plainly a matter capable of affecting the validity of any authorisation, if her arguments were accepted. However, as I have already made clear, I do not accept them.

40    The evidence discloses adequate and timely notice of the meeting was given. A sufficient number of claim group members attended to satisfy the quorum the claim group itself had imposed. All decisions were passed by majority, as the agreed process required where no consensus could be reached. The resolutions are each clear in their terms. The members of the current applicant were no longer authorised, and those nominated to constitute the new applicant were plainly authorised. This included authorisation in terms consistent with s 62A of the Native Title Act.

41    There is one matter which should be noted. Ms Beryl Booth is one of three individuals who constitutes the current applicant. She was also nominated (and authorised) as a member of the proposed new applicant. Yet the resolution concerning the current applicant states that she, along with the other two individuals is “no longer authorised”. Does this mean Ms Booth was not, in fact, authorised by those members of the claim group who voted in favour of the resolutions at the 2 September 2017 meeting? Without taking an overly technical approach (see the observations of Rangiah J at [54] in Gomeroi, agreeing with remarks of Stone J in Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [28], in my opinion the two resolutions should be construed as meaning first, that the three individuals who presently constitute the applicant are no longer, together and jointly, authorised, and that the four individuals who constitute the proposed applicant are, together and jointly, now authorised. That approach is also consistent with the express terms of s 61(2)(c) of the Native Title Act which states that the persons authorised “are jointly, the applicant” (my emphasis).

42    Finally, there are affidavits from each of the individuals who are proposed to constitute the applicant. Each of them was present at the 2 September 2017 meeting, and confirms the process set out in Ms O’Connor’s affidavit is what occurred. Each of them affirms, to the best of their knowledge, the truth of the matters in the s 61 application in this proceeding.

43    Accordingly, the s 66B application should be granted. I turn now to the joinder application.

MS MULLETT’S JOINDER APPLICATION

44    In the original form she used to describe her application, Ms Mullett stated her grounds in the following way:

1.    I am applying to become a party to the VID737/2014 Gunai/Kurnai Native Title claim.

2.    I am applicant on the Kurnai Clans Native Title claim application VID398/2004 which was consolidated with the VID 6007/1998 as determined by the Federal Court of Australia.

3.    The claimed area is of interest as stated in my application and is my grandfather birth place and consequently my birthright and inheritance according to traditional law and customs under the Native Title Act as recognised through application VID398/2004.

4.    I am the applicant who applied to strike application VID 6005/1997 Gunai/Boonerwrung native title application and endorsed and executed by the Federal Court’s decision.

5.    I successfully applied for a Federal Court injunction on December 2015 but was declined because I failed to comply with Section 84 (3)(a)(ii) of the Native Title Act.

6.    In the context that the Native Title Act 1993 legislature clearly envisaged a “native title party” to be different from both the “native title claim group” and “the applicant” and it is on these grounds I apply to the Federal Court of Australia to grant my application.

45    It is important to understand the several ways in which Ms Mullett’s arguments about the Kurnai people affect this proceeding. First, her arguments lead to the position that the Gurnaikurnai claim group is much narrower than the descendants of the 25 individuals or couples who are presently identified as the apical ancestors for the Gurnaikurnai. Acceptance of her arguments would see a drastic re-composition of the claim group for the Wilson’s Promontory area, but would also throw into doubt the consent determination made by North J in 2010. Of course, if her arguments are correct, those outcomes may simply need to be dealt with, but I set them out to illustrate the seriousness of the ramifications of her claims.

46    Second, Ms Mullett states that she, and the people she represents, are firmly opposed to any negotiations with the State of Victoria pursuant to the Victorian Traditional Owner Settlement Act 2010 (Vic) (TOS Act). They wish to use the process under the Native Title Act only. They do not wish their native title rights to be surrendered through the TOS Act process (which is apparently intended to be the inevitable outcome of a TOS Act settlement).

47    A number of initial matters can be noted about what Ms Mullett says in her application. Proceeding VID398/2004 (which, according to the Court's records, is in fact proceeding VID398/2005) and in which Ms Mullett states she was an applicant, was not “consolidated” with proceeding VID6007/1998. Indeed, the State and the Gunai/Kurnai submitted this should occur but North J rejected this approach: see [194]-[202]. On and from North J’s orders in VID398/2005, proceeding VID 398/2005 was dismissed.

48    Paragraph 3 of Ms Mullett’s grounds sets out what I understand to be the core of Ms Mullett’s joinder application: namely, the same issue she raised in Rose (2010).

49    Paragraph 4 refers to VID6005/1997 which was an application for determination of native title under s 61 involving the Gunai/Kurnai, the Kurnai and the Boonerwrung. This application was struck out by North J in Rose on behalf of the Gunai/Kurnai and Boonerwrung People v State of Victoria [2011] FCA 1538 for want of prosecution. The strike-out orders were made with the agreement of Ms Mullet who was acting in that proceeding as a representative of the Kurnai. This course of events has no relevance for the determination of Ms Mullett’s current application.

50    Paragraph 5 refers to Ms Mullett’s efforts between August and December 2015 to seek an injunction in relation to the present proceedings on the basis that the application under s 61 in the current proceeding (VID737/2014) was unauthorised. These documents were not accepted for filing. This course of events also has no relevance for the determination of Ms Mullett’s current application.

51    Paragraph 6 sets out an argument which, to some extent, I accept is correct. The joinder provisions in s 84(5) are clearly wide enough to comprehend other indigenous people who allege their interests (including native title interests) are affected by the application. However, s 84(5) is a discretionary power, so ultimately it will be a matter for the Court's discretion whether a person is joined, even if it is the case that she or he can establish her or his interests are affected. The Court must also be satisfied it is in the “interests of justice” for the person to be joined.

52    Although Ms Mullett was granted leave to file written submissions in support of her application, and a pro bono referral to counsel was made for the purposes of assisting her. Although she was given several extensions of time in which to file submissions, all that was filed was an affidavit. Nevertheless, that affidavit sets out quite clearly what her argument is.

53    The basis of her claim that there is a separate, smaller, group of Kurnai people who are the rightful holders of native title for the claim area, is set out in [2]-[6] of her affidavit. She deposes:

2.    The Kurnai people are made up of five clan groups, the Brabuwooloong, Bratowoloong, Brayakoloong, Tatungoloong and Krowathunkooloong Tribes. The Kurnai are the original inhabitants of the Gippsland region.

3.    I am a descendent from the ancestors Larry Johnson (Tatungoloog) and Kitty (Yowalli) (Brabuwooloong). My grandfather, a Kurnai man, was born on the lands and waters of his ancestors, the Bratawooloong people of the Kurnai. My family has maintained a continual cultural connection to the lands and waters the subject of this native title claim for many thousands of years. We maintain this connection according to traditional law and custom.

4.    The lands and waters the subject of this native title claim are the property rights of the Bratawooloong Kurnai people. “Bratawooloong” translates to “man belonging to the South”. All historical and anthropological evidence filed with the Federal Court in this, and other, native title proceedings support the strong association of the Kurnai people with the Wilsons Promontory area of South Gippsland.

5.    Relatives who are not descended from the Kurnai ancestors or those who have married into the Kurnai group do not possess cultural property rights, heritage rights or decision-making powers over the land of the Kurnai.

6.    Under custom and Kurnai law a Kurnai descendent who moves away from customary lands or marries into and resides on a permanent basis in the country of another tribal group in Victoria loses their rights as a Kurnai. Such people are considered to have lost connection with and are no longer one with Kurnai lands. Such people are compelled under Kurnai law to obey the customs and laws of the tribal group and the laws of the country in which they now reside.

54    This is the same basis as the one put to North J in Rose (2010): see [50] and [52] in Rose (2010).

55    Cheryl Drayton and Marion Flo Hood-Finn gave evidence before North J. His Honour found that Ms Drayton’s understanding of Kurnai traditional law and custom differed from that of Ms Mullett, and her understanding of the exclusionary rules was that they were not as strict as Ms Mullett suggested: see [57]. Ms Hood-Finn’s evidence was found by North J to be “blindly supportive” of Ms Mullett: at [60].

56    In her affidavit in support of her current application, Ms Mullett does not devote much time to giving any evidence about why North J’s reasoning about the composition of the Gunaikurnai claim group should not be applied to this application. She simply states (at [7]-[8]):

7.    I understand that in this case North J found that the Kurnai were not separate to the Gunai and that Larry and Kitty Johnson were not the only true native title holders for the claimed area. I, and the Kurnai I represent, do not agree with this decision. Unfortunately we were not in a financial position to obtain anthropological evidence of our own, or be represented by lawyers at the hearing to put our case forward. We also did not have the resources to be able to appeal the decision that was made.

8.    I maintain that the interests of the Kurnai are separate to those of the Gunai, and that we are the only true native title holders for the claimed area.

57    Ms Mullett then describes her difficulties with GLaWAC, a corporation established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) to represent the Gunaikurnai claim group. Consistently with her position about the native title claim itself, Ms Mullett also disputes the authority of this entity to represent native title holders for the present claim area, because it comprises members of the wider claim group, rather than just the Kurnai people she believes are the true native title holders.

58    Ms Mullett deposes (at [19]) that the applicants were not authorised by “all persons of the native title group”. It is not clear whether Ms Mullet is here referring to the authorisation process relating to the original applicants that occurred prior to the filing of the application under s 61, or the authorisation process for the new applicants that occurred on 2 September 2017, or both. In any event, in light of the s 66B application currently before the Court, it is the authorisation process for the new applicants that is material to her joinder application.

59    It is correct that not all persons present at the 2 September 2017 meeting voted in favour of the authorisation motion, as I have set out above. However, the authorisation does not need to be unanimous as Rangiah J pointed out. Further, the decision-making process which was approved was one by majority voting if consensus could not be reached. Compliance with that process is all that was required.

60    As to the individuals constituting the current applicant (including Ms Booth who is proposed as one of the members of the new applicant), Ms Mullett deposes:

29.    Roderick Mullet, Beryl Booth and Barry Kenny all identified as members of the Gunai in the native title claim determined in the Federal Court in 2014. The sworn affidavits of Beryl Booth, Barry Kenny and Ricky Mullet contain Kurnai family stories, timelines and accounts of connection to country. These were used without the consent of the Kurnai family groups or Kurnai Elders which is contrary to our traditional laws and customs.

30.    All of the applicants have no blood lineage to the Kurnai native title group and have not gained the consent or authorisation of the Kurnai Elders or the Kurnai people. The Kurnai Elders have not authorised the application that has been made by the GlaWAC.

61    Again, this is consistent with the position Ms Mullett put to North J.

62    This joinder application falls to be decided on the basis of whether the decision of North J in Rose (2010), and the subsequent consent determination in respect of the first Gunaikurnai claim (in which the composition of the claim group was the same as the composition of the claim group for the Wilson’s Promontory claim) mean it is not in the interests of justice for Ms Mullett to be joined as a respondent party to the Wilson’s Promontory claim. There can be no doubt that, as a person who is accepted to hold native title interests in the Mullett consent determination, but also as a person who contends she is an elder of the “true” (and more limited) group of native title holders, she is a person whose interests are affected by the Wilson’s Promontory application. That is especially so in circumstances where it has been made quite clear to the Court that there is no present intention for the Wilson’s Promontory claim to be pursued through to determination under the Native Title Act, and rather, there is a plan for a settlement to be reached under the TOS Act. As I have noted, both the State and the applicant have not shied away from the fact that this will involve a discontinuance of this application, and may well involve some kind of agreement (whether through an Indigenous Land Use Agreement or otherwise) that all claims to native title under the Native Title Act are surrendered or abandoned. That is a course to which Ms Mullett is vigorously opposed.

63    In previous case management hearings, I had attempted to explain to Ms Mullett the hurdle she faced in relation to North J’s decision. I had said to her:

… North J’s decision in Rose, although it concerned a different area, is all about the very issue that you’re raising in this proceeding — it’s the same issue — and, as far as I can see, the applicant is right to say that the law binds you to that outcome that North J determined … if there’s any evidence or new circumstances or new arguments that you want to rely on to tell the court … that North J’s decision should not be applied, then, you can do that.

MS MULLETT: Thank you.

HER HONOUR: Otherwise I’m going to [be] bound to apply North J’s decision … which is likely to mean your application will be refused. So in a nutshell you’ve got to persuade me about how to get around it, and not just to say that he should have made different findings on the evidence that he heard, because he heard a lot of evidence over a long period of time. He heard from you for a long time, he heard from people who were supporting your claim, he heard from anthropologists. So — and that’s the law … now that he has made that decision.

64    Ms Mullett did not produce anything new, by way of evidence. There are no new documentary evidence or records, no new anthropological evidence, no new lay evidence. Nor did she rely on any new or different arguments. Nor did she seek to explain why North J’s fact finding or reasoning was wrong. Instead, she simply contended she did not agree with his Honour’s decision.

65    Therefore, I turn to consider the reasoning of North J in Rose (2010), and how it applies to the Wilson’s Promontory application. The applicant submits it applies so as to preclude the arguments Ms Mullett seeks to make. The State also notes the decisions of North J in Rose (2010) and Mullett. Neither the applicant nor the State framed their submissions in terms of res judicata or issue estoppel, but it may well be that there is an issue estoppel operating against Ms Mullett making the arguments she does. There is no res judicata because a different claim area is involved.

66    There was a considerable body of expert evidence given by the State before North J in Rose (2010), as well as lay evidence, much of it historical and ethnographic. North J set out the substantive parts of that evidence at [63]-[81]. The applicant Gunaikurnai people also relied on expert evidence, which North J sets out at [83]-[90]. One of the principal witnesses was Dr John Morton. His evidence was critical to North J’s conclusions.

67    At [94], North J set out what he described as the “narrow” question that would resolve the application:

As explained in the overview section of these reasons, in the end the application can be determined by consideration of a quite narrow question. To make good the Kurnai case that the only people constituting the native title holding group are the descendants of Larry Johnson and Kitty Perry Johnson, the Kurnai had to show that none of the living descendants of the 25 ancestral sets, save for the descendants of Larry Johnson and Kitty Perry Johnson, formed part of the potential native title holding group.

68    His Honour then set out the answer, in summary to that narrow question at [95]-[96]:

This question is examined in detail in respect of ancestral sets 2 and 6 (AS2 and AS6). A detailed analysis of these two ancestral sets reveals the fundamental flaws in the Kurnai case. In both instances, the analysis reveals the significant body of evidence drawn upon by the Gunai/Kurnai in establishing the ancestral sets, the lack of expert evidence in favour of the Kurnai propositions and the inconsistent and generally illogical nature of that evidence which the Kurnai did provide. Whilst these reasons undertake a detailed analysis of two ancestral sets, the same inadequacies in the Kurnai case as are seen in those two ancestral sets can be seen in most of the other ancestral sets.

In this analysis, the Kurnai proposition that the laws of the Kurnai in relation to group composition include the requirement that there is a direct bloodline linkage from the asserted descendant is accepted for the purpose of argument. In the case of AS2, the relevant ancestors are Larry Johnson and Kitty Perry Johnson. In relation to AS6, the relevant ancestor is Bungil-Tay-A-Bung. In both cases the Kurnai have failed to establish that the descendants proposed by the Gunai/Kurnai are not members of the potential native holding group.

69    I will not here set out his Honour’s detailed reasoning as to why he reached those conclusions, but it is worth setting out the six propositions his Honour gleaned from Ms Mullett’s arguments and set out at [100] of his reasons, each of which he considered and rejected:

The Kurnai argued the following grounds as the reasons for the exclusion of the living descendants of Billy the Bull as part of the Kurnai claim group:

(1)    Jemmy Bull and Mary were not Kurnai.

(2)    Jemmy and Mary were not Kitty Perry Johnson's parents. Kitty Perry Johnson's parents died in the massacres.

(3)    Kitty Bull and Kitty Perry Johnson are not the same person.

(4)    Billy the Bull is not the brother of Kitty Perry Johnson.

(5)    Billy the Bull was from Yass and was a Ngunnawal warrior who was a member of the Waalgalu community with a traditional name of Murangilly. As he was not born on Kurnai country he is not a Kurnai ancestor.

(6)    Clara Bull was not Kurnai. Clara Bull is not the daughter of Billy the Bull.

70    As to each of these propositions, his Honour evaluates the evidence presented by Ms Mullett, and compares it to the evidence presented by the State and the applicant. By and large, the difference is that Ms Mullett’s evidence often relied only on oral information she claimed to have received from her family, and the State and the applicant had both documentary evidence from which inferences could be drawn (such as birth and death certificates), ethnographic evidence (such as Tindale’s genealogies from Lake Tyers — see [125]) and expert evidence. As his Honour noted (for example at [107] and [109]), there were, in any event, significant gaps in Ms Mullett’s oral information and that of other Kurnai witnesses. As to the latter, his Honour accepted that the expert evidence established the accuracy of the ancestral sets as recorded in the Gurnaikurnai application, including the two most contentious ones.

71    His Honour had some other reasons for dismissing the application. At [186] he said:

The Kurnai argued that certain of the ancestral sets depicted a link to Kurnai ancestors where the linkage was broken by operation of certain exclusionary traditional rules such as the exclusion for living off country, the exclusion for identifying with the Gunai/Kurnai application, or the exclusion of non-Kurnai children adopted by Kurnai parents. The evidence of these rules given by Ms Mullett, Mrs Hood-Finn, and Mrs Lynette Hayes, was inconsistent. Some of the evidence was contradicted by the other Kurnai witnesses, Mrs Rose and Mrs Cheryl Drayton. It is hard to accept that Kurnai are excluded from membership if they support the Gunai/Kurnai application when members of the Kurnai claim group are members of the corporation established to hold native title rights in favour of the Gunai/Kurnai. Dr Morton’s evidence which was based on the wide literature concerning the Gippsland Aboriginal people did not support the exclusionary rules propounded by the witnesses. The evidence of the supposed exclusionary rules was in such disarray that it cannot be relied upon. Consequently, the attempt by the Kurnai to exclude certain ancestors by operation of these alleged rules must fail.

72    And the difference in name between “Gunai” and “Kurnai” could, North J found, be explained by Dr Morton’s evidence:

I accept Dr Morton’s view that the difference between the words “Gunai” and “Kurnai” do not reflect a difference in the grouping of Gippsland Aborigines entitled to a determination of native title. Rather, they stem from the same root which referred to the original Gippsland aboriginal society. The later usages do not provide a basis to exclude the Gunai/Kurnai as the proper people for Gippsland as the Kurnai would contend.

73    At [188]-[189], North J explained the critical difference between family “bloodlines” and a native title holding group:

In one respect the evidence of the Kurnai witnesses was consistent. All claimed that they were linked by a common bloodline to Larry Johnson and Kitty Perry Johnson. It was, however, clear throughout their evidence that the bloodline identifier concerned their family affiliation. It was the answer to the question “who is my family?” This was the sense and the context in which Euphemia Mullett, the main claimed source of this identifier, seems to have referred to bloodline relationships. However, this is not the level at which the relevant native title holding group is ascertained. The family identification is something akin to local governance units referred to by Dr Morton in his evidence about the traditional structure of the society of Gippsland Aborigines. Indeed, he said that conflict between groups within that society was a characteristic of its history. The present day disharmony between the Kurnai and the Gunai/Kurnai is a reflection of that same characteristic of the particular society. But, in Dr Morton’s opinion, the traditional land holding group was at the level of the conglomeration of the types of local group typified by the Kurnai people. I accept his view, based as it was on a considerable body of public records and respected anthropological, ethnographical and historical writings.

Indeed, in many respects the Kurnai case was a case focused on upholding the separate identity of the family of Ms Mullett – the Hood family. The elements which need to be established in an application for a determination of native title were left largely unaddressed. There was thus no cohesive body of evidence which sought to establish a society existing at sovereignty or to establish a present day society with the necessary continuity. There was almost no evidence about laws and customs which linked people with the land and waters. Whilst this application was not the vehicle for the Gunai/Kurnai to prove their entitlement to a determination of native title in favour of the wider Aboriginal society of Gippsland, the evidence, particularly from the voluminous historical and anthropological sources gave a clear indication of a strong basis for such an entitlement.

(emphasis added)

74    While not resting his decision on it, North J also referred to the likely explanation for this schism between Ms Mullett’s family (whom she describes as Kurnai) and the rest of the Gunaikurnai landholding group. The evidence showed that Ms Mullett’s father had freehold land at Jackson’s Track, where a community was established, away from the control of the mission at Lake Tyers and other white authorities. The Aboriginal people who lived at Jackson’s track thus enjoyed a level of independence and freedom that other Aboriginal people in Gippsland did not have. In Ms Mullett’s own words in evidence “he [her father] didn’t rely on the white society”.

75    This evidence led North J to conclude (at [192]):

This community was set apart from the Aborigines living at the mission at Lake Tyers. They were also set apart from the white community. They had an ethos of individuality and self-sufficiency, if not a tinge of contrarianism - characteristics which might be observed in the most vocal advocates of the Kurnai cause among the Kurnai witnesses in this case. This seems a plausible historical explanation for the current disharmony between the Kurnai and the rest of the Gippsland Aboriginal community.

76    North J’s reasoning in Rose (2010) is thorough and compelling. As I have noted no new or different evidence was adduced by Ms Mullett. No detailed criticism was made of his Honour’s findings. No evidence or argument was presented to suggest that, because this application concerns a different (but neighbouring) claim area, the evidence to which his Honour referred did not apply. Ms Mullett has not suggested at any time that there is any difference in the “true” native title holding group for the area determined by consent in October 2010 and the Wilson’s Promontory area which is the subject of this application. Her arguments are the same for both areas; and the group she puts forward as the Kurnai is the same.

77    For that reason, to allow Ms Mullett to be joined as a party would be to permit her to rehearse and call into question all the findings made by North J, by which she is bound. Ms Mullett did not apply for leave to appeal from his Honour’s decision. I accept she and those who supported her were not, at the end of the trial and at judgment, legally represented, but taking into account what North J himself said about Ms Mullet’s skills and organisation, I do not doubt she was capable of applying for leave to appeal, if she elected to do so.

78    In my opinion, the position remains much as North J described it at [55] of Rose (2010):

It was evident to the Court at the end of Ms Mullett’s evidence that she has a passionate conviction that the only proper people for the Gippsland area are those who have a blood linkage to Larry Johnson and Kitty Perry Johnson. She has an impressive knowledge of the history of most of the hundreds of people recorded in the 25 ancestral sets. However, her evidence demonstrated that she was not open to any rational persuasion against her view about who was a Kurnai.

79    It would appear that North J’s reasons have also not persuaded Ms Mullett. However, she must accept, in the absence of the kind of evidence to which I have referred, that his Honour’s findings will continue to bind her and those other members of the Gunaikurnai claim group who supported, and support, her contentions. It is not appropriate she be given a further opportunity to put the same arguments again, even in relation to a different claim area.

Conclusion

80    I consider the findings of North J, given after detailed consideration and with his Honour’s usual thoroughness, are findings that I should follow as a matter of judicial comity unless I am persuaded they are clearly wrong. That is the sense in which I explained to Ms Mullett at the case management hearing that I would be “bound” by his Honour’s findings. As I pointed out to Ms Mullett, new evidence, new documents, different anthropology, could have been sufficient to persuade me there was a range of information not available to North J which could, realistically, result in different findings being made about the composition of the claim group, and that would have been a sufficient basis on which to allow Ms Mullett to be joined as a respondent party. However, no such evidence has been produced.

81    For that reason, I consider it is not in the interests of justice for Ms Mullett to be joined under s 84(5), because there has already been a judicial determination, after a lengthy contested hearing, of the factual claims she wishes to advance, in circumstances where there is no new or different evidence now sought to be relied upon. Ms Mullett should not be joined so she can simply re-litigate the matters already decided by North J.

82    By orders made on 7 August 2017, I ordered the Registrar to undertake the notification process in s 66 of the Act, with some qualifications so that, if the Registrar was satisfied it was unreasonable to do so, the Registrar was not required to give notice to persons falling within s 66(3)(a)(iv) of the Native Title Act. The Registrar was so satisfied and no such notification was given. The notification period ended on 19 December 2017. Orders were made by the Registrar on 21 December 2017 accepting three persons who had given notice as respondent parties in the proceeding in accordance with s 84(3). Ms Mullett did not give notice during the notice period and was not joined as a party pursuant to s 84(3).

83    I do note the submissions of the applicant and the State that Ms Mullett, and those who share her views about the Kurnai, will have an opportunity during the TOS Act process to make submissions about the composition of the claim group, and to make contentions about who are the right people for the country of the Wilson’s Promontory claim. It may be small consolation to Ms Mullett that she will have such an opportunity, but it does give her, and those who share her views, another opportunity to gather new or different evidence to support the contentions they make. Like North J, I emphasise that nothing in my reasoning about Ms Mullett’s contentions concerning the Kurnai is intended to suggest Ms Mullett is anything other than genuine in her beliefs about the connection of her family to the country of the Wilson’s Promontory area, or to the area subject to the consent determination in Mullett. I accept that the conclusion I have reached will be very difficult for Ms Mullett to accept, and to come to terms with. However, she remains a member of the claim group and if the connection of the Gunaikurnai to the country in the Wilson’s Promontory claim is eventually recognised (whether through the Native Title Act or through the TOS Act), that will include recognition of her connection, and her family’s connection to that country, although not in the more exclusive way she presses for.

84    There will be orders under s 66B of the Native Title Act, and an order dismissing Ms Mullett’s application.

Associate:

Dated:    30 January 2018

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