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

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.

Gunaikurnai People Native Title Claim Group v State of Victoria

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