Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1514 | Case summary

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. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

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

Mullett on behalf of the Gunai/Kurnai People v State of Victoria

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