Mortimer J
In this case, Mortimer J ordered: (1) the application under s 66B of the Native Title Act 1993 (Cth) (NTA) to change the constitution of the applicant be granted; (2) the applicant in the GunaiKurnai People native title determination application VID737/2014, jointly comprising Beryl Booth, Roderick Mullett and Barry Kenny be replaced with Beryl Booth, Collon Mullett, Russell Mullett and Wayne Thorpe; and (3) that the application by Pauline Mullett to be joined as a respondent under s 84(5) of the NTA be dismissed.
[1]-[7] The two applications relate to a claim yet to be settled over land and waters that include Wilson’s Promontory National Park in south eastern Victoria. The principal respondent is the State of Victoria.
A previous GunaiKurnai consent determination made over an area north-east of the current claim area was ordered in Mullett on behalf of the GunaiKurnai People v State of Victoria [2010] FCA 1144. Shortly before then, the Court heard lengthy arguments in relation to the correctness of the composition of the GunaiKurnai claim group when the Kurnai unsuccessfully sought a separate native title determination in Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460 (‘Rose’). Ms Mullett, the applicant for joinder in this proceeding, had been the lead advocate for recognition of the Kurnai as a group separate from the Gunai in Rose. After the 2010 consent determination, the GunaiKurnai claim group combined the names ‘Gunai’ and ‘Kurnai’ in an effort to remove perceptions of difference. In the case at hand, Mortimer J found no reason to depart from the basis of North J’s decision in Rose that the Kurnai formed part of a larger Gunai/Kurnai society.
The section 66B application
The GunaiKurnai People claim group filed the s 66B NTA application to change the constitution of the applicant after the Court raised the issue of whether the Prescribed Body Corporate, the GunaiKurnai Land and Waters Aboriginal Corporation RNTBC (GLaWAC), was properly constituted. GLaWAC had earlier filed progress reports with the Court indicating that its office holders had been replaced with different individuals.
In holding that the application complied with s 66B of the NTA, Mortimer J followed the principles recently set out by Rangiah J in Gomeroi People v Attorney General of New South Wales [2017] FCA 14641 at [40]- [54].
[28]- [43] Her Honour was satisfied that:
the GunaiKurnai claim group had adopted a particular decision-making process, at a properly conducted meeting held on 2 September 2017 for the purpose of making the s 66B NTA application, in accordance with s 251B(b) of the NTA;
the decisions taken at the meeting were taken in accordance with the process adopted;
the claim group identified themselves as the descendants of apical ancestors being the 25 individuals and couples set out in a resolution of the meeting, and that this claim group composition is the same as that accepted by North J for the 2010 consent determination;
the claim group resolved at the meeting to replace the three individuals who constitute the applicant with the four individuals who constitute the proposed applicant, so that they be authorised to act, consistently with s 62A of the NTA, in all proceedings.
The joinder application
[44] – [62] The issue of whether the applicant, Ms Mullett, should be joined as a respondent party to the current native title application turned on whether her position that the Kurnai was a group separate from the GunaiKurnai could be sustained. Mortimer J ultimately determined that joinder was not available to simply re-litigate matters already decided by North J and his Honour’s extensive written reasons for judgment in Rose.
The Court noted at [62] that the applicant, being a member of the GunaiKurnai claim group is undoubtedly a person whose interests are affected by the current application.
[76] However, the Court found no sufficient cause had been demonstrated to not follow the decision of North J in Rose, wherein the Court had considered the issue of the composition of the GunaiKurnai claim group in great detail. Ms Mullet’s application for joinder was made on the same basis as the arguments made in Rose. [77] The Court noted that Ms Mullet did not apply for leave to appeal from North J’s decision in in Rose.
Mortimer J also noted at [62], that it was made clear to the Court that the GunaiKurnai claim group’s intention is to reach settlement of the current claim under the Traditional Owner Settlement Act 2010 (Vic) (TOS Act), a course that the applicant for joinder opposed. The Court concluded by noting 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 current claim area.
Her Honour stated at [80]:
I consider the findings of North J, given after some 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 that 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.
[84] The Court held that it was not in the interests of justice to grant the joinder application under s 84(5) of the NTA. On that basis orders were made pursuant to s 66B NTA and a further order was made dismissing Ms Mullet’s application.
1 See What’s New in Native Title December 2017.