In this matter the Court ordered that:
Daniel James Turnbull be joined as a respondent party to the proceedings 1.pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA).
Mr Turnbull and Ms Briggs and their legal representatives were directed to participate in a confidential case management conference before Registrar Stride at a date to be fixed by the Registrar to address the structure, content and timing of Dr Pilbrow’s report.
Orders 2 to 5 of the Orders dated 30 January 2018 were vacated.
On or before 1 June 2018, Ms Carolyn Briggs and Mr Daniel James Turnbull are to file and serve a response to the applicant’s statement of issues, facts and contentions.
On or before 29 June 2018, the State is to file and serve a response to the statement of issues, facts and contentions filed by the applicant and the responses of Ms Briggs and Mr Turnbull.
On or before 13 July 2018, the applicant and Telstra and the Commonwealth are to file and serve any further response to the documents filed by the State, Ms Briggs and Mr Turnbull.
On or before 20 July 2018, the parties are to file a joint progress report and any proposed orders.
The proceeding was adjourned to a case management hearing on 1 August.
[2] Mr Turnbull as the Chief Executive Officer of the Bunorong Land Council Aboriginal Corporation made an application for joinder in February 2018. His application was supported by his affidavit and the affidavit of Dr Tim Pilbrow, an anthropologist employed by First Nations Legal and Research Services (FNLRS), formally Native Title Services Victoria. [4] Mr Turnbull was represented by Mr Sexton, a legal practitioner employed by FNLRS. FNLRS is also the organisation providing legal services to the Gunaikurnai people in this proceeding. However, the Court was satisfied that currently there appeared to be appropriate arrangements in place within the organisation to maintain a separation between Mr Turnbull’s legal representation and the Gunaikurnai representation.
[5] Mr Turnbull deposed that he was aware of the notification of the Gunaikurnai claim and decided not to give notice under s 84(3)(b) and therefore did not become a respondent to the proceeding pursuant to s 84(3) of the NTA. During the hearing of the interlocutory application, Mr Sexton, appearing on behalf of Mr Turnbull,accepted it was a mistake on Mr Turnbull’s part not to give notice. Mortimer J observed that it was regrettable that Mr Turnbull did not take advantage of the rights given to him under the NTA to join the proceeding to avoid the need for the present application. [6] The Gunaikurnai people did not oppose the joinder of Mr Turnbull, nor did the State. The two other respondents who gave notice under s 84(3) – the Commonwealth and Telstra – had not expressed any opposition to his joinder.
[7] The only party who opposed Mr Turnbull’s joinder was Ms Briggs. Ms Briggs was joined as an Indigenous respondent to this proceeding. In an affidavit, Ms Briggs stated that she represents the Boon Wurrung People. Ms Briggs stated that she was acknowledged and recognised throughout Victoria as an elder of the Boon Wurrung People and her ancestral connections can be traced back to an apical ancestor in the Boon Wurrung clan, Louisa Briggs, who died in 1925. [8] A core question emerging from the affidavits of Ms Briggs and Dr Pilbrow was the identification of appropriate apical ancestors for the group (or groups). In short, Ms Briggs contended for a narrower group of apical ancestors than the Bunurong Land Council (with Mr Turnbull as its Chief Executive Officer) is prepared to recognise. [10] At paragraph [9] of his affidavit, Dr Pilbrow deposed to the Bunurong Land Councils’ membership rules, one of which is that a person must be an Aboriginal person who is a descendent of one of the five known Bunurong Apical Ancestors (Elizabeth Maynard, Eliza Nowan, Jane Foster, Marjorie Munro and Louisa Briggs). [10] Ms Briggsdisputes the status of Eliza Nowan (who she identifies as Eliza Nohen) and Jane Foster as Boon Wurrung (or Bunurong) People.
Mortimer J: [11] ‘As I stated at the end of the hearing of the interlocutory application, the Court’s decision on the joinder of Mr Turnbull does not reflect any view held by the Court in relation to the claims of Ms Briggs and Mr Turnbull, and who is right and who is wrong.’ [12] ‘There is, however, no doubt that it is appropriate for Mr Turnbull to be joined as an Indigenous respondent to this proceeding. He would have had, on the material before the Court, a right to be a party under s 84(3) had he given the appropriate notification.’
[14] In Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 Barker J emphasised (at [33]) that on a joinder application it is not for the Court to decide whether the allegations made by the joinder applicant are finally made out, but rather whether they are arguable. [15] The purpose of Mr Turnbull being joined as an Indigenous respondent to this proceeding is the same purpose as the purpose for Ms Briggs being an Indigenous respondent. Both of them seek to defend the native title interests they say they have in the claim area that is the subject of the Gunaikurnai application.
[19] The State supported the joinder of Mr Turnbull and the Gunaikurnai applicants did not oppose the joinder and for those reasons [21] Mortimer was ‘satisfied first, that Mr Turnbull’s interests may be affected by a determination in the Gunaikurnai proceeding and second, that it was in the interests of justice for him to be joined as a party.’
Mortimer J noted that ‘it is important that Dr Pilbrow’s work is informed by material from, and perspectives of, each of them, together with the information and perspectives that can be provided by any other Bunurong or Boon Wurrung people. Without cooperative and comprehensive input from all Boon Wurrung and Bunurong people, Dr Pilbrow’s report might be less effective than it could be. Her Honour referred the matter to case management before Registrar Stride to (1) ensure that both the Court’s timetable for the next steps in the proceeding are complied with and (2) to further ensure that no one was left out of Dr Pilbrow’s research process.