Gunaikurnai People Native Title Claim Group v State of Victoria (No 2) [2018] FCA 573

FEDERAL COURT OF AUSTRALIA

Gunaikurnai People Native Title Claim Group v State of Victoria (No 2)[2018] FCA 573 File number: VID 737 of 2014

Judge: MORTIMER J

Date of judgment: 9 April 2018

Date of publication of reasons: 26 April 2018

Catchwords: NATIVE TITLE – application for joinder under s 84(5) – whether prospective party a person whose interests are affected – whether in the interests of justice for prospective party to be joined – application for joinder granted

Legislation: Native Title Act 1993 (Cth), ss 13, 61, 84 Traditional Owner Settlement Act 2010 (Vic)

Cases cited: Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932 Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578

Date of hearing: 9 April 2018

Registry: Victoria

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 23

Solicitor for the Applicant: Ms J O'Connor of First Nations Legal and Research Services

Solicitor for the First Respondent: Ms M Scalzo of the Victorian Government Solicitor's Office

Solicitor for the Prospective Respondent: Mr S Sexton of First Nations Legal and Research Services

Solicitor for the Fourth Respondent: Mr J Briggs of Jason A Briggs Lawyers

ORDERS VID 737 of 2014

BETWEEN: GUNAIKURNAI PEOPLE NATIVE TITLE CLAIM GROUP and others named in the schedule

Applicant AND: STATE OF VICTORIA and others named in the schedule First Respondent

JUDGE: JUSTICE MORTIMER DATE OF ORDER: 9 April 2018

THE COURT ORDERS THAT:

1. Daniel James Turnbull be joined as a respondent party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth). 2. Mr Turnbull and Ms Briggs and their legal representatives are 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. 3. Orders 2 to 5 of the Orders dated 30 January 2018 are vacated. 4. On or before 4 pm on 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. 5. On or before 4 pm on 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. 6. On or before 4 pm on 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. 7. On or before 4 pm on 20 July 2018, the parties are to file a joint progress report and any proposed orders. 8. The proceeding is adjourned to a case management hearing on at 10.15 am on 1 August 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J: 1 On 9 April 2018 orders were made joining Daniel James Turnbull as a respondent to this proceeding, pursuant to s 84(5) of the Native Title Act 1993 (Cth). I informed the parties the Court would give reasons at a later stage, but as soon as practicable. These are the Court's reasons. 2 Mr Turnbull's joinder application was made on 28 February 2018 and is supported by two affidavits from Mr Turnbull himself and an affidavit of Dr Timothy Pilbrow, affirmed on 23 March 2018. Dr Pilbrow is an anthropologist employed by First Nations Legal and Research Services, formally Native Title Services Victoria. 3 Mr Turnbull deposes that he is the Chief Executive Officer of the Bunurong Land Council Aboriginal Corporation, and is a Bunurong person who asserts that he and other Bunurong people have native title interests in and around the area claimed by the Gunaikurnai in the current proceeding. 4 Mr Turnbull is represented by Mr Sexton, a legal practitioner employed by First Nations Legal and Research Services. First Nations Legal is also the organisation providing legal services to the Gunaikurnai people in this proceeding. However, I am satisfied that currently there appear to be appropriate arrangements in place within First Nations Legal to maintain a separation between Mr Turnbull's legal representation and the Gunaikurnai representation. 5 Mr Turnbull deposes 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 Act. 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. It is regrettable that Mr Turnbull did not take advantage of the rights given to him under the Native Title Act to join this proceeding: if he had done so it would have removed the need for the present application. 6 The Gunaikurnai people do not oppose the joinder of Mr Turnbull, nor does the State. The two other respondents who gave notice under s 84(3) – the Commonwealth and Telstra – have not expressed any opposition to his joinder. 7 The only party who opposes Mr Turnbull's joinder is Ms Briggs. Ms Briggs gave notice under s 84(3) in accordance with the Act, and was joined as an Indigenous respondent to this proceeding. Ms Briggs has filed an affidavit opposing the joinder of Mr Turnbull. In that affidavit she states that she represents the Boon Wurrung People. Ms Briggs states that she is 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. In her affidavit, Ms Briggs describes in some detail how she acquired knowledge of traditional law and custom from family members, how she passes that knowledge on and how she has been acknowledged as a traditional owner in various capacities within Victoria. Ms Briggs describes the establishment of the Boon Wurrung Foundation Limited as an organisation established to "protect, maintain and promote Boon Wurrung culture and heritage". She describes a number of circumstances, in which she has been recognised as a traditional owner and elder and a custodian of Boon Wurrung culture, both at state and federal level. In the latter parts of her affidavit she describes several incidents over the years between her and the Boon Wurrung Foundation and the Bunurong Land Council Aboriginal Corporation. These incidents include disputes about individuals that may be identified by the Bunurong Land Council as appropriate apical ancestors. 8 As Dr Pilbrow's affidavit notes, the different names adopted by Ms Briggs and those supporting her, and Mr Turnbull and those supporting him, to describe their clans or affiliations can also be found in the historic record concerning this group. It appears from Dr Pilbrow's affidavit however that, aside from one matter to which I now refer, those who identify as Bunurong or Boon Wurrung may be one people. A core question emerging from the affidavits of Ms Briggs and Dr Pilbrow, is the identification of appropriate apical ancestors for this group (or groups). 9 In short, Ms Briggs contends for a narrower group of apical ancestors than the Bunurong Land Council (with Mr Turnbull as its Chief Executive Officer) is prepared to recognise, certainly by way of its membership rules, to which Dr Pilbrow deposes in his affidavit. At [9] of his affidavit, Dr Pilbrow deposes 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 It is apparent from Ms Briggs' affidavit that she disputes the status of Eliza Nowan (who she identifies as Eliza Nohen) and Jane Foster as Boon Wurrung (or Bunurong) People. 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. The Court is simply not in a position to make any assessment of the composition of the Bunurong/Boon Wurrung group, nor the appropriate description of the group's apical ancestors, nor the appropriate description of the country to which the Bunurong/Boon Wurrung People claim a connection. Nor can the Court make any decision about Dr Pilbrow's tentative suggestion that people who identify with either of these groups may be one people. All those matters remain to be resolved through this proceeding, or also through processes under the Victorian Traditional Owner Settlement Act 2010 (Vic). 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. On the material before the Court that he claims, with a sufficient evidentiary basis for the purposes of this application, that his interests may be affected by a determination in favour of the Gunaikurnai, because he is a member of a different group (the Bunurong) who also claim native title interests in and around the Wilson's Promontory area, being the area covered by the Gunaikurnai application. 13 Contrary to the submissions made on behalf of Ms Briggs, Mr Turnbull's material is not vague or uncertain. He makes clear contentions about his identification as a Bunurong man (including identifying an apical ancestor), and his position as Chief Executive Officer of the Bunurung Land Council is not seriously disputed. The Bunuorung Land Council is an organisation recognised for some purposes as representing Bunurong People, although I accept "official" recognition as between the Bunurong Land Council and the Boon Wurrung Foundation is a fraught and contentious issue, and each (it would appear) has been recognised by external bodies for some purposes. I do not refer to his position as Chief Executive Officer because any representative capacity he has is relevant to this proceeding: rather, to indicate this is further evidence of his Bunurong identity. 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. His Honour refers to a series of decisions where that proposition has been affirmed: Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578, per Kiefel J (as she then was) at [6]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942, per Reeves J at [8] to [9]; Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310, per Greenwood J at [16]; Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282, per Reeves J at [31] and Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932, per Collier J, at [10]-[13]. 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. That is, they join this proceeding so they can "defensively" assert native title rights and interests, to protect those rights and interests from erosion or dilution by reason of the Gunaikurnai claim: see Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19], per Reeves J, and the cases to which his Honour there refers. 16 On the material before me I am satisfied that Mr Turnbull genuinely wishes to protect what he contends are his native title rights and interests in and around Wilson's Promontory, which is the subject of the Gunaikurnai claim. This is also what Ms Briggs seeks to do, equally genuinely, on the material before me. Both individuals have provided evidence in their affidavits seeking to substantiate their personal claims. Of course it is well established in the authorities that that is the only capacity in which they may be joined and as Reeves J sets out at [19] of Turrbal, a person cannot be joined as a respondent party in order to circumvent the requirements of ss 13 and 61 of the Act, which prescribe the only method by which a claim to a positive determination of native title, on behalf of a group can be made. 17 To that extent, the debate between Ms Briggs and Mr Turnbull in their affidavit material about how Bunurong/Boon Wurrung should be identified (including through which apical ancestors), who they each represent, and whether they are "entitled" to represent others, is beside the point in the joinder application. At this point in the proceeding, the Court is concerned about their position as individuals. At that level, Mr Turnbull's affidavit material clearly establishes his allegations – about being a Bunurong person who has connections in accordance with traditional law and custom to the area in and around Wilson's Promontory as Bunurong country – are arguable. 18 In addition, Dr Pilbrow's affidavit material essentially supports the identification made by Mr Turnbull. Dr Pilbrow's affidavit is also consistent, insofar as it goes, with Ms Briggs' identification as a Boon Wurrung person. Dr Pilbrow's affidavit clearly identifies that the area around Wilson's Promontory is an area over which Bunurong/Boon Wurrung people have made claims of traditional connection. Dr Pilbrow frankly acknowledges in his affidavit material that there is considerable work to do to understand the composition of the Bunurong/Boon Wurrung people, and to understand their connection to particular parts of Victoria. His evidence is that he is well under way with a research project on these matters, that he and other anthropologists from First Nations Legal will be seeking engagement from any person who identifies as a traditional owner or native title holder of Bunurong/Boon Wurrung country, not limited to people affiliated with either the Bunurong Land Council or the Boon Wurrung Foundation. Dr Pilbrow has stated in his affidavit that he is confident that this research will be completed with reports drafted as planned by 31 May 2018. 19 While those research plans outlined by Dr Pilbrow do not go to the joinder application in terms, they are nevertheless evidence of an independent view taken by First Nations Legal that people who identify as Bunurong or Boon Wurrung are people who may well have native title rights and interests in the Gunaikurnai claim area. 20 I note also that the State positively supports the joinder of Mr Turnbull. 21 It is for these reasons that I 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. 22 In the subsequent programming orders that were made, together with the joinder order, the Court made a referral to Registrar Stride for a case management conference to occur between Ms Briggs and Mr Turnbull and their respective legal representatives, so that the structure, content and timing of Dr Pilbrow's report could be discussed between them, to ensure that all perspectives were properly ventilated and considered by Dr Pilbrow in the report which he is to produce. 23 Notwithstanding the evident levels of conflict between Ms Briggs and Mr Turnbull, and (I infer) between those who support each of them, 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. The purpose of making the referral to Registrar Stride was to ensure not only that the Court's timetable for the next steps in this proceeding can be complied with, but also that no one is left out of Dr Pilbrow's research process. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate: Dated: 26 April 2018

SCHEDULE OF PARTIES VID 737 of 2014 Applicant BERYL OLIVE BOOTH Applicant COLLON MULLETT Applicant RUSSELL MULLETT Applicant WAYNE THORPE Prospective Respondent DANIEL JAMES TURNBULL Second Respondent THE COMMONWEALTH OF AUSTRALIA Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent CAROLYN MARIA BRIGGS