Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144 (22 October 2010)

Between: Albert Mullett, Sandra Middleton Patten, Graham (Bootsie) Thorpe and Olive Tregonning on behalf of the Gunai/Kurnai People (APPLICANTS) and

State of Victoria and Others (as per list at Attachment A of the judgment) (RESPONDENTS)

Gwen Atkinson, Sheila Baksh, Beryl Booth, Margaret Donnelly, Shirley Foster, Rhoda Green, Julie Mongta, Sandra Patten, Lorraine Sellings, Jamie Thomas, Lynette Walsh, Rita Watkins And Richard Young on behalf of the Gunai/Kurnai People (APPLICANTS) and

State of Victoria and Others (as per list at Attachment A of the judgment) (RESPONDENTS)

Judge: North J

Where made: Knobs Reserve, Stratford

Determination:
Native title exists in parts of the determination area. It consists in non-exclusive native title rights and interests.

Native title is held by members of the Gunai/Kurnai People. This includes those people who identify as Gunai, Kurnai or Gunai Kurnai or descendants of their ancestors.

Non-exclusive native title rights and interests that exist over land and water in the determination area include:
- rights of access
- rights to use and enjoy the land
- rights to take resources from the land for non-commercial purposes
- rights to protect and maintain sites of importance within the determination area
- rights to engage in certain activities on the land (including camping, cultural activities, rituals, ceremonies, meetings, gatherings, and teaching about the sites of significance within the determination area).

These rights do not confer exclusive rights of possession, use and enjoyment of the land or waters.

Native title does not exist in minerals, petroleum or groundwater.

Non-native title rights and interests that exist within the determination area include: 

• Public rights of access to and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches and public places under the Land Titles Validation Act 1994 (Vic);
• rights of access for employees and agents of the Commonwealth;
• rights of the Crown over public works and facilities;
• various rights and interests of Telstra Corporation Limited;
• public fishing rights
  - public navigation rights
  - rights of innocent passage through the territorial seas;
• various pipeline licences;
• various licences, permits, statutory fishing rights and statutory rights concerning fishing and the exploitation of living resources in the determination area; and
• valid rights granted to persons by the Crown or conferred on persons via statute.
  

The Gunai/Kurnai Land and Waters Aboriginal Corporation is the prescribed body corporate nominated to hold the native title on trust for the native title claimants/holders

Background

The determination concerns two related native title applications made by the Gunai/Kurnai people.

The first application (VID 6007/98) was filed on 7 April 1998 and concerned a claim over approximately 8,000 parcels of land in the Gippsland area.

The second application (VID 482/09) was filed on 29 June 2009 and sought to include some additional parcels of land to the original claim.

The progress of the applications was originally stalled due to disagreement within the claimant group. This disagreement was about whether certain members of the claim group (representatives of the Kurnai People) held exclusive native title rights over the agreement area (to the exclusion of other members of the claimant group). This claim was eventually rejected in Rose on behalf of the Kurnai Clans v State of Victoria & Others [2010] FCA 460.

Agreement in principle between the Gunai/Kurnai people and the State of Victoria was reached in April 2010. Therafter, the State consulted with other non-State respondents and the Commonwealth.

Details of the judgment

There are a number of respondents in the dispute who have not been listed for the purpose of brevity. The full list of respondents is contained in Attachment A of the determination, available via the URL link above. These respondents represent the following various interests:
- local government;
- mining;
- farming;
- commercial fishing;
- forestry;
- water;
- petroleum;
- telecommunications;
- public access;
- fishing; and
- recreational land use.

The Court was satisfied that the State of Victoria had taken steps to satisfy itself of the credibility of the Gunai/Kurnai application.

The Court noted that the State had relied on legal, historical and anthropological advice before reaching an agreement. The State's investigation included a tenure analysis of over 8,000 land parcels the subject of the claim.

The Court recognised that advisers to all parties to the dispute acted 'with a great spirit of cooperation and mutual respect'.

The Court further acknowledged that the determination could not have been made without the Victorian Government's establishment of the new framework for settlement of native title disputes under the Traditional Owner Settlement Act 2010 (Vic). At the time that this Act came into operation, however, negotiations between the parties were substantially complete.

Ancillary agreement

An ancillary agreement reached by the parties also provides for:

• funding for the Gunai/Kurnai People to manage their affairs;
• the transfer of certain national parks and reserves to 'Aboriginal title' for their joint management between the Gunai/Kurnai People and the Victorian government;
• undertakings to develop protocols for recognition of the Gunai/Kurnai people and the strengthening Gunai/Kurnai culture; and
• the future transfer of freehold interests in a limited number of land parcels to the Gunai/Kurnai people.
  

Both the Consent Determination and the Gunaikurnai Recognition and Settlement Agreement (signed after the determination was made) cover the same area. The area stretches from west Gippsland near Warragul, east to the Snowy River, and north to the Great Dividing Range.

The agreement provides for the transfer of 10 national parks and reserves under 'Aboriginal title' to the Gunai/Kurnai People for joint management with the Victorian Government. These include Corringle Foreshore Reserve, the Knob Reserve Stratford, Tarra Bulga National Park, Mitchell River National Parks, Lakes National Park, New Guinea Cave, Lake Tylers Catchment Area, Buchan Caves Reserve, Gippsland Lakes Reserve, and Gippsland Lakes Coastal Park. The management of these parks and reserves will be administered by a Traditional Owner Land Management Board, which comprises the Gunai/Kurnai People, the State Government, and members of the local community.

The agreement also provides for protocols to be established to strengthen Gunai/Kurnai culture and recognition of the Gunai/Kurnai People. Under the agreement, funding is to be provided to help the Gunai/Kurnai People manage their affairs.

Attorney General Rob Hulls estimates that the settlement package is worth $12 million, of which the Victorian Government has contributed $6 million.

This was the first agreement to be negotiated under the new framework established pursuant to the Traditional Owner Settlement Act 2010 (Vic). It has been predicted that this type of agreement will be replicated in future negotiations with the Government of Victoria. The agreement has been referred to as a 'benchmark' in its provision for both native title and ancillary agreements relating to funding.

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