Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western... [2022] FCA 65 | Case summary

Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western... [2022] FCA 65 | Case summary | Zoe

[17]

BROMBERG J: 1 The applicant (current applicant) represents a claim group comprised of the descendants of three apical ancestors, namely Nellie Champion, Kadee and Warada (Marlinyu Ghoorlie claim group). By this interlocutory application, orders are sought, first, that the current applicant be replaced as the applicant by a differently composed group of persons (replacement applicant) and, second, that the replacement applicant have leave to file an amended application in the form of "Annexure SCB-14" to the second affidavit of Simon Charles Blackshield, the solicitor for the replacement applicant. The amendments sought to be made to the native title determination application include the expansion of the current claim group so that, amongst other changes, it includes as claimants the descendants of Lucy Sambo (Sambo descendants). 2 The orders sought by the replacement applicant are supported by the first respondent (the State) but opposed by two other respondents, namely Ms Elizabeth Sambo and Ms Sharon Dimer. 3 A large number of specific issues have been raised which I will shortly address. First, I should clarify, particularly for the self-represented respondents, that the present application for interlocutory orders is not the occasion for the Court to determine the issues that seem to underlie much of the opposition expressed by those respondents who oppose their application. 4 In the case of Ms Sambo, who is one of a number of descendants of Lucy Sambo as well as a descendant of Nellie Champion, her fundamental opposition seems to be based on her contention that the descendants of Nellie Champion, Kadee and Warada do not hold rights and interests in the eastern part of the area claimed in the originating application. Although the Marlinyu Ghoorlie claim group as proposed by the amendments sought will include the descendants of Lucy Sambo, Ms Sambo's position is that it is the 'Sambo family' and not the 'Champion family' who are the right people for the eastern part of the claim area. In the case of Ms Dimer, the basis for her opposition seems to be that the Kalaako people hold native title rights in the claim area and that the Marlinyu Ghoorlie claim group are not Kalaako people. 5 Whether there is any merit in those opposing positions is not a matter I either can or should determine in the course of this interlocutory application. The central issue raised by the interlocutory application brought by the replacement applicant, and which I will determine, is whether the replacement applicant should be permitted to make and prosecute its amended claim for a determination of native title. Whether there is any merit in the amended claim is to be determined at a later occasion.

[18]

The evidence and the resolutions in contest 6 The replacement applicant contended that authorisation of an amendment to expand the current Marlinyu Ghoorlie claim group (current claim group) occurred at a meeting held on the morning of 16 August 2021 in Coolgardie (morning meeting) and that a second authorisation of the expanded claim group (expanded claim group) as well as the authorisation of the replacement applicant to make and deal with an amended native title claim was given by the expanded claim group at a meeting held on the afternoon of 16 August 2021 in Coolgardie (afternoon meeting). In each case, the in-person meeting held in Coolgardie was also attended remotely by persons attending a meeting in Ceduna, South Australia. A 'follow-on' meeting also occurred on 17 August 2021 but is of no consequence to this application. 7 Both Ms Sambo and Ms Dimer contended that the resolutions made at these meetings, and relied upon by the replacement applicant in support of the orders it seeks, were not validly authorised for reasons to which I will return. 8 To some extent, there is an evidentiary contest as to what occurred at the meetings held on 16 August 2021, but much of what is in contest is unnecessary to resolve. I accept as accurate the evidence relied upon by the replacement applicant in relation to the meetings, including the steps taken to give notice of those meetings. The evidence of the morning meeting is adequately summarised in the written submissions filed by the replacement applicant as follows and should be read with any additional findings made below (emphasis in original and citations omitted): (a) Prior to the morning meeting, Mr Blackshield as the applicant's solicitor acting on the instructions of the applicant, gave notice of the meeting (and of the afternoon meeting, including the follow-on meeting on 17 August 2021) by: (i) Placing separate meeting notices for the morning and for the afternoon the (sic) meetings in the 17 July 2021 edition of the Kalgoorlie Miner and in the 28 July 2021 edition of the Koori Mail. (ii) On 15 July 2021, emailing a copy of the meeting notices together with a covering explanatory notice to Lucy Sambo descendant Ms Tessa Smith. (iii) On 16 July 2021, emailing a copy of the meeting notices together with a covering explanatory notice to Warada and Kadee descendant Mr Trevor Donaldson and to Lucy Sambo descendant Elizabeth Sambo (each an Indigenous respondent to the Marlinyu Ghoorlie claim). (iv) On 3 August 2021, emailing a copy of the meeting notices for the Ceduna meeting … to Ms Sambo, Ms Smith and Mr Donaldson. (b) Prior to the morning meeting, on 20 July 2021, Mr Mark Champion, Interim Coordinator for the Marlinyu Ghoorlie claim group, arranged for copies of the meeting notices together with a covering explanatory notice to be posted to 236 members of the claim group. On 3 August 2021, he arranged for copies of notices in relation to the Ceduna location to be posted to the same 236 members of the claim group. (c) The meeting notices advised that "[t]he main purpose of the meeting is to consider authorising a new claim group description in the following terms ...". The notices set out the full terms of the proposed amended claim group description that included the names of the 3 existing apical ancestors (Nellie Champion, Kadee and Warada), as well as the proposed new apical ancestor Lucy [Sambo]. The notices also stated that "[t]he current claim group for the Marlinyu Ghoorlie claim is limited to the descendants of Nellie Champion, Kadee and Warada." (d) In the covering explanatory notice sent to 236 members of the claim group [described at (b) above] it was stated that: "There are officially two separate meetings: 1. a meeting of the members of the current Marlinyu Ghoorlie Claim Group (the descendants of Nellie Champion, Kadee and Warada) on the morning of Monday 16 August; and 2. a meeting of a wider group on the afternoon of 16 August and the whole day on 17 August, being a group which also includes descendants of Lucy Samba who are not also descendants of one or more current claim group ancestors. … As far as possible, the two meetings will be run as if they were a single meeting; this is why descendants of Lucy Sambo who are not also descendants of one or more current claim group ancestors are encouraged to attend the first meeting as non-voting observers, to try to avoid the need to repeat information and discussion on the afternoon of 16 August. This is also why TA [travel assistance] info has only been provided on the notice for the second meeting. (To avoid any doubt, Lucy Sambo descendants who are already part of the current claim group because they are also descended from Nellie Champion or Warada and Kadee are entitled to fully participate in both meetings.)." (e) At the meeting in Coolgardie, two Marlinyu Ghoorlie claim group members (Ms Samantha Tucker and Ms Dorothy Watene) were engaged to run the registration process. Ms Tucker and Ms Watene's function was to record attendees' names, either as voting participants or as observers, and to give blue wristbands to eligible voters. Two staff members from Native Title Services Goldfields Limited were also on the registration desk, mainly to deal with claims for travel assistance but also to provide some assistance with registration. (f) In excess of 150 people registered to attend the meeting, including as observers. Of these, about 125 people registered as voting participants, and about 26 registered as observers. The persons who registered to attend as voting participants were descendants of Nellie Champion (some of whom may have also been descended from Lucy Sambo), or, to a lesser extent, descendants of Warada and Kadee. Of the approximately 125 people who registered to vote, it appears that approximately 6 should not have, on the basis that they were spouses of claim group members but not themselves claim group members. (g) Mr Darryl Pearce was the facilitator of the meeting, which commenced at 10:00am. (h) Following: (sic) a vote on whether descendants of Flossie Narrier could participate in the meeting … an explanation of the need for two separate meetings and legal advice provided by Mr Blackshield; and, discussion of whether the group had a traditional decision-making process, the voting participants resolved that decisions at the meeting should be made by majority vote on a show of hands. (i) The group then proceeded to vote on a resolution to change the claim group description as per the meeting notices. The terms of the proposed resolution were projected onto a video screen and read through and explained by Mr Blackshield. The resolution was forwarded and seconded by members of the claim group. One person, possibly Ms Smith (a descendant of Lucy Sambo) spoke out against the resolution. Following Ms Smith's statement, the registered participants voted on the resolution and it was carried with 84 votes in favour, no votes against and no formal abstentions. (j) The meeting was closed by Mr Pearce at 12:17pm. 9 As to the afternoon meeting, and subject to any additional findings which I later record, the evidence which I accept is also adequately summarised in the written submissions filed by the replacement applicant as follows (citations omitted): (a) Prior to the afternoon meeting, Mr Blackshield as the current applicant's solicitor acting on the instructions of the current applicant, gave notice of the afternoon meeting in the same way as he did for the morning meeting [see above]. (b) Prior to the afternoon meeting, on 20 July 2021, Mr Champion arranged for copies of the meeting notices together with a covering explanatory notice to be posted to 236 members of the claim group, in the same way as he did for the morning meeting [see above]. (c) The meeting notices advised that the meeting had 3 purposes: (i) To "[c]onsider authorising a new claim group description for the Marlinyu Ghoorlie native title claim WAD 647 of 2017 in the Federal Court of Australia (see map attached) in the following terms ...". The full terms of the proposed new claim group description were set out. (ii) To "[a]uthoris[e] persons to be (or to continue to be) the Applicant for the Marlinyu Ghoorlie Claim, to make the application and to deal with matters arising in relation to it." The notice set out the current members of the applicant. (iii) Deciding what conditions (if any) to place on the authority of the applicant. (d) The covering explanatory notice for the afternoon meeting was the same as that for the morning meeting [see above]. (e) The registration process was the same as for the morning meeting [see above], except there were no observers for the afternoon meeting. (f) In excess of 160 people registered to attend the meeting in Coolgardie and 52 people registered to attend the meeting from the Ceduna venue. The persons who registered to attend were descendants of: Nellie Champion (some of whom may have also been descended from Lucy Sambo), who wrote "N" or "Nellie" on the registration sheets; of Warada and Kadee, who wrote "W" or "Kadee" (or a combination thereof); and of Lucy Sambo, who generally wrote "Lucy" or "LS" on the registration sheets. Of the approximately 160 people who registered to vote, it appears that approximately 6 should not have, on the basis that they were spouses of claim group members but not themselves claim group members. (g) Mr Pearce was the facilitator of the meeting, which commenced at 1.49p.m. (h) After Mr Pearce noted that the meeting of the current claim group in the morning had adopted a new claim group description which added Lucy Sambo as an apical ancestor, and that the afternoon meeting was a meeting of the wider claim group as covered by the resolution from the morning meeting, Mr Pearce raised the issue of the decision-making process to be used at the afternoon meeting. By acclamation, the meeting resolved to adopt a decision-making process whereby decisions were made by majority vote on a show of hands. (i) Mr Blackshield clarified that the people in Ceduna were fully entitled to participate in the meeting. (j) The group then proceeded to vote on a resolution to make an application to amend the Marlinyu Ghoorlie claim by replacing the existing claim group description with a new one as per the meeting notices. The terms of the proposed resolution were projected onto a video screen and read through and explained by Mr Blackshield. The resolution was forwarded and seconded by members of the claim group. One person (James Champion, a descendant of Nellie Champion) spoke to the resolution and requested that the second paragraph of the proposed new claim group description be amended by deleting the reference to "Kalaako". Mr Malcolm Champion, as the mover of the resolution, would not agree to this change. Following this discussion, the registered participants voted on the resolution and it was carried with 104 votes in favour, 49 opposed and no formal abstentions (including the votes in Ceduna). (k) After the passing of this resolution, several Lucy Sambo descendants including Ms Sambo and Ms Smith came to the front of the meeting and dictated a note to be included in the meeting minutes that recorded their opposition to the meeting going ahead and to the inclusion of Lucy Sambo as an apical ancestor. The text of this note as recorded by the scribe appears in the First Blackshield affidavit at [32]; cf. Sambo affidavit at [74]. (l) Mr Pearce then introduced the issue of authorising a new applicant. After some discussion about potential options for doing this and a break, an apparent consensus emerged in favour of the option of keeping the existing applicants and adding 2 additional ones. A semi-formal resolution to this effect was moved, seconded, and carried by acclamation. A formal resolution for changing the applicant was then prepared and projected onto the video screen and read through and explained by Mr Blackshield. The resolution was moved and seconded by members of the claim group and passed by an overwhelming majority, with no person voting against the resolution, and no abstentions. (m) Mr Blackshield then proposed a resolution regarding conditions on the replacement applicants' authorisation. The resolution was projected onto the video screen and read through and explained by Mr Blackshield, and he gave advice as to its effect. Mr Pearce proposed that an additional paragraph be added, which he drafted on the spot with input from Mr Blackshield. Mr Blackshield then read through the entire resolution, including the additional fourth paragraph. The resolution was moved and seconded by members of the claim group and passed by an overwhelming majority, with no person voting against the resolution, and no abstentions. (n) The meeting was closed at approximately 3.40 [pm]. 10 The resolution said by the replacement applicant to have been validly made at the morning meeting was in the following terms (bolding in original): PROPOSED RESOLUTION RE CLAIM GROUP DESCRIPTION THIS MEETING AUTHORISES THE MAKING OF AN APPLICATION TO AMEND THE MARLINYU GHOORLIE NATIVE TITLE APPLICATION WAD 647 OF 2017 IN THE FEDERAL COURT OF AUSTRALIA BY REPLACING THE EXISTING CLAIM GROUP DESCRIPTION WITH THE FOLLOWING NEW DESCRIPTION: The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons. The persons on whose behalf the application is made are those Aboriginal people who: 1. are descended from one or more of the following ancestors (including by adoption in accordance with the traditional laws and customs of the rights-holding group): (a) Nellie Champion; (b) Kadee; (c) Warada; (d) Lucy Sambo; or though not descended from those ancestors, have been incorporated into the rights-holding group in accordance with the traditional laws and customs of the rights-holding group, or are descended from persons who have been so incorporated; and 2. identify themselves as Kalamaia, Gubrun, Kapurn or Kalaako (including alternate spellings of these names) or any combination thereof; and 3. are recognised by the other members of the rights-holding group as members of that group in accordance with the traditional laws and customs of the group. Note: The inclusion of an ancestor's name in [1] above indicates that the ancestor's descendants are recognised as members of the rights-holding group either on the basis of descent or on the basis of incorporation. 11 The two resolutions relied upon and said by the replacement applicant to have been validly made at the afternoon meeting were in the following terms (bolding and capitalisation in original): RESOLUTION RE CLAIM GROUP DESCRIPTION THIS MEETING AUTHORISES THE MAKING OF AN APPLICATION TO AMEND THE MARLINYU GHOORLIE NATIVE TITLE APPLICATION WAD 647 OF 2017 IN THE FEDERAL COURT OF AUSTRALIA BY REPLACING THE EXISTING CLAIM GROUP DESCRIPTION WITH THE FOLLOWING NEW DESCRIPTION: The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons. The persons on whose behalf the application is made are those Aboriginal people who: 1. are descended from one or more of the following ancestors (including by adoption in accordance with the traditional laws and customs of the rights-holding group): (a) Nellie Champion; (b) Kadee; (c) Warada; (d) Lucy Sambo; or though not descended from those ancestors, have been incorporated into the rights-holding group in accordance with the traditional laws and customs of the rights-holding group, or are descended from persons who have been so incorporated; and 2. identify themselves as Kalamaia, Gubrun, Kapum or Kalaako (including alternate spellings of these names) or any combination thereof; and 3. are recognised by the other members of the rights-holding group as members of that group in accordance with the traditional laws and customs of the group. Note: The inclusion of an ancestor's name in [1] above indicates that the ancestor's descendants are recognised as members of the rights-holding group either on the basis of descent or on the basis of incorporation. RESOLUTION TO CHANGE APPLICANTS 1. BRIAN CHAMPION SNR, HENRY RICHARD DIMER, MAXINE DIMER, JAMES CHAMPION, RAELENE PEEL, DARREN INDICH AND SIMON CHAMPION ("THE CURRENT APPLICANT") ARE NO LONGER AUTHORISED TO MAKE, OR DEAL WITH MATTERS ARISING IN RELATION TO, THE MARLINYU GHOORLIE NATIVE TITLE APPLICATION WAD 647 OF 2017 ("THE MG CLAIM"). 2. HENRY RICHARD DIMER, MAXINE DIMER, JAMES CHAMPION, RAELENE PEEL, DARREN INDICH, SIMON CHAMPION, TANIA CHAMPION, DARRYL TROTT AND LEECHELLE HAMMAT ("THE REPLACEMENT APPLICANT"), OR THOSE OF THEM WHO ARE ELIGIBLE TO ACT AS MEMBERS OF THE APPLICANT AND WHO REMAIN WILLING AND ABLE TO DO SO, ARE AUTHORISED TO MAKE, AND TO DEAL WITH MATTERS ARISING IN RELATION TO, THE MG CLAIM. 3. FOR THE PURPOSES OF PARAGRAPH [2] ABOVE, THE CIRCUMSTANCES IN WHICH A PERSON CEASES TO BE WILLING AND ABLE TO ACT IN RESPECT OF THE MG CLAIM INCLUDE, BUT ARE NOT NECESSARILY LIMITED TO, THE FOLLOWING: (a) THE PERSON HAS NOTIFIED THE CURRENT LEGAL REPRESENTATIVE FOR THE MG CLAIM IN WRITING THAT S/HE NO LONGER WISHES TO BE AN APPLICANT; (b) THE PERSON HAS DIED; (c) THE CURRENT LEGAL REPRESENTATIVE FOR THE MG CLAIM HAS RECEIVED A COPY OF A DOCTOR'S CERTIFICATE TO THE EFFECT THAT THE PERSON DOES NOT HAVE MENTAL CAPACITY TO UNDERSTAND OR MAKE REASONABLE JUDGMENTS ABOUT CONTRACTS OR OTHER LEGAL MATTERS; OR (d) THE PERSON HAS CEASED TO MAKE THEMSELVES READILY AVAILABLE TO DO SUCH THINGS AS ARE REASONABLY NECESSARY TO PROGRESS THE MG CLAIM OR MATTERS ARISING IN RELATION TO IT; 4. FOR THE AVOIDANCE OF ANY DOUBT, IT IS THE DECISION OF THIS MEETING THAT ON EACH OCCASION WHEN ONE OR MORE OF THE INDIVIDUALS LISTED IN PARAGRAPH [2] OF THIS RESOLUTION CEASE TO BE ELIGIBLE, OR WILLING AND ABLE TO, ACT AS AN APPLICANT, THE REMAINING PERSONS WILL BE COLLECTIVELY AUTHORISED TO MAKE, AND TO DEAL WITH MATTERS ARISING IN RELATION TO, THE MG CLAIM, WITHOUT THE NEED FOR A FURTHER MEETING OF THE NATIVE TITLE CLAIM GROUP TO CONFIRM THEIR CONTINUED AUTHORISATION.

[19]

Authorisation - the relevant legislative provisions and the relevant principles 12 That each of the three resolutions relied upon must be validly authorised is a consequence of the following provisions of the Native Title Act 1993 (Cth) (Act) and the legal principles which govern their operation. 13 Section 13(1) of the Act provides that an application may be made to the Federal Court of Australia for a determination of native title in relation to an area for which there is no approved determination of native title. Section 61 specifies who may apply for a determination of native title. Relevantly, and in relation to an application mentioned in s 13(1), the table to s 61(1) states: A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. … 14 Section 66B(1) of the Act deals with how the persons constituting an applicant are to be replaced. It relevantly requires that each of the persons who is to constitute the replacement applicant be a member of the claim group, that the persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it and that the persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising in relation to it. 15 As the statutory notes to those provisions specify, when s 61(1) and s 66B(1) speak of a person or persons being authorised by the native title claim group, they mean authorised under s 251B of the Act. Section 251B is in the following terms: For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 16 Broadly speaking s 251B of the Act requires that where, under the traditional laws and customs of the persons in the native title claim group, there exists a process of decision-making for the particular kind of decision in question, that process must be utilised. Alternatively, where no traditional decision-making process exists, the claim group must make their decision in accordance with a process of decision-making agreed to and adopted by them. 17 In order to effect a change to the composition of a native title claim group, the claim group must abide by a two-step process: Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [56]-[57] (Reeves J). First, the existing claim group must meet to determine how the claim group is to be reconstituted. Second, the replacement claim group must meet to authorise the applicant or a new applicant to make the claim on behalf of the replacement claim group. The Act does not expressly mandate authorisation pursuant s 251B for the first step, but case law has proceeded on the basis that authorisation is required: Forrest v State of Western Australia [2014] FCA 876 at [8]-[12] (Gilmour J); Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2019] FCA 651 at [26] (Murphy J). The second step requires the replacement claim group to authorise a "new" applicant. While described as "new", it may be the case that the replacement claim group merely reauthorises the existing applicants. Where the proposed group of persons who will be the applicant is actually new, such as in the present application, the requirements of s 66B(1) of the Act must also be met. 18 There are accepted principles concerning when authorisation given by a claim group is validly given for the purposes of s 61(1) of the Act. A summary of those principles follows. Most of those principles are also applicable for the purposes of an authorisation required under s 66B(1) of the Act. 19 First, the authorisation contemplated is not of the persons who claim to be the native title holders, but is rather that of the actual holders of native title: see Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 at [181] (Bromberg J); Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [72], [1188]-[1189] and [1216] (Lindgren J); Reid v State of South Australia [2007] FCA 1479 at [28] (Finn J); Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [913] (Finn J); Evans v Western Australia [2021] FCA 1382 at [63] (Griffiths J). 20 Second and relatedly, all of the native title holders must provide the requisite authority rather than a subset of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. There must be a coincidence between the group for which a determination is sought and the authorising group or, in other words, a coincidence between the actual holders of the particular native title claimed (the native title holders) and the persons who authorise the making of the application (the authorising group): see Ashwin at [182] and [183]; Brown v State of South Australia [2009] FCA 206 at [19]-[20] (Besanko J); Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [34] (Jagot J); Evans at [63]. 21 Third, that the authorising group must be the actual native title holders means that, ordinarily, some questions relevant to authorisation can only be effectively determined after it has been determined whether there are native title holders and, if so, who the actual holders of the native title claimed are: see Ashwin at [184]; Wongatha at [1190]; Akiba v Queensland (No 3) (2010) 204 FCR 1 at [913] (Finn J). Notably, s 84D(4) of the Act provides the Court with the capacity to hear and determine an application despite a defect in authorisation: see Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 (Mortimer J). 22 Fourth, where authorisation is given at a meeting of the claim group, the requirement that all members of the claim group must provide the requisite authorisation means in effect that all members of the claim group must be given a reasonable opportunity to participate in the decision-making process, in circumstances where those in attendance at the meeting are fairly representative of the various components of the native title group concerned: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [46] (French J); Brown at [24]; Nona on behalf of the Badu People (Warral and Ului) v State of Queensland [2020] FCA 983 at [92] (Mortimer J); Evans at [63]. 23 Fifth, there are qualitative considerations relating to the decision-making process by which authorisation is given which may also impact upon the validity of the authorisation. These considerations stem from s 251B of the Act, which has been construed to require the Court's satisfaction that the will of the claim group is fairly reflected in the authorisation given, such that it is appropriate for the claim group as a whole to be bound by the outcome of the authorisation given: Nona at [92]-[96]. 24 Sixth, in determining whether authorisation has been validly given, the Court should not take an overly technical or pedantic approach and should take account of the practical difficulties involved in organising and conducting a claim group meeting. A standard of perfection is not required and a robust approach should be taken to determining whether or not the claim group as a whole has given its authority: Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [44] and [53]-[54] (Rangiah J); Nona at [83]-[84]. 25 Finally, any alleged defect in the authorisation process is not material unless, in substance, the defect has affected the authorisation said to be given: Gomeroi at [47]; Nona at [83]-[84].

[22]

Whether sufficient notice of the meetings was given 29 Ms Sambo submitted that the requisite authorisation of all of the members of the claim group or extended claim group was not obtained because, by reason of inadequate notification of the meetings, all members of the claim group were not given a reasonable opportunity to participate in the decision-making process. 30 Public notification of the morning and of the afternoon meeting was given in the Kalgoorlie Miner, a newspaper which circulates in all residential locations within the claim area including the Kalgoorlie-Boulder and Coolgardie areas where the bulk of the current members of the claim group live. Further public notification was given through the Koori Mail which circulates nationally. Direct notification was given to 236 members of the existing claim group who were the only persons for whom a postal address was known. I accept Mr Champion's evidence that word of mouth follows the public notification and direct notification of claim group meetings such that, based on his long experience of the current claim group, it would be very surprising if significant numbers of current claim group members were unaware of the meetings organised for 16 August 2021. 31 The focus of Ms Sambo's complaint about a lack of notification related to those persons who are new to the claim group and were entitled to attend the afternoon meeting. However, Ms Sambo was directly notified of both meetings and requested to bring the meetings to the attention of her family, namely the Sambo descendants. Her own evidence established that, in efforts made by her to oppose the claim group being extended, it is likely that most of the Sambo descendants were directly notified of the meetings by her. The evidence shows that Ms Sambo met with other Sambo descendants and arranged for the circulation of material to approximately 125 Sambo descendants, each of whom stated in correspondence prepared by and returned to Ms Sambo that members of the Sambo family intended to attend the authorisation meetings on 16 and 17 August 2021 to oppose any resolution to include Lucy Sambo as an apical ancestor. 32 Ms Sambo contended that more could have been done to publicise the meetings including to those persons who fell within the incorporation limb of the expanded claim group description. The means by which such persons could have been better notified was not identified but I accept that, of course, more could have been done. However, that more steps to publicise the meetings were theoretically available does not demonstrate that insufficient steps were taken. No one has complained about not having been notified. No particular group of persons has been identified as not having been notified. Furthermore, considering the likely size of the claim group, the meetings appear to have been well attended. 33 For those reasons, I am not persuaded that by reason of a lack of sufficient notification, a reasonable opportunity was not afforded to claim group members to participate in the decision-making which occurred at the morning and afternoon meetings.

[23]

Was the notification misleading? 34 A further allegation made by Ms Sambo also goes to the question of whether a reasonable opportunity to participate was afforded. 35 Ms Sambo contended that she and some other descendants of Lucy Sambo did not vote at the morning meeting on the resolution to change the claim group description because of confusion caused by an explanatory covering notice which accompanied the notice for the meeting received by her on 16 July 2021 from the solicitor for the replacement applicant. It is not disputed that Ms Sambo and other descendants of Lucy Sambo who are also descendants of Nellie Champion were entitled to vote at the morning meeting by virtue of being descendants of Nellie Champion. There is no evidence that they were precluded from voting. The evidence of Ms Sambo is that they did not vote because they were of the view that they were not entitled to vote because of what was said in the explanatory covering notice. 36 The evidence as to the belief of those persons is disputed. The replacement applicant contended that Ms Sambo chose not to vote as a means of expressing her protest. It was further contended, including by reference to a letter from Ms Sambo written on 13 August 2021 to the solicitor for the replacement applicant in which she stated that members of the Sambo family intended to "attend the authorisation meetings to vote against such a resolution", that Ms Sambo's asserted understanding that she was not entitled to vote should not be accepted. Furthermore, in mid-August the solicitor for the replacement applicant replied to that communication encouraging all members of the Sambo family to attend and participate in "Monday's two meetings" and specifically noted that "all Sambos with descent from Nellie Champion are covered by the current Marlinyu Ghoorlie claim group description and will accordingly be entitled to fully participate in both meetings". 37 That evidence makes it difficult to accept that Ms Sambo held the understanding she says she had. In any event, the question is not whether Ms Sambo and others in her family held the misunderstanding she asserts. The proper question is whether their decision not to vote has come about because the notification and conduct of the meeting denied them the opportunity to participate in the decision-making process. The relevant question here is whether, objectively assessed, the explanatory covering notice which Ms Sambo alleges confused her would have led a reasonable person in her position to conclude that she was not entitled to vote. In my view, it would not have. 38 I accept that the allegedly offending passage in the explanatory covering notice (see subparagraph (b) of the quoted material at [8] above) that "there is no requirement for the descendants of new ancestors to separately approve a new claim group description" (emphasis in original) could have been more clearly expressed in order to avoid the perception that the phrase "descendants of new ancestors" was not referring to a descendant of an existing apical ancestor who is also a descendant of an apical ancestor to be included in the expanded claim group description. However, clarification that the descendants of existing ancestors were entitled to fully participate was given in the explanatory covering notice as follows (emphasis in original): (To avoid any doubt, Lucy Sambo descendants who are already part of the current claim group because they are also descended from Nellie Champion or Warada and Kaddee (sic) are entitled to fully participate in both meetings.) 39 The explanatory covering notice also said that only those descendants of Lucy Sambo "who are not also descendants of one or more current claim group ancestors" could attend as non-voting observers. Furthermore, the notice of the morning meeting which the explanatory covering notice accompanied itself stated in bold (emphasis in original): The current claim group for the Marlinyu Ghoorlie claim is limited to the descendants of Nellie Champion, Kadee and Warada. All descendants of the current claim group ancestors are welcome to attend and participate in this meeting. Also, descendants of Lucy Sambo who are not descended from any of the current claim group ancestors will be welcome to attend the meeting as observers. 40 In my view, the explanatory covering notice read with the notice of the morning meeting was not objectively misleading such that a reasonable person in Ms Sambo's position would have been misled into believing that a person who is a descendant of Nellie Champion or Kadee and Warada but also a descendant of Lucy Sambo, was not entitled to vote at the morning meeting. This alleged defect is therefore rejected.

[24]

Conduct of the meetings 41 Ms Sambo also raised various complaints about the conduct of the meetings. It was said that the changes to the claim group description were not adequately explained or discussed and that there was inadequate engagement about the proposed changes with Ms Sambo and the Sambo descendants. Allegations of that kind seem to me to be directed at the quality of the decisions made, where the ultimate question is whether the decision made fairly reflects the will of the collective whole. There may well be cases where a decision is so ill-informed as to not reflect the will of those who made it. This is far from such a case, even if I had been satisfied that Ms Sambo's allegations were established on the evidence. 42 For largely the same reasons I also reject Ms Sambo's complaints that the minimal participation she and her supporters had in the discussions at the meetings invalidated the authorisations given. I do not accept that the meeting was so hostile or its conduct so partial as to have denied Ms Sambo and her supporters an adequate opportunity to participate such that the will of the collective is not fairly reflected in the authorisations given. I also reject Ms Sambo's contention that, by reason of the lack of active participation by her and her supporters in the discussions held, the meetings were not fairly representative of the various components of the expanded claim group. 43 Ms Sambo also complained that the notification process and the location of the South Australian meeting in Ceduna favoured the existing claim group members to the prejudice of the new members of the expanded claim group. To some extent I accept that was so. Postal addresses were available for over 200 existing claim group members which facilitated their direct notification. That facility was not available to the organisers of the meetings in respect of new members but the work of directly contacting many if not most of those persons was, as earlier discussed, done by Ms Sambo. I accept that Ceduna as compared to Port Lincoln was a more convenient location for existing members and likely to have been a less convenient location for new members of the expanded claim group. However, the evidence demonstrated that Ceduna was fairly chosen as the location likely to be most convenient to the vast majority of persons who reside in South Australia eligible to attend the meetings. In any event, the travel required for the Sambo descendants residing in Port Lincoln or elsewhere in South Australia was not so burdensome as to amount to a denial of an opportunity for those persons to participate. The practical difficulties of organising meetings of this kind must be taken into account. 44 Most of the difficulties for Ms Sambo and her supporters of which she has complained are simply a product of the numerical superiority of the current claim group over the new members of the expanded claim group. A democratic decision-making process will ordinarily result in disappointment for those who do not share the views of the majority grouping. Some form of oppression of a minority may well undermine a majoritarian decision-making process such that the will of the collective may be said to be not fairly reflected in the decision made by a claim group. However, there is nothing raised by Ms Sambo (or for that matter Ms Dimer) that suggests such a conclusion.

[25]

The use of a non-traditional form of decision-making 45 Ms Sambo contended that the evidence failed to establish that the claim group had at either meeting discussed whether or not there was a traditional decision-making process for the relevant decisions taken. The contention seems to be that the absence of a discussion undermined the fact of there being no traditional decision-making process and thus the Court's satisfaction that, in adopting a non-traditional decision-making process, the decisions made accorded with the requirements of s 251B of the Act which only permits the use of a non-traditional process where "there is no" relevant traditional decision-making process. 46 The words of s 251B are clear. The validity of the authorisation required, where the persons in the native title group have adopted a non-traditional decision-making process under s 251B(b), depends upon the fact of there not being a traditional decision-making process. The two paragraphs of s 251B of the Act are arranged hierarchically. The paragraphs are mutually exclusive; paragraph (b) only applies if paragraph (a) does not: Ashwin at [242]; Wongatha at [1230]. 47 It is the fact that there is no relevant traditional decision-making process, rather than the claim group's acknowledgment of that fact, that is a condition precedent to the capacity of a claim group to validly adopt a non-traditional process for decision-making. Although as a matter of process or procedure an acknowledgment of the non-existence of a traditional decision-making process is a logically anterior step to the claim group's agreement to utilise a non-traditional process, such an acknowledgment is not of itself a necessary condition of the validity of the authorisations with which s 251B is concerned. 48 A failure by a claim group to acknowledge the fact that there is no traditional decision-making process prior to adopting a non-traditional process does not spell invalidity and I fail to see how a failure to discuss that acknowledgment can. 49 I appreciate that my own view may not align with those expressed by Barker J in Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955 at [71]-[74] where his Honour stated that whether or not there is a traditional decision-making process is a question falling to the group of native title claimants themselves to decide and that it is necessary for the claim group to have turned their mind as to whether or not a traditional decision-making process existed. As I have said, as a matter of process or procedure I would accept that s 251B contemplates that the claim group will either expressly or implicitly turn its mind to whether or not a traditional decision-making process exists before agreeing to adopt a non-traditional process. However, if Barker J meant to say that a failure of the claim group to acknowledge the non-existence of a traditional process before adopting a non-traditional process, in circumstances where a traditional process of decision-making does not in fact exist, has the effect of invalidating the authorisation given by the claim group, I would respectfully disagree. 50 In any event, even if I were to adopt such a view of the operation of s 251B, I am satisfied that in each meeting the claim group did turn its mind to whether a traditional decision-making process existed. The first meeting must be taken to have been aware of the legal requirement that if there was a traditional decision-making process, that process had to be followed. That is so because the solicitor for the replacement applicant so advised the meeting prior to the meeting resolving that its decisions would be made by majority vote on a show of hands. Although that advice was not repeated during the second meeting, I would infer from the likelihood that largely the same persons attended both meetings that the second meeting was also so aware. 51 Implicit in the resolution made in each meeting to adopt a non-traditional decision-making process is a rejection by the meeting of the existence of a traditional decision-making process. Such an inference is available to be drawn from those resolutions just as an inference that a traditional decision-making process does not in fact exist is also available: see Ashwin at [243]; Holborow v State of Western Australia [2002] FCA 1428 at [50] (French J); NC (deceased) v State of Western Australia (No 2) [2013] FCA 70 at [79]-[80] (McKerracher J). 52 Finally, Ms Sambo contended that the absence of any discussion as to whether a traditional decision-making process existed (a fact which I accept) should persuade me that a relevant traditional decision-making process does in fact exist. 53 On the evidence before me, I accept that a relevant traditional decision-making process does not exist. The unchallenged evidence of Mr Brian Champion Snr is to that effect. An inference to that effect is available, as already mentioned, from the fact that at both meetings a non-traditional process was adopted. Ms Sambo's evidence as to the existence of a traditional decision-making process concerned the Sambo family alone and is not evidence about the processes of the wider claim group. 54 The lack of discussion during the meetings does not establish that a traditional decision-making process does in fact exist. There may have been no discussion at the meetings because the absence of a relevant traditional decision-making process was entirely uncontentious. 55 Those observations should not, however, be taken to suggest that the content of a discussion by a claim group may not provide weighty evidence on the issue. Nor do I mean to suggest that significant weight should not be given to the view expressed by a claim group as to whether or not a traditional decision-making process exists and particularly so where the content of any prior discussion provides some confidence that the view arrived at by the claim group is well-informed.

[26]

The inability of persons attending at Ceduna to fully participate 56 Ms Sambo relied upon the uncontested fact that those persons who attended the morning meeting at Ceduna were not permitted to vote. That was relied upon as a denial to those persons of an opportunity to participate in the morning meeting. Whilst I accept that those persons were not permitted to fully participate in the morning meeting, I have concluded that that defect was not material because, in substance, the authorisation given during the morning meeting was not affected. 57 The circumstances which led to those attending at Ceduna not being permitted to participate other than as observers at the morning meeting but then being permitted to fully participate at the afternoon meeting requires some brief explanation. The meetings at Ceduna were organised to attempt to accommodate the remote attendance of persons living in South Australia who were barred from entry into Western Australia because of restrictions imposed by reason of the COVID-19 pandemic. Given that members of the existing claim group lived in South Australia (and mainly in Ceduna) a decision to organise remote access to the in-person meetings held in Kalgoorlie was a reasonable decision. Unfortunately, because prior notice had been given that remote access may be available for the afternoon meeting, but was not given in relation to the morning meeting, it was determined on the advice of the replacement applicant's solicitor that the morning meeting should only permit attendees to participate as observers. That decision may well be questionable, but there is no suggestion that it was made in bad faith to prejudice the participation of any particular group. 58 I am satisfied that no one who attended at Ceduna was in fact materially prejudiced by being denied an opportunity to fully participate in the morning meeting. 59 Although not absolutely clear, the affidavit provided by Mr Heathe Champion who attended at Ceduna, suggests that, for attendance purposes, the two meetings were treated as a single meeting with a single attendance sheet. The affidavit draws no distinction between those who attended in the morning and those who attended in the afternoon and, fairly read, that evidence satisfies me that it is likely the persons who attended at Ceduna were the same persons for both meetings. 60 The only business transacted at the morning meeting was the resolution to extend the claim group. That same resolution was also carried at the afternoon meeting where it was supported by 39 of the 40 persons attending at Ceduna. No one at Ceduna voted against the resolution or formally abstained. 61 It is therefore likely that if the 39 persons who voted in favour had been permitted to vote at the morning meeting they would have voted in support of the same resolution they supported in the afternoon meeting. Instead of the resolution at the morning meeting which resolved to expand the claim group being carried by 84 votes in favour, no votes against and no formal abstentions, if the Ceduna observers had voted, it is likely that the resolution would have been carried with some 39 more votes in favour. Even in the unlikely event that all 39 attendees at the Ceduna meeting had voted against the resolution, it still would have passed with a comfortable majority. The denial to the Ceduna attendees of an opportunity to fully participate was unlikely to have had any material prejudicial impact on the rights of those persons to participate and no material impact on the business transacted at the morning meeting. 62 The only person in attendance at the morning meeting and for some of the afternoon meeting who did not join in with the 39 persons who voted in favour of every resolution carried at both meetings was Shanie Richards, a younger sister of Ms Sambo. Ms Richards refused to sign the attendance sheet and did not participate in the two votes taken in the afternoon meeting while she was present, including the vote to extend the claim group. I would infer from her behaviour that, even if she had been given the opportunity to participate fully during the morning meeting, it is likely that Ms Richards would not have participated. It is therefore likely that the denial of the opportunity for Ms Richards to fully participate in the morning meeting had no material impact on her or upon the business there transacted. I also take into account that neither Ms Richards nor anyone else has come forward to complain that they were denied an opportunity to participate fully in the morning meeting. 63 For those reasons I have concluded that whilst there was a defect in the authorisation process, this defect was not material because, in substance, it did not affect the authorisation given by the morning meeting.

[28]

Should leave to amend be refused? 65 On the presumption that the resolutions to extend the claim group and appoint the replacement applicant are valid, Ms Sambo has also submitted that the replacement applicant should be refused the leave it required to amend the originating application. 66 Ms Sambo relies on the general principle in relation to leave to amend an application referred to by Jagot J in Anderson on behalf of Numbahjing Claim within the Bundjalung Nation v New South Wales [2011] FCA 114 at [3] where her Honour stated: As stated by Stone J in Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 … at [8]: [t]he general principle is that leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment. 67 There are three grounds relied upon by Ms Sambo. Each proceeds upon the flawed premise that the "good faith" referred to in the quote just extracted is intended to refer to good faith broadly defined to include an objective assessment of conduct as discussed in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82]-[96] (French J) by reference to particular statutory language. In my view the passage in question quoted by Jagot J is referring to subjective good faith or the absence of bad faith. However, even if a reasonableness requirement should be incorporated into the assessment of "good faith", I would come to the same conclusions as those which follow. 68 First, Ms Sambo contended that the nature of the proposed amendments to the claim group description is not consistent with the previous conduct of the proceeding and, in particular, the case as it is currently pleaded. It is contended that the failure to explain the changed case and in particular the expanded claim group description constitutes a lack of good faith. 69 I reject that contention. It has no merit. An application for leave to amend the particulars of a claim is, by its very nature, an application to depart from the party's claim as previously pleaded. Leave is commonly granted for that purpose without the imposition of any requirement that the reason for the change be explained or justified. There may well be circumstances in which a party seeking to amend will be called upon to explain its changed position, but there is nothing in the present circumstances which suggests that that requirement should be imposed let alone demonstrates that a failure to do so would constitute a lack of good faith. In any event, the replacement applicant through its submission has explained that the reason for the expanded claim group is to more accurately reflect the facts as now understood by the applicant including by reason of the position advocated by the State having been taken into account. 70 Second, Ms Sambo contended that leave to amend should be refused because an adequate explanation of the consequences of the proposed changes has not been given and because that failure amounts to a lack of good faith. This contention also has no merit. 71 It may well be true that the consequences of the amendments require further explanations so that those who are opposed to the claim are better able to understand the case they must meet. However, that is the function of pleadings and can be accommodated by revised pleadings being filed in due course. It is not a basis for rejecting the leave here being sought. 72 I also reject the contention that leave should be refused because: (i) the proposed changes to the composition of the claim group were not adequately explained and discussed with the claim group; or (ii) that there was a lack of sufficient engagement about the proposed changes with the Sambo descendants including Ms Sambo. 73 It is not necessary to detail further the nature of those contentions save to say that I have taken that detail into account. Whilst those contentions are of some relevance to the issues already addressed, the contentions have little if anything to say on the question of whether leave to amend should be granted. Even if factually correct, none of the allegations relied upon by Ms Sambo demonstrate a lack of good faith sufficient to warrant a refusal to grant the applicants the capacity to pursue the case they now want to prosecute. 74 Finally, the third basis relied upon by Ms Sambo - that permitting the amendment sought to the claim group description will cause her substantial prejudice or injustice - is also misconceived. The submission made proceeded on the basis that the grant of leave would make it more difficult for Ms Sambo to resist the native title determination the replacement applicant seeks because the position of the replacement applicant would be improved. That is not a form of prejudice which Ms Sambo can rely upon. The only relevant question concerning prejudice on the grant of leave to amend is whether the grant of leave to make the amendment will be prejudicial to the fair opportunity which Ms Sambo must be given to oppose the claim being made should she seek to do so. Ms Sambo has not contended for, let alone demonstrated, prejudice of that kind. 75 For those reasons I reject the contention that leave to amend should be refused and will grant the leave sought.

[29]

Ms Dimer's challenge 76 Ms Sharon Dimer filed two affidavits. As I understand it, the matters raised in her affidavits are directed to her general opposition to the native title determination sought by the originating application. As mentioned already, this is not the occasion for determining whether the native title determination sought should be granted. 77 In her oral submissions, Ms Dimer made several complaints directed at the meetings held on 16 August 2021 and her opportunity to participate. She stated that she had not been notified of the meetings directly and said that she and others associated with her were forced by police not to attend. She referred to restraining orders and to being discriminated against. None of those allegations were supported by evidence. 78 Evidence was given by Ms Betty Logan which addressed Ms Dimer's circumstances. Ms Logan is a member of the current native title claim group and also a member of the Dimer family. She deposed that she is familiar with the Dimer family and asserted that neither Sharon Dimer or others associated with her are descendant from Nellie Champion, Warada and Kadee or Lucy Sambo and that they were therefore not entitled to attend the meetings held on 16 August 2021. 79 Ms Logan acknowledged taking out a restraining order against Ms Dimer for the express purpose of preventing Ms Dimer attending the meetings held in Coolgardie on 16 and 17 August 2021. She deposed that although she regarded Ms Dimer as not entitled to attend those meetings she was afraid that she would and was concerned that Ms Dimer would verbally abuse her and make false claims about Ms Logan's father. Ms Logan deposed that based on Ms Dimer's prior conduct, including her conduct in these proceedings at a case management hearing, Ms Logan is afraid of Ms Dimer. I infer that those matters were the basis upon which a restraining order was issued against Ms Dimer. 80 For current purposes, it is unnecessary for me to determine whether Ms Dimer or other persons associated with her were eligible to attend the morning meeting or the afternoon meeting. I will proceed on the presumption that they were. In the case of Ms Dimer, I accept that she was precluded from participating in those meetings because of the fact that she was restrained by court order from attending. In relation to Ms Dimer it appears therefore that she was denied participation in the meetings by operation of law. That is not a basis upon which the validity of the authorisation given at those meetings could possibly be undermined. In relation to the persons associated with Ms Dimer I have no evidence before me upon which I could conclude that they had any right to participate in those meetings or that they were denied the opportunity to do so. 81 For those reasons the allegations made by Ms Dimer are rejected.

Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (2)