Sambo v State of Western Australia

Federal Court of Australia|2010-08-26|Before: McKerracher J

INTRODUCTION 1 At a directions hearing on 17 May 2010 I invited fresh submissions from the parties on the question of whether these proceedings should be disposed of pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (NTA). 2 The possible dismissal of these proceedings pursuant to s 190F(6) has already been considered once in August 2009. 3 As observed in Sambo v State of Western Australia [2009] FCA 940 (Sambo No 1), s 190F(6), introduced in the amendments made to the NTA in July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 4 Pursuant to s 190F(5), the new dismissal power applies where: (a) the Registrar does not accept the claim for registration because: (i) it does not satisfy all the merit conditions of the registration test; or (ii) it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and (b) the Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim. 5 Order 78 r 12 of the Federal Court Rules provides an application for review must be filed within 42 days of the notification of the decision of the Native Title Registrar (the Registrar). 6 The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 provides an insight into the rationale behind the introduction of the dismissal power: Currently, while unregistered applications do not receive certain procedural benefits that attach to registered claims (such as the right to negotiate), unregistered applications may still proceed to determination. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intended to provide a greater focus on the responsibility of applicants to take steps to improve the quality of their claims, recognising that poor quality claims are a burden on the native title system. 7 If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application. 8 Pursuant to s 190F(6) NTA, the Court may consider any 'other reason' why an application should not be dismissed. The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 suggests that the criterion set out in s 190F(6): … will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered. 9 By way of example, the Explanatory Memorandum suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331).

BACKGROUND 10 In Sambo No 1, the applicant filed submissions, under the title of Central West Goldfields People, on behalf of all members of the applicant other than Ms Sue Wyatt and Mr Victor Cooper. 11 Those submissions highlighted that the Registrar had considered the claim on three occasions: on 4 October 1999 when it was accepted for registration; on 18 September 2006 when it was not accepted for registration; and on 16 September 2008 when it was again not accepted for registration. 12 In relation to the decisions of the Registrar on 18 September 2006 and 16 September 2008, the applicant conceded that it had not taken any steps to seek review or reconsideration of the Registrar's decision. In particular, no steps of a kind contemplated in (1)(iv) of s 190F(5)(b) NTA were taken. 13 The primary difficulty then, as it is now, was the state of deadlock which has persisted for some time between various members of the applicant, in particular Ms Sue Wyatt and Mr Victor Cooper, who are in disagreement with the remainder of the claim group. Those disputes, it is said, have centred on handling of 'future act' matters, monies paid in respect of 'future acts' and the strength of the connection of the Cooper members' immediate families to the Central West claim group. 14 In Sambo No 1, the applicant submitted that notwithstanding these difficulties, considerable resources had been put into the preparation of the Central West claim, with extensive research undertaken into the laws, customs and historical and cultural connections of the Central West people. Expert reports were filed by an anthropologist, a linguist and an ethno-botanical expert giving, it was submitted, weight to the notion that the claim is serious, proper and deserving of further attention by the Court and the respondents. 15 More significantly, in Sambo No 1, the solicitors for the applicant indicated that while no active steps had been taken at that time in relation to the claim, including the holding of a claim group meeting, this was primarily because of the existence of the disputes between members of the applicant. 16 The solicitors for the applicant believed that holding a claim group meeting would be the first step in reactivating the Central West claim. It was submitted that there was likely to be a change in the composition of the claim group if such a meeting were held and that if issues as to the membership of the claim group could be satisfactorily resolved, the claim was likely to be re-registered. The applicant acknowledged at that time that a further claim group meeting or meetings would need to occur in a timely manner. 17 In Sambo No 1, I declined to dismiss the proceedings at that stage, in order to allow the applicant the opportunity to hold a claim group meeting. It was difficult to be satisfied that the outcome of such a meeting would result in the application being amended in a way that could give rise to its registration. However, the extensive submissions filed and the assurances given by the solicitors for the applicant, at least led to an inference that there was a reasonable and relatively imminent possibility of that event occurring. That has not occurred.

CONSIDERATION 18 Given the ongoing lack of progress, the parties were advised at the directions hearing on 17 May 2010 that the Court would once again, of its own motion, consider the dismissal of the application pursuant to s 190F(6) NTA. I invited parties to make submissions. 19 It is common ground that the Central West Goldfields people's application still has not been amended since consideration by the Registrar on 16 September 2008. 20 Against the background discussed above, it is desirable to consider whether the claim is 'likely to be amended in a way that would lead to a different outcome once considered by the Registrar' 21 Section 61(1) NTA provides that an application can only be amended if the amendment is authorised by: …all of 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.

Applicant's submissions 22 Since judgment in Sambo No 1 (and although the applicant has not held a claim group meeting as previously indicated) the applicant now advises that it is in a position to hold a claim group meeting and that it has secured funding for that purpose. 23 The applicant contends that there is a reasonable prospect of the claim being registered and that there is increasing support amongst members of the claim group for this to occur. This is said to be largely in consequence of the resolution of some litigation in the Supreme Court of Western Australia (the Supreme Court) relating to the establishment of a trust administered by 'Plan B' Trustees Limited (Plan B). Submissions for the applicant indicate that in those proceedings all the members of the claim group, except for Ms Wyatt and Mr Cooper, were able to participate in extensive mediations and conferrals with each other upon issues relating to the establishment of the trust, and were also afforded an opportunity to begin talking about a way of resolving contentious issues which had arisen between members of the claim group. All the members of the claim group, except for Ms Wyatt and Mr Cooper, reached a consensus about the terms of the trust deed to be adopted, the appointment of Plan B as trustee and the persons who should be appointed as initial advisory trustees of the trust. As a consequence, some of the members of the claim group who had previously been hostile towards the claim and who had been actively involved in its deregistration in 2006 are now prepared to support the claim with a view to its being re‑registered and progressing towards a determination of native title. 24 In relation to Ms Wyatt and Mr Cooper, the applicant states that their position 'is not clear', but the remaining members of the claim group are of the view that Ms Wyatt and Mr Cooper have demonstrated a long history of obstructive behaviour and intransigence in relation to the management of the claim. 25 The position of Mr Mark Champion, a respondent to the claim, and those he purports to represent is also 'not clear' to the applicant, as, it is submitted, the opposition he has recently expressed towards the claim is the opposite of that which he has publicly been maintaining for some years.

Ms Wyatt and Mr Champion 26 At the directions hearing on 17 May 2010 any lack of clarity was removed. Ms Wyatt read an affidavit stating that the solicitors for the applicant and/or Mr Dennis Sambo did not represent her or the Cooper family, and that solicitors for the applicant had not had the approval of the claim group as a whole. She stated that it was the wish of the Cooper family that the Central West Goldfields claim be dismissed to allow a new native title claim to be lodged: …to accommodate the true customary and spiritual boundaries of our traditional Aboriginal ancestry and heritage in accordance with out ethical ancestor, Anida Nala Bilbear of the original tribe of Kalgoorlie, the Maduwongga people. 27 Ms Wyatt further complained that the remaining members of the claim group and solicitors for the applicant had excluded her and the other members of the Cooper family from participating in the general management of the Central West Native Title claim. 28 Mr Champion, a respondent, states that he is a descendant of two apical ancestors of the claim group, but is not a member of the claim group because the claim group description excludes Mr Brian Champion and Ms Mavis Champion and their biological descendants. Mr Mark Champion is biological descendant of Mr Brian Champion. 29 In his submissions he highlighted that the exclusion of certain branches of the Champion family from the claim group description was the reason why at the last registration test on 16 September 2008, the application was not accepted for registration. 30 Mr Champion submits that the claim could only become registered if: (a) the claim group description is amended to include all the persons currently excluded so as to include all of the people holding native title rights and interests in the claim area; and (b) all of the persons constituting the amended claim group authorise the amended claim and the membership of the claim. 31 Mr Champion submits that as it is clear that the current claim does not have the support of all the persons holding native title rights and interests and that all of the people holding native title rights and interests will not participate in the authorisation process, there is no prospect of the claim being registered. 32 In support of his submissions, Mr Champion relies upon affidavits sworn by Ms Betty Logan, the daughter of Ms Dorothy Dimer who was a member of the applicant group until 2006 and is now a respondent, and Ms Greta Tucker, who is the daughter of the late Mr Ted Champion, who was the son of one of the apical ancestors to the Central West Goldfields claim. Both Ms Logan and Ms Tucker express their firm belief that the Central West Goldfields claim should be withdrawn or dismissed because of the lack of representation of their families. 33 Ms Logan also states that she is a member of the Widje native title claim group which is a registered claim that overlaps the Central West Goldfields claim. Mr Champion submits that unless the claim is amended to exclude the overlapping area with the Widji claim No WAD 6243/1998 and WC 98/97, it cannot become a registered claim while the Widji claim is a registered claim, due to the overlapping membership.

CONSIDERATION 34 The history of this matter does not inspire confidence as to the likelihood of an amended claim being filed and accepted for registration. 35 I am mindful of the recent progress made by the applicant in obtaining funding for the holding of a claim group meeting. That has been a significant obstacle to the progress of the claim for some time. I am also aware that considerable resources have been utilised to conduct the necessary anthropology and to progress the claim to its current point. (However whatever the appropriate disposition of the claim, it does not necessarily follow that those resources would be wasted). 36 In any event, that evidence does not go to the question I am bound to consider under s 190F(6), that is, whether it is likely that the claim will be amended in such a way as to overcome its previous defects. Evidence of the applicant indicated that the necessary amendments would need to include: 1. an amendment to the description of the claim group to include all the descendants of the named apical ancestors previously excluded and to delete apical ancestors and descendants where there is insufficient material to establish a connection; 2. an amendment to remove the overlap with the Widji claim; and 3. the appointment of authorised applicants. 37 No clear evidence has been provided by the applicant to show that even if a claim group meeting was held, it would result in an amended application being filed at all, let alone one that would lead to a different outcome once considered by the Registrar. The evidence now provided to the Court highlights the difficulty, if not impossibility, of the formation of a cohesive claim group to authorise the amendments that would lead to the acceptance of the application. 38 I have considered alternative orders, such as springing orders contingent on the holding of a claim group meeting or other milestone. However, given the persistent deadlock between the members of the claim group, I am unable to conclude that even that short delay would be productive. To the contrary, it would almost certainly result in a further waste of time and resources and would ultimately result in no further progression of the matter beyond the current point. 39 It is clear that the claim does not have the support of all the persons holding Native Title rights and interests and that all of the people holding Native Title rights and interests will not participate in the authorisation process. 40 For those reasons, I am satisfied that it is not likely the application will be amended in a way that would lead to a different outcome once considered by the Registrar.

ANY 'OTHER REASON' THE APPLICATION SHOULD NOT BE DISMISSED 41 The applicant also appears to rely on s 190F(6)(b) NTA to provide an alternative reason why the claim should not be dismissed. 42 The reason proffered by the applicant is that a dismissal pursuant to s 190F(6) NTA would result in monies ceasing to be payable under a commercial 'future act' agreement between Cliffs Asia Pacific Iron Ore (Cliffs) and both the Ballardong and Central West claim groups. 43 Both the applicant and the Ballardong people filed affidavits on the question of whether disposing of this application pursuant to s 190F(6) would result in monies ceasing to be payable to the applicant. 44 It appears that following protracted litigation the Supreme Court made orders appointing a trustee (Plan B) and putting in place a trust deed which provided for the payment of monies to the two claimant groups including in the event of the Central West Goldfields claim being 'dismissed'. The meaning of 'dismissed', and the means of disposal of monies in the event of dismissal, are now topics of dispute between the Central West Goldfields people and the Ballardong people. 45 It is not appropriate for this Court to become involved in the interpretation of orders made in related litigation in the Supreme Court. If this application is disposed of pursuant to s 190F(6), it may be that certain provisions in the trust deed will come into effect. If that occurs, those persons who have interests in the trust could then take such action as seems appropriate to them to protect their interests. This might include further action in the Supreme Court. 46 But that is not a reason to decline to dismiss a native title determination application which meets the criteria of s 190F(6) NTA. 47 The purpose of a native title determination application is to seek determination on native title. If an application reaches a condition where it is unlikely to ever achieve that purpose, as this one has, then it should be dismissed and not used for purposes pertaining to the independent financial affairs of various persons or groups. 48 This is not a situation akin to the one outlined by way of example in the Explanatory Memorandum to the NTA, which suggests that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331).

CONCLUSION 49 On the basis of the history, I am satisfied for the purposes of s 190F(6) NTA that the application has not been amended since it was considered by the Registrar and is not likely to be amended in a way that would lead to any different conclusion by the Registrar. There is no other reason why the application should not be dismissed. 50 Such anthropological and other evidence as has been gathered to date to provide a factual basis for the application will not be destroyed by the dismissal of the application. It will be for the members of the native title claim group or of such other claim group as is formed to take such action as they may be advised in relation to the bringing of a fresh application. Dismissal under s 190F(6) NTA of this application will not prevent the bringing of a further application if that is the course advised. 51 The application is dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Native Title Act 1993(Cth)ss 61(1), 190F(5), 190F(6), 190F(6)(b)

Sambo v State of Western Australia (No 2) [2010] FCA 927 Citation: Sambo v State of Western Australia (No 2) [2010] FCA 927

Cases cited: Sambo v State of Western Australia [2009] FCA 940

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