Sambo v State of Western Australia

Should a further adjournment of the proceeding be allowed? 19 In the circumstances described above, where on 23 June 2015 the applicant was provided with the opportunity by 12 August 2015 to file and serve a minute of further amended application and supporting affidavit, which has not occurred, and as at the hearing of the motion on 26 August 2015, still has not occurred, it is not appropriate for the matter to be further adjourned. 20 At the hearing on 26 August 2015, Ms Sambo indicated that she had ascertained that there were materials that appeared not to have been given to the Court or to the delegate of the Registrar for the purposes of the consideration of the amended application by the delegate, and that, if the claimant application was now to be dismissed, the applicant could file a fresh claimant application with more detailed information in order to overcome the deficiencies identified on the last occasion by the delegate. 21 There will, in the circumstances, be an order refusing the oral application of the applicant for further adjournment of the matter.

Is the Court obliged to ensure the applicant is aware in advance as to which particular elements of the application are to be scrutinised by the Court at the hearing of the motion? 22 In essence, the applicant initially contended that the Court, in causing hearing of a motion pursuant to s 190F(6) to dismiss an application, is bound to ensure that there is procedural fairness. 23 The applicant referred to the beneficial nature of the NTA in protecting native title. 24 The applicant submitted that in this instance the Court had formed a "preliminary opinion" and should communicate the same to the applicant. 25 It submitted that the failure of the Court to do so would constitute a failure to accord procedural fairness to the applicant. 26 It further submitted that the Court should identify which of the elements of the registration test that had been found to be lacking by the delegate on the second occasion are considered by the Court to be those upon which the Court's motion is based; otherwise the applicant is in a position of "jumping at shadows". 27 The applicant submitted the proceeding should be adjourned pending the provision of procedural fairness. 28 While, as noted above, the Court allowed an adjournment on 23 June 2015, it was not for this reason. This initial submission was entirely misconceived. 29 As set out above, where the preconditions to dismissal under s 190F(6) have been met - that is to say, the requirements of s 190F(5) have been met - another party can apply for dismissal or the Court can, of its own motion, move for dismissal of the claimant application. 30 It is inapposite in such circumstances to say that the Court has formed a "preliminary opinion" and should communicate the grounds on which the Court considers the application should be dismissed. 31 The simple fact is that the relevant provisions of the NTA enable an apparently unmeritorious application - that is to say, one which has failed the registration test and in relation to which there is no pending reconsideration or judicial review - to be dismissed. The statutory provision recognises that such applications should not clog up the court system. 32 When any such application or motion is made for dismissal, the question is whether the claimant application should be dismissed. At that point the terms of s 190F(6)(a) and (b) come into play. It is then for an applicant, if it wishes to resist the dismissal, to put evidence before the Court that will lead to the Court not being satisfied that the application 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 reconsidered by the Registrar; and in relation to the question whether there is no other reason why the claimant application should not be dismissed. 33 In that regard, there is a practical onus on an applicant to cause evidence to be supplied to the Court that may lead to the Court not being satisfied about those matters and not forming that relevant opinion: see Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 at [66]. 34 In effect the proceeding now before the Court is in the nature of a show cause proceeding. The applicant has the opportunity to produce materials to show the Court that, notwithstanding the satisfaction of the preconditions to the exercise of the dismissal power, the application is likely to be amended in some way that would lead to a different outcome and/or there is another reason why the application should not be dismissed. 35 A practical burden falls on the applicant in this case therefore to deal with the different bases upon which the amended application failed the registration test and to show how a further amendment may be possible which would lead to a different outcome on a reconsideration; or that there is some other reason why the application should not be dismissed. 36 Notwithstanding these observations, when the matter came on for hearing on 23 June 2015, the applicant, by counsel, sought and was granted an adjournment on the terms referred to above, namely, that the applicant file a minute of further amended application and supporting affidavit. 37 Since then, as noted above, the solicitors on the record have ceased to act for the applicant and no steps have been taken pursuant to the order to do anything further in the matter. 38 Thus, this ground of avoidance of the Court's motion fails and the substantive motion needs to be considered.

Is the application likely to be amended in a way that would lead to a different outcome once reconsidered? 39 The applicant, in the alternative, contends that for the various reasons explained in Ms Sambo's affidavit, the application is likely to be amended in a way that would lead to a different outcome once reconsidered. 40 In that regard, the full terms of Ms Sambo's affidavit should be set out: 1. I am the first named person of the applicant herein. I make this affidavit from my own knowledge and belief except where stated to the contrary. 2. I refer to the decision of the delegate of the NNTT made 19 March 2015 ('the decision') and say that the Applicant wishes to amend the Application and take certain steps to correct issues raised by the delegate. 3. The Applicant is concerned that the delegate may not have had the entire Federal Court file before her at the time the decision was made. At the time of filing the Application to amend in November last year there were two affidavits by myself in support of the Application. The decision does not refer to either of those affidavits. In particular there was an affidavit distinguishing the various family groups who comprised the Central West and Gubran claims and exhibited a photograph of the tombstone of George Clamp. If this material was not before the delegate then it may explain why the delegate has not determined that there is a prima facie argument that the Sambo group is not a sub-group. If the material was before the delegate then the delegate has failed to consider that material. 4. As to s190C (4)(b) considered at page 15 of the decision I say that whilst the Applicant disagrees with the delegate's reasoning, the Applicant will arrange for a renewed authorisation from the members to ratify the 22 May 2013 meeting and any subsequent actions. 5. I am unsure as to why the Delegate states (paragraph 129) that the genealogy is incomplete. The descendants of Arthur Sambo are part of the group and his descendant Judy sambo is a member of the Applicant. It may be that the genealogy filed is incomplete. If this is the case a complete genealogy will be filed in an amended Application. 6. I am confused that the Delegate has made a finding (paragraph 42) that she is satisfied 'that the application is made by a person or persons authorised by all persons (the native claim group) who, according to their traditional laws and customs, hold the common … group rights and interests comprising the particular native title claimed'. Having made this finding I understand that the delegate is bound by the same. 7. As to s190B (2) I say that the map was prepared by the NNTT for the Applicant. If need be the Applicant will amend the Application to restrict the claimed area comprised on the map to the area contained within the outer or alternatively inner boundary of the line that was prepared by the NNTT. Otherwise, the Applicant will seek to amend the written description of the area claimed so as to provide more precision. Alternatively, I will provide an electronic Map Shape file from CAD Resources with an explanation on how to use a Map Shape file. 8. As to sections 190 (5) (a), (b) and (c) I say that it is the Applicant's intention to prepare a further affidavit to fully explain to the delegate all of the material that has been filed in the schedules and the significance of the same. The material is vast and my legal advisers are of the view and I verily believe that firstly the material should be retrieved from the NNTT and then it will take 6 to 8 weeks to fully prepare an affidavit or submissions either to the NNTT or the Court so as to properly set out the Applicant's case in a way that would be more intelligible to the Delegate. 9. Further I am informed by my brother Gary Sambo and verily believe that the State of Western Australia is in possession of 'pastoralist records' that will establish where Tommy Broadarrow and his descendants were employed within the claimed area since 1890. 10. As employers of indigenous labour, pastoralists were compelled by law to keep such records and to submit them to the State. It is the Applicant's intention to seek such records from the State and to include them in an amended Application. It appears that the Delegate requires more information regarding the association of the Sambo family with the areas to the north-centre (north of Sthn X up to Diemals), northwest (Remlap and Mouroubra), west (towards Merredin), southwest and south (Marvel Loch and Queen Victoria Rocks).That will be provided in an amended application. 11. Further, I have read in the media that the western Australian library or museum has in its possession approximately 100,000 photographs of indigenous persons and is actively seeking to return copies of such photographs to the various descendants. It is the Applicant's intention to actively approach such institutions to obtain copies of photographs of Tommy Broadarrow and his descendants which will assist the Applicant 's case. 12. As to the matters raised at paragraph 200 of the decision, namely that the Applicants can only show activity of Udaji in only part of the claim area, the Applicants will seek to amend the claim area in the alternative to the eastern portion of the present claim area. 13. As to the matters raised in relation to s190B(5) (b) I say that there is ample evidence in the various anthropological reports that I will collate that demonstrates aboriginal graves, artefacts and sites within the claimed area of which the Applicant has knowledge and is sought after by various mining interests in preparing various surveys as required by law. The Applicant will provide affidavit evidence of such knowledge, sites and surveys in an amended Application. Such evidence strongly infers that there was a normative society in existence in the claimed area of which Udaji was part which was capable of living with neighbours and raising children, such as Lucy. Without laws and customs a normative society could not survive. I was told by my father that the traditional practices (identified in my earlier affidavits) that I carry on and pass on to my family are those that have been passed down to me by my ancestors from long ago. 14. At Paragraph 252, the delegate states 'the factual basis is not sufficient to support an assertion of a society at settlement in the area, acknowledging and observing laws and customs of a normative content from which the current laws and customs derive'. 15. Daisy Bates stated with respect to the claim area: '...the name Karratjibbin has been applied to this nation as it was the term supplied by my Southern Cross informants, for their chief camping ground in that locality...the area over which this group extended ran from Mount Jackson in the north (about Lat. 30*20') through the Southern Cross district towards the Dundas area...The peculiar organisation existing amongst these people differentiates them from every other known tribe in the West. They possess a two-moiety system, which in this respect links them with their south-western neighbours, but with the important difference amongst the Karratibbin people of each moiety marrying within itself and producing the other moiety...Whether the area of these people extends further than the limits mentioned, could not be ascertained in the short time allowed for investigation... I found the system among the Norseman district natives and in the Mount Jackson group. Their social organisation, customs, laws, initiation, etc., coincide with those of their eastern, north-eastern and south-eastern neighbours, with whom they have traded their local products...The various groups composing the 'nation' held rights of possession to certain water-holes, hills, soaks, springs, etc., the chief of which appeared to be Karratjibbin, Wilgauin (Mt. Jackson), Yogguragain (west of Karratjibbin), Kammining (north-west of Karratjibbin), Malyorning(?), Juwardain (near Mt. Jackson)...The Karratjibbin Nation borders the Bibbulmun on the north-east, and several of the latter were adopted into and circumcised by the Karratjibbin people. (Bates, 1985, Page 55, The Native Tribes of Western Australia. Edited by lsobel White: National Library of Australia). 16. I understand that holding rights of possession to areas of land can only occur if there is a system of laws and customs which recognises the concept of rights in land. In any event, the Kaparn are here described as sharing a social system with the 'Dundas' people. I make two comments here: again, a social system defining marriage patterns bespeaks a system of laws and customs; and, secondly, the 'Dundas' people are the Ngadju, who have last year been found by the Federal Court to hold native title over their traditional lands. Therefore, they have been accepted as having a normative system of laws and customs. The final sentence in Bates shows that the group practised Circumcision as a rite of passage to manhood (a normative custom). It also shows that they had a social system that allowed them to accept outsiders into their group. 17. At paragraph 239, the Delegate states that 'the applicant has not provided any guidance or direction on how to approach the considerable extent of material in approaching the requirement at s190B (5)'. The Delegate makes similar comment on several other parts of the document also. I intend to map out which parts of the supporting documentation should be taken into consideration in regard to each section of the Test. 18. Given the Delegate's findings at paragraphs 227 to 248, it is the Applicant's intention to provide a lengthy affidavit for guidance as to the matters raised by the delegate. 19. As to previous Native Title Applications; both the Gubran claim and the Central West claims were collaborative efforts by various groups. The Central West application was initiated by the Goldfields Land and Sea Council as it was considered that a united Application had more chance of success. 20. The present claim is not said to be exclusionary to any rights of the other groups that were part of both the Gubran and Central West claims. 21. I seek leave of the Court to file a further amended Application taking into consideration the matters set out above. 41 The first condition of s 190B of the NTA found by the delegate not to be satisfied was s 190B(2) concerning the identification of the area subject to native title. 42 The delegate noted that the written description of the boundary of the area was covered by the application at [1] of Sch B of the application and set it out. The delegate said this was a metes and bounds description but not sufficient to allow the area to be identified with reasonable certainty. 43 The delegate also noted that it was identical to that used in the original form 1, which had earlier failed the registration test and was then described as neither precise nor specific. 44 The delegate also noted that while the map provided by the Tribunal was attached as Attachment C to Sch C of the application, [4] of Sch B explicitly said in the case of discrepancy between the map and the written description the map prevails. But the delegate also appeared to accept that there was a lack of explanation or disclosure of the materials that constituted the data that was used to create the map. 45 In the result, the delegate concluded that there was a lack of certain or specific points on the boundary of the claim area within the written description that was not remedied by a map of the scale produced. Consequently the map did not provide any further certainty regarding the precise boundary of the area. 46 As set out above, at [7] of Ms Sambo's affidavit, she says that the map will be amended to restrict the claim area to the area contained within the outer or alternatively inner boundary of the line that was prepared by the Tribunal or the applicant will otherwise seek to amend the written description so as to provide more precision. As a further alternative Ms Sambo says she will provide an electronic Map Shape file from CAD Resources with an explanation on how to use the Map Shape file. 47 The State of Western Australia, which supports the dismissal of the proceeding, did not direct any submissions to this particular question of amendment suggesting it could not be reworded. 48 The Court concludes, on the basis of the materials provided, that it is likely that the application will be amended in a way that would lead to a different outcome, once reconsidered, on this mapping issue. 49 The delegate also found that s 190B(5), concerning the factual basis for claimed native title, was not satisfied. 50 Under this provision, the factual basis must support the following assertions: (a) that the native title claim group have, and their predecessors have had, an association with the area; (b) that there exist traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. 51 The delegate noted that the factual basis material for the claim was to be found in Sch F of the application and in a series of documents and audio files attached to it. 52 The delegate considered some of the documents were of poor quality, such as the audio files and copies of government records. 53 The delegate ultimately noted that most of the information in the supporting materials was historical information which, while important, was not relevant to the factual basis of the claim. An example was provided in relation to records from prospectors and gold miners and documents relating to the recovery of debts from some members of the Sambo family. 54 The delegate also noted there were various "contradictions or inconsistencies" in that information and said that, while it was not the delegate's role to weigh conflicting or controverting material, "there must be sufficient coherent facts" to support each assertion made under s 190B(5). Examples identified were: information about the Kaparn people as a distinct society who solely held native title rights, contrasted with information about the Kaparn people as members of a wider regional society that shared laws and customs, but as the localised persons with landholding rights in the claim area; information going to the devastation of the gold rush of the late 1800s on Aboriginal inhabitants of the Central West Goldfields such that there are no surviving indigenous inhabitants, against information asserting that some sources are historically incorrect; and information prepared for the Central West Goldfields native title claim (WAG0065/1998) speaking to the Kaparn people as a contemporary group of persons who hold native title rights and interests in the claim area (notably a very similar area to the current application) where the Kaparn people are, in fact, a broader group of persons including various other families who are excluded from the current claim group. 55 The delegate said the applicant had not provided any guidance about how the material should be approached, nor had they directed the delegate to particular and relevant facts within the material which support the assertions made. 56 The delegate said it is the applicant's responsibility to provide materials which disclose a sufficient factual basis for the claim and it is not the role of the delegate to undertake that task. 57 The delegate also noted, however, anthropological reports by Mr Robin Stevens in the supporting material, one prepared in August 2001, for the purposes of supporting the Central West Goldfields native title claim which was subsequently dismissed in 2010, and a supplementary report from November 2001, for the purposes of that claim. 58 The delegate said these documents provided the clearest assertion of a group of Kaparn people who can be associated with an area similar to the claim area in the amended application. 59 The delegate also noted the historian's expert report for the Central West Goldfields native title claim, prepared by Mr Craig Muller, of 30 July 2001. 60 The delegate in particular noted that the material provided gave information about Broad Arrow Tommy or Udaji, the apical ancestor of the claim group: he was a man from Broad Arrow who was a police tracker; he is believed to have been a cousin of King Billy, Phil and Clem Donaldson's maternal grandfather; Udaji was present at the visit of the Prince of Wales to Kalgoorlie in 1920; Udaji is the father of the maternal ancestor of the Sambo family, Lucy, who claims traditional affiliation to "Gabun" country; senior "Kapurn" man of a different claim group advised that Tommy/Udaji was a Kapurn man born in a Kapurn camp located on the Boulder-Kalgoorlie border; and there is no certainty about the birth place of Udaji. 61 The delegate also noted much information about Lucy and Mary, Udaji's daughters, including their birthdates and places and where they died, and information about their children. 62 The delegate also noted information about William Sambo and some of his siblings, the children of Lucy, and Udaji's grandchildren. 63 The delegate expressed the following understanding: European settlement took place in the claim area in the 1890s, with the establishment of Kalgoorlie, Coolgardie and Southern Cross, noting Udaji's eldest daughter, Mary, was born in 1890 in Kalgoorlie and so Udaji would have been present in the area from around the 1860s. The facts in support of the association of Udaji with the claim area confine association to only a part of the claim area which includes the town centres of Kalgoorlie and Coolgardie. It was noted that the town of Broad Arrow, where Udaji was from, is north and slightly west of Kalgoorlie. Beyond this there is little information that speaks to Udaji having an association with a large remaining expanse of the western part of the claim area and while, as a police tracker, he may have had a good knowledge of the broader area, there was nothing to indicate his association extended to an area any broader than the eastern portion of the claim area. 64 Consequently the delegate was not satisfied that the factual basis was sufficient to support the assertion referred to in subs 190B(5)(a) that the predecessors of the claim group had an association with the whole of the claim area. 65 Following further analysis in respect of the descendants of Udaji, including Lucy, the delegate said the factual basis did not support the assertion that the descendants of Udaji had an association with the whole of the claim area, and were only associated with some part, being the southern and eastern portions of the claim area. 66 Thus, the delegate concluded there remained a large portion of the claim area to the north and the west for which there are no facts to support the assertion that there was an association by predecessors with the claim area. Nor was the delegate satisfied that the information supported the association of current members of the claim group with the area. 67 The delegate also considered the question of observance of traditional laws and customs pertaining to the claim area under subs 190B(5)(b). 68 The delegate noted that Kalamaya was identified as being a language group and that the applicant appeared to assert that the Kapurn/Guburn/Karratjibbin spoke Kalamaya as a common language. 69 The delegate considered there was not sufficient information about the laws and customs of the groups stated within the factual basis as being present in the area at settlement, and so the delegate could not conclude that they shared a system of identifiable laws and customs of a normative content. The delegate noted that the factual basis included the statement that there was one "cultural group" comprised of smaller local groups. The delegate said, however, that it was not clear from the material whether each of the groups referred to are local groups or one cultural group, and if they were to be understood as together comprising one cultural group, there was no information regarding the system of laws and customs of each of the local groups from which the inference could be drawn. 70 By reference to other materials, the delegate said that information suggesting that the Kabul were in fact the same group as the Kapurn or Kaparn was contradicted by other information that the Kabul were a distinct group. 71 After discussing a number of different groups, including the creation of Aboriginal corporations in recent times, the delegate said the paramount difficulty with considering the sufficiency of the factual basis was the contradictory and unclear nature of the factual basis material about the relevant pre-sovereignty society. There was limited coherent information about the identity of the society from which it was said laws and customs arise. The delegate also said that the native title claim group comprises only the descendants of Udaji, whose traditional country appears to have been in the north-east portion of the claim area and who appears to have been a Kapurn man. But there was no information about the Kapurn people at settlement and the materials did not address the factual basis of the system of laws and customs of a normative content acknowledged and observed by the Kapurn people at that time. 72 Having regard to different families and claims made, the delegate said there was no clear factual information that went to explaining how the laws and customs of the relevant society gave rise to only Udaji and his descendants holding the claimed native title rights in the claim area. This caused uncertainty in the materials surrounding the persons who, according to traditional laws and customs, hold the common or group rights. 73 The delegate said the basis of the claim in the amended application was that it is only the descendants of Udaji who, according to traditional law and custom, solely hold the common and group rights, and there was considerable uncertainty that the applicant had provided a sufficient factual basis for that claim. 74 The delegate, by reference to the material, understood that the applicant's material asserted that the laws and customs of the Central West Goldfields claim group were the same as those acknowledged and observed by the current claim group and that there was also information addressing how Elizabeth Sambo was taught laws and customs by her father and the old people, indicating laws and customs were passed down through preceding generations. However, the delegate considered that information was "scant" and not sufficient to support the assertion referred to in subs 190B(5)(b) that the current laws and customs are in fact rooted in the laws and customs of a pre-sovereignty society. 75 For similar reasons the delegate was unable to be satisfied that it was sufficient to support the assertion referred to in subs 190B(5)(c) that the group have continued to hold native title pursuant to traditional laws and customs. 76 In the result each of (a), (b) and (c) of s 190B(5) were considered by the delegate not to be satisfied. 77 It will be noted above that in [5] of her affidavit, Ms Sambo says that the descendants of Arthur Sambo are part of the group, that his descendant, Judy Sambo, is a member of the applicant, and that the genealogy provided should not be considered incomplete. However, she also indicates that, if necessary, a complete genealogy will be filed. 78 At [8], Ms Sambo says that she will prepare a further affidavit to fully explain how it is that s 190B(5)(a), (b) and (c) are satisfied and the full significance of all of the materials provided. It is proposed that all material will need to be retrieved from the Tribunal and it will take another six to eight weeks to fully prepare an affidavit or submissions for that purpose. 79 Ms Sambo also notes in [10] of her affidavit that it appears the delegate was lacking information about the association of the Sambo family with areas to the north-centre (north of Southern Cross), north-west (Remlap and Mouroubra), west (towards Merredin) and south-west and south (Marvel Loch and Queen Victoria Rocks). She states simply, "that will be provided in an amended application". 80 In regard to that latter submission, in particular, the State makes the following submission concerning s 190B(5): With regards to s190B(5), the Applicant has stated that they intend to file a further affidavit to explain the material filed in support of the Application, and the significance of that material. The First Respondent respectfully submits that this will not amend the Application in a way that will lead to registration. The Delegate of the Registrar expressed concern that the Application provided a large volume of evidence that contained various contradictions and inconsistencies, and that there was no guidance or direction as to how that information would support the assertions made by the Applicant. A further affidavit as proposed in the Supporting Affidavit would not provide any new evidence to resolve the existing contradictions and inconsistencies. The Applicant states that it would provide direction as to which documents should be considered in relation to the provisions of the NTA but does not address the fact that they would need to support the assertions made by the applicant. 81 In the result, the Court having granted the applicant, by the orders of 23 June 2015, the opportunity to propose amendments to its application that would obviate the deficiencies identified by the delegate, but the applicant not having done so, the question is whether there is any good reason not to dismiss the claim. 82 In my view, the delegate has reasonably found that none of the assertions referred to in s 190B(5)(a), (b) or (c) is supported by a sufficient factual basis. As stated in Strickland v State of Western Australia [2015] FCA 914 at [139], it is necessary that a "sufficient" basis for the assertions be established. I agree with the reasons of the delegate as to why this was not achieved in this case. It follows that the applicant could not satisfy s 190B(6) and (7). There is also nothing to suggest the delegate's finding concerning s 190C(4) should be reconsidered. 83 Given the failure of the applicant to take up the opportunity to explain how the application will be successfully amended, I find it is unlikely that the deficiencies will be remedied. 84 Further, there is no other reason why the application should not be struck out. 85 The dismissal of the claimant application does not, of course, prevent the applicant from lodging a fresh claimant application and seeking to remedy the deficiencies identified by the delegate.

conclusion and order 86 For these reasons the claimant application should be dismissed and the following order made: (1) The claimant application in WAD 420 of 2013 be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth). I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.