Background
The applicant represented the Marlinyu Ghoorlie claim group comprised of the descendants of the three apical ancestors of Nellie Champion, Kadee and Warada. By this interlocutory application, orders were sought for (1) the current applicant to be replaced by a differently composed group of persons and (2) the replacement applicant have leave to file an amended application. The amendments sought to be made to the native title determination application included the expansion of the current claim group so that, amongst other changes, it included claimants who were the descendants of Lucy Sambo.
The State supported the orders sought by the replacement applicant, but Ms Elizabeth Sambo and Ms Sharon Dimer opposed the orders. Ms Sambo’s opposition to the originating application was based on her contention that the descendants of Nelli Champion, Kadee and Warada did not hold rights and interests in the eastern part of the claim area. She also alleged evidentiary defects which she contended invalidated the authorisations in question. Ms Dimer filed two affidavits and had oral submissions. The basis for her opposition was that the Kalaako people held native title rights in the claim area and that the Marlinyu Ghoorlie claim group are not Kalaako People.
The authorisation of an amendment to expand the Marlinyu Ghoorlie claim group occurred at a meeting held on 16 August 2021 in Coolgardie. A second authorisation of the expanded claim group and 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. These meetings were also attended remotely through a meeting in Ceduna, South Australia.
His Honour dealt with several issues in the one judgment, they are separated out below.
Sufficient Notice
In reference to Ms Sambo’s submissions of the evidentiary defect, Ms Sambo complained that draft minutes of the meetings were available but not submitted to the Court. His Honour held that since there was no inference as to what could be drawn from this, the complaint should be rejected.
The Court then went on to consider whether sufficient notice of the meetings was provided. His Honour considered that the public were notified through the local newspapers (Kalgoorlie Mine and the Koori Mail), 236 members of the claim group were directly notified, and word of mouth. Ms Sambo’s evidence also established that she was aware and had informed her descendants about the meeting. Whilst Bromberg J acknowledged more could have been done to publicise the meetings, this did not demonstrate insufficient steps were taken and thus the complaint was rejected.
The Court also inquired into whether members were afforded a reasonable opportunity to participate in the meeting. Ms Sambo alleged that she and other descendants did not vote at the meeting due to confusion caused by an explanatory covering notice. The replacement applicant contended that Ms Sambo elected to not vote to protest. Furthermore, in a letter from Ms Sambo to the solicitor for the replacement applicant she stated that members of the Sambo family intended to attend the authorisation meetings to vote against such a resolution. The solicitor for the replacement applicant replied to that communication encouraging all members of the Sambo family to attend the meetings. His Honour held the proper question to ask was whether, objectively assessed, the explanatory covering notice would have led a reasonable person in Ms Sambo’s position to conclude that she was not entitled to vote. Having referenced the covering notice, it was held it would not have.
Conduct of the meetings
Ms Sambo raised complaints about the conduct of the meetings. It was alleged that the changes to the claim group description were not adequately explained or discussed and there was inadequate engagement about the proposed changes with Ms Sambo and the Sambo descendants.
Bromberg J held the relevant question is whether the decision made fairly reflected the will of the collective whole. His Honour rejected that Ms Sambo and her supporters were not adequately provided the opportunity to take part in the meetings and held that the present case did entail a decision that reflected the will of those who made it.
Ms Sambo also complained that the notification process and the location of the South Australian meeting favoured the existing claim group members to the prejudice of the new members of the group. Whilst his Honour acknowledged Ceduna was a more convenient location for the existing members, the location was still likely to be most convenient location to the majority of persons that resided in South Australia and was not so burdensome as to amount to a denial of opportunity for those that resided in Port Lincoln.
Non-Traditional Form of Decision Making
Ms Sambo contended that the evidence failed to establish that the claim group had at either meeting discussed whether there was a traditional decision-making process pursuant to s 251B of the Native Title Act 1993 (Cth) (NTA). Since there was no traditional decision-making process, the adoption of a non-traditional decision-making process must meet s 251B(a) of the NTA. Bromberg J held that a failure to acknowledge that there was no traditional decision-making process prior to adopting a non-traditional process does not spell invalidity, which did not align with Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955.
The members of the first meeting were aware of the legal requirement that if there was a traditional decision-making process then it must be followed. Thus, it could be inferred that members were also aware in the second meeting because it was largely the same cohort. It was concluded that Ms Sabo’s submission be rejected.
Inability of persons attending at Ceduna to fully participate
Since persons who attended the morning meeting in Ceduna were not permitted to vote, it was alleged those persons were denied the opportunity to participate in the meeting. It was concluded that the defect was not material because the authorisation given during the morning meeting was not affected. His Honour was satisfied that no one who attended the Ceduna meeting was materially prejudiced by being denied an opportunity to fully participate in the meeting. In coming to this conclusion, Bromberg J considered that no member at the Ceduna meeting voted against the resolution or formally abstained and therefore would have voted in the support of the same outcome in the afternoon meeting. Even if all members of the Ceduna meeting voted against the resolution, it still would have passed with a comfortable majority.
Leave to amend originating application
Ms Sambo submitted the replacement applicant should be refused the leave to amend the originating application. Ms Sambo relied on the principle referred to in Anderson on behalf of Numbahjing Claim within the Bundjalung Nation v New South Wales [2011] FCA 114. She contended that the nature of the proposed amendments to the claim group description was not consistent with the previous conduct of the proceeding and that the failure to explain the changed case constituted a lack of good faith. This contention was rejected since an application for leave to amend is an application to depart from the party’s claim as previously pleaded.
None of the allegations relied upon by Ms Sambo demonstrated a lack of good faith sufficient to warrant a refusal to grant the applicants the capacity to pursue the case they wanted to. The leave to amend was granted.
Ms Dimer’s Challenge
Ms Dimer’s oral submissions stated she had not been notified of the meetings directly and she was discriminated against as she was forced by police to not attend. The evidence provided by Ms Betty Logan addressed that Ms Dimer was not a descendant from Nellie Champion, Waranda or Kadee or Lucy Sambo and therefore was not entitled to attend the meetings. Ms Logan also acknowledged she took a restraining order against Ms Dimer for the express purpose of preventing Ms Dimer from attending the meetings. She deposed she was afraid that she would be verbally abused if Ms Dimer attended.
It was held that the validity of the authorisation given by the meetings could not be undermined by Ms Dimer because she was denied participation by operation of law. Thus, Ms Dimer’s allegations were rejected.
Held that the orders sought by the replacement applicant should be made.