Federal Court of Australia

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 3) [2023] FCA 1073

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Elizabeth Sambo on 4 September 2023 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant to this proceeding claims native title rights and interests on behalf of the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people (Karlamaya Kapurn people) in respect of an area located in the Western Goldfields region of Western Australia (the Marlinyu Ghoorlie claim). Broadly described, the claim area takes in Kalgoorlie in the east and extends past Kalannie in the west and Southern Cross to the south.

2    Part of the area the subject of the Marlinyu Ghoorlie claim is also the subject of a second native title application, which is made on behalf of the Karratjibbin people (the Karratjibbin claim). The Karratjibbin claim area is wholly within the Marlinyu Ghoorlie claim area. It shares the western boundary of the Marlinyu Ghoorlie claim and extends east past Southern Cross, but does not extend as far as Coolgardie or Kalgoorlie.

3    On 5 October 2022, the Marlinyu Ghoorlie claim and the Karratjibbin claim were set down for trial in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim areas?

(b)    In relation to that part of the claim areas where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

4    On 22 December 2022, the Court made orders setting a timetable for steps to be taken to prepare the proceedings for trial on the separate questions, with the trial to commence in October 2023. Many extensions to the timetable have been granted. On 10 July 2023, I made orders confirming that the trial of the separate questions would commence on 2 October 2023. On the current timetable for the trial of the separate questions, and taking into account the extensions that have been given:

(a)    concise statements were filed progressively between 17 April 2023 and 5 May 2023;

(b)    lay witness statements were filed progressively between 21 July 2023 and 6 September 2023;

(c)    expert reports were filed progressively between 30 June 2023 and 23 July 2023, with supplementary expert evidence to be filed by 6 November 2023 (after the hearing of lay evidence);

(d)    lay evidence will be heard during the three week period commencing on 2 October 2023;

(e)    expert evidence will be heard in the week commencing 11 December 2023; and

(f)    closing submissions will be heard in the week commencing 18 March 2024.

5    These reasons concern an interlocutory application filed on 4 September 2023 by a respondent to the Marlinyu Ghoorlie proceeding, Elizabeth Sambo, which seeks to vary the current timetable such that (relevantly):

(a)    the date for the filing of expert evidence is extended to 29 February 2024;

(b)    the date for the filing of supplementary expert evidence is extended to 5 April 2024;

(c)    the hearing of evidence from expert witnesses will be conducted in May 2024;

(d)    the hearing of closing submissions will be conducted in July 2024.

6    Ms Sambo’s application was supported by an affidavit affirmed on 4 September 2023 by her solicitor, Ross Mackay, and by written submissions dated 6 September 2023. In his affidavit, Mr Mackay stated:

I have been requested by the organisation providing funding for Ms Sambo to engage legal representation and an expert witness to participate in the separate question hearing not to identify them in material that is sent to other parties in this proceeding. To comply with that request, the organisation is identified as “Primary Funding Provider” throughout this affidavit. The other organisation referred to in this affidavit, which has oversight responsibilities over the Primary Funding Provider, is referred to as the “Secondary Funding Provider” throughout this affidavit, for the reason that identifying that organisation may allow the Primary Funding Provider to be identified by inference. For the same reason, documents referred to in this affidavit have not been annexed or exhibited to this affidavit, to avoid the organisation being identified via those documents. If, in order to be properly informed as to the basis upon which Ms Sambo makes the interlocutory application, the Court requires identification of the organisations referred to in this affidavit and/or copies of the documents referred to therein, these can be provided.

7    On 7 September 2023, I requested that the documents referred to by Mr Mackay in his affidavit be filed and served. The documents were provided to the Court, although it is not clear that they were filed and served. As noted below, the parties opposing Ms Sambo’s application did not seek an oral hearing with respect to the application and did not seek the deferral of the application pending receipt of the documents.

8    The documents referred to in Mr Mackay’s affidavit reveal that the “Primary Funding Provider” is Native Title Services Goldfields Limited (NTSG) and the Secondary Funding Provider appears to be the National Indigenous Australians Agency (NIAA). NTSG is the native title service provider for the Goldfields region of Western Australia pursuant to s 203FE of the Native Title Act 1993 (Cth) (NTA). By that recognition, NTSG is funded to perform all of the functions of a representative body which are prescribed by the NTA. In circumstances where it was necessary for Ms Sambo to disclose to the Court the fact that funding has recently been made available to her in support of her interlocutory application, it is unclear to me why NTSG sought to keep secret the fact that it was providing the funding to Ms Sambo.

9    The evidence and submissions filed on behalf of Ms Sambo are to the effect that Ms Sambo seeks a variation to the current trial timetable because, until recently, she was self-represented in the proceeding and was unable to fund the preparation of expert anthropological evidence. On 11 August 2023, NTSG agreed to provide an amount of funding to Ms Sambo “for the engagement of an expert witness in relation to the separate question listed in the Marlinyu Ghoorlie proceedings”. As a result of that funding decision by NTSG, Ms Sambo wishes to engage an anthropologist, Dr James Rose, to conduct research and provide a report for the purposes of the proceeding. Dr Rose has informed Ms Sambo that, if he is able to be engaged (which is not yet certain), he would not be able to deliver a report until 29 February 2024 (at the earliest).

10    The interlocutory application is opposed by the Marlinyu Ghoorlie applicant and by the State of Western Australia. Each filed written submissions on 7 September 2023. The Karratjibbin applicant and the other respondent parties participating in the hearing of the separate questions (including NTSG) did not wish to be heard on the application.

11    Apart from Ms Sambo’s application, the proceedings are ready to be heard on the separate questions.

12    I have recently refused an application by the State to remove Ms Sambo as a respondent to the Marlinyu Ghoorlie proceeding: see Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer No 1). I have also recently refused an application by NTSG to vacate the trial dates: see Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060 (Dimer No 2). NTSG’s application was made on a different basis to the application made by Ms Sambo.

13    None of the parties sought an oral hearing and I therefore determined the application on the papers.

14    For the reasons that follow, I refuse the application.

Background

Procedural background

15    The procedural background to the Marlinyu Ghoorlie and Karratjibbin proceedings was summarised in Dimer No 1. Relevant aspects are reproduced in these reasons.

16    The Marlinyu Ghoolie claim was filed on 22 December 2017 and entered on the Register of Native Title Claims on 28 March 2019. The claim group comprises those persons who: are descended from one or more of four apical ancestors, being Nellie Champion, Kadee, Warada, and Lucy Sambo, or those persons and their descendants who have been incorporated into the rights-holding group in accordance with its traditional laws and customs; who identify as Kalamaia, Gubrun, Kapurn and/or Kalaako (including alternate spellings of these names, or any combination of them); and who are recognised by other members of that group. The land and waters the subject of the Marlinyu Ghoorlie claim comprises an area in the Western Goldfields region that is approximately 89,797 square kilometres in size.

17    Ms Sambo became a respondent to this proceeding on 25 November 2019. Since that time, Ms Sambo has been actively involved in the proceeding.

18    Ms Sambo identifies as a member of the Kaparn people, which can be alternatively described as “Kapurn”, “Gubrun”, “Kaboon”, “Kabul” and “Kabu(d)n”. For consistency with the spelling adopted by the Marlinyu Ghoorlie applicant, and on the basis that the alternative spellings are interchangeable, I will refer in these reasons to the “Kapurn” people, where relevant. Ms Sambo contends that “Kalamaia” was a word within the Kapurn language, but does not accept that it is a descriptive term for the Kapurn people or any other group who held interests within the trial area at sovereignty. Through her ancestor, Lucy Sambo, she falls within the Marlinyu Ghoorlie claim group as defined. However, Ms Sambo opposes the Marlinyu Ghoorlie claim. Having regard to Ms Sambo’s case as stated in her concise statement filed on 28 April 2023, the bases for her opposition are twofold. First, Ms Sambo contests the extent and boundaries of the area the subject of the Marlinyu Ghoorlie claim, in respect of which the Kapurn people hold native title rights and interests. Second, Ms Sambo disputes the composition of the claim group as constituted in the Marlinyu Ghoorlie application.

19    As to the extent of the Marlinyu Ghoorlie claim area, Ms Sambo contends that the Kapurn people hold native title rights and interests in an area that encompasses the eastern boundary of the trial area from Widigiemooltha, extending north-east to just below Mulline, continuing north to Diemals, then to the west taking in Bullfinch and Southern Cross and finally continuing south to Parker Range. This area comprises a portion of the trial area. Ms Sambo also contends that the eastern external boundary of this area in fact extends beyond the claim area, but accepts that this is beyond the scope of the separate question. Ms Sambo further contends that three groups hold native title rights in respect of other parts of the Marlinyu Ghoorlie claim area: the Ballardong people (of the Noongar nation), the Badimaia people and the Ngadju people. Except to their geographic extent, Ms Sambo advances no position as to the nature and extent of the native title rights and interests of these groups.

20    As to the composition of the Marlinyu Ghoorlie claim group, Ms Sambo contends that the rights and interests of the Kapurn people are derived through descent from three apical ancestors, Lucy Sambo, Kadee and Warada, and not through Nellie Champion, contrary to the claim made by the Marlinyu Ghoorlie applicant. Ms Sambo contends that, at sovereignty, the rights and interests in land and waters held by the descendants of Nellie Champion were held under the normative system of laws and customs observed by the Ballardong/Noongar people. By contrast, the rights and interests held by the descendants of Lucy Sambo, Kadee and Warada were held under the normative system of laws and customs observed by the Kapurn people. These comprise two distinct and autonomous systems of laws and customs. Consequently, the rights and interests held by the descendants of Lucy Sambo, Kadee and Warada in the area identified by Ms Sambo are held exclusively from the rights and interests held by the descendants of Nellie Champion within the trial area.

21    As stated above, on 5 October 2022, the Marlinyu Ghoorlie claim and the Karratjibbin claim were set down for trial in respect of the separate questions. Timetabling orders were made on 22 December 2022 and concise statements, lay witness statements and expert reports have been filed in advance of the commencement of the hearing on 2 October 2023. In February 2023, on application by the Marlinyu Ghoolie applicant and Ms Sambo, the Court received oral and written preservation evidence from Brian Champion Snr (the former lead applicant in this proceeding) and Gary Sambo (the brother of Ms Sambo). The preservation evidence was heard on country in Kalgoorlie over 4 days. That evidence concerned three of the central issues in this proceeding, including: whether the Karlamaya Kapurn people hold native title rights and interests in the whole of Marlinyu Ghoorlie claim area; the composition of the Karlamaya Kapurn rights-holding group and, in particular, whether that group includes the Champion family; and whether the claim area extends to the west of Southern Cross.

Applications for funding

22    Until recently, Ms Sambo was self-represented in this proceeding. The evidence shows that, since at least August 2022, Mr Mackay of Mackay Legal was providing pro bono legal assistance to Ms Sambo. On 30 August 2022, Mr Mackay applied to NTSG and the Australian Government Solicitor (AGS) for funding for legal representation and the preparation of lay and expert evidence. On 26 September 2022, the AGS replied and advised Mr Mackay to pursue the funding application through NTSG. Mr Mackay did not receive a response from NTSG at that time.

23    On 14 December 2022, Mr Mackay lodged a formal application for funding with NTSG, again for the purposes of obtaining legal representation and the preparation of lay and expert evidence. On 9 January 2023, NTSG refused the funding request. A statement of reasons was provided on 16 January 2023. In its letter of refusal and its statement of reasons, NTSG referred to the following principal matters:

(a)    The Marlinyu Ghoorlie claim had been amended to include Lucy Sambo as an apical ancestor to accord with anthropological research that had been conducted. Ms Sambo is a descendant of Lucy Sambo and therefore her interests as a Kapurn person are within the Marlinyu Ghoorlie claim. Further, there was evidence that Ms Sambo had actively participated in the Marlinyu Ghoorlie claim meetings and had not been denied the opportunity to voice her opinions.

(b)    There was a limited anthropological basis to support the competing contentions advanced by Ms Sambo concerning the native title rights and interests of the Kapurn people.

(c)    There was evidence to suggest that Ms Sambo's position was not widely supported by other descendants of Lucy Sambo.

24    Mr Mackay then sought an internal review and an external review of NTSG’s decision to refuse funding. Both the internal review and the external review confirmed NTSG’s decision to refuse funding.

25    On 1 August 2023, Ms Sambo made a further application to NTSG for funding assistance. On 11 August 2023, NTSG informed Ms Sambo that it would provide funding “for the engagement of an expert witness in relation to the separate question listed in the Marlinyu Ghoorlie proceedings”. In its letter, NTSG gave a number of reasons for its change in position. First, it said that it had received a new allocation of funds for Indigenous parties with competing interests in the Marlinyu Ghoorlie proceedings. Second, it referred to the recent interlocutory application by the State to remove Ms Sambo as a respondent to the proceeding which was dismissed (the subject of Dimer No 1). NTSG referred to my reasons for dismissing the application which included that “a respondent’s opposition to a native title determination application on the basis of competing native title rights and interests may meaningfully affect the outcome of the application, even if no positive determination can be made in respect of the respondent’s asserted rights and interests”. Third, it referred to comments made by Bromberg J during the preservation evidence hearing that it was the Court’s preference for the claims made by everyone in relation to the Marlinyu Ghoorlie claim area be determined in the hearing of the separate questions.

26    As discussed in Dimer No 2, NTSG is both the native title service provider for the Goldfields region and a respondent to this proceeding. At the time that NTSG applied to be joined as a respondent to the proceeding, it submitted that being joined as a respondent was consistent with the performance of its facilitation and assistance functions under the NTA because it would be aware of and participate in the progress of the proceeding. However, as discussed in Dimer No 2, the functions given to a representative body under the NTA do not contemplate or necessitate a representative body becoming a party to native title proceedings (at [81]). Further, joinder may or may not assist a representative body to perform its statutory functions and joinder may place a representative body into a position of conflict with respect to the Aboriginal peoples or Torres Strait Islanders for whom it is a representative body (at [88]). Those potential difficulties are highlighted in the present case. Although NTSG had previously refused a request for funding from Ms Sambo, it was open to NTSG to consider the new request made by Ms Sambo on 1 August 2023. However, the request had obvious implications for the future conduct of the proceeding and the trial timetable. It was almost inevitable that the provision of funding would lead to the present application being made by Ms Sambo to vary the current trial timetable. At the time that NTSG was considering the funding request from Ms Sambo, NTSG had itself filed an application with the Court to expand NTSG’s role in the proceeding (which application was considered in Dimer No 2). Two weeks after approving funding to Ms Sambo, NTSG filed its own application in the Court seeking to vary the current trial timetable for different reasons (which was also considered in Dimer No 2). NTSG did not seek to be heard on the present application. However, Mr Mackay’s evidence is that NTSG sought to keep secret, in this application, its role in providing funding to Ms Sambo. In circumstances where NTSG has not been heard on these matters, it would be inappropriate to make any adverse comment. However, the circumstances serve to highlight the potential for conflict of interest and duties when a representative body (or, as here, a native title service provider performing the functions of a representative body) is joined as a party to native title proceedings. Ultimately, Ms Sambo’s application must be determined on its own merits and without regard to the circumstances in which Ms Sambo was granted funding by NTSG.

Consideration

27    The principal considerations under which the application is to be determined are those stated in s 37M of the Federal Court of Australia Act 1976 (Cth). Section 37M(1) stipulates that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37M(2) stipulates that the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

28    Respectfully, I also agree with the following observations of Mortimer J (as her Honour then was) in Tommy on behalf of Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671 (at [61]):

… a lack of funding (irrespective of the best efforts of a party) is generally not a sufficient reason to alter trial dates, or trial programming orders, especially where the proceeding concerns claims that are of some age, and where there is no clear evidence whether the funding situation is likely to change in the near future. Each application must be considered in the context of the particular circumstances of the proceeding (or proceedings) concerned, but there is a clear trend in other authorities of this Court, and also outside native title, to suggest that the Court should not allow a party’s lack of funding to govern how cases are managed towards a resolution, in accordance with the Court’s statutory obligations.

29    In support of the application, Ms Sambo submitted that the key elements of her contentions in the proceeding concern the identification of the group that holds native title rights and interests, boundaries between groups and societies within the area covered by the application, and the nature of the different societies, all of which differ to the contentions advanced by the Marlinyu Ghoorlie applicant. Ms Sambo argued that the complexity of her contentions mean that the Court will be greatly assisted by the analysis of a competent anthropological expert. Ms Sambo further submitted that the expert evidence available to the Court will be deficient if Ms Sambo is not given the opportunity of providing an expert analysis of her contentions and, further, the Court will be assisted by a targeted analysis of the kinship network model using independently testable means, to test the particular assertions made by Ms Sambo as to the structure of that kinship network.

30    I accept that Ms Sambo has diligently pursued funding for her participation as a respondent in the proceeding. Until recently, NTSG has refused funding. The reasons for the refusal had a cogent basis and the NTSG’s decision to refuse funding was confirmed in an internal and external review. It follows that the fact that this application has been made very close to the commencement of the trial is not the fault of Ms Sambo. On 11 August 2023, NTSG altered its position and agreed to make funding available. Part of the reason for the change in position is that additional funding is now available to NTSG.

31    The absence of fault on the part of Ms Sambo is not, however, determinative of the application. The variation to the trial timetable will cause significant prejudice to the Marlinyu Ghoorlie applicant, the State, and to the efficient use of the Court’s finite resources.

32    Contrary to the submissions advanced by Ms Sambo, the proposed variation will not only disrupt and delay the hearing of expert evidence and the conclusion of the trial, it will inevitably disrupt and delay the hearing of lay evidence. As submitted by the State, the timetabling orders required the parties to file and serve their expert anthropological evidence in advance of the hearing of lay evidence, so that the cross-examination of lay witnesses can take account of the anthropological case that is advanced through the expert evidence. If the Court were to accede to Ms Sambo’s application, the lay evidence would be heard before the parties were aware of the opinions that may be expressed by Dr Rose on behalf of Ms Sambo. In her submissions, Ms Sambo submitted that the Court will be assisted by “a targeted analysis of the kinship network model using independently testable means, to test the particular assertions made by Ms Sambo as to the structure of that kinship network”. It is unclear what that means. As submitted by the State, Ms Sambo’s concise statement does not refer to the “kinship network model”. Again, if the Court were to accede to Ms Sambo’s application, the lay evidence would be heard before the parties were aware of any opinions that may be expressed about such a model.

33    It follows, in my view, that acceding to Ms Sambo’s application would require the Court to vacate the trial dates for the hearing of the lay evidence, as well as the remainder of the hearing dates. This has the effect of delaying the determination of the claim made by the Marlinyu Ghoorlie applicant. As I said in Dimer No 2 at [53] in the context of the application by NTSG to vacate the hearing dates:

The [Marlinyu Ghoorlie] claim group has waited almost 6 years to have its case heard by the Court. They have prepared their case for trial on the separate questions, and have filed lay and expert evidence. Evidence has also been prepared by the Karratjibbin applicant and by the State. The Marlinyu Ghoorlie and Karratjibbin claims are ready to be heard on the separate questions. The vacation of the trial dates would cause at the very least material prejudice to the Marlinyu Ghoorlie claim group. It is an ever present reality in native title cases that members of the claim group may die before the claim is heard and determined by the Court.

34    The variation to the trial timetable will also undermine the efficient use of the Court’s finite resources. The Court is able to hear the proceedings now. If the trial dates are vacated as proposed by Ms Sambo, an entirely new timetable for the hearing will need to be devised, taking into account the availability of the Court, all legal representatives and lay and expert witnesses.

35    In my view, acceding to Ms Sambo’s application will significantly prejudice the efficient administration of justice in this proceeding.

36    It is necessary to weigh that prejudice against the likely prejudice to Ms Sambo from refusing her application. In my view, the prejudice to Ms Sambo must be characterised as speculative. Four points can be noted in that regard.

37    First, it is not even clear that Dr Rose will be able to be engaged by Ms Sambo. Mr Mackay gave evidence that Dr Rose advised Mr Mackay that his availability was subject to him confirming that another law firm who have approached him to be engaged on a related matter agree to him also being engaged by Ms Sambo in relation to this proceeding.

38    Second, Ms Sambo cannot presently know whether Dr Rose’s research will support Ms Sambo’s contentions in the proceeding. Dr Rose is yet to be engaged by Ms Sambo and no evidence was adduced on this application that Dr Rose has previously conducted any research in respect of the Marlinyu Ghoorlie claim area or expressed any opinions about native title rights and interests in that claim area.

39    Third, Ms Sambo identifies as a member of the Kapurn people and is a member of the Marlinyu Ghoorlie claim group as a descendant of Lucy Sambo. It can be accepted that Ms Sambo contends that Nellie Champion was not a Kapurn person and therefore her descendants should not be recognised as Kapurn people. I am not satisfied, however, that this issue cannot be determined on the basis of historical evidence and that it requires further anthropological evidence from Dr Rose.

40    Fourth, while Ms Sambo contends that persons other than Kapurn people hold native title rights and interests in parts of the Marlinyu Ghoorlie claim area (specifically, the Ballardong people, the Badimaia people and the Ngadju people), it is not apparent from Ms Sambo’s concise statement that she claims to hold native title rights and interests as a member of any of those societies. As noted in Dimer No 1 at [28], except to their geographic extent of their respective country, Ms Sambo advances no position as to the nature and extent of the native title rights and interests of these societies.

41    Having regard to those matters, I consider that the prejudice to the efficient administration of justice in this proceeding that will be caused by acceding to Ms Sambo’s application outweighs the likely prejudice to Ms Sambo from refusing her application. In my view, the interests of justice strongly favour refusing the application.

Conclusion

42    For the reasons given above, Ms Sambo’s interlocutory application seeking to vary the current timetable for the hearing of the separate questions will be refused.

Associate:

Dated:    11 September 2023

SCHEDULE OF PARTIES

No: WAD647/2017

Federal Court of Australia

District Registry: Western Australia

Division: General