Foster v Que Noy

The appeals in Foster v Que Noy involved a dispute regarding the removal of Marjorie Foster from her position as a member of the applicant in two native title claims. The respondents, the Northern Territory Power and Water Corporation and ENI Australia BV, sought to pipe natural gas through land subject to the claims. The Kamu, a native title claim group, had agreed to allow access, but Ms Foster's refusal to join in that agreement led to applications to replace her under s 66B of the Native Title Act 1993 (Cth). Ms Foster argued that the trial judge erred in concluding she had been properly removed, but the appeals were dismissed as there was no established error in the trial judge's decision.

The central legal issue was whether the decision to remove Ms Foster was made in accordance with the traditional laws and customs of the Kamu. The trial judge found that the Kamu had followed their traditional decision-making process, which involved comprehensive consultations with senior persons, including Ms Foster, her children, and Arthur Que Noy. This finding was based on the evidence of two anthropologists, Ms Mearns and Mr Barber, who had detailed knowledge of the Kamu's traditions and customs. Ms Foster did not challenge this evidence before the trial judge or cross-examine the anthropologists.

On appeal, Ms Foster argued that the trial judge should have adopted a different interpretation of Ms Mearns' evidence, which she claimed required that she be given notice of the meeting's purpose. This construction was not raised with Ms Mearns, Mr Barber, or the trial judge, and it was inconsistent with Ms Mearns' opinion that the traditional decision-making process had been followed. The court rejected Ms Foster's attempt to show error, as her interpretation of the evidence was not supported by the record and contradicted the trial judge's findings. Consequently, the appeals were dismissed.

The court granted leave to appeal but dismissed the appeals, ordering that Ms Foster pay the respondents' costs of the appeal. This decision underscores the importance of adhering to traditional decision-making processes within native title claim groups and highlights the need for clear and unchallenged evidence in such matters.