Foster v Que Noy

Background 6 The Northern Territory Power and Water Corporation and ENI Australia BV are currently pursuing a project to pipe natural gas from an offshore gas field, 110 kilometres North West of Wadeye (Port Keats), off the Northern Territory/Western Australian coastline. The gas is to be piped to the Channel Island Power Station which services Darwin. The proposed gas pipeline is to be constructed by the Australian Pipeline Trust. As presently envisaged, it will cross the areas of land that are the subject of the Fish River and the Douglas North claims. It will also cross an area of land the subject of a claim known as the Tipperary claim, lodged on behalf of the Kamu, but the application for that claim has not yet been considered for registration by the Native Title Registrar and is not relevant to these appeals. 7 With the exception of Ms Foster, all of the persons who jointly constitute the applicant in each of the Fish River and the Douglas North claims have agreed to the terms on which access to the land should be given for the proposed gas pipeline. Ms Foster's refusal to join in that agreement caused a dispute within the Kamu and led to the applications being made under s 66B of the Act, to replace the applicant in each claim.

Relevant Legislation 8 The applications to remove Ms Foster from her positions were made under s 66B of the Act. That section provides: Replacing the applicant Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established. 9 The other provisions of the Act that were particularly relevant to the applications to remove Ms Foster from her positions were ss 253 and 251B. Section 253 provides that 'authorise', in relation to the making of native title determination applications and dealing with matters arising in relation to such applications, has the meaning given by s 251B. Put shortly, s 251B provides for two methods of decision making, either (a) according to the traditional laws and customs of the native title claim group or, (b) where there is no such traditional process, according to the process agreed to and adopted by the native title claim group.

The issues raised on these appeals 10 These appeals began as applications for leave to appeal. However, in their written submissions the respondents indicated that they did not oppose leave being granted and following that indication the leave applications and the appeals were heard together at the hearing on 18 March 2008. 11 It is common ground that the process of decision making that had to be followed by the native title claim group involved in the Fish River and Douglas North claims in making the decision to apply to replace Ms Foster under s 66B of the Act, was the one described in s 251B(a), ie according to their traditional laws and customs. For present purposes (ie putting aside the cross-appeals), the other criteria for a valid application under s 66B are not in issue, namely the current applicant no longer being authorised for the purposes of s 66B(1)(a)(i), or the current applicant having exceeded the authority given to him or her, for the purposes of s 66B(1)(a)(ii). 12 The decision of the Kamu to authorise the applicants to make the applications in these matters was a decision made unanimously at a meeting that was held at the Mirrambeena Resort in Darwin on 9 February 2007 ('the Kamu meeting'). The correlating decisions of the other peoples within the broader native title claim group were made separately at subsequent meetings some months later, but there is no dispute about those parts of the decision making process. On the traditional decision making process of the broader native title claim group: see the trial judge's reasons at [2007] FCA 1888 at [38]. These appeals essentially revolve around the Kamu meeting and, specifically, whether the critical decision made at the Kamu meeting was made in accordance with the traditional laws and customs of the Kamu.

The evidence relied upon in the applications under s 66B 13 Most of the evidence, so far as it is relevant to these appeals, is in the form of affidavits from two anthropologists: Ms Mearns and Mr Barber. Ms Mearns deposed to extensive experience as an anthropologist in Australia over more than 30 years, including detailed research in relation to the traditions and customs of the Kamu. Her evidence fell into three areas: what happened at the Kamu meeting, the views the Kamu persons present at the Kamu meeting expressed to her that they believed they had followed their traditional decision making process at that meeting, and her expert opinion that the Kamu's traditional decision making process was followed at the Kamu meeting. Mr Barber deposed to some 25 years experience as an anthropologist, and he, too, had conducted detailed research involving the Kamu. The main thrust of his evidence was to support Ms Mearns' opinion that the Kamu's traditional decision making process was followed at the Kamu meeting. 14 Before considering the trial judge's review of that evidence, it should be noted that when the s 66B applications were first mentioned before the trial judge, in June and July 2007, Ms Foster was not legally represented. To allow her to raise her concerns within a more relevant, legal framework, arrangements were made for Ms Foster to obtain pro bono assistance under O 80 of the Federal Court Rules. At the same time, Ms Foster was given the opportunity to apply to adduce evidence, or to take any other steps she may be advised to take in relation to the applications. Senior counsel subsequently represented Ms Foster and made written submissions on her behalf. However, no application was made to cross examine Ms Mearns or Mr Barber, and no attempt was made to adduce any evidence on behalf of Ms Foster. 15 The learned trial judge conducted a thorough review of the relevant evidence at [27]‑[31] of his decision in the Douglas North claim: [2007] FCA 1888, as follows (excluding the irrelevant parts): [27] … the evidence said to support that that decision had been made was said to come from the affidavit of Ms Mearns. That affidavit outlined the details of a meeting of the Kamu people on 9 February 2007. The meeting did not extend to all members of the native title claim group. In particular, neither Gabriel Hazelbane nor Paddy Huddleston nor other members of the Wagiman people or the Warai people were present. At that meeting, according to Ms Mearns, it was unanimously resolved to remove Ms Foster as a named applicant from the native title determination application and that Margaret Foster and Arthur Que Noy should be named on behalf of the Kamu people as applicants. There was no evidence as to whether minutes, or any record other than what appears in Ms Mearns affidavit, of the meeting were taken … [28] The Kamu people's decision was, it was submitted, made at the meeting on 9 February 2007. Ms Foster and four of her children, namely Maxine Storer, Michael Foster, Kenny Storer and Lynette Anderson did not attend. On the evidence, two of those children do not actively participate in decisions made by the Kamu group, and the other three persons including Ms Foster were notified of the meeting. There is no other evidence concerning which members of the Kamu people were notified of the meeting, nor how they were notified, nor what they were told would be considered at the meeting. … [30] The appropriate decision-making process of the Kamu people, where disputes have arisen, was described by Ms Mearns as "a process of comprehensive consultations with emphasis on senior persons, being [Ms] Foster, those of her children who have been actively involved in Kamu matters and Arthur Que Noy." She said that, despite the Kamu people being significantly affected by colonisation, its decision-making process is traditional. Alternatively, if as a matter of law the process is not regarded as traditional, Ms Mearns said that the process had nonetheless been agreed and adopted by the Kamu people. Mr Barber said that, if the Kamu decision-making process was found not to be traditional, then it could be argued that a decision-making process based on consensus could be established, as, "the decision-making process derives from tradition". That the process is traditional one was supported by at the hearing on 12 July 2007 by Ms Foster's daughter in law who appeared on her behalf. She said: "We have always followed the traditional way of living in our decision-making and respecting our elders. That has always been our way…" [31] The evidence on this aspect is not entirely satisfactory. The reasons for that observation are apparent from the recital of the evidence. Nevertheless, I am satisfied that the Kamu people traditionally make decisions by a process of comprehensive consultations with emphasis on senior persons, being the upper two generations, who have been actively involved in Kamu matters. That is the process which appears to have occurred at the meeting on 9 February 2007. Ms Mearns also said in her affidavit that the Kamu persons present on 9 February 2007 considered that they had properly followed the Kamu people's decision-making process. Ms Mearns holds the same opinion. In Mr Barber's affidavit, he too agrees with that proposition. Consequently, not without hesitation, I have come to the view that the decision made on 9 February 2007 to withdraw Marjorie Foster's authority to make decisions in relation to the application was one which was made by the Kamu people. On the same occasion a decision was made to replace her with her daughter Margaret Foster as a member of the "applicant". It is then necessary to aggregate with those decisions the decisions of the Wagiman people and of the Warai people to show that the 'applicant', including and directed at Ms Foster, is no longer authorised by the claim group to do so.

Contentions 16 Mr Young, who appeared for Ms Foster, limited his submissions to the question whether the critical decisions to withdraw the existing applicant's authority and to authorise the new applicant to make the determination application, were made in accordance with the traditional decision making process of the Kamu. Mr Young focused on that part of Ms Mearns' affidavit which expressed her opinion that the appropriate decision making process of the Kamu in the circumstances was: '… a process of comprehensive consultations with emphasis on senior persons, being [Ms] Foster, those of her children who have been actively involved in Kamu matters, and [Mr] Que Noy'. He submitted that a minimum requirement of such a 'process of comprehensive consultations' must necessarily be that Ms Foster be notified of the subject matter of the Kamu meeting, and specifically that the meeting would deal with a proposal that she be removed from her position as part of the 'applicant'. Therefore, he submitted, since Ms Foster had not been notified of this proposal and since she had been absent from the Kamu meeting, the requisite 'comprehensive consultations' could not have occurred. 17 Mr Gageler SC, who appeared for the respondents, submitted that the decision making process described by Ms Mearns in her affidavit placed an 'emphasis' on the senior persons mentioned, without necessarily expressing a requirement that each of them had to be present at the Kamu meeting, or even consulted at all. He submitted that there was no evidence that it was necessary, as a part of the required decision making process, to give notice to Ms Foster of the purpose of the Kamu meeting. Indeed, he submitted, it was implicit in Ms Mearns' opinion that the Kamu meeting had followed the Kamu's decision making process that such notice was not required, given that it was common ground that no such notice had been given to Ms Foster. Finally Mr Gageler emphasised that Ms Mearns was a highly qualified anthropologist with particular experience with the Kamu and that neither her evidence, nor the evidence of Mr Barber was contradicted or challenged by Ms Foster.

Consideration 18 In our view there are obvious difficulties with adopting the construction of Ms Mearns' evidence put by Ms Foster. First, neither of Ms Mearns nor Mr Barber was cross examined on the opinions expressed in their affidavits. In this respect, it is significant that at that stage of the proceedings, Ms Foster was represented by senior counsel and had been granted the opportunity to challenge this evidence and call her own evidence to contradict it - yet she did neither of those things. Ms Mearns and Mr Barber were, therefore, deprived of the opportunity to explain whether they thought there was any ambiguity or inconsistency in their respective opinions about the need for 'comprehensive consultations' within the Kamu decision making process, given that it was common ground from the outset of these proceedings that Ms Foster was not given notice of the purpose of the Kamu meeting. 19 Secondly, as Mr Gageler SC submitted, the construction put by Ms Foster, that the need for 'comprehensive consultations' necessarily required that she be given notice of the purpose of the Kamu meeting, is inconsistent with Ms Mearns' opinion that the meeting had been conducted in accordance with the Kamu's traditional decision making process ie without notice being given to Ms Foster of the purpose of the Kamu meeting. Thirdly, Mr Young accepted before us that this construction was not raised before the trial judge. 20 In summary, the learned trial judge accepted the opinions of Ms Mearns, supported by the opinion of Mr Barber, that they (including the Kamu persons present at the Kamu meeting) believed the traditional decision making process of the Kamu was followed at the Kamu meeting. The evidence on this point was neither challenged nor contradicted by Ms Foster before the trial judge. Ms Foster's attempt before us to show that the trial judge erred by failing to adopt the construction of Ms Mearns' opinion she now seeks to put, must be rejected - that construction was not raised with Ms Mearns or Mr Barber, it was not raised with the trial judge, and it is contradicted by the effect of the opinion expressed by Ms Mearns. To the contrary, in our view, the trial judge's decision was firmly founded on the evidence and the arguments that the parties chose to place before him.

Conclusion 21 In each appeal, the appellant has failed to establish the requisite error in the trial judge's decision that would allow this Court to interfere with his decision. It follows that these appeals should be dismissed. Since the appeals are to be dismissed, it is not necessary for us to consider the cross-appeals. 22 In each appeal, the Court therefore orders that leave to appeal be granted but that the appeal be dismissed and the appellant pay the respondents' costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, North and Reeves.

Associate: Dated: 11 April 2008 Counsel for the Respondents: Mr S Gageler SC and Mr S Glacken