Congoo v State of Queensland [2001] FCA 868 (28 June 2001)

Congoo v State of Queensland [2001] FCA 868

Between: Thomas Congoo and John Edward Wason on their own behalf and on behalf of the Bar-Barrum People (APPLICANT) AND
State of Queensland
Herberton Shire Council
Mareeba Shire Council
Ergon Energy Corporation Limited and
Telstra Corporation Limited
(RESPONDENTS)

Judge: Hely J

Where: Herberton

Determination:

Native title exists in parts of the determination area

The determination covers the following areas:

Land or waters in
(a) Lots 83, 115, 128, 135, 141, 142, 147, 150, 151, and 156 on USL21437;
(b) Lot 19 on USL21563;
(c) Lot 1 on USL21432;
(d) Lot 1 on USL21433;
(e) Lot 26 on HG723;
(f) Lot 27 on HG724;
(g) Lot 35 on USL21562;
(h) Lot 3 on USL21433;
(i) Lot 53 on plan AP7039 (previously known as Lot 53 on USL21566);
(j) Lot 14 on USL21562;
(k) Lot 127 on USL21437;
(l) Part of Lot 567 on OL57 (previously known as Lots 91 and 100 on USL21437);
(m) Lots 1 to 4 on plan AP3453 (previously known as Lot 146 on USL 21437);
(n) Lot 18 on LD96 being Reserve for Camping and Water R.87; and
(o) Lot 8 on LD149 being Reserve for Departmental and Official (Training Farm) Purposes R.139.

These areas are shown on Plan AP5171 attached at Schedule 1 of the annexure to the determination.

Native title exists in the determination area except for the following areas, where native title has been extinguished:

(a) those parts of Lot 18 on Plan LD96 that were subject to the following scheduled interests:
(i) Miner's Homestead Lease No. 1012 Chillagoe issued under the Miner's Homestead Leases Act 1913; and
(ii) Miner's Homestead Lease No.1013 Chillagoe issued under the Miner's Homestead Leases Act 1913;
(b) those parts of Lot 14 on plan USL21562 that were subject to the following scheduled interests:
(i) Miner's Homestead Lease No. 1374 Herberton issued under The Mining Act of 1898;
(ii) Miner's Homestead Lease No. 1802 Herberton issued under The Mining Act of 1898;
(iii) Miner's Homestead Lease No. 1475 issued under the Mining Act 1898; and
(iv) Miner's Homestead Lease No. 1896 issued under the Mining Act 1898;
(c) land or waters on which any public work has been constructed, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the works;
(d) opened roads, dedicated roads and roads legally constructed for public use within the determination area; and
(e) the Cairns to Forsayth railway line (Mungana Branch line).

As described in Schedule 2 of the annexure to the determination.

See the 'URL' link to the homepage of this entity below for complete text of the determination, including annexure and schedules.

The original native title application was lodged by members of the Bar-Barrum people with the National Native Title Tribunal on 8 November 1996, before amendments were made to the Native Title Act 1993 (Cth) by the Native Title Amendment Act 1998 (Cth). However, as a result of transitional provisions, the original application was deemed to have been made on 30 September 1998.

The matter of this claim first came before the Court on 10 February 1999 for a Directions Hearing before Justice Drummond. Orders were made referring the claim to the Tribunal for mediation.

On 4 June 1999 the Court granted leave to amend the original application to provide a more detailed description of the native title rights and interests claimed by the Bar-Barrum people.

Following discussions between the Bar-Barrum claim group and the Djirrbal people, a neighbouring Aboriginal tribe, over the traditional ownership of part of the Bar Barrum claim area, the Bar-Barrum people sought leave of the Court to amend the claim by deleting certain parcels of land from the claim area.

Mediation conducted by the Tribunal which commenced in November 1997 was successful and parties reached an agreement.

Dr Bruce Sommer, anthropologist and linguist, and Elaine Sommer, recognised expert on Far North Queensland, put together a report to assist the claim and negotiations.

The agreement recognised that native title exists in relation to the Determination Area and that the Bar-Barrum people are the common law holders of that title. In turn the Bar-Barrum people recognised that others parties have certain rights and interests in respect of the land within the Determination Area. As common law holders they have the right to posses, occupy, use and enjoy the determination area in accordance with and subject to their traditional laws and customs and the lawful force and operation of the Commonwealth and the State of Queensland. Details of these rights and interests are listed by Justice Hely in the consent determination.

The land is to be managed for Bar-Barrum People by the Bar-Barrum Aboriginal Corporation. As with the majority of consent determinations, the orders were made in respect of land which was either unallocated crown land, reserved land or land already held by, or for the benefit of, Aboriginal or Torres Strait Islander People.

Native title was determined to have been extinguished in a number of lots subject to Miner's Homestead Leases under the Miner's Homestead Leases Act 1913 and the Mining Act 1898.

Justice Hely noted the benefits of negotiated settlements and their increased popularity in comparison with contested determinations, which can be 'lengthy, costly and divisive in the community'.

There were a number of other interests in the claim area that are recognised by the consent determination. They include, the interests of the Mareeba Shire Council and Herberton Shire Council in relation their legal and equitable interests under any reserves, permits and other estates and interests. Both councils have their interests protected by separate Deeds of Agreement with the native title holders. Other interests include those of the Ergon Energy Corporation Limited, Powerlink Queensland and Telstra Corporation in exercising their statutory functions, operating their facilities and maintaining their infrastructure. Both Ergon Energy Corporation Limited and Telstra Corporation have their interests in the claim area protected by separate Deeds of Agreement with the native title holders.

Other interests include those of the licencees under occupational licences under the Land Act 1910 and the Land Act 1962; the interests of lessee under leases granted under the Mining Act 1898, the Mining Act 1968 and the Mineral Resources Act 1989; the interests of trustees of reserves granted under the Crown Lands Act 1884, the Land Act 1910 and the Land Act 1962; and the State of Queensland's 'absolute property' for the purposes of the Forestry Act 1959 in forest products and quarry materials. The Crown and the State of Queensland also hold interests pursuant to any statute or valid executive or legislative act that was current at the date of this determination. The rights and interests of other parties prevail over the native title rights and interests and any exercise of those native title rights and interests.

The Indigenous Land Use Agreement between the Bar-Barrum People and the Herberton Shire Council was also lodged with the National Native Title Tribunal for registration after the reaching of this consent determination.

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