Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267

Between:

Les Budby and Cecil Brown Jnr on behalf of the Barada Barna People (Applicant) and
State of Queensland, Central Highlands Regional Council, Isaac Regional Council, Mackay Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Marubeni Coal Pty Ltd, Nippon Steel & Sumitomo Metal Australia Pty Ltd (Formerly Known as Nippon Steel Australia Pty Limited), Queensland Coal Pty Limited, Rio Tinto Exploration Pty Ltd, Scentre Limited (Formerly Known as Westfield Ltd), Sumisho Coal Development Queensland Pty Ltd, Anglo Coal (German Creek) Pty Ltd, Anglo Coal (Grosvenor) Pty Ltd, Capcoal Mine Joint Venturers, Moranbah North Coal Pty Ltd, Moranbah North Mine Joint Venturers, Bowen Central Coal Pty Ltd, Nebo Central Coal Pty Ltd, Vale Australia (Cq) Pty Ltd, Vale Australia (Ip) Pty Ltd, Vale Coal Exploration Pty Ltd, Exxaro Australia Pty Ltd, Oldfield Exploration Pty Limited, North Queensland Pipeline No 1 Pty Ltd, North Queensland Pipeline No 2 Pty Ltd, John Thomas Baker, Marnie Louise Baker, Anthony John Bella, Edward Martin Bella, Martin Joseph Bella, Peter Andrew Bella, Regena Frances Bella, Robert James Bella, Stephen Edward Bella, Robert John Borg, Lawrence Paul Danastas, Marion Carmel Danastas, Kathryn Head, Thompson Head, Peter Malcolm Hughes, Raye Marilyn O'Sullivan, Robert Alan O'Sullivan and Kim Frances Willoughby (Respondents)

Between: Eileen Beryl Pegler on behalf of the Widi People of the Nebo Estate #2 and others named in the Schedule B (Applicant) and State of Queensland and others named in the Schedule B (Respondents)

Judge: Dowsett J

Where made: Queensland

Determination

Native title exists in parts of the determination area.

It consists of non-exclusive native title rights and interests over those parts of the Shared Country determination area described in Schedule 1.A Part 1 Table 2 (Shared Country Native Title Area).

Native title holders

The Barada Barna People and the Widi People each hold native title over the Shared Country Native Title Area, as described in Schedule 1 Part 2 Table 1.

The non-exclusive native title rights exist over part of the determination area

These rights and interests include:
- the right to access, be present on, move about on and travel over the area;
- the right to camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
- the right to hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
- the right to take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
- the right to take and use the water of the area for personal, domestic and non-commercial communal purposes;
- the right to conduct ceremonies on the area;
- the right to be buried and bury native title holders within the area;
- the right to maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
- the right to teach on the area the physical and spiritual attributes of the area;
- the right to hold meetings on the area; and
- the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

The above native title rights and interests are subject to and exercisable in accordance with the laws of the State, Commonwealth, and the traditional laws and customs observed by the native title holders. Native title in this instance is also subject to the terms and conditions of the agreements referred to in paragraphs 1 of Schedule 4.C insofar as those agreements apply to the Widi #2 determination area.

Non-native title rights and interests that exist in the determination area include: 

These rights and interests include: - the rights of Telstra Corporation Limited as the owner or operator of telecommunications facilities installed within the determination area under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
- the rights and interests of Ergon Energy Corporation as the owner and operator of any works as defined in the Electricity Act 1994 (Cth);
- the rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233) as the owner and operator of works within the meaning of the Electricity Act 1994 (Qld);
- the rights and interests of SunWater Limited and Eungella Water Pipeline Pty Ltd;
- the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116) in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld);
- the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116), Aurizon Property Pty Ltd (ACN 145 991 724) or Aurizon Operations Limited (ACN 124 649 967) under any lease, licence, easement, permit or agreement within the Shared Country Native Title Area;
- the rights and interests of Anglo Coal (Grosvenor) Pty Ltd under the Mineral Resources Act 1989 (Qld);
- the rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd jointly under the Mineral Resources Act 1989 (Qld);
- the rights and interests of Anglo Coal (German Creek) Pty Ltd, Mitsui German Creek Investment Pty Limited and Jena Pty Ltd as joint holders of mining lease ML 1831 granted pursuant to the Mining Act 1968-1979 (Qld);
- the rights and interests of Moranbah North Coal Pty Ltd, NS Moranbah North Pty Ltd, Mitsui Moranbah North Investment Pty Ltd, NS Coal (Moranbah North) Pty Ltd, Jfema Moranbah North Pty Ltd and Kobelco Trading Australia Pty Ltd (formerly Shinsho Moranbah Coal Pty Ltd) as joint holders of mining lease 70108 granted pursuant to the Mineral Resources Act 1989 (Qld);
- the rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd as the current lessees under Term Lease No.233945 over Lot 23 on Plan GV 148;
- the rights and interests of North Queensland Pipeline No.1 Pty Ltd and North Queensland Pipeline No.2 Pty Ltd;
- the rights and interests of Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of the Exploration Permits for Coal numbered 667, 719, 722, 951, 1036 and 1052;
- the rights and interests of Vale Coal Exploration Pty Ltd as the holder of the Exploration Permits for Coal numbered 858 and 1146;
- the rights and interests of Peabody BB Interests Pty Ltd, Peabody Coppabella Pty Ltd, Peabody West Burton Pty Ltd, Peabody West Walker Pty Ltd, Peabody Moorvale West Pty Ltd, Millennium Coal Pty Ltd, Peabody (Burton Coal) Pty Ltd and Peabody Energy Australia PCI Rush Pty Ltd granted pursuant to the Mineral Resources Act 1989 (Qld);
- the rights and interests of Nippon Steel & Sumitomo Metal Australia Pty Ltd, Marubeni Coal Pty Ltd and Sumisho Coal Development Queensland Pty Ltd granted under the Mining Act 1968-1975 (Qld);
- the rights and interests of Rito Tinto to exploration permits granted under the Mineral Resources Act 1989 (Qld);
- the rights and interests of the State of Queensland, Central Highlands Regional Council, Mackay Regional Council and Isaac Regional Council to access, use, operate, maintain and control the dedicated roads in the Barada Barna Native Title Area and the rights and interests of the public to use and access the roads;
- the rights and interests of the Central Highlands Regional Council, Mackay Regional Council and Isaac Regional Council under the Local Government Act 2009 (Qld), Land Protection (Pest and Stock Route Management) Act 2002 (Qld);
- the rights and interests of the State of Queensland or any other person existing by reason of the force
and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation: the Land Act 1994 (Qld), Nature Conservation Act 1992 (Qld), Forestry Act 1959 (Qld), Water Act 2000 (Qld), Petroleum Act 1923 (Qld) or Petroleum and Gas Act 2004 (Qld), Mineral Resources Act 1989 (Qld), Fisheries Act 1994 (Qld), Transport Infrastructure Act 1994 (Qld), Sustainable Planning Act 2009 (Qld); and
- the rights and interests of the general public to access waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public on the 31st of December 1993 under the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld).



The rights and interests under Indigenous Land Use Agreements (ILUA's) including:
- the Barada Barna People, Widi People and Local Government Indigenous Land Use Agreement;
- the Barada Barna People, Widi People of the Nebo Estate #2 and Ergon Energy ILUA;
- the parties to the Connors River Dam and Pipelines Project ILUA registered on 5 September 2011 (QI2011/009);
- the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (QI2002/049);
- the Barada Barna Native Title Area involving the Dipperu National Park Indigenous Land Use Agreement;
- the Barada Barna People and Local Government Indigenous Land Use Agreement;
- the Barada Barna People and Ergon Energy ILUA;
- the Barada Barna People/Logan Creek and Cherwell ILUA;
- the Barada Barna People/Oben Park (aka Harrybrandt West) ILUA;
- Barada Barna People/Killarney ILUA;
- the Moranbah ILUA between the Barada Barna People, Barada Barna Limited, the Minister for Economic Development and the State of Queensland; and
- the Burdekin Pipeline ILUA; and
- the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (National Native Title Tribunal number (QI2002/049).

There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

In the case of conflict, the exercise of non-native title rights and interests will prevail over the native title.

The Barada Barna People's native title is to be held in trust by the Barada Barna Aboriginal Corporation RNTBC. Which, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth).

The Widi People's native title is held by the Widi People. The Gangli Narra Widi Aboriginal Corporation RNTBC, once incorporated under the CATSI Act 2006 (Cth) is to act as their agent and perform the functions required under the Native Title Act 1993 (Cth).

Background

Two native title applications were made on behalf of the Barada Barna People and the Widi People over a total area of approx 17,212 km2. While there was no real doubt that the Barada Barna People are the traditional owners of most of the area, there had been a dispute, now resolved, as to the northern boundary of where the Barada Barna Country meets the southern boundary of the Widi Country [1].

The two applications were combined for administrative purposes so that all questions in dispute between the Barada Barna and the Widi Peoples could be resolved at one time [13].

Anthropological work identified the traditional owners of the determination area as being three different groups. The evidence suggests that the Barada People occupied the southeastern part of the area, whilst the Barna People were west. The Widi People reside in the north [2]. Each group has sworn affidavits that demonstrate the close relationships between each other [6].

Details of Judgment

Justice Dowsett's reasons, as follows, are reproduced in Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271.

Evidence suggested that the Barada People traditionally occupied the southeastern part of the area, the Barna People were further to the west, and the Widi People were in the north [2].

Three determinations were made in favour of:

1. the Barada Barna People, concerning the greater part of the determination area;
2. the Widi People concerning land parcels in the boundary region; and
3. the Barada Barna and Widi Peoples concerning the Shared Area which includes Lake Elphinstone, Kemmis Creek, and Burton Downs[14].

Dowsett J was satisfied it was appropriate to recognise that native title exists in the way that all the parties agreed and proposed under s 87 of the Native Title Act 1993 (Cth) [18].

His Honour commended the Barana Barna and Widi peoples' individual and collective strength for having survived as a recognisable society with ongoing connection to their traditional lands, despite their pain and suffering since European settlement [22].

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