Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271

Northeastern Queensland

The determination area is between the Denham and Peak Ranges to the west and the Connors and Boradsound Ranges to the east. The southern boundary follows Lotus Creek and the Connors River until it joins the Isaac River. See Schedules 1A and 1B for a description and maps. See Schedule 2 for a description of the excused public works and lot areas. The determination area is within the jurisdiction of the Central Highlands, Isaac, and Mackay Regional Councils.

Registered on the National Native Title Register

Between: Les Budby and Cecel Brown Jnr on behalf of the Barada Barna People (Applicant) and the State of Queensland and others named in Schedule A of the determination (Respondents) (QUD380/2008)

Judge: Dowsett J

Determination

On this day, the Court made three determinations of native title. This determination in favour of the Barada Barna People, another in favour of the Widi People (Pegler and Ors on behalf of the Widi People of the Nebo Estate #2 v State of Queensland (No 3) [2016] FCA 1272), and one in favour of the Barada Barna and the Widi Peoples over the Shared Country Area (see also Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267).

This determination was conditional on the making of seven Indigenous Land Use Agreements (ILUAs), and so became effective from 31 August 2021:

• Dipperu National Park ILUA;
• Barada Bana People and Local Government ILUA;
• Barada Barna and Ergon Energy ILUA;
• Barada Barna People/Oben Park (aka Harrybrandt West) ILUA;
• Barada Barna People/Killarney ILUA; and
• Moranbah ILUA.

Native title exists in parts of the determination area 

It consists of non-exclusive native title rights and interests.

Native title holders

Native title is held by the Barada Barna People over the Barada Barna Native Title Area, as described in Schedule 1 Table 1 and 2.

Non-exclusive native title rights and interests exist in parts of the determination area

These rights and interests exist over the area, described in Schedule 1.A Part 2 Table 2, and include the right to:

• access;
• camp, and build temporary shelters on the area;
• hunt, fish, and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
• take, use, share and exchange natural resources from the land and waters for personal, domestic, and non-commercial purposes;
• conduct ceremonies;
• hold meetings;
• maintain places of importance and significance under traditional laws and customs and protect those places;
• teach the physical and spiritual aspects of the area;
• be buried; and
• light fires for domestic purposes.

Other rights and interests in the determination area

A: Barada Barna and Widi Shared Country Native Title Area

 Other rights and interests in this area include those of:

• the parties under the Barada Barna People, Widi People and Local Government Indigenous Land Use Agreement (ILUA), and the  Barada Barna People, Widi People of the Nebo Estate #2 and Ergon Energy Shared Country ILUA;
• the parties under the following registered agreements - the Connors River Dam and Pipeline Project ILUA; the North Queensland Gas Pipeline Southern ILUA
• Telstra Corporation Limited as the owner or operator of telecommunication facilities;
• Ergon Energy Corporation;
• Queensland Electricity Transmission Corporation Ltd trading as Powerlink Queensland;
• SunWater Limited and Eungella Water Pipeline Pty Ltd;
• Aurizon Network Pty Ltd in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld), and certain subsidiaries in relation to a trusteeship any permit or agreement;
• Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of exploration permits;
• Peabody West Burton Pty Ltd, Peabody West Walker Pty Ltd, Peabody (Burton Coal) Pty Ltd, and Peabody Energy Australia PCI Rush Pty Ltd as holders of interests granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of mining lease ML 4738 granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of certain exploration permits for coal under the Mineral Resources Act 1989 (Qld);
• the State of Queensland and Isaac Regional Council to use, maintain and control the dedicated roads in the Shared Country Native Title Area, as well as the public to use those roads;
• the Isaac Regional Council under its local government jurisdiction etc;
• the State of Queensland or any other person by the laws of the State of Queensland; and
• members of the public under the common law, including the right to fish.

B: Barada Bana Native Title Area

Other rights and interests in this area include those of:

• parties under the Dipperu National Park ILUA, the Barada Barna People and Local Government ILUA, the Barada Barna People and Ergon Energy Ltd, the Barada Barna People/Logan Creek and Cerwell ILUA, the Barada Barna People/Oben Park (Harrybrandt West) ILUA, the Barada Barna People/Killarney ILUA, the Moranbah ILUA;
• the parties under the following registered agreements - the Connors River Dam and Pipeline Project ILUA; the Burdekin Pipeline ILUA, the North Queensland Gas Pipeline Southern ILUA;
• Telstra Corporation Limited as the owner or operator of telecommunication facilities;
• Ergon Energy Corporation;
• Queensland Electricity Transmission Corporation Ltd trading as Powerlink Queensland;
• SunWater Limited and Eungella Water Pipeline Pty Ltd;
• Aurizon Network Pty Ltd in relation to rail transport infrastructure, and certain subsidiaries in relation to a trusteeship any permit or agreement;
• Anglo Coal (Grosvenor) Pty Ltd as holder of a mining lease under the Mineral Resources Act 1989 (Qld);
• Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd as joint holders of two exploration permits and two mining development licenses under the Mineral Resources Act 1989 (Qld) and as current holders lessees over a land lot;
• Moranbah North Coal Pty Ltd as holder of an exploration permit under the Mineral Resources Act 1989 (Qld);
• Anglo Coal (German Creek) Pty Ltd, Mitsui German Creek Investment Pty Ltd and Jena Pty Ltd as joint holders of a mining lease under the Mining Act 1968-1979 (Qld);
• 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 Pty Ltd as joint holders of a mining lease under the Mineral Resources Act 1989 (Qld);
• North Queensland Pipeline No.1 Pty Ltd and North Queensland Pipeline No.2;
• Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of exploration permits for coal;
• Peabody BB Interests Pty Ltd, Peabody Coppabella Pty Ltd, Peabody West Burton Pty Ltd, Peabody West Walker Pty Ltd, Peabody Moorvake West Pty Ltd, Millenium Coal, Peabody (Burton Coal) Pty Ltd, and Peabody Energy Australia PCI Rush Pty Ltd as holders of interests granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of mining lease ML 4738 granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of certain exploration permits for coal under the Mineral Resources Act 1989 (Qld);
• the State of Queensland, Central Highlands Regional Council, Mackay Regional Council, and Isaac Regional Council to use, maintain and control the dedicated roads in the Barada Barna Native Title Area, as well as the public to use those roads;
• the Central Highlands Regional Council, Mackay Regional Council, and Isaac Regional Council under their local government jurisdiction etc;
• the State of Queensland or any other person by the laws of the State of Queensland; and
• members of the public under the common law, including the right to fish.

B: Widi #2 Native Title Area

Other rights and interests in this area include those of:

• the parties under the following registered agreements - the Connors River Dam and Pipelines Project ILUA; the North Queensland Gas Pipeline Southern ILUA; 
• Telstra Corporation Limited as the owner or operator of telecommunication facilities;
• Ergon Energy Corporation;
• Queensland Electricity Transmission Corporation Ltd trading as Powerlink Queensland;
• SunWater Limited and Eungella Water Pipeline Pty Ltd;
• Aurizon Network Pty Ltd in relation to rail transport infrastructure, and certain subsidiaries in relation to a trusteeship and any permit or agreement;
• Peabody West Burton Pty Ltd and Peabody Energy Australia PCI Rush Pty Ltd as holders of interests granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of mining lease ML 4738 granted under the Mineral Resources Act 1989 (Qld);
• the holder from time to time of certain exploration permits for coal under the Mineral Resources Act 1989 (Qld);
• the State of Queensland and Isaac Regional Council to use, maintain and control the dedicated roads, as well as the public to use those roads;
• the Isaac Regional Council under its local government jurisdiction etc;
• the State of Queensland or any other person by the laws of the State of Queensland; and
• members of the public under the common law, including the right to fish.

See Schedule 4 for further information about the non-native title rights and interests. 

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

The Barada Barna Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) holds the native title in trust for the Barada Barna People. It is the prescribed body corporate that performs the functions required under the Native Title Act 1993 (Cth).

The Gangali Narra Widi Aboriginal Corporation RNTBC holds the native title in trust for the Widi People. It is the prescribed body corporate that performs the functions required under the Native Title Act 1993 (Cth).

Full text of the determination is available via the URL link above.

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

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].

Native title exists in parts of the determination area

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