Congoo on behalf of the Bar Barrum People #9 v State of Queensland [2017] FCA 1510

Far Northern Queensland, Mutchilba

Registered on the National Native Title Register

Congoo on behalf of the Bar Barrum People #9 v State of Queensland [2017] FCA 1510.

Between Michael James Congoo, Andrew Timothy Congoo, Warren Congoo and Shelton Murphy on behalf of the Bar Barrum People #9 (Applicants) and the State of Queensland, the Mareeba Shire Council, and the Osborne Property Company PTY LTD (ACN 166795151) (Respondents).

Judge: Reeves J

Determination:

Native title exists in the entire determination area. It consists of non-exclusive Native title rights and interests.

Native title is held by the Bar Barrum People.

The non-exclusive native title rights over the entire determination area consist of:

• access, be present on, move about on and travel over the area;
• camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
• hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
• take and use natural resources from the land or waters for personal, domestic, and non-commercial communal purposes;
• take and use the water of the area for personal, domestic, and non-commercial purposes;
• conduct ceremonies on the area;
• be buried and bury native title holders within the area;
• 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;
  
• teach on the area the physical and spiritual attributes of the area;
• hold meetings on the area; and
• light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

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

• the rights and interests of the Osborne Property Company Pty Ltd under Rolling Term Lease 17727227 over Lot 301 on HG843491;
• the rights and interests of the Mareeba Shire Council under law within the part of the Determination Area that lies within its jurisdiction, including the right to access the area for the purpose supplying and maintaining public infrastructure;
• any other rights and interests held by the State of Queensland or the Commonwealth of Australia, or existing under the laws of the State and Commonwealth;
• as at the date of this determination, any existing public access to waterways, and beds and banks or foreshores of waterways.

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

The Mbabaram Aboriginal Corporation ICN8449, as the prescribed body corporate, will perform the functions required under the Native Title Act 1993 (Cth) and act as agent for the native title holders.

Background:

The Bar Barrum People's native title rights and interests over areas of land and waters on the Atherton Tableland in and around the Walsh River have been recognised in eight previous native title determinations (Crown Law, 2017).

The Bar Barrum People #1 claim was resolved in 2001, and the Bar-Barrum Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) administers the native title resulting from this claim. The Mbabaram Aboriginal Corporation administers the native title recognised in the other mentioned Bar Barrum claims. The native title rights and interests include both exclusive and non-exclusive native title.

The Bar Barrum #9 claim area covers approximately 1.5 square kilometres of land south-east of Cairns in Queensland (Crown Law, 2017). The application over this area was first made on 25 November 2015. 

The Bar Barrum People #9 and #10 claims were determined on the same date in 2017.

Details of Judgment:

On 7 July 2017 the Federal Court granted leave to amend the Bar Barrum #9 application to change the description of the native title claim group.

Through mediation, agreement was reached as to the terms of a determination to provide recognition of the native title rights and interests held by the Bar Barrum People in relation to the land and waters covered by the Bar Barrum #9 application.

The Court was satisfied that a determination of native title was within the power of the court.

Native Title exists in the entire determination area

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