Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504

Tablelands Region, Far North Queensland

Registered on the National Native Title Register.

Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504.

Between: Tennyson Kynuna and Lynette Burke on behalf of the Bar Barrum People (Applicants) and the State of Queensland, Mareeba Shire Council, Ergon Energy Corporation Limited, Mr Perkes, and Walsh River Respondents (Respondents).

Judge: Reeves J.

Where made: Queensland.

Determination:

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

Native title is held by the Bar Barrum People.

The exclusive native title rights and interests over part of the determination area, as described in Part of Schedule 1A of the determination, is:

• the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others (other than in relation to water). 

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

In relation to water, the non-exclusive rights (within the exclusive area) for personal, domestic, and non-commercial communal purposes, include:

• hunt, fish, and gather from the water of the area; 
• take and use the natural resources of the water in the area; and 
• take and use the water of the area.

And in relation to the non-exclusive areas, as described in Part 2 of Schedule 1A of the determination, the non-exclusive rights exist to:

• 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 and waters of the area for personal, domestic, and non-commercial communal purpose; 
• take and use the water of the area for personal, domestic, and non-commercial communal purposes;
• conduct ceremonies on the area; 
• be buried and bury native title holders within the area; 
• maintain important places 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 hunting or clearing vegetation. 

Non-native title interests in the determination area (See Schedule 4, available via URL Link):

The nature and extent of other interests that exist in relation to the determination area are listed below, as they exist at the time of determination:

• the rights of the parties to the Bar Barrum and Mareeba Shire Council Indigenous Land Use Agreement (ILUA) (QI2001/053); and
• the rights of the parties to the Bar Barrum #2-7 and Tablelands Regional Council ILU (QI2012/056);
  
• the rights under the agreement between the Bar Barrum People and Ergon Energy Corporation Limited, authorised by the Bar Barrum People native title claim group on 18 April 2013 and to be known as the Bar Barrum People and Ergon Energy ILUA and, the Bar Barrum People and Ergon Energy area agreement between the Applicant and Ergon Energy Corporation Limited. As at 27 November this agreement is not registered on the National Native Title Tribunal Register of Indigenous Land Use Agreements;
  
• the rights and interests of Ergon Energy Corporation Limited; 
• the rights and interests of the Mareeba Shire Council;
• the rights and interests of the holder of Water Licence No.53578K granted under the Water Act 2000 (Qld);
• the rights and interests of Simon Knight (Permit to Occupy 9/6248); 
• the rights and interests of Robert and Isabelle Liddle, and Shelia Manning Stanley (Permit to Occupy 9/5540);
• the rights and interests of Martha Wright (Permit to Occupy 9/643);
• the rights and interests of Carmel Maureen Martin (Permit to Occupy 9/4790);
• the rights and interests of Jeffrey James Perkes under (OL9/567 and OL9/569); and
  
• rights and interests held by the State of Queensland or Commonwealth of Australia; under the Laws of the State and the Commonwealth. 

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 RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the Bar Barrum People.

Background: 

On 28 September 2001, the Bar Barrum People filed an application (#5) for a determination of native title over an area of 71.3462 square kilometres within the Tablelands Region of Far North Queensland. The application could not proceed at the time because it was the subject of a dispute between the Bar Barrum #5 Applicant, and twenty respondent parties known as the 'Walsh River Respondents'.

Since 2001, this application has been changed four times. By the time Reeves J determined the claim, the most recent amendment had made Mr Tennyson Kynuna and Ms Lynette Burke the Bar Barrum #5 Applicant on 28 October 2016 [2].

The dispute with the Walsh River Respondents began in 2001 and concerned the requirements of s 225 of the Native Title Act 1993 (Cth). The issue was whether any of the 20 Walsh River Respondents' claims could be considered 'a restriction on the use of the land or waters, whether or not annexed to other land or waters', under s 225(c) [3].

Case management continued with a Registrar of the Court. In early November 2016, Reeves J believed the parties had reached an agreement and listed an urgent hearing for 11 November 2016. However, at the hearing the Bar Barrum #5 Applicant indicated that they wished to bring an interlocutory application, pursuant to s 84(8) of the Native Title Act 1993 (Cth) [7], seeking to dismiss the Walsh River Respondents as respondent parties on the grounds that, if removed, the determination could proceed by consent on 5 December 2016. As a result, the Court granted the interlocutory hearing on 25 November 2016. 

Between 11 and 25 November 2016, both parties attended further mediation with a member of the National Native Title Tribunal [8]. The mediation was successful and, at the hearing for the interlocutory application on 25 November 2016, the parties indicated that they agreed on the terms of the determination [8]. On that day, the parties provided proposed orders to the Court in the form of an annexure to the agreement. 

Details of Judgment:

As noted above, through mediation, the Bar Barrum #5 Applicant and the Walsh River Respondents reached an agreement about the terms of the determination and a form of orders to provide the appropriate recognition of native title rights and interests held by the Bar Barrum People in the land and waters of the determination area set out in the Bar Barrum #5 Application [8]. 

The Bar Barrum #5 Applicant, the Walsh River Respondents, and the State of Queensland, all provided written reasons why they believed the proposed determination order was appropriate. Following this, the Court held that several amendments be made [20].

Following these changes, the Court was satisfied that all the conditions set out in s 87 of the Native Title Act 1993 (Cth) had been met and that it was appropriate to make a determination of native title without a hearing [29]. 

Native Title exists in the entire determination area.

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