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Malthouse on behalf of the Bar Barrum People #6 v State of Queensland (No 2) [2016] FCA 696

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 10 June 2016
Sub Category:Consent Determination (Native Title Act)
Place:

Atherton Tableland,Northern Queensland Region

State/Country:Queensland, Australia
The Determination Area covers land in and around Dimbulah, Herberton, Irvinebank, and Mount Garnett on the Atherton Tableland in North Queensland. The area is approximately 48.49 square kilometers, approximately 300km west of Cairns, and 285km north-west of the Tablelands in Far North Queensland. It includes areas of exclusive native title spanning approximately 39.88 square kilometers (combined), and areas of non-exclusive native title rights, spanning approximately 8.61 square kilometers (combined).
Legal Status:

Registered on the National Native Title Register.

Legal Reference: Federal Court No: QUD6032/2001; National Native Title Tribunal No: QCD2016/2010.
Subject Matter:Native Title
URL: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/696.html
Summary Information:

Malthouse on behalf of the Bar Barrum People #6 v State of Queensland (No.2)[2016] FCA 696

Between: Layne Malthouse, Tennyson Kynuna,and Lynette Burke on behalf of the Bar BarrumPeople #6 (Applicants),and the State of Queensland, Mareeba Shire Council,Ergon Energy Corporation Limited, Telstra Corporation Limited, Jodie Bunney, and Lachlan Shaw (Respondents).

Judge: Reeves JDetermination:Native Title exists inallofthe determination area.It consists of exclusive and non-exclusive native title rights.

Where made: Queensland

Determination:

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

Native Title is held bythe Bar BarrumPeople.

Exclusive native title rights overthedeterminationarea:

  • the right to possession, occupation, use, and enjoyment of the land of the determination area to the exclusion ofallothers.

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

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 thenatural resourcesof thewater of the area;
  • andtake and use the water of the area.

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

  • toaccess, be present, move about on and travel over thedetermination area;
  • camp, live temporarily for the purpose of building temporary shelters on the area as part of camping;
  • 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 thedeterminationarea for personal,domestic,and non-commercial communal purposes;
  • take and use the Water of the determination area for personal,domestic,and non-commercial communal purposes,conduct ceremonies on thedetermination area;
  • be buried and bury native title holders within thedetermination area;maintain places ofimportanceand areas of significance to the native title holders, under theirtraditionallaws and customs and protect those places and areas from physical harm;
  • teach on thedeterminationarea the physical and spiritual attributes of the area;hold meetings on thedeterminationarea;
  • andlight fires on thedetermination 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:

  • of Telstra Corporation Limited,as the owner or operator of telecommunications facilities installed within thedeterminationareafor the purpose of installing andmaintainingtelecommunication services;
  • of Ergon Energy Corporation,as the owner or operator of any'Works'as defined by theElectricity Act 1994(Qld), for the purpose of distributing, inspecting, managing, and maintaining any 'Works' in the determination area;
  • of theMareeba Shire Council as the local government, for the purpose ofmaintainingpublic infrastructure;
  • of the State of Queensland in Reserves, trustees of those entitled to accessand usethe Reserves for the purpose for which they are reserved;ofthe State of Queensland or any other person undertheLand Act 1994(Qld);
  • held by the State of Queensland or Commonwealth of Australia, under law.

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

TheMbabaramAboriginal CorporationRNTBC, as the prescribed body corporate, is to perform functions required under theNative Title Act 1993 (Cth) and to act as agent for the Bar BarrumPeople.

Detailed Information:

Background:

On 28 June 2001, Hely J made a determinationof native title for the first applicationfor determination of native titlemade on behalf of the Bar Barrum People(Bar Barrum People#1).In the fifteen years between 2001 and 2016, theBar Barrum Peoplefiled and litigated eight other applications.This claimwas filed, withinaseriesof other claimsby theBar Barrum People,in 2003. Four ofwhich(Bar Barrum People#2, #3, #4 and #6)weredeterminedby the Federal Courton 10 June 2016 inDimbulah, Queensland(Lyndham, 2016).

In 2015, the consent determinationswere delayed when the State of Queenslandchallenged the claim. The appeal was heard on the basis thatduringWorld War IIthe Commonwealth had taken possession of the land formilitary activitiesandas such any native title rights or interests had since beenextinguished in thedetermination area.ThisHigh Court was split on the matter(Queensland v Congoo[2015] HCA 17).As such, the decision of the Federal Court was upheld, meaning the native title rights and interests of theBar Barrum Peoplewere held to be valid[6].

Details of Judgment:

Through case management conducted by theDeputy Registrar of the Federal Court,skilledlegal representation, anda detailed set of submissions in support of the proposals made by theBar BarrumApplicant, Reeves J was satisfiedthat agreement between the partieswasfree and informed [16].TheCourt was satisfied that the determination of native title was within their power, and as such, the signed agreement was filed in the Federal Court pursuant to s87 of theNative Title Act 1993 (Cth) [16].

Outcomes:

Native Title exists in the entire determination area.


Related Entries

Agreement
  • Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504
  • Congoo on behalf of the Bar Barrum People #9 v State of Queensland [2017] FCA 1510
  • Bar Barrum #2-#7 and Tablelands Regional Council Indigenous Land Use Agreement (ILUA)
  • Congoo on behalf of the Bar Barrum People #4 v State of Queensland [2016] FCA 695
  • Congoo on behalf of the Bar Barrum People #2 v State of Queensland [2016] FCA 693
  • Congoo on behalf of the Bar Barrum People #3 v State of Queensland [2016] FCA 694
  • Organisation
  • Mareeba Shire Council
  • State of Queensland
  • Ergon Energy Corporation Limited
  • Telstra Corporation Limited
  • Mbabaram Aboriginal Corporation RNTBC
  • Legislation
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Native Title Act 1993 (Cth)
  • Land Act 1994 (Qld)
  • Electricity Act 1994 (Qld)
  • People
  • Bar-Barrum People

  • References

    Media Release
    Hon. Dr Anthony Lynham, Minister for State Development and Minister for Natural Resources and Mines (10/06/2010) Bar Burrum People have a new beginning

    Documents

    Document
    National Native Title Tribunal Extract from the Native Title Applications, Registration Decisions and Determinations Register for QCD2016/010 as at 10/06/2016 (Bar Barrum People #6). - ( PDF | PDF | PDF)

    Glossary

    Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Aboriginal Corporation (Australia) | Body Corporate Agreement (Australia) | Native Title Registers

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