Congoo on behalf of the Bar Barrum People #10 v State of Queensland [2017] FCA 1511

Registered with the National Native Title Tribunal on the Native Title Register 3 January 2018.

Between: Michael James Congoo, Shelton Murphy, Andrew Timothy Congoo,
Warren Congoo, Cameron Gosam, and Stanley Freeman on behalf of the Bar Barrum People (Applicant) and the State of Queensland, Mareeba Shire Council, Ergon Energy Corporation Limited, Bookall Mining Company Pty Ltd, and Consolidated Tin Mines Limited (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 holders

Native title is held by Bar Barrum traditional owners, who are described in Schedule 3. 

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedules 1 and 2 and include the right to:

• access the area;
• build, camp, and live in temporary shelters;
• hunt, fish, and gather on the area for communal, non-commercial purposes;
• take and use natural resources (such as flora and fauna, toolmaking resources, wild animals, etc.) from the area for communal, non-commercial purposes;
• use the water of the area for communal, non-commercial purposes;
• conduct ceremonies;
• maintain, conserve, and protect
  places of importance and areas of significance to the Bar Barrum People under their laws and customs;
• teach the physical and spiritual nature of the area;
• hold meetings; and
• light fires, but not for the purpose of hunting or clearing vegetation.

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

• the rights of Mareeba Shire Council to build, repair, and maintain infrastructure (including roads, facilities, earthworks, etc.) in and around the determination area. The Mareeba Shire Council is also permitted to fulfil its responsibilities as a local government (as defined by Local Government Acts);
• the rights of Ergon Energy Corporation Limited to continue to own and operate energy works in the area, distribute energy in the area, and move through the area in order to complete their works;
• the rights of Consolidated Tin Mines Limited to explore the area for minerals, as regulated by their Exploration Permits; and
• the rights of Bookall Mining Company Pty Ltd to continue to mine in the area at the Mining Tenements they have been granted.

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 Mbabaram Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the Bar Barrum People.

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

Background

This judgment comes after a series of six other determinations, the first of which began in 1996. Each was an application by the Bar Barrum People to affirm native title claims over different parts of their lands. This determination is about the waterways which form the boundaries of Bar Barrum lands.

Regarding the previous successive claims of the Bar Barrum People, Traditional owner Glen Malthouse stated that "it is a tribute to the strength of our Elders, both past and present,
and in the face of dispossession, forced removal, and massacres we have
managed to maintain our sacred connection to our country. Achieving native title is a reminder that our traditional ways of
life and laws continue to guide us as Mbarbarum moving forward in
contemporary Australia" (Queensland Government, 2016).

Details of Judgment

Justice Reeves describes 6 requirements for the consent determination to be valid. These are:

1) The determination must be filed correctly [4];

2) The Court must be notified in the proper amount of time that an agreement can be reached between the parties [8];

3) That agreement must be related to the matter [8];

4) The agreement must be in writing and filed with the Court [8];

5) The Court must have the power to make the consent determination [8-11]; and

6) The agreement made between the traditional owners and other groups with an interest in or rights to the land must be an appropriate agreement [14-16].

All of these requirements were fulfilled. Some of the more detailed requirements are explained below.

Requirement (3) was fulfilled in this case because the agreement reached resolves the matter and ends the dispute [8].

Requirement (5) can only be fulfilled if its own list of requirements are fulfilled [10]. These are:

a) The persons or groups making the claim to native title must be named;

b) The types of rights the native title will give those people must be described;

c) The rights of other groups must be described;

d) The relationship between native title rights and non-native title rights must be described; and

e) Whether the native title owners have been handed back full ownership of certain types of land must be stated. In this case, the Bar Barrum People were not handed back full ownership.

All of these requirements were fulfilled, so requirement (5) was fulfilled.

Requirement (6) was fulfilled because of the very detailed evidence gathered by the Bar Barrum People and their legal counsel. This allowed them to take part in informed and free negotiations during the creation of the consent determination. This is required to create a valid consent determination.

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