Congoo on behalf of the Bar Barrum People #3 v State of Queensland [2016] FCA 694

Atherton Tablelands, Northern Queensland Region

Registered on the National Native Title Register

Congoo on behalf of the Bar-Barrum People #3 v State of Queensland [2016] FCA 694

Between

Tom Congoo and John Wason on behalf of the Bar-Barrum People #3 (Applicants) and the State of Queensland, the Mareeba Shire Council and Ergon Energy Corporation Limited, Telstra Corporation Limited and Consolidated Tin Mines Limited (Respondents).

Judge: Reeves J

Where made: Queensland

Determination:

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

Native title is held by the Bar-Barrum People.

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

• the right to access, to be present on, move about on, and travel over the area;
• the right to camp, and live temporarily on the area, to build temporary shelters;
• the right to hunt, fish and gather, and take from the land and waters for personal, domestic and non-commercial communal purposes;
• the right to conduct ceremonies on the area;
• the right to be buried and bury native title holders within the area;
• the right to maintain places of cultural significance under traditional laws and customs, and protect those areas from physical harm;
• the right to hold meetings and teach the physical and spiritual attributes of the area; and
• the right to light fires for domestic purposes, including cooking,but not for hunting or the clearance of land.

These non-exclusive native title rights are subject to the laws of the Commonwealth and the State of Queensland, and the traditional law and customs of the Bar Barrum People.

Additionally, these non-exclusive rights do not create rights in relation to:

• minerals as defined by the Mineral Resources Act 1989 (Qld); and
• petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Finally, these non-exclusive rights do not confer possession, occupation, use or enjoyment to the exclusion of all others.

Non-native title rights and interests that exist  (see Schedule 4) include those:

• created under the Bar Barum and Mareeba Shire Council Indigenous Land Agreement (ILUA), the Bar Barrum #2-#7 and Tablelands Regional Council ILUA the Bar Barrum People and Ergon Energy ILUA, and the Herberton Tin Fields Indigenous ILUA;
• of Consolidated Tin Mines Limited, as the holder of the mining tenements granted under the Mineral Resources Act 1989 (Qld);
• of Telstra Corporation Limited, as the owner or operator of telecommunications facilities under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), and the Australian Telecommunications Corporations Act 1989 (Cth);
• of Ergon Energy Corporation, as defined in the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
• of Mareeba Shire Council;
  
• of the state and trustees in relation to Reserves;
• of the state and trustees in relation to Reserves; and
• created under the laws of the state or commonwealth; and of public access, under the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld).

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

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

Background:

This claim is a series of four claims by the Bar Barrum People in northern Queensland which were first lodged in 1996. This claim was filed with the Federal Court on 28 September 2001. The claims have been amended several times to change the claim group description, reduce the claim area, and to replace applicants [5].

This recognition of native title has been a long time coming with many senior members of the Bar Barrum People having passed away without having seen it realised [5].

Despite efforts being made in recent years to reduce delays, the Bar Barrum claim faced difficulties. In 2015, the question of extinguishment over parts of the determination area in relation to World War II military activities was resolved in the High Court in the case of Queensland v Congoo (2015) HCA 17 [6].

Judgment Details:

Through mediation, agreement has been reached as to the terms of a determination of native title 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 determination area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth). The Court was satisfied that a determination of native title was within the power of the court

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