printable versionPrint this page

Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 29 June 2016
Sub Category:Consent Determination (Native Title Act)
Location:Northern Queensland, Queensland, Australia
An area of 17,212 square kilometres. The relevant area lies between the Denham and Peak Ranges to the west and the Connors and Broadsound Ranges to the east. The southern boundary, for much of its length, follows Lotus Creek and the Connors River until it joins the Isaac River. See map attached map for specific details.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: QUD380/2008, QUD492/2013; National Native Title Tribunal No: QCD2016/009.
Alternative Names:
  • Barada Barna People And Widi People Of The Nebo Estate #2 Shared-Country
  • Subject Matter:Access | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/1267.html?context=1;query=budby;mask_path=
    Summary Information:
    Between:

    Les Budby and Cecil Brown Jnr on behalf of the Barada Barna People APPLICANTS and
    State of Queensland, Central Highlands Regional Council, Isaac Regional Council, Mackay Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Marubeni Coal Pty Ltd, Nippon Steel & Sumitomo Metal Australia Pty Ltd (Formerly Known as Nippon Steel Australia Pty Limited), Queensland Coal Pty Limited, Rio Tinto Exploration Pty Ltd, Scentre Limited (Formerly Known as Westfield Ltd), Sumisho Coal Development Queensland Pty Ltd, Anglo Coal (German Creek) Pty Ltd, Anglo Coal (Grosvenor) Pty Ltd, Capcoal Mine Joint Venturers, Moranbah North Coal Pty Ltd, Moranbah North Mine Joint Venturers, Bowen Central Coal Pty Ltd, Nebo Central Coal Pty Ltd, Vale Australia (Cq) Pty Ltd, Vale Australia (Ip) Pty Ltd, Vale Coal Exploration Pty Ltd, Exxaro Australia Pty Ltd, Oldfield Exploration Pty Limited, North Queensland Pipeline No 1 Pty Ltd, North Queensland Pipeline No 2 Pty Ltd, John Thomas Baker, Marnie Louise Baker, Anthony John Bella, Edward Martin Bella, Martin Joseph Bella, Peter Andrew Bella, Regena Frances Bella, Robert James Bella, Stephen Edward Bella, Robert John Borg, Lawrence Paul Danastas, Marion Carmel Danastas, Kathryn Head, Thompson Head, Peter Malcolm Hughes, Raye Marilyn O'sullivan, Robert Alan O'sullivan and Kim Frances Willoughby (RESPONDENTS)

    Judge: Dowsett J

    Where made: Queensland

    Determination:

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

    Native title is held by the Widi People.

    The non-exclusive native title rights over part of the determination area consist of:
    - the right to access, be present on, move about on and travel over the area;
    - the right to camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
    - the right to hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
    - the right to take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
    - the right to take and use the water of the area 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 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;
    - the right to teach on the area the physical and spiritual attributes of the area;
    - the right to hold meetings on the area; and
    - the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

    The above native title rights and interests are subject to and exercisable in accordance with the laws of the State, Commonwealth, and the traditional laws and customs observed by the native title holders. Native title in this instance is also subject to the terms and conditions of the agreements referred to in paragraphs 1 of schedule 4.C insofar as those agreements apply to the Windo #2 determination area. The 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 in the determination area include:
    - there are no native title rights in or 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);
    - the rights of Telstra Corporation Limited as the owner or operator of telecommunications facilities installed within the determination area under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
    - the rights and interests of Ergon Energy Corporation as the owner and operator of any works as defined in the Electricity Act 1994 (Cth);
    - the rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233) as the owner and operator of works within the meaning of the Electricity Act 1994 (Qld);
    - the rights and interests of SunWater Limited and Eungella Water Pipeline Pty Ltd;
    - the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116) in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld);
    - the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116), Aurizon Property Pty Ltd (ACN 145 991 724) or Aurizon Operations Limited (ACN 124 649 967) under any lease, licence, easement, permit or agreement within the Shared Country Native Title Area;
    - the rights and interests of Anglo Coal (Grosvenor) Pty Ltd under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd jointly under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Anglo Coal (German Creek) Pty Ltd, Mitsui German Creek Investment Pty Limited and Jena Pty Ltd as joint holders of mining lease ML 1831 granted pursuant to the Mining Act 1968-1979 (Qld);
    - the rights and interests of Moranbah North Coal Pty Ltd, NS Moranbah North Pty Ltd, Mitsui Moranbah North Investment Pty Ltd, NS Coal (Moranbah North) Pty Ltd, Jfema Moranbah North Pty Ltd and Kobelco Trading Australia Pty Ltd (formerly Shinsho Moranbah Coal Pty Ltd) as joint holders of mining lease 70108 granted pursuant to the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd as the current lessees under Term Lease No.233945 over Lot 23 on Plan GV 148;
    - the rights and interests of North Queensland Pipeline No.1 Pty Ltd and North Queensland Pipeline No.2 Pty Ltd;
    - the rights and interests of Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of the Exploration Permits for Coal numbered 667, 719, 722, 951, 1036 and 1052;
    - the rights and interests of Vale Coal Exploration Pty Ltd as the holder of the Exploration Permits for Coal numbered 858 and 1146;
    - the rights and interests of Peabody BB Interests Pty Ltd, Peabody Coppabella Pty Ltd, Peabody West Burton Pty Ltd, Peabody West Walker Pty Ltd, Peabody Moorvale West Pty Ltd, Millennium Coal Pty Ltd, Peabody (Burton Coal) Pty Ltd and Peabody Energy Australia PCI Rush Pty Ltd granted pursuant to the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Nippon Steel & Sumitomo Metal Australia Pty Ltd, Marubeni Coal Pty Ltd and Sumisho Coal Development Queensland Pty Ltd granted under the Mining Act 1968-1975 (Qld);
    - the rights and interests of Rito Tinto to exploration permits granted under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of the State of Queensland, Central Highlands Regional Council, Mackay Regional Council and Isaac Regional Council to access, use, operate, maintain and control the dedicated roads in the Barada Barna Native Title Area and the rights and interests of the public to use and access the roads;
    - the rights and interests of the Central Highlands Regional Council, Mackay Regional Council and Isaac Regional Council under the Local Government Act 2009 (Qld), Land Protection (Pest and Stock Route Management) Act 2002 (Qld);
    - the rights and interests of the State of Queensland or any other person existing by reason of the force
    and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation: the Land Act 1994 (Qld), Nature Conservation Act 1992 (Qld), Forestry Act 1959 (Qld), Water Act 2000 (Qld), Petroleum Act 1923 (Qld) or Petroleum and Gas Act 2004 (Qld), Mineral Resources Act 1989 (Qld), Fisheries Act 1994 (Qld), Transport Infrastructure Act 1994 (Qld), Sustainable Planning Act 2009 (Qld); and
    - the rights and interests of the general public to access waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public on the 31st of December 1993 under the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld).



    The rights and interests under Indigenous Land Use Agreements (ILUA's) including:
    - the Barada Barna People, Widi People and Local Government Indigenous Land Use Agreement;
    - the Barada Barna People, Widi People of the Nebo Estate #2 and Ergon Energy ILUA;
    - the parties to the Connors River Dam and Pipelines Project ILUA registered on 5 September 2011 (QI2011/009);
    - the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (QI2002/049);
    - the Barada Barna Native Title Area involving the Dipperu National Park Indigenous Land Use Agreement;
    - the Barada Barna People and Local Government Indigenous Land Use Agreement;
    - the Barada Barna People and Ergon Energy ILUA;
    - the Barada Barna People/Logan Creek and Cherwell ILUA;
    - the Barada Barna People/Oben Park (aka Harrybrandt West) ILUA;
    - Barada Barna People/Killarney ILUA;
    - the Moranbah ILUA between the Barada Barna People, Barada Barna Limited, the Minister for Economic Development and the State of Queensland; and
    - the Burdekin Pipeline ILUA; and
    - the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (National Native Title Tribunal number (QI2002/049).


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

    The Barada Barna 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 native title holders. The native title is held on trust in for the native title holders.
    Detailed Information:
    Background:

    This proceeding arises out of two applications over a total of 17,212 square kilometres. The application was brought on behalf of the Widi People and the Barada Barna People. The two applications were combined so any disputes between the Widi People and Barada People could be resolved during proceedings. The judgement notes there is no dispute the Barada Barna People are the traditional owners of most of the determination area. The boundary between the Barada Barna country and the Widi People country is the Barada Barna People's lands. Three determinations of native title areas were made in this claim one in favour of the Widi People, the other the Barada Barna People and the last is a shared area.

    Details of Judgement

    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 Barada Barna People in relation to the part of the land and waters covered by the Application. 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.

    Related Entries

    Agreement
  • Pegler on behalf of the Widi People of the Nebo Estate #2 v State of Queensland (No 3) [2016] FCA 1272
  • North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Gangali Narra Widi Aboriginal Corporation RNTBC - Native Title Applicants
  • Rio Tinto Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • Isaac Regional Council - Respondent
  • Mackay Regional Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Marubeni Coal Pty Ltd - Respondent
  • Nippon Steel & Sumitomo Metal Australia Pty Ltd - Respondent
  • State of Queensland - Respondent
  • Queensland Coal Pty Ltd - Respondent
  • Sumisho Coal Development Queensland Pty Ltd - Respondent
  • JFE Minerals (Australia) Pty Ltd - Respondent
  • Kobelco Trading Australia Pty Ltd - Respondent
  • Bowen Central Coal Pty Ltd - Respondent
  • Nebo Central Coal Pty Ltd - Respondent
  • Vale Australia (QC) Pty Ltd - Respondent
  • Vale Coal Exploration Pty Ltd - Respondent
  • Central Highlands Regional Council - Respondent
  • Anglo Coal Australia Pty Ltd - Respondent
  • Oldfield Exploration Pty Ltd - Respondent
  • North Queensland Pipeline No 1 Pty Ltd - Respondent
  • North Queensland Pipeline No 2 Pty Ltd - Respondent
  • Scentre Limited (formerly known as Westfield Ltd) - Respondent
  • Capcoal Mine Joint Ventures - Respondent
  • Moranbah North Coal Pty Ltd - Respondent
  • Moranbah North Mine Joint Vetures - Respondent
  • Vale Australia (IP) Pty Ltd - Respondent
  • Exxaro Australia Pty Ltd - Respondent
  • Barada Barna Aboriginal Corporation RNTBC - Native Title Applicants
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Queensland) Act 1993 (Qld)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Mineral Resources Act 1989 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • Post and Telegraph Act 1901(Cth)
  • Petroleum Act 1923 (Qld)
  • Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
  • Electricity Act 1994 (Qld)
  • Government Owned Corporations Act 1993 (Qld)
  • Land Act 1994 (Qld)
  • Nature Conservation Act 1992 (Qld)
  • Forestry Act 1959 (Qld)
  • Water Act 2000 (Qld)
  • Fisheries Act 1994 (Qld)
  • Transport Infrastructure Act 1994 (Qld)
  • Sustainable Planning Act 2009 (Qld)
  • People
  • Barada Barna People - Native Title Applicants
  • Eileen Beryl Pegler, Paul Royce Butterworth, Marilyn Joyce Duncan, Athol Noel Goltz, Lorraine, Joyce McLennan, Kenneth Stewart Peters, Graham Ian Sauney, Linda Wailu, and Ronald Jock Watson on behalf of the Widi People of the Nebo Estate - Native Title Applicants
  • John Thomas Baker - Respondent
  • Marnie Loiuse Baker - Respondent
  • Anthony John Bella - Respondent
  • Edward Martin Bella - Respondent
  • Martin Joseph Bella - Respondent
  • Peter Andrew Bella - Respondent
  • Regena Frances Bella - Respondent
  • Robert James Bella - Respondent
  • Stephan Edward Bella - Respondent
  • Robert John Borg - Respondent
  • Lawrence Paul Danastas - Respondent
  • Marion Carmel Danastas - Respondent
  • Kathryn Head - Respondent
  • Thompson Head - Respondent
  • Peter Malcolm Hughes - Respondent
  • Raye Marilyn O'Sullivan - Respondent
  • Robert Alan O'Sullivan - Respondent
  • Kim Frances Willoughby - Respondent

  • References

    General Reference
    National Native Title Tribunal Extract from the National Native Title Register (of native title determinations) for Federal Court No QUD380/2008, QUD492/2013 as at 18/10/2016.

    Documents

    Map
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - Map of determination area part 2 - ( PDF)
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - National Native Title Extract - ( PDF)
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - Schedule 1 - determination area - part 2 - non-exclusive areas - ( PDF)
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - Schedule 2 - areas not forming part of the determination area - ( PDF)
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - Part 3 areas within the determination area where native title does not exist - ( PDF)
    Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 - Schedule 1B -Map of determination area - ( PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants

    Google
    Top of page

    Was this useful? Click here to fill in the ATNS survey