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

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 10 June 2016
Sub Category:Consent Determination (Native Title Act)
Location:Atherton Tablelands, Queensland, Australia
Lands and waters on the Atherton Tableland in and around the Walsh River and to the west of the Wild River. Specifically, this case deals with Lot 480 on OL427 - see attached map.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No QUD6017/2001; National Native Title Tribunal No QCD2016/003.
Alternative Names:
  • Bar Barrum People #3
  • Subject Matter:Access | Cultural Heritage | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/694.html?context=1;query=Congoo%20on%20behalf%20of%20the%20Bar%20Barrum%20People%20#3%20v%20State%20of%20Queensland;mask_path=
    Summary Information:
    Between:

    Tom Congoo and John Wason on behalf the Bar Barrum People #3 (APPLICANT) and State of Queensland, Mareeba Shire Council, 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

    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 and use 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 rights are subject to and exercisable in accordance with the laws of the State, Commonwealth and the traditions laws and customs that are acknowledged and observed by the native title holders.

    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);
    - there are no native title rights in or in relation to minerals as defined 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 within the Determination Area created pursuant to 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). This includes the right to install, operate and inspect land within the determination area;
    - the rights and interests of Ergon Energy Corporation as the owner and operator of any 'Works' as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area; and
    - the rights and interests of the Mareeba Shire Council as the local government for that part of the Determination Area to conduct its powers, functions and responsibilities under the Local Government Act 2009 (2009); and
    - the rights and interests of Consolidated Tin Mines as the holder of Mining Tenements granted under the Mineral Resources Act 1989 (Qld).

    Non-Native title lands include:
    - those lands and waters within the determination area, which at the time the native title determination application was made were subject to were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth);
    - to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied at the time of the native title determination application;
    - the tenure-based exclusions under ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies; and
    - the land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

    Existing Indigenous Land Use Agreements:
    - the agreement between Thomas Congoo and John Edward Wason on behalf of themselves and the Bar Barrum People and the Mareeba Shire Council as parties to the Indigenous Land Use Agreement QI2001/053 entered on the Register of Indigenous Land Use Agreements on 8 March 2002;
    - the agreement between Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #2, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #3, Layne Malthouse, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #4, John Wason, Tennyson Kynuna and Lynette Burke on their own behalf and on behalf of the Bar Barrum People #5, Layne Malthouse, Tennyson Kynuna and Lynette Burke on their own behalf and on behalf of the Bar Barrum People #6 and Jean Rosas, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #7 and the Tablelands Regional Council (now the Mareeba Shire Council) as parties to the Indigenous Land Use Agreement QI2012/056 entered on the Register of Indigenous Land Use Agreements on 24 January 2013;
    - the Indigenous Land Use Agreement between Ergon Energy Corporation limited and the Bar Barrum People registered on the National Native Title Tribunal file number QI2002/058; and
    - the agreement between the Bar Barrum Aboriginal Corporation, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #2, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #3, Layne Malthouse, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #4, John Wason, Tennyson Kynuna and Lynette Burke on their own behalf and on behalf of the Bar Barrum People #5, Layne Malthouse, Tennyson Kynuna and Lynette Burke on their own behalf and on behalf of the Bar Barrum People #6, Jean Rosas, Tom Congoo and John Wason on their own behalf and on behalf of the Bar Barrum People #7 and Consolidated Tin Mines Limited ABN 57 126 634 606, as parties to the Herberton Tin Fields Indigenous Land Use Agreement QI 2011/012 entered on the Register of Indigenous Land Use Agreements on 30 September 2011.

    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 as the prescribed agent 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 not held on trust for the native title holders.
    Detailed Information:
    Background:

    This claim is a series of 4 claims by the Bar Barrum People over lands in Nothern Queensland. The first of the Bar Barrum People claim was lodged in 1996. This claim was filed with the Federal Court in 2001 and sadly a number of the original applicants did not see the native title claim through. This claim is over an area on the Atherton Tableland in and around the Walsh River and to the west of the Wild River.

    The rights of the Bar Barrum people were appealed by the State of Queensland to the High Court in Queensland v Congoo [2015] HCA 17. The appeal was on the basis that the native title had been extinguished in the determination area during World War II as the Commonwealth took possession of the land to use it for military activities pursuant to the National Securities Act 1939 (Cth) (Queensland v Congoo [2015] HCA 17 at para 1). The High Court, however, split on the matter, meaning the decision of the Federal Court stood and the rights of the Bar Barrum were upheld.

    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 Bar Barrum People in relation to the part of the land and waters covered by the Bar Barrum People #3 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
  • Bar-Barrum and Mareeba Shire Council Indigenous Land Use Agreement (ILUA)
  • Herberton Tin Fields Indigenous Land Use Agreement
  • 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
  • Bar-Barrum and Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Mareeba Shire Council - Respondent
  • Consolidated Tin Mines Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • State of Queensland - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Mbabaram Aboriginal Corporation RNTBC - Native Title Applicants
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Queensland) Act 1993 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • Land Act 1994 (Qld)
  • Mineral Resources Act 1989 (Qld)
  • Local Government Act 2009 (Qld)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Post and Telegraph Act 1901(Cth)
  • People
  • Bar-Barrum People - Native Title Applicants

  • References

    General Reference
    National Native Title Tribunal (2017) Extract from the National Native Title Register (of native title determinations) for Federal Court number QUD6017/2001 as at 21/12/17.
    Kristy Snape (2016) Bar Barrum People’s native title claims #2, #3, #4 and #6

    Documents

    Map
    Congoo on behalf of the Bar Barrum People #3 v State of Queensland [2016] FCA 694 - map of determination area - ( PDF)
    Congoo on behalf of the Bar Barrum People #3 v State of Queensland [2016] FCA 694 - National Native Title Extract - ( PDF)

    Glossary

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

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