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Congoo on behalf of the Bar Barrum People #4 v State of Queensland [2016] FCA 695

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 10 June 2016
Sub Category:Consent Determination (Native Title Act)
Location:Atherton Tablelands , Queensland, Australia
Atherton Tableland, in and around the Walsh River and to the west of the Wild River. See attached map.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: QUD6030/2001; National Native Title Tribunal No: QCD2016/004.
Alternative Names:
  • Bar Barrum People #4
  • Subject Matter:Access | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/695.html?context=1;query=Congoo%20on%20behalf%20of%20the%20Bar%20Barrum%20People%20#4%20v%20State%20of%20Queensland;mask_path=
    Summary Information:
    Between:

    Tom Congoo and John Wason on behalf of the Bar Barrum People #4 (APPLICANTS) and
    State of Queensland, Mareeba Shire Council, Energy Corporation Limited, Telstra Corporation, Limited and Consolidated Tin Mines Limited, Grant Henrik Gundersen, Laurelle Ursula Gundersen, Dianne Calmsden Mauloni, Matthew John Mauloni, Robert Thomas Mauloni, Thomas Samuel Mauloni, Robert Graham White, Robyn Doris White, Dale Albert Crossland, Elizabeth Hazel Dawn Crossland, Stephen John Crossland and Renato Dovesi (RESPONDENTS)

    Judge: Reeves J

    Where made: Queensland

    Determination:

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

    The exclusive native title rights over part of the determination area consist of:
    - other than in relation to water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others.

    The non-exclusive native title rights over part of the determination area consist of:
    - access, be present on, move about on and travel over the area;
    - camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
    - 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 the area for personal, domestic and non-commercial communal purposes;
    - take and use the Water of the area for personal, domestic and non-commercial communal purposes;
    - conduct ceremonies on the area;
    - be buried and bury native title holders within the area;
    - 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;
    - teach on the area the physical and spiritual attributes of the area;
    - hold meetings on the area;
    - light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
    - in relation to Water, the non-exclusive rights to:
    - hunt, fish and gather from the Water of the area;
    - take and use the Natural Resources of the Water in the area; and
    - take and use the Water of the area, for personal, domestic and non-commercial communal purposes. The non-exclusive rights to water do not confer possession, occupation use or enjoyment to the exclusion of all others.

    All native title rights 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. The non-exclusive rights do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others.

    Non-native title rights and interests that exist in the determination area include:
    - minerals as defined by the Mineral Resources Act 1989 (Qld);
    - 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 (Qld); and
    - the rights and interests of Consolidated Tin Mines as the holder of Mining Tenements granted under the Mineral Resources Act 1989 (Qld).

    Existing Indigenous Land Use agreements in the determination area:
    - 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 QI 2001/053 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 QI 2012/056 entered on the Register of Indigenous Land Use Agreements on 24 January 2013;
    - the agreement between the Bar Barrum people and Ergon Energy Corporation Limited;
    - 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;
    - the agreement between the Bar Barrum People and Grant Henrik Gundersen and Laurelle Ursula Gundersen, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Boonmoo Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Boonmoo body corporate agreement between the Applicant, Grant Henrik Gundersen and Laurelle Ursula Gundersen and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Boonmoo area agreement between the Applicant and Grant Henrik Gundersen and Laurelle Ursula Gundersen;
    - the agreement between the Bar Barrum People and Dale Albert Crossland, Elizabeth Hazel Dawn Crossland and Stephen John Crossland, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Emu Creek Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Emu Creek body corporate agreement between the Applicant, Dale Albert Crossland, Elizabeth Hazel Dawn Crossland and Stephen John Crossland and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Emu Creek area agreement between the Applicant and Dale Albert Crossland, Elizabeth Hazel Dawn Crossland and Stephen John Crossland; and
    - the agreement between the Bar Barrum People and Robert Graham White and Robyn Doris White, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Eureka Creek Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Eureka Creek body corporate agreement between the Applicant, Robert Graham White and Robyn Doris White and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Eureka Creek area agreement between the Applicant and Robert Graham White and Robyn Doris White;
    - the agreement between the Bar Barrum People and Renato Dovesi, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Horse Creek Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Horse Creek body corporate agreement between the Applicant, Renato Dovesi and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Horse Creek area agreement between the Applicant and Renato Dovesi;
    - the agreement between the Bar Barrum People and James William Malcolm O'Shea and Janelle Lynette O'Shea, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Scardons Hill Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Scardons Hill body corporate agreement between the Applicant, James William Malcolm O'Shea and Janelle Lynette O'Shea and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Scardons Hill area agreement between the Applicant and James William Malcolm O'Shea and Janelle Lynette O'Shea; and
    - the agreement between the Bar Barrum People and Lance Frank O'Shea, Emma Elizabeth O'Shea and Bradley Thomas O'Shea, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Spring Valley Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Spring Valley body corporate agreement between the Applicant, Lance Frank O'Shea, Emma Elizabeth O'Shea and Bradley Thomas O'Shea and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Spring Valley area agreement between the Applicant and Lance Frank O'Shea, Emma Elizabeth O'Shea and Bradley Thomas O'Shea;
    - the the agreement between the Bar Barrum People and Dianne Calmsden Mauloni, Matthew John Mauloni, Robert Thomas Mauloni, Thomas John Mauloni and Thomas Samuel Mauloni, that was authorised by the Bar Barrum People native title claim group on 18 April 2013 and will be known as the Bar Barrum People/Spurwood Springs Indigenous Land Use Agreement and, depending on the version that is registered first in time on the Register of Indigenous Land Use Agreements, will either be:
    (i) the Bar Barrum People/Spurwood Springs body corporate agreement between the Applicant, Dianne Calmsden Mauloni, Matthew John Mauloni, Robert Thomas Mauloni, Thomas John Mauloni and Thomas Samuel Mauloni and the registered native title body corporate to be nominated as the Prescribed Body Corporate in accordance with paragraph 15 of the Determination; or
    (ii) the Bar Barrum People/Spurwood Springs area agreement between the Applicant and Dianne Calmsden Mauloni, Matthew John Mauloni, Robert Thomas Mauloni, Thomas John Mauloni and Thomas Samuel Mauloni.

    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 and waters 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 stands and the rights of the Bar Barrum were upheld.

    Details 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 #4 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)
  • 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
  • Bar-Barrum and Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Bar-Barrum and Herberton Shire Council Indigenous Land Use Agreement (ILUA)
  • Herberton Tin Fields Indigenous Land Use Agreement
  • Organisation
  • Mareeba Shire Council - Respondent
  • Consolidated Tin Mines 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)
  • Mineral Resources Act 1989 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • Post and Telegraph Act 1901(Cth)
  • Local Government Act 2009 (Qld)
  • Land Act 1994 (Qld)
  • People
  • Bar-Barrum People - Native Title Applicants
  • Grant Henrik Gundersen - Respondent
  • Laurelle Ursula Gundersen - Respondent
  • Dianne Calmsden Mauloni - Respondent
  • Mathew John Mauloni - Respondent
  • Robert Thomas Mauloni - Respondent
  • Thomas John Mauloni - Respondent
  • Thomas Samuel Mauloni - Respondent
  • Robert Graham White - Respondent
  • Robyn Doris White - Respondent
  • Dale Albert Crossland - Respondent
  • Elizabeth Hazel Dawn Crossland - Respondent
  • Stephen John Crossland - Respondent
  • Renato Dovesi - Respondent

  • References

    General Reference
    National Native Title Tribunal (2017) Extract from the National Native Title Register (of native title determinations) for Federal Court matter number QUD6030/2001 as at 21/12/2017.
    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 #4 v State of Queensland [2016] FCA 695 - Map of determination area - ( PDF)
    Congoo on behalf of the Bar Barrum People #4 v State of Queensland [2016] FCA 695 - National Native Title Extract - ( PDF)

    Glossary

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

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