FEDERAL COURT OF AUSTRALIA

Congoo v State of Queensland [2001] FCA 868

THOMAS CONGOO AND JOHN EDWARD WASON ON THEIR OWN BEHALF AND ON BEHALF OF THE BAR-BARRUM PEOPLE v STATE OF QUEENSLAND, HERBERTON SHIRE COUNCIL, MAREEBA SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED AND TELSTRA CORPORATION LIMITED

QG 6222 OF 1998

HELY J

28 JUNE 2001

HERBERTON

THE COURT ORDERS THAT:

The parties consent to orders in the terms of the draft determination annexed to this Minute.

………………………………..

Terry Fisher & Company

Solicitor for the Bar-Barrum People

Applicant

………………………………..

C W Lohe, Crown Solicitor

Solicitor for the State of Queensland

Respondent

………………………………..

MacDonnells Solicitors

Solicitor for the Herberton Shire Council

Respondent

………………………………..

MacDonnells Solicitors

Solicitor for the Mareeba Shire Council

Respondent

………………………………..

MacDonnells Solicitors

Solicitor for Ergon Energy Corporation Limited

Respondent

………………………………..

Blake Dawson Waldron

Solicitor for Telstra Corporation Limited

Respondent

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG6222 OF 1998

BETWEEN:               THOMAS CONGOO AND JOHN EDWARD WASON ON THEIR OWN BEHALF AND ON BEHALF OF THE BAR-BARRUM PEOPLE

APPLICANT

AND:                          STATE OF QUEENSLAND

HERBERTON SHIRE COUNCIL

MAREEBA SHIRE COUNCIL

            ERGON ENERGY CORPORATION LIMITED

TELSTRA CORPORATION LIMITED

RESPONDENTS

Terry Fisher & Company                                                                      Tel:  3846 5399

Solicitors                                                                                              Fax:  3846 5899

84 Vulture Street

WEST END  QLD  4101

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG6222 OF 1998

BETWEEN:               THOMAS CONGOO AND JOHN EDWARD WASON ON THEIR OWN BEHALF AND ON BEHALF OF THE BAR-BARRUM PEOPLE

APPLICANT

AND:                          STATE OF QUEENSLAND

HERBERTON SHIRE COUNCIL

MAREEBA SHIRE COUNCIL

            ERGON ENERGY CORPORATION LIMITED

TELSTRA CORPORATION LIMITED

RESPONDENTS

JUDGE:                                  HELY J

DATE OF ORDER:              28 JUNE 2001

WHERE MADE:                   HERBERTON

THE COURT ORDERS, DECLARES AND DETERMINES WITH THE CONSENT OF THE PARTIES THAT:

1.                  Native title exists in the “determination area” save for the areas of land or waters described in Schedule 2.  The determination area comprises the following areas of land or waters as shown on Plan AP5171 attached at Schedule 1:

(a)                Lots 83, 115, 128, 135, 141, 142, 147, 150, 151, and 156 on USL21437;

(b)               Lot 19 on USL21563;

(c)                Lot 1 on USL21432;

(d)               Lot 1 on USL21433;

(e)                Lot 26 on HG723;

(f)                 Lot 27 on HG724;

(g)                Lot 35 on USL21562;

(h)                Lot 3 on USL21433;

(i)                  Lot 53 on plan AP7039 (previously known as Lot 53 on USL21566);

(j)                 Lot 14 on USL21562;

(k)               Lot 127 on USL21437;

(l)                  Part of Lot 567 on OL57 (previously known as Lots 91 and 100 on USL21437);

(m)              Lots 1 to 4 on plan AP3453 (previously known as Lot 146 on USL 21437);

(n)                Lot 18 on LD96 being Reserve for Camping and Water R.87; and

(o)               Lot 8 on LD149 being Reserve for Departmental and Official (Training Farm) Purposes R.139.

2.                  The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Bar-Barrum People.

3.                  The native title rights and interests may have been affected by the grant of, or by lawful activity that has taken place pursuant to, the interests set out in Schedule 3.

4.                  The nature and extent of the native title rights and interests are the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area in accordance with and subject to their traditional laws and customs and the force and operation of laws of the Commonwealth and the State, and in particular to:

(a)               live on the area;

(b)               conserve the natural resources of the area for the benefit of the common law holders;

(c)               maintain, use, manage and enjoy the area for the benefit of the common law holders, that is to:

(i)                  maintain and protect sites of significance to the common law holders and other Aboriginal people within the meaning of that term in the Native Title Act 1993 (Cth);

(ii)                inherit, dispose of or give native title rights and interests in the determination area to others provided that such persons are Aboriginal People within the meaning of that term in the Native Title Act 1993 (Cth);

(iii)               decide who are the Bar-Barrum people, provided that such persons must be Aboriginal people within the meaning of that term in the Native Title Act 1993 (Cth);

(iv)              regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the area;

(v)                conduct social, religious, cultural and economic activities on the area;

(vi)              exercise and carry out economic life on the area, including harvesting, fishing, cultivating, management and exchange of economic resources;

(d)               conserve, use and enjoy the natural resources of the area for social, cultural, economic, religious, spiritual, customary and traditional purposes; and

(e)               make decisions about, and to control the access to, and the use and enjoyment of, the area and its natural resources by the common law holders.

5.                  The native title rights and interests referred to in Order 4 are not exclusive of the rights and interests of others.

6.                  The nature and extent of any other interests in relation to the determination area are:

(a)                the interests of Mareeba Shire Council under its local government jurisdiction and functions as an entity exercising statutory powers, including:

(i)                 its legal and equitable interests under any reserves, permits and other estates or interests; and

(ii)                its interests under a deed of agreement dated 9 February 2001 between it and the common law holders;

(b)               the interests of Herberton Shire Council under its local government jurisdiction and functions and as an entity exercising statutory powers, including:

(i)                  its legal and equitable interests under any reserves, permits and other estates or interests; and

(ii)                its interests under a deed of agreement dated 25 January 2001 between it and the common law holders;

(c)                the interests of Ergon Energy Corporation Limited (ACN 087 646 062) as an entity exercising statutory powers and as owner and operator of electricity transmission and distribution facilities including:

(i)                  the right to enter upon the determination area in accordance with the law; and

(ii)                its interests under a deed of agreement dated 20 March 2001 between it and the common law holders;

(d)               the interests of Powerlink Queensland (ACN 078 849 233) as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities, and associated infrastructure situated upon the determination area, including but not limited to the right to enter upon the determination area at any reasonable time in order to access, use, maintain, repair, replace, upgrade or otherwise deal with those facilities and infrastructure in accordance with the law;

(e)                the interests of the Telstra Corporation Limited (ABN 33 051 775 556) as an entity exercising statutory powers and as owner and operator of telecommunications facilities including above and below ground cabling and associated telecommunications facilities situated upon the determination area, and also including, but not limited to:

(i)                  the right to enter upon the determination area in accordance with law; and

(ii)                its interests under a deed of agreement dated 5 March 2001 between it and the representatives of the common law holders;

(f)                 the interests of licensees under occupational licences issued under the Land Act 1910 (Qld)and the Land Act 1962 (Qld);

(g)                the interests of lessees under leases granted under the Mining Act 1898 (Qld), the Mining Act 1968 (Qld) and the Mineral Resources Act 1989 (Qld);

(h)                the interests of holders of tenements granted under the Mining Act 1968 (Qld) and the Mineral Resources Act 1989 (Qld);

(i)                  the interests of trustees of reserves dedicated under the Crown Lands Act 1884 (Qld), the Land Act 1910 (Qld) and the Land Act 1962 (Qld);

(j)                 the State’s ‘absolute property’ for the purposes of the Forestry Act 1959 in forest products and quarry materials; and

(k)               other interests that may be held by reason of laws of the Commonwealth and the State.

7.                  The relationship between the native title rights and interests described in Order 4 and the other interests described in Order 6 (“the other interests”) is that:

(a)                the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; and

(b)               the other interests and an activity done in exercise of the rights conferred by or held under the other interests prevail over the native title rights and interests and any exercise of those native title rights and interests.

8.                  The words and expressions used in this Order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

(a)                “forest products” has the same meaning given in the Forestry Act 1959 (Qld);

(b)               “laws of the Commonwealth and the State” means the laws of the Commonwealth of Australia and the State of Queensland, and includes regulations, statutory instruments, local government schemes and by-laws and the common law;

(c)                “natural resources” means animal, fish and plant life, water, clays and soils found on the determination area from time to time but does not include petroleum as defined in the Petroleum Act 1923 (Qld), minerals as defined in the Mineral Resources Act 1989 (Qld) or natural gas as defined in the Petroleum Act 1923 (Qld);

(d)               “quarry materials” has the same meaning given in the Forestry Act 1959 (Qld);

(e)                “road” has the same meaning given in the Land Act 1994 (Qld).

AND THE COURT FURTHER ORDERS THAT:

9.      The native title is not to be held in trust.

10.  The Bar-Barrum Aboriginal Corporation is to:

(a)                be the prescribed body corporate for the purposes of s57(2) of the Native Title Act 1993 (Cth); and

(b)               perform the functions mentioned in s57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

11.              Until such time as there is a registered native title body corporate in relation to the determination area any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the common law holders may be served upon the Bar-Barrum Aboriginal Corporation, and such service shall be deemed to be sufficient.

DEPUTY DISTRICT REGISTRAR

Date entered:      

SCHEDULE 1

Map of the determination area – Plan AP5171

SCHEDULE 2

Native title has been extinguished in the following parts of the determination area:

(a)                those parts of Lot 18 on Plan LD96 that were subject to the following scheduled interests:

(i)                 Miner’s Homestead Lease No. 1012 Chillagoe issued under the Miner’s Homestead Leases Act 1913; and

(ii)                Miner’s Homestead Lease No.1013 Chillagoe issued under the Miner’s Homestead Leases Act 1913;

(b)               those parts of Lot 14 on plan USL21562 that were subject to the following scheduled interests:

(i)                  Miner’s Homestead Lease No. 1374 Herberton issued under The Mining Act of 1898;

(ii)                Miner’s Homestead Lease No. 1802 Herberton issued under The Mining Act of 1898;

(iii)               Miner’s Homestead Lease No. 1475 issued under The Mining Act of 1898; and

(iv)              Miner’s Homestead Lease No. 1896 issued under The Mining Act of 1898;

(c)                land or waters on which any public work has been constructed, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the works;

(d)               opened roads, dedicated roads and roads legally constructed for public use within the determination area; and

(e)                the Cairns to Forsayth railway line (Mungana Branch line).

SCHEDULE 3

Mining tenures granted before 31 October 1975

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This proceeding arises out of an application for a determination of native title made by Thomas Congoo and John Edward Wason on their own behalf and on behalf of the Bar-Barrum people.  The respondents are the State of Queensland, Herberton Shire Council, Mareeba Shire Council, Ergon Energy Corporation Limited and Telstra Corporation Limited.  The claim area comprises land and inland waters within the areas of the Herberton and Mareeba Shire Councils on the Atherton Tableland in Far North Queensland.  More specifically the claim area comprises 25 unallocated State land tenures and two reserves within an area from Petford to Herberton, across the ridge of the Great Dividing Range, south of Dimbulah and Mutchilba and south-west of the Atherton Tablelands.  The Bar-Barrum people claim the rights to use the claim area as the traditional lands of the Bar-Barrum people for customary residence, subsistence, cultural, social, spiritual and economic purposes.

Background of the application

2                     The original application was lodged with the National Native Title Tribunal (“the Tribunal”) on 8 November 1996 before the amendments to the Native Title Act 1993 (Cth) (“the Act”) made by the Native Title Amendment Act 1998 (Cth) came into force.  By reason of the transitional provisions contained in Part 3 of Schedule 5 of the Amendment Act, the original application was deemed to have been made to the Federal Court of Australia on 30 September 1998.  The original application named the applicants as Thomas Congoo, John Edward Wason, Marcella Ailsa Congoo and Barclay Miller on behalf of the Bar-Barrum people, and was accompanied by maps of the claimed area.  Affidavits in support of the original application were sworn by each of the individual applicants and lodged with the Tribunal on the same day that the original application was lodged.

3                     Subsequently in December 1996 the claim was amended to allow Marcella Ailsa Congoo and Barclay Miller to withdraw as applicants to the claim.

4                     The matter first came before the Court on 10 February 1999 for a Directions Hearing before Drummond J.  Orders were made referring the claim to the Tribunal for mediation.  On 4 June 1999 the Court granted leave to amend the original application to provide a more detailed description of the native title rights and interests claimed by the Bar-Barrum people.

5                     Following discussions between the Bar-Barrum claim group and the Djirrbal people, a neighbouring Aboriginal tribe, over the traditional ownership of part of the Bar-Barrum claim area, the Bar-Barrum people sought leave of the Court to amend the claim by deleting certain parcels of land from the claim area.  On 24 April 2001 the Court granted leave to amend the original application by deleting six lots from the claim area and on 8 June 2001 leave was granted for seven further parcels of land to be deleted from the claim area.

6                     The mediation conducted by the Tribunal which commenced in November 1997 was successful and the parties have reached an agreement which recognises that native title exists in relation to the determination area and that the Bar-Barrum people are the common law holders of that title.  The Bar-Barrum in turn, by this same agreement, recognise that others of the parties have certain rights and interests in respect of the lands.  They have prepared a document which sets out the terms of their agreement.  The document is signed by the legal representatives of the parties and was filed with the Court on 20 June 2001.  The parties have applied to the Court for an order in accordance with the terms set out in the agreement and that is the matter before the Court here today.

Power of the Court

7                     Section 87 of the Act provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties’ written agreement without holding a hearing.  Section 94A of the Act requires that such an order must set out details of the matters referred to in Section 225 of the Act.

8                     In considering whether it is appropriate to make the Order that the parties seek, I have had the benefit of affidavits sworn by Tom Congoo on 12 April 1999 and 25 May 1999 in which he swears to his connection with the determination claim area according to the traditional laws and customs of his people.  I have also read the affidavit of John Wason sworn on 12 April 1999 in which he swears to his connection with the determination claim area according to the traditional laws and customs of the Bar-Barrum people.

9                     I have also read the report of Dr Bruce Sommer, Anthropologist and Linguist, and Elaine Sommer, recognised experts on Far North Queensland.  The report was prepared on behalf of the Bar-Barrum people and was tendered in evidence by consent.

10                  A further affidavit sworn by Mr Wason was filed in the Court on 22 June 2001 in which he, on behalf of the Bar-Barrum people, nominates Bar-Barrum Aboriginal Corporation, a Corporation incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) to be the Prescribed Body Corporate under s 57(2) of the Act.

11                  I am also satisfied that the Court has the power to make an Order in the terms agreed by the parties and that an Order in the terms sought would satisfy the formal requirements of the Act.  Moreover I consider it appropriate to make such an Order without requiring any further hearing.

Connection and native title

12                  The archaeological record of the Bar-Burrum establishes and documents an aboriginal presence in the area that pre-dates the assumption of British Sovereignty in Australia in 1788. However, the Bar-Burrum people only enter European documented history relatively recently, in the context of gold mining in the 1870s and base metal mining in the 1880s. The documented record is so scarce as to have prompted anthropologists to call the Bar Burrum “the forgotten peoples of the north”. Despite the shortcomings of the written record, the point is made by one of the authors of the anthropological report filed with the court (“the Sommers report”) that the evidence which emerged from the research attests unambiguously to the attachment of the Bar-Barrum people to their claimed domain.

13                  The Bar-Barrum are the sole claimants for the area of this application. The territory defined by the Bar-Barrum people in their native title application as their traditional domain is not challenged in any way by the elders who represent their various neighbours. The Sommers report documents the fact that interviews with those elders were conducted in circumstances that were not always entirely satisfactory, but nevertheless concludes that it was clear that a high level of consensus with the claimed boundaries around Bar-Barrum estates was being expressed.

14                  Apart from this recognition of possession from their neighbours, there is, according to the Sommers report:

“Evidence from archaeological, anthropological and linguistic research which attests to Bar-Barrum occupation of this area. There are a few place names traceable to the Mbabaram language. There is nevertheless a strong tradition of residence within, or at the fringes of, the Bar-Burrum domains by Bar-Burrum people. Those who have moved away by virtue of marriage or employment return often, and frequently seek employment which allows them continuing access to their traditional lands.”

Dr Sommer also drew in his report from two recent books written by Glenda Morris, a woman of Bar-Burrum descent, in the last ten years, and said:

“The Morris books provide a rare level of attestation of attachment to country and details of family, from a source within the claimant group itself, in details far too complex for fabrication. They confirm details of the research conducted into the anthropological issues of custom and traditional law as these have evolved into modern practice.”

15                  Finally, I have had the benefit of reading the affidavits of Tom Congoo sworn on 12 April 1999 and 25 May 1999. The affidavits, which are of course unchallenged and uncontradicted, attest to Tom Congoo’s traditional connection with the land of the determination area, and speak to the continuing association with the area and the observance of traditional laws and customs.

16                  The material before the court establishes the right of the claimants to a declaration in terms of the consent determination that native title exists in relation to the claimed areas. The material also demonstrates the claimants’ entitlement to a declaration that the people holding the rights comprising this native title are the Bar-Burrum people.

17                  It is a cause of great satisfaction when native title claims are settled through agreement rather than through litigation.  Since the decision in Mabo v Queensland [No. 2] (1992) 175 CLR 1 there have been twenty-two native title determinations by this Court, sixteen of which have been reached by consent.  That suggests that governments and other parties are increasingly aware of the benefits of negotiated settlements of native title claims, which otherwise have the potential to be lengthy, costly and divisive in the community.

Terms of the proposed order

18                  The proposed order, which is consistent with the terms agreed by the parties, recognises that native title exists over the whole of the land in the claim area.  The Bar-Barrum people, as the common law holders, are entitled to possess, occupy, use and enjoy the land within the determination area in accordance with their traditional laws and customs.  The proposed order contains other provisions, required by the Act, which are self-explanatory and which it is unnecessary for me to set out.

19                  It is for these reasons that I have concluded that it is appropriate to make the order sought by the parties to give effect to their agreement, and I now make orders, declarations and determinations in accordance with pars 1-11 of the consent determination placed with the papers.

Associate:

Dated:              4 July 2001