Congoo on behalf of the Bar Barrum People #10 v State of Queensland

then north westerly along a line to Longitude 144.653936° East, Latitude 17.478024° South to the intersection of the western boundary of Lot 423 on OL48; then northerly along that boundary back to the commencement point. Data Reference and source Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants. Native title determination QUD6222/1998 Bar-Barrum People (QCD2001/007) as determined in the Federal Court on 28 June 2001. Cadastre data sourced from Department of Natural Resources and Mines, Qld (August 2015). Former Lot 5 on USL21414 sourced from QUD6030/2001 Bar Barrum People #4 (QC2001/032) description. Rivers / Creeks based on cadastral data else 250K topo data Geoscience Australia 2015. Watersheds based on cadastral boundaries. Reference datum Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Schedule 1B - Indicative Map of Determination Area SCHEDULE 2 - AREAS NOT FORMING PART OF THE DETERMINATION AREA Schedule 2A - Description of areas not forming part of the Determination Area The following areas are excluded from the Determination Area.

1. Those areas within the External Boundary Description in Schedule 1A, which at the time the native title determination application was made were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).
2. Specifically, and to avoid any doubt, the areas described in (1) above include: (a) the Previous Exclusive Possession Acts described in 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 (b) the areas 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) and includes, but is not limited to, the whole of the land and waters depicted in the map contained in Schedule 2B and more particularly described as all the land and waters within the areas bounded by the following sets of co-ordinates that fall within the External Boundary Description in Schedule 1A: Bridge 1 - BR-000221 Point Longitude Latitude A 145.095384 -17.142880 B 145.095921 -17.142713 C 145.096321 -17.143938 D 145.095806 -17.144163

Bridge 2 - BR-000058 Point Longitude Latitude A 145.190674 -17.126275 B 145.190766 -17.126292 C 145.191148 -17.126191 D 145.191253 -17.126266 E 145.191442 -17.126990 F 145.190885 -17.127080

Causeway 1 - BR-000056 Point Longitude Latitude A 145.298915 -17.121762 B 145.299356 -17.122115 C 145.298541 -17.122782 D 145.298166 -17.122389

Causeway 2 - BR-019104 Point Longitude Latitude A 145.114818 -17.167397 B 145.114875 -17.167382 C 145.115380 -17.167362 D 145.115371 -17.167547 E 145.115266 -17.167554 F 145.114807 -17.167556

Bridge 6 - BR-000261 Point Longitude Latitude A 145.304272 -17.172845 B 145.304864 -17.173054 C 145.304787 -17.173391 D 145.304762 -17.173597 E 145.304068 -17.173351

Bridge 7 - BR-019253 Point Longitude Latitude A 145.326611 -17.354212 B 145.326823 -17.354124 C 145.327187 -17.354532 D 145.326949 -17.354623

Bridge 8 - BR-019137 Point Longitude Latitude A 145.309998 -17.343688 B 145.310141 -17.343682 C 145.310472 -17.343872 D 145.310588 -17.343977 E 145.310647 -17.344671 F 145.310612 -17.344659 G 145.310377 -17.344579 H 145.310066 -17.344490

Bridge 9 - BR-109109 Point Longitude Latitude A 145.204537 -17.427636 B 145.204727 -17.427759 C 145.204381 -17.428188 D 145.204181 -17.428054

Causeway 3 - BR-019233 Point Longitude Latitude A 145.204152 -17.431126 B 145.204410 -17.431057 C 145.204762 -17.431482 D 145.204501 -17.431554

Reference datum Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Prepared by Geospatial Services, National Native Title Tribunal (13 October 2017) Note: An indicative map depicting the public works described at 2(b) is contained in Schedule 2B below. To the extent of any inconsistency between the written description in this Schedule 2A and the map in Schedule 2B, the written description prevails. Schedule 2B - Indicative map of public works particularly described at paragraph 2(b) of Schedule 2A above SCHEDULE 3 - NATIVE TITLE HOLDERS

1. The native title holders are the Bar Barrum People.
2. The Bar Barrum People are the biological descendants of one or more of the following people: (a) Rosie aka Lucy (mother of William Congoo); (b) Nellie (mother of Albert Bennett); (c) Millie (mother of Alick/Aleck Collins aka Chalk aka Stevens) or of her siblings Fred and Jack Solomon; (d) Maggie Watsonville (mother of May Thynne); (e) Nora Miller nee Clark or of her brother Billy; (f) Arkaragan and Kurimbu (parents of Jack Robinson); (g) Jack Brumby (father of Peter Fagan and Monday); (h) Archie Perrott aka Campbell (father of Margaret Perrott); (i) Lizzie Simmonds (mother of Mamie Simmonds); (j) John Burt Grainer (father of John Grainer and Paddy Hastie); (k) Nellie Williams or of her sister Ethel Perrott; (l) Bessie Tiger (mother of Peter Freeman), or people who are or were adopted into one of the above descent groups in accordance with the traditional laws and customs of the Bar Barrum People. SCHEDULE 4 - OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:
3. The rights and interests of the Mareeba Shire Council as the local government for that part of the Determination Area within its Local Government Area, including: (a) its powers, functions, responsibilities and jurisdiction under a Local Government Act; (b) its rights and interests under any interest in land or waters within the Determination Area including under any lease, licence, access agreement, easement or reserve in the Determination Area; (c) its rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owner and operator of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area; (d) its rights under any agreements between the Council and third parties which relate to land or water in the Determination Area; and (e) the right of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing its powers and responsibilities under paragraphs (a) - (d).
4. The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062: (a) as the owner and operator of any "Works" as that term is defined in the Electricity Act 1994 (Qld) in the Determination Area; (b) as a distribution entity and holder of a distribution authority under the Electricity Act 1994 (Qld); and (c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), including: (i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date these orders were made; (ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and (iii) to inspect, maintain and manage any Works in the Determination Area.
5. The rights and interests of Consolidated Tin Mines Limited ABN 57 126 634 606 as the holder of Exploration Permit (Minerals) 17623 granted on 4 August 2010 and Exploration Permit (Minerals) 18000 granted on 13 December 2012 under the Mineral Resources Act 1989 (Qld).
6. The rights and interests of Bookall Mining Company Pty Ltd ACN 110 689 748 as the holder of the following Mining Tenements granted under the Mineral Resources Act 1989 (Qld): Tenement No. Date Granted ML 4326 1 June 1985 ML 4887 13 September 1973 ML 4940 1 April 1975 ML 4955 10 April 1975 ML 4974 17 August 1978 ML 4978 15 June 1978 ML 4998 17 August 1978 ML 4999 10 October 1977 ML 5000 17 August 1978 ML 5001 17 August 1978 ML 5020 13 August 1981 ML 5021 13 August 1981 ML 5096 20 September 1983 ML 5125 17 December 1987 ML 5126 3 May 1984 ML 20124 29 October 1992

5. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.
6. To avoid any doubt paragraphs 5(a) and 5(b) include: (a) The rights and interests of members of the public arising under the common law, including but not limited to the following: (i) any subsisting public right to fish; and (ii) the public right to navigate. (b) So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (i) waterways; (ii) beds and banks or foreshores of waterways; and (iii) areas that were public places at the end of 31 December 1993. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 Today I will determine the last of the native title determination applications made on behalf of the Bar Barrum People over their traditional lands on the Atherton Tableland in North Queensland. The first of the Bar Barrum People's applications was lodged with the National Native Title Tribunal on 8 November 1996. That application was determined by the late Justice Hely on 28 June 2001 (Congoo on behalf of the Bar Barrum People v State of Queensland [2001] FCA 868). A further five separate applications were filed by the Bar Barrum People between April and September 2001. Those applications were determined during 2016 (Congoo behalf of the Bar Barrum People #2 v State of Queensland [2016] FCA 693 (10 June 2016), Congoo on behalf of the Bar Barrum People #3 v State of Queensland [2016] FCA 694 (10 June 2016), Congoo on behalf of the Bar Barrum People #4 v State of Queensland [2016] FCA 695 (10 June 2016), Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504 (5 December 2016) and Malthouse on behalf of the Bar Barrum People #6 v State of Queensland (No 2) [2016] FCA 696 (10 June 2016)). The orders I will make today will determine the Bar Barrum People #9 and Bar Barrum People #10 applications. Those applications were filed on 25 November 2015 and on 5 August 2016, respectively. 2 The Bar Barrum People #9 application was filed in response to a non-claimant application made by the Osborne Property Company Pty Ltd, which has since been withdrawn. The claim relates to a pastoral lease of approximately 1.5 square kilometres in area located in the Walsh River district on the Atherton Tableland. That area is formally described as Lot 302 on Crown Plan HG843491. The parties failed to reach agreement on any upgrade of the pastoral lease concerned to freehold tenure. However, the Osborne Property Company, as a respondent to this proceeding, is willing to consent to the orders I will make today. 3 The Bar Barrum #9 application was duly registered and notified in accordance with the provisions of the Native Title Act 1993 (Cth) (the NTA). While the application was amended on 14 July 2017 to change the description of the claim group, it remains on the Register of Native Title Claims. The State of Queensland, the Mareeba Shire Council and Osborne Property Company Pty Ltd (ACN 166 795 151) became, and remain, parties to the proceeding. 4 The Bar Barrum People #10 application covers the boundary watercourses and lakes that did not form part of any of the Bar Barrum determinations that were made in 2016. Those features are, however, an integral part of those determination areas. The Bar Barrum People #10 application was registered in accordance with the relevant provisions of the NTA on 30 January 2017. Some technical amendments were made to the application in October 2017, however, the amended application remains on the Register of Native Title Claims. The application has been duly notified under s 66 of the NTA. The State of Queensland, the Mareeba Shire Council, Ergon Energy Corporation Limited, Bookall Mining Company Pty Ltd and Consolidated Tin Mines Limited are parties to the proceeding. 5 The North Queensland Land Council is the native title representative body for the area which includes the claim areas in both Bar Barrum People applications. It is also the legal representative for the Applicant in each of the proceedings. 6 The parties in both proceedings have informed the Court that they have now reached agreement to resolve the two applications and they have requested that the Court make determinations of native title in the terms of the agreements under s 87 filed with the Court on 22 November 2017 (the s 87 Agreements). 7 In my 2016 Bar Barrum judgments, I expressed the hope that the remaining Bar Barrum claims could be brought to consent determinations quickly so that the quality of justice could be restored, at least to some extent, and so that the Bar Barrum People and their neighbours could move to the post-determination stage free of litigation. That hope has been fulfilled because it has taken only a little over two years to finalise these last two remaining claims.

The criteria in section 87 of the NTA are satisfied 8 The power of the Court to give effect to the parties' agreement is founded on s 87 of the NTA. Section 87(1) of the NTA sets out the various conditions which will trigger the jurisdiction of the Court in the event that the parties reach agreement on the terms of an order to finalise the proceeding. The first necessary criterion is that the notice period under s 66 of the NTA must have ended prior to the parties' written agreement being filed with the Court (s 87(1)). The National Native Title Tribunal's notification process with respect to the Bar Barrum People #9 application was completed in December 2016 and the notification process with respect to the Bar Barrum People #10 application was completed in June 2017. Hence this first criterion has been met. Secondly, with respect to both applications, the agreement of the parties must be on the terms of an order of the Court in relation to the proceedings, a part of the proceedings, or a matter arising out of the proceedings (s 87(1)(a)). In this instance, the agreement of the parties relates to the whole of the two proceedings and so that criterion has also been met. Thirdly, the terms of the agreement must be in writing, signed by the parties and filed with the Court (s 87(1)(b)). Again, this criterion has been met with the filing on 22 November 2017 of the s 87 agreements, each of which attaches a draft consent determination. 9 The fourth criterion is that the Court must be satisfied that the terms of the order sought, or an order consistent with those terms, would be within the power of the Court (s 87(1)(c)). An order will be within the power of the Court if it is consistent with s 94A of the NTA, the rights and interests included in the proposed determinations are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determinations. 10 Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the content of a determination of native title as: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. (Note omitted) 11 Having examined the draft consent determinations attached to the s 87 agreements, I am satisfied that each of the matters outlined in the above sections of the NTA is properly articulated therein. 12 I have been assisted by the detailed submissions provided in each matter by the Applicant's lawyer. Those submissions describe the content and exercise of the native title rights and interests the Bar Barrum People hold in the determination areas. I have also relied on the extensive anthropological material and the affidavits that I considered and referred to in my earlier reasons. They include affidavits from the Bar Barrum People deposing to their traditional laws and customs and the exercise of the rights that are derived from those laws and customs. Having considered that material, I am satisfied that the native title rights and interests of the Bar Barrum People in the determination areas are recognisable by the common law of Australia. 13 Finally, I am also satisfied that there is no other determination of native title in existence over any part of the determination areas. 14 The final condition the parties need to meet in order to have the Court make a consent determination of native title concerns the operation of s 87(1A). That section essentially requires the Court to be satisfied that it is appropriate to make a determination in terms of the parties' agreement. 15 In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of "appropriateness". It is not necessary for me to repeat all those observations here. It will suffice to set out the concluding summary as follows (at [14]): It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process … (Citations omitted) 16 As I have already mentioned above, the lawyer for the Bar Barrum Applicant has filed a detailed set of submissions in support of these proposed consent determinations. Having regard to those submissions, I am satisfied that the steps taken by the parties as described therein, together with the fact that all parties have had the benefit of competent legal representation, indicates that their agreement is free and informed. Finally, I am also satisfied that the terms of the proposed orders are unambiguous and clear. I am therefore satisfied it is appropriate to make the draft determinations attached to the s 87 agreements.

Prescribed Body Corporate 17 Section 55 of the NTA requires the Court to either make a determination where native title is held on trust as contemplated by s 56, or a determination under s 57 of the NTA. Order 13 of the proposed orders provides that the native title is not held in trust. Accordingly, the Applicant has nominated the Mbabaram Aboriginal RNTBC (ICN8449) (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ("the Corporation") as the prescribed body corporate for the purposes of s 57(2) of the NTA to act for the common law holders and to perform the functions set out in s 57(3) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). Further, by order 13(a), the Mbabaram Aboriginal Corporation (ICN 8449) is nominated to be the prescribed body corporate for the purposes of the abovementioned provisions of the NTA. That order will therefore operate to satisfy the requirements of s 57 of the NTA.

Conclusion 18 As I mentioned at the outset, the first application by the Bar Barrum People for the determination of native title was filed in November 1996, a little over 21 years ago. It is gratifying to see that after that long period the Bar Barrum People have today finally been successful in having their native title recognised over the whole of their traditional country. I congratulate the Bar Barrum People and all the other parties in the hard work and perseverance that has been necessary to reach this very significant milestone. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES QUD 607 of 2016 Respondents Fourth Respondent: BOOKALL MINING COMPANY PTY LTD Fifth Respondent: CONSOLIDATED TIN MINES LIMITED