Congoo v State of Queensland

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 ML0010HERB ML1084HERB ML1628HERB ML2161HERB ML2310HERB ML0011HERB ML1103HERB ML1688HERB ML2170HERB ML2312HERB ML0018HERB ML1129HERB ML1689HERB ML2172HERB ML2313HERB ML0023HERB ML1195HERB ML1721HERB ML2174HERB ML2335HERB ML0028HERB ML1198HERB ML1722HERB ML2175HERB ML2344HERB ML0030HERB ML1252HERB ML1734HERB ML2176HERB ML2345HERB ML0033HERB ML1253HERB ML1778HERB ML2177HERB ML2350HERB ML0035HERB ML1254HERB ML1800HERB ML2183HERB ML2355HERB ML0040HERB ML1257HERB ML1845HERB ML2184HERB ML2357HERB ML0058HERB ML1259HERB ML1847HERB ML2189HERB ML2359HERB ML0195HERB ML1266HERB ML1903HERB ML2191HERB ML2360HERB ML0276HERB ML1269HERB ML1904HERB ML2194HERB ML2363HERB ML0328HERB ML1279HERB ML2011HERB ML2198HERB ML2375HERB ML0329HERB ML1284HERB ML2015HERB ML2203HERB ML2379HERB ML0420HERB ML1291HERB ML2021HERB ML2204HERB ML2382HERB ML0421HERB ML1302HERB ML2022HERB ML2205HERB ML2387HERB ML0422HERB ML1314HERB ML2024HERB ML2212HERB ML2388HERB ML0426HERB ML1328HERB ML2029HERB ML2220HERB ML2389HERB ML0524HERB ML1329HERB ML2032HERB ML2223HERB ML2393HERB ML0525HERB ML1371HERB ML2033HERB ML2224HERB ML2403HERB ML0544HERB ML1378HERB ML2034HERB ML2228HERB ML2415HERB ML0549HERB ML1379HERB ML2036HERB ML2230HERB ML2416HERB ML0561HERB ML1380HERB ML2038HERB ML2232HERB ML2431HERB ML0593HERB ML1413HERB ML2039HERB ML2233HERB ML2440HERB ML0595HERB ML1417HERB ML2040HERB ML2234HERB ML2442HERB ML0658HERB ML1440HERB ML2041HERB ML2235HERB ML2461HERB ML0692HERB ML1448HERB ML2047HERB ML2236HERB ML2470HERB ML0693HERB ML1449HERB ML2048HERB ML2237HERB ML2518HERB ML0694HERB ML1453HERB ML2049HERB ML2239HERB ML2522HERB ML0794HERB ML1455HERB ML2053HERB ML2244HERB ML2530HERB ML0862HERB ML1456HERB ML2054HERB ML2251HERB ML2532HERB ML0863HERB ML1457HERB ML2063HERB ML2263HERB ML2533HERB ML0866HERB ML1458HERB ML2077HERB ML2264HERB ML2537HERB ML0875HERB ML1480HERB ML2080HERB ML2270HERB ML2542HERB ML1013HERB ML1481HERB ML2081HERB ML2271HERB ML2548HERB ML1016HERB ML1533HERB ML2082HERB ML2274HERB ML2552HERB ML1027HERB ML1534HERB ML2087HERB ML2276HERB ML2554HERB ML1031HERB ML1542HERB ML2097HERB ML2280HERB ML2561HERB ML1046HERB ML1543HERB ML2140HERB ML2288HERB ML2573HERB ML1047HERB ML1560HERB ML2154HERB ML2305HERB ML2578HERB ML1052HERB ML1613HERB ML2160HERB ML2306HERB ML2595HERB ML2608HERB ML2840HERB ML3327HERB ML3607HERB ML3850HERB ML2610HERB ML2849HERB ML3339HERB ML3608HERB ML3862HERB ML2611HERB ML2866HERB ML3347HERB ML3627HERB ML3874HERB ML2613HERB ML2867HERB ML3349HERB ML3630HERB ML3878HERB ML2615HERB ML2868HERB ML3355HERB ML3631HERB ML3882HERB ML2622HERB ML2887HERB ML3360HERB ML3633HERB ML3883HERB ML2625HERB ML2896HERB ML3367HERB ML3652HERB ML3888HERB ML2626HERB ML2908HERB ML3372HERB ML3665HERB ML3889HERB ML2627HERB ML2910HERB ML3373HERB ML3667HERB ML3890HERB ML2641HERB ML2917HERB ML3387HERB ML3684HERB ML3899HERB ML2642HERB ML2997HERB ML3411HERB ML3691HERB ML3976HERB ML2655HERB ML3003HERB ML3417HERB ML3696HERB ML3979HERB ML2658HERB ML3005HERB ML3433HERB ML3697HERB ML3982HERB ML2662HERB ML3035HERB ML3435HERB ML3700HERB ML3985HERB ML2665HERB ML3052HERB ML3436HERB ML3701HERB ML3986HERB ML2666HERB ML3109HERB ML3438HERB ML3704HERB ML4003HERB ML2670HERB ML3112HERB ML3443HERB ML3706HERB ML4012HERB ML2679HERB ML3115HERB ML3459HERB ML3707HERB ML4016HERB ML2680HERB ML3116HERB ML3460HERB ML3708HERB ML4025HERB ML2683HERB ML3129HERB ML3465HERB ML3709HERB ML4039HERB ML2687HERB ML3135HERB ML3469HERB ML3710HERB ML4050HERB ML2694HERB ML3162HERB ML3472HERB ML3711HERB ML4053HERB ML2696HERB ML3194HERB ML3475HERB ML3715HERB ML4054HERB ML2702HERB ML3197HERB ML3476HERB ML3718HERB ML4056HERB ML2704HERB ML3225HERB ML3484HERB ML3721HERB ML4062HERB ML2712HERB ML3230HERB ML3489HERB ML3725HERB ML4072HERB ML2723HERB ML3232HERB ML3495HERB ML3737HERB ML4378HERB ML2732HERB ML3235HERB ML3517HERB ML3740HERB ML4385HERB ML2737HERB ML3238HERB ML3523HERB ML3750HERB ML4392HERB ML2742HERB ML3255HERB ML3527HERB ML3753HERB ML4450HERB ML2747HERB ML3256HERB ML3530HERB ML3762HERB ML4452HERB ML2761HERB ML3258HERB ML3531HERB ML3795HERB ML4477HERB ML2768HERB ML3259HERB ML3532HERB ML3800HERB ML4482HERB ML2769HERB ML3263HERB ML3533HERB ML3801HERB ML4489HERB ML2773HERB ML3264HERB ML3534HERB ML3802HERB ML4515HERB ML2783HERB ML3272HERB ML3538HERB ML3805HERB ML4527HERB ML2784HERB ML3275HERB ML3545HERB ML3806HERB ML4530HERB ML2785HERB ML3277HERB ML3549HERB ML3813HERB ML4532HERB Ml2789HERB ML3285HERB ML3551HERB ML3825HERB ML4541HERB ML2792HERB ML3300HERB ML3554HERB ML3827HERB ML4560HERB ML2821HERB ML3305HERB ML3558HERB ML3830HERB ML4635HERB ML2828HERB ML3324HERB ML3586HERB ML3831HERB ML4636HERB ML2832HERB ML3325HERB ML3592HERB ML3835HERB ML4669HERB ML2837HERB ML3326HERB ML3601HERB ML3842HERB ML4693HERB ML4710HERB ML5400HERB ML6069HERB ML6809HERB ML3954 ML4711HERB ML5440HERB ML6070HERB ML6814HERB ML3956 ML4712HERB ML5447HERB ML6071HERB ML6820HERB ML3958 ML4718HERB ML5472HERB ML6073HERB ML6849HERB ML3961 ML4719HERB ML5477HERB ML6144HERB ML6850HERB ML3962 ML4730HERB ML5506HERB ML6166HERB ML6864HERB ML3974 ML4752HERB ML5543HERB ML6180HERB ML6868HERB ML3976 ML4754HERB ML5560HERB ML6309HERB ML6869HERB ML3977 ML4762HERB ML5576HERB ML6331HERB ML6879HERB ML3978 ML4763HERB ML5580HERB ML6332HERB ML6895HERB ML3979 ML4768HERB ML5605HERB ML6333HERB ML6902HERB ML3984 ML4773HERB ML5606HERB ML6340HERB MC1882 ML3987 ML4805HERB ML5616HERB ML6357HERB MC1883 ML3996 ML4837HERB ML5617HERB ML6365HERB MC1892 ML3999 ML4864HERB ML5618HERB ML6368HERB MC1901 ML4003 ML4869HERB ML5630HERB ML6371HERB ML3788 ML4006 ML4872HERB ML5633HERB ML6382HERB ML3790 ML4013 ML4875HERB ML5634HERB ML6384HERB ML3791 ML4016 ML4884HERB ML5635HERB ML6445HERB ML3803 ML4021 ML4885HERB ML5650HERB ML6512HERB ML3812 ML4034 ML4887HERB ML5651HERB ML6513HERB ML3818 ML4039 ML4894HERB ML5695HERB ML6524HERB ML3823 ML4040 ML4913HERB ML5702HERB ML6566HERB ML3832 ML4045 ML4924HERB ML5743HERB ML6599HERB ML3848 ML4048 ML4945HERB ML5753HERB ML6615HERB ML3849 ML4049 ML5034HERB ML5784HERB ML6616HERB ML3850 ML4124 ML5057HERB ML5829HERB ML6617HERB ML3851 ML4137 ML5061HERB ML5837HERB ML6714HERB ML3858 ML4145 ML5067HERB ML5838HERB ML6715HERB ML3859 ML6257 ML5069HERB ML5858HERB ML6718HERB ML3860 ML6274 ML5071HERB ML5874HERB ML6722HERB ML3861 ML6284 ML5078HERB ML5899HERB ML6744HERB ML3863 ML6299 ML5079HERB ML5902HERB ML6754HERB ML3872 ML6300 ML5118HERB ML5958HERB ML6755HERB ML3883 ML6310 ML5141HERB ML5977HERB ML6756HERB ML3890 ML6357 ML5223HERB ML5982HERB ML6761HERB ML3891 ML6453 ML5250HERB ML5983HERB ML6766HERB ML3897 ML6454 ML5257HERB ML5984HERB ML6775HERB ML3921 ML6461 ML5265HERB ML5985HERB ML6779HERB ML3929 ML6462 ML5266HERB ML5986HERB ML6781HERB ML3932 ML6464 ML5275HERB ML5999HERB ML6782HERB ML3935 ML6465 ML5283HERB ML6018HERB ML6789HERB ML3939 ML5284HERB ML6040HERB ML6790HERB ML3942 ML5325HERB ML6043HERB ML6791HERB ML3953

ML3787 ML3846 ML3911 ML4114 ML3789 ML3862 ML3912 ML4123 ML3804 ML3865 ML3922 ML3808 ML3867 ML3927 ML3813 ML3873 ML3941 ML3822 ML3886 ML3951 ML3831 ML3887 ML3994 ML3834 ML3888 ML4008 ML3835 ML3889 ML4017 ML3843 ML3895 ML4046

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

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

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. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant: Mr Peter Poynton

Solicitor for the Applicant: Terry Fisher & Co Solicitors

Counsel for the State of Queensland: Mr Patrick Dwyer, Deputy Crown Solicitor

Solicitor for the State of Queensland: Crown Solicitors Office

Solicitor for Herberton Shire Council Mr Andrew Kerr Mareeba Shire Council Ergon Energy Corporation Limited

Counsel for Herberton Shire Council MacDonnells Solicitors Mareeba Shire Council Ergon Energy Corporation Limited

Telstra Corporation Limited Blake Dawson Waldron

Date of Hearing: 28 June 2001

Date of Judgment: 28 June 2001