FEDERAL COURT OF AUSTRALIA Congoo on behalf of the Bar Barrum People #9 v State of Queensland [2017] FCA 1510 File number: QUD 1076 of 2015 Judge: REEVES J Date of judgment: 12 December 2017 Catchwords: NATIVE TITLE – application for determination of native title under s 87 of the Native Title Act 1993 (Cth) – consideration of whether the parties have satisfied the criteria set out in s 87 such that the jurisdiction of the Court is enlivened – consideration of whether it is appropriate for the Court to make an order in terms of the agreement reached by the parties Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Native Title Act 1993 (Cth) Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) Cases cited: Congoo on behalf of the Bar Barrum People v State of Queensland [2001] FCA 868 Congoo 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 Congoo on behalf of the Bar Barrum People #4 v State of Queensland [2016] FCA 695 Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504 Malthouse on behalf of the Bar Barrum People #6 v State of Queensland (No 2) [2016] FCA 696 Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 Date of hearing: 12 December 2017 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 18 Solicitor for the Applicant: G Bell of North Queensland Land Council Solicitor for the First Respondent: K Snape of Crown Law Solicitor for the Second Respondent: M Wright of Preston Law Solicitor for the Third Respondent: D Carey of Girgenti Lawyers ORDERS QUD 1076 of 2015 BETWEEN: MICHAEL JAMES CONGOO, ANDREW TIMOTHY CONGOO, WARREN CONGOO AND SHELTON MURPHY ON BEHALF OF THE BAR BARRUM PEOPLE #9 Applicant AND: STATE OF QUEENSLAND First Respondent MAREEBA SHIRE COUNCIL Second Respondent THE OSBORNE PROPERTY COMPANY PTY LTD (ACN 166 795 151) Third Respondent JUDGE: REEVES J DATE OF ORDER: 12 DECEMBER 2017 BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth) BY CONSENT THE COURT ORDERS THAT: 1. There be a determination of native title in the terms set out below (the determination). 2. Each party to the proceedings is to bear its own costs. BY CONSENT THE COURT DETERMINES THAT: 3. The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1. 4. Native title exists in relation to the Determination Area described in Schedule 1A. 5. The native title is held by the Bar Barrum People described in Schedule 3 (the native title holders). 6. Subject to paragraphs 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1A are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) be buried and bury native title holders within the area; (h) 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; (i) teach on the area the physical and spiritual attributes of the area; (j) hold meetings on the area; (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 7. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the native title holders. 8. The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 9. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 10. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4. 11. The relationship between the native title rights and interests described in paragraph 6 and the other interests described in Schedule 4 (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; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. DEFINITIONS AND INTERPRETATION 12. In this determination, unless the contrary intention appears: "land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Local Government Act" has the meaning given in the Local Government Act 2009 (Qld); "Local Government Area" has the meaning given in the Local Government Act 2009 (Qld); "Natural Resources" means: (a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and (b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include: (a) animals that are the private personal property of another; (b) crops that are the private personal property of another; (c) minerals as defined in the Mineral Resources Act 1989 (Qld); or (d) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; and (c) water from an underground water source. Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth). THE COURT DETERMINES THAT: 13. The native title is not held in trust: (a) The Mbabaram Aboriginal Corporation ICN 8449, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (i) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate in relation to the determination. SCHEDULE 1 – DETERMINATION AREA Schedule 1A – Description of Determination Area The determination area comprises all of the land and waters described as Lot 301 on plan HG843491 and depicted in the map contained in Schedule 1B, excluding the areas described in Schedule 2. To the extent of any inconsistency, the written description set out in Schedule 1A and Schedule 2 prevails over the map contained in Schedule 1B. Data Reference and source Cadastral data sourced from the Department of Natural Resources and Mines, Qld (June 2017) Reference datum GDA 1994 MGA Zone 55 Schedule 1B – Map of Determination Area SCHEDULE 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA The following areas of land and waters are excluded from the Determination Area. 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). 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: 1. The rights and interests of The Osborne Property Company Pty Ltd under Rolling Term Lease 17727227 over Lot 301 on HG843491. 2. The rights and interests of 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). 3. 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. 4. To avoid any doubt paragraphs 3(a) and 3(b) include 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: (a) waterways; and (b) beds and banks or foreshores of waterways. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REEVES J: 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. Associate: Dated: 12 December 2017