TraKS, Determinations and Compensation on the Cards for 2021


4 December 2020

As QSNTS wraps up another year of successful operations and prepares for our annual office closure commensurate with the holiday season, we are also planning ahead for 2021, which is set to be another busy year in native title.

TraKS

With the groundwork for the TraKS native title agreements database now in place, QSNTS is moving to the next stage in the rollout process.

TraKS is a web-based database that brings Native Title Holders’ agreements together in one place to make managing Indigenous estate as effortless and rewarding as possible for Traditional Owners. As a managed service, QSNTS’ team of legal and technical experts work in the background to carry the administrative burden of monitoring and enforcing compliance with native title agreements, enabling Native Title Holders to enjoy the benefits of those agreements while still being free to get on with the job of managing Country.

TraKS allows Traditional Owners to:

  • Simplify complex legal agreements – our legal team interprets native title agreements to break down the jargon and capture the most important elements to be entered into TraKS, such as payment amounts and due dates
  • Calculate payments correctly every time – TraKS is preloaded with complex formulas for calculating CPI, GST and other amounts automatically on invoices
  • Streamline the process of agreement implementation – TraKS combines functionality of multiple apps into a steamline services, so there is no need to use complex documents, spreadsheets databases and calculators for agreement tracking
  • Take control of native title affairs – Native Title Holders can effective manage their affairs by using TraKS to collate agreements, calculate and issue payment reminders, and monitor compliance
  • Access their agreements database from anywhere – TraKS is a web-based platform that only requires a web browser to use, so it can be accessed anytime from anywhere.

In the coming year, Traditional Owners will hear more about TraKS and how it can help Native Title Holders to make the most of their native title rights and interests. Stay tuned.

Consent Determinations

Despite the challenges presented by COVID-19 in 2020, Traditional Owners have remained resolute on the long and often difficult path to native title determination, and as a result of that commitment, QSNTS is assisting a current total of nine claim groups on the path toward consent determination.

While a native title determination is always made by the Federal Court of Australia, a determination made by consent is where Traditional Owners and the State together negotiate agreement about native title, rather than having the outcome decided at trial.

The pathway toward consent determination is often a complex process of evidence gathering, consideration of connection materials by the State, and negotiations to establish native title agreements that resolve remaining issues.

Consent determination hearings by the Federal Court are often heard on-country, followed by a community celebration to commemorate the historic event as a milestone in recognition and healing.

Over the coming 12 to 24 months, QSNTS looks forward to assisting the following claim groups on the consent determination pathway:

  • Kabi Kabi First Nations Traditional Owners
  • Koa People
  • Quandamooka People (Coast Claim)
  • Gamilaraay People
  • Kunja People
  • Butchulla People (Land & Sea Claim #2) (Subject to an ILUA)
  • Wangkamahdla People
  • Woppaburra People
  • Yuwaalaraay/Euahlayi People.

We will also continue to work diligently toward attaining native title determination for all Traditional Owners in our service region and hope to see more claim groups on the consent determination pathway over the coming year.

Compensation

Since the Griffiths decision was handed down by the High Court of Australia in March 2019, paving the way for Traditional Owners to pursue native title compensation, QSNTS has been undertaking extensive research to lay the groundwork for several potential compensation claims throughout our service region.

Although native title compensation is still a developing field of law, a successful compensation claim at the moment will require:

  • Proving native title would have existed if it wasn't extinguished, diminished or impaired by acts done by the State after 31 October 1975 ('compensable acts');
  • Identifying where the compensable acts took place;
  • Assessing the historical land tenure of where the compensable act took place;
  • Assessing the compensation by having regard to the freehold value of the land, the nature of the proven native title rights and interests, and the cultural harm suffered because of the compensable act; and
  • Reducing the overall compensation by any compensation-type payments already received under other agreements. 

To cover the first element, QSNTS has been focusing on potential compensation claims in areas where native title has already been determined, and with research already carried out, we are preparing to file new compensation claims early in 2021.

QSNTS again reminds Traditional Owners that compensation claims are not subject to limitation periods and, unlike a native title determination application, do not invoke any additional rights. With time on our side, we encourage our clients to be patient as we navigate this new field of law and plan strategies to ensure your potential compensation claims have the best chance of success.

QSNTS offices will be closed from 12:30pm on Friday, 18 December 2020 for the festive season, and will reopen at 8:30am on Monday, 4 January 2021. We thank all of our valued clients for their support throughout 2020 and look forward to reaching new native title milestones in 2021.