Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd

The case of Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd involves a dispute over native title rights and the proposed gas extraction operations by Santos within the claimant area of the Gomeroi People. The National Native Title Tribunal (Tribunal) had determined that future acts could proceed with conditions, despite the Gomeroi People’s objections. The Gomeroi People appealed to the Federal Court, challenging the Tribunal's determination on several grounds, including the application of the negotiation test, the interpretation of "payment" versus "compensation" under the Native Title Act 1993 (Cth) (NTA), and procedural fairness. Additionally, the Gomeroi People argued that the Tribunal had erred in considering climate change effects under the NTA.

The court was required to determine whether the Tribunal had applied the negotiation test correctly and whether it had conflated different concepts of compensation and payments within the NTA. The court also needed to consider if the Tribunal had denied the parties procedural fairness by introducing concepts such as "market" under Australian consumer law without prior notice. Furthermore, the court had to assess if the Tribunal's findings about expert evidence were legally unreasonable and whether the effects of climate change could fall within the criteria for approval under s 39 of the NTA.

The court found that the Tribunal's determination was not affected by the errors alleged in questions 1, 2, 4, 5, and 6 of the Gomeroi's further amended notice of appeal. However, the court identified an error of law in the Tribunal's approach to the negotiation test and its interpretation of compensation and payments. The court also found that the Tribunal had erred in considering climate change effects under s 39 of the NTA. Consequently, the appeal was allowed on the basis of these legal errors.

The court ordered that the appeal be allowed, and directed the parties to file any agreed proposed orders by a specified date. If the parties could not agree, they were required to submit written submissions on appropriate orders, including costs, by a subsequent date. The court indicated that any proposed orders or submissions would be determined on the papers.