FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal:
President Smith; Member Eaton; Member Kelly
Place:
Brisbane
Date:
19 May 2025
Catchwords:
native title – future act – future act determination application – remittal – engagement with expert – expert evidence – s 39 criteria considered – effect of act on native title rights and interests – enjoyment of native title rights and interests – particular significance – public interest in doing of act – effects of climate change – decisions and recommendations of other bodies – cultural heritage protection under State legislation
Callychurn and Australian Securities and Investments Commission[2019] AATA 4600 (Callychurn v ASIC)
Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales[2013] NNTTA 2 (Coalpac)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Santos NSW Pty Ltd v Gomeroi People [2025] NNTTA 12
Case
[2025] NNTTA 12
Decision Date
CaseChat Overview and Summary
The matter before the Administrative Appeals Tribunal (AAT) involved Santos NSW Pty Ltd and the Gomeroi People, with the dispute centering on the conditions under which the proposed Galilee Basin coal mine could be developed. The AAT was tasked with determining whether the act could be done subject to conditions, as required by section 38(1)(c) of the Native Title Act 1993 (Cth). This decision followed a Full Court judgment that set aside the previous determination by the AAT and remitted the matter for reconsideration. The Full Court’s remittal required the AAT to disregard any claims related to good faith negotiation and to consider all evidence and material presented by the parties, excluding evidence solely pertaining to the issue of good faith.
The central legal issue before the AAT was whether the proposed act of developing the Galilee Basin coal mine could proceed under the Native Title Act, subject to certain conditions. The Tribunal had to balance the rights of the Gomeroi People, as native title holders, with the economic benefits and public interest associated with the coal mine development. The AAT was also required to consider the non-disclosure directions concerning culturally sensitive material and to determine the appropriate conditions for the act to proceed, taking into account all relevant factors stipulated in section 39 of the Act.
In reaching its decision, the AAT considered the evidence and submissions from all parties, excluding those related to good faith. It noted that it was not bound by previous findings made in the 2022 Determination, as the remittal allowed for a fresh inquiry. The AAT concluded that the act could proceed subject to certain conditions, which it detailed in its determination. These conditions were designed to mitigate the impact of the development on the Gomeroi People and their native title rights. The AAT also took into account the cultural sensitivity of certain evidence, ensuring that the disclosure of such information was restricted to specified persons and purposes.
The AAT's final orders permitted the development of the Galilee Basin coal mine by Santos NSW Pty Ltd, subject to the conditions outlined in the determination. These conditions aimed to balance the interests of the Gomeroi People with the economic benefits of the project. The AAT ensured that the process was fair and transparent, adhering to the legal principles and statutory requirements governing the matter.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
At the request of Gomeroi, and following consultation with the parties, the panel made directions prohibiting the disclosure of identified culturally sensitive parts of the statements of Ms Tighe, Mr Booby and Mr Wilson lodged in this remittal, other than to specified persons for the purposes of this inquiry or any related appeal (restricted evidence).[33] Nothing in those directions prevents the panel from stating any findings of fact on which this determination is based, however the Tribunal has refrained from disclosing the restricted evidence wherever possible and has particularly avoided setting out specific details of cultural matters. [33] Directions of the panel, dated 16 October 2024. The affidavits of Ms Tighe, Mr Booby, Mr Wilson and Mr Kumarage lodged in the 2022 Determination were also subject to non-disclosure directions and are also restricted evidence for the purposes of this inquiry.[34] [34] Directions of President Dowsett, dated 8 October 2021. On 28 March 2025, the panel notified parties that it had reached the preliminary view that the act may be done subject to conditions pursuant to s 38(1)(c) of the Native Title Act. Before finalising any determination in this matter, the panel offered parties the opportunity to make any comments they wished to regarding the proposed condition categories. On 11 April 2025, all parties made submissions addressing the proposed conditions, which the panel had regard to in making this determination. As set out above, the 2022 Determination was set aside by the Full Court and remitted to the Tribunal to be determined afresh by this panel, save that the parties are precluded from making any claim that any other party did not negotiate in good faith. In accordance with the Orders of the Full Court, no party made any claim relating to good faith in the remittal and the panel is not prevented from making a determination on the applications per s 36(2). The panel has had regard to all of the evidence and material put forward by the parties in the 2022 Determination, including the transcripts of oral hearings, save for any such evidence which solely related to the issue of good faith. The panel confirmed with the parties that this would be the approach adopted, and parties were invited to address their contentions to all of the evidence and material before the panel, that is; any evidence adduced in the 2022 Determination together with any additional evidence lodged over the course of this inquiry. The panel is not bound to make the same findings made in the 2022 Determination; that depends on the view formed by this panel conducting the remitted inquiry.[35] Further, the parties on a remittal hearing are entitled to put arguments not raised on the original application and are not limited to matters raised on the appeal.[36] In some instances, counsel for Santos and the State appeared to suggest the panel could not disturb findings made in the 2022 Determination where such findings were not raised in appeal, however this submission is incorrect.[37] In respect of this remittal, the Tribunal is required to take into account all of the evidence before it relating to all the factors set out in s 39. [35] Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, [18], [45], [68].[36] Callychurn v ASIC [2019] AATA 4600, [62]–[65].[37] Transcript of the closing submissions held 14 February 2025, Ms Parker, P-50/L32-37, Ms Webb, P-45/L30-36 (Closing Transcript).