Santos NSW Pty Ltd v Gomeroi People - [2025] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 (19 May 2025)

Application No:

NF2021/0003-0006

IN THE MATTER of an inquiry into a future act determination application

Gomeroi People (NC2011/006)

(native title party/Gomeroi)

- and -

Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd

(grantee parties/Santos)

- and -

State of New South Wales

(Government party/State)

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
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Biological Conservation Act 2016 (NSW) Climate Change (Net Zero Future) Act 2023 (NSW) s 3(1) Environmental Planning and Assessment Act 1979 (NSW) s 4.41 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) Heritage Act 1997 (NSW) National Greenhouse and Energy Reporting Act 2007 (Cth) ss 7, 22XJ (GER Act) National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 (Cth) r 8 (Safeguard Mechanism Rule) National Parks and Wildlife Act 1974 (NSW) (NPW Act) National Parks and Wildlife Regulations 2019 (NSW) Native Title Act 1993 (Cth) ss 3(a), 29(2), 35, 36(2), 38, 39, 41, 50 (Native Title Act) Protection of the Environment Administration Act 1991 (NSW) s 6 (PEA Act) Protection of the Environment Operations Act 1997 (NSW) s 45 (PEO Act)
Cases:	Australian Potash Limited and Another v Kalman Murphy and Ors on behalf of Waturta [2021] NNTTA 46 (Australian Potash) Bonnington Castings Ltd v Wardlaw [1956] AC 613 (*Bonnington Castings) 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) Connell v Santos New South Wales Pty Ltd [2014] NSWLEC 1; (2014) 199 LGERA 84 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Environment Council of Central Queensland Inc v Minister for the Environment and Water [2024] FCAFC 56 (Living Wonders) Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (*FMG v Yindjibarndi) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd* [2024] FCAFC 26 (*principal reasons) Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (No 2)* [2024] FCAFC 49 (*remittal) Jagroop and Minister for Immigration and Border Protection* [2015] AATA 751; (2015) 67 AAR 288 Kanak v National Native Title Tribunal [1995] FCA 1624; (1995) 61 FCR 103 Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2011] NNTTA 80 (Magnesium Resources) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Muccan Minerals Pty Ltd and Another v Allen and Others on behalf of Njamal [2018] NNTTA 24 Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA 221 (*Mullaley Gas v Santos) O’Sullivan v Farrer* [1989] HCA 61; 168 CLR 210 Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] NNTTA 74 (*2022 Determination) Shi v Migration Agents Registration Authority* [2008] HCA 31; (2008) 235 CLR 286 Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Kess Diamond Marstella & Core Uranium Pty Ltd [2023] NNTTA 25 (*Top End v Kess Diamond Marstella) Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia* [2025] FCA 22 Walley v Western Australia [1999] FCA 3; (1999) 87 FCR 565 Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (*Watson v Backreef) Western Australia v Thomas* [1996] NNTTA 30; (1996) 133 FLR 124 Western Desert Lands Aboriginal Corporation v Western Australia [2009] NNTTA 49; (2009) 232 FLR 169 (*Western Desert Lands) Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage* [2006] FCA 736; (2006) 232 ALR 510 (*Wildlife Preservation Society) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another* [2014] NNTTA 8 (*Yindjibarndi v FMG*)
Representatives of the native title party:	Fiona McLeod SC, Dr Angus Frith and Winsome Hall, Counsel Mishka Holt and William Scott, NTSCORP Limited

Representatives of the grantee parties:

Raelene Webb KC and Marc McKechnie, Counsel
Rebecca Hughes, Alice Jiang and Clare Lawrence, Ashurst Australia

Representatives of the Government party:

Henry El Hage and Melita Parker, Counsel
Caitlin Fegan, Crown Solicitor’s Office

TABLE OF CONTENTS

DETERMINATION SUMMARY
REASONS FOR DETERMINATION
INTRODUCTION	[1]–[20]
THE TASK OF THE PANEL	[21]–[25]
DETERMINATION UNDER S 38	[26]–[398]
*Project description*	[37]–[54]
*The Aboriginal cultural heritage protection regime in NSW*	[55]–[64]
*CONSIDERATION OF SECTION 39(1)(A)*	[65]–[237]
*COSMOLOGY*	[70]–[73]
*CULTURE*	[74]–[75]
*WATER*	[76]–[84]
*CLIMATE CHANGE*	[85]–[102]
*SECTION 39(1)(A)(I) – THE EFFECT OF THE ACTS ON THE ENJOYMENT OF GOMEROI OF THEIR NATIVE TITLE RIGHTS AND INTERESTS*	[103]–[122]
*SECTION 39(1)(A)(II) – THE EFFECT OF THE ACTS ON GOMEROI WAY OF LIFE, CULTURE AND TRADITIONS*	[123]–[171]
*SECTION 39(1)(A)(III) – THE EFFECT OF THE ACTS ON THE DEVELOPMENT OF GOMEROI SOCIAL, CULTURAL AND ECONOMIC STRUCTURES*	[172]–[181]
*SECTION 39(1)(A)(IV) – THE EFFECT OF THE ACTS ON GOMEROI FREEDOM OF ACCESS TO THE LAND AND WATERS, AND FREEDOM TO CARRY OUT RITES, CEREMONIES OR OTHER ACTIVITIES OF CULTURAL SIGNIFICANCE*	[182]–[190]
*SECTION 39(1)(A)(V) – THE EFFECT OF THE ACTS ON ANY AREA OR SITE, ON THE LAND OR WATERS CONCERNED, OF PARTICULAR SIGNIFICANCE TO THE NATIVE TITLE PARTIES IN ACCORDANCE WITH THEIR TRADITIONS*	[191]–[237]
*PILLIGA AS A PLACE OF SIGNIFICANCE*	[195]–[203]
*YARRIE LAKE*	[204]–[207]
*BOHENA CREEK*	[208]–[212]
*WOMBAT ROCK AND YAMINBAH*	[213]–[220]
*EFFECT OF THE PROPOSED FUTURE ACTS ON YARRIE LAKE*	[221]–[229]
Comments in relation to the Aboriginal Cultural Heritage Management Plan	[230]–[237]
CONSIDERATION OF SECTION 39(1)(B) – THE INTERESTS, PROPOSALS OR WISHES OF THE NATIVE TITLE PARTY IN RELATION TO THE IN RELATION TO THE MANAGEMENT, USE OR CONTROL OF LAND OR WATERS THAT WILL BE AFFECTED BY THE ACT	[238]–[248]
CONSIDERATION OF SECTION 39(1)(C) – THE ECONOMIC OR OTHER SIGNIFICANCE OF THE ACT TO AUSTRALIA, THE STATE, THE AREA WHERE THE PROJECT IS LOCATED, AND ABORIGINAL PEOPLES AND TORRES STRAIT ISLANDERS WHO LIVE IN THAT AREA	[249]–[265]
Contentions and evidence	[257]–[261]
Consideration	[262]–[265]
*CONSIDERATION OF SECTION 39(1)(E) – ANY PUBLIC INTEREST IN THE DOING OF THE ACT*	[266]–[386]
Public benefits and public detriments	[281]–[284]
Counterfactual	[285]–[299]
Direct and indirect	[300]–[312]
*Contentions and evidence*	[313]–[346]
EIS and related evidence	[315]–[323]
Energy security (supply)	[324]–[328]
Gas prices	[329]–[333]
Impacts of climate change: expert evidence	[334]–[341]
Impacts of climate change: Gomeroi witnesses	[342]–[346]
Regulatory regime	[347]–[356]
Safeguard Mechanism	[347]–[349]
NSW legislation	[350]–[351]
IPC conditions	[352]–[356]
The weighing of public interest	[357]–[386]
Emissions	[363]–[365]
Energy security and affordability	[366]–[373]
Environmental protections	[374]–[380]
Social impacts	[381]–[386]
*Consideration of section 39(1)(f) – any other relevant matters*	[387]–[397]
*CONCLUSION*	[398]–[402]
CONDITIONS	[403]–[418]
DETERMINATION	[419]
ANNEXURE 1 – MAP OF PETROLEUM PRODUCTION LEASE APPLICATIONS 13, 14, 15 & 16
ANNEXURE 2 – MAP OF CLAIM AREA

DETERMINATION SUMMARY

This decision is made under s 38 of the Native Title Act and concerns whether certain future acts, being the grant of several petroleum production leases to Santos NSW Pty and Santos NSW (Narrabri Gas) Pty Ltd, may be done.

Santos proposes to conduct a gas extraction operation on the leases, known as the Narrabri Gas Project. The proposed leases are 95,000ha in size, located to the south and west of Narrabri and overlapped entirely by the registered Gomeroi native title determination application.

In December 2022, following an initial inquiry into the grant of the leases, the National Native Title Tribunal determined the acts may be done subject to conditions.

In January 2023, Gomeroi lodged an appeal of the 2022 determination with the Federal Court of Australia. The Full Court of the Federal Court unanimously rejected Gomeroi's five grounds of appeal relating to good faith. The appeal was however allowed on Ground 3, with the Full Court finding the Tribunal erred in concluding it was prohibited from considering environmental matters except in relation to a ‘particular environmental concern having particular effect on native title’. The Full Court observed that under s 39(1)(e), whether features or characteristics of the future act that might be broadly described as ‘environmental’ weighed for or against the public interest in the doing of the act ought to have been properly considered.

Accordingly, in April 2024 the 2022 determination was set aside, and the lease applications were remitted back to the Tribunal for hearing and determination according to law.

Approximately 70% of the total area of the leases overlap the northeastern portion of an area known as the Pilliga, an important cultural landscape of the Gomeroi people. The Pilliga is a conglomeration of forested areas that total more than 500,000 hectares, and the leases overlap approximately 13% of this cultural landscape.

The Narrabri project is the construction and operation of a gas field which includes refining facilities, gas and water processing, and associated infrastructure. Gas is to be extracted from coal seams between 300 and 1200 metres below ground, produced from up to 850 new wells on a maximum of 425 well pads.

Given the nature of the project, its sensitive location for the Gomeroi people, and the lengthy approvals history to date, the evidence in this matter has been extensive and the panel has carefully considered and weighed up all the material before it.

The public interest criteria set out at s 39(1)(e), and consideration of environmental or climate change impacts, was a large focus of the appeal and resultingly this remittal decision.

There was broad consensus between the experts for Gomeroi and Santos regarding current climate science. This was of assistance to the panel. It is not controversial that there is more than one source of greenhouse gas emissions, and more than one cause of global warming, and it would be an error for the Tribunal to attribute every consequence of global warming to the proposed future act. Instead, the panel has taken into account, based on the evidence before it, the greenhouse gas emissions of the project and the consequential effects of those emissions, including any contribution to global warming. Gomeroi’s expert and traditional owner evidence demonstrates that climate change will contribute to local and regional risks and impacts. The contribution of the project to the effects of climate change is a serious detriment to be considered.

When considering public interest, the panel placed significant weight on the project providing energy reliability if all the gas produced is made available to the domestic market as intended. The evidence in this matter has shown that if the leases are not granted, there will likely be a gap in the available supply of reliable, secure energy on Australia’s east coast, which would have significant short-to-medium-term detrimental impacts upon the wider community, including Gomeroi people.

Weighing the public interest evidence, including the evidence addressing environmental matters, the panel has found the Project offers a net public benefit, particularly where conditions are imposed to address the environmental and social impacts.

The panel has also carefully undertaken the broader task set out at s 39, weighing the likely effect of the project on the matters set out in s 39(1)(a), particularly the likely effect on: the enjoyment by Gomeroi of their registered native title rights; Gomeroi way of life, culture and traditions; freedom of access to the lease areas overlapped by the important cultural landscape and waterways of the Pilliga; and the risk to significant sites Yarrie Lake and Bohena Creek. This was considered alongside the expressed wishes of the Gomeroi people that the Project does not proceed in the absence of their consent (s 39(1)(b)), the broader economic significance of the Project (s 39(1)(c)), and all other factors required under s 39.

The panel has determined the leases may be granted, subject to various conditions to be complied with by the parties under s 38(1)(c). The imposed conditions go to three broad categories:

For there to be a net weighing that the project is in the public interest, all of the gas recovered must be used for domestic supply only.
The strengthening of Aboriginal cultural heritage protections, as the evidence demonstrated identified risks to cultural heritage, including as a result of the project’s classification as a State Significant Development.
The implementation of a ranger program covering the Pilliga Forest, to manage Country, protect the environment, and monitor and manage ecological threats. These conditions go to the cultural concerns and obligations of Gomeroi people, but also cultural safety and environment as important matters of consideration under public interest.

This summary in no way affects or varies the detailed reasons which appear below.

REASONS FOR DETERMINATION

INTRODUCTION

This decision concerns whether the State of New South Wales may grant Petroleum Production Lease Applications 13, 14, 15 and 16 (the leases) to the grantee parties, Santos NSW Pty and Santos NSW (Narrabri Gas) Pty Ltd. Santos proposes to conduct a gas extraction operation on the leases, described as the Narrabri Gas Project.
President Kevin Smith, Member Lisa Eaton and Member Glen Kelly were appointed to form a panel and constitute the National Native Title Tribunal for the purpose of this remitted determination.
PPLA13 is located approximately 31 km south-west of Narrabri NSW and comprises of an area approximately 266 sq km. PPLA14 is located approximately 20 km south of Narrabri NSW and comprises of an area approximately 153 sq km. PPLA15 is located approximately 22 km west-south-west of Narrabri NSW and comprises of an area approximately 264 sq km. PPLA16 is located approximately 343 km west of Narrabri NSW and comprises an area of approximately 241 sq km. The leases cumulatively comprise an area of approximately 924 sq km and Annexure 1 to this determination is a map showing the approved Project area as described in the Independent Planning Commission of NSW Development Consent.
On 30 September 2020, the IPC granted development consent for the Project, subject to 134 conditions. On 18 October 2021, that decision was upheld by the Land and Environment Court of NSW.[1]
[1]Mullaley Gas v Santos [2021] NSWLEC 110.
The panel has given due regard to the findings of the IPC concerning the Project. To give some context to these findings, the relevant aspects of the key impacts of the Project identified by the IPC are summarised below:[2]
(a)Groundwater and agriculture: The IPC imposed conditions requiring further information to improve the groundwater impact modelling before the Project proceeds to Phase 2. The imposed conditions relating to groundwater do not permit Santos to establish the production field (Phase 2) if the revised groundwater model predicts an exceedance of the water management performance measures identified in the consent. The IPC put the burden of proof on Santos to demonstrate any adverse direct impact to water supply is not due to its activities and strengthened the obligation to supply compensatory water or provide other compensation for attributable impacts. Santos must develop a Water Management Plan to be approved by the Planning Minister addressing water management performance measures including negligible changes to groundwater level and quality, a negligible change to surface water quality in any watercourse, and implementation of all reasonable and feasible measures to minimise risk of leaks and spills.
(b)GHG Emissions: The IPC acknowledged it had received submissions that the direct emissions of the Project had been underestimated, ‘which would jeopardise the expected greenhouse gas emissions advantage of CSG over coal’. As such, the IPC imposed a condition requiring that Santos ensure all reasonable and feasible avoidance and mitigation measures are employed so that greenhouse gas (GHG) emissions generated do not exceed certain criteria listed in its reasons. The IPC also required Santos develop cumulative maximum forecasts over the 25-year lifetime of the Project and it must monitor and publicly report on the actual GHG emissions against those cumulative forecasts and ensure that any exceedances are 100% offset within one year after the reporting periods. The IPC only considered ‘Scope 1’ and ‘Scope 2’ emissions finding that that ‘Scope 3’ emissions were outside the direct control of Santos and therefore not able to be reasonably conditioned.
(c)Biodiversity: The IPC acknowledged the high biodiversity value of the Pilliga but found that the Project would take place in a portion only. The IPC considered the relevant guidelines and offsets, along with the Santos’ proposal for dealing with vegetation fragmentation, and found that with the imposition of conditions it was satisfied the Project would provide for the ‘appropriate management, mitigation and monitoring of the potential biodiversity impacts’. The conditions require that well pads be placed a certain distance apart, that infrastructure avoid certain identified conservation areas and water resources, and that the total area of disturbance be limited. The conditions also attempt to limit the extent of disturbance by requiring that impacts to identified ecosystems be offset through a ‘biodiversity credit’ system.
(d)Waste Management: The IPC considered the Project’s waste generation and management and imposed conditions requiring Santos develop appropriate arrangements for the disposal of waste, a waste management plan and minimise the on-site storage of waste. The IPC noted that enforceability of these conditions had been confirmed by the NSW Environment Protection Agency.
(e)Aboriginal Cultural Heritage: The IPC was satisfied that the Aboriginal Cultural Heritage Assessment and consultation has been undertaken in accordance with the relevant guidelines. Several conditions were imposed, including that the Project not directly or indirectly impact heritage items identified in the consent, and providing processes surrounding the discovery of, or suspicion of, Aboriginal objects or places during the Project. The conditions also provided for the creation of an Aboriginal Cultural Heritage Advisory Group and the development of an Aboriginal Cultural Heritage Management Plan.
(f)Bushfire risk: The IPC identified four bushfire risks posed by the Project, being: fire ignition risks posed from flaring activities; hazards posed by methane (CH₄) gas in the event of a bushfire; risks to the facility from catastrophic bushfire events; and potential increases in the frequency and severity of bushfire events due to climate change. The IPC imposed a condition requiring that the safety flare stack be 50 m in height, which along with appropriate clearance measures, and the development of Bushfire Management Plan, they found would render bushfire risks manageable.
(g)Economic Impacts: On balance the IPC found the Project will provide a net economic benefit for the local community, region and State including through potentially improving gas security for Australia's east coast domestic market. The IPC based its finding on the economic modelling found in the Environmental Impact Statement as assessed by the Department of Planning and Environment and the Department’s independent expert.
(h)Social and health: The IPC found that the Project was unlikely to be a source of significant physical health impacts, and that conditions could secure and enhance local community services and facilities. It imposed a condition that Santos develop and implement a Social Impact Management Plan.
[2] Independent Planning Commission NSW, Statement of Reasons for Decision (30 September 2020), Ch 7 (IPC Statement of Reasons); Independent Planning Commission NSW, Development Consent (30 September 2020) (IPC Development Consent).

On 4 June 2015, the State gave notice under s 29 of the Native Title Act 1993 (Cth), of the relevant Minister’s intention to grant to Santos, the leases on land entirely subject to a native title determination application of the Gomeroi People NC2011/006. Gomeroi, as the registered native title claimant, is the native title party in relation to the area of the leases.[3] Annexure 2 to this determination is a map of the native title claim area.
[3] Native Title Act s 29(2).
On 5 May 2021, Santos lodged an application with the Tribunal for a determination[4] that the proposed acts may be done.[5] On 19 December 2022, then-President Dowsett determined that the acts may be done subject to conditions (2022 Determination).[6]
[4] Native Title Act s 35.
[5] Native Title Act s 38.
[6] 2022 Determination [2022] NNTTA 74.
The panel notes then-President Dowsett’s summary of the procedural history set out at [1]-[77] of the 2022 Determination, excluding statements relating to the question of good faith.
On 13 January 2023, Gomeroi lodged an appeal of the 2022 Determination with the Federal Court of Australia. On 6 March 2024, the Full Court of the Federal Court of Australia gave principal reasons allowing the appeal.[7] On 12 April 2024, the 2022 Determination was set aside and applications NF2021/0003, NF2021/0004, NF2021/0005 and NF2021/0006 were remitted to the Tribunal for hearing and determination according to the law (remittal).[8]
[7] Principal reasons [2024] FCAFC 26.
[8] Remittal [2024] FCAFC 49.
Importantly, the remittal judgment provided:[9]
(a)the matter is to be determined by the Tribunal without further evidence, subject only to proper cause being shown for the adducing of further evidence and the Tribunal being satisfied it is appropriate to permit further evidence to be adduced; and
(b)the parties are precluded from making any claim that any other party did not negotiate in good faith.
[9] Ibid OO 3 and 4.

On 1 May 2024, the panel were appointed. The panel convened a preliminary conference in this matter on 24 May 2024. At the preliminary conference the parties indicated they may wish to submit further contentions and evidence. As such, the Tribunal made directions allowing all parties to lodge any statement of contentions they wished to make addressing the request to submit further evidence on or by 7 June 2024. At the request of the parties, the Tribunal also convened a short hearing on 1 August 2024 for oral submissions on the issue.
Following the oral hearing, and having considered all the material before it, the panel was satisfied it was appropriate to permit limited further evidence be adduced. On 9 August 2024, parties were provided with a draft of the proposed directions, with reasons for decision, and given the opportunity to comment. Final directions were then issued on 19 August 2024. Such directions provided each of the parties may concurrently lodge one expert report addressing any topic related to climate change and relevant to the matters the Tribunal must consider in this inquiry. The native title party was also directed to provide updated lay evidence of its three witnesses who gave evidence in the initial inquiry, relating to the effect of climate change impacts caused by the proposed grant of the leases.

Parties were given the opportunity to make submissions outlining any basis upon which they were of the view that the remitted inquiry cannot be adequately determined on the papers per s 151 of the Native Title Act. On 3 December 2024, the native title party and grantee parties provided submissions. Following a case management conference on 9 December 2024, the panel made directions for a conclave of experts, further submissions and a hearing. The reasons for this decision were provided to parties on 19 December 2024.
On 17 January 2025, the panel conducted a conclave of experts. The conclave was held in two parts, with Professor Karoly and Doctor Mitchell addressing the topic of climate change science, and Messrs Kelp and Mudge addressing the topic of energy markets.
After consultation with parties, an oral hearing was listed on 14 February 2025. Following the oral hearing, and having regard to submissions made by the parties, the panel considered the issue of whether any additional evidence should be permitted. The panel decided that no further evidence, including any further responsive expert evidence, was required. On 21 February 2025, a letter was circulated to parties providing reasons for this decision.
The evidence in this matter has been extensive. In addition to the voluminous material put before the Tribunal in the 2022 Determination, the parties lodged the following updated or further material:
(a)For Gomeroi-
i)amended further report addressing climate change[10] including chapters from Professor David Karoly,[11] Professor Brendan Mackey,[12] Mr Evan Mudge,[13] Associate Professor Nina Lansbury[14] and Dr Karl Mallon;[15]
[10] Native title party, Amended further report addressing climate change, dated 30 September 2024 (NTP Amended Remittal Expert Report).
[11] NTP Amended Remittal Expert Report, Chapter 1, Expert Report by Professor David Karoly (Karoly Report).
[12] NTP Amended Remittal Expert Report, Chapter 2, Expert Report by Professor Brendan Mackey (Mackey Report).
[13] NTP Amended Remittal Expert Report, Chapter 3, Expert Evidence Report – Energy Market Impact, Mr Evan Mudge (Mudge Report).
[14] NTP Amended Remittal Expert Report, Chapter 4, An overview of health and health-related data: Expert Report by Associate Professor Nina Lansbury (Lansbury Report).
[15] NTP Amended Remittal Expert Report, Chapter 5, Expert Report by Dr Karl Mallon (Mallon Report).
ii)Affidavit of Jason Wilson;[16]
[16] Affidavit of Jason Wilson, affirmed 11 October 2024 (Wilson Remittal Affidavit).
iii)Affidavit of Steven Booby;[17]
[17] Affidavit of Steven Booby, affirmed 11 October 2024 (Booby Remittal Affidavit).
iv)Affidavit of Suellyn Tighe;[18]
[18] Affidavit of Suellyn Tighe, affirmed 11 October 2024 (Tighe Remittal Affidavit).
v)amended summary of contentions and statement of contentions;[19]
[19] Native title party, Amended summary of contentions and statement of contentions, dated 25 October 2024, amended 17 February 2025 (NTP Amended Remittal Contentions).
vi)contentions in reply with summary;[20]
[20] Native title party, Contentions in reply with summary, dated 29 November 2024, amended 17 February 2025 (NTP Amended Remittal Reply).
vii)final submissions prior to closing oral hearing;[21]
[21] Native title party, Final submissions prior to closing oral hearing, dated 10 February 2025 (NTP Remittal Closing Submissions).
viii)comments on conditions;[22]
[22] Native title party, Native title party comments on conditions, dated 11 April 2025 (NTP Remittal Condition Comments).
(b)For Santos-
i)further expert report addressing climate change[23] including chapters from Mr Owen Kelp[24] and Dr David Mitchell;[25]
[23] Grantee parties, Further expert report addressing climate change, dated 30 September 2024 (GP Remittal Expert Report).
[24] GP Remittal Expert Report, Chapter 1, Energy Market and Greenhouse Gas Emissions Export Report of Owen Kelp (Kelp Report).
[25] GP Remittal Expert Report, Chapter 2, Climate Science Expert Report of Dr David Mitchell (Mitchell Report).
ii)summary of contentions and statement of contentions;[26]
iii)submissions prior to closing oral hearing;[27]
iv)comments on conditions;[28]
(c)For the State-
i)statement of contentions;[29]
ii)amended contentions of the Government party submitted in the original inquiry;[30]
iii)final submissions prior to closing oral hearing;[31]
iv)comments on conditions.[32]
[26] Grantee parties, Summary of contentions and statement of contentions, dated 8 November 2024 (GP Remittal Contentions).
[27] Grantee parties, Submissions prior to closing oral hearing, dated 10 February 2025 (GP Remittal Closing Submissions).
[28] Grantee parties, Comments on conditions, dated 11 April 2025 (GP Remittal Condition Comments).
[29] Government party, Statement of contentions, dated 8 November 2024 (GVP Remittal Contentions).
[30] Government party, Amended contentions of the Government party submitted in the original inquiry, dated 15 December 2021, amended 8 November 2024 (GVP Amended Contentions).
[31] Government party, Final submissions prior to closing oral hearing, dated 10 February 2025 (GVP Remittal Closing Submissions).
[32] Government party, Comments on conditions, dated 11 April 2025 (GVP Remittal Condition Comments).
For the avoidance of doubt, the panel has had regard to all the material lodged in the 2022 Determination, in addition to the material set out above. A summary of some of the evidence provided in the initial inquiry can be found in the 2022 Determination, particularly at [95]–[104]. Due to the sheer volume of material before the Tribunal in this matter not all the evidence the panel has had regard to has been set out or specifically referred to.
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.

THE TASK OF THE PANEL

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).
Further, as noted by the Full Court in the remitter, the Tribunal ought as a matter of general principle be considering what is the correct outcome on the most up to date and relevant material available to it.[38] The panel must make the correct and preferable decision having regard to the law and facts as it stands at the date of the remittal hearing, not as at the date of the original decision.[39]
[38] Remittal [2024] FCAFC 49, [14], citing Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, [37], [41]–[42] (Kirby J), citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 (Bowen CJ and Deane J).
[39] Jagroop and Minister for Immigration and Border Protection [2015] AATA 751, [63]; Principal reasons [2024] FCAFC 26, [20].

DETERMINATION UNDER S 38

Section 38(1) of the Native Title Act provides that, unless s 37 applies, the panel must make one of the following determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done; or
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
The exceptions set out in s 37 of the Native Title Act do not apply in this matter, as no agreement of the kind mentioned in s 31(1)(b) has been made, and no determination under s 36A has been made.
Section 39(1) of the Native Title Act sets out the matters that the panel must take into account in making a determination. The mandatory criteria in s 39 requires the panel weigh potentially conflicting matters,[40] with the weight to be afforded dependent on the evidence.[41]
[40] Principal reasons [2024] FCAFC 26, [345].
[41] See Western Australia v Thomas (1996) 133 FLR 124, 166.
In considering the effect of the acts on the matters listed in s 39(1)(a), the panel must also take into account the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and existing use by persons other than Gomeroi.[42]
[42] Native Title Act s 39(2).
Importantly, the Native Title Act is a beneficial statute and the future act right to negotiate regime is an element of the protection of native title, one of the main objects of the Act. That protection is not to be narrowly construed.[43]
[43] See Smith v Western Australia [2001] FCA 19, [23] (French J); Kanak v National Native Title Tribunal (1995) 61 FCR 103, 124 (Lockhart, Lee and Sackville JJ); Re Koara People (1996) 132 FLR 73, 81; Native Title Act Preamble.
As noted by Justice O’Bryan in the Full Court’s principal reasons, the right to negotiate was included in the Native Title Act as an important element of the protections afforded to native title, but which also balanced the interests of the broader Australian community.[44]
[44] Principal reasons [2024] FCAFC 26, [330] (O’Bryan J).

Within this context, the mandatory criteria set out at s 39 of the Native Title Act requires the Tribunal have regard to the native title party when considering each

sub-section, including when considering sub-paragraphs (1)(c), (e) and (f), depending on the evidence before it.
The Full Court referenced this requirement throughout the remittal decision itself. Justice O'Bryan observed that relevant paragraphs relating to the economic or other significance of the act, also requires the Tribunal ‘take into account the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned’.[45] He also observed paragraph 39(1)(f) requires the Tribunal ‘take into account any other matter that it considered relevant, which could be a matter relevant to the interests of Aboriginal and Torres Strait Islander peoples who hold, or might hold, native title rights and interests in land and waters affected by the future act, or the interests of the broader Australian community’.[46]
[45] Ibid [339] (O’Bryan J).
[46] Ibid [344] (O’Bryan J).
In relation to 39(1)(e), the public interest criterion was a large focus of the appeal to the Full Court and resultingly this remittal decision. In the principal reasons, Justice O’Bryan observed the phrase ‘any public interest in the proposed act proceeding’ necessarily requires consideration of the public benefits and the public detriments arising from the proposed act in order to assess whether there is a net public interest in the act proceeding. His Honour went on to note that this net outcome must then in turn be weighed against any negative impact upon the Aboriginal and Torres Strait Islander peoples who hold, or might hold, native title rights and interests in the affected land and waters.[47] The Chief Justice also affirmed the reasoning of Justice O’Bryan in relation to the weighing exercise required under s 39.[48]
[47] Ibid [345] (O’Bryan J).
[48] Ibid [228] (Mortimer CJ).
Indeed, each of the mandatory considerations in s 39 must be assessed by the Tribunal as to whether it weighs for or against a determination allowing or refusing the doing of the act. As an administrative body, the Tribunal then has the discretion to attribute such weight to the evidence adduced before it as the Tribunal considers appropriate.[49]
[49] Ibid [387] (O’Bryan J).
For the reasons set out below, and based on a careful consideration and weighing of all the evidence before the Tribunal, the panel has determined the act may be done subject to various conditions to be complied with by the parties.

Project description

As noted previously at [3], the leases comprise of an area approximately 924 sq km. Approximately 70% of the total area of the leases overlap the northeastern portion of a broader area known as the Pilliga. The Pilliga is described as a conglomeration of forested areas that total more than 500,000 hectares or 5000 sq km.[50] The leases overlap approximately 13% of the Pilliga, not an insubstantial portion.
[50] Native title party, Statement of Contentions (revised), dated 26 November 2021, [188] (NTP Contentions).
The Project is the construction, operation and subsequent decommissioning of a gas field which includes refining facilities, gas and water processing and associated infrastructure.
Gas is to be extracted from coal seams between 300 and 1200 metres below ground, depending on the formation.[51] This would be produced from up to 850 new wells on a maximum of 425 well pads[52] with a footprint that may affect up to approximately 10 sq km of native vegetation within the broader 950 sq km Project area.[53] This 10 sq km area is asserted by Santos to be conservative, providing an upper limit to vegetation disturbance which they say is more likely to be 27-67% of this upper limit.[54]
[51] Affidavit of Todd Dunn, signed 9 December 2021, affirmed 1 March 2022, [79] (Dunn Affidavit); Dunn Affidavit, Exhibit TD-2, Department of Planning, Industry and Environment, Narrabri Gas Project – State Significant Development SSD 6367 (June 2020), [20]–[22] (SSD 6367 Assessment Report).
[52] Dunn Affidavit [19].
[53] Dunn Affidavit [20].
[54] Grantee parties, Statement of Contentions, dated 9 December 2021 [39] (GP Contentions); Dunn Affidavit [170(b)].
Santos state that the general location of each well would be dependent on the location of gas reserves[55] with specific location being subject to a Field Development Protocol which considers geological, environmental, heritage, hydrological and other factors, including conditions imposed by the IPC. Santos gives evidence that location decisions would also include consideration of existing infrastructure such as roads and tracks for co-location.[56] Santos contend that existing access tracks are extensive due to previous timber harvesting and gas exploration occurring since the 1960s.[57]
[55] Dunn Affidavit [84].
[56] Dunn Affidavit [89].
[57] Dunn Affidavit [92].

Following the identification of well pad location, Santos describe a process labelled ‘micrositing’ whereby detailed site surveys are undertaken to minimise the risk to ecological and heritage features. It is said that this process provides flexibility to relocate infrastructure in the event Aboriginal sites or sensitive areas are identified.[58]
[58] Dunn Affidavit [93].
Santos gives evidence that each new drill pad requires the clearing of approximately 1 ha of land (100 by 100 metres) for installation,[59] this cleared area is reduced to approximately 50 by 50 metres six months following installation and then the area is fenced.[60]
[59] Dunn Affidavit [103].
[60] Dunn Affidavit [128]–[129].
Water is proposed to be extracted from each well reducing pressure and allowing the liberation of gas. The water located in the Project area has a salinity approximately 40% that of ocean water.[61] This water and gas is intended to be transported via field pipelines to either the Leewood central gas processing facility or if from the southern portion of the field, to the Bibblewindi infield compressor station, which located within PPLA13 in the Pilliga forest, before then being piped to the Leewood facility for final processing.[62] The Leewood facility is located outside of, but contiguous to, the Pilliga forest.
[61] SSD 6367 Assessment Report [46].
[62] SSD 6367 Assessment Report [41].
Santos gives evidence that pipelines will be placed a minimum of 750 mm underground and ‘where practical’ will be co-located along existing roads and access tracks[63] indicating some clearing for pipeline purposes will also be necessary.
[63] Dunn Affidavit [82].
Prior to the installation of gas field infrastructure, a Field Development Plan is required to be developed[64] to be approved by the Planning Secretary of the Department of Planning, Housing and Infrastructure.[65] According to Condition D8 of the IPC Development Consent, Santos is required to submit an annual review of environmental performance and be audited for environmental performance after one year and then every subsequent three years.[66]
[64] Dunn Affidavit [95].
[65] Dunn Affidavit [95].
[66] Dunn Affidavit [98]–[99].
The Project is said to occur over four phases where Phase 1 is final planning, further exploration and appraisal activities and installation of ancillary infrastructure, Phase 2 is developing the field itself (drilling, infrastructure development), Phase 3 is operation and Phase 4 is decommissioning.[67]
[67] SSD 6367 Assessment Report [60]–[63].
When wells are decommissioned, Santos gives evidence that they are to be plugged and isolated through the use of cement as the sealing material by filling the total depth of the well.[68] This, Santos asserts, ensures protection of groundwater resources and isolation of coal seam formations from other formations.[69] Further rehabilitation work is required consistent with development consent conditions set out by the IPC.[70]
[68] Dunn Affidavit [144].
[69] Ibid.
[70] Dunn Affidavit [173]–[175].
Due to the nature of the Project, emissions are a key component of both its operation and this consideration. In accordance with Australian and international standards, emissions are expressed as scope 1, 2 or 3. Scope 1 emissions are those that are released directly from or by the operations of a project, scope 2 are indirect emissions generated from the operation of a project through the consumption of energy from external sources and scope 3 are indirect emissions that occur outside of the boundary of a project or organisation that are a result of the actions of that organisation or project.[71]
[71] Department of Climate Change, Energy, the Environment and Water, Australian National Greenhouse Accounts Factors 2024, 5, 6.
Emissions estimates are provided in the EIS. At the outset the panel notes that the figures referred to in the EIS in relation to the GHG emissions estimates appear at Appendix R, which is dated August 2016 and based on data from 2013–2014. Unfortunately, no updated evidence on emissions estimates was led, nor sought to be led, by Santos in relation to the Project so the evidence available to the panel is now approximately 10 years old.
The scope 1 figures contained in the EIS provide emissions broken into three stages of the Project being construction, operation and decommissioning and across six categories of emissions in each of these stages being fuel combustion for electricity generation, flaring, venting, carbon dioxide (CO₂) venting, fugitive emissions and vegetation clearing. These are further expressed in two options, option 1 where electricity is self-generated or option 2 where electricity is sourced from the national grid.[72]
[72] Dunn Affidavit, Exhibit TD-25, Environmental Impact Statement – Appendix R, 18 (EIS Appendix R).
Across these stages and categories, estimated annual scope 1 emissions for option 1 is 0.96 million tonnes (Mt) of carbon dioxide equivalent (CO₂-e) per annum, totalling a cumulative 26.3 Mt over the life of the project. For option 2, the estimated annual scope 1 emissions is 0.53 Mt CO₂-e per annum or a cumulative 15.5 Mt over the life of the project.[73]
[73] Ibid.
If option 2 is preferred, scope 2 emissions for the project are estimated at 0.72 Mt

CO₂-e per annum amounting to 18 Mt over the life of the project. Based on these figures, option 2 would have combined scope 1 and 2 emissions of 33.5 Mt CO₂-e over the life of the Project. There are no scope 2 emissions generated for option 1 given the internal generation of electricity.[74]
[74] EIS Appendix R, 19.
The EIS also provides an estimate for scope 3 emissions, which would arise from customers combusting purchased CH₄ for electricity generation or other industrial purposes. These are provided to be 3.77 Mt CO₂-e per year[75] which equates to a cumulative amount of 94.25 Mt over the course of the Project. Based on the EIS, the total emissions from the Project over its entire operation would be approximately 121 Mt CO₂-e for option 1 or approximately 128 Mt for option 2.
[75] Ibid.
In considering emissions, and the regulatory framework for the Project, it important to consider the state and federal emissions regimes. The relevant emission regimes formed part of the panel’s consideration of both s 39(1)(a) and s 39(1)(e), however it was particularly relevant to the consideration of public interest and is considered in greater detail from [347] to [351] below.

The Aboriginal cultural heritage protection regime in NSW

As noted by the parties, Aboriginal cultural heritage in NSW is primarily protected by the NPW Act but also a network of other pieces of legislation at both the State and Commonwealth levels. This network involves the following legislation: [76]
(a)NPW Act;
(b)National Parks and Wildlife Regulations 2019 (NSW);
(c)Heritage Act 1997 (NSW);
(d)Environmental Planning and Assessment Act 1979 (NSW);
(e)Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); and
(f)Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
[76] NTP Contentions [224]; GP Contentions [59].
Section 85 of the NPW Act provides that the Chief Executive is responsible for the protection of Aboriginal places and objects with s 86 of the NPW Act setting out offences for harming or desecrating Aboriginal objects or places. Gomeroi contend that under the NPW Act there is little protection of intangible Aboriginal cultural heritage and that it does not function to allow Aboriginal people to enforce the protections of culture and heritage.[77] The Gomeroi contentions describe how the regime functions in a way that appears to be similar to other heritage protection regimes around the country; that is by relying on deterrence by operating punitively following the occurrence of harm rather than identifying and protecting intangible cultural heritage before damage occurs. [78]
[77] NTP Contentions [230].
[78] Ibid.
Santos also notes the NPW Act provides a general regime for the protection of Aboriginal cultural heritage in NSW principally by establishing offences for harm to Aboriginal objects and places as well as establishing the Aboriginal Heritage Information Management System database to record Aboriginal objects and places.[79] Similar databases are in existence in other states and territories across Australia. Santos also explains that Aboriginal places and objects may also be separately listed on the State Heritage Register established under the Heritage Act 1977 (NSW).[80] Gomeroi contend that AHIMS may not include certain sites of importance to them for various reasons and Santos does appear to acknowledge this.[81]
[79] GP Contentions [60].
[80] GP Contentions [62].
[81] NTP Contentions [237]; GP Contentions [73].
Santos contends that the Project is also subject to extensive conditions under the IPC Development Consent pertaining to the protection of Aboriginal cultural heritage, which are all reflected in the ACHMP which has been developed by Santos in consultation with Gomeroi people.[82] The State also points to the conditions under the IPC Development Consent as mitigating risk to Aboriginal cultural heritage by the Project.[83]
[82] GP Contentions [65].
[83] GVP Contentions [36].
While the State initially made contentions about its cultural heritage protection regime within GVP Amended Contentions at [30] to [36], strangely the State resiled from those statement (amongst many others from the GVP Amended Contentions) and stated they should not be taken into account.[84] In fact, in the updated version of the GVP Amended Contentions lodged on 8 November 2024, those paragraphs were redacted from the document. It is unclear to the panel why this choice was made by the State, but it appears that State has resiled from the statements made in those redacted paragraphs and the panel has not taken them into account.
[84] GVP Remittal Contentions [2].
Relevantly, s 5 of the NPW Act states:
Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.
Section 84 of the NPW Act states:
The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act.
The definition of ‘Aboriginal object’ speaks of ‘…any deposit, object or material evidence…’. Any commonsense reading of this definition points to physical, tangible aspects of cultural heritage. The term ‘object’ itself denotes something physical and tangible. On the other hand, the definition of ‘Aboriginal place’ set out in s 84 of the NPW Act appears to be broader in terms of the potential to consider intangible heritage, giving discretion to the Minister to take into account places of special significance with respect to Aboriginal culture. This wording appears to encompass both tangible and intangible aspects of cultural heritage.
The panel also notes that, as the Project is classified as a State Significant Development by the State, an Aboriginal Heritage Impact Permit is not required and the offences relating to the desecration and harm of Aboriginal objects and places do not apply.[85] This exclusion could have serious consequences for the Gomeroi people and their cultural heritage.
[85] NTP Remittal Condition Comments [22], referencing section 4.41 of the Environmental Planning and Assessment Act 1979 (NSW).
The mechanics of the Aboriginal cultural heritage protection regime and the IPC conditions appear to function through the ACHMP and the processes contained within that document. As noted from [230] to [237] below, the panel has identified various issues with the ACHMP, many of which were raised by the native title party, which do not give the panel faith in its ability to properly protect Gomeroi cultural heritage in the lease areas. For these reasons the panel has decided to impose conditions to augment and supplement the ACHMP in order to strengthen the protection of Gomeroi cultural heritage in the lease areas.

Consideration of section 39(1)(a)

Section s 39(1)(a) of the Native Title Act expressly requires the Tribunal to consider the effect of the act on the matters listed in s 39(1)(a)(i)–(v). The Tribunal must form a view as to the activities proposed to be undertaken by a grantee party, and considering the evidence before it, determine the impact on the mandatory considerations of s 39(1)(a).[86]
[86] Watson v Backreef [2013] FCA 1432, [59].
The evidence provided as to the s 39(1)(a) criteria is extensive. While it is treated de novo in this determination, the original evidence provided by the parties is set out in the 2022 Determination from [563] onwards.
The updated affidavit evidence of the Gomeroi claimants focuses on the effects of the Project in terms of contended climate change impacts. Given much of the evidence addressing s 39(1)(a) is restricted, these reasons avoid specificity or locations where possible.
Relevant to this criterion, the evidence from Gomeroi covers two broad areas of focus. The first is the direct physical impact of the construction and operation of the proposed gas field which includes concern regarding a range of environmental impacts and how this relates to the s 39(1)(a) criteria. The second relates to indirect impacts and is focused on the impact of climate change as a result of the emissions of the Project, and by extension, the impact on factors that relate to the s 39(1)(a) criteria. Both broad focus areas require examination in each of the criteria.
The relevant evidence can be broadly grouped into four themes:
(a)the broader cosmological view possessed by the Gomeroi people, including the relationship of this view to the Pilliga;
(b)Gomeroi culture and cultural values relating to both people and land;
(c)water and the cultural values surrounding water, waterways and water sources; and
(d)the way Gomeroi contend the act, both directly and indirectly, will impact upon the physical environment and the flora and fauna of the area.

Cosmology

The evidence relating to cosmological matters effectively provides the foundation from which the other types of information from Gomeroi is cast. It is difficult to paint a full picture of this information due to evidence restrictions however it can be said this topic traverses a broad range of information that relates to the broader Gomeroi group. This includes astronomical, cultural and cosmological information, information on ancestor and spiritual beings and the manner in which they are embedded or otherwise manifest in the landscape, ideas of layered realms in land and above including the interconnectedness between them, the manner in which these things generate cultural views and practices such as respect and avoidance and the knowledges that are given rise to.
While the evidence provides a broader Gomeroi view, it also specifically addresses the Pilliga region and Project area, and includes a range of cultural and traditional information and knowledge that is related to the Pilliga. The native title party has also provided evidence in relation to the exercise of native title in the relevant area and its vicinity, and the way of life of the Gomeroi people and how it relates to

the Pilliga.
Much of the evidence in this topic relates to the Pilliga more broadly, an important area which encompasses the lease areas. Gomeroi also provide evidence as to ideas of interconnectedness relating to cosmological matters and incorporating Country. Arising from this view, Gomeroi assert that from a cultural perspective, the Pilliga is viewed as an indivisible whole rather than being able to be reduced for consideration into smaller divisible parts.[87] The panel accepts this contention. This perspective was also noted by the Full Court in its principal reasons. Whilst acknowledging the unique relationship between native title claimants or holders and the lands in which they hold rights and interests, Justice O’Bryan referenced Justice Blackburn in the matter of Milirrpum v Nabalco who observed:[88]
… the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship. This was not in dispute. It is a particular instance of the generalization upon which I ventured before, that the physical and spiritual universes are not felt as distinct. There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.
[87] NTP Amended Remittal Contentions [5]; Tighe Remittal Affidavit [11]–[14].
[88] Principal reasons [2024] FCAFC 26, [340] quoting Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 167.
It is reasonable to accept that the evidence provided as to cosmology, tradition and values regarding the entire Pilliga is also applicable to the particular portion of the Pilliga that is directly impacted by the future acts. In any event, Gomeroi give evidence of a number of features and factors that apply specifically to the area overlapped by the Project, with evidence also specifically mentioning the linkage between cosmology, the landscape and people.

Culture

Significant effort is also taken by each of the Gomeroi witnesses to provide evidence and information on cultural matters and values and how these things provide the basis for their views addressing the s 39(1)(a) criteria. There is a broad suite of matters that Gomeroi provide evidence on including:
(a)cosmological and spiritual matters;
(b)matters surrounding Gomeroi society and people and the way people relate to Country in a spiritual and physical sense;
(c)the exercise of native title rights, including traditional knowledge practices, the collection and use of bush tucker and bush medicine, the collection of materials for the manufacture of traditional implements such as boomerangs, shields, clap sticks, spears and coolamons;[89]
(d)the transmission of traditional and cultural knowledge and the activities that support this;
(e)caring for Country as a cultural activity and the cultural obligations that give rise to this; and

(f)restrictions and/or prohibitions on certain activities or places, including gender restricted places and stories.[90]
[89] Affidavit of Steven Booby, signed 7 October 2021, affirmed 21 February 2022, [35] (Booby Affidavit); Tighe Remittal Affidavit [19].
[90] Affidavit of Suellyn Tighe signed 8 October 2021, affirmed 21 February 2022 [25], [28], [33], [34], [53] (Tighe Affidavit).

The main observation to make is that cultural focus and interest runs through all components of the Gomeroi evidence, whether it concerns the direct or indirect effect of the proposed future act. Further or more specific detail is provided within consideration of each criteria below.

Water

A clear theme in the Gomeroi evidence is that surrounding water, which each of the Gomeroi witnesses dedicate significant portions of their material to. Submitted material regarding water covers a range of topics which includes but is not limited to:
(a)traditional knowledge of water resources as it relates to water courses and the broader landscape;
(b)cosmological and spiritual matters relating to water;
(c)water quality and its physical impact on Country as well as on cultural values associated with Country;
(d)the impact of extreme weather events caused by climate change, including flooding or drought; and
(e)concern regarding subsurface water systems.

This theme alone gives rise to a significant body of evidence addressing both the direct and indirect impacts of the proposed future acts.
Mr Booby describes springs and river systems in a way which highlights their vital role in the carriage of water to sustain the natural ecosystem.[91] This evidence also shows that the native title party associates a component of the cultural significance of the Pilliga itself to the fact that the area contains so many waterways.[92] This notion was addressed in the affidavits lodged in the 2022 Determination and in this remittal.[93]
[91] Booby Affidavit [27], [29].
[92] Booby Affidavit [30].
[93] Wilson Remittal Affidavit [4].
Within this theme, a significant body of information is provided surrounding the importance of Bohena Creek. This is a seasonal waterway that runs from south to north through the entirety of PPLA13 and a significant portion of PPLA15. It is understood that most, if not all, of the remainder of the leases, that is PPLA14 and PPLA16, are within the catchment of Bohena Creek, which runs into the Namoi River rear Narrabri, which then flows into the Barwon River at Walgett and ultimately into the Darling River near Bourke.
While Bohena Creek is seasonal and is for a large part of the year a dry bed, it is not an inconsequential waterway. While the width of the bed looks to generally be around 30–40 metres, it also looks to reach in excess of double this in parts of PPLA13 and PPLA15. Additionally, according to Gomeroi evidence, although it may be dry for significant parts of the year, the creek retains water which can be accessed through digging.[94]
[94] Tighe Affidavit [38].
This phenomenon is described as the waterway being an ‘upside-down’ river[95] or an underground river,[96] although this term is also used to refer to springs and aquifers.[97] Ms Tighe describes the origin of this in cultural terms and in doing so, makes a culturally based point about respect for water which underscores the evidence provided by all the Gomeroi witnesses on this topic.[98]
[95] Tighe Affidavit [35] - [37].
[96] Booby Affidavit [30].
[97] Booby Affidavit [18].
[98] Tighe Affidavit [38].

Ms Tighe also points to important cultural responsibilities for water and water sources in and for one’s own country, and for those peoples who are downstream and receive water from Gomeroi land.[99]
[99] Tighe Affidavit [39]–[43].
In the 2022 contentions, Gomeroi contended that ‘[w]ater, both above and below ground is of great cultural and spiritual significance to the Gomeroi people.’[100] Summarising the evidence, the native title party points to evidence deposing that water, water courses and water bodies have spiritual significance and value, ceremonial association, and provide drinking water while accessing the area.[101] Gomeroi also submit that the exercise of their native title rights and interests ‘such as practicing ceremony, hunting, fishing and gathering natural resources, flora and fauna is dependent on the health of the river systems and waterways’.[102]
[100] NTP Contentions [204].
[101] NTP Contentions [204]; Booby Affidavit [15]–[16], [26]–[30], [39]; Tighe Affidavit [17]–[19], [36]–[38], [40], [46], [52], [54].
[102] NTP Contentions [205]; Booby Affidavit [27]; Tighe Affidavit [82].
It is clear from the evidence provided that the Gomeroi place great value in water and the water resources of the Pilliga and Project area, and the panel accepts such evidence.

Climate change

A strong focus of the remittal has been the impact of climate change, particularly in relation to s 39(1)(e) addressing any public interest in the doing of the act however, climate change evidence is also relevant for consideration of s 39(1)(a), which directs the panel to consider the effects of the act. The summary of evidence here focuses on the updated material submitted by Gomeroi going to the effects of the act relevant for consideration under s 39(1)(a) as it relates to GHG emissions and climate change.

Climate change expert for Gomeroi, Professor David Karoly, provides a comprehensive outline of the science of climate change and its impacts, including discussion on the analytical and calculation tools used by authorities such as the Intergovernmental Panel on Climate Change. A metric of significance in Professor Karoly’s reporting is one adopted by the IPCC known as the transient climate response to cumulative carbon dioxide emissions, or TCRE. This observes that the increase in the Earth’s temperature has an almost linear relationship with CO₂ emissions with the IPCC estimating there is an increase in global temperature of 0.45^oC (plus or minus 0.18^oC) for every 1000 gigatonnes of additional CO₂ emissions.[103]
[103] Karoly Report [111].
Using the TCRE, and based on the total estimated cumulative GHG emissions of the proposed future act over the course of 25 years, Professor Karoly states that this would ‘lead to a best estimate increase of global temperature … of about 0.00005^oC … if the Project proceeds’.[104] The panel also notes that during the expert conclave the expert for Santos confirmed he agreed with Professor Karoly’s evidence on this point whilst noting the accepted figure was, in his opinion, in any event extremely low.[105]
[104] Karoly Report [112].
[105] Transcript of the Expert Conclave held 17 January 2025, Dr Mitchell, P-13/L7-23 (Expert Conclave Transcript).

Professor Karoly outlines the broader impact of climate change on Australia, drawing from the Australia’s State of the Environment 2021 report. In doing so, Professor Karoly summarises that:[106]
(a)Climate change is continuing and is increasing the impacts of other pressures on our environment;
(b)In the past decade, climate change in the form of more severe drought, extreme weather events, fire and habitat modification is becoming a new driver for habitat change and species loss in terrestrial ecosystems;
(c)Coupled with more gradual climate change shifts, extreme events have resulted in lifecycle shifts, changing species abundances, and range expansions and contractions;
(d)Approximately two-thirds of threatened species in Australia are threatened by changing fire regimes (usually in concert with other pressures); and
(e)Range shifts and extensions can be complicated as different species have different abilities to shift their location and range in order to cope with habitat.
[106] Karoly Report [73].
Professor Karoly also makes specific observations regarding the Narrabri region encompassing the lease areas and sets out, in summary, that due to climate change:[107]
(a)Average maximum temperature in the Narrabri region increased by about 1.4°C from 1951-60 to the most recent decade 2011–2020;
(b)The number of hot days (maximum temperatures greater than 35°C) at Gunnedah has increased statistically significantly from 18.8 days per year in 1951–1980 to 26.0 days per year in 1991–2020;
(c)The number of very hot days in Gunnedah (maximum temperatures greater than 40°C) had increased significantly from 0.9 days per year in 1951–1980 to 2.3 days per year in 1991–2020; and
(d)The average number of heavy rain days (> 25 mm per day) each year in Narrabri has increased substantially from an average of 4.9 days per year in 1966–1990 to 6.7 days per year in the most recent period available 1991–2012.
[107] Karoly Report [75]–[77].
What is evident from Professor Karoly’s expert report is that there is a real and measurable increase in extreme weather events linked to climate change, both in the number of days of extreme temperatures per year, as well as an increase in days of heavy rain in the Narrabri region. Offset from this are periods of drier than usual weather. This paints a picture of a landscape that is likely to be placed under stress through increasing extremes in weather patterns, with increased risk of both wildfires during dry and extreme hot weather, as well as floods during increased periods of heavy rainfall.
Only portions of Professor Karoly’s evidence were contested by the other parties. There was a broad consensus between the experts for Gomeroi and Santos during the conclave regarding the current climate science. The State did not lodge its own evidence on this issue or contest these aspects of the evidence. Santos however did lodge written contentions pointing to the lack of scientific consensus in relation to the use of IPCC models at a project specific level, and suggested the Tribunal should place limited weight on it.[108]
[108] GP Remittal Statement of Contentions [135].
Professor Brendan Mackey provided expert evidence for Gomeroi concerning the ecological risks posed to the Pilliga by the impacts of climate change. Professor Mackey provides a useful characterisation of these impacts as acute and chronic, where acute impacts are those that involve extreme events such as bushfire, floods, heatwaves and storms, while chronic are those which arise slowly through impacts such as temperature increases and shifting patterns in rainfall seasonality. Professor Mackey states that these acute and chronic impacts are related in that chronic impacts, otherwise known as climate trends, drive an increase in the frequency, severity and duration of severe acts.[109]
[109] Mackey Report [4].
Professor Mackey notes that the climate risks to biodiversity are a function of the climate hazards themselves, the extent of exposure to these hazards and the vulnerability of the species or system. Professor Mackey further states that this vulnerability is a function of current conservation status and condition of habitat, relative to the extent it has been degraded.[110]
[110] Mackey Report [8].
With this framework, Professor Mackey’s evidence focuses on threatened species and communities, and gives evidence that there are 107 species and ecological communities that are listed as threatened under the Biological Conservation Act 2016 (NSW), 53 of which are similarly listed in the Environmental Protection and Biodiversity Conservation Act (1999) (Cth) that are found within the Pilliga region.[111] Given climate hazards and other types of environmental degradation, Professor Mackey concludes these species and communities are highly vulnerable and are at high risk from climate change impacts.[112]
[111] Mackey Report [10].
[112] Mackey Report [11].
Professor Mackey also provides evidence on water, stating that in his expert opinion the Project will to some extent, directly and indirectly impact on the region’s water resources and therefore impact on biodiversity. This, Professor Mackey states, will be due to:[113]
[t]he observed climate impacts and projected climate risks for the region which include ongoing reduction in winter rainfall, higher temperatures, increase in extreme climate events including droughts, bushfires and heat waves, will increase stresses on the Narrabri region's water resources through reducing winter flows, increasing evaporation especially in summer, disrupting continuity of supply, and impacting on water quality.
[113] Mackey Report [13].
Professor Mackey then concludes it is entirely feasible the proposed future act will potentially impact on the region’s hydrology.[114]
[114] Mackey Report [14].
None of Professor Mackey’s evidence was contested by the other parties.

Associate Professor Nina Lansbury provided evidence relating to health and wellbeing impacts of climate change. Drawing from the most recent IPCC report (AR6), Associate Professor Lansbury describes direct and indirect pathways of climate sensitive diseases and health outcomes. Direct pathways are those that have an effect on people directly such as through extreme heat, bushfire deaths and cyclone damage, whereas indirect are:^[115]
those that are mediated through natural systems, such as air and water pollution and changing conditions for infectious disease, and those mediated through social systems, such as mental health conditions, disrupted food supply chains, and climate-forced migration.
[115] Lansbury Report [34].
Associate Professor Lansbury cites work which notes the close relationship between the condition of the physical environment with cultural health[116] and explains that this interconnectedness of Aboriginal people, community and Country makes them uniquely vulnerable to the social, cultural, spiritual and environmental impacts of climate change.[117] Associate Professor Lansbury further explains that Aboriginal people, including the Gomeroi people, are more vulnerable than other Australians to the impacts of climate change due to an existing and significantly greater ‘burden of disease’ paired with lower financial resources.[118]
[116] Lansbury Report [23].
[117] Lansbury Report [39]–[47], [49]–[53].
[118] Lansbury Report [12]–[14], [38].].
Ultimately Associate Professor Lansbury concludes that Aboriginal people ‘are likely to be more negatively impacted as compared to the general Australian population for three reasons that will be detailed below: more closely reliant and connected to Country and thus more affected by changes; lower general physical health and wellbeing status and thus greater vulnerability; and the ‘compounding and cascading’ nature of climate change impacts that exacerbates existing vulnerabilities’.[119]
[119] Lansbury Report [58].
None of Associate Professor Lansbury’s evidence was contested by the other parties.
An extensive set of new information was also provided by Gomeroi witnesses addressing climate change. In summary, citing the expert and Gomeroi witnesses, Gomeroi contend that climate change will have some of the following effects:[120]
(a)The reduction in winter rainfall, higher temperatures and increase in extreme climate events such as droughts, bushfires and heat waves will increase stress on the Narrabri region’s water resources through reducing winter flows, increasing evaporation in summer, disrupting continuity of supply, impacting on water quality and increasing variability in the flow of the ephemeral rivers and streams. This may impact on the region’s hydrology, including the Pilliga region recharge zones for the Great Artesian Basin and the Pilliga Sandstone (which underlies the Pilliga forest), an intake area for aquifers that are utilised for irrigation.
(b)There is a large number of listed threatened species and ecological communities in the Pilliga region that are vulnerable to the observed and projected climate impacts of severe drought, extreme weather and fire events leading to habitat change and species loss. Extreme heat events may trigger the mass death of wildlife populations.
(c)Climate change has direct physical human health impacts via increased drought, flooding and heat exposure. Aboriginal people living in the Narrabri region have a higher burden of disease, and lower financial resources, than the general Australian population which increases vulnerability to health impacts from climate change. In addition, climate change impacts mental health and wellbeing, particularly for Indigenous peoples. It also impacts cultural health and wellbeing, as it can lead to loss of sacred sites, reduced ability to live on country. and impacts on food gathering and ceremony, and spiritual health and wellbeing, with impacts being felt as a result of reduced river flows.

Section 39(1)(a)(i) – the effect of the acts on the enjoyment of Gomeroi of their native title rights and interests

[120] NTP Amended Remittal Contentions [49]; Karoly Report [75]–[77]; Mackey Report [6], [10], [12]–[14], [16]; Lansbury Report [36], [38], [39], [41], [47], [51], [53], [60].

Consideration of this criterion is focused on the effect of the act on the enjoyment of the registered native title rights and interests through examination of the evidence relating to the enjoyment of these rights in the area, and considering the characteristics of the future act and the effect these may have. The Tribunal is directly concerned with the effect of the future act, but this effect must be considered in the context of the whole Project.[121]
[121] See for example Coalpac [2013] NNTTA 2, [66] and Western Desert Lands [2009] NNTTA 49, [64].
While the parties make various remarks on what the Tribunal should assume regarding the exercise of native title rights and interests, the panel makes no assumptions about whether particular rights and interests are or are not practiced, or whether there will or will not be particular effects. Rather the assessment of the effects is determined on the evidence before the Tribunal in each case.[122]
[122] Western Australia v Thomas [1996] 133 FLR 124, 167.
Gomeroi refer to the list of rights and interests that are within the Register of Native Title Claims and contend they are currently exercised and enjoyed in the lease areas.[123] Gomeroi also contend that it may be assumed that these rights are practiced throughout the claim area as they have been established on a prima facie basis when claim registration occurred.[124]
[123] NTP Contentions [184].
[124] NTP Contentions [187].
Much of the evidence from Gomeroi regarding the enjoyment of native title rights and interests relates to the broader Pilliga. Nonetheless, while the portion of the overall Pilliga overlapped by the leases is relatively contained, being around 13% it is not insubstantial. Further, the registered Gomeroi claim area overlaps the leases entirely.
In the statements provided, Gomeroi witnesses provide evidence as to visitation to the Pilliga for the teaching of cultural knowledge and the collection of bush foods,[125] to collect materials for and to manufacture traditional tools,[126] and to collect ochre.[127] Some of the descriptions of the collection of bush foods are from the western side of the Pilliga, some 50 km from the areas overlapped by the leases.[128]
[125] Tighe Affidavit [59]–[63]; Affidavit of Jason Wilson signed 8 October 2021, affirmed 22 February 2022, [50] (Wilson Affidavit).
[126] Booby Affidavit [35].
[127] Booby Affidavit [36].
[128] Wilson Affidavit [51].
Gomeroi contend there are two main areas of impact on the enjoyment of registered native title rights and interests, the physical impact of the construction and operation of the Project, and the impacts of climate change as a result of the operation of the Project.

In regard to physical impact, Gomeroi contend that the exercise of native title rights and interests is predicated on the ability to access country and sites.[129] Referring to the evidence of Mr Kumarage, Gomeroi contend that infrastructure associated with the Project will permanently affect landscape values and entirely prevent Gomeroi people’s access to parts of the Project area due to the fencing that is proposed to be erected around facilities.[130] Gomeroi further argue that, while some areas will remain accessible, the dispersed nature of the Project Santos have outlined will have effects on the entire landscape.[131]
[129] NTP Contentions [210]; Kumarage Report [27]; Booby Affidavit [15], [22], [35], [36], [39], [41]; Tighe Affidavit [20], [21], [25], [40], [46], [59]–[64], [66]–[68], [72]; Wilson Affidavit [50], [51], [59].
[130] NTP Contentions [213]; Dunn Affidavit, Exhibit TD-12, Environmental Impact Statement – Chapter 6 – Project description, 6.3.3, 6.4.2 (EIS Ch 6); Kumarage Report [198]; Booby Affidavit [42].
[131] Ibid.
In addition, Gomeroi contend the Project will have a permanent effect on the area due to above and below ground infrastructure that will remain in situ permanently,[132] including well caps that would remain in place 1.5 m below the ground, and likely also piping infrastructure.[133] Gomeroi further contend that physical impacts may include a loss of flora and fauna due to habitat loss and the promotion of feral pests and predators.[134]
[132] NTP Contentions [220]; EIS Ch 6 6.7.3; Booby Affidavit [19].
[133] Ibid.
[134] NTP Contentions [217]; Booby Affidavit [21]; Tighe Affidavit [79]; Wilson Affidavit [52].

Santos’ evidence referred to AEMO projections that the National Electricity Market gas supply would experience shortfalls in the future, as existing on and offshore gas wells reduced in gas levels and quality. Mr Kelp also outlined in the quality, and duration of gas reserves and resources for all current gas operations.[366] The forecast of a domestic gas shortfall is raised in unusual circumstances, noting Australia has considerable gas capacity and is one of the largest exporters of LNG gas in the world.
[366] See Kelp Report, Table 2.2, Annexure D-2.
Overall, the evidence highlighted the difficulty in forecasting supply, or indeed demand, in volatile energy markets that are influenced by many factors, including international contracts and geo-political events.
Nonetheless, AEMO is the independent energy regulator, and the panel has accepted their official forecasts in undertaking its predictive task.
The panel notes that energy security in the short to medium term is subject to a high degree of uncertainty and that there is a significant portion of the NEM that relies upon gas as a reliable, scaled energy source. The panel also heard from Mr Kelp that the Project was the most ‘shovel ready’ supply of gas that could be brought online to meet the forecasted gas supply shortfall and would satisfy approximately 50% of NSW’s gas needs. This is, in and of itself, a benefit for the wider community and in the public interest.
The panel notes the report and evidence of the NSW Government before the IPC that it was of the view that the Project is not likely to reduce gas prices. Mr Kelp gave evidence to the panel that there are many variables that could impact upon the price of gas, including international gas prices in setting the domestic spot price, climatic variability (for instance, warmer winters), the competition for gas as feedstock or manufacturing. Other variables include the supporting infrastructure such as the availability of distribution network to service a region.
While the panel cannot be satisfied that the Project will have the effect of reducing prices, considering all the variables identified above the panel is satisfied that securing domestic sources of gas will assist to prevent upward pressure on gas prices. As such, the panel considers this will be a marginal benefit.
On balance, the panel is satisfied that energy security and reliability is an important benefit of this Project for the wider community, provided the gas produced is made available only for domestic consumption.

Environmental protections

The panel has considered extensive expert and traditional owner evidence, as well as the IPC findings relevant to the environmental impacts of the doing of the act.
In the remitted inquiry, Gomeroi adduced extensive evidence not contested by the other parties, addressing the local and regional impacts caused by climate change, including the ecological impacts of reduced winter rainfall, increased droughts, bushfires and heat waves.[367] Professor Mackey provided evidence that global temperature rises would put further pressure on some 107 listed threatened species residing in the Pilliga region ‘highly vulnerable’ to climate change.
[367]Mackey Report [4]–[14].
The evidence of the Gomeroi witnesses was that the impacts of natural disasters are already affecting their traditional activities, including trees being affected by bushfires impacting wooden tool manufacturing, as well as native fruits not reaching maturity due to temperature increases.[368] A Gomeroi witness gave evidence of flash flooding affecting trees, shrubs, plants and animals through flood debris clogging streams and waterways in the Narrabri region.[369] Importantly for the Gomeroi people, as set out in their witness evidence, the Pilliga contains important tree species used to collect ‘Brigalow wood’, described as being special ‘knotted’ wood, light and flexible, and the Gomeroi use this wood culturally to make shields and weapons.[370]
[368] Tighe Remittal Affidavit, [16]–[19], [22].
[369] Booby Remittal Affidavit [6]–[8], [43].
[370]Booby Affidavit [33]–[35].
Any negative impacts on the natural environment presents a clear detriment to the wider community, but also specifically to the Gomeroi people forming a part of such community having regard to their interwoven cultural connection to the Pilliga, including the lease areas.
During the IPC inquiry, members of the wider community raised a range of environment risks associated with the Project. To address those concerns the IPC introduced conditions designed to increase monitoring of environmental and water supply impacts. Further, the IPC placed conditions on Santos to ensure saline water was stored, prohibited pilot well flares to reduce the risk of bushfire events, and placed protective measures in place requiring expert monitoring of biodiversity concerns.[371]
[371] IPC Statement of Reasons [150]–[151], [252]–[253], [280]; IPC Development Consent Condition A11, B37, B69.

The panel accepts that there are environmental risks which arise as a direct and indirect consequence of the doing of this act. To manage these risks, the panel is of the view that, consistent with the beneficial intent of the Native Title Act, conditions should be imposed by the Tribunal to ensure that Gomeroi can actively participate in the IPC processes, including participating in the various expert panels arising from the IPC conditions. Gomeroi people are experts in their traditional knowledge systems as they relate to the environment, and this traditional knowledge will bolster and strengthen the regime which has already been put in place to manage and mitigate the implications of the Project. This traditional knowledge should also be applied to the amelioration of the direct environmental threats through the establishment of a Ranger Program, set out in the determination conditions 13 to 18 below.
The panel accepts that the Project presents environmental risks in the construction and operation of the Project, as well as climate change impacts due to the Project emitting GHG that will contribute to global temperature increases. The panel notes that the IPC has imposed several conditions to address those concerns and is of the view that, along with the imposition of conditions of its own, these effectively ameliorate the detriments.

Social impacts

The panel considered extensive evidence on the social impacts of the Project. This evidence covers the direct and indirect consequences of the act as well as the benefits and detriments.
The IPC findings list the social benefits and risks associated with this Project proceeding, as set out above at [5]. These findings were based on over 11,000 public submissions,[372] alongside submissions from various expert panels, the NSW Government departments, federal expert bodies and Santos. Such submissions dealt with the issue of public interest within the context of the NSW planning legislation. The panel notes these findings were made in a different statutory context and are certainly not determinative. Nevertheless, the panel considers the findings of the IPC relevant to its consideration of public interest, particularly noting the direct access the IPC had to the views of the public through its way of operating.
[372] IPC Statement of Reasons [30].
The native title party adduced evidence from experts, Associate Professor Lansbury and Dr Mallon, in relation to the local and regional impacts of global climate change. Associate Professor Lansbury gave evidence of the specific impacts of climate change on Gomeroi’s cultural wellbeing. Dr Mallon gave evidence on the impact of climate change-related events and natural disasters on the residents of Narrabri and surrounding regions. The Gomeroi witnesses gave evidence that the Project’s contribution to climate change would impact totemic structures, affect various cultural activities, impede responsibilities to protect and transmit cultural knowledge and uphold cultural duties, including in relation to water. None of this evidence was contested by the other parties.
The panel accepts the native title party’s expert and traditional owner evidence that climate change will contribute to local and regional risks and impacts. However, as the panel has indicated previously, while a direct link can be established between the Project and local risks and impacts of climate change, the Project itself should not be held wholly responsible for all the consequences of climate change. Nonetheless, the contribution of the Project to the effects of climate change is a serious detriment to be considered.
The panel has formed the view that significant weight must be placed on energy reliability as the absence of reliable, secure energy has significant short to medium term detrimental impacts upon the wider community, including Gomeroi people.[373]
[373] See for example Dunn Affidavit [191], [198]; SSD 6367 Assessment Report 23; Dunn Affidavit, Exhibit TD-18, NSW government, NSW Gas Plan: Protecting what’s valuable, Securing our future, 2; Dunn Affidavit, Exhibit TD-19, NSW Government, Future of Gas Statement (2021), 3, 5; Dunn Affidavit, Exhibit TD-20, Australian Competition and Consumer Commission, Gas Inquiry 2017-2025 –Interim Report (January 2020), 73, 76; Commonwealth of Australia, Future Gas Strategy (May 2024) 13-15, 40.
Weighing the evidence, the panel finds that the Project offers a net public benefit and has formed the view that the act may be done subject to conditions aimed at addressing the environmental and social impacts discussed throughout these reasons.

Consideration of section 39(1)(f) – any other relevant matters

Under s 39(1)(f) the panel must take into account any other matters it considers relevant. While this a broad criterion limited only by relevance, the use of the word ‘other’ necessarily excludes grounds that were covered by any of the preceding s 39 criteria.
The native title party and the grantee parties made contentions under s 39(1)(f) in the 2022 Determination largely going to matters of cultural heritage already considered under the broad umbrella of criteria set at s 39(1). This evidence was not updated or revisited in the remittal.
Gomeroi contend that the relevant future acts: [374]
… are not proposed to be done pursuant to a voluntary regime that would adequately protect the native title interests in the cultural heritage values of the land the subject of the applications (s 39(1)(f) of the Act), and nor are those values adequately protected by existing laws.
[374] NTP Contentions [180(d)].
In support of this contention, they submit that: [375]
… due to the inadequacies of other statutory schemes relating to the identification and protection of Indigenous heritage, the future act provisions of the Native Title Act provide an important opportunity for the identification and protection of Indigenous cultural heritage as an incident of the recognition and protection of native title rights and interests under the Act.
[375] NTP Contentions [223].
Gomeroi contend that approaches, including the ‘avoidance principle’, fencing and buffer zones, provided for in the NSW heritage regime ‘fail to account for the broader significance of landscape and the way in which the proposed Project as a whole will affect the geography of the region’ and ‘fails to protect sites and landscapes like waterways or forested areas, which are imbued with a more general significance’.[376] Equally, they say, the measures proposed to preserve cultural heritage under the ACHA and the heritage regime cannot ‘predict location of culturally significant intangible sites or areas’.[377] Gomeroi submit there is no doubt that the Project will ‘affect the cultural integrity’ of the landscape.[378]
[376] See for example NTP Contentions [239], [241].
[377] NTP Contentions [240], citing Affidavit of Jitendra Kumarage, dated 18 February 2022, [159] (Kumarage Affidavit).
[378] NTP Contentions [243], citing Kumarage Affidavit [167].
Concerning these issues Santos contends that additional measures, such as the Additional Research Program, have been introduced to promote the identification and protection of intangible cultural heritage. They also contend micrositing promotes the avoidance of sites of intangible cultural heritage and assert consultation with the Gomeroi has been ‘extensive… and will continue throughout the life of the Project’.[379]
[379] GP Contentions [50] & [73].
Gomeroi also raise issue with Santos’s control over and management of cultural heritage processes.[380] Noting, in expert evidence, that the in ACHMP the majority of the cultural heritage provisions are directly controlled by Santos, with Santos also controlling the recording of Aboriginal cultural information and the processes of managing and validating that information.[381]
[380] See NTP Contentions [247].
[381] Kumarage Affidavit [184]–[185].
As set out above, the panel was not satisfied that the whole of the Pilliga was a place of particular significance for the purposes of s 39(1)(a)(v). However, the panel accepts that the Pilliga is an important cultural landscape for the Gomeroi people. It is in this context the panel considered the adequacy of the NSW heritage regime to protect Aboriginal cultural heritage in the Project area. The Aboriginal cultural heritage protection regime in NSW is discussed from [55] to [64] above.
It is first important to reiterate that while the panel was satisfied that only Yarrie Lake and Bohena Creek are sites of particular significance for the purposes of s 39(1)(a)(v), it also notes issues with the ACHMP and the NPW Act, particularly regarding protection of intangible cultural heritage.[382] The difficulty in the native title party’s contentions is that there is very little specific evidence before the panel concerning these intangible heritage values and how they will be impacted by the Project. As noted above, Gomeroi contend the Project will damage the integrity of the cultural landscape but there is very little information before the panel concerning how this will specifically manifest or what the implications of the loss of integrity will be for the cultural landscape.
[382] See [55]–[64], [230]–[237] above.
The panel nonetheless accepts that cultural heritage constitutes tangible and intangible dimensions that together form ‘one indissoluble whole’[383] and conditions imposed to augment and supplement the ACHMP must be applied to both. The panel has imposed a condition requiring the Additional Research Program, including identification of intangible cultural heritage, be undertaken before the commencement of Phase 2 of the Project. The panel has also required the inclusion of representatives of the Gomeroi in cultural heritage management protocols and the establishment of a Ranger Program to manage Country.
[383] See for example Principal reasons [2024] FCAFC 26, [340].

There are no other matters the panel considers relevant to their determination, beyond the question of conditions which it will turn to below.

CONCLUSION

The panel is required to make a determination in this matter, having regard to all the criteria set out in s 39 of the Native Title Act, and informed by the facts before it and the material and evidence provided by the parties.
The s 39(1) criteria reflect an attempt by parliament to strike a balance between the protection of native title and the interests of the broader community.
A focus of this remittal was consideration of s 39(1)(e). The panel placed significant weight on energy reliability to find that the Project offers a net public benefit. This net outcome must then be weighed against any negative impact upon the registered native title rights and interests of the Gomeroi people, through the weighing of all criteria under s 39(1).
The panel has weighed the likely effect of the Project on the matters in s 39(1)(a), particularly the likely effect on the Gomeroi way of life, culture and traditions; their freedom of access to the lease areas overlapped by the important cultural landscape and waterways of the Pilliga; and the risk to Yarrie Lake, Bohena Creek and other important places to Gomeroi people, against the expressed wishes of the Gomeroi people that the Project not proceed in the absence of their consent (s 39(1)(b)), the economic significance of the Project (s 39(1)(c)), the net public interest in the doing of the act (s 39(1)(e), and other matters considered relevant by the panel (s 39(1)(f)). The panel has also taken into account the matters set out in s 39(2).
Based on the evidence before it, the panel is satisfied the negative effects of the Project can be mitigated by appropriate, comprehensive conditions and that on balance the future acts should be done.

CONDITIONS

The Tribunal possesses a broad power to determine that an act may be done subject to conditions to be complied with by any of the parties to the inquiry.[384]
[384] Native Title Act s 38(1).
Where the Tribunal makes a determination that an act may be done subject to conditions,[385] this has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties.[386]
[385] Native Title Act s 38(1)(c).
[386] Native Title Act s 41.
The power of the Tribunal to impose conditions does have some limitations. As noted by Justice Rangiah in the principal reasons of the Full Court,[387] the Tribunal must not determine a condition which has the effect of entitling the native title party to any ‘profit-sharing’ payments.[388] The Tribunal is also prohibited from making a determination as to the amount of compensation to be paid to a native title party under Division 5 of the Native Title Act.[389] The Tribunal may however impose a bank guarantee or trust condition that an amount is to be paid to secure any future determination of compensation in relation to the act.[390]
[387] Principal reasons [2024] FCAFC 26, [309] (Rangiah J).
[388] Native Title Act s 38(2).
[389] Native Title Act ss 41, 50.
[390] Native Title Act ss 41(3), 41(5).
As correctly noted by then-President Dowsett in the 2022 Determination, the subject matter of conditions should be guided by the criteria for making arbitral body determinations listed in s 39 of the Native Title Act.[391]
[391] 2022 Determination [2022] NNTTA 74, [1025], citing Walley v Western Australia [1999] FCA 3, [13]; Evans v Western Australia (1997) 77 FCR 193, 213; Minister for Mines (WA) v Evans (1998) 163 FLR 274, 283.
The Tribunal must give a full and final determination of the issues before it. This requirement also extends to conditions, and the Tribunal cannot impose a condition that would defer or delegate the determination of any issues between the parties.[392] The evidence adduced in the matter should also support the need for the imposition of any conditions.[393]
[392] See Evans v Western Australia (1997) 77 FCR 193, 207; Muccan Minerals Pty Ltd and Another v Allen and Others on behalf of Njamal [2018] NNTTA 24, [158]; Re Koara People (1996) 132 FLR 73.
[393] See Magnesium Resources [2011] NNTTA 80, [92]–[96].
With these principles in mind and having regard to the facts and evidence before us, the panel is of the view that three categories of conditions should be imposed in this matter.
The first condition category is domestic supply. The panel finds the acts may be done on the condition that all gas extracted from the Project must be used for domestic supply only, to address the forecasted energy supply gap facing the Australian domestic gas market. See reasons set out at [324] to [328] above.
The grantee parties and the State have put evidence and contentions before us to demonstrate that the Project is in the public interest as it is required to secure domestic energy supply in NSW. Whilst acknowledging the detrimental impact of the Project through the contribution of GHG emissions and climate change, those parties also assert it is critical to allow the transition away from reliance on coal-fired power plants to supply the NSW and Australian domestic energy market.

The Tribunal also has evidence before it that there is a more than adequate amount of gas already being extracted nationally to meet the energy market needs of NSW and across the Australian domestic market, however such gas is contracted to offshore customers and is not readily available to meet the short-term forecasted energy supply gap.
Having regard to all the evidence before us, for there to be a net weighing that the Project is in the public interest, all of the gas recovered must be used for domestic supply only. We also note the grantee parties have made various broad statements, including as part of the IPC process, indicating that the gas to be extracted from the Project is intended to meet the domestic supply needs.[394]
[394] See GP Remittal Contentions [124(b)] and IPC Statement of Reasons [334].
The second condition category of conditions relate to Aboriginal cultural heritage. The panel is of the view that the Additional Research Program, identified in the ACHMP,[395] must be implemented and completed prior to the commencement of Phase 2 of the Project to ensure the protection and preservation of cultural heritage. This was also a condition in the 2022 Determination.
[395] Dated 21 February 2022.
The panel also agrees with native title party’s contentions that under the current NSW heritage protection regime there is insufficient protection when it comes to intangible cultural heritage, and the NPW Act operating after harm or desecration has already occurred, operating as a deterrent but not a scheme to reduce any likelihood of damage such as might be achieved by requiring pre-clearance surveys be conducted by the traditional owners of the impacted land and waters.[396]
[396] NTP Remittal Condition Comments [21]–[22].
Further, also noted by Gomeroi, as the Project is classified as a State Significant Development by the State, an AHIP is not required and the offences relating to the desecration and harm of Aboriginal objects and places do not apply.[397]
[397] Ibid [22] referencing s 4.41 of the Environmental Planning and Assessment Act 1979 (NSW).
Based on the evidence before us relating to matters of cultural heritage, the panel has imposed several conditions related to matters addressed in the ACHMP, to address the protection and preservation of cultural heritage. See reasons set out at [230] to [237] above.
The third condition category deals with a fully funded and implemented Ranger Program covering the entire Pilliga Forest. The program is to be implemented to manage Country, protect the environment, and monitor and manage ecological threats, including through weed control, the protection of water, and cultural burns aimed at minimising fire risk and damage. There is persuasive evidence before the panel relating to the cultural concerns and obligations of the native title party to care for Country across the important cultural landscape of the Pilliga Forest. These concerns and obligations are only heightened in the current climate change environment facing us all. Importantly, this evidence also relates to cultural safety, and cultural safety is an important matter of public interest. This evidence was not contested by any of the parties. Nor did the grantee parties or the State challenge the native title party’s expert evidence going to health, environmental, and ecological risks and adverse direct and indirect impacts of the Project.[398] The Ranger Program is intended to address these matters for the reasons set out in this determination.
[398] GP Remittal Contentions [130].
As noted earlier in these reasons, the parties were given the opportunity to comment on the categories of conditions the Tribunal intended to impose. All parties filed contentions addressing this issue and the panel has had due regard to such contentions.

DETERMINATION

The Tribunal determines that the proposed future acts, being the grants

of Petroleum Production Lease Applications 13, 14, 15 and 16 may be done, subject, in each case, to the following conditions, pursuant to s 38(1)(c) of the Native Title Act:
Domestic supply only
1.The grantee parties must:
(a) supply all gas extracted in relation to the Project pursuant to the petroleum production leases into the Australian domestic gas market; and
(b) not supply the gas for export from Australia.
Cultural heritage
2.When, prior to commencing any activities on the leases, the grantee parties submits a plan of proposed operations, application, approval, or assessment, including in relation to any pipelines, environmental or other matter related to the Project, the grantee parties must at the same time give to the native title party a copy of the proposal, application or assessment, excluding sensitive commercial data, and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
3.The Aboriginal Cultural Heritage Working Group set out in Cl 5.3 of the ACHMP, responsible for assisting in the implementation of the plan, shall be comprised of a maximum of 10 people. Up to 8 persons with traditional authority and responsibility for the Pilliga area must be members of, and nominated by, the native title party or any prescribed body corporate determined to hold such native title rights and interests on trust. For the avoidance of doubt, this condition applies notwithstanding any different, contrary or alternative composition provided for in the ACHMP.

4.The Cultural Heritage Coordinator and any of the Cultural Heritage Officers referred to in Cl 5.4 of the ACHMP must be members of, and be nominated by, the native title party or any prescribed body corporate determined to hold such native title rights and interests on trust. Such persons must have traditional authority and responsibility for the Pilliga area and not be an employee of the grantee parties. For the avoidance of doubt, this condition applies notwithstanding any different, contrary or alternative terms provided for in the ACHMP.
5.All references to the Santos Aboriginal Cultural Heritage Site Register in the ACHMP must be changed to and replaced with ‘Narrabri Aboriginal Cultural Heritage Site Register’.
6.The grantee parties must acknowledge and agree that all cultural information obtained and recorded in the Narrabri Aboriginal Cultural Heritage Site Register remains the intellectual property of the native title party and must only be used as permitted by them in relation to the Project and at all times the Register must be used in accordance with any traditional laws and customs that may apply in relation to such information, such as gender restrictions on access.
7.The grantee parties must provide the native title party with access to the Narrabri Aboriginal Cultural Heritage Site Register maintained for the Project whenever requested. All requests from the native title party for access to the Register must be made to the Cultural Heritage Coordinator who must then obtain such access from the grantee parties.
8.Notwithstanding anything to the contrary contained in Cl 5.8.4 of the ACHMP or otherwise, no pre-clearance surveys or work programs are required only when the area has already been surveyed by the parties for the same scope of works and in accordance with the ACHMP and these conditions.
9.Notwithstanding anything to the contrary contained in the ACHMP or otherwise, the grantee parties will not undertake any future ground or surface disturbing work on or within 500 metres of the following sites of significance to the native title party, without the prior written consent of the native title party:
(a)Yarrie Lake; and
(b)Bohena Creek.

10.Notwithstanding anything to the contrary contained in Cl 7.2 and 7.3 of the ACHMP or otherwise, where there is a dispute between the grantee parties and the Aboriginal Cultural Heritage Working Group or the native title party in relation to any aspect of the ACHMP and the parties are unable to resolve the issue via a meeting, the parties must jointly agree on a suitably qualified archaeologist or anthropologist, the Expert, to independently decide the matter. The Expert must be funded by the grantee parties and written reasons for the decision must be provided to all parties within five (5) business days of any decision being made.
11.The grantee parties must complete the Additional Research Program, identified in the ACHMP, prior to the commencement of Phase 2 of the Project and prior to any future ground disturbing works, whatsoever, occurring.
12.As part of its activities, the Additional Research Program must identify the locations of Wombat Rock and Yaminbah and determine whether those locations are within the Project area. If Wombat Rock and/or Yaminbah are found to be located within the Project area, they must be included in Condition 9 above, and the grantee parties may not undertake any future ground or surface disturbing work on or within 500 metres of such sites without the prior written consent of the native title party.

Ranger Program
13.The native title party will establish a Ranger Program for the purpose of monitoring and managing the effects of climate change in the Pilliga Forest, including the Project area.
14.The grantee parties must pay all reasonable costs, fees, disbursements and expenses incurred in connection with establishment and operation of the Ranger Program.
15.The Ranger Program will be established for the duration of the operation of the Project, up to and including rehabilitation, and will undertake the following activities in the Pilliga Forest, including the Project area:
(a)biodiversity monitoring and research, including environmental sustainability;
(b)traditional knowledge transfer and ceremony;
(c)cultural awareness;
(d)fire management and mitigation, including utilising traditional methods of fire management and controlled burns;
(e)cultural site management, monitoring and reporting to the Aboriginal Cultural Heritage Working Group anything relevant for their role;
(f)water management and monitoring; and
(g)feral animal and weed management.

16.The grantee parties must cooperate with the native title party as required to ensure the success of the Ranger Program, including by granting any required access to the Project area and sharing any information, not of a commercially sensitive nature, which the grantee parties have in relation to environmental, ecological and water impacts of the Project.
17.The grantee parties and the State must use all reasonable endeavours to ensure that the native title party has an appointed representative on, and is an active and funded participant in, all committees to be established in relation to the Project, including but not limited to:
(a)the local committee tasked with setting the direction of the Gas Community Benefit Fund;
(b)the Community Consultative Committee referred to by the IPC;
(c)the Water Technical Advisory Group referred to by the IPC;
(d)the Greenhouse Gas Emissions Advisory Group referred to by the IPC;
(e)the Biodiversity Advisory Group referred to by the IPC; and
(f)the Aboriginal Cultural Heritage Advisory Group referred to by the IPC.

18.Following grant of the leases, the grantee parties must ensure that all persons who are not the native title party and who are engaged directly or indirectly by or on behalf of the grantee parties to work on the Project are given appropriate information, provided by the native title party through the Ranger Program, for the following purposes:
(a)to familiarise such persons with the traditions and culture of the native title party;
(b)to promote a knowledge and understanding of, and respect for, the traditions and culture of the native title party; and
(c)to foster good relationships between the native title party and others accessing the Project area.

General
19.Any right of the native title party to access or use the land the subject of the leases is not to be restricted except in relation to those parts of the land which are used for productive operations or for safety or security reasons related to those activities.
20.The grantee parties shall take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
21.Upon any assignment of the leases, the assignee shall by bound by these conditions.
22.All references to the native title party in these conditions shall include any prescribed body corporate determined to hold such native title rights and interests on trust.
23.For the avoidance of doubt, any or all of these conditions may be varied by the parties by mutual agreement, in writing.

Kevin Smith
President

Lisa Eaton
Member

Glen Kelly
Member

19 May 2025

ANNEXURE 1

ANNEXURE 2

P-223/L-21.

P-71/L16-47.