Santos NSW Pty Ltd v Gomeroi People - [2022] NNTTA 74

NATIONAL NATIVE TITLE TRIBUNAL

Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] NNTTA 74 (19 December 2022)

Application No:

NF2021/0003; NF2021/0004; NF2021/0005; NF2021/0006

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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

Gomeroi People (NC2011/006)

(native title party)

- and -

Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd)

(grantee parties)

- and -

State of New South Wales

(Government party)

FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE SUBJECT TO A CONDITION

Tribunal:	The Honourable J A Dowsett AM KC
Place:	Brisbane
Date:	19 December 2022

Catchwords:	native title – future act – future act determination application – obligation to negotiate in good faith – commencement of obligation to negotiate in good faith – conduct prior to notification day – content of obligation to negotiate in good faith – effect of reconstitution of applicant – financial support for negotiations – engagement with expert – expert valuation evidence – fixed position in negotiations – no failure to provide important information – use of s 35 application process – racial discrimination – grantee parties negotiated in good faith – 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 – effect of 1998 amendments to the Native Title Act – effects of climate change – decisions and recommendations of other bodies – cultural heritage protection under State legislation – determination that acts may be done subject to a condition
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Brigalow and Nandewar Community Conservation Area Act 2005 (NSW) Commonwealth of Australia Constitution Act (Cth) s 51(xxxi) Competition and Consumer Act 2010 (Cth) s 4E Environmental Planning and Assessment Act 1979 (NSW) ss 4.6, 4.15 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) Pt VB Forestry Act 2012 (NSW) Heritage Act 1977 (NSW) National Parks and Wildlife Act 1974 (NSW) Native Title Act 1993 (Cth) ss 7, 24AA, 24MD, 28, 31, 32, 35, 36, 38, 39, 40, 50, 52A, 61, 66B, 75, 139, 146, 211, 233 Native Title Amendment Act 1998 (Cth) Native Title (New South Wales) Act 1994 (NSW) s 104A Petroleum (Onshore) Act 1991 (NSW) ss 41, 112A, 67, 71; pts 4A, 4B Protection of the Environment Operations Act 1997 (NSW) Racial Discrimination Act 1975 (Cth) s 9(1)
Cases:	Bisset v Mineral Deposits Pty Ltd [2001] NNTTA 104; 166 FLR 46 Bligh Coal Limited, Idemitsu Australia Resources Pty Ltd and Bowen Investment (Australia) Pty Ltd v Jonathon Malone & Ors on behalf of the Western Kangoulu People & Another [2021] NNTTA 19 Boney v Attorney General of New South Wales [2018] FCAFC 218 Brownley v Western Australia [1999] FCA 1139; 95 FCR 152 Burragubba v Queensland [2016] FCA 984; 151 ALD 471 Burragubba v Queensland [2017] FCAFC 133; 254 FCR 175 Cameron v Queensland [2006] NNTTA 3 Charles v Sheffield Resources Ltd [2017] FCAFC 218; 257 FCR 29 Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; 142 ALR 21 Coppin v Western Australia [1999] FCA 931; 92 FCR 465 Daniel v Western Australia [2002] FCA 1147; 142 ALR 21 Drake Coal Pty Ltd v Smallwood [2012] NNTTA 9; 257 FLR 276 Evans v Western Australia [1997] FCA 741; 77 FCR 193 FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; 175 FCR 141 FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another [2018] NNTTA 64 Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; 197 CLR 297 Gold Road Resources Ltd v Harvey Murray on behalf of Yilka and Another [2018] NNTTA 52 Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 Gomeroi People v Attorney General of New South Wales [2016] FCAFC 75; 241 FCR 301 HL (Name withheld for cultural Reasons) and Others (Warrwa #2) v 142 East Pty Ltd [2014] NNTTA 49 Jax Coal Pty Ltd v Smallwood [2011] NNTTA 46; 260 FLR 99 Jonathan Downes v Gomeroi People [2022] NNTTA 26 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Magnesium Resources Pty Ltd v Cox [2010] NNTTA 211; 259 FLR 181 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Minister for Mines (WA) v Evans [1998] NNTTA 5; 163 FLR 274 Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 Nelungaloo Pty Ltd v Commonwealth [1948] HCA 51; 75 CLR 495 North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595 Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 Seven Star Investments Group Pty Ltd v Western Australia [2011] NNTTA 53; 257 FLR 175 Smith v ANL Ltd [2000] HCA 58; 204 CLR 493 Strickland v Minister for Lands for Western Australia [1998] FCA 868; 85 FCR 303 TJ v Western Australia [2015] FCA 818; 242 FCR 283 Walley v Western Australia [1996] FCA 490; 67 FCR 366 Walley v Western Australia [1999] FCA 3; 87 FCR 565 Ward v Northern Territory [2002] FCA 171 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 Watson (on behalf of Nyikina & Mangala) v Backreef Pil Pty Ltd [2013] FCA 1432 Weld Range Metals Ltd v Western Australia [2011] NNTTA 172; 258 FLR 9 Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373 Western Australia v Daniel [2002] NNTTA 230; 172 FLR 168 Western Australia v Dimer [2000] NNTTA 290; 163 FLR 426 Western Australia v Jidi Jidi Aboriginal Corporation [2002] NNTTA 114; 169 FLR 470 Western Australia v Taylor [1996] NNTTA 34; 134 FLR 211 Western Australia v Thomas [1996] NNTTA 30; 133 FLR 124 Western Desert Lands Aboriginal Corporation v Western Australia [2009] NNTTA 49; 232 FLR 169 WMC Resources Ltd v Evans [1999] NNTTA 522; 163 FLR 333
Representative of the native title party:	NTSCORP Limited

Representative of the grantee parties:

Ashurst Australia

Representative of the Government party:

Crown Solicitor’s Office

REASONS FOR DETERMINATION

DETERMINATION SUMMARY

On 20 December, 2011, the Gomeroi People applied for a determination as to the existence of native title pursuant to the Native Title Act 1993 (Cth). The application was made on their behalf by nineteen claim group members (the “Gomeroi applicant”). The claim area is located entirely in New South Wales, bounded by the Queensland-New South Wales border in the north, the western slopes of the New England Tableland in the east, the Hunter and Goulburn Rivers in the south and the Castlereagh, Barwon and Macquarie Rivers in the west. The claim area covers an area well in excess of 100,000km². The claim has been registered by the Native Title Registrar but has not yet been considered by the Federal Court of Australia.

Santos NSW (Eastern) Pty Ltd and associated companies propose to conduct a gas extraction operation, described as the Narrabri Gas Project. It concerns an area of 95,000ha within the claim area and located to the south and west of Narrabri. On 1 May 2014, Santos NSW Pty Ltd (“Santos”) lodged four petroleum production lease applications, covering an area of about 92,400ha, lying entirely within the Narrabri Gas Project area. On 30 September 2020, the Independent Planning Commission of New South Wales granted development consent for the Narrabri Gas Project, subject to 134 conditions. The decision was upheld by the Land and Environment Court of New South Wales. The relevant Commonwealth Minister has also granted the necessary approval.

Where a State or Territory government proposes to grant certain types of mining tenement, s 29 of the Native Title Act requires that it give public notice of such intention. On 28 May 2014, the State gave such notice concerning the petroleum production lease applications. Thereafter, the Gomeroi applicant, Santos and the State were obliged to negotiate in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants. See s 31(1) of the Native Title Act. Notwithstanding the development consent, negotiations concerning the proposed grants continued until 5 May 2021 when Santos applied to the National Native Title Tribunal for a determination that the proposed grants be made, notwithstanding the fact that the parties had not reached agreement. Negotiations continued after that date.

The Gomeroi applicant now asserts that Santos did not negotiate in good faith. If that were the case, the Tribunal could not determine that the proposed grants be made. See s 36(2) of the Native Title Act. The Gomeroi applicant made numerous assertions concerning Santos’s participation in the negotiations. However the Tribunal concluded that it had not demonstrated absence of good faith. The Tribunal was therefore obliged to decide whether the proposed grants should be made, having regard to the criteria identified in s 39 of the Native Title Act.

The Gomeroi applicant submitted that the proposed grants should not be made, asserting that the Narrabri Gas Project would result in grave and irreversible consequences for the Gomeroi People’s culture, lands and waters and would contribute to climate change. The Tribunal does not doubt that the Gomeroi applicant’s concerns are genuine. However the Tribunal concluded that the Gomeroi applicant had failed to justify its assertions that the proposed grants would have such effect upon the matters identified in s 39(1)(a) of the Native Title Act. The Tribunal also took into account matters arising pursuant to ss 39(1)(b), (c), (e) and (f) and s 39(2) of the Native Title Act.

The Tribunal had particular regard to the anticipated benefits of the Narrabri Gas Project to the Narrabri region, New South Wales and Australia. It also had regard to the Independent Planning Commission’s decision and the information upon which it relied. In those circumstances the Tribunal concluded that the proposed grants would provide a public benefit, significantly outweighing the Gomeroi applicant’s concerns, particularly having regard to the limited and imprecise evidence provided in connection with such concerns. The Tribunal therefore concluded that the proposed grants should be made, in each case, subject to one condition. In each case, the condition requires that Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd) take all necessary steps to ensure that the Additional Research Program, identified in para 5.7 of the Narrabri Gas Project Aboriginal Cultural Heritage Management Plan dated 21 February 2022, be implemented and completed prior to the commencement of Phase 2 of the Narrabri Gas Project.

This summary is part of the determination. It in no way affects or varies the detailed reasons which appear below.

I. INTRODUCTION	[1]-[104]
1.1. The Gomeroi People’s Native Title Determination Application	[1]
a. The Native Title Claim Area	[4]
b. The Native Title Rights and Interests Registered	[5]
c. Changes to the Composition of the Gomeroi Applicant	[6]
d. The Role of the Gomeroi Applicant	[10]
e. The Narrabri Gas Project	[16]
f. The Santos Project Area	[21]
g. Subdivision P	[22]
h. The Future Act Determination Applications	[26]
i. Legislative Provisions	[29]
j. State Development Approval Process	[38]
k. Difficulties and Delay	[78]
1.2. Summary of the Parties’ Contentions: Good Faith	[81]
1.3. Summary of the Parties’ Contentions: Section 39	[95]
II. NEGOTIATIONS IN GOOD FAITH	[105]-[561]
2.1. Negotiations Prior to Notification Day: May 2011 – 27 May 2014	[118]
2.2. Negotiations with the Gomeroi Applicant (2013-2017)	[148]
2.3. Negotiations with the Gomeroi Applicant (2017-2022)	[179]
2.4. Five Propositions	[266]
a. Not Engaging with an Expert (Mr Meaton)	[296]
b. Offers Below Market Value (Mr Ho)	[353]
c. Fixed Position on Compensation	[451]
d. Failure to Provide Important Information	[460]
e. Use of the Future Act Determination Application Process	[463]
The Five Propositions: Outcome	[465]
2.5. Subsequent Submissions: Racial Discrimination	[468]
2.6. Subsequent Submissions: Good Faith	[488]
2.7. Some Additional Matters	[538]
2.8. Conclusions as to Good Faith	[549]
III. SECTION 39	[562]-[1024]
3.1. Section 39(1)(a)	[563]
3.1.1. Summary of the Evidence of the Parties	[563]
3.1.2. Summary of the Parties’ Contentions	[694]
3.1.3. Consideration	[879]
3.2. Section 39(1)(b)	[908]
3.3. Section 39(1)(c)	[921]
3.4. Sections 39(1)(e) and (f)	[944]
3.5. Section 39(2)	[995]
3.6. Sections 39(3) and 39(4)	[1000]
3.7. Conclusions as to Section 39	[1001]
IV. CONDITIONS	[1025]-[1040]
V. DETERMINATION	[1041]
SCHEDULE 1 - MAP OF CLAIM AREA
SCHEDULE 2 - MAP OF PETROLEUM PRODUCTION LEASE APPLICATIONS 13, 14, 15 & 16
SCHEDULE 3 - APPENDIX 7 TO MR HO'S REPORT
SCHEDULE 4 - APPENDIX 8 TO MR HO'S REPORT
SCHEDULE 5 - APPENDIX 9 TO MR KUMARAGE'S REPORT

Introduction

1.1. The Gomeroi People’s Native Title Determination Application

On 20 December 2011, an application for a native title determination (determination application) was filed in the Federal Court pursuant to s 61 of the Native Title Act 1993 (Cth) (Native Title Act). As contemplated by that section, the determination application was made by a group of persons (Gomeroi applicant) authorized by persons claiming common or group rights and interests according to traditional laws and customs (native title claim group). On 20 January 2012, the claim was entered on the Register of Native Title Claims (Register).
As at January 2012, the persons comprising the Gomeroi applicant were Patricia Margaret Boney, Norman McGrady, Susan Smith, Michael Anderson, William Robinson, Raymond Welsh, Richard Green, Greg Griffiths, Elaine Binge, Alfred Priestley, Leslie Woodbridge, Craig Trindall, Burrul Galigabali, Bob Weatherall, Elizabeth Allan, Ray Tighe, Anthony Munro, Madeline McGrady and Jason Wilson. Members of the native title claim group are said to be the descendants of 114 apical ancestors, listed at sch A of the determination application, including persons who are descendants by adoption, according to traditional laws and customs. Each of the named apical ancestors, except one, is listed as having either a specified year of birth, or a birth place, in most instances, both. It seems that each person comprising the Gomeroi applicant, was drawn from one of 19 regions identified in the application, such areas being Ashford, Boggabilla, Caroona/Walhallow/Breeza, Collarenebri, Coonabarabran, Coonamble, Gulargambone, Gunnedah, Inverell, Moree, Mungindi, Narrabri, Quirindi/Werris Creek, South West Queensland, Terry Hie Hie, Tamworth, Tingha, Toomelah and Walgett. See Gomeroi People v Attorney General of New South Wales[1] at [6]. I shall refer to the Gomeroi applicant, as originally constituted as the “original applicant”. On three subsequent occasions, the composition of the Gomeroi applicant has been varied.
[1] [2017] FCA 1464.
The determination application was lodged on behalf of the Gomeroi applicant by NTSCORP Limited (NTSCORP). NTSCORP is a native title service provider funded, pursuant to s 203FE(1) of the Native Title Act, to perform the functions of a representative body for New South Wales and the Australian Capital Territory. Section 203FEA(1) provides that a body funded pursuant to s 203FE(1) has the same obligations and powers as a representative body.

a. The Native Title Claim Area

The area claimed pursuant to the determination application (native title claim area), comprises approximately 111,317.6km², entirely within the State of New South Wales. The native title claim area is generally described as being bounded by the New South Wales/Queensland border in the north, the western slopes of the New England Tableland in the east, the Hunter and Goulburn Rivers in the south and the Castlereagh, Barwon and Macquarie Rivers in the west. Towns within the native title claim area include those listed in para 2, above. Schedule 1 to this determination is a map of the native title claim area.

b. The Native Title Rights and Interests Registered

On 20 January 2012, the following native title rights and interests were entered on the Register in relation to the determination application:
1.Where exclusive native title can be recognised (such as areas where there has been no prior extinguishment of native title or where s.238 and/or ss.47, 47A and 47B apply), the Gomeroi People as defined in Schedule A of this application, claim the right to possession, occupation, use and enjoyment of the lands and waters of the application area to the exclusion of all others subject to the valid laws of the Commonwealth and the State of New South Wales.
2.Where exclusive native title cannot be recognised, the Gomeroi People as defined in Schedule A of this application, claim the following non-exclusive rights and interests including the right to conduct activities necessary to give effect to them
(a)the right to access the application area;
(b)the right to use and enjoy the application area;
(c)the right to move about the application area;
(d)the right to camp on the application area;
(e)the right to erect shelters and other structures on the application area;
(f)the right to live being to enter and remain on the application area;
(g)the right to hold meetings on the application area;
(h)the right to hunt on the application area;
(i)the right to fish on the application area;
(j)the right to have access to and use the natural water resources of the application area;
(k)the right to gather and use the natural resources of the application area (including food, medicinal plants, timber, tubers, charcoal, wax, stone, ochre and resin as well as materials for fabricating tools, hunting implements, making artwork and musical instruments);
(m)the right to share and exchange resources derived from the land and waters within the application area;
(n)the right to participate in cultural and spiritual activities on the application area;
(o)the right to maintain and protect places of importance under traditional laws, customs and practices in the application area;
(p)the right to conduct ceremonies and rituals on the application area;
(q)the right to transmit traditional knowledge to members of the native title claim group including knowledge of particular sites on the application area;
3.The native title rights and interests referred to in paragraph 2 do not confer possession, occupation, use or enjoyment of the lands and waters of the application area to the exclusion of all others.
4.The native title rights and interests are subject to and exercisable in accordance with:
(a)the laws of the State of New South Wales and the Commonwealth of Australia including the common law;
(b)the rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of New South Wales; and
(a)the traditional laws and customs of the Gomeroi People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

c. Changes to the Composition of the Gomeroi Applicant

On 10 and 11 May 2013, the native title claim group, at a meeting convened by NTSCORP, authorized a change in the composition of the Gomeroi applicant. This change was necessitated by the passing of one person and the resignation of another. On 13 August 2013, the Federal Court gave effect to the changes, ordering, pursuant to s 66B of the Native Title Act, that the following persons thereafter comprise the Gomeroi applicant: Alfred Boney, Maureen Sulter, Clifford Toomey, Lyall Munro Junior, Norman McGrady, Madeline McGrady, Leslie Woodbridge, Jason Wilson, Michael Anderson, Alfred Priestley, Ray Tighe, Greg Griffiths, Burrul Galigabali, Susan Smith, Richard Green, Raymond Welsh Senior, Elaine Binge, Bob Weatherall and Anthony Munro. See order of Jagot J in Boney v Withers.[2] The Gomeroi applicant, as so constituted, will, where necessary, hereafter be referred to as the “Gomeroi applicant (2013-2017)”.
[2] Federal Court of Australia, NSD2308/2011, 13 August 2013.
At the 2013 meeting it was also resolved that:
Resolution #10 – Authority and Role of the Applicant
The Gomeroi People native title claim group confers authority on the people who make up the [Gomeroi applicant] in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest. These expectations include:
…
(e) The [Gomeroi applicant] may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;
…
Any person comprising the [Gomeroi applicant] may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.
Notwithstanding such “expectations”, on 10 February 2015, Sam Hegney Solicitors became the solicitor on the record for the Gomeroi applicant, in place of NTSCORP. NTSCORP (by its legal officer, Mr R Powrie) subsequently applied to have that firm removed as solicitor on the record, and for Mr Powrie’s reinstatement. The application was heard by Jagot J. Her Honour refused the relief sought. See order of Jagot J in Gomeroi People v Attorney General of New South Wales.[3] On 13 May 2015, her Honour made orders, convening a meeting of the native title claim group, apparently for the purpose of resolving the question of legal representation. On 30 May 2016, the Full Court set aside those orders. See Gomeroi People v Attorney General of New South Wales.[4] Subsequently, NTSCORP convened a meeting of the native title claim group, which meeting took place on 19 and 20 July 2016. The meeting resolved to apply to the Federal Court, pursuant to s 66B, to reconstitute the Gomeroi applicant (2013-2017) (then represented by Sam Hegney Solicitors). On 7 December 2017, Rangiah J ordered that the Gomeroi applicant thereafter be comprised of the following 19 persons: Jason Wilson, Leslie Duncan, Marcus Waters, Malcolm Talbot, Barry French, Garry Binge, Raymond Weatherall, Steven Talbott, Donald Craigie, Dennis Griffen, Jennifer Bennett, Sheryl Barnes, Roslyn Nean, Sharon Porter, Emily Roberts, Fay Twidale, Tania Matthews, Natasha Talbott and Maria Cutmore, apparently giving effect to the resolution made at the July meeting. See order of Rangiah J in Gomeroi People v Attorney General of New South Wales.[5] On 21 November 2018, the Full Court dismissed an appeal against that decision. See Boney v Attorney General of New South Wales.[6] The Gomeroi applicant, as so constituted, will be referred to as the Gomeroi applicant (2017-2022). At some stage NTSCORP was reinstated as the solicitor on the record for the Gomeroi applicant. It continues in that capacity.
[3] Federal Court of Australia, NSD2308/2011, 10 March 2015.
[4] (2016) 241 FCR 301.
[5] Federal Court of Australia, NSD2308/2011, 7 December 2017.
[6] [2018] FCAFC 218.
On 9 September 2022, the Federal Court ordered, pursuant to s 66B(1)(a)(iii) and s 66B(1)(b) of the Native Title Act, that the members of the Gomeroi applicant thereafter be constituted by the following 19 persons: Sidney Chatfield, Peter White, Malcolm Talbot, Leslie Woodbridge, Richard Green, Clayton Simpson-Pitt, Chris McGrady, Madeline McGrady, Allan Tighe, Donald Murray, Dorothy Tighe, Ian Brown, Lee-Ann Pearl Davern, Noeline Sherill ‘Sheryl’ Nicholls, Shannon Draper, Christine Porter, Susan Smith, Elaine Binge and Anthony Munro. See order of Registrar Ingram in Wilson v Attorney General of New South Wales.[7] The Gomeroi applicant, as so constituted, will hereafter be referred to as the “current Gomeroi applicant”. The current proceedings relate primarily to the period between May 2014 and 24 March 2022 or, possibly, some later date.
[7] Federal Court of Australia, NSD37/2019, 9 September 2022.

d. The Role of the Gomeroi Applicant

This matter raises issues concerning the status of a native title applicant, the change in the composition of any group comprising such an applicant, and the ongoing relationship between an applicant and the native title claim group. In particular, as I explain below, the native title claim group has consistently sought to limit the authority of the Gomeroi applicant to act in connection with the determination application and in connection with the matters addressed in these proceedings.
At paras 6-19 of its contentions, the Gomeroi applicant addresses its “representative” role pursuant to s 61 of the Native Title Act, and its relationship with the native title claim group. I accept, for present purposes, that a native title claim group may, to some extent, limit the authority of an applicant appointed for the purposes of s 61 of the Native Title Act. I similarly accept that the native title claim group may, from time to time, amend its authorization. However the Gomeroi applicant is the moving party in litigation in the Federal Court. There may be a limit to the extent to which the native title claim group can instruct the Gomeroi applicant in the conduct of proceedings in that Court, particularly having regard to pt VB of the Federal Court of Australia Act 1976 (Cth). Further, the Native Title Act imposes duties upon the Gomeroi applicant, which duties it must perform, regardless of the views of the native title claim group. An example of this is s 31, which imposes a duty on the Gomeroi applicant to negotiate in good faith, with which provision I am presently concerned. See the paper written by Rangiah J and Mr Carter, “The role of the ‘applicant’ in native title disputes”.[8] Finally, the status and composition of an applicant depends on the Native Title Act. Any change in composition depends upon a favourable exercise of the Federal Court’s discretion pursuant to s 66B.
[8] (2013) 87 ALJ 761.
At para 16 of its contentions, the Gomeroi applicant sets out conditions imposed on it by the native title claim group at the meeting on 24-25 June 2011, at which the native title application was authorized. Relevantly, those conditions included:
Resolution 6 – Acting in the Interests of the Gomeroi People
The Gomeroi People acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).
…
The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will not:
·act inconsistently with the resolutions of the native title claim group or disclose information which is confidential to the native title claim group;
·amend, resolve, have listed for trial or discontinue the native title application without first obtaining a resolution of the native title claim group specifically authorising it to do so;
·execute any agreement that has the effect of extinguishing or confirming the extinguishment of native title, or conferring benefits on Gomeroi People, without first obtaining a resolution of the native title claim group specifically authorising it to do so.
At para 17, the Gomeroi applicant sets out conditions imposed at the meeting held on 10-11 May 2013, as follows:
Resolution #5 – Retention of NTSCORP Services and Legal Representation
The Gomeroi People native title claim group resolved to continue to retain the services of NTSCORP Limited and the legal practice funded by NTSCORP Limited in relation to the Gomeroi People’s native title determination application and related future acts processes on the basis that they act at all times in accordance with the instructions of the Gomeroi native title claim group and Applicants.
…
Resolution #10 – Authority and Role of the Applicant
The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).
The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest. These expectations include:
(a)The Applicant must do all things necessary to implement the resolutions and decisions of the Gomeroi People native title claim group meeting and must not act inconsistently with those resolutions and decisions;
(b)The Applicant must not disclose to third parties who are not Gomeroi information which is confidential to the Gomeroi People native title claim group;
(c)The Applicant must not amend, resolve, have listed for trial or discontinue the native title application without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;
(d)The Applicant must not execute any future act agreement, Indigenous Land Use Agreement or any other agreement that has the effect of extinguishing, impairing or otherwise affecting native title or confirming the prior extinguishment, impairment or effect on native title in the area under claim, unless they are expressly authorised by a resolution of the Gomeroi People native title claim group;
(e)The Applicant may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;
(f)The Applicant must not execute any agreement conferring benefits or obligation on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;
(g)The Applicant may not establish a Corporation or other legal entity to hold benefits on behalf of the Gomeroi People native title claim group without first obtaining a resolution of the native title claim group specifically authorising it to do so.
Any person comprising the Applicant may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.
At the meeting held on 19-20 July 2016, when the native title claim group again resolved to change the composition of the Gomeroi applicant, the following resolutions were adopted:
#13. Authority and Role of the Applicant
The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).
The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation on the condition [sic] that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest.
The particular conditions placed on the authorisation of the Applicant are:
(a)The Applicant must do all things necessary to implement the resolutions and decisions of the Gomeroi People native title claim group meeting and must not act inconsistently with those resolutions and decisions;
(b)The Applicant must not disclose to third parties who are not Gomeroi information which is confidential to the Gomeroi People native title claim group;
(c)The Applicant must not amend, resolve, have listed for trial or discontinue the native title application without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;
(d)The Applicant must not execute any future act agreement, Indigenous Land Use Agreement or any other agreement that has the effect of extinguishing, impairing or otherwise affecting native title or confirming the prior extinguishment, impairment or effect on native title in the area under claim, unless they are expressly authorised by a resolution of the Gomeroi People native title claim group;
(e)The Applicant must not attempt to terminate the services of NTSCORP Limited as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application NSD2308/2011, and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;
(f)The Applicant must not execute any agreement conferring benefits or obligations on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;
(g)The Applicant must not establish a Corporation or other legal entity to hold benefits on behalf of the Gomeroi People native title claim group without first obtaining a resolution of the native title claim group specifically authorising it to do so.
Any person comprising part of the Applicant will be replaced for acting contrary to these conditions and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.
In this circumstance, NTSCORP Limited is instructed to convene a meeting of the Gomeroi People native title claim group at the first available opportunity for the purpose of considering replacing the Applicant.
The words “in the expectation” in the second paragraph of the last-mentioned extract are inconsistent with the words “on the condition that”. This matter has been conducted on the basis that the first-mentioned words were deleted. Clearly, paras (d), (f) and (g) purport to limit the capacity of the Gomeroi applicant to execute agreements to be negotiated under s 31 of the Native Title Act. These limitations were to have a significant impact upon the capacity of the Gomeroi applicant to negotiate with Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd) (collectively, Santos) as discussed further below.

e. The Narrabri Gas Project

Santos NSW (Eastern) Pty Ltd (on behalf of its joint venture partners) proposes to extract natural gas from coal seams in the Gunnedah Basin in New South Wales, southwest of Narrabri (Narrabri Gas Project). The primary objective of the Narrabri Gas Project is to commercialize natural gas from coal seams for the Australian east coast gas market and to support the energy security needs of New South Wales. The term “Narrabri Gas Project” is used to describe the project and the area occupied by it.
On 1 May 2014, Santos NSW Pty Ltd lodged, in accordance with the Petroleum (Onshore) Act 1991 (NSW) (Petroleum (Onshore) Act), four Petroleum Production Lease Applications, numbered PPLA13, PPLA14, PPLA15, and PPLA16. The Narrabri Gas Project depends upon the grant of such applications. The grant of these applications is necessary for the conduct of the Narrabri Gas Project.
Pursuant to s 29 of the Native Title Act, the State of New South Wales (State) gave notice of its intention to grant the four Petroleum Production Lease Applications (proposed grants). The notification day, for the purposes of s 29 was 28 May 2014. Subsequently, Santos sought to amend the coordinates appearing in the notices. The State acceded to such request and gave further notifications, each having the notification day of 4 June 2015.
In response to an application made on 1 February 2017, on 30 September 2020, the Independent Planning Commission of NSW (Independent Planning Commission) granted development consent (Development Consent) to the Narrabri Gas Project. The consent was preceded by a lengthy development application process, including various environmental assessments, public submissions and a public hearing. Aspects of that process are discussed below. The Development Consent is a publicly available document.[9] The Development Consent does not include approval for a gas transmission pipeline.
[9] See NSW Government (2020) <>
Schedule 2 to this determination is a map showing the approved Narrabri Gas Project area as described in the Development Consent. The Development Consent states that it covers an area of approximately 95,000ha (950km²). The Narrabri Gas Project area includes the area of the proposed grants and a further area described as Petroleum Production Lease 3 (PPL 3). See Schedule 2. The Brigalow Park Nature Reserve is excluded from the Narrabri Gas Project area.

f. The Santos Project Area

The area included in the proposed grants will be referred to as the Santos project area. Not infrequently, the parties and witnesses have used the terms “Narrabri Gas Project” and “project area” interchangeably. I shall try to avoid ambiguity in connection with this terminology. This determination application relates only to the areas affected by the proposed grants, that is the Santos project area.

g. Subdivision P

Section 29 is contained within Subdivision P of Division 3 of Part 2 of the Native Title Act (subdiv P). Section 25 provides that subdiv P is concerned with “future acts”, including “certain conferrals of mining rights”. The word “act” appears in s 226 as follows:
Act
Section affects meaning of act in references relating to native title
(1)This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.
Certain acts included
(2)An act includes any of the following acts:
(a)the making, amendment or repeal of any legislation;
(b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f)an act having any effect at common law or in equity.
Acts by any person
(3)An act may be done by the Crown in any of its capacities or by any other person.
The term “future act” is defined in s 233 as follows:
Future act
Definition
(1)Subject to this section, an act is a future act in relation to land or waters if:
(a)either:
(i)it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993;
(ii)it is any other act that takes place on or after 1 January 1994; and
(b)it is not a past act; and
(c)apart from this Act, either;
(i)it validly affects native title in relation to the land or waters to any extent; or
(ii)the following apply:
(A)it is to any extent invalid; and
(B)it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C)if it were valid to that extent, it would affect native title.
…
(3)Subsection (1) does not apply to any of the following acts:
(a)an act that causes land or waters to be held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under a law mentioned in the definition of Aboriginal/Torres Strait Islander land or waters in section 253;
(b)any act affecting Aboriginal/Torres Strait Islander land or waters.

For present purposes the proposed grants fall within s 226(2)(b) and are future acts pursuant to s 233(1)(a)(ii).
Mineral deposits are generally vested in the Crown in right of each State or Territory, in this case New South Wales. The interests of the Gomeroi applicant and Santos in this matter are obvious. However the interests of the State cannot be overlooked. It has a clear interest in exploiting mineral deposits, for the benefit of the State and its citizens, including Aboriginal citizens. Exploitation of mineral deposits can only be conducted with the appropriate consent of the State, in this case, pursuant to the petroleum production leases. However access to mineral deposits for extraction purposes frequently requires the consent of relevant landholders. Mining legislation usually requires that the miner obtain appropriate access by negotiating with those landholders. Where there is no agreement, the legislation may provide for some form of arbitration. Subdivision P, in effect, provides the mechanism for obtaining rights of access over land over which there is a native title determination or a registered native title claim. Within the broader operation of the Native Title Act, s 31 requires negotiation in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants. In this case, the State, the Gomeroi applicant and Santos must participate in the negotiation. Should no agreement be reached, there is provision for arbitration. The Tribunal may be the relevant arbitrator.

h. The Future Act Determination Applications

On 5 May 2021, Santos lodged an application for Future Act Determinations relating to the proposed grants. The proposed grants (and therefore the Santos project area) cover a total area of approximately 923.9km², situated southwest of the town of Narrabri in New South Wales. The map at Schedule 2 to this determination depicts that area. A preliminary environmental assessment report dated March 2014 describes the Narrabri Gas Project as follows:
The project would be located within part of Petroleum Exploration Licence (PEL) 238, Petroleum Assessment Lease (PAL) 2, and Petroleum Production Lease (PPL) 3, all of which are located to the south and west of Narrabri (refer to Figure 1). It is proposed to create four PPLs within the project area by converting all of PAL 2 to a PPL and creating three additional PPLs to the north, east and south of PAL 2. These PPLs would each be less than four graticular blocks; the maximum allowable area for a PPL. An application is currently under preparation.
The total project area is approximately 98,000 hectares in size, however, surface infrastructure would directly impact approximately one percent of the total project area. The majority of the proposed development is located within an area known as the ‘Pilliga’, with the remainder of the proposed development (approximately 30%) located on agricultural land supporting dry-land cropping and pastoral (livestock) activities. It is important to note that none of the agricultural land has been mapped as prime ‘biophysical strategic agricultural land’ under recent NSW Government coal seam gas legislative amendments (refer to Section 4).
The collective term ‘Pilliga’ represents an agglomeration of forested area that totals in excess of 500,000 hectares within north-western NSW around Coonabarabran, Baradine and Narrabri. Nearly half of the Pilliga is currently allocated to conservation, and is managed under the NSW National Parks and Wildlife Act 1974. Within the Pilliga the project would be developed primarily within State Forest, and also on some privately managed land, but would avoid conservation areas such as the Pilliga National Park, the Pilliga State Conservation Area and the Pilliga Nature Reserve. The Brigalow Park Nature Reserve is also excluded from the project area. Whilst the Brigalow State Conservation Area is within the project area, surface infrastructure (and a buffer of at least 50 metres surrounding the State Conservation Area) would also be excluded.
Resource exploration has been occurring in the area since the 1960s initially for oil but more recently coal and gas. A number of existing exploration and production wells are located within PEL 238, PAL 2 and PPL 3. These are in varying stages with some active, some suspended and others abandoned and rehabilitated, or awaiting rehabilitation.
Since March 2014, the “total project area” (that is the Narrabri Gas Project area) has been reduced to approximately 95,000ha in area, as reflected in the Development Consent. In the evidence, the terms “Pilliga”, “the Pilliga” and “the Pilliga forest” are sometimes, but not always, used interchangeably. Each of the proposed grants will be a future act, as defined in s 233 of the Native Title Act. Hence it was necessary that the State notify its intention to make the proposed grants. See s 29 of the Native Title Act. These notices engaged subdiv P of the Native Title Act. For present purposes, pursuant to s 38 of the Native Title Act, this Tribunal must determine whether such grants should be made, with or without conditions.
In 2014, Ashurst Australia (Ashurst), Santos’s solicitor, undertook a native title audit report. It sought to identify the existence of native title within the Santos project area. It concluded that in 37 parcels of land within that area, it was unlikely that native title had been extinguished. It seems that those 37 parcels of land occupy approximately 46% of the Santos project area. The Gomeroi applicant does not necessarily accept Ashurst’s assertions as to the extent of extinguishment. The map at, Schedule 2 to this determination, reflects Ashurst’s findings. There are minor differences between those findings and the records held by the Tribunal. Such differences are not presently relevant.

i. Legislative Provisions

The current application is principally governed by ss 31, 33, 35, 36(2), 38 and 39 of the Native Title Act. Of particular importance are the following provisions.
Section 31 provides:
Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:
(i)the doing of the act; or
(ii)the doing of the act subject to conditions to be complied with by any of the parties.
Note: The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned. See subsection 41(2).
(1A)Despite paragraph (1)(b), the Government party does not need to negotiate about matters that the Government party determines do not affect the Government party if the other negotiation parties give written consent.
(1B)However, the Government party must be a party to the agreement.
Registered native title claimants
(1C)The requirement that a native title party that is a registered native title claimant be a party to the agreement is satisfied if:
(a)a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or
(b)if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement--those persons are parties to the agreement.
(1D)The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (1C)(a). A failure to comply with this subsection does not invalidate the agreement.
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(4)If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:
(a)providing that assistance; or
(b)establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);
without the prior consent of the person who provided the NNTT with the information.
Section 33 provides:
Negotiations to include certain things
Profits, income etc.
(1)Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)the amount of profits made; or
(b)any income derived; or
(c)any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2)Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a)existing non-native title rights and interests in relation to the land or waters concerned;
(b)existing use of the land or waters concerned by persons other than native title parties;
(c)the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.
For present purposes, the Tribunal is the relevant arbitral body.
Section 35 provides:
Application for arbitral body determination
(1)Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:
(a)at least 6 months have passed since the notification day (see subsection 29(4)); and
(b)no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.
Withdrawal of application
(2)At any time before a determination in relation to the act is made under section 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.
Negotiations for an agreement
(3)Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.
Subsection 36(2) provides:
Arbitral body determination to be made as soon as practicable
Determination not to be made where failure to negotiate in good faith
(2)If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) (other than as provided by subsections 31(1A) and (2)), the arbitral body must not make the determination on the application.
Note: It would be possible for a further application to be made under section 35.
Section 38 provides:
Kinds of arbitral body determinations
(1)Except where section 37 applies, the arbitral body 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;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determination may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a)is not reasonably capable of being determined when the determination is made; and
(b)is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Matters to be determined by arbitration
(1B)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a)the manner specified is arbitration (other than by the arbitral body); and
(b)the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit-sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)the amount of profits made; or
(b)any income derived; or
(c)any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Section 39 provides:
Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)any public interest in the doing of the act;
(f)any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)existing non-native title rights and interests in relation to the land or waters concerned; and
(b)existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a)must take that agreement into account; and
(b)need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
Sections 31, 33, 34 and 36(2) relate particularly to the question of good faith negotiation. Section 39 prescribes the criteria for making a determination pursuant to s 38. Below, I outline the Gomeroi applicant’s case, concerning both of these aspects, referring in some cases to contentions advanced by Santos and/or the State. The issue of good faith and the issues arising pursuant to s 39 are discrete matters and are, in this determination, largely dealt with separately.

j. State Development Approval Process

After a lengthy development approval process under the New South Wales legislative regime, the Narrabri Gas Project was granted Development Consent by the Independent Planning Commission on 30 September 2020. It was granted subject to 134 detailed conditions. The Development Consent is annexed to the affidavit of Mr James MacLeod.
The Narrabri Gas Project is described by Santos at paras 26-28 of its contentions as follows:
26.The Project includes construction and operation of a range of activities and infrastructure including:
(a)gas exploration and appraisal - seismic testing, chip holes, core holes and appraisal wells;
(b)development and operation of a gas field – converting pilot wells into production wells, drilling new production wells and monitoring bores, developing gas and water gathering and treatment systems and in-field compression facilities; and
(c)decommissioning and rehabilitation – sealing production wells, removing surface infrastructure and rehabilitating sites.
27.This development will be undertaken progressively in four stages in accordance with the Development Consent, leading ultimately to the development of up to 850 new wells on a maximum of 425 well pads over the lifetime of the Project. Santos may only progress to a new phase of development once is has achieved certain milestones as set out in the Development Consent. Development is to occur in phases as described below:
(a)Phase 1 exploration – ongoing exploration and appraisal activities;
(b)Phase 2 construction – construction activities for production wells and associated infrastructure;
(c)Phase 3 production – gas production activities; and
(d)Phase 4 rehabilitation – gas and well infrastructure decommissioning, rehabilitation and mine closure.
28.Field planning would continue to be informed and refined by exploration and appraisal activities that would occur across the Project Area over the life of the Project.
In its submissions, Santos has referred to “the flexibility available in regard to CSG well location” and “flexibility to relocate any proposed infrastructure”. The evidence in support of these contentions appear at paras 84-86 of the affidavit of Mr Todd Dunn, which states:
84.The location of CSG wells for the Project depends on the location of gas reserves as defined by the appraisal program. While the location of each well must correspond to the location of gas reserves, there is a considerable degree of flexibility available in the siting of CSG wells, as was noted by DPIE at paragraphs [411] – [416] 194 of its Assessment Report (TD-2).
85.In general, potential well sites are identified based on a number of factors including:
(a)results of core hole drilling;
(b)geophysical analysis of existing seismic data;
(c)orientation of the coal fracture system;
(d)known land use constraints at the surface (including Aboriginal cultural heritage); and
(e)coal seam reservoir modelling.
86.There will be, as set out in Table 1 of the [Independent Planning Commission Statement of Reasons]…, only one well pad per 225 hectares of the Project Area.

The parties seem to accept that the location of gas field infrastructure has not yet been confirmed, or that any development will be subject to consultations, regarding matters listed from (a) to (e) above. I accept such evidence.
The Gomeroi applicant does not accept that the available flexibility and application of the factors listed from (a) to (e) above will be sufficient to address their concerns about the Narrabri Gas Project. I deal with their contentions below.

The Independent Planning Commission

At this point it is useful to say a little about the process by which the Narrabri Gas Project has been approved. On 26 May 2014, the State gave notices pursuant to s 29 of the Native Title Act, specifying the notification day as 28 May 2014. Elsewhere in this determination, particularly in connection with the good faith issue, I have said a little about events which occurred thereafter. In February 2017, Santos submitted a development application and Environmental Impact Statement to the Department of Planning, Industry and Environment (Department) in relation to the project. The Environmental Impact Statement included chapters entitled “Aboriginal heritage” (including Appendix N2 – Cultural Heritage Management Plan) and “Greenhouse gas” (including Appendix R - “Greenhouse gas assessment”) (the GHG Assessment). These documents were prepared by Santos. Each presents a detailed assessment of Aboriginal cultural heritage and the projected greenhouse gas emissions. The Environmental Impact Statement was exhibited by the Department. Approximately 23,000 submissions were received in response. The public submissions included submissions from the Dharriwaa Elders Group, Gomeroi Traditional Custodians and the Narrabri Local Aboriginal Land Council. Santos asserts that submissions were received from members of the Gomeroi applicant. However, the source of such information is not clear.
In accordance with the requirements of the Environmental Planning and Assessment Act 1979 (NSW) (Environmental Planning and Assessment Act), the development application was referred, by the State Minister, to the Independent Planning Commission, as the designated consent authority. The Minister also requested that the Independent Planning Commission conduct a public hearing. The public hearing was held over 7 days in late July to 1 August 2020. In September 2020, the Independent Planning Commission granted the Development Consent, in accordance with the relevant State approvals process.
In November 2020, pursuant to arrangements under a bilateral agreement between the New South Wales and Commonwealth Governments, the Commonwealth Minister considered the Department’s Report and, under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (Environmental Protection Act), approved the project as a controlled action, subject to conditions.
Under s 4.15, the Environmental Planning and Assessment Act sets out certain matters, which matters a consent authority must take into account, if relevant to the development application process in question. Section 4.15 “Evaluation” provides, in part, that:
(1)Matters for consideration – general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application–
(a)the provisions of–
(i)any environmental planning instrument, and
(ii)…
(b)the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)the suitability of the site for the development,
(d)any submissions made in accordance with this Act or the regulations,
(e)the public interest
Under s 4.6 of the Environmental Planning and Assessment Act, assessment of the proposed development undertaken by the Department may be done on behalf of the Independent Planning Commission, without limiting any other assessments that the Independent Planning Commission may wish to make. At p 22 of the Commission’s Statement of Reasons, it set out the list of material considered by it, including the Department’s Report dated 11 June 2020. The Department’s Report is annexed to the affidavit of Mr Todd Dunn. It included a detailed consideration of the matters identified in s 4.15 of the Environmental Planning and Assessment Act, including groundwater and produced water management impacts, biodiversity, Aboriginal heritage, greenhouse gas emissions and climate change, economic and social impacts and other issues.
Chapter 6 of the Department’s Report provides an assessment of the GHG Assessment and also considers research from the Commonwealth Scientific and Industrial Research Organisation (CSIRO). The Department concluded that:
… there is a demonstrable need for the gas generated by the project, and that the project is consistent with NSW’s and Australia’s commitments to a low carbon future.
Chapter 5 of the Department’s report sets out the details of community engagement, including an analysis of the public submissions. The report indicates that of the 23,000 submissions received, 98% were opposed to gas development in New South Wales. The arguments included the need for New South Wales to take urgent action to address climate change; unacceptable quantities of direct, indirect, and fugitive emissions produced; downstream impacts of emission and impacts upon land, water and biodiversity. Submissions regarding unacceptable impacts included:
… diminishing the heritage values of the region, including intangible cultural heritage values of the Aboriginal community and their connection to country.
It is not clear whether these submissions were referring to climate change as a cause, direct or indirect, of such unacceptable impacts. Seventeen agencies provided advice and submissions to the Department, including the Narrabri Shire Council, Environment Protection Authority and NSW Health and Transport. None of the agencies opposed the Narrabri Gas Project. However clarification was sought on a range of issues, including fugitive emissions, Aboriginal heritage consultation and other matters. Agency advice may be viewed on the Department’s website.
The Independent Planning Commission, in its Statement of Reasons, had regard to substantial public comments and submissions, some of which were received at the Public Hearing. At para 57 of its Statement of Reasons, the Independent Planning Commission explains that the matters for consideration under s 4.15 of the Environmental Planning and Assessment Act are not exhaustive, and that it may consider other matters when determining the development application.
The Independent Planning Commission Statement of Reasons indicates that 366 speakers addressed the Public Hearing. Of the speakers, 346 objected, and 18 were in support. “Climate change impacts from greenhouse gas emissions” and “Impacts on Aboriginal cultural heritage” were significant issues.
The Independent Planning Commission’s Statement of Reasons addressed public comments related to the environmental impacts of scope 1-3 greenhouse gas emissions, and the contribution of the Narrabri Gas Project to global climate change. These comments included assertions that estimates provided in the Environmental Impact Statement for CO2 and fugitive methane (CO4) emissions were too low, and that these low estimates led to a false conclusion that gas-fired electricity would, overall, reduce emissions otherwise produced by coal-fired electricity. It was further asserted in the public comments that scope 3 emissions from the project would exceed Australia’s carbon budget under the Paris Agreement.
In making its findings, at para 170 of its Statement of Reasons, the Independent Planning Commission had regard to responses from the State and Santos. Although it accepted the data provided in the Environmental Impact Statement regarding CO2 and CO4 emissions estimates, it also accepted that any increase in the projected emissions would negate the benefits of gas-fired electricity generation. For that reason, the Independent Planning Commission imposed conditions B20 and B21, which conditions require that any emissions beyond the predicted scope 1 and 2 emissions be fully offset. On the basis of the Environmental Impact Statement emissions estimates, the Independent Planning Commission concluded that the emissions from the project are justifiable, having regard to the ongoing and increasing needs of the domestic market for energy, and targets agreed by the Commonwealth and New South Wales Governments at the international and local levels.
The Independent Planning Commission imposed a further condition B19, requiring the establishment of a Greenhouse Gas Emissions Advisory Group to inform the proper management and reporting of emissions from the Narrabri Gas Project. It is not clear whether scope 3 emissions are to be monitored by the Advisory Group.
The Independent Planning Commission also considered public comments regarding bushfire risk, biodiversity impacts, groundwater dependent ecosystems, Aboriginal cultural heritage, social impacts, economic impacts, ecologically sustainable development and other matters. However, with the exception of bushfire risk, the Independent Planning Commission did not examine, in detail, the extent to which climate change might affect each of these matters.
At paras 415 to 438, the Independent Planning Commission’s Statement of Reasons addresses the “public interest” in the context of the objects of the Environmental Planning and Assessment Act. At para 416, the Independent Planning Commission stated:
The Commission notes that the CSG resources are located within existing exploration licence areas, are in saline aquifers that are largely not used for productive agriculture and are within seams that are permeable enough to not require fracking to release the gas. The Commission is of the view that the extraction of CSG as a part of the Project is an efficient use of the land and represents a suitably managed use of the State’s natural gas resources. The Commission is satisfied with the Department’s assessment outlined in the Department’s [Assessment Report] and finds that the Project will provide ongoing socio-economic benefits to the people of NSW, a diversification of industry in the Narrabri region, and ongoing employment opportunities for members of the local community. Further, the Project is likely to produce sufficient gas to meet up to 50% of NSW’s gas demand. This would be in circumstances where currently only about 5% of NSW’s gas demand is met from the State’s own resources, and (absent this Project) is likely to reduce to nil by 2024. The Project therefore has the potential to contribute to gas security for NSW and could be available for the production of electricity and for use in homes and in NSW’s industries and businesses. Therefore, the Project accords with Object (a).
The Independent Planning Commission concluded that:
The Commission finds that on balance, and when weighed against the relevant climate change policy framework, objects of the EP&A Act, ESD principles and socio-economic benefits, the potential impacts associated with the Project are manageable, and the risks of adverse impacts on the environment are low. The likely benefits of the Project warrant the conclusion that an appropriately conditioned approval is in the public interest.

The Development Consent Conditions

The Development Consent conditions are aligned to each of the phases of the Narrabri Gas Project as described above, and include Aboriginal cultural heritage conditions in “Part B – Specific Environmental Conditions”. Part B contains various provisions regulating Santos’s activities concerning water, biodiversity, heritage, hazards and risk, rehabilitation and social issues, amongst other topics.
Development Consent condition B1 requires Santos to comply with locational criteria applicable to natural and heritage features and areas within, and in the vicinity of the Narrabri Gas Project area. The features identified for protection by avoidance and other measures include conservation areas, water resources, biodiversity and heritage. For example, buffer zones are required for watercourses, and disturbance limits are placed on vegetation types and threatened flora and fauna.
Conditions B2 and B3 require the implementation of an approved Field Development Protocol prior to the commencement of Phase 1. The Field Development Protocol provides a compliance framework, including plans and processes for siting of gas field infrastructure. Such plans and processes must comply with the locational criteria, and other constraints, designed to minimize environmental and related impacts. For example, The Field Development Protocol provides for in-field micro-siting comprising ground-truthing surveys, ecological surveys and cultural surveys, amongst other things, to be completed prior to the construction of any gas field infrastructure.
Conditions B4-B6 require the preparation and approval of a Field Development Plan prior to the construction of any gas field infrastructure. The Field Development Plan is to include the results of micro-siting surveys and detailed plans, showing existing and proposed gas field infrastructure. It must be prepared in consultation with a number of advisory groups. Those advisory groups include landowners, the Aboriginal Cultural Heritage Advisory Group, Greenhouse Gas Emissions Advisory Group, and the Water Technical Advisory Group. Condition B5 provides that Santos must not commence Phase 1 until the Field Development Plan is approved by the Planning Secretary.
Should the Petroleum Production Lease Applications be granted, Santos will be bound by the Development Consent conditions listed above.

The Aboriginal Cultural Heritage Management Plan

Condition B59 of the Development Consent requires Santos to prepare an Aboriginal Cultural Heritage Management Plan prior to the commencement of Phase 1. Condition B60 requires implementation of the Aboriginal Cultural Heritage Management Plan, once approved by the Planning Secretary. Conditions B53-B57 provide for the avoidance of all known Aboriginal cultural heritage items, procedures for the discovery of human remains and previously unknown Aboriginal cultural heritage items, and the recording of Aboriginal cultural heritage. Condition B58 includes the establishment of an Aboriginal Cultural Heritage Advisory Group comprised of Aboriginal heritage representatives, including at least one member of the Gomeroi applicant. Mr Dunn’s affidavit advises that the Aboriginal Cultural Heritage Advisory Group met three times in 2021 and included two representatives of the Gomeroi applicant (2017-2022).
The Aboriginal Cultural Heritage Management Plan received approval on 15 March 2022 and is a publicly available document.[10] It contains detailed provisions which meet the requirements of the Development Consent conditions and additional matters such as the establishment and operation of an Aboriginal Cultural Heritage Working Group (which includes at least four Gomeroi representatives) as well as an Additional Research Program. The Additional Research Program is intended to confirm existing information and provide an opportunity to gather further information regarding unknown tangible and intangible Aboriginal cultural heritage. The Aboriginal Cultural Heritage Management Plan currently provides for the completion of the Additional Research Program within 12 months of the commencement of Phase 2. Santos now proposes that the program be completed prior to the commencement of Phase 2.
[10] See Santos (2022) < see also NSW Government (2022) <>
The Aboriginal Cultural Heritage Management Plan already contains data and a management framework. The framework informs the operational procedures to be adopted, prior to the commencement of Phase 1 in the Field Development Protocol and Field Development Plan for the avoidance and protection of Aboriginal cultural heritage. The procedures require notification to, and consultation with the Aboriginal Cultural Heritage Advisory Group and the Aboriginal Cultural Heritage Working Group throughout the life of the project. They include measures required by condition B59(d). Schedule 3, for example, sets out a table listing site types which must be avoided completely. The table includes material objects such as carved and scarred trees. It also provides for non-material cultural heritage, for example, “[p]laces of traditional and Anthropological Significance identified in the cultural heritage audit review or in a Cultural Heritage Compliance Plan”. The details of such Plan are described as “[s]ites previously identified by Santos as a Place of Traditional and Anthropological Significance or otherwise identified in the Additional Research Program.” Schedule 5, para 11 provides a further description of such places. Schedule 4 identifies other specific types, such as stone artefacts, which may be managed by means other than avoidance.
Should the Petroleum Production Lease Applications be granted, Santos will be bound by the Development Consent conditions B53 – B60 concerning Aboriginal cultural heritage.

Other Controls Applicable to the Narrabri Gas Project

In November 2020, the Narrabri Gas Project was declared to be a controlled action under the Environmental Protection Act. The controlling provisions relate to listed threatened species and ecological communities, water resources related to coal seam gas development, and Commonwealth land. The approved conditions impose specific measures on the Narrabri Gas Project, such as a clearance limit of 989 hectares of native vegetation.
Mr Dunn’s evidence indicates the commitment of Santos to the implementation of all of the Development Consent conditions, including restrictions on the location of gas field infrastructure. His evidence refers specifically to the investigative and enforcement powers of the Department and the NSW Environment Protection Authority, and to the penalties and consequences applicable for non-compliance.
Mr Kreicbergs’ evidence refers to additional protection for Aboriginal cultural heritage in New South Wales law, including an offence regime, the Aboriginal Heritage Information Management System under the National Parks and Wildlife Act 1974 (NSW) (National Parks and Wildlife Act) and the State Heritage Register under the Heritage Act 1977 (NSW) (Heritage Act). Santos’s contentions refer to further protections for Aboriginal cultural heritage available under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
The State submits that the relevant State regulatory regimes should be taken into account by the Tribunal in considering s 39(1). The State contends that should the Petroleum Production Lease Applications be granted to Santos, conditions included in the “sample lease”, such as measures to prevent or minimize harm to the environment, and site rehabilitation, are relevant factors which the Tribunal should consider. The State contends that breaches of any lease condition could lead to its cancellation, amongst other measures.
The State refers to the Protection of the Environment Operations Act 1997 (NSW) and Environmental Protection Licences issued under that Act for the purpose of a development consent. The State contends that Environmental Protection Licences are relevant to avoiding or minimizing environmental harm and provide measures dealing with matters such as regulating groundwater and produced water storage, and the publication of monitoring data relating to the same. It appears from Mr Dunn’s cross-examination at the hearing, that Santos does not yet hold an Environmental Protection Licence in respect of the Narrabri Gas Project.

A further matter arises under s 39(1)(f). At para 8A(d) of its summary of contentions, the Gomeroi applicant asserts that the proposed grants should not be made because such grants will not be done pursuant to a voluntary regime which would adequately protect the native title rights and interests, and the cultural heritage values of the land. It is asserted that such values are not protected by existing laws. At para 181(d), the proposition is repeated. At para 223, the Gomeroi applicant submits that there are inadequacies in, “other statutory schemes relating to the identification and protection of Indigenous heritage.” It is submitted that 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”. It is said that such protection has been the subject of negotiation between Santos and the Gomeroi applicant. The Gomeroi applicant then identifies the alleged shortcomings of such legislation.
The Gomeroi applicant criticizes the New South Wales cultural heritage regime, including the development approval process under the Environmental Planning and Assessment Act, the protection of Aboriginal objects and places under the National Parks and Wildlife Act, the “Aboriginal cultural heritage consultations requirements for Proponents”,[118] and the “Guide to investigating, assessing and reporting on Aboriginal cultural heritage in NSW”.[119] The substance of this contention appears to be that the combined effect of the Development Consent conditions and the Aboriginal Cultural Heritage Management Plan are inadequate to protect intangible cultural heritage, and that procedures and processes established pursuant to the Development Consent conditions do not provide the Gomeroi applicant and native title claim group with sufficient control over such procedures and processes.
[118] Department of Environment, Climate Change and Water (2010) < Office of Environment and Heritage; Department of Premier and Cabinet (2011) <>
The primary concern of the Gomeroi applicant appears to be that in circumstances where the Aboriginal Cultural Heritage Assessment Report did not identify or, in the Gomeroi applicant’s view, give sufficient weight to intangible cultural heritage, the Aboriginal Cultural Heritage Management Plan lacks the information necessary to inform processes, including micro-siting and pre-clearance surveys, and therefore a proper application of the avoidance principle. The Gomeroi applicant further submits that because it contends that the whole of the Pilliga is significant, the whole of the project area, or large tracts of it, may need to be avoided. Under cross-examination, Mr Kumarage did not confirm or support the contention that the whole, or even a large part of the Pilliga forest is significant. His report did not recommend that large parts of the Santos project area be “avoided” for reasons associated with heritage. See ts 219, ll 31-47. The Gomeroi applicant seems to be concerned with presently unidentified, intangible or tangible Aboriginal cultural heritage, as well as protection measures.
Santos contends that the Additional Research Program, and the procedures provided in the Aboriginal Cultural Heritage Management Plan, including regular consultation with both the Aboriginal Cultural Heritage Advisory Group and Aboriginal Cultural Heritage Working Group, are adequate to meet such concerns. In addition, Santos has agreed to the imposition of a condition upon the Tribunal’s determination, which condition would require the completion of the Additional Research Program prior to the commencement of Phase 2 of the Narrabri Gas Project.
The Gomeroi applicant also criticizes the Aboriginal Cultural Heritage Management Plan, the New South Wales cultural heritage regime and the involvement of Local Aboriginal Land Councils, Registered Aboriginal Parties and Santos in the Aboriginal Cultural Heritage Advisory Group and Aboriginal Cultural Heritage Working Group. The Gomeroi applicant relies upon the evidence of Mr Kumarage and submits that the composition of the Aboriginal Cultural Heritage Advisory Group and the Aboriginal Cultural Heritage Working Group allow greater control to Santos, resulting in a lack of control by the Gomeroi native title claim group over their cultural heritage. Santos contends, in reply, that the casting vote on a committee does not equate to “control”. Indeed, the Gomeroi applicant seems to assume a level of likely disagreement amongst the committee representatives, for which there is little or no evidentiary support.
For the purposes of s 39(1)(f), it is difficult to understand how the perceived inadequacies of the Development Consent conditions, and the Aboriginal Cultural Heritage Management Plan can be taken into account by the Tribunal. The Gomeroi applicant has not explained the circumstances in which it contends that the Aboriginal Cultural Heritage Management Plan is not a voluntary agreement. It is a matter for the Gomeroi people to determine whether they wish to participate in the relevant processes. It seems that as late as March 2021, substantial agreement had been reached as to such processes.
The Gomeroi applicant submits that there is a lack of cultural heritage information, supplied by it for inclusion in the Aboriginal Cultural Heritage Assessment Report and, consequently, the Aboriginal Cultural Heritage Management Plan. This “shortcoming” is said to be due to the failure by Santos to provide sufficient information concerning the location of project infrastructure. Further, Mr Kumarage suggests the possibility that large tracts of the Santos project area could include intangible cultural heritage. I have previously explained that Santos’s flexibility in siting infrastructure contemplates preliminary verification of heritage sites so that such sites can be avoided. The need for the Additional Research Program identified by Dr Godwin, appears to have arisen out of a perception that Santos should identify its infrastructure locations before the Gomeroi applicant has identified any locations of concern.

3.5. Section 39(2)

The Santos project area includes non-native title interests such as private freehold lands, other extinguishing tenures, and existing Santos infrastructure such as the Leewood property, Bibblewindi water transfer facility and the Westport drillers camp, depicted on maps which have been provided to the Tribunal. Mr Dunn states in his affidavit that approximately 34% of the Santos project area is comprised of agricultural and pastoral land. Hence it seems that the Gomeroi people already enjoy only limited access to the Santos project area. The other areas, where native title may exist, include areas used currently for a range of purposes including forestry and mineral exploration. For example, Santos currently undertakes exploration and appraisal activities under existing approvals and tenements, including the construction and operation of appraisal pilot wells. Santos contends that other current uses of the Santos project area include agriculture, forestry, bee-keeping and recreation. The State has referred to the management of travelling stock routes and forestry plantations as examples of current non-native title uses of parts of the Santos project area.
The State asserts that the lands within the area covered by PPLA15 include an area controlled by the Yarrie Lake Public Hall Land Manager, Yarrie Lake Flora and Fauna Reserve Land Manager. Land within the Brigalow Park State Conservation area is managed and used in accordance with the Brigalow Nature Reserve Plan of Management.
Santos relies upon its “Native Title Audit Report” to contend that 53.78% of the Santos project area is comprised of areas where native title has been extinguished. Freehold land comprises about 36% of the Santos project area. This evidence is consistent with other evidence which suggests that native title may continue to exist over 45.6% of the Santos project area. Refer to the map at Schedule 2 to this determination. The Gomeroi applicant does not accept Santos’s conclusions regarding extinguishment, based upon Ashurst’s “audit”. However it has made no particular criticism of that audit. The Gomeroi applicant asserts native title rights and interests over State forest areas where native title has not been extinguished. The State contends that as the Forestry Corporation, under the Forestry Act 2012 (NSW), currently controls and manages lawful activities in the State forest areas, it is unlikely that the proposed grants will substantially increase impairment of the Gomeroi people’s access to the Santos project area.
Historical uses of the State forest areas, (for example, for timber harvesting), are similar to current use and are referenced in the evidence of the parties. See affidavit of Suellyn Tighe at [5], [7]; affidavit of Haydn Kreicbergs, exhibit HK-22. At para 46 of his affidavit, Mr Dunn deposes to a history of logging in the State forest areas, evidenced by extensive tracks and roads through those areas.
I accept the evidence relating to s 39(2). It suggests historical interference in the enjoyment of native title rights and interests. However loss of control must be balanced against any evidence of continuing enjoyment by the Gomeroi people of native title rights and interests, and other matters relevant to s 39(1).

3.6. Sections 39(3) and 39(4)

[1000]I note the content of s 39(3). As to s 39(4) I have caused enquiries to be made as to whether there are issues relevant to the determination upon which the negotiation parties agree. There no such issues.

3.7. Conclusions as to Section 39

[1001]In drawing conclusions in this matter, it is not possible that I refer again to all of the evidence. It is too diffuse and too voluminous.
[1002]Section 39(1) of the Native title Act prescribes matters to be taken into account in making a determination for the purposes of s 38(1). None of those matters, taken in isolation, will necessarily lead to a determination that the proposed grants may, or may not be made. Section 39(1)(a) focusses on the effect of the proposed grants. Obviously, identification of such effect involves an element of prediction, possibly informed by past events. However the relevant inquiry is as to the effect of the proposed grants on the matters identified in s 39(1)(a). Thus the Tribunal must inquire as to the extent of past and present usage, in order to determine whether the proposed grants may affect such considerations and, if so, the extent of such effect.
[1003]Section 39(1)(a)(i) refers to “the enjoyment by the native title parties of their registered native title rights and interests”. The other sub-paragraphs of s 39(1)(a) do not refer to “enjoyment”. However I am inclined to the view that ss 39(1)(a)(ii)-(v) deal with considerations which otherwise depend upon such rights and interests or are closely associated with them. It may be that use of the word “enjoyment” in s 39(1)(a)(i) was intended to demonstrate that the relevant effect was not simply inconsistency between rights conferred by the proposed grants and native title rights and interests.
[1004]Broadly speaking, ss 39(1)(b) to (e) refer to considerations that must be taken into account by the Tribunal as part of the balancing exercise between the competing interests of the parties, Aboriginal and Torres Strait Islanders living in the area and the public. Section 39(1)(f) is potentially very wide in effect, but its operation is narrowed by the Tribunal’s discretion to act upon or reject such “other matters” by reference to “relevance”.
[1005]The Gomeroi applicant has provided much information concerning use of the Pilliga by the Gomeroi people, particularly the evidence of the claim group deponents and Mr Kumarage. However there is very little evidence concerning the Narrabri Gas Project area or areas close to it. The claim group deponents provide information concerning Bohena Creek, the X Line Road, possible birthing places in the [REDACTED], the possible association of men’s business within that area and a reference to one burial site in the vicinity of the Santos project area. In the Aboriginal Cultural Heritage Management Plan, 90 sites are identified within the Narrabri Gas Project area. Those which are within the Narrabri Gas Project area will be treated in accordance with that Plan.
[1006]The Gomeroi applicant has not sought to demonstrate a significant effect on any of the considerations in s 39(1)(a). I have previously demonstrated the failure by the Gomeroi applicant to identify any association between the matters identified in para 208 of its contentions and the Santos project area. In particular, I stress that the coal seams identified in para 208(a) and 220(a) are located near Burning Mountain and the ranges out near Mururundi, about 150km from the Santos project area. I have dealt with the other sites identified in those paragraphs. None seems clearly to be located within the Santos project area.
[1007]Clearly, the evidence concerning sites in the Pilliga say nothing about the Santos project area. It is a clearly identified area about which the Tribunal might reasonably expect evidence concerning traditional activities, if the Gomeroi people were aware of any such activities.
[1008]The difficulty for the Gomeroi applicant is that there is virtually no evidence of effect upon relevant considerations for the purposes of s 39(1)(a) within the area which will be affected by the proposed grants. Whilst there is evidence relevant to the Pilliga, the lack of evidence concerning activity within the Santos project area makes it difficult to draw inferences as to any relevant effect. As to s 39(1)(a)(v), there are few, if any, sites said to be of particular significance on the land and waters concerned and within the Santos project area.
[1009]There is, as far as I can see, little or no evidence concerning the matters raised in ss 39(1)(a)(ii) and 39(1)(a)(iii).
[1010]Much has been said about access to “land or waters concerned”. See s 39(1)(a)(iv). At para 167 of his report, Mr Kumarage states that “from a traditional owner’s perspective”, the well sites would be occupying a significant proportion of the habitat of ancestral spirits, other supernatural beings and associated tracks and activities. This proposition would carry substantially more weight if there were evidence as to the extent to which the Santos project area presently accommodates, or is said to accommodate such habitats and associated tracks and activities, save for the map at page 29 of Mr Kumarage’s report. If there were any history of rites, ceremonies or other cultural activities associated with the Santos project area, one would expect that such matters would have been identified in the Gomeroi applicant’s evidence. As to well head sites, it is difficult to accept Mr Kumarage’s bare assertion that “from a traditional owner’s perspective”, the well heads would be occupying a significant proportion of such areas. Mr Kumarage does not explain his views (attributed to traditional owners) or the basis for such asserted significance, particularly having regard to the staggered nature of the Narrabri Gas Project.
[1011]As to s 39(1)(a)(v), As I have previously stated, most of the sites identified in para 208 of the Gomeroi applicant’s contentions are not said to be located within the Santos project area. Even those identified by Ms Tighe as associated with that area are uncertain as to location. The absence of particularity concerning location significantly detracts from such sites being identified as being of particular significance for the purpose of 39(1)(a)(v).
[1012]With respect to s 39(1)(b), I have recorded the Gomeroi applicant’s strong wish that the proposed grants not be made, unless they are in terms agreed by the Gomeroi applicant (or the native title claim group). However such a wish must be considered in light of the other factors in s 39(1).
[1013]Pursuant to s 39(1)(c), I have also identified the potential benefit to the region, the State and Australia, if the proposed grants are made. I acknowledge that there may be some increase in gas emissions which, in time, will contribute to adverse impact upon the climate, worldwide. There is no evidence of any particular adverse effect upon the Gomeroi people, their native title rights and interests or the Santos project area.
[1014]Sections 39(1)(c) and 39(1)(e) may be considered together. There can be no doubt that there is a demand for gas from the Narrabri Gas Project. It seems unlikely that either the State or Santos would otherwise have devoted undoubtedly substantial resources to the project. The proposed grants are of economic significance to Australia, the State and the region, as well as Aboriginal people. Whilst there may be some degree of risk associated with the project, there can be little doubt that the State and Santos have made substantial efforts to minimize the risk. One cannot simply dismiss scientific and engineering experience. Nor is it practicable for the Tribunal to second-guess State agencies in the performance of their prescribed functions, even when faced with Professor’s Steffen’s undoubted expertise, and the information provided by international agencies. In a democracy experts advise, but governments make final decisions and accept political responsibility for the consequences of such decisions.
[1015]Aspects of the public interest may be in conflict. Whilst the development of gas resources may be in the public interest, possibly adverse consequences may not be in the public interest. In the present case, the risk of escaping gas and contribution to climate change are factors for consideration, as is, particularly, the public interest in the preservation of Aboriginal culture and society.
[1016]The 1998 Act removed the consideration of environmental considerations from the s 39 decision-making process, save when there is a particular effect on native title. There is no apparent matter having such particular effect in this case. Whilst there may be a public interest in the consequences of exploiting gas reserves, there is no doubt that the State, in particular, and the Commonwealth have acted in accordance with State and Commonwealth law.
[1017]As to s 39(1)(f), I have dealt with the contentions concerning the desirability of a voluntary regime protecting cultural heritage values. I have also discussed the significance of climate change which is discussed in connection with ss 39(1)(c), (e) and (f). As to that matter, even if one takes the approach taken by Santos and the State, rather than that which I prefer, having regard to the 1998 Act and the explanatory memorandum, it is difficult to attach much weight to the public interest, beyond that attributed to it in any consideration of s 39(1)(c). Section 39(1)(f) is of no relevance, given that there is no suggestion of particular environmental concerns producing particular effects on native title.
[1018]It is not necessary that I say anything more about ss 39(2), 39(3) or 39(4).
[1019]In assessing the s 39 criteria, significant weight must be given to s 39(1)(a)(i). The failure by the Gomeroi applicant to address the effect upon the enjoyment of its native title rights and interests is of some importance. The matters identified in ss 39(1)(a)(ii) and (iii) are closely associated with such enjoyment. The Gomeroi applicant’s failure to distinguish, between the native title claim area and the Pilliga on one hand, and the Narrabri Gas Project area and the Santos project area on the other, is also of considerable importance.

[1020]Concerning s 39(1)(a)(iv) Mr Kumarage places great weight upon access as being essential to the exercise of native title rights and interests and associated matters. However any difficulties in access are restricted to the Narrabri Gas Project area, including the Santos project area. In those locations, there may be some limitations on access, as the result of fencing for purposes of safety and security. However the extent of such fencing will be limited. As to s 39(1)(a)(v), there is very little, if any evidence as to the existence of areas or sites of particular significance.
[1021]Concerning s 39(1)(b), the Gomeroi has, in the end, taken a hard line in its participation in the s 31(1) negotiation process. Its current position is that there should either be a determination that the proposed grants not be made, or a determination on terms of which it approves. Such an approach makes negotiation difficult. However it also demonstrates that whatever the Gomeroi applicant’s preference might previously have been, it will no longer agree to the proposed grants.
[1022]As to the economic and other significance of the Narrabri Gas Project, Santos has identified the considerable worth of the project to the Narrabri area, the State and the Commonwealth. The Gomeroi applicant chose to base its opposition primarily upon climate change, and by its reference to unclear assertions concerning the “involuntary” nature of the development consent process. Given the extensive consideration of the climate change issue by the State, it is obvious that any decision reached by the State or its agencies should be respected. There is no reasonable basis upon which the Tribunal could justify any preference for Professor Steffen’s evidence and the views of United Nations agencies over the State’s decision. Whilst there is, no doubt, a public interest in climate change, the intentions underlying the 1998 amendments are clear.
[1023]As to the Gomeroi applicant’s concern with the non-voluntary nature of the development consent process, such concern seems to be focussed upon the operation of the Aboriginal Heritage Management Plan. The State required that such plan be incorporated into the development consent. Pursuant to the Plan, the Gomeroi applicant is represented on the Aboriginal Cultural Heritage Advisory Group and the Aboriginal Cultural Heritage Working Group. It has clear opportunities to express its views. It may be that the Gomeroi applicant’s concerns relate to the representation of other Aboriginal groups on those bodies.
[1024]I accept that the Gomeroi applicant has genuine concerns about the recognition and protection of its native title rights and interests, and the associated matters identified in s 39. It is unfortunate that the parties have been unable to agree. I attribute such failure, at least in part, to confusing expert evidence. In any event, the Tribunal must now resolve the matter. There can be little doubt that there is a significant public interest in the responsible exploitation of gas reserves. Substantial resources have been expended by the State and by Santos in ensuring such responsible exploitation. Whilst I understand the Gomeroi applicant’s concern, I consider that, having regard to the matters set out above, its concerns are outweighed by the public interest.

Conditions

[1025]The considerations prescribed by s 39 of the Native Title Act have been identified as providing an, “indication in broad terms” as to the appropriate subject matter of conditions which the Tribunal might impose upon, in this case, the proposed grants. See Walley v Western Australia[120] at [13]; Evans v Western Australia[121] at 213; Minister for Mines (WA) v Evans[122] at 283. Clearly, s 38(1) offers three options.
[120] (1999) 87 FCR 565.
[121] (1997) 77 FCR 193.
[122] (1998) 163 FLR 274
[1026]Section 38(2) provides:
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)the amount of profits made; or
(b)any income derived; or
(c)any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

[1027]The Tribunal is also prohibited from making a determination as to compensation to be paid to a native title party under Div 5 of the Native Title Act. See s 50 of the Native Title Act. The Tribunal may, however, impose a condition that the estimated amount of any future compensation award be paid into trust, or be secured by bank guarantee, until a determination as to compensation is made by the Federal Court. See ss 41(3), 41(5) of the Native Title Act.
[1028]In late 2021 and early 2022 the parties exchanged correspondence concerning conditions which might be imposed on any determination that the proposed grants be made. On 7 October 2021, Mr MacLeod wrote to Mr Baldock (Santos), listing conditions which the Gomeroi applicant would seek to have imposed “[i]n the event that the Tribunal takes the view that the future acts may be done.” Mr MacLeod stated that the proposed conditions were, “based on the offer from the Grantee Party and the Native Title Party”, but included “other conditions which will be sought by the Native Title Party”. The letter was not sent to the State. Thirteen conditions were proposed by the Native Title Party. As the Gomeroi applicant suggested, some of those conditions had not previously been discussed.
[1029]On 20 December 2021, Ashurst replied to Mr MacLeod’s letter of 7 October. It stated that “[Santos does not] consider that a determination by the National Native Title Tribunal that the petroleum production leases required for the Narrabri Gas Project may be granted, should be subject to any conditions.” Nonetheless, it said that Santos “[intended] to fulfil, in broad terms”, the commitments it had made in its offer of 29 March 2021.
[1030]At the directions hearing on 7 February 2022, the Gomeroi applicant was directed, by close of business on 14 February 2022, to “advise the other Parties and the Tribunal in writing as to the specific conditions which it [sought] to have imposed on any condition.” Santos and the State were directed to respond to the Gomeroi applicant’s proposed conditions by close of business on 21 February 2022. On 14 February, the Gomeroi applicant provided a list of 63 conditions which it sought to have imposed on any determination that the proposed grants be made.
[1031]On 22 February 2022, Santos provided a list of 22 proposed conditions, as well as a “comparison” of its conditions with those proposed by the Gomeroi applicant. It is evident from the comparison that Santos did not accept most of the Gomeroi applicant’s proposed conditions. Of those which were agreed, many were subject to apparently minor proposed changes. The predominant reason cited by Santos for disagreeing with the Gomeroi applicant’s proposed conditions, was that such conditions were generally, already, provided for in, or had already been performed in accordance with, the Development Consent and/or Aboriginal Cultural Heritage Management Plan. Of particular note are two conditions, relating to a trust and an environmental bond, which conditions were rejected by Santos on the basis that it “[did] not accept there [was] any basis for the inclusion” of such conditions.
[1032]Condition 52 would have required that Santos “pay $36,000,000 into trust until it is dealt with in accordance with s 52A” of the Native Title Act. No attempt has been made to justify the imposition of any such condition in the absence of agreement. Such trusts have been, only rarely, imposed. The Gomeroi applicant’s reference to s 52A suggests that the payment was to be by way of compensation to be determined by the Federal Court. See Jax Coal Pty Ltd v Smallwood[123] at [54]. No explanation is offered as to the basis upon which the figure was calculated. In the absence of evidence as to the appropriate amount, or as to any concern that Santos may not be able to pay compensation when and if awarded, I consider that such a condition would be inappropriate.
[123] (2011) 260 FLR 99.
[1033]Item 53 in the Gomeroi applicant’s proposed conditions would have required Santos to provide security for remediation or rehabilitation of the Santos project area. It seems that there is a State requirement for some such security arrangement. However the Gomeroi applicant seek an additional amount equal to 15% of the amount required by the State. No justification has been advanced for such further security. In those circumstances, I decline to make such an order.
[1034]I have previously referred to Santos’s willingness to accept a condition that the Additional Research Program, referred to in the evidence, be completed prior to the commencement of Phase 2 of the Narrabri Gas Project, rather than within twelve months after its commencement. I shall impose such a condition.
[1035]On 23 February 2022, the State provided a “short note” addressing the Gomeroi applicant’s proposed conditions. Its “principal point” was the inclusion of a condition to the following effect:
Where there is a conflict between these conditions and the terms of the Development Consent [dated 30 September 2020], such that both cannot be complied with, the requirements of the Development Consent prevail.

This condition was intended to allay the State’s concern that “[m]any of the [Gomeroi applicant’s] Proposed Conditions touch on or repeat elements of the Development Consent”. The State also requested other minor changes. As I propose only to impose a term concerning the Additional Research Program, the above proposed condition will be unnecessary.
[1036]On 21 April 2022, Santos provided a “revised set” of proposed conditions, which included an additional condition, “addressing the timing of the Additional Research Program as well as some other refinements to the [22 February 2022] proposed conditions”.
[1037]On 13 October 2022, in response to the Tribunal’s inquiry, the parties advised that there is no agreement as to any conditions.
[1038]In the circumstances, no clear case has been made out for the imposition of any conditions, save for that concerning the Additional Research Program referred to in the determination.
[1039]Condition B59 of the Development Consent required that Santos prepare an Aboriginal Cultural Heritage Management Plan. Condition B60 required that Santos implement that plan, once it was approved. Such approval was granted on 15 March 2022. Paragraph 5.7 of the Cultural Heritage Management Plan provides:
5.7 Additional Research Program
To further Santos' commitment to adopt the Precautionary Principle as it relates to the management of impacts on Aboriginal cultural heritage, supplementary research will be undertaken in consultation with the Aboriginal community to confirm existing data sets for places of Aboriginal cultural heritage and, where it proves necessary, augment data.
This will be done by the conduct of an Additional Research Program. The aim will be to collate a body of data on places and values that can be integrated into general Project planning such that the locations where these places and values are identified can be managed by the Avoidance Principle.
A research program targeting places and values of particular traditional, anthropological, historical and contemporary significance to Aboriginal people will be developed and completed within 12 months of commencement of Phase 2.

[1040]It is now proposed that Santos complete the Additional Research Program prior to the commencement of Phase 2 of the Narrabri Gas Project. It may be arguable that the third clause of para 5.7 requires that the program be commenced, as well as completed within the 12 month period. However the better view is that the program may start at any time, although it must be completed within the stipulated period. Santos is willing to both commence and complete the program prior to the commencement of Phase 2. Such a result would seem to be consistent with the existing requirements, as well as the proposed change to such requirements.
V DETERMINATION
[1041]The National Native Title Tribunal determines that the proposed future acts, pursuant to the Petroleum (Onshore) Act 1991 (NSW), being the grants of Petroleum Production Lease Application Numbers 13, 14, 15 and 16 may be done, subject, in each case, to a condition, pursuant to s 38(1)(c) of the Native Title Act 1993 (Cth), such condition being that Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd) take all necessary steps to ensure that the Additional Research Program, identified in para 5.7 of the Narrabri Gas Project Aboriginal Cultural Heritage Management Plan dated 21 February 2022, be implemented and completed prior to the commencement of Phase 2 of the Narrabri Gas Project, pursuant to the Development Consent granted by the Independent Planning Commission of New South Wales on 30 September 2020.

The Honourable J A Dowsett AM KC
President
19 December 2022

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 5