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

Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 | Case summary | Zoe

[88]

(a) Groundwater and agriculture: The IPC imposed conditions requiring further information to improve the groundwater impact modelling before the Project proceeds to Phase 2. The imposed conditions relating to groundwater do not permit Santos to establish the production field (Phase 2) if the revised groundwater model predicts an exceedance of the water management performance measures identified in the consent. The IPC put the burden of proof on Santos to demonstrate any adverse direct impact to water supply is not due to its activities and strengthened the obligation to supply compensatory water or provide other compensation for attributable impacts. Santos must develop a Water Management Plan to be approved by the Planning Minister addressing water management performance measures including negligible changes to groundwater level and quality, a negligible change to surface water quality in any watercourse, and implementation of all reasonable and feasible measures to minimise risk of leaks and spills.

(b) GHG Emissions: The IPC acknowledged it had received submissions that the direct emissions of the Project had been underestimated, 'which would jeopardise the expected greenhouse gas emissions advantage of CSG over coal'. As such, the IPC imposed a condition requiring that Santos ensure all reasonable and feasible avoidance and mitigation measures are employed so that greenhouse gas (GHG) emissions generated do not exceed certain criteria listed in its reasons. The IPC also required Santos develop cumulative maximum forecasts over the 25-year lifetime of the Project and it must monitor and publicly report on the actual GHG emissions against those cumulative forecasts and ensure that any exceedances are 100% offset within one year after the reporting periods. The IPC only considered 'Scope 1' and 'Scope 2' emissions finding that that 'Scope 3' emissions were outside the direct control of Santos and therefore not able to be reasonably conditioned.

(c) Biodiversity: The IPC acknowledged the high biodiversity value of the Pilliga but found that the Project would take place in a portion only. The IPC considered the relevant guidelines and offsets, along with the Santos' proposal for dealing with vegetation fragmentation, and found that with the imposition of conditions it was satisfied the Project would provide for the 'appropriate management, mitigation and monitoring of the potential biodiversity impacts'. The conditions require that well pads be placed a certain distance apart, that infrastructure avoid certain identified conservation areas and water resources, and that the total area of disturbance be limited. The conditions also attempt to limit the extent of disturbance by requiring that impacts to identified ecosystems be offset through a 'biodiversity credit' system.

(d) Waste Management: The IPC considered the Project's waste generation and management and imposed conditions requiring Santos develop appropriate arrangements for the disposal of waste, a waste management plan and minimise the on-site storage of waste. The IPC noted that enforceability of these conditions had been confirmed by the NSW Environment Protection Agency.

(e) Aboriginal Cultural Heritage: The IPC was satisfied that the Aboriginal Cultural Heritage Assessment and consultation has been undertaken in accordance with the relevant guidelines. Several conditions were imposed, including that the Project not directly or indirectly impact heritage items identified in the consent, and providing processes surrounding the discovery of, or suspicion of, Aboriginal objects or places during the Project. The conditions also provided for the creation of an Aboriginal Cultural Heritage Advisory Group and the development of an Aboriginal Cultural Heritage Management Plan.

(f) Bushfire risk: The IPC identified four bushfire risks posed by the Project, being: fire ignition risks posed from flaring activities; hazards posed by methane (CH4) gas in the event of a bushfire; risks to the facility from catastrophic bushfire events; and potential increases in the frequency and severity of bushfire events due to climate change. The IPC imposed a condition requiring that the safety flare stack be 50 m in height, which along with appropriate clearance measures, and the development of Bushfire Management Plan, they found would render bushfire risks manageable.

(g) Economic Impacts: On balance the IPC found the Project will provide a net economic benefit for the local community, region and State including through potentially improving gas security for Australia's east coast domestic market. The IPC based its finding on the economic modelling found in the Environmental Impact Statement as assessed by the Department of Planning and Environment and the Department's independent expert.

(h) Social and health: The IPC found that the Project was unlikely to be a source of significant physical health impacts, and that conditions could secure and enhance local community services and facilities. It imposed a condition that Santos develop and implement a Social Impact Management Plan.

[91]

[11] On 1 May 2024, the panel were appointed. The panel convened a preliminary conference in this matter on 24 May 2024. At the preliminary conference the parties indicated they may wish to submit further contentions and evidence. As such, the Tribunal made directions allowing all parties to lodge any statement of contentions they wished to make addressing the request to submit further evidence on or by 7 June 2024. At the request of the parties, the Tribunal also convened a short hearing on 1 August 2024 for oral submissions on the issue.
[12] Following the oral hearing, and having considered all the material before it, the panel was satisfied it was appropriate to permit limited further evidence be adduced. On 9 August 2024, parties were provided with a draft of the proposed directions, with reasons for decision, and given the opportunity to comment. Final directions were then issued on 19 August 2024. Such directions provided each of the parties may concurrently lodge one expert report addressing any topic related to climate change and relevant to the matters the Tribunal must consider in this inquiry. The native title party was also directed to provide updated lay evidence of its three witnesses who gave evidence in the initial inquiry, relating to the effect of climate change impacts caused by the proposed grant of the leases.
[13] Parties were given the opportunity to make submissions outlining any basis upon which they were of the view that the remitted inquiry cannot be adequately determined on the papers per s 151 of the Native Title Act. On 3 December 2024, the native title party and grantee parties provided submissions. Following a case management conference on 9 December 2024, the panel made directions for a conclave of experts, further submissions and a hearing. The reasons for this decision were provided to parties on 19 December 2024.
[14] On 17 January 2025, the panel conducted a conclave of experts. The conclave was held in two parts, with Professor Karoly and Doctor Mitchell addressing the topic of climate change science, and Messrs Kelp and Mudge addressing the topic of energy markets.
[15] After consultation with parties, an oral hearing was listed on 14 February 2025. Following the oral hearing, and having regard to submissions made by the parties, the panel considered the issue of whether any additional evidence should be permitted. The panel decided that no further evidence, including any further responsive expert evidence, was required. On 21 February 2025, a letter was circulated to parties providing reasons for this decision.
[16] The evidence in this matter has been extensive. In addition to the voluminous material put before the Tribunal in the 2022 Determination, the parties lodged the following updated or further material:

[94]

[21] As set out above, the 2022 Determination was set aside by the Full Court and remitted to the Tribunal to be determined afresh by this panel, save that the parties are precluded from making any claim that any other party did not negotiate in good faith.
[22] In accordance with the Orders of the Full Court, no party made any claim relating to good faith in the remittal and the panel is not prevented from making a determination on the applications per s 36(2).
[23] The panel has had regard to all of the evidence and material put forward by the parties in the 2022 Determination, including the transcripts of oral hearings, save for any such evidence which solely related to the issue of good faith. The panel confirmed with the parties that this would be the approach adopted, and parties were invited to address their contentions to all of the evidence and material before the panel, that is; any evidence adduced in the 2022 Determination together with any additional evidence lodged over the course of this inquiry.
[24] The panel is not bound to make the same findings made in the 2022 Determination; that depends on the view formed by this panel conducting the remitted inquiry.[35] Further, the parties on a remittal hearing are entitled to put arguments not raised on the original application and are not limited to matters raised on the appeal.[36] In some instances, counsel for Santos and the State appeared to suggest the panel could not disturb findings made in the 2022 Determination where such findings were not raised in appeal, however this submission is incorrect.[37] In respect of this remittal, the Tribunal is required to take into account all of the evidence before it relating to all the factors set out in s 39.
[25] Further, as noted by the Full Court in the remitter, the Tribunal ought as a matter of general principle be considering what is the correct outcome on the most up to date and relevant material available to it.[38] The panel must make the correct and preferable decision having regard to the law and facts as it stands at the date of the remittal hearing, not as at the date of the original decision.[39]

[98]

sub-section, including when considering sub-paragraphs (1)(c), (e) and (f), depending on the evidence before it.

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

[99]

[37] As noted previously at [1], the leases comprise of an area approximately 924 sq km. Approximately 70% of the total area of the leases overlap the northeastern portion of a broader area known as the Pilliga. The Pilliga is described as a conglomeration of forested areas that total more than 500,000 hectares or [50]00 sq km.50 The leases overlap approximately 13% of the Pilliga, not an insubstantial portion.
[38] The Project is the construction, operation and subsequent decommissioning of a gas field which includes refining facilities, gas and water processing and associated infrastructure.
[39] Gas is to be extracted from coal seams between 300 and 1200 metres below ground, depending on the formation.[51] This would be produced from up to 850 new wells on a maximum of 425 well pads[52] with a footprint that may affect up to approximately 10 sq km of native vegetation within the broader 950 sq km Project area.[53] This 10 sq km area is asserted by Santos to be conservative, providing an upper limit to vegetation disturbance which they say is more likely to be 27-67% of this upper limit.[54]
[40] Santos state that the general location of each well would be dependent on the location of gas reserves[55] with specific location being subject to a Field Development Protocol which considers geological, environmental, heritage, hydrological and other factors, including conditions imposed by the IPC. Santos gives evidence that location decisions would also include consideration of existing infrastructure such as roads and tracks for co-location.[56] Santos contend that existing access tracks are extensive due to previous timber harvesting and gas exploration occurring since the 1960s.[57]
[41] Following the identification of well pad location, Santos describe a process labelled 'micrositing' whereby detailed site surveys are undertaken to minimise the risk to ecological and heritage features. It is said that this process provides flexibility to relocate infrastructure in the event Aboriginal sites or sensitive areas are identified.[58]
[42] Santos gives evidence that each new drill pad requires the clearing of approximately 1 ha of land (100 by 100 metres) for installation,[59] this cleared area is reduced to approximately 50 by 50 metres six months following installation and then the area is fenced.[60]
[43] Water is proposed to be extracted from each well reducing pressure and allowing the liberation of gas. The water located in the Project area has a salinity approximately 40% that of ocean water.[61] This water and gas is intended to be transported via field pipelines to either the Leewood central gas processing facility or if from the southern portion of the field, to the Bibblewindi infield compressor station, which located within PPLA13 in the Pilliga forest, before then being piped to the Leewood facility for final processing.[62] The Leewood facility is located outside of, but contiguous to, the Pilliga forest.
[44] Santos gives evidence that pipelines will be placed a minimum of 750 mm underground and 'where practical' will be co-located along existing roads and access tracks[63] indicating some clearing for pipeline purposes will also be necessary.
[45] Prior to the installation of gas field infrastructure, a Field Development Plan is required to be developed[64] to be approved by the Planning Secretary of the Department of Planning, Housing and Infrastructure.[65] According to Condition D8 of the IPC Development Consent, Santos is required to submit an annual review of environmental performance and be audited for environmental performance after one year and then every subsequent three years.[66]
[46] The Project is said to occur over four phases where Phase 1 is final planning, further exploration and appraisal activities and installation of ancillary infrastructure, Phase 2 is developing the field itself (drilling, infrastructure development), Phase 3 is operation and Phase 4 is decommissioning.[67]
[47] When wells are decommissioned, Santos gives evidence that they are to be plugged and isolated through the use of cement as the sealing material by filling the total depth of the well.[68] This, Santos asserts, ensures protection of groundwater resources and isolation of coal seam formations from other formations.[69] Further rehabilitation work is required consistent with development consent conditions set out by the IPC.[70]
[48] Due to the nature of the Project, emissions are a key component of both its operation and this consideration. In accordance with Australian and international standards, emissions are expressed as scope 1, 2 or 3. Scope 1 emissions are those that are released directly from or by the operations of a project, scope 2 are indirect emissions generated from the operation of a project through the consumption of energy from external sources and scope 3 are indirect emissions that occur outside of the boundary of a project or organisation that are a result of the actions of that organisation or project.[71]
[49] Emissions estimates are provided in the EIS. At the outset the panel notes that the figures referred to in the EIS in relation to the GHG emissions estimates appear at Appendix R, which is dated August 2016 and based on data from 2013-2014. Unfortunately, no updated evidence on emissions estimates was led, nor sought to be led, by Santos in relation to the Project so the evidence available to the panel is now approximately 10 years old.
[50] The scope 1 figures contained in the EIS provide emissions broken into three stages of the Project being construction, operation and decommissioning and across six categories of emissions in each of these stages being fuel combustion for electricity generation, flaring, venting, carbon dioxide (CO2) venting, fugitive emissions and vegetation clearing. These are further expressed in two options, option 1 where electricity is self-generated or option 2 where electricity is sourced from the national grid.[72]
[51] Across these stages and categories, estimated annual scope 1 emissions for option 1 is 0.96 million tonnes (Mt) of carbon dioxide equivalent (CO2-e) per annum, totalling a cumulative 26.3 Mt over the life of the project. For option 2, the estimated annual scope 1 emissions is 0.53 Mt CO2-e per annum or a cumulative 15.5 Mt over the life of the project.[73]
[52] If option 2 is preferred, scope 2 emissions for the project are estimated at 0.72 Mt

[104]

[56] Section 85 of the NPW Act provides that the Chief Executive is responsible for the protection of Aboriginal places and objects with s 86 of the NPW Act setting out offences for harming or desecrating Aboriginal objects or places. Gomeroi contend that under the NPW Act there is little protection of intangible Aboriginal cultural heritage and that it does not function to allow Aboriginal people to enforce the protections of culture and heritage.[77] The Gomeroi contentions describe how the regime functions in a way that appears to be similar to other heritage protection regimes around the country; that is by relying on deterrence by operating punitively following the occurrence of harm rather than identifying and protecting intangible cultural heritage before damage occurs. [78]
[57] Santos also notes the NPW Act provides a general regime for the protection of Aboriginal cultural heritage in NSW principally by establishing offences for harm to Aboriginal objects and places as well as establishing the Aboriginal Heritage Information Management System database to record Aboriginal objects and places.[79] Similar databases are in existence in other states and territories across Australia. Santos also explains that Aboriginal places and objects may also be separately listed on the State Heritage Register established under the Heritage Act 1977 (NSW).[80] Gomeroi contend that AHIMS may not include certain sites of importance to them for various reasons and Santos does appear to acknowledge this.[81]
[58] Santos contends that the Project is also subject to extensive conditions under the IPC Development Consent pertaining to the protection of Aboriginal cultural heritage, which are all reflected in the ACHMP which has been developed by Santos in consultation with Gomeroi people.[82] The State also points to the conditions under the IPC Development Consent as mitigating risk to Aboriginal cultural heritage by the Project.[83]
[59] While the State initially made contentions about its cultural heritage protection regime within GVP Amended Contentions at [30] to [36], strangely the State resiled from those statement (amongst many others from the GVP Amended Contentions) and stated they should not be taken into account.[84] In fact, in the updated version of the GVP Amended Contentions lodged on 8 November 2024, those paragraphs were redacted from the document. It is unclear to the panel why this choice was made by the State, but it appears that State has resiled from the statements made in those redacted paragraphs and the panel has not taken them into account.
[60] Relevantly, s 5 of the NPW Act states:

[119]

[77] This theme alone gives rise to a significant body of evidence addressing both the direct and indirect impacts of the proposed future acts.
[78] Mr Booby describes springs and river systems in a way which highlights their vital role in the carriage of water to sustain the natural ecosystem.[91] This evidence also shows that the native title party associates a component of the cultural significance of the Pilliga itself to the fact that the area contains so many waterways.[92] This notion was addressed in the affidavits lodged in the 2022 Determination and in this remittal.[93]
[79] Within this theme, a significant body of information is provided surrounding the importance of Bohena Creek. This is a seasonal waterway that runs from south to north through the entirety of PPLA13 and a significant portion of PPLA15. It is understood that most, if not all, of the remainder of the leases, that is PPLA14 and PPLA16, are within the catchment of Bohena Creek, which runs into the Namoi River rear Narrabri, which then flows into the Barwon River at Walgett and ultimately into the Darling River near Bourke.
[80] While Bohena Creek is seasonal and is for a large part of the year a dry bed, it is not an inconsequential waterway. While the width of the bed looks to generally be around 30-40 metres, it also looks to reach in excess of double this in parts of PPLA13 and PPLA15. Additionally, according to Gomeroi evidence, although it may be dry for significant parts of the year, the creek retains water which can be accessed through digging.[94]
[81] This phenomenon is described as the waterway being an 'upside-down' river[95] or an underground river,[96] although this term is also used to refer to springs and aquifers.[97] Ms Tighe describes the origin of this in cultural terms and in doing so, makes a culturally based point about respect for water which underscores the evidence provided by all the Gomeroi witnesses on this topic.[98]
[82] Ms Tighe also points to important cultural responsibilities for water and water sources in and for one's own country, and for those peoples who are downstream and receive water from Gomeroi land.[99]
[83] In the 2022 contentions, Gomeroi contended that '[w]ater, both above and below ground is of great cultural and spiritual significance to the Gomeroi people.'[100] Summarising the evidence, the native title party points to evidence deposing that water, water courses and water bodies have spiritual significance and value, ceremonial association, and provide drinking water while accessing the area.[101] Gomeroi also submit that the exercise of their native title rights and interests 'such as practicing ceremony, hunting, fishing and gathering natural resources, flora and fauna is dependent on the health of the river systems and waterways'.[102]
[84] It is clear from the evidence provided that the Gomeroi place great value in water and the water resources of the Pilliga and Project area, and the panel accepts such evidence.

[124]

[90] What is evident from Professor Karoly's expert report is that there is a real and measurable increase in extreme weather events linked to climate change, both in the number of days of extreme temperatures per year, as well as an increase in days of heavy rain in the Narrabri region. Offset from this are periods of drier than usual weather. This paints a picture of a landscape that is likely to be placed under stress through increasing extremes in weather patterns, with increased risk of both wildfires during dry and extreme hot weather, as well as floods during increased periods of heavy rainfall.
[91] Only portions of Professor Karoly's evidence were contested by the other parties. There was a broad consensus between the experts for Gomeroi and Santos during the conclave regarding the current climate science. The State did not lodge its own evidence on this issue or contest these aspects of the evidence. Santos however did lodge written contentions pointing to the lack of scientific consensus in relation to the use of IPCC models at a project specific level, and suggested the Tribunal should place limited weight on it.[108]
[92] Professor Brendan Mackey provided expert evidence for Gomeroi concerning the ecological risks posed to the Pilliga by the impacts of climate change. Professor Mackey provides a useful characterisation of these impacts as acute and chronic, where acute impacts are those that involve extreme events such as bushfire, floods, heatwaves and storms, while chronic are those which arise slowly through impacts such as temperature increases and shifting patterns in rainfall seasonality. Professor Mackey states that these acute and chronic impacts are related in that chronic impacts, otherwise known as climate trends, drive an increase in the frequency, severity and duration of severe acts.[109]
[93] Professor Mackey notes that the climate risks to biodiversity are a function of the climate hazards themselves, the extent of exposure to these hazards and the vulnerability of the species or system. Professor Mackey further states that this vulnerability is a function of current conservation status and condition of habitat, relative to the extent it has been degraded.[110]
[94] With this framework, Professor Mackey's evidence focuses on threatened species and communities, and gives evidence that there are 107 species and ecological communities that are listed as threatened under the Biological Conservation Act 2016 (NSW), 53 of which are similarly listed in the Environmental Protection and Biodiversity Conservation Act (1999) (Cth) that are found within the Pilliga region.[111] Given climate hazards and other types of environmental degradation, Professor Mackey concludes these species and communities are highly vulnerable and are at high risk from climate change impacts.[112]
[95] Professor Mackey also provides evidence on water, stating that in his expert opinion the Project will to some extent, directly and indirectly impact on the region's water resources and therefore impact on biodiversity. This, Professor Mackey states, will be due to:[113]

[131]

[103] Consideration of this criterion is focused on the effect of the act on the enjoyment of the registered native title rights and interests through examination of the evidence relating to the enjoyment of these rights in the area, and considering the characteristics of the future act and the effect these may have. The Tribunal is directly concerned with the effect of the future act, but this effect must be considered in the context of the whole Project.[121]
[104] While the parties make various remarks on what the Tribunal should assume regarding the exercise of native title rights and interests, the panel makes no assumptions about whether particular rights and interests are or are not practiced, or whether there will or will not be particular effects. Rather the assessment of the effects is determined on the evidence before the Tribunal in each case.[122]
[105] Gomeroi refer to the list of rights and interests that are within the Register of Native Title Claims and contend they are currently exercised and enjoyed in the lease areas.[123] Gomeroi also contend that it may be assumed that these rights are practiced throughout the claim area as they have been established on a prima facie basis when claim registration occurred.[124]
[106] Much of the evidence from Gomeroi regarding the enjoyment of native title rights and interests relates to the broader Pilliga. Nonetheless, while the portion of the overall Pilliga overlapped by the leases is relatively contained, being around 13% it is not insubstantial. Further, the registered Gomeroi claim area overlaps the leases entirely.
[107] In the statements provided, Gomeroi witnesses provide evidence as to visitation to the Pilliga for the teaching of cultural knowledge and the collection of bush foods,[125] to collect materials for and to manufacture traditional tools,[126] and to collect ochre.[127] Some of the descriptions of the collection of bush foods are from the western side of the Pilliga, some 50 km from the areas overlapped by the leases.[128]
[108] Gomeroi contend there are two main areas of impact on the enjoyment of registered native title rights and interests, the physical impact of the construction and operation of the Project, and the impacts of climate change as a result of the operation of the Project.
[109] In regard to physical impact, Gomeroi contend that the exercise of native title rights and interests is predicated on the ability to access country and sites.[129] Referring to the evidence of Mr Kumarage, Gomeroi contend that infrastructure associated with the Project will permanently affect landscape values and entirely prevent Gomeroi people's access to parts of the Project area due to the fencing that is proposed to be erected around facilities.[130] Gomeroi further argue that, while some areas will remain accessible, the dispersed nature of the Project Santos have outlined will have effects on the entire landscape.[131]
[110] In addition, Gomeroi contend the Project will have a permanent effect on the area due to above and below ground infrastructure that will remain in situ permanently,[132] including well caps that would remain in place 1.5 m below the ground, and likely also piping infrastructure.[133] Gomeroi further contend that physical impacts may include a loss of flora and fauna due to habitat loss and the promotion of feral pests and predators.[134]
[111] Further risks related to potential contamination or spills are also raised, addressed in the statements of Gomeroi witnesses surrounding a saltwater spill that occurred in 2011.[135] This evidence focuses on water and water health, and reinforces the strongly held belief that the ability to practice native title rights and interests for the Gomeroi is dependent on the health of the river systems and waterways.[136]
[112] The submissions going to climate change largely address the effect of the act on the exercise of native title in the broader native title claim area.[137] Although consideration in this criterion is generally taken to be within the footprint of the future act, the Native Title Act itself makes no restriction on geographical area. While other parts of s 39 and s 38 of the Native Title Act refer to the lands and waters affected, s 39(1)(a)(i) simply states the Tribunal must consider 'the effect of the act on the enjoyment by the native title parties of their registered native title rights and interests'. The contended effects do, however, need to be properly substantiated with evidence.[138]
[113] The effects of climate change contended by Gomeroi include several phenomena cause by climate change itself, as referred to in the previous summary of submissions on climate change. These include fire, drought, flash flooding due to heavy rain events and increased temperature bringing increased fire risk, amongst other events. This is contended to bring about landscape change including a reduction of important plant and animal species, change in the flowering and fruiting behaviour of bush food limiting opportunities for gathering, change to trees and plants used for raw cultural materials, and totemic trees plants and animals being reduced and removed from the landscape.[139] This, Gomeroi contend, will limit the ability of their native title rights and interests being exercised.[140]
[114] The contentions of Santos mainly focus on the area that is directly overlapped by the lease areas and, citing previous Tribunal determinations, focus on the requirement for there to be sufficient material to demonstrate the enjoyment of the native title rights and interests by Gomeroi and then how this enjoyment will be affected if the act is done.[141]
[115] Both Santos and the State contend the statement by Gomeroi that it should be assumed by the Tribunal that all registered rights are practiced throughout the claim area as they have been accepted prima facie should not be accepted.[142] Rather, Santos says the exercise of native title rights is a matter of evidence to be provided by the native title party, with evidence to have probative force.[143]
[116] Based on this notion, Santos contend the evidence presented by Gomeroi does not demonstrate the exercise of native title rights within the area of the future acts.[144] The inference here is that the Tribunal cannot find there is an extensive effect on the exercise of native title as there is little or no evidence of this enjoyment in the first instance.
[117] In any event, Santos contends the Project will have an impact that is limited, manageable and acceptable,[145] and that the physical impact of the Project would be minimal due to the relatively small portion of the area that would be impacted by vegetation clearing.[146]
[118] Further, Santos contend that any access restrictions that may be in place at any one time would be considerably smaller than this as a result of the progressive nature of the development of the Project.[147] Santos also contend that other than the immediate operation area of each well pad, and presumably other infrastructure, no fencing will be erected.[148] These contentions are repeated by Santos in its 2024 contentions.[149]
[119] Santos also contend the Project is designed to minimise impacts on native title through its flexibility of well locations and use of micrositing, to either avoid or minimise impacts on heritage.[150] They give evidence of further available mitigation measures including minimising surface disturbance by having multiple wells on a well pad, maximising use of previously cleared areas, locating major infrastructure in the Leewood facility outside the Pilliga, and locating pipelines along existing tracks and roads.[151]
[120] The State initially made contentions which, in effect, mirrored the contentions made by Santos, however in the remitter the State stated those parts of their earlier contentions should not be taken into account for reasons unclear to the panel.
[121] The assessment of the impact of the grant of the leases on Gomeroi's native title rights and interests must be based on evidence before the panel. The evidence before the panel must also be considered in the context of the evidence as a whole. Some of the evidence before the panel, whilst not directly contended under s 39(1)(a)(i), has nonetheless assisted the Tribunal in its task. This includes evidence of the collection of wood to make shields and weapons for hunting, the gathering and use of natural resources, managing natural resources, conducting ceremonies and rituals, and the transmitting of traditional knowledge.[152]
[122] Considering all the evidence before the panel, we are satisfied that the leases will affect the enjoyment by Gomeroi of their registered native title right and interests. However, we are also satisfied that the manner in which the Project is to be constructed and operated as discussed above, together with conditions imposed in this determination, will mitigate these effects to a sufficient level.

[133]

[123] Gomeroi have provided a more extensive body of evidence to address their way of life, culture and traditions and of the effect of the proposed act on them, particularly relating to the three areas of focus examined previously: cosmology, culture and water.
[124] Strong emphasis is placed upon cosmological information within the Gomeroi evidence. This includes evidence surrounding celestial bodies and the way these are connected to the Country in question, including in relation to totemic structures, plants and animals. It also includes information regarding the cultural aspects of lands and waters in addition to descriptions of spiritual beings and phenomena.[153]
[125] Evidence is also provided around more specific activities such as teaching and passing on of culture, law and custom,[154] the gathering of food,[155] traditional woodworking and the collection of raw materials for this purpose[156] and information pertaining to ceremony and birthing trees.[157]
[126] As in the previous criteria, evidence is focused on the Pilliga more broadly rather than specifically on the lease areas however as already addressed, the Gomeroi contend that from a cultural perspective, the Pilliga is viewed as an indivisible whole[158] and that an effect in one area has an effect to the whole area.
[127] The general contentions of Santos and the State here again focus on the need for Gomeroi to adduce evidence of way of life, culture and traditions and the effect of the act upon these things.[159] The contentions of Santos again point to a lack of focus on effects within the lease areas specifically, whereas Gomeroi argue that effects of the act impact the entire, indivisible, Pilliga, and will be more broadly felt because of the disbursed physical infrastructure and operations, and due to the nature of climate change effects arising the future act.[160]
[128] Similarly to s 39(1)(a)(i), s 39(1)(a)(ii) does not restrict consideration of the effect to the footprint of the future act. Rather, it provides that the Tribunal must consider the effect of the act on the way of life, culture and traditions of the native title party. Due to the nature of the future acts that come before the Tribunal, this consideration has generally focused on the area of the physical footprint of a project given this is where most, if not all, of any effect is both generated and felt. This is not determinative however, rather, it is the contended effect of the act and whether this can be substantiated that is.
[129] The topics addressed in this category of evidence deal with culture, tradition and ways of life, each of which encompass notions broader than simple physical phenomena, leading Gomeroi to describe the Pilliga through a cultural lens. Within the statutory framework of s 39(1)(a)(ii), the panel accepts that evidence provided as to cosmology, tradition and values regarding the entire Pilliga also apply to the portion of the Pilliga directly impacted by the future acts. Importantly, the evidence provided must be read in the context of all the evidence provided, and in the context of the statutory framework.
[130] Gomeroi contend two types of effects, direct and indirect. In terms of direct effects, Gomeroi again contend that the physical infrastructure and operation of the Project will affect the ability of the Gomeroi people to move around, use and enjoy the area for cultural activities, impair access to water resources, inhibit the ability to gather natural resources and undertake ceremony, protect places of cultural significance, to share cultural knowledge and more generally, practice cultural and spiritual activities.[161]
[131] Relevant also to this criterion are contentions regarding access. As previously outlined at [109] to [110], Gomeroi contend that infrastructure associated with the Project will permanently affect landscape values and entirely prevent Gomeroi people's access to parts of the Project area and the Pilliga due to required fencing. Additionally, Gomeroi assert that while some areas will remain accessible, the dispersed nature of the Project effects the entire landscape.[162]
[132] Gomeroi further contend that the future act poses a threat to native flora and fauna caused by the direct loss of habitat and the promotion of feral pests and predators.[163] This, Gomeroi say, will have social effects on the Gomeroi due to them being unable to fulfil their caring for Country responsibilities.[164] Additionally, Gomeroi contend the loss of habitat as well as damage to the physical and cultural landscape will impact upon the spiritual beings which occupy the Pilliga, beings that form an important part of Gomeroi culture.[165]
[133] Matters of direct impact are also raised by Gomeroi in relation to the effect of the Project on water and waterways and the way these affect their ways of life, culture and tradition. The evidence addresses both the immediate physical impact upon waterways and the way this will impact on the cosmological, cultural and traditional aspects and values surrounding water and waterways. Further evidence addresses the more medium and long-term effects of climate change impacts to water and waterways.
[134] While some concern in the evidence is raised about subsurface waters,[166] the Great Artesian Basin[167] and springs, to a larger extent the Gomeroi evidence focuses on waterways and surface waters. Chief amongst the concerns raised in this area are potential pollution impacts, degradation of water quality in waterways and siltation due to clearing and the general operation of the Project. To summarise the concerns of the Gomeroi, should these impacts come to pass, the effect on culture and traditions will be significant due to the central role that water, waterways and rivers play within their tradition, culture and way of life.
[135] In their 2022 evidence, all of the Gomeroi witnesses refer to a spill that occurred in 2011 when exploration was being conducted by Eastern Star Gas in the Project area. The panel notes the spill appears to have occurred in the area covered by the petroleum assessment licence, PAL2, now the area comprising PPLA13 and the assessment lease held by Santos.[168] This incident involved a spill of saline water from a test well into the surrounding area. Each of the Gomeroi witnesses attest to this spill killing surrounding vegetation, with rehabilitation efforts having limited or no success. Gomeroi witnesses give evidence of this damage to Country bringing up strong feelings of hurt, sadness and disgust and raising concern about the risk of potential contamination or future spills.[169]
[136] Much of the concern regarding water, particularly surface water, run off, pollution and water quality degradation focuses on Bohena Creek in the Project area. As set out from [78] to [80] above, Bohena Creek is the main waterway in the area and runs through PPLA13 and PPLA15 with most, if not all, the remaining lease areas being within the B[170]na Creek catchment.170 It is a strong and visible feature of the area of the proposed future act and given the extent of the evidence provided regarding the cultural and traditional features and values of water and waterways, it is no surprise that Gomeroi place heavy emphasis on this main waterway which traverses the lease areas.
[137] The overarching contention of Santos in respect of s 39(1)(a)(ii), is again that the impact will be minimal as the leases cover only 0.85% of the overall Gomeroi native title claim area and the physical footprint of the Project would only impact up to approximately 1% of the lease areas.[171] Santos also contend the areas where access would be restricted are limited as a result of the progressive nature of the development of the Project, and any fencing required will only exist for a temporary 25 year period.[172]
[138] Santos again points to the fact that the location of the wells is sufficiently flexible to avoid or minimise effects, referring to micrositing.[173] Santos provide that in addition to this, a further suite of mitigation measures have been included in the design of the Project aimed to minimise potential impacts including:[174]

[135]

[139] Santos contend the regulatory environment is a further mitigating factor on the effect of the future act, which includes State heritage, environmental and planning laws in addition to Commonwealth statutes. This contention also includes reference to the body of conditions that have been placed on the Project within the State approvals processes, which includes a variety of environmental and heritage-based conditions.[175]
[140] Overall, Santos contend, the effect of the Project on the way of life, culture and traditions of Gomeroi would be limited, manageable and acceptable.[176]
[141] The State initially made contentions which noted the Project would be subject to the State's regulatory regime and the requirements of the IPC Development Consent. The State has since resiled from those statements and stated they should not be taken into account for reasons unclear to the panel.
[142] The evidence of the Gomeroi witnesses in relation to climate change is pertinent due to the emissions generated by the Project. Their evidence focuses on the impacts of change to Country bought about by climate change, with a strong emphasis on the effect of change to waterways.
[143] Ms Tighe speaks of cultural activities that occur in the Pilliga such as visitation for the transmission of knowledge about Country, sharing of stories and traditional knowledge, the physical aspects of caring for Country, and stating that not being able to go to a place and see it in its natural state would represent a cultural loss.[177] Ms Tighe gives evidence that climate change will impact the ability of Gomeroi people to do these things because of the impact it will have on Country, the availability of bush foods and medicines and material for tool manufacture due to more frequent extreme weather events.[178]
[144] Ms Tighe also gives evidence addressing how climate change resulting from GHG emissions will affect vegetation changes in the Project area, induced by drought and acute events such as fire. She states this will impact the vegetation mix and reduce the number of these key plants used by the Gomeroi people.[179] Providing an example, Ms Tighe discusses a bush food 'Five Corners', stating: [180]

[137]

[145] Mr Wilson also gives evidence addressing changes to Country as a result of climate change. He discusses changes to plant fruiting behaviour due to increased temperature,[181] concerns regarding changes to species abundance within a changing environment,[182] and the impact on flora and fauna species in general.
[146] Uncontrolled or wildfire is raised as a particular topic of concern by Mr Wilson, noting the impact of uncontrolled fires on trees of importance to Gomeroi people.[183] Mr Wilson gives evidence of regular cultural burning, remarking on the impact of traditional land management on the landscape. [184]
[147] Mr Wilson's evidence regarding the management of land, both today and traditionally, makes it clear that Mr Wilson holds the view the re-establishment of traditional land management practices of the Gomeroi people is an important step to mitigate the effects of climate change and to overcome, or minimise, the effects on culture, tradition and ways of life. The panel accepts this evidence and has determined conditions should be imposed to address this and various other matters raised in evidence.
[148] Mr Booby also gives evidence going to the issue of landscape and environmental change as a result of climate change and the effect of this on tradition, culture and way of life for the Gomeroi people. He discusses the impact and risk of uncontrolled or wildfire as well as the impact of drought due to increased rainfall variability. His evidence includes extensive testimony on how this would impact upon cultural values, practice and knowledge and Gomeroi traditions and ways of life.
[149] In making submissions regarding climate change in the remittal process, considerable focus is placed by each of the Gomeroi witnesses on water, waterways and water quality. This reflects notions previously discussed surrounding the cultural values and traditions linked to water and waterways, including broad scale cosmological and spiritual components, as well as the physical environment itself. The evidence makes the importance of these issue to the Gomeroi people clear to the panel.
[150] In both the original and remittal evidence, the Gomeroi witnesses also make statements regarding caring for Country and the management of land. While this is a physical activity that occurs on land, Gomeroi present evidence that it is based on obligations that exist within culture and is therefore a cultural activity as much as a physical one. This is perhaps best summarised in the 2022 affidavit of Ms Tighe who sets out the importance of the ongoing generational obligation to care for and protect Country and underscores the relationship between Gomeroi and the natural environment.[185]
[151] Information regarding caring for Country is dispersed throughout the statements of the Gomeroi witnesses, both in the original and remittal materials, making the emphasis on this notion, its cultural basis and its significance for the practice and transmission of traditional and cultural knowledge in addition to the health of the Country, clear.
[152] From a culture and traditions perspective, Mr Booby provides a useful summary of this effect in stating that: [186]

[139]

[153] Some of the evidence asserted by Gomeroi under s 39(1)(a)(i) go to health and wellbeing and are of relevance in considering (ii). The contention chiefly made is that impacts of climate change, including changes to Country and environmental degradation, will have an adverse impact on the health and wellbeing of the Gomeroi people due to the interrelationship between Country, culture, tradition and ways of life.[187]
[154] These contentions draw heavily from the reporting provided by Associate Professor Lansbury contained within the Gomeroi expert report. Lansbury cites the State of the Environment 2021 report which explains the close relationship between the condition of the physical environment on a group's traditional lands and the cultural health of traditional owners of such lands. She gives evidence that there is a positive link between caring for Country activities and the physical health and wellbeing indicators of the traditional owners.[188] Lansbury reports similar findings in relation to spiritual health and wellbeing.[189]
[155] Associate Professor Lansbury also makes note of the IPCC's recognition of the health of the physical environment being recognised as a contributor to human health by the IPCC, stating that the most recent IPCC assessment report notes in its health-focused chapters that environmental health is a contributor to subjective wellbeing. Lansbury further reports the IPCC recognises this contribution is further enhanced in Indigenous populations over the general population, noting that an Indigenous perspective on wellbeing typically incorporates a relationship with the natural world.[190] In her evidence, Lansbury draws attention to a number of components within the Gomeroi witness affidavits that outline positive health and wellbeing outcomes from maintaining culture, connection to County and caring for Country activities that are relevant to the assessment of this criteria and the imposition of conditions.[191]
[156] The evidence of Associate Professor Lansbury was not disputed by Santos or the State.
[157] In summary, the evidence of Gomeroi states the effects of the act are:[192]

[141]

[158] Santos do not challenge the evidence about the harmful effects of climate change.[193] Instead, it contends that, given an assessment in s 39(1)(a) concerns the effect of the act, unless it can be established that the impacts can be caused by the grant of the leases then this evidence should be given little weight.[194] Related to this point, Santos contended that the impacts of climate change cannot be causally linked to the Project as they pre-date it[195] and that it would be an error to 'weigh all of the impacts of climate change on the assumption that all of those impacts are caused by the Project'.[196]
[159] Instead, Santos contend that the impact of the Project on climate change is so small as to be insignificant, and that in any event, on the evidence of Santos it will lead to a net reduction in emissions based on a counterfactual scenario.[197] This counterfactual concept is discussed in more detail later in these reasons.
[160] Put another way, Santos contends that when the effect of the future act is weighed, the actual impact on climate change is either zero, if the counterfactual is accepted and it is further accepted the Project will lead to a net emission reduction, or is immeasurably small.[198] The inference here is that there will be no effect on the way of life, culture and traditions of the Gomeroi in the way contended.
[161] The State's contentions regarding public interest matters address climate change and are worth briefly mentioning here. In summary, they contend it is not controversial that there is more than one source of GHG emissions and more than one cause of global warming, but that it would be an error for the Tribunal to attribute every consequence of global warming to the proposed future act. Instead, the State contends the Tribunal must take into account, based on the evidence before it, the GHG emissions of the Project and the consequential effects of those emissions, including any contribution to global warming.[199] The panel agrees with this general proposition, as reflected in these reasons.
[162] Climate change impacts, and the impacts of the regulatory regimes surrounding climate change, is discussed in more detail from [334] to [351] below.
[163] In summary, the evidence presented by the Gomeroi witnesses is robust and thorough for the purposes of s 39(1)(ii). The panel has taken into account the large body of information that was submitted both in the original inquiry and this remittal, from all parties. This includes, but is not limited to, the IPC determination and conditions, the reporting produced by the Water Expert Panel established by the Department of Planning, Industry and Environment, the environmental impact assessment, and the lay and expert evidence presented by Gomeroi. The Project is subject to a large number of conditions imposed through various approvals processes.
[164] Based on the evidence before it, the panel accepts there will be a direct impact of the proposed future acts on the way of life, culture and traditions of the Gomeroi within the area of the leases. The panel is however satisfied that the manner in which the Project is to be constructed and operated, coupled with the conditions placed upon the Project through the approvals process, together with conditions imposed in this determination by the Tribunal, will mitigate these effects to a sufficient level.
[165] The panel notes that although a limited amount of clearing is allowed to occur, that the level of clearing is not inconsequential, even though the area has been previously impacted by forestry and other activities. The impact of this clearing and the siting of well pads is dispersed through the landscape, which Gomeroi contend leads to an impact on the entire landscape. The dispersed nature of the infrastructure does mean there will be impacts and effects felt over a broader area. However, given that it is only the area immediately surrounding each well site that is to be fenced, and an overall 50 by 50 metre area that remains cleared during the operation of the gas field, the effect is mitigated. On the evidence, Gomeroi will not be prevented from accessing most of the area of the leases and access should be completely restored following the rehabilitation of each well pad upon the closure of the Project.[200]
[166] Further, given the evidence surrounding the previous pollution event, and the particular significance of water and Bohena Creek to the Gomeroi people, the panel has determined that further measures, in the forms of conditions, are required to protect Bohena Creek and other important areas. The panel is imposing a condition that Santos will not undertake any future ground or surface disturbing work on or within 500 metres of Bohena Creek.[201]
[167] The potential impacts of climate change are not contested, and having considered the materials before us, the Tribunal broadly accepts the predicted impacts of climate change set out by the Gomeroi expert witnesses and the Gomeroi witnesses themselves.
[168] The Tribunal note there remains imprecision within the predictive modelling available regarding climate change, however we accept the confidence levels for temperature rise and impacts set out by the IPCC as being more than sufficient to justify consideration of GHG emissions and climate change as a key component in decision making considerations.
[169] In this regard, the central contention of both Santos and the State is, in effect, that the cumulative impacts of climate change cannot be attributed to this Project as any emission and impact that has occurred to date has been in the absence of it. This is a logical point to make, however it must be acknowledged that the cumulative impact of climate change was not contested by any of the parties and must be taken into account when considering the direct and indirect effects of the act.
[170] The panel accepts that new emissions of GHG will contribute to climate change. It would however be an error to attribute all the consequences of climate change to the doing of a single project. Rather, the panel has focused on the demonstrated effects on the matters to be considered under s 39(1)(a)(ii).
[171] As discussed in relation to s 39(1)(a)(i), there is persuasive evidence before the panel surrounding the management of Country and how this might mitigate impacts. Having considered this evidence, the panel has formed the view there is strong utility in having increased engagement of Gomeroi people in the management of the Pilliga to assist to mitigate effects from the proposed future act, including climate change. Given this, the panel determined a condition should be applied requiring the resourcing of a Ranger Program development by the Gomeroi people to manage Country, protect the environment, and monitor and manage ecological threats. See [417] and conditions 13 to 18 below.

[143]

[172] The Gomeroi contentions for this criterion have similar themes to s 39(1)(a)(i) and (ii) above, with the central notion being that Gomeroi societal structure and culture are, in particular, linked to place and Country.[202]
[173] Gomeroi build a picture of society being expressed through the practice of culture and native title rights and interests, outlining the cosmological and spiritual aspects of their society, and through a cultural obligation to care for Country.[203] This is woven through the evidence of the Gomeroi witnesses and it is clear the natural environment of the Pilliga is integral to the Gomeroi totemic structure of their society and culture.
[174] Mr Booby speaks of the connection between Gomeroi people and animals and nature, and how this creates responsibilities to them and ties into the Gomeroi totemic structure and moiety system that underpin Gomeroi society. He goes on to explain how impacts on one plant or animal have consequential impacts that affect other aspects of the ecosystem as well as Gomeroi people.[204]
[175] The Gomeroi evidence focuses on the interconnectedness of society, culture and the landscape and environment. Witnesses depose that stories and connection to place cannot be relocated, and destruction and damage to the landscape and ecology has a direct negative effect on the wellbeing of the Gomeroi people. The witnesses also give evidence that the proposed Project area is of particular significance as it is one of the last, and one of the largest, remaining areas of undeveloped land in the Gomeroi claim area.[205]
[176] As in the previous criteria, the native title party addresses things that directly impact Country and the environment, in addition to indirect impacts of the proposed future acts which Gomeroi contend will result in various types of environmental change and degradation, thereby affecting the culture and society.
[177] In the remittal contentions, Gomeroi outline several effects they contend will be brought about by the effects of climate change including financial, health and wellbeing and cultural distresses. This is contended to result from direct effects of increased temperatures in addition to indirect effects, that is, the effect of secondary phenomena brought about by climate change such as drought, flood and environmental change.[206]
[178] Mr Booby explains how changes to weather systems and the impacts to the natural environment affect the Gomeroi totem and moiety systems. He details how the moiety system relates to balance of all things and that climate change is impacting this balance, upsetting Gomeroi moiety systems and cultural responsibilities.[207]
[179] On the other hand, Santos contends that the act has the potential to have a positive impact on the development of social, cultural and economic structures.[208] Santos says micrositing and Aboriginal Cultural Heritage Advisory Group processes can facilitate a return to Country. They also point to the additional heritage research project, and Gomeroi people potentially benefiting from training and employment opportunities, in addition the broader economic and public benefit which Santos contends will arise from the Project.[209]
[180] As already discussed at [163][163], the panel has taken into account the large body of information that was submitted both in the original proceedings and this remittal. The panel repeats its considerations at [163][163] to [171][170] as the same considerations in relation to s 39(1)(a)(ii) apply here.
[181] Based on the evidence before us, the panel accepts that the Project will have an effect on the social, cultural and economic structures of the native title party. However, having regard to the applicable regulatory regimes, the conditions imposed by the IPC, and the conditions set out in this determination, the effect of the act on the development is unlikely to be substantial and can be mitigated to a satisfactory extent.

[145]

[182] The evidence provided by Gomeroi has provided the panel with a strong account of the types of rites, ceremonies and culturally significant activities that Gomeroi access the land for and provides a useful account of that access for the purposes of this assessment.
[183] In terms of contentions, these understandably also bear strong commonality with previous criteria falling under the broad umbrella of s 39(1)(a). In summary, Gomeroi contend the Pilliga, including the lease areas, are accessed for a variety of cultural activities,[210] that the exercise of native title rights and interests is predicated on access to sites and Country,[211] and that fencing would prevent access to cultural heritage.[212]
[184] Gomeroi repeat that the dispersed nature of the infrastructure of the Project will have effects across the whole landscape of the Pilliga and lease areas, thereby having an impact on access across that landscape impacting the ability to maintain culture.[213]
[185] In the remittal evidence, Gomeroi also make the contention that more hot summer days due to climate change impacts will further limit the ability for people to access Country for health and safety reasons. The impact of this is contended to be less opportunity for ceremony and to impart cultural knowledge, in particular for Elders, who are more vulnerable to heat.[214]
[186] Santos repeat their contentions made for s 39(1)(a)(i)[215] stating that any effect will be limited, manageable and acceptable due to the limited area of the Gomeroi claim affected, the limited area approved for clearing and the limited access restrictions at any one time due to the progressive nature of the development of the Project. Critically, Santos contend, there will be no fences preventing access to the Pilliga other than operational areas.[216]
[187] The State contend similarly to Santos and say that any access restrictions will be to particular parts of the leases and for limited periods of time.[217]
[188] Based on all the evidence before us, the panel accepts there will be a direct effect on the freedom of Gomeroi to access to the lease areas, and their freedom to carry out rites, ceremonies and other cultural activities on the land and waters, however we also accept that this will be mitigated by some of the factors outlined by Santos, such as the staged nature of the Project's development and the limited and relatively temporary nature of the fencing required.
[189] As such, Gomeroi people should be able to maintain access to almost the entirety of the lease areas, excepting those portions where infrastructure such as well pads, processing plants, water tanks and the like may be fenced. Importantly, impact on access to significant places will be further mitigated by the conditions set in this determination, including the condition that Santos will not undertake any future ground or surface disturbing work on or within 500 metres of identified sites of significance without their prior written consent, and any right of the native title party to access or use the lands is not to be restricted except in relation to those parts used for productive operations or for safety or security reasons related to those activities.
[190] The panel also accepts there is likely to be access limitations bought about by environmental factors, such as an increase in very hot days as contended by Gomeroi. As discussed throughout these reasons, the panel accepts the Project will produce GHG emissions which will contribute to climate change, resulting in various indirect effects that must be considered in the weighing of all the evidence. Similarly to the direct physical effects considered above, having regard to the applicable regulatory regimes, the conditions imposed by the IPC, and the conditions set out in this determination, the effect is unlikely to be substantial and can be mitigated to a satisfactory extent.

[150]

[195] The native title party has submitted compelling evidence regarding the importance of the Pilliga in accordance with their laws and traditions. The evidence paints a picture of the Pilliga as a cultural landscape where Gomeroi cosmology is alive and the celestial bodies, animals, plants, lands and waters interact with Gomeroi people. Gomeroi totemic structures are linked to this landscape, and it is evident the place the Pilliga holds in the hearts of Gomeroi people as one of the last relatively untouched places they can practice their culture. [220]
[196] Ms Tighe speaks of the Pilliga as a place of ceremony for both men and women, with connection to some of the most important aspects of Gomeroi life. She speaks of Gomeroi stories that are archived in the landscape of the Pilliga and that, while those stories may be told elsewhere, they only make sense and have purpose when told in the landscape of the Pilliga.[221] Ms Tighe emphasises the importance of the Pilliga as a whole to Gomeroi people, not just parts of the forest.[222]
[197] Mr Booby speaks of the Pilliga as a living, breathing landscape that provides health and nourishment not only to Gomeroi people but also those who live downstream from it.[223] It is evident to the panel from Mr Booby's evidence that the interconnected natural systems of the Pilliga are deeply connected to Gomeroi people and their cosmology.
[198] Ms Tighe speaks of birth-associated places being located throughout the Pilliga and the importance of these to Gomeroi people and their identity.[224] Other places within the Pilliga are also spoken about as being particularly important, such as Yarrie Lake and Wombat Rock.
[199] From the evidence it is clear to the panel that within the Pilliga's overarching cultural landscape lie various places of importance to the Gomeroi people. The Pilliga also appears to be a place of important cultural protocols and potential danger as the evidence speaks of the presence of creatures and phenomena, areas that people must not go, and designated areas where it is safe to camp overnight.[225] All of this evidence paints the picture of a rich cultural landscape.
[200] The Tribunal has previously found that cultural landscapes are of particular significance to the native title party.[226] As set out in Top End v Kess Diamond Marstella, the term cultural landscape appears in The Burra Charter: The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 2013 (The Burra Charter). The Burra Charter defines place to mean a geographically defined area that may include elements, objects, spaces and views, having tangible and intangible dimensions. The explanatory notes give further context, and detail that place has a broad scope and includes natural and cultural features for example; a cultural landscape, a road or travel route, a community meeting place, and sites with spiritual or religious connections.
[201] The evidence demonstrates the Pilliga is a cultural landscape where important places and things reside; a place where the cosmology, culture and law of the Gomeroi can be seen to operate. While the Pilliga is clearly an important cultural landscape, this does not necessarily mean the Tribunal can find it is of particular significance for the purpose of s 39(1)(a)(v).
[202] Approximately 500,000 hectares in size, the Pilliga is an enormously large area to be found to be of particular significance in its entirety. On the evidence before the Tribunal, it is clear the Pilliga is an important cultural landscape which is likely to contain numerous sites or areas of particular significance.
[203] The evidence put before the Tribunal speaks deeply of a place where the way of life, culture and traditions of the Gomeroi people is very much alive. While this is important for the purposes of s 39(1)(a)(ii), this does not make the entire Pilliga a place of particular significance but rather an important cultural landscape in which the world of the Gomeroi is able to operate.

[153]

[213] Mr Booby refers to a place called Wombat Rock as being an important site within the Pilliga associated with emu and kangaroo stories.[233] It is described as a Gomeroi art site associated with men's law. Mr Booby speaks of Wombat Rock as a place associated with the conduct of men's business and the passing on of Gomeroi law.[234] Mr Booby also associates Wombat Rock with a story related to kinship laws.
[214] Mr Booby identifies Wombat Rock as being located within the Pilliga, however it is not clear from the evidence whether it is located on the lease areas. His evidence described that it is found by following waterways. The panel accepts it is known and able to be located by the Gomeroi people, however under s 39(1)(a)(v) we must find determinately that it is located on the leases.
[215] As a place of men's business and associated with the passing on of cultural law, the panel accepts Wombat Rock is an important place to Gomeroi people. The nature of the site and the evidence provided by Mr Booby does make Wombat Rock stand out as a site of particular significance located within the important cultural landscape of the Pilliga.
[216] Mr Booby also mentions a place called Yaminbah that is located near Wombat Rock. Mr Booby associates Yaminbah with the Gomeroi creator Baiame and as a ceremonial ground associated with totems and Gomeroi-made features.[235] Mr Booby locates Yaminbah along Yaminbah Creek, which is a sandy creek line. Based on mapping prepared by the Tribunal's geospatial team, Yaminbah Creek appears to be located within the Pilliga but outside the lease areas.
[217] There is little information given by Mr Booby in relation to the significance of Yaminbah. While there is clearly some importance with it being a ceremonial ground associated with Baiame, the native title party has provided little information that would allow the panel to be satisfied it is a site of particular significance.
[218] Another key issue in relation to both Wombat Rock and Yaminbah relates to the requirement of s 39(1)(a)(v) that the site or area be located on the lands or waters of the proposed future act.
[219] Based on the evidence before it, the panel is unable to be satisfied that either Wombat Rock or Yaminbah are located within the lease areas. On this basis, we are unable to find that Wombat Rock or Yaminbah are places of particular significance for the purposes of s 39(1)(a)(v) of the Native Title Act.
[220] However, based on the evidence before us, the panel is satisfied that these important places should be included in some of the protections afforded by the conditions imposed in this determination. Importantly, the panel accepts both Wombat Rock and Yaminbah are known and able to be located by the Gomeroi people. If they are not located within the lease areas then their inclusion in the conditions will be of no impact to Santos in respect of the Project.

[155]

[221] The work Santos expect to undertake on the lease areas has been outlined from [37] to [53]. The panel must now consider the effect of the proposed act on Yarrie Lake and Bohena Creek found to be sites of particular significance to Gomeroi.
[222] When considering the effect, interference that may appear trivial to a person not a member of a native title party, may be substantial having regard to the native title party's traditions.[236]
[223] Yarrie Lake is a ceremonial site associated with sacred men's and women's business and involving cultural aspects of Gomeroi life. As demonstrated in the evidence, the lake is subject to important cultural restrictions based around gender, as well as knowledge and practices that are culturally integral to Gomeroi women and men and is an important part of the cultural structure and ties of Gomeroi people.
[224] Ms Tighe's description of the importance of Yarrie Lake to women and the identity of Gomeroi people, and the activities that occur there, means that any ground disturbance in the area of Yarrie Lake is likely to cause interference that would greatly distress Gomeroi people. Further, intrusion by non-Gomeroi people on both men's and women's practices at Yarrie Lake constitutes serious interference through the wrong people gaining access to cultural knowledge that is restricted to certain people based on Gomeroi law and culture.
[225] The establishment of any infrastructure around Yarrie Lake will involve ground disturbance, including the removal of trees which are linked to the women's business that is conducted there.
[226] As already noted, under current approvals Santos must establish a 200 m buffer zone around the Yarrie Lake Reserve which will prevent the grantee parties from installing any surface infrastructure within this area.[237] On the facts before us, it would be possible for the grantee parties to place a well pad or other related infrastructure right up to the boundary of this buffer zone. When considering a map of the area, including Yarrie Lake and the buffer zone, it seems entirely likely that there will be trees and other parts of the area that are likely to be of significance as part of the women's business, that extend past the buffer zone. Nor does the currently proposed buffer zone seem sufficient to provide privacy to Gomeroi women and men engaged in their cultural business at Yarrie Lake.
[227] Given the nature of the culturally sensitive activities at Yarrie Lake, and the importance the trees and other features in the area hold, the panel does not consider the 200 m buffer zone sufficient to mitigate the risk of interference with Yarrie Lake.
[228] Similarly, Gomeroi witnesses identify Bohena Creek as significant due its connection to Gomeroi creation stories and the men's ceremonial activities that occur along it, including relating to the crafting of cultural objects. Any ground disturbance in the area of Bohena Creek is likely to cause interference that would greatly distress Gomeroi people. Further, intrusion by non-Gomeroi people on the men's practices occurring there would constitute serious interference.
[229] For these reasons, the panel has imposed a condition that Santos will not undertake any future ground or surface disturbing work on or within 500 metres of Yarrie Lake or Bohena Creek without the prior written consent of the native title party.[238]

[160]

[232] The focus of the ACHMP appears to be on tangible cultural heritage rather than intangible cultural heritage. It breaks down the lease areas into different zones with only some zones considered as requiring heritage clearance surveys (called 'pre-clearance surveys').[240] It also provides that pre-clearance surveys to do not need to be conducted in areas where the grantee parties will not be undertaking ground disturbing work, on areas where there has already been significant disturbance, or on areas where previous surveys have been conducted.[241] This is problematic for a number of reasons.
[233] At its heart, this exemplifies the focus on tangible cultural heritage rather than intangible cultural heritage and assumes that only ground disturbance can cause interference with Aboriginal cultural heritage. As demonstrated in relation to Yarrie Lake, there are both tangible and intangible elements of Aboriginal cultural heritage that contribute to the particular significance. For Yarrie Lake, intrusion by culturally unauthorised people into sensitive men's and women's business constitutes interference and affects Gomeroi people.
[234] The panel has received evidence from Gomeroi of different places of significance within the Pilliga. It is acknowledged by the parties that there are likely to be many more places and items that are culturally significant to Gomeroi people, noting the important cultural landscape that is the Pilliga, which the Project sits entirely within. For this reason, the ACHMP must include provision for the conducting of pre-clearance surveys.
[235] Further, excluding areas where surveys have previously been carried out is short-sighted. Surveys can be carried out for a number of different reasons in anticipation of various types of activities. This can affect how the survey is approached and conducted as well as what information is reported. There is also no guarantee that Gomeroi people or people with the right knowledge for that Country were involved in conducting any previous surveys. To rely on these without appropriate consideration of their circumstances risks failure to identify and protect Aboriginal cultural heritage that may exist in previously surveyed areas.
[236] Under the provisions of the ACHMP an Aboriginal Cultural Heritage Working Group is to be established with responsibility for assisting with the implementation of the ACHMP.[242] Despite the importance of this working group in protecting the cultural heritage of the Gomeroi people, there is provision for only four members of the ten-person group to be Gomeroi people. This means that, as currently proposed, the majority of the people comprising the Aboriginal Cultural Heritage Working Group are not required to be people with traditional cultural responsibility and knowledge for the Project area.
[237] It is clear to the panel that there are significant issues with the ACHMP that inhibit its ability to effectively protect Aboriginal cultural heritage in the Project area. The conditions set out in this determination seek to address these issues having due regard to the evidence before the panel.

[162]

[238] The clear and consistent position of the native title party throughout their lengthy engagement with Santos in relation to the Project, is that the Project should not proceed, or in the event it does, it should only proceed with the full free, prior and informed consent of the Gomeroi native title claim group.[243]
[239] The contentions of Santos note this position of the native title party, and note that in the context of negotiations, Gomeroi had previously indicated in-principle agreement subject to final negotiations regarding a production levy. Santos concede an agreement would be preferable.[244]
[240] The State contends similarly, noting that an agreement would be a desirable outcome, however agreement from the Gomeroi people is not a precondition for the Tribunal to make a determination that the acts may be done.[245]
[241] This position is correct, the Tribunal is not prevented from making a determination that the act may be done in the absence of agreement from the native title party. However, under s 39(1)(b), the panel must take into account the interests, proposals or wishes of the native title party in relation to the in relation to the management, use or control of land or waters that will be affected by the act.
[242] As discussed at [407] below, the Tribunal must give a full and final determination of the matters before it and cannot impose a condition that defers or delegates the determination of any issues to the parties. As such, the Tribunal cannot make a blanket condition that an agreement must be reached in accordance with the wishes of the native title party.
[243] In considering this criterion more generally, the panel have taken an overall view of the evidence and contentions provided by the native title party, including where such evidence was not directed to the panel for consideration of s 39(1)(b) but is relevant in considering its proposals, opinions and wishes, and assists the Tribunal in its task.
[244] In doing so, we note that the Gomeroi witnesses express strong interest in the management of Country and provide testimony as to the obligation to care for Country, maintain sites, preserve flora and fauna and undertake spiritual practices,[246] expressed as cultural obligations. The Gomeroi witnesses also give evidence that the inability of Gomeroi to protect Country creates a feeling of despair and hopelessness among the Gomeroi people.[247]
[245] The panel also notes the extensive contentions and evidence before it from Gomeroi in relation to water and water resources, as described above in these reasons. This evidence demonstrates Gomeroi have a clear wish to protect key water courses and water resources, expressed for cultural and cosmological reasons in addition to being a component of the responsibility to care for Country.
[246] The panel has given due regard to this evidence and considered it in the context of the proposed operations of the Project.
[247] Considering this evidence, the panel has imposed conditions aimed at addressing the key expressed wishes and concerns of the native title party, focusing on enhancing the protections for important places, provide support for caring for Country activities through the development of a Ranger Program, and enhanced heritage protection measures.
[248] The conditions which arise from our consideration of the mandatory criteria set out at s 39(1)(b) are discussed extensively at [403] to [418] below.

[164]

[249] Under s 39(1)(c) the panel is required to take into account the economic or other significance of the leases to Australia, the State, the areas in which the leases are located and to the Aboriginal peoples and Torres Strait Islanders who live in those areas. This requires an evaluation of the economic or other significance of the leases, rather than consideration of the significance of exploration or mining generally.[248]
[250] As set out in the background to this decision, following the remittal of this matter from the Full Court the parties were invited to lodge any statement of contentions they wished to make addressing any request to submit further evidence. At the request of the parties, the Tribunal also convened a short oral hearing on the issue, following which the panel provided written reasons for their decision.
[251] Importantly, no party sought the opportunity to provide updated economic evidence going to the matters to be considered under s 39(1)(c) particularly, despite some of the key evidence being approximately 10 years old by the time it needed to be considered again by this panel.
[252] Having regard to the full context of this matter, the panel has not drawn an unfavourable inference in relation to the failure to update this evidence, however the age of the evidence is a relevant consideration as to its weight.
[253] Despite no party directly updating evidence going to the economic or other significance of the act, Santos and Gomeroi each made contentions against the other, suggesting, in effect, that aspects of the expert evidence of Mr Mudge and Mr Kelp went to this category and/or went outside of the scope of directions, and therefore required the opportunity for further responsive evidence.
[254] In particular, the native title party pressed that the evidence of Mr Kelp went to the criteria set out in s 39(1)(c) and was outside the scope of the directions issued on 19 August 2024. During the oral hearing held on 14 February 2025 counsel for Santos confirmed that they only sought to rely on Mr Kelp's evidence in relation to s 39(1)(e).[249] This concession and clarification removed the need for further procedural processes.
[255] The parties have made forensic decisions about how they wish to conduct the remittal. The panel will consider the expert evidence of Mr Mudge and Mr Kelp lodged in the remittal in relation to s 39(1)(e).
[256] ACIL Allen, of which Mr Kelp is an employee, had a role in preparing the EIS, particularly the macroeconomic modelling, forming a part of the economic evidence before the Tribunal in the 2022 Determination and considered by this panel under s 39(1)(c). The economic assessments of the EIS were the subject of further examination by an independent economist engaged by the NSW Government as part of the IPC inquiry and was the subject of subsequent findings on the economic impact.[250]

[170]

[266] Section 39(1)(e) of the Native Title Act requires the Tribunal to consider whether there is any public interest in the grant of the leases.
[267] As set out by the Full Court in the principal reasons, in the 2022 Determination the Tribunal took the view, as a matter of statutory construction, that the 1998 amendments had the consequent effect of narrowing the matters comprehended by the public interest criterion in s 39(1)(e) to exclude any evaluation by the Tribunal of the environmental effects of a future act. The Full Court found this was an error. Where the Tribunal erred, the Full Court found, was in conflating the removal of the environmental assessment function by the 1998 amendments, with the removal of any requirement for it to consider, under s 39(1)(e) of the Native Title Act, whether features or characteristics of the future act broadly described as "environmental" weighed for or against the public interest in the doing of the future act.[260]
[268] The Full Court also noted that despite the Tribunal considering the environmental and climate change evidence in the 2022 Determination, it did so only to emphasise that the task of evaluating the effects on climate change from the Project, and evaluating whether allowing a Project which increased emissions was in the public interest at all, was no part of its function, referring also to then-President Dowsett stating in his reasons that this was a matter "for government" and not his task under s 39(1)(e).[261]
[269] Santos appeared to repeat some tenets of this overturned position adopted by then-President Dowsett in this remittal, contending that the Tribunal is not tasked with assessing the public interest in preventing climate change, or the public interest in changing Australia's energy policy, and the Tribunal cannot make a determination that Australia should do more to stop climate change as such questions are matters of government policy.[262] When making contentions about Professor Karoly's evidence, Santos stated that the native title party is, in effect, asking the Tribunal to adopt a policy position that a new gas production project is, ipso facto, not in the public interest.[263] The native title party did not necessarily agree with this characterisation of its position.
[270] As noted by the Full Court, it is well established that Parliament's use of the phrase "any public interest" confers a wide discretionary value judgment function. The phrase is not, and is not intended to be, susceptible of precise definition, nor is it appropriate to set out lists of matters that might fall within its scope. It tasks a body such as the Tribunal to look at interests common to or held amongst a wider community, but not necessarily across an entire community, or nation.[264]
[271] Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 contains useful discussion around the requirements of s 39(1)(e): [265]

[186]

[289] Nevertheless, the panel must consider the 'variables' relevant to its task and this does involve some consideration of the 'hypothetical' contentions of the parties. For Santos, the hypothetical contentions focused on whether a projected shortfall in gas would require the utilisation of energy sources in NSW likely to cost more and result in higher emissions if the Project does not proceed.[283]
[290] While Gomeroi generally reject the proposition of future hypothetical scenarios,[284] Mr Mudge, an expert witness for the native title party, gave evidence on a range of non-fossil fuel alternatives and how each might meet any unmet demand if the Project does not proceed.[285]
[291] One of the alternative options put forward by Mr Mudge was biogas, which involves the use of naturally occurring CH4 from biological sources such as crops and waste, minimising the additional CH4 entering the carbon cycle.[286]
[292] Mr Mudge's evidence also addressed the development or advancement of greater energy storage capacity though the use of batteries or pumped hydro, including as part of a broader 'mix' of renewable power generation and storage facilities.[287] In relation to batteries, Mr Mudge particularly drew the panel's attention to the speed at which battery costs are reducing.[288]
[293] The difficulty with these submissions, as noted repeatedly by the grantee parties' energy expert Mr Kelp, is that none of these options are currently operating within NSW at a scale sufficient to cover the projected power needs of the State for the next 25 years.[289]
[294] During the expert conclave, Mr Mudge himself conceded that the biogas referenced was not currently going into the system, though with investment it could.[290] Similarly, while Mr Mudge identified a number of hydrogen projects, he also acknowledged that they were not presently operating at the scale necessary to substitute other sources of gas.[291]
[295] The panel found the same difficulties with the counterfactual evidence of Santos. Mr Kelp and the grantee parties asked the panel to accept that should the Project not proceed, not only would the alternative energy sources put forward by Mr Mudge not be viable, but that the likely shortfall in the energy market would likely mean coal plants in NSW would need to stay operational.[292]
[296] Mr Kelp points to the modelling of the Australian Energy Market Operator, which predicts a small supply gap emerging from 2026-2027 and likely increasing, and says any gap in supply means that should the Project not proceed imported gas will be required, which Mr Kelp says will be more costly and likely produce higher emissions.[293] Mr Kelp also suggests that these factors would likely delay the retirement of coal generated power plants, citing Eraring Power Plant, or incentivise industrial users such as steelworks to continue using coal power.[294]
[297] The supply gap referred to by Mr Kelp is based on extreme peak day demand, characterised by 1-in-20-year highs in daily demand from residential, commercial and industrial customers and 1-in-10-year high daily gas requirements for gas-powered generation.[295]
[298] The difficulty with these supply gap predictions is the uncertainty and contingency of them. Indeed, the panel notes AEMO produces its forecasts based on modelling only, and as the parties addressed in evidence, these predicted shortfalls in gas supply have previously not eventuated.[296] Reflecting the fluidity and unpredictability of the energy market, AEMO updates its forecasting regularly and did so again following the closing of submissions in this inquiry.[297] The evidence before the panel regarding the energy market is replete with tenuous predictions and estimates, particularly where it attempts to assert what may occur over the next 20-30 years.
[299] Whilst the panel has had regard to these variables contained in the counterfactual evidence put forward by the parties, for the reasons set out above, the task of this panel is to consider the direct and indirect consequences of the Project, and the emissions it is predictively assessed to produce, not to hypothesise what might happen in a future world in which the Project does not proceed.

[189]

[305] Ultimately, all three parties acknowledged during oral submissions that there should be no particular test for causation under s 39(1)(e).[302] As counsel for the grantee parties correctly submitted, what is required of the Tribunal is a balancing exercise in assessing the s 39 criteria.[303]
[306] The panel accepts that there must be a causal link between the doing of an act and the direct and indirect consequences that flow but does not find it is helpful to introduce a test of 'substantial' or 'material' causation. Common sense is necessary in considering both causation and proportionality and this will always depend upon on the specific facts and circumstances under consideration.
[307] It is accepted on the evidence that the Project will contribute to provide energy to the wider community. It is also accepted on the evidence, that the Project will result in GHG emissions which will cumulatively contribute to adverse climate change impacts.
[308] Climate change is a serious threat for the public interest we must consider. All GHG emissions contribute to global temperature rises, which will have, based on the scientific modelling in the various IPCC reports, a sliding scale of impacts depending upon whether the global temperature rise is equivalent to 1.5, 2 or 4°C, with the level of rise impacted by a range of looming risks. These risks include climate 'tipping points' or temperature increases beyond which serious and irreversible damage to the world's ecosystems will occur.[304]
[309] Gomeroi expert witness, Professor Karoly, estimates that the emissions generated by the Project, calculated based on figures contained in the EIS, will result in a global temperature increase of 0.00005°C over the course of its 25-year lifespan. The native title party contends that this temperature increase, as a contributor to the broader global temperature rise, presents a range of risks that are too high, and the impacts too dire, to justify the doing of the act.[305] While not directly contesting the temperature increase presented by the native title party, Santos contended that such a temperature increase is 'immeasurably small' so as to be de minimis.[306] The State also does not appear to challenge the figure presented, contending that, even accepting this figure, it comprises a 0.0033% contribution by reference to the aim of the international community to keep warming below 1.5℃.[307]
[310] The panel accepts the native title party's contention that any contribution of GHG emissions leading to a rise in global temperature would have negative impacts for the planet and the public. The panel further accepts that the expert evidence demonstrates a link between the doing of the Project to a range of specific local and regional risks, even if the links take a circuitous route through a series of direct and indirect consequences. It does not matter if the same carbon and CH4 molecules generated by the Project directly cause the potential risks to the Narrabri region, this is the unique nature of the effect of the act as molecules have no boundaries, yet contribute to the cumulative impacts caused.
[311] Of course, any emissions which arise from the doing of the future act must be understood in the context of the totality of global emissions. It would be an error to attribute all the consequences of climate change to the doing of a single project. Section 39(1)(e) directs the panel to consider the doing of this future act.
[312] The panel does not accept any characterisation that the projected emissions of the Project, which the panel accepts, based on the evidence before it, will result in an approximately 0.00005°C increase in global temperatures, is 'immeasurably small'. Such a figure is measurable, as reflected in the evidence of the experts. Even though this figure appears 'small' out of context, as noted by Professor Karoly, these emissions are significant when you have regard to the fact that these emissions are from a single source and the contribution of emissions will remain in the atmosphere for decades, and contribute to the cumulative impacts and risks that are, in turn, potentially catastrophic and irreversible for the planet, including the Narrabri region and the wider community of Australia. Such consequences are not de minimis.

[197]

[320] In support of this contention Santos point to the documents Mr Mudge cites in his discussion of the IVER. These documents provide that IVER is to be 'used by a government or regulatory entity in considering or applying the national energy objectives' and 'measures the dollar value per tonne of avoided GHG emissions in order to operationalise emissions reduction as a component of the national energy objectives'.[316]
[321] Counsel for the native title party submitted that Mr Mudge's expert evidence was the only evidence before the panel that relates to the current costs of emissions. Whilst it is the case that the EIS figures are now aged, the panel accepts Santos' submission that based on the plain reading of the use of the IVER formula, it is a methodology used by governments to set policy and not helpful to the panel in its task. We also note here, as discussed above, following contentions from the parties on the issue the panel decided the expert reports of Mr Mudge and Mr Kelp lodged in the remittal would be considered in relation to s 39(1)(e). Regardless, whatever subsection this evidence was considered under, our finding would remain, that is; based on the evidence before us we are not convinced of the appropriateness of the IVER formula in the manner posed by Mr Mudge.
[322] Returning to the EIS directly, the panel notes Chapter 24 deals with the GHG emissions of the Project, as discussed from [50] to [53] above. Over the 25-year lifetime of the Project the EIS anticipates 'direct' emissions of either 26.3 Mt CO2 equivalent (CO2-e) with self-generated electricity, or 15.5 Mt CO2-e with electricity sourced from the national grid.[317] The above consideration is of the 'Scope 1' emissions, or those emissions which arise directly from the activities of the grantee parties in the Project. In the event that the Project does source electricity from the national grid there will be a further 18 Mt CO2-e of 'Scope 2' emissions, resulting from the generation of electricity by third parties where Santos is the end user.[318] For the sake of completeness, the EIS provides that if the Project uses self-generated electricity there will be no 'Scope 2' emissions.[319]
[323] 'Scope 3', or to use the language of the EIS 'downstream emissions', resulting from the combustion of the gas coming from the Project would be expected to be much higher and the EIS provides for approximately 3.77 Mt CO2-e annually.[320] Over the 25 years of the Project this comes to approximately 94.25 Mt CO2-e.[321]

[206]

[334] There is no contest in this matter that the direct impact of the Project proceeding will be the contribution of GHG to the atmosphere. This will have the indirect impact of increasing climate change. The panel accepts this. The evidence of the native title party's expert and lay witnesses concerning the impacts of climate change is both compelling and unchallenged (other than Mr Mudge's evidence which has been dealt with above).
[335] Professor Karoly estimates that the emissions generated by the Project, calculated based on figures contained in the EIS, will result in a global temperature increase of 0.00005°C over the course of its 25-year lifespan. As discussed above at [309], this evidence was not directly contested by the other parties.
[336] On the topic of climate change, both expert witnesses Professor Karoly and Dr Mitchell were largely agreed.[338]
[337] Dr Mitchell noted his agreement with the emissions figures found in the Project's EIS.[339] He noted that based on these figures the emissions for the Project comprised approximately 0.2182 per cent of the total Australian emissions for 2024.[340] Dr Mitchell provided an overview of the most recent IPCC modelling, however noted that the modelling did not allow for the linkage of 'a single molecule of CO2 emitted into the atmosphere by a particular local facility, such as the Narrabri Gas Project, to a specific fractional rise in global atmospheric temperature' or to particular extreme weather events which might occur as a result of climate change.[341] With respect to Dr Mitchell, the panel did not find this analysis concerned with linking 'molecules' to particular temperature increases particularly helpful for reasons set out in this determination. It is also worth emphasising that Dr Mitchell took no objection to Professor Karoly's calculation of 0.00005o C global temperature rise as a result of the Project, although he characterised it as 'tremendously small'.[342]
[338] Professor Brendan Mackey provided evidence concerning the ecological risks posed to the Pilliga by the impacts of climate change, including the 107 listed threated species to be found in the Pilliga which he notes are 'highly vulnerable' to climate change impacts.[343] This evidence was examined from [92] to [97] above and was not contested by the other parties.
[339] Associate Professor Nina Lansbury gave evidence addressing the health and wellbeing impacts of climate change, breaking them down into physical, social and emotional, cultural, spiritual, economic and environmental. This evidence was examined from [98] to [101] above and was not contested by the other parties.
[340] Dr Karl Mallon provided a climate risk report which identified a number of risks to properties within the Narrabri region. Dr Mallon noted both direct risks such as increased chance of fire, flood, as well as secondary or consequential risks such as rising insurance costs and lessening insurability/access to mortgages.[344] In calculating these figures Dr Mallon selected a particular climate 'pathway' which he considered 'consistent with a policy environment in which new fossil fuel reserves are being developed and exploited - such as the one being considered in Narrabri'.[345] Dr Mallon then modelled the likelihood of a number of climate risks across the period to 2100, finding significantly increased risks of riverine flooding, surface water flooding, forest fire, soil movement and extreme wind in some or all of the properties within his study area.[346]
[341] Overall Dr Mallon found that insurance costs in his area of study would rise by 72% due to climate change this century.[347]

[228]

[366] The stated rationale for the Project is to provide additional gas to the Australian domestic gas market, in particular, to supply the state of NSW. The evidence demonstrates the role of gas is to act as both a transitioning energy source for when coal-fired power plants are eventually decommissioned, as well as a 'firming' energy source when there are gaps in a future energy market dominated by solar, wind and other non-fossil fuel alternatives. These dual roles of gas are part of a broader national and NSW strategy to achieve the Paris Agreement goals of net zero by 2050.
[367] Santos' evidence referred to AEMO projections that the National Electricity Market gas supply would experience shortfalls in the future, as existing on and offshore gas wells reduced in gas levels and quality. Mr Kelp also outlined in the quality, and duration of gas reserves and resources for all current gas operations.[366] The forecast of a domestic gas shortfall is raised in unusual circumstances, noting Australia has considerable gas capacity and is one of the largest exporters of LNG gas in the world.
[368] Overall, the evidence highlighted the difficulty in forecasting supply, or indeed demand, in volatile energy markets that are influenced by many factors, including international contracts and geo-political events.
[369] Nonetheless, AEMO is the independent energy regulator, and the panel has accepted their official forecasts in undertaking its predictive task.
[370] The panel notes that energy security in the short to medium term is subject to a high degree of uncertainty and that there is a significant portion of the NEM that relies upon gas as a reliable, scaled energy source. The panel also heard from Mr Kelp that the Project was the most 'shovel ready' supply of gas that could be brought online to meet the forecasted gas supply shortfall and would satisfy approximately 50% of NSW's gas needs. This is, in and of itself, a benefit for the wider community and in the public interest.
[371] The panel notes the report and evidence of the NSW Government before the IPC that it was of the view that the Project is not likely to reduce gas prices. Mr Kelp gave evidence to the panel that there are many variables that could impact upon the price of gas, including international gas prices in setting the domestic spot price, climatic variability (for instance, warmer winters), the competition for gas as feedstock or manufacturing. Other variables include the supporting infrastructure such as the availability of distribution network to service a region.
[372] While the panel cannot be satisfied that the Project will have the effect of reducing prices, considering all the variables identified above the panel is satisfied that securing domestic sources of gas will assist to prevent upward pressure on gas prices. As such, the panel considers this will be a marginal benefit.
[373] On balance, the panel is satisfied that energy security and reliability is an important benefit of this Project for the wider community, provided the gas produced is made available only for domestic consumption.

[229]

[374] The panel has considered extensive expert and traditional owner evidence, as well as the IPC findings relevant to the environmental impacts of the doing of the act.
[375] In the remitted inquiry, Gomeroi adduced extensive evidence not contested by the other parties, addressing the local and regional impacts caused by climate change, including the ecological impacts of reduced winter rainfall, increased droughts, bushfires and heat waves.[367] Professor Mackey provided evidence that global temperature rises would put further pressure on some 107 listed threatened species residing in the Pilliga region 'highly vulnerable' to climate change.
[376] The evidence of the Gomeroi witnesses was that the impacts of natural disasters are already affecting their traditional activities, including trees being affected by bushfires impacting wooden tool manufacturing, as well as native fruits not reaching maturity due to temperature increases.[368] A Gomeroi witness gave evidence of flash flooding affecting trees, shrubs, plants and animals through flood debris clogging streams and waterways in the Narrabri region.[369] Importantly for the Gomeroi people, as set out in their witness evidence, the Pilliga contains important tree species used to collect 'Brigalow wood', described as being special 'knotted' wood, light and flexible, and the Gomeroi use this wood culturally to make shields and weapons.[370]
[377] Any negative impacts on the natural environment presents a clear detriment to the wider community, but also specifically to the Gomeroi people forming a part of such community having regard to their interwoven cultural connection to the Pilliga, including the lease areas.
[378] During the IPC inquiry, members of the wider community raised a range of environment risks associated with the Project. To address those concerns the IPC introduced conditions designed to increase monitoring of environmental and water supply impacts. Further, the IPC placed conditions on Santos to ensure saline water was stored, prohibited pilot well flares to reduce the risk of bushfire events, and placed protective measures in place requiring expert monitoring of biodiversity concerns.[371]
[379] The panel accepts that there are environmental risks which arise as a direct and indirect consequence of the doing of this act. To manage these risks, the panel is of the view that, consistent with the beneficial intent of the Native Title Act, conditions should be imposed by the Tribunal to ensure that Gomeroi can actively participate in the IPC processes, including participating in the various expert panels arising from the IPC conditions. Gomeroi people are experts in their traditional knowledge systems as they relate to the environment, and this traditional knowledge will bolster and strengthen the regime which has already been put in place to manage and mitigate the implications of the Project. This traditional knowledge should also be applied to the amelioration of the direct environmental threats through the establishment of a Ranger Program, set out in the determination conditions 13 to 18 below.
[380] The panel accepts that the Project presents environmental risks in the construction and operation of the Project, as well as climate change impacts due to the Project emitting GHG that will contribute to global temperature increases. The panel notes that the IPC has imposed several conditions to address those concerns and is of the view that, along with the imposition of conditions of its own, these effectively ameliorate the detriments.

[230]

[381] The panel considered extensive evidence on the social impacts of the Project. This evidence covers the direct and indirect consequences of the act as well as the benefits and detriments.
[382] The IPC findings list the social benefits and risks associated with this Project proceeding, as set out above at [5]. These findings were based on over 11,000 public submissions,[372] alongside submissions from various expert panels, the NSW Government departments, federal expert bodies and Santos. Such submissions dealt with the issue of public interest within the context of the NSW planning legislation. The panel notes these findings were made in a different statutory context and are certainly not determinative. Nevertheless, the panel considers the findings of the IPC relevant to its consideration of public interest, particularly noting the direct access the IPC had to the views of the public through its way of operating.
[383] The native title party adduced evidence from experts, Associate Professor Lansbury and Dr Mallon, in relation to the local and regional impacts of global climate change. Associate Professor Lansbury gave evidence of the specific impacts of climate change on Gomeroi's cultural wellbeing. Dr Mallon gave evidence on the impact of climate change-related events and natural disasters on the residents of Narrabri and surrounding regions. The Gomeroi witnesses gave evidence that the Project's contribution to climate change would impact totemic structures, affect various cultural activities, impede responsibilities to protect and transmit cultural knowledge and uphold cultural duties, including in relation to water. None of this evidence was contested by the other parties.
[384] The panel accepts the native title party's expert and traditional owner evidence that climate change will contribute to local and regional risks and impacts. However, as the panel has indicated previously, while a direct link can be established between the Project and local risks and impacts of climate change, the Project itself should not be held wholly responsible for all the consequences of climate change. Nonetheless, the contribution of the Project to the effects of climate change is a serious detriment to be considered.
[385] The panel has formed the view that significant weight must be placed on energy reliability as the absence of reliable, secure energy has significant short to medium term detrimental impacts upon the wider community, including Gomeroi people.[373]
[386] Weighing the evidence, the panel finds that the Project offers a net public benefit and has formed the view that the act may be done subject to conditions aimed at addressing the environmental and social impacts discussed throughout these reasons.

[236]

[391] Gomeroi contend that approaches, including the 'avoidance principle', fencing and buffer zones, provided for in the NSW heritage regime 'fail to account for the broader significance of landscape and the way in which the proposed Project as a whole will affect the geography of the region' and 'fails to protect sites and landscapes like waterways or forested areas, which are imbued with a more general significance'.[376] Equally, they say, the measures proposed to preserve cultural heritage under the ACHA and the heritage regime cannot 'predict location of culturally significant intangible sites or areas'.[377] Gomeroi submit there is no doubt that the Project will 'affect the cultural integrity' of the landscape.[378]
[392] Concerning these issues Santos contends that additional measures, such as the Additional Research Program, have been introduced to promote the identification and protection of intangible cultural heritage. They also contend micrositing promotes the avoidance of sites of intangible cultural heritage and assert consultation with the Gomeroi has been 'extensive... and will continue throughout the life of the Project'.[379]
[393] Gomeroi also raise issue with Santos's control over and management of cultural heritage processes.[380] Noting, in expert evidence, that the in ACHMP the majority of the cultural heritage provisions are directly controlled by Santos, with Santos also controlling the recording of Aboriginal cultural information and the processes of managing and validating that information.[381]
[394] As set out above, the panel was not satisfied that the whole of the Pilliga was a place of particular significance for the purposes of s 39(1)(a)(v). However, the panel accepts that the Pilliga is an important cultural landscape for the Gomeroi people. It is in this context the panel considered the adequacy of the NSW heritage regime to protect Aboriginal cultural heritage in the Project area. The Aboriginal cultural heritage protection regime in NSW is discussed from [55] to [64] above.
[395] It is first important to reiterate that while the panel was satisfied that only Yarrie Lake and Bohena Creek are sites of particular significance for the purposes of s 39(1)(a)(v), it also notes issues with the ACHMP and the NPW Act, particularly regarding protection of intangible cultural heritage.[382] The difficulty in the native title party's contentions is that there is very little specific evidence before the panel concerning these intangible heritage values and how they will be impacted by the Project. As noted above, Gomeroi contend the Project will damage the integrity of the cultural landscape but there is very little information before the panel concerning how this will specifically manifest or what the implications of the loss of integrity will be for the cultural landscape.
[396] The panel nonetheless accepts that cultural heritage constitutes tangible and intangible dimensions that together form 'one indissoluble whole'[383] and conditions imposed to augment and supplement the ACHMP must be applied to both. The panel has imposed a condition requiring the Additional Research Program, including identification of intangible cultural heritage, be undertaken before the commencement of Phase 2 of the Project. The panel has also required the inclusion of representatives of the Gomeroi in cultural heritage management protocols and the establishment of a Ranger Program to manage Country.
[397] There are no other matters the panel considers relevant to their determination, beyond the question of conditions which it will turn to below.

[238]

[403] The Tribunal possesses a broad power to determine that an act may be done subject to conditions to be complied with by any of the parties to the inquiry.[384]
[404] Where the Tribunal makes a determination that an act may be done subject to conditions,[385] this has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties.[386]
[405] The power of the Tribunal to impose conditions does have some limitations. As noted by Justice Rangiah in the principal reasons of the Full Court,[387] the Tribunal must not determine a condition which has the effect of entitling the native title party to any 'profit-sharing' payments.[388] The Tribunal is also prohibited from making a determination as to the amount of compensation to be paid to a native title party under Division 5 of the Native Title Act.[389] The Tribunal may however impose a bank guarantee or trust condition that an amount is to be paid to secure any future determination of compensation in relation to the act.[390]
[406] As correctly noted by then-President Dowsett in the 2022 Determination, the subject matter of conditions should be guided by the criteria for making arbitral body determinations listed in s 39 of the Native Title Act.[391]
[407] The Tribunal must give a full and final determination of the issues before it. This requirement also extends to conditions, and the Tribunal cannot impose a condition that would defer or delegate the determination of any issues between the parties.[392] The evidence adduced in the matter should also support the need for the imposition of any conditions.[393]
[408] With these principles in mind and having regard to the facts and evidence before us, the panel is of the view that three categories of conditions should be imposed in this matter.
[409] The first condition category is domestic supply. The panel finds the acts may be done on the condition that all gas extracted from the Project must be used for domestic supply only, to address the forecasted energy supply gap facing the Australian domestic gas market. See reasons set out at [324] to [328] above.
[410] The grantee parties and the State have put evidence and contentions before us to demonstrate that the Project is in the public interest as it is required to secure domestic energy supply in NSW. Whilst acknowledging the detrimental impact of the Project through the contribution of GHG emissions and climate change, those parties also assert it is critical to allow the transition away from reliance on coal-fired power plants to supply the NSW and Australian domestic energy market.
[411] The Tribunal also has evidence before it that there is a more than adequate amount of gas already being extracted nationally to meet the energy market needs of NSW and across the Australian domestic market, however such gas is contracted to offshore customers and is not readily available to meet the short-term forecasted energy supply gap.
[412] Having regard to all the evidence before us, for there to be a net weighing that the Project is in the public interest, all of the gas recovered must be used for domestic supply only. We also note the grantee parties have made various broad statements, including as part of the IPC process, indicating that the gas to be extracted from the Project is intended to meet the domestic supply needs.[394]
[413] The second condition category of conditions relate to Aboriginal cultural heritage. The panel is of the view that the Additional Research Program, identified in the ACHMP,[395] must be implemented and completed prior to the commencement of Phase 2 of the Project to ensure the protection and preservation of cultural heritage. This was also a condition in the 2022 Determination.
[414] The panel also agrees with native title party's contentions that under the current NSW heritage protection regime there is insufficient protection when it comes to intangible cultural heritage, and the NPW Act operating after harm or desecration has already occurred, operating as a deterrent but not a scheme to reduce any likelihood of damage such as might be achieved by requiring pre-clearance surveys be conducted by the traditional owners of the impacted land and waters.[396]
[415] Further, also noted by Gomeroi, as the Project is classified as a State Significant Development by the State, an AHIP is not required and the offences relating to the desecration and harm of Aboriginal objects and places do not apply.[397]
[416] Based on the evidence before us relating to matters of cultural heritage, the panel has imposed several conditions related to matters addressed in the ACHMP, to address the protection and preservation of cultural heritage. See reasons set out at [230] to [237] above.
[417] The third condition category deals with a fully funded and implemented Ranger Program covering the entire Pilliga Forest. The program is to be implemented to manage Country, protect the environment, and monitor and manage ecological threats, including through weed control, the protection of water, and cultural burns aimed at minimising fire risk and damage. There is persuasive evidence before the panel relating to the cultural concerns and obligations of the native title party to care for Country across the important cultural landscape of the Pilliga Forest. These concerns and obligations are only heightened in the current climate change environment facing us all. Importantly, this evidence also relates to cultural safety, and cultural safety is an important matter of public interest. This evidence was not contested by any of the parties. Nor did the grantee parties or the State challenge the native title party's expert evidence going to health, environmental, and ecological risks and adverse direct and indirect impacts of the Project.[398] The Ranger Program is intended to address these matters for the reasons set out in this determination.
[418] As noted earlier in these reasons, the parties were given the opportunity to comment on the categories of conditions the Tribunal intended to impose. All parties filed contentions addressing this issue and the panel has had due regard to such contentions.

[242]

When, prior to commencing any activities on the leases, the grantee parties submits a plan of proposed operations, application, approval, or assessment, including in relation to any pipelines, environmental or other matter related to the Project, the grantee parties must at the same time give to the native title party a copy of the proposal, application or assessment, excluding sensitive commercial data, and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
The Aboriginal Cultural Heritage Working Group set out in Cl 5.3 of the ACHMP, responsible for assisting in the implementation of the plan, shall be comprised of a maximum of 10 people. Up to 8 persons with traditional authority and responsibility for the Pilliga area must be members of, and nominated by, the native title party or any prescribed body corporate determined to hold such native title rights and interests on trust. For the avoidance of doubt, this condition applies notwithstanding any different, contrary or alternative composition provided for in the ACHMP.
The Cultural Heritage Coordinator and any of the Cultural Heritage Officers referred to in Cl 5.4 of the ACHMP must be members of, and be nominated by, the native title party or any prescribed body corporate determined to hold such native title rights and interests on trust. Such persons must have traditional authority and responsibility for the Pilliga area and not be an employee of the grantee parties. For the avoidance of doubt, this condition applies notwithstanding any different, contrary or alternative terms provided for in the ACHMP.
All references to the Santos Aboriginal Cultural Heritage Site Register in the ACHMP must be changed to and replaced with 'Narrabri Aboriginal Cultural Heritage Site Register'.
The grantee parties must acknowledge and agree that all cultural information obtained and recorded in the Narrabri Aboriginal Cultural Heritage Site Register remains the intellectual property of the native title party and must only be used as permitted by them in relation to the Project and at all times the Register must be used in accordance with any traditional laws and customs that may apply in relation to such information, such as gender restrictions on access.
The grantee parties must provide the native title party with access to the Narrabri Aboriginal Cultural Heritage Site Register maintained for the Project whenever requested. All requests from the native title party for access to the Register must be made to the Cultural Heritage Coordinator who must then obtain such access from the grantee parties.
Notwithstanding anything to the contrary contained in Cl 5.8.4 of the ACHMP or otherwise, no pre-clearance surveys or work programs are required only when the area has already been surveyed by the parties for the same scope of works and in accordance with the ACHMP and these conditions.
Notwithstanding anything to the contrary contained in the ACHMP or otherwise, the grantee parties will not undertake any future ground or surface disturbing work on or within 500 metres of the following sites of significance to the native title party, without the prior written consent of the native title party:

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (510 paragraphs)

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

Parties

Legislation Cited (13)

Cases Cited (18)