Blow for Santos’ Narrabri gas project

A national tribunal’s failure to consider the effect of climate change on native title has delivered another blow to Santos’ Narrabri gas project.

Energy giant Santos is set to suffer a further blow to its Narrabri gas project, after two out of three federal court judges ruled in favour of an appeal against the $3.5bn project lodged by a group of traditional owners in NSW.

Chief Justice Debra Mortimer and Justice Michael O’Bryan agreed with the Gomeroi people’s argument on appeal that the National Native Title Tribunal failed to consider climate change as part of native title when it approved four future petroleum production leases in the northwest of the state.

It means the matter will be sent back to the tribunal to consider public interest in relation to climate change.

“The appeal will be allowed on the basis of one question of law,” the judgment reads.

Santos lost the case on one question of law out of an appeal brought on a total of six questions of law.

Chief Justice Mortimer accepted the submissions of the Gomeroi applicant, who said the tribunal erred in finding that it was prohibited from considering environmental matters except in relation to a “particular environmental concern having particular effect on native title”.

“There was ample material before the tribunal to make good the proposition that a matter of public interest in connection with the Narrabri gas project was the fact (for it was not disputable) that the project would generate substantial GHG emissions, in an undisputed factual context of the connection between GHG emissions and global warming, with the increased harm to people and the environment that comes from global warming,” she said in her reasons, published late on Wednesday.

The Gomeroi people also argued in their appeal that the tribunal was wrong in claiming it didn’t have to consider the impacts of climate change because they were not “particular” to the local area or “part of the mandatory consideration of the public interest” but rather a worldwide concern to be resolved by governments.

Chief Justice Mortimer noted it was the tribunal’s “erroneous understanding of its task … which also led it to dismiss” Professor William Steffen’s expert opinion in the case as that of just one scientist.

“Professor Steffen was expressing opinions that were on their face entirely consistent with the panel of expert authorities of the (Intergovernmental Panel on Climate Change), representing a collection of the world’s leading climate scientists,” she said.

Justice O’Bryan said: “I agree with the Chief Justice’s conclusions with respect to each of the questions of law raised by this appeal; viz, that the tribunal’s determination is not affected by the errors of law alleged in questions one, two, four, five and six of the Gomeroi’s further amended notice of appeal, but the tribunal’s determination is affected by the error of law alleged in question three.”

However a third judge, Justice Darryl Rangiah, said he “reached a different conclusion”.

“In my opinion, neither the construction of s 39(1)(e) contended for by the applicant nor that given by the tribunal is correct,” he said.

“Instead, s 39(1)(e) should be construed according to its grammatical meaning … that it only requires an arbitral body to take into account any matter of public interest that favours or supports the doing of the proposed future act.”

Santos’s Narrabri gas project in NSW was first proposed in May 2014 and falls within traditional owner’s – the Gomeroi people – area of native title claim.

NSW gave notice of its intention to grant four petroleum production leases which triggered the right to negotiate process, requiring Santos, the Gomeroi and state to negotiate in good faith. But despite negotiations, no agreement with the Gomeroi was reached over a period of about seven years.

Santos in 2021 asked the National Native Title Tribunal to allow future petroleum production leases to go ahead. The Gomeroi people alleged during this matter Santos did not negotiate in good faith and the leases should not be granted.

In December 2022, the tribunal found Santos did not fail to negotiate in good faith and the “future act” – of granting the leases – could be done subject to an additional research program.