The Full Court of the Federal Court has upheld an appeal against a National Native Title Tribunal (NNTT) determination allowing for the grant of four petroleum production lease (PPL) applications to Santos NSW Pty Ltd (Santos) within the Narrabri gas project area.
This decision confirms that environmental factors are relevant considerations for the NNTT when considering the public interest in the grant of mining and petroleum tenements.
Partner Damian Roe and Solicitor Matthew Clarke discuss the decision in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26.
Background
In 2014, Santos lodged four PPL applications within the Narrabri gas project area, falling entirely within the area of a native title claim by the Gomeroi People. Santos was required under the Native Title Act 1993 (Cth) (the Act) to negotiate with the Gomeroi People regarding the applications, with a view to receiving the Gomeroi People’s consent to applications’ approval.
Having failed to reach agreement, the matter was referred to the NNTT for a determination of whether the PPLs should be granted. The NNTT determined that the leases may be granted, subject to the implementation of a further research program.
Grounds for review
The Gomeroi People appealed the NNTT’s decision to the Federal Court on six questions of law. Five of the six grounds of appeal related to Santos’ obligation under the Act to negotiate in good faith. All five grounds were unsuccessful.
The final ground of appeal alleged the NNTT 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”.
Reasoning behind the decision
The Full Federal Court of Australia (with one judge dissenting) upheld the appeal on the basis that the NNTT incorrectly failed to consider environmental factors when considering the effect of the proposed granting of leases on environmental factors.
The Gomeroi People argued that environmental factors ought to have been considered by the NNTT when taking into account:
- any public interest in the doing of the act; and
- any other matter that the arbitral body considers relevant,
under section 39 of the Act.
The NNTT had considered that, following amendments to the Act made in 1998, environmental factors did not fall within the concept of public interest and could not be considered except to the extent any environmental impacts had a particular effecton the Gomeroi People’s native title rights or interests. The NNTT also stated that it was inappropriate for it to evaluate the environmental impact of the project given such an assessment had already been undertaken by the New South Wales Independent Planning Commission.
Chief Justice Mortimer rejected the NNTT’s conclusion, finding that the NNTT ought to have taken into account environmental factors raised by the Gomeroi People when assessing the public interest of granting the PPLs.
The Chief Justice stated that consideration of public interest “is not limited to a public interest that has a direct or indirect effect on native title rights and interests” and the requirement of section 39(1)(e) regarding the public interest remained the same before and after the 1998 amendments. The public interest of environmental matters such as climate change can be considered in a broader context.
Justice Rangiah dissented, stating that the relevant provision should be construed according to its grammatical meaning, only requiring an arbitral body to “take into account any matter of public interest that favours or supports the doing of the proposed future act”.
Conclusion
The parties have been afforded time to propose orders to give effect to the court’s findings. It remains to be seen whether the matter will be re-heard by the NNTT, or simply re-considered on the public interest point on the evidence already provided by the parties.
The upholding of the appeal further delays and casts doubt over the granting of the PPLs to Santos in the Narrabri gas project.
The decision represents a key development in the interpretation of section 39 of the Act and confirms that environmental matters are relevant factors when considering the effect of a proposed act on the public interest.