Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26

FEDERAL COURT OF AUSTRALIA

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 Appeal from: Santos NSW Pty Ltd v Gomeroi People [2022] NNTTA 74

File number: QUD 13 of 2023

Judgment of: MORTIMER CJ, RANGIAH AND O'BRYAN JJ

Date of judgment: 6 March 2024

Catchwords: NATIVE TITLE – appeal from determination of the National Native Title Tribunal that future act may be done with conditions under Native Title Act 1993 (Cth) (NTA) – whether Tribunal incorrectly applied the test for negotiations in good faith required by s 31 of the NTA – whether the Tribunal erred in finding that the grantee party was required to negotiate with the registered native title claimant in circumstances where there was an application under s 66B of the NTA – whether the Tribunal conflated "payment" in Div 3 of Pt 2 of the NTA with "compensation" in Div 5 of Pt 2 of the NTA – whether the Tribunal denied parties procedural fairness by considering, without notice to the parties, the concept of "market" under Australian consumer law – where the applicant contends the Tribunal's findings about expert evidence were legally unreasonable – appeal dismissed on these grounds NATIVE TITLE – criteria under s 39 of NTA – public interest in doing of act – effect of 1998 amendments to NTA – consideration of approvals and recommendations of other bodies – consideration of expert evidence – whether effects of climate change capable of falling within s 39(1)(e) of the NTA – appeal allowed on this ground

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 44 Competition and Consumer Act 2010 (Cth) s 4E Federal Court of Australia Act 1976 (Cth) ss 20(1A), 24 Native Title Act 1993 (Cth) ss 23, 25, 26, 27, 29, 30, 30A, 31, 33, 34, 35, 36(2), 37(a), 38(1), 39, 39(1)(e), 53, 61, 66B, 108(2), 109, 142, 146, 151, 156, 162, 169, 227, 251B, 253 Native Title Amendment Act 1998 (Cth) Racial Discrimination Act 1975 (Cth) Native Title Amendment Bill 1997 (Cth) Native Title Bill 1993 (Cth) Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Environmental Protection Act 1994 (Qld) Mineral Resources Act 1989 (Qld) Petroleum (Onshore) Act 1991 (NSW)