The National Native Title Tribunal has paved the way for the controversial Narrabri Gas Project to go ahead, rejecting a novel climate change argument that traditional owners had hoped would stop the development.
The tribunal determined Santos's multi-billion-dollar project to build up to 850 gas wells south-west of Narrabri in north-west New South Wales could go ahead with a condition, despite the Gomeroi people not consenting.
The condition requires Santos to take all necessary steps to ensure that additional cultural heritage research is done prior to the project's next stage beginning.
The research would target places and values of particular traditional, anthropological, historical and contemporary significance to Aboriginal people.
The tribunal found the public benefit of the project would outweigh the cultural and environmental concerns of the Gomeroi people.
Santos wants to develop the new coal seam gas field over 95,000 hectares of privately owned farmland and state forest, including the culturally significant Pilliga Forest.
It would require clearing up to 1,000 hectares of land.
The Gomeroi applicant – a group of 19 Gomeroi people – has a yet-to-be-determined native title claim over the impacted land.
Santos has committed to providing all of the project's gas to the domestic market.
It also says the project could potentially meet half of New South Wales' gas demands, and has argued in legal submissions that it will "secure energy supply" to the state, however it's under no obligation to reserve the gas for that market.
What were the arguments?
The parties made arguments about three key things: whether or not negotiations between them were conducted in good faith, whether or not the project would impede native title rights, and whether or not the project is in the public interest.
The Gomeroi applicant argued Santos had not negotiated with it in good faith.
The tribunal rejected this, with president John Dowsett concluding "the evidence, as a whole, does not substantiate the allegation of absence of good faith against Santos".
Secondly, the applicant had argued the project would adversely affect the Gomeroi people's enjoyment of their native title rights and interests, and their culture, traditions and way of life.
This argument was also rejected.
"The Gomeroi applicant submitted … that the Narrabri Gas Project would result in grave and irreversible consequences for the Gomeroi people's culture, lands and waters and would contribute to climate change," Mr Dowsett said.
"The tribunal does not doubt that the Gomeroi applicant's concerns are genuine.
"However the tribunal concluded that the Gomeroi applicant had failed to justify its assertions that the proposed grants would have such effect."
Thirdly, the Gomeroi had also made a climate change argument never before seen in a native title case, contending that the project would contribute to greenhouse gas emissions and "grave environmental harm" and would therefore not be in the public interest.
In expert evidence for the Gomeroi, climate scientist Will Steffen estimated the Narrabri Gas Project would produce more than 100 million tonnes of carbon dioxide-equivalents over its 25-year lifetime.
Professor Steffen is the executive director of the Australian National University Climate Change Institute and a councillor with the Climate Council of Australia.
He used model-based projections from the Intergovernmental Panel on Climate Change's Sixth Assessment Report (IPCC AR6), the Bureau of Meteorology and the CSIRO to outline what would happen to the Narrabri region if global warming exceeded 1.5 degrees.
His prediction was dire, warning of more extreme heat and intense droughts, more days of extreme fire weather, changes in rainfall patterns and heavier rain when it does fall.
Mr Dowsett rejected this argument, instead relying upon the environmental assessment done by the Independent Planning Commission of New South Wales when it granted the project's development consent in 2020.
"The conclusions reached by a statutory body such as the Independent Planning Commission cannot be simply dismissed upon the basis of an assertion by one scientist and sources upon which he or she has chosen to rely," Mr Dowsett said.
The tribunal instead accepted Santos's argument that the project was in the public interest.
"Clearly, there is a substantial public interest in securing the availability of energy resources for the benefit of people in the region, [New South Wales] and Australia as a whole," Mr Dowsett said.
"The proposed grants would provide a public benefit, significantly outweighing the Gomeroi applicant's concerns."
Decision open to appeal
Gomeroi yinarr (woman) Karra Kinchela said she was "distraught" at the decision.
"It's obviously really disturbing to read [the reasons for the decision]," she said.
Ms Kinchela said the additional cultural heritage research which Santos must now do should have been done years ago.
"That should have already been considered before the project was approved," she said.
She also lamented the decision to continue to accept the Independent Planning Commission's environmental assessment, despite Professor Steffen's more recent evidence.
In particular, he relied on model-based projections from the first instalment of the IPCC AR6 released in August 2021, nearly a year after the commission approved the project.
"We can see climate change happening around us," Ms Kinchela said.
"Major flooding over the last couple of months in the Pilliga itself and in the area of the Narrabri Gas Project and how our floodplains are going to be impacted.
"When we're talking about what's going to happen to Gomeroi people, we're talking about what's going to happen to our country and everybody living on it, not just Gomeroi people."
The Gomeroi applicant has 28 days to appeal the decision to the Federal Court.
Ms Kinchela, who is not one of the 19 named people who makes up the applicant group, indicated they would likely appeal against the decision.
In a statement, Santos said it would "continue to engage constructively with the Gomeroi people and work closely with them to ensure their heritage is protected and they benefit from the project development in a range of ways, including through training and employment, and involvement in all aspects of their cultural heritage protection and management."
The company said gas from the project was "essential to ensure Australia's energy transition to renewables and cleaner energy technologies maintains both energy security and affordability for all Australians over the coming decades."
The story of the Gomeroi people's fight to stop the Narrabri Gas Project is told in the podcast WHO'S GONNA SAVE US? a collaboration between triple j Hack and the Science team at RN.
