Native title tribunal determination in favour of Narrabri gas project

The National Native Title Tribunal has issued a determination in favour of the Santos Narrabri gas project with a decision to allow the NSW government to grant leases to the company for gas extraction.

As part of the determination handed down on Monday, the approval is subject to three conditions.

All of the gas recovered as part of the project would have to be used for domestic supply only.

The project must also strengthen Aboriginal cultural heritage protections, as the evidence demonstrated identified risks to cultural heritage, including as a result of the project’s classification as a State Significant Development.

A ranger program covering the Pilliga Forest must be implemented to manage country, protect the environment, and monitor and manage ecological threats. These conditions go to the cultural concerns and obligations of Gomeroi people, but also cultural safety and environment as important matters of consideration under public interest.

“Weighing the public interest evidence, including the evidence addressing environmental matters, the panel has found the project offers a net public benefit, particularly where conditions are imposed to address the environmental and social impacts,” the tribunal’s determination read.

“When considering public interest, the panel placed significant weight on the project providing energy reliability if all the gas produced is made available to the domestic market as intended. The evidence in this matter has shown that if the leases are not granted, there will likely be a gap in the available supply of reliable, secure energy on Australia’s east coast, which would have significant short-to-medium-term detrimental impacts upon the wider community, including Gomeroi people.”

The NSW Independent Planning Commission approved the $3.6 billion project in 2020.

In December 2022, the National Native Title Tribunal determined in favour of the project, subject to conditions. The Gomeroi people lodged an appeal of the determination with the Federal Court in January 2023.

The Full Court of the Federal Court unanimously rejected the five grounds of appeal relating to good faith. The appeal was, however, allowed on ‘Ground 3’, with the Full Court finding the tribunal erred in concluding it was prohibited from considering environmental matters except in relation to a ‘particular environmental concern having particular effect on native title’.

In April 2024 the 2022 determination was set aside, and the lease applications were remitted back to the tribunal for hearing and determination according to law.

A proposal by Santos to construct a 30-kilometre pipeline linking the Narrabri gas project to the Hunter gas pipeline is awaiting assessment by the federal government.

In a statement, the company welcomed the determination which clears the way for petroleum production leases to be granted for its project.

“The ‘future act’ decision is an important step forward for this new domestic gas supply project, with the NSW government now able to proceed with the granting of petroleum production leases,” the company’s statement read.

“In 2024 the Federal Court dismissed five grounds of appeal by the Gomeroi that were based on allegations that Santos had failed to negotiate in good faith during the right-to-negotiate process, upholding the original decision of the tribunal that Santos met its obligations to negotiate in good faith.

“Santos has been engaging constructively with the Gomeroi people since 2012 with formal negotiations commencing a decade ago in 2015.

“Like all communities, there are a range of views about the Narrabri gas project across the roughly 13,000 individuals who identify as Gomeroi in NSW. Santos will continue to engage constructively and work closely with the Gomeroi people 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.

“Santos has committed 100 per cent of Narrabri gas for supply to the domestic market. The project could provide up to half of New South Wales’ natural gas demand. Supply into
the domestic gas market is now also a condition of the ‘future act’ determination.

“Narrabri gas will be lower-cost gas for NSW customers compared to gas imported from interstate or overseas, and that’s why this project is so important for NSW manufacturers, businesses, electricity generators and households.  Both the Australian Energy Market Operator and the Australian Consumer and Competition Commission acknowledge the critical role new gas supply sources, such as Narrabri, could play in supporting energy reliability and affordability on the east coast.”

NSW Greens MLC and spokesperson for the environment and First Nations justice, Sue Higginson, said the decision prioritised fossil fuel profits over the rights of First Nations people, the protection of sacred country, and the future of the environment and climate.

“This result has completely failed the Gomeroi, demonstrating the severely broken system for land rights, and it’s a victory for corporate fossil fuel interests. The Gomeroi people have consistently and clearly opposed this project for over a decade,” she said.

“More than 23,000 public submissions were made against the Narrabri gas project, compared to only 300 in support. A wide coalition of unions, scientists, farmers and community members have stood with Gomeroi traditional owners to stop Santos. This outcome shows how little the rights of First Nations communities matter when profit is on the table.”