The Gomeroi people won an appeal in the Federal Court on March 6 which sets back Santos’ push for its extensive coal seam gas project in the Pilliga Forest and farmland near Narrabri in northern New South Wales.
The court found that the Native Title Tribunal’s decision in 2022 had not taken in account the expert evidence of climate scientist, the late Professor Will Steffen.
The court’s decision has overturned the Tribunal’s finding which approved Santos plans to mine coal seam gas from.
Chief Justice Debra Mortimer ruled that climate change impacts must be considered before determining whether a fossil fuel project could go ahead on native title land.
Lily O’Neill and Rebekkah Markey-Towler wrote in The Conversation on March 8 that the decision was also significant because it is the first time the Court has ruled that “climate change must be part of the public interest test before the National Native Title Tribunal can allow a project to proceed on native title land”.
“The decision puts native title holders in a stronger position when fighting to prevent future fossil fuel projects,” they said. “There’s no guarantee of success, but it’s clear climate impacts can no longer be dismissed.”
Under the Native Title Act companies must negotiate with Traditional Owners for at least six months. But the stipulation to negotiate does not automatically mean an agreement is reached.
Around 850 gas wells are planned to be drilled over 20 years to extract the gas. The wells and infrastructure, including gas processing and water treatment facilities, would occur in a 1000 hectare section of the 95,000 project area.
The Gomeroi have always opposed the extraction of gas.
Polly Cutmore, a Gomeroi custodian, said that while she is pleased with the court’s decision that climate change has to be taken into account, it also reveals that the tribunal is not working.
“We found the Tribunal bordering on racist, and the Gomeroi People were grieved to find out the president has family who were working on the Narrabri Gas Project, the very matter he was looking after!
“The tribunal system needs to be overhauled completely to make it fairer for first nation [sic] people.”
The Act states that Traditional Owners (TOs) have no right of veto. Even with no agreement, the company can apply to the tribunal to grant native title approval, against the wishes of the TOs.
“Companies know they are likely to win once they get to the tribunal,” wrote O’Neill and Markey-Towler. “The tribunal has only ever sided with native title holders trying to prevent resource extraction project on their Country three times, most recently back in 2011. In comparison, it has sided with the developer 149 times.”
Suellyn Tighe, another Traditional Owner, said the groundbreaking decision needed to be followed up with changes to the process which included the fact that “these fossil fuel companies are impacting on climate change”.
Cutmore said: Our law and stories tell us that the Pilliga Forest is an important cultural place for us: it cleans our water and air, is home for our totem animals. Our law says the Pilliga needs to be left alone … our groundwater is too important to be tampered with. It is the course of all life in Gomeroi country and has helped us survive though harsh time through the ages.”
NSW Greens spokesperson Sue Higginson and former chief solicitor for the Environmental Defenders Office, said the decision “sets a massive precedent for the future of similar appeals”.
“The Gomeroi people have taken on gas giant Santos and won. This is a huge victory for the environment, a massive win for the planet and a beacon of hope for future appeals.”
However, Santos has not given up on the gas project, saying on March 7 it is “100% committed to the domestic market” and is continuing to “work trough land access, native title, pipeline licensing and remaining environmental approvals to get Narrabri and Hunter Gas Pipeline ready for a final investment decision”.
The fight to stop Santos from destroying the Pilliga Forest and the Great Artesian Basin continues.