2. Case Study: Native Title and Climate Change

2.1 Gomeroi People and the Pilliga

Over the last 50 years, significant areas of Country have been returned to First Nations under land rights and native title processes.^[1] With approximately 60% of mining projects occurring in close proximity to First Nations communities,^[2] there is an inextricable link between mining on First Peoples’ Country and climate change. First Peoples must have the opportunity to influence the scale and scope of mining and associated climate change impacts. However, all governments are reliant on mining royalties to fund services for all Australians. The NTA provides for First Peoples the right to negotiate (‘RTN’) with mining and government parties in relation to future acts that may affect their native title rights and interests. There is also a huge power imbalance between First Nations, governments and mining companies in these negotiations.^[3] The potential for First Nations to use the native title system to mitigate against the impacts of climate change is explored in this case study.

The Gomeroi peoples’ fight against CSG in the Pilliga provides an example of First Nations interventions into the Australian legal system to protect Country against climate change. Gomeroi peoples’ resistance also highlights how environmental and native title laws have largely failed to support First Peoples’ obligations to protect Country for future generations. This case study will examine the proposed Santos Narrabri Gas Project (‘NGP’) and how Gomeroi peoples’ objections were disregarded by both state and Commonwealth environmental assessment processes. It will then explore the NTA future acts process for the NGP, which at first instance authorised the project to proceed.^[4] Gomeroi peoples successfully appealed this determination in the Federal Court in 2024, a decision which had the potential to change how First Peoples’ obligations to care for Country and broader environmental factors are considered under the NTA.^[5] However, on remittal of the case to the National Native Title Tribunal (‘NNTT’) the project was found to be in the ‘public interest’ and approved subject to conditions, as will be discussed below.^[6]

2.2 Santos Narrabri Gas Project

The proposed NGP covers 95,000 hectares in the heart of Gomeroi Country, south-west of Narrabri, including the Pilliga forest, a place of cultural and spiritual significance to Gomeroi peoples. It sits within the Gomeroi native title claim area, which was registered in January 2012.^[7]

Santos contends the NGP will make a significant contribution to the NSW economy, providing 50% of the domestic gas supply over 25 years.^[8] The projected greenhouse gas (‘GHG’) emissions from the NGP would represent less than 1% of all GHG emissions from Australia, and approximately half that of coal-powered energy.^[9] The NGP also relies heavily on water drawn from the Great Artesian Basin, with an estimated 4 million litres needed per day to sustain the operation. Santos argues that the NGP is in the public interest because it would provide a secure source of energy to support the transition to renewable energy. It also asserts that the NGP would bring positive economic and social benefits for NSW, through employment, royalties and tax revenue — including $5.4 billion from gas sales, $3.1 billion in royalties and a $120 million community benefit fund.^[10] The NGP is also claimed to benefit local Aboriginal communities through the development of cultural heritage and environmental programs, training and business development, and employment.^[11] The NGP has been the subject of state and federal environmental assessment processes, and most recently a future act determination under the NTA. The outcomes from these processes will be discussed below.

2.3 Gamil Means ‘No’!^[12]

Gomeroi peoples have consistently defended their deep connections to and obligations to care for Country in the face of environmental destruction and so-called development. As the Gomeroi Tribal Nation has stated:

Gomeroi People hold inherent rights in our [C]ountry that were never traded, given or signed away. We the people of the Gomeroi Nation have continued to maintain our cultural identity and practices. As Gomeroi people we recognise our custodianship and ownership rights in [C]ountry, including our unique responsibility to care for land and water, the ecosystem and places of cultural significance … We have cultural obligations to protect our [C]ountry and our special places.^[13]

Gomeroi peoples’ responsibilities to care for Country have been asserted throughout the NGP environmental assessment and approval processes, with objections raised on cultural and environmental grounds. The environmental assessment process was criticised for failing to consider Gomeroi cultural values which could have informed its recommendations.^[14] Gomeroi peoples also argued that the environmental assessment failed to recognise the role of Aboriginal people to ‘determine the cultural value of a place or objects’.^[15] Concerns were also raised about the impact of the NGP on ‘water and our spiritual and cultural traditions … associated with water’, the cumulative impacts of development and intergenerational equity.^[16] In short, Gomeroi peoples asserted that the NGP would have ‘direct and irreversible impacts’ to Aboriginal cultural heritage (including intangible cultural values associated with the landscape and flora and fauna).^[17]

Throughout the NGP environmental assessment process Gomeroi peoples have consistently said ‘gamil’ — which means ‘no’ in Gamilaraay and associated languages. As Jared Field explains it, we have:

… one small gift ‘gamil’. It is the word, as in many east coast First Nations, that my mob take our namesake from: gamil means no. Otherwise put, the word we use to describe ourselves — Gamilaraay — teaching others how we decline to give consent.^[18]

Field urges all people to accept this gift and refuse to allow our land, waters and collective future to be threatened.^[19]

In 2020, ‘Gamil Means No’ became the catchcry of protesters who took to the streets in Sydney, Melbourne, Brisbane and Canberra to oppose the NGP.^[20] However, as will be shown below, the environmental and native title approval processes do not afford First Nations the right to say ‘no’ to stop the destruction of Country. Such processes do not hear ‘gamil’ and consequently stand in the way of First Nations obligations to care for Country.

2.4 State and Federal Environmental Processes

Despite Gomeroi peoples’ opposition to the NGP, both the NSW and federal governments granted approvals for the project in 2020.^[21] Gomeroi peoples’ concerns about the ‘direct and irreversible impacts’ to Aboriginal cultural heritage were ignored. ^[22] Santos’ environmental impact statement considered Gomeroi peoples’ cultural heritage in terms of ‘stones and bones’ (ie physical artefacts, or tangible cultural heritage), without any regard to the intangible aspects of Gomeroi peoples’ culture and spiritual connections to Country.^[23] The fact there had been significant land disturbance in the NGP area was cited as a reason to minimise Gomeroi peoples’ concerns.^[24] For Santos, any potential risks to Gomeroi cultural heritage could be managed through social and community programs, housing and employment.^[25] Gomeroi peoples’ cultural obligations to care for Country were deemed to be either negligible or negotiable in exchange for social and economic benefits.

The NSW Government Independent Planning Commission (‘IPC’) approved the NGP in September 2020.^[26] It concluded that:

… the potential impacts associated with the Project are manageable, and the risks of adverse impacts on the environment are low. The likely benefits of the project warrant the conclusions that an appropriately conditioned approval is in the public interest.^[27]

Despite imposing conditions to protect the Great Artisan Basin and undertake further Aboriginal cultural heritage research,^[28] Gomeroi peoples strongly opposed the post-approval approach to cultural heritage assessment, calling it ‘fundamentally flawed’ and totally unacceptable to Gomeroi Elders and custodians. These concerns fell on deaf ears.^[29]

The NGP was then referred to the federal government for assessment, and its approval was granted in November 2020.^[30] The federal government’s approval was subject to additional conditions to protect biodiversity in the Pilliga and any potential impacts on groundwater aquifers.^[31]

Gomeroi peoples’ reaction to the federal government’s approval of the NGP captured the mood of First Peoples at the time, just months after the destruction of Juukan Gorge, an area sacred to the Puutu Kunti Kurrama and Pinikura peoples, by mining giant Rio Tinto.^[32] Gomeroi woman Linda Whitten said:

It wasn’t a surprise … But it still doesn’t make you feel good … I’m devastated for my people. Because now we have to continue the fight and when does it end.^[33]

Gomeroi traditional owner Aunty Polly Cutmore also said:

This is just another example of attempted, devastating colonialism, only now instead of hiding behind the fence, we’re at the table … Gomeroi people are coming together, the whole Gomeroi Nation are talking about the destruction of the gas mining, especially to the Great Artesian Basin … That’s the number one fight we have — to save the Great Artesian Basin.^[34]

Following a failed challenge to the IPC approval by local farmers,^[35] Gomeroi peoples continued their resistance through native title processes, determined to protect Country for future generations.

2.5 The Native Title Future Acts Regime

The NTA was introduced as the federal government’s response to the High Court’s decision in Mabo v Queensland (No. 2) (‘Mabo’), which found that the Meriam peoples were ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’ in accordance with their traditional laws and customs.^[36] While the Mabo decision is widely credited as rejecting the settler-colonial myth of terra nullius, the effects of the decision were limited to dealings in land, and not to questions of sovereignty.^[37]

The NTA established a process for native title claims with reference to the rights and interests held under First Peoples’ traditional laws and customs.^[38] It created a system for validating past acts granting interests in land that may otherwise be invalid due to the Racial Discrimination Act 1975 (Cth).^[39] The NTA also allows for the ‘extinguishment’ of native title where it is inconsistent with the interests granted to other parties.^[40]

Future acts which may affect native title are also covered by the NTA, with claimants who have passed the native title registration test afforded the RTN with proponents and governments on future acts.^[41] However, the RTN does not give First Nations a ‘veto’ right, or the right to say ‘no’.^[42] The NTA require parties to ‘negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the act’.^[43] The NTA does not hear ‘gamil’ — it does not allow Gomeroi peoples to say ‘no’ to the destruction of Country.

If parties cannot reach agreement within six months they can refer the matter to the NNTT, which has the power to refuse or allow the act (with or without conditions).^[44] However, the NNTT’s power to refuse future acts has rarely been exercised, and then only in circumstances where the proposed future act would impact areas integral to the groups’ culture and connection to Country.^[45] The NNTT may also refuse a future act where the proponent has not negotiated in good faith.^[46]

Going to the NNTT also carries risks for native title parties because the tribunal cannot impose conditions which would enable payments based on ‘the amount of profits made; any income derived, or things produced’ as a result of the future act.^[47] Not surprisingly the NTA has been criticised for allowing proponents to adopt a ‘take-it or leave-it’ approach to future act negotiations.^[48] The RTN only allows First Nations a seat at the table, and an opportunity to negotiate for ‘social and economic benefits’ in exchange for the destruction of Country, law and culture.^[49] Clearly the NTA future act processes fall short of the right of FPIC as required by UNDRIP.^[50] We argue that First Peoples’ obligations to Country need to be re-centred to address climate change and ensure a healthy environment for future generations.

2.6 Gomeroi Native Title Claim

The Gomeroi native title claim covers some 100,000 km² and passed the native title registration test in January 2012.^[51] Despite being in the native title system for more than a decade there is still critical evidence needed before the claim can be decided.^[52] Notwithstanding the lengthy claim process, the real business of native title continues.^[53] Santos applied for four petroleum leases under the Petroleum (Onshore) Act 1991 (NSW) to extract CSG from the project area in May 2014.^[54] Although negotiations between Santos and Gomeroi people started in 2011, the parties have not reached an agreement. In May 2021, Santos applied for a future act determination for the NGP under the NTA.^[55]

In March 2022, Gomeroi peoples voted overwhelmingly to oppose the NGP.^[56] In doing so, Gomeroi peoples were aware they would be excluded from a range of benefits they may otherwise receive. As a media release from Gomeroi peoples stated:

We know that, by going down this path and trying to protect our [C]ountry, we run the risk of not getting any compensation at all from Santos. [But] that’s the way the Native Title Act is.^[57]

For Gomeroi peoples, the love of Country and maintaining Gomeroi law and culture for future generations were more important than money.

2.7 The Public Interest in Caring for Country

Before the NNTT and Federal Court, Gomeroi peoples argued that the NGP should be refused because it was against the public interest in:

Seeking to mitigate and prevent the worst likely effects of global warming, which has consequences at the global, national and local levels; and

The preservation and continuity of the culture and society that underpins the Gomeroi People’s traditional law [sic] and custom.^[58]

Expert evidence from Professor Steffan on behalf of Gomeroi peoples was that the NGP would contribute to GHG emissions and climate change, with the effect of increasing the intensity and frequency of heatwaves, bushfires, droughts, sand and dust storms, and heavy rainfall, together with rising sea levels and coastal flooding.^[59] Professor Steffan concluded that the NGP was inconsistent with the objectives of the 2015 Paris Agreement and not in the public interest due to its detrimental impact on the environment, the economy and human health.^[60] Further, the NGP was inconsistent with recommendations of the International Energy Agency that no new fossil fuel projects be approved, to stop global warming and the impacts of climate change.^{[61] [62]}

Gomeroi peoples argued that the NGP would disrupt their cultural obligations to care for Country, including flora and fauna; their social, economic and cultural structures; and native title rights.^[63] They also argued that the NGP would have a detrimental impact on the Pilliga due to the fragmentation of vegetation zones and risks of groundwater contamination, especially the Great Artesian Basin, a critical water supply which if polluted poses a threat to all life on Gomeroi Country.^[64] Importantly, Gomeroi peoples asserted that long-term environmental considerations should prevail over the commercial gains of a few.^[65] They urged the NNTT to make a fresh decision, and consider new evidence relating to climate change that was not before the IPC or federal Minister.^[66]

Both Santos and the NSW government disputed that Gomeroi peoples had obligations to care for Country, and that the NGP would have detrimental impacts on the Pilliga.^[67] The state asserted that Gomeroi people had not established the Pilliga as a place of spiritual significance to Gomeroi people.^[68] They argued that any impact on native title rights and interests would be minimal and temporary.^[69] Both submitted that the NNTT and Federal Court should follow the decision of the IPC, which had approved the NGP based on substantial scientific evidence, finding that the project was in the public interest.^[70] Further the IPC’s decision had been subject to judicial review and should not be re-litigated before the NNTT.^[71]

The key issue before the NNTT was the interpretation of s 39(1) of the NTA, which sets out the matters that must be considered in making a future act determination, and in particular s 39(1)(e), the ‘public interest’.^[72] While NNTT Member Dowsett accepted that GHG emissions are harmful to the environment, he found the Native Title Amendment Act 1998 (Cth) expressly excluded consideration of environmental issues unless there was a ‘particular environmental concern having a particular effect on native title’ under s 39(1)(f), other relevant matters.^[73] Member Dowsett also found that environmental matters were excluded from consideration under s 39(1)(e), the public interest.^[74]

The NNTT found that Gomeroi peoples had not established that the Pilliga or the NGP area were places of cultural significance to Gomeroi peoples.^[75] Nor had they provided evidence of the exercise of native title rights and interests in the project area.^[76] It also determined that Gomeroi peoples’ concerns were outweighed by the ‘significant public interest in the responsible exploitation of gas reserves’.^[77] The NNTT approved the NGP on the condition that an additional research program be undertaken to assess Aboriginal cultural heritage in the project area to inform the siting of infrastructure and avoid damage to cultural sites.^[78] In reaching his conclusions, Member Dowsett stated that climate change is a ‘worldwide phenomenon’ which cannot be resolved by the NNTT, but rather is ‘a matter for governments’.^[79]

Gomeroi peoples successfully appealed the NNTT decision in the Federal Court in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024].^[80] Chief Justice Mortimer (with O’Brien J concurring) found that the NNTT had taken an unnecessarily narrow view of the public interest and that environmental factors may be considered under both s 39(1)(e), the public interest, and s 39(1)(f), other relevant matters.^[81] The Federal Court found that the NNTT had failed to exercise its distinct function of assessing future acts from the perspective of the native title group, which Mortimer CJ characterised as the tribunal’s ‘veto’ right over development.^[82] Consequently, Mortimer CJ found that Gomeroi peoples had been denied the possibility of a successful outcome, and the matter was remitted to the NNTT to decide according to the court’s reasoning and ‘the law’.^[83]

2.8 The NNTT Determination

Upon remittal to the NNTT, President Smith and Members Eaton and Kelly observed that the task before them was ‘an unprecedented future act determination’ given the Federal Court’s broad interpretation of the public interest.^[84] The Tribunal heard additional evidence from Gomeroi peoples about their cosmology and the relationship to the Pilliga; Gomeroi cultural values relating to land, water and peoples; and how the NGP will impact the physical environment and flora and fauna.^[85] Evidence on the climate change impacts included stress on water resources, mass deaths of wildlife and threatened animal species, impacts on food gathering and ceremony, and negative impacts on human health, including physical and mental health, and cultural and spiritual wellbeing.^[86] From Gomeroi peoples’ perspective, the Pilliga is viewed as ‘an indivisible whole’ that cannot be reduced to its constituent parts.^[87] Further, the NGP would have a significant impact on Gomeroi peoples’ culture and way of life, and enjoyment of native title rights and interests.^[88]

The Tribunal agreed that the Gomeroi evidence demonstrated:

… there is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole …^[89]

However, it found that any risks to Gomeroi culture and way of life were ‘limited, manageable and acceptable’ and could be mitigated with suitable conditions.^[90]

The NNTT interpreted the public interest broadly, including native title recognition and ‘preserving’ Aboriginal culture, and the impacts of GHG on global warming.^[91] Although the NNTT accepted that any GHG emissions would contribute to global warming, it urged a ‘commonsense approach’ and limited considerations to the future act in question, and not the cumulative effects of GHG emissions and climate change.^[92]

The NNTT focused on three key issues relating to the public interest: energy security, environmental protection and social impact.^[93] It found the public benefit in ensuring a secure domestic gas supply to support the transition to renewable energy outweighed concerns about climate change and the impacts on Gomeroi culture and lifestyle.^[94] With respect to the environment, the NNTT noted that the IPC conditions were sufficient to protect the environment and water, biodiversity and the risk of fires.^[95] Although the NNTT found a direct link between the NGP and local climate change impacts, it determined that the full consequences of climate change could not be attributed to the NGP.^[96] Further, the NNTT found that the absence of a reliable, secure source of energy would have detrimental social impacts, and thus the NGP provided a net public benefit.^[97]

The NNTT concluded that there was ‘strong utility’ in Gomeroi peoples being involved in the management of the Pilliga to assist to mitigate the environmental effects of the NGP, including climate change,^[98] recognising that:

Gomeroi people are experts in their traditional knowledge systems as they relate to the environment, and this traditional knowledge will bolster and strengthen the regime which has already been put in place to manage and mitigate the implications of the Project.^[99]

The NGP was approved with conditions to establish a Gomeroi ranger program to monitor and mitigate the environmental impacts of the project.^[100] The NNTT also noted the deficiency of NSW cultural heritage laws and endorsed the IPC recommendation for a further cultural heritage study (including intangible cultural heritage) and that Gomeroi representatives be included in cultural heritage management protocols.^[101] While these conditions go some way to addressing Gomeroi peoples’ concerns, they fall short of the requirements of UNDRIP. They put Gomeroi peoples in the unenviable position of bearing witness to the destruction of Country, while remaining powerless to stop it. Whether these conditions will enable Gomeroi peoples ‘to uphold their responsibilities to future generations’ remains to be seen.^[102]

2.9 Gomeroi Conclusions

The Gomeroi peoples’ successful appeal to the Federal Court created an opportunity for the NTA future act regime to become an effective brake on fossil fuel projects which contribute to climate change when it is deemed to be in the public interest. However, when remitted to the NNTT, concerns about the environment and climate change were found to be outweighed by the public interest in ensuring a secure domestic gas supply to support the transition to renewable energy. In making this decision, the NNTT considered the NGP in isolation, and not the cumulative effects of GHG emissions. This myopic approach to dealing with climate change stands in stark contrast to Gomeroi peoples’ lawful obligations to look after Country for future generations.

Gomeroi traditional owner Aunty Polly Cutmore said of the NNTT decision: ‘we live in a colonial system and the judgement was done by people who haven’t taken consideration of us.’^[103] While writing this chapter in May 2025, the east coast of NSW was inundated with ‘unprecedented’ rainfall and devastating flooding. As the impacts of climate change continue to intensify, is it possible that we may reach a ‘tipping point’ where the public interest in protecting Country against climate change outweighs the use of fossil fuels to support the transition to a renewable energy future? This is a question only the settler-colonial legal system can answer. However, for Gomeroi peoples there is no choice. As Aunty Polly Cutmore says: ‘We are still here and will continue to fight. We love our country.’^[104]

The Gomeroi peoples’ fight against the NGP highlights how state-centred environmental laws maintain colonial dominance over First Peoples by usurping the power to make decisions with respect to Country and thus denying First Peoples’ obligations to care for Country. It also highlights how the NTA has mostly been ineffective in ensuring First Peoples’ custodial imperatives are honoured and respected.

The federal government’s parliamentary inquiry into the destruction of Juukan Gorge found that NTA future act negotiations do not operate on a level playing field.^[105] If native title parties do not agree, proponents can go to the NNTT confident they have a 98% chance of getting approval.^[106] The inquiry recommended a review of the NTA future acts regime, which is now underway.^[107] The Australian Law Reform Commission’s review will examine ways to ensure the ‘fair and efficient operation’ of the system as essential to First Peoples maintaining their ‘distinctive cultural, spiritual, physical and economic relationship’ with Country.^[108] Bringing the NTA into line with UNDRIP and the right of FPIC would go some way to ensuring our custodial responsibilities to Country can be upheld for the benefit of future generations.^[109]

There is an urgent need for a fundamental shift in power relations to acknowledge the lawful obligations of First Peoples to protect Country under First Nations laws. These obligations must not be confined by the NTA or the economic imperatives of state and corporate actors. This moral imperative is a concern not just for First Peoples but for all people who value life on the planet.