FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    On or before 4 pm on 13 March 2024, the parties file any agreed proposed orders to give effect to these reasons, including any agreed proposed orders as to costs.

3.    In the absence of any agreement as to appropriate orders, on or before 4 pm on 20 March 2024 the parties file and serve any written submissions (limited to 5 pages) on an appropriate form of order including any proposed costs orders.

4.    Any proposed orders or any submissions in accordance with orders 2 and 3 of these orders will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

1    This appeal from the National Native Title Tribunal on questions of law was heard by a bench of three judges in the Court’s original jurisdiction, pursuant to a direction made by then Chief Justice Allsop under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) on 10 March 2023. This appeal concerns the future act process under the Native Title Act 1993 (Cth), and a determination made by the Tribunal on 19 December 2022 that the grants of four petroleum production lease applications to the first respondent, Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd), may be done, subject, in each case, to one condition (which is not material to the issues in dispute before this Court): see Santos NSW Pty Ltd v Gomeroi People [2022] NNTTA 74. The production lease applications lie entirely within the Narrabri gas project area, and within country claimed by the Gomeroi People.

2    The Tribunal’s determination appears at [1041] of its reasons:

The National Native Title Tribunal determines that the proposed future acts, pursuant to the Petroleum (Onshore) Act 1991 (NSW), being the grants of Petroleum Production Lease Application Numbers 13, 14, 15 and 16 may be done, subject, in each case, to a condition, pursuant to s 38(1)(c) of the Native Title Act 1993 (Cth), such condition being that Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (formerly known as EnergyAustralia Narrabri Gas Pty Ltd) take all necessary steps to ensure that the Additional Research Program, identified in para 5.7 of the Narrabri Gas Project Aboriginal Cultural Heritage Management Plan dated 21 February 2022, be implemented and completed prior to the commencement of Phase 2 of the Narrabri Gas Project, pursuant to the Development Consent granted by the Independent Planning Commission of New South Wales on 30 September 2020.

3    For the reasons set out below, the appeal will be allowed on the basis of one question of law.

BACKGROUND

4    An application for a determination of native title was filed in this Court on behalf of the Gomeroi People on 20 December 2011. The claim was registered on 20 January 2012, giving the registered native title claimant, which I shall call the Gomeroi applicant in these reasons, a “right to negotiate” under the NTA in respect of certain future acts, as defined in the NTA, proposed to occur on the country covered by their claimant application. The NTA confers the right to negotiate on the “registered native title claimant”, being a person or group of persons whose names appear on the Register of Native Title Claims as the applicant: see NTA s 23, read with ss 29 and 30. It is well-established that the right to negotiate is a valuable right that may be exercised before the validity of an accepted claim has been determined: see Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

5    The Gomeroi People’s claim area is located in NSW, and covers in excess of 100,000 square km. It extends to the Queensland–New South Wales border, eastwards up to the western slopes of the New England Tableland, south to the Hunter and Goulburn Rivers and west to the Castlereagh, Barwon and Macquarie Rivers.

6    The future act process, as it applied to Santos’ production leases on country claimed by the Gomeroi People, was set out by the Tribunal in its helpful and concise Determination Summary, which I respectfully adopt:

Santos NSW (Eastern) Pty Ltd and associated companies propose to conduct a gas extraction operation, described as the Narrabri Gas Project. It concerns an area of 95,000ha within the claim area and located to the south and west of Narrabri. On 1 May 2014, Santos NSW Pty Ltd (“Santos”) lodged four petroleum production lease applications, covering an area of about 92,400ha, lying entirely within the Narrabri Gas Project area. On 30 September 2020, the Independent Planning Commission of New South Wales granted development consent for the Narrabri Gas Project, subject to 134 conditions. The decision was upheld by the Land and Environment Court of New South Wales. The relevant Commonwealth Minister has also granted the necessary approval.

Where a State or Territory government proposes to grant certain types of mining tenement, s 29 of the Native Title Act requires that it give public notice of such intention. On 28 May 2014, the State gave such notice concerning the petroleum production lease applications. Thereafter, the Gomeroi applicant, Santos and the State were obliged to negotiate in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants. See s 31(1) of the Native Title Act. Notwithstanding the development consent, negotiations concerning the proposed grants continued until 5 May 2021 when Santos applied to the National Native Title Tribunal for a determination that the proposed grants be made, notwithstanding the fact that the parties had not reached agreement. Negotiations continued after that date.

The Gomeroi applicant now asserts that Santos did not negotiate in good faith. If that were the case, the Tribunal could not determine that the proposed grants be made. See s 36(2) of the Native Title Act. The Gomeroi applicant made numerous assertions concerning Santos’s participation in the negotiations. However the Tribunal concluded that it had not demonstrated absence of good faith. The Tribunal was therefore obliged to decide whether the proposed grants should be made, having regard to the criteria identified in s 39 of the Native Title Act.

7    A map which shows both the Gomeroi claim area and the Narrabri gas project was attached to the Tribunal’s determination, and is attached as an annexure to the Court’s reasons.

8    There was no debate before the Tribunal nor on the appeal that the grant of the production leases to Santos fell within the future act provisions of the NTA.

9    Several of the questions of law raised by the Gomeroi applicant turn on Santos’ conduct during negotiations, and whether Santos negotiated in “good faith”. Relevantly to the appeal, s 31 of the NTA is the source of the statutory obligation to negotiate in good faith. The “negotiation parties” referred to in s 31 are defined in the NTA in s 30A:

30A Negotiation parties

Each of the following is a negotiation party:

(a)     the Government party;

(b)     any native title party;

(c)     any grantee party.

10    Section 31 provides:

31 Normal negotiation procedure

(1)    Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:

(a)    the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b)    the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(i)    the doing of the act; or

(ii)    the doing of the act subject to conditions to be complied with by any of the parties.

Note:    The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).

Government party does not need to participate in negotiations

(1A)    Despite paragraph (1)(b), the Government party does not need to negotiate about matters that the Government party determines do not affect the Government party if the other negotiation parties give written consent.

(1B)    However, the Government party must be a party to the agreement.

Registered native title claimants

(1C)    The requirement that a native title party that is a registered native title claimant be a party to the agreement is satisfied if:

(a)    a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

(b)    if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.

(1D)    The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (1C)(a). A failure to comply with this subsection does not invalidate the agreement.

Negotiation in good faith

(2)    If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

Arbitral body to assist in negotiations

(3)    If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

Information obtained in providing assistance not to be used or disclosed in other contexts

(4)    If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

(a)    providing that assistance; or

(b)    establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

without the prior consent of the person who provided the NNTT with the information.

11    Section 33 provides:

33 Negotiations to include certain things

Profits, income etc.

(1)    Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a)    the amount of profits made; or

(b)    any income derived; or

(c)    any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

Existing rights, interests and use

(2)    Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:

(a)    existing non‑native title rights and interests in relation to the land or waters concerned;

(b)    existing use of the land or waters concerned by persons other than native title parties;

(c)    the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.

12    The premise of these provisions is that the NTA gives a registered native title claimant group or rights holding group a “right to negotiate”, but no right to veto the doing of a future act. Hence why the legislative scheme focuses on the process of negotiation. While there has been little express judicial commentary on the absence of a right of veto, the extrinsic material at the time these provisions were enacted made the legislative intention clear: see Western Australia v Manado [2020] HCA 9; 270 CLR 81 at [70] (Edelman J). The Tribunal has recognised this reality; see for example Minister for Lands (WA) v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 at [184] (President Webb).

13    Where no agreement has been reached, and at least six months have passed since the notification of the future act, s 35 provides for any negotiation party to apply to “the arbitral body” for a determination under the NTA. Relevantly, by s 27(2), the Tribunal was the arbitral body for the purposes of the grant of the production leases.

14    Section 36(2) constrains the Tribunal’s power, relevantly, from making a determination if a negotiation party (such as the Gomeroi applicant) satisfies it that another negotiation party (such as Santos), other than a native title party, did not “negotiate in good faith” as s 31 requires.

15    Section 38(1) sets out the kinds of determination that the Tribunal could make in the present circumstances. They were:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)    a determination that the act may be done subject to conditions to be complied with by any of the parties.

16    A number of mandatory considerations are prescribed for the Tribunal to take into account in making its determination. They are set out in s 39(1):

(1)    In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)    the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)    the way of life, culture and traditions of any of those parties; and

(iii)    the development of the social, cultural and economic structures of any of those parties; and

(iv)    the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)    any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)    the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)    any public interest in the doing of the act;

(f)    any other matter that the arbitral body considers relevant.

17    Therefore, in addition to the constraint on the Tribunal’s powers in s 36(2), by s 38 the Tribunal had a power to determine that the future act must not be done. At [37] of the determination, the Tribunal saw this bifurcation in the legislative scheme between its function in reaching a state of satisfaction about good faith negotiations and its function under s 38(1) (including consideration of the criteria in s 39(1)) as justifying separate consideration by it of these topics. I return to the role of s 36(2) below.

THE TRIBUNAL’S DETERMINATION

18    Following the approach taken by the Tribunal, I will first summarise the Tribunal’s reasoning on the absence of good faith allegation made by the Gomeroi applicant against Santos. In turn, this reasoning gives rise to the matters raised under questions of law 1, 2, 4, 5 and 6.

19    Next, I will summarise the Tribunal’s reasoning on the s 39(1) criteria, especially s 39(1)(c), (e) and (f). In turn, this reasoning gives rise to the matters raised under question of law 3.

Good faith

20    At [105]-[108], the Tribunal set out the legal principles it considered applicable to its evaluation of the Gomeroi applicant’s contentions about the absence of good faith shown by Santos in its negotiations. Where appropriate, it did so by reference to the parties’ respective contentions. This part of its reasons was not directly challenged by the Gomeroi applicant; rather, the challenges related to the later parts of the Tribunal’s reasoning where it applied these principles to the evidence. In written submissions in reply and in oral argument, senior counsel for the Gomeroi applicant clarified that there was no challenge to the Tribunal’s articulation of legal principle; rather only to its application. It is at this point that, in a number of ways, the Gomeroi applicant alleges the Tribunal failed to perform its task, or misunderstood the nature of the inquiry it was required to make into Santos’ alleged absence of good faith.

21    The Tribunal did not accept the Gomeroi applicant’s division of negotiations into distinct periods, finding that division to be arbitrary (see [109]), but did at least appear to accept that there may be factual matters arising during each “period” that it was being asked to assess, and therefore structured its determination by an examination of the evidence from each period nominated by the Gomeroi applicant. At [112] the Tribunal rejected the contention that the good faith obligation commenced at some time prior to notification pursuant to s 29 of the NTA, although it accepted at a factual level that events prior to notification might be relevant. On appeal there was no challenge to that finding, nor to the Tribunal’s ultimate factual finding that the events prior to 28 May 2014 (the notification day) provided “no substantial basis for the assertion that Santos’s conduct fell short of negotiation in good faith”: at [147].

22    In passages which featured in Santos’ submissions, and which are important in terms of understanding the Tribunal’s approach on the good faith contention, the Tribunal stated at [114]-[115]:

The Gomeroi applicant asserts that Santos’s conduct during each negotiation period demonstrates an absence of negotiation in good faith. However it is not sufficient for the Gomeroi applicant simply to identify conduct of which it disapproves. There may be circumstances in which conduct, in itself, demonstrates absence of good faith. However, in the present case, absence of good faith will depend on the availability of the inference that Santos was no longer seeking to reach agreement with the Gomeroi applicant and the State, as to the proposed grants. Section 31(1) does not require continuous negotiation in good faith from a date, arbitrarily chosen by one party, and continuing until the obligation is terminated by operation of the Native Title Act. The question posed by s 31(1)(b) is whether there has been negotiation in good faith, with a view to obtaining the agreement of the relevant native title party.

The fact that a negotiation party finds another party’s conduct to be offensive, or simply annoying, does not necessarily lead to the conclusion that the latter is not negotiating in good faith. There are many ways to negotiate. Methods may reflect the personality and/or professional and life experience of each negotiator. Methods may also reflect a negotiator’s perceptions of the respective strengths and weaknesses of the parties. Negotiation may be in good faith, even if a party drives a hard bargain, perhaps reflecting perceptions as to such strengths and weaknesses. Section 31(1)(b) does not focus on “good faith”. Rather, it focusses on negotiation in good faith, “with a view to obtaining the agreement” of the Gomeroi applicant, to the doing of the relevant acts. That purpose informs the scope of the duty to negotiate in good faith.

23    In these reasons, it is not necessary to traverse in detail the Tribunal’s careful fact finding on the good faith arguments. Where necessary I refer to the fact finding in consideration of the questions of law on the appeal. The Tribunal considered various periods of negotiations with, during each period, a differently constituted Gomeroi applicant. From [148]-[178] the Tribunal set out its finding for the period 2013-2017 (referring to the constitution of the Gomeroi applicant following orders of this Court on 13 August 2013 made pursuant to s 66B of the NTA) concluding (at [178]) that on the evidence:

Setting aside the delay between early 2015 and July 2016, it seems most unlikely that Santos was, for a period of 18 months, from July 2016 until December 2017, participating in an elaborate farce. The evidence suggests that it was trying to maximize the prospects of reaching agreement with the Gomeroi applicant, however constituted. I see no basis for concluding that Santos was negotiating other than in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants. However, given the limitations imposed by the native title claim group upon the Gomeroi applicant (2013-2017), resolution was always subject to its approval.

24    The Tribunal then considered the Gomeroi applicant’s contentions about the period 2017-2022 (referring to the constitution of the Gomeroi applicant following orders of this Court on 7 December 2017 made pursuant to s 66B of the NTA). The Tribunal traced the course of negotiations during this period, including whether during the latter part of this period, there was in fact a negotiation under s 31(1) or whether negotiations about proposed conditions that might attach to a s 38 determination were outside the good faith obligation. The Tribunal also describes an offer made by Santos on 29 March 2021, which had been rejected by the Gomeroi applicant but which remained Santos’ principal offer, to avoid a determination under s 38 of the NTA. The Tribunal also considered and rejected the Gomeroi applicant’s contention that by filing a s 35 application on 5 May 2021, Santos acted unreasonably, and that this was evidence of lack of good faith. In its fact finding in this section the Tribunal also makes findings about delays on the part of the Gomeroi applicant during the negotiations and its conduct in arranging and conducting claim group meetings. By [265], the Tribunal has rejected all of the Gomeroi applicant’s contentions about the 2017-2022 period.

25    The Tribunal then turns to set out five propositions, said to focus primarily “on the period between 7 December 2017 and 5 May 2021, although the propositions may have wider connotations” (at [266]). These propositions, and the Tribunal’s reasoning about them, featured in the parties’ submissions on the appeal.

26    The five propositions were (at [266]):

(a)    Santos’s offer of compensation was below market value;

(b)    Santos did not engage with an expert;

(c)    Santos adopted a fixed position on compensation;

(d)    Santos failed to provide important information; and

(e)    Santos’s use of the future act determination application “lever” comprised an attempt by Santos to take advantage of its stronger bargaining position.

27    Having set these out, the Tribunal commented (at [267]):

The propositions, at least at face value, offer a more coherent approach to the question of negotiation in good faith than does the piecemeal approach adopted elsewhere in the Gomeroi applicant’s contentions.

28    The Tribunal (at [268]-[271]) described each of the propositions in the following way, which was not challenged on appeal:

The first proposition relates primarily to the valuation evidence of Mr Kuo ning Ho, a chartered accountant who provided a report concerning the production levy and royalty payments. The second proposition is concerned primarily with the valuation report of Mr Murray Meaton, which report was dated April 2017. In the third proposition the Gomeroi applicant seems to assert that Santos:

•    knowingly failed to make a “reasonable” offer;

•    adopted a rigid, non-negotiable position in relation to the “unfair” offer of compensation; and

•    took advantage of its superior bargaining position.

It is not clear whether this complaint is about the overall package offered by Santos, or the offer of the production levy. In para 163 of the contentions the Gomeroi applicant asserts that Santos has substantial experience in making agreements. The purpose of such assertion seems to be to demonstrate Santos’s experience in negotiating agreements of the kind sought with the Gomeroi applicant. This proposition seems to have been advanced in order to demonstrate that Santos was obliged to make a “fair” offer rather than bargain in its own interests. It is unclear whether paras 164-168 are concerned with compensation or the production levy.

The fourth proposition is that Santos delayed in responding to, and then declined, the Gomeroi applicant’s request for information and further expert advice. I have dealt with these matters elsewhere in this determination and so will be able briefly to dispose of this proposition.

The fifth proposition relates to Santos’s s 35 application, made on 5 May 2021. I have also dealt with this matter in some detail. I need not further address it at length.

29    From [272], the Tribunal deals with a number of matters it describes as “Preliminary Issue[s]”. This includes the relationship, if any, between negotiations under s 31 and an award of compensation, the evidence of Mr Kuo ning Ho who was an expert witness relied on by the Gomeroi applicant in the inquiry before the Tribunal and the expert report of Mr Murray Meaton to the Gomeroi People, which was annexed to the affidavit of Mr MacLeod in the inquiry before the Tribunal. The Tribunal also deals with the use of the term “markets” by Mr Ho and Mr Meaton. One of the key disputes between the Gomeroi applicant and Santos, in terms of whether Santos negotiated in good faith, concerned the adequacy of part of Santos’ offer by reference to a production levy, or royalties from the Narrabri gas project.

30    The Tribunal also gives detailed consideration to Mr Meaton’s report, finding (at [331]) that contrary to the Gomeroi applicant’s contentions, the evidence strongly suggests that there was extensive discussion between Santos and Mr Meaton, over a considerable period of time. The Tribunal then concludes:

There is no basis for asserting that Santos should have abandoned its own negotiating position in favour of Mr Meaton’s. To treat Santos’s refusal as demonstrating absence of good faith would unjustifiably undermine its ability to negotiate freely, pursuant to s 31(1).

31    The Tribunal then identifies what it describes as a number of weaknesses in Mr Meaton’s report, and rejects the Gomeroi applicant’s contentions about lack of good faith based on Santos’ attitude to Mr Meaton’s views.

32    From [338], the Tribunal considers the evidence of both Mr Meaton and Mr Ho, Santos’ approach to their opinions, and the parties’ contentions about how their respective assessments of the value of Santos’ offers can or cannot demonstrate lack of good faith by Santos. In substance, the Tribunal does not accept the views propounded by Mr Ho and Mr Meaton provided any basis for the Gomeroi applicant’s assertion that the offers made by Santos were so inadequate that they demonstrated a lack of good faith.

33    At [342], the Tribunal considers the evidence of Mr Haydn Kreicbergs, one of Santos’ employees, relating to five other projects in which Santos did not pay a royalty. The Tribunal’s reliance on Mr Kreicbergs’ evidence also forms part of the questions of law on the appeal. At [345], in a passage of some importance to the good faith questions of law on the appeal, the Tribunal found:

At para 5 of the submissions, apparently concerning Mr Kreicbergs’ cross-examination, the Gomeroi applicant asserts that Santos knew that its offer was under value, and failed to expose its methodology for testing in this inquiry, knowing that it, “would not stand such scrutiny.” The proposition seems to be based on some variation of the decision in Jones v Dunkel, asserting that the Tribunal might infer that such evidence was not led because it would not have been helpful. The submission is misconceived. It assumes that there was an obligation upon Santos to make an offer which fell within a particular range. There is no basis for that proposition. The parties were negotiating, not valuing. There was no obligation to make a “reasonable” offer. The obligation was to negotiate in good faith and, of course, it was the overall package which was the relevant consideration. I do not accept the proposition that Santos “knew” that its offer was “under value”. To the extent that the Gomeroi applicant asserts that such knowledge is based upon Mr Meaton’s evidence, I reject the contention. To the extent that the Gomeroi applicant relies upon Mr Ho’s evidence in order to establish such knowledge, I shall presently demonstrate my reasons for rejecting his evidence.

34    At [348], the Tribunal returned to one of the weaknesses it identified throughout its reasoning in the Gomeroi applicant’s contentions; namely the absence in the parties’ negotiation of any connection between the competing monetary calculations and the impact of the grant of the production leases on native title rights and interests:

However neither the Gomeroi applicant nor Santos paid much regard, if any, to the impact of the proposed grants on native title rights and interests, let alone to any additional value representing non-economic or cultural loss. The issue seems to have been raised for the first time in Mr Kreicbergs’ cross-examination. In those circumstances, I see no basis for concluding that Santos’s failure to deal with the issue should lead me to conclude that it failed to negotiate in good faith. Quite apart from anything else, the negotiations were more about maximizing or minimizing the production levy or royalty payments, than about valuing either impact on native title rights and interests, or non-economic loss. In those circumstances, the decision in Northern Territory v Griffiths has no relevance to the current consideration as to good faith.

35    It was this view that led, it would appear, the Tribunal to conclude (at [352]) that the parties were not negotiating about compensation under the NTA, and were rather:

simply seeking to divide up the proceeds of the project, although it may be that an agreed sum, however calculated, may have been paid and accepted in discharge of any compensation entitlement. The parties were at liberty to negotiate on that basis. However it is difficult to see how such open-ended negotiation could be used to discredit the position adopted by Santos. Although lip service has been paid to compensation, there is no objective evidence that the negotiations were conducted on that basis.

36    The Tribunal in substance repeated this finding at [409], during its consideration of Mr Ho’s evidence.

37    From [353], the Tribunal considered in detail the evidence of Mr Ho, who is a chartered accountant, and whom the Tribunal described as having:

provided expert reports for the purposes of litigation in a range of compensation matters, including the quantification of damages, and the valuation of assets. He appears to have been engaged in many different mining and native title matters. He is referred to by NTSCORP in his instructions as the “Economist”, although I do not understand him to claim that qualification. The matter is of no consequence.

38    There was no challenge to this description by the Tribunal. However, the Tribunal’s treatment of Mr Ho’s evidence featured in some of the good faith questions of law.

39    After a detailed consideration of Mr Ho’s evidence, his cross-examination and the parties’ contentions, the Tribunal concluded at [448]-[449] that there were four primary reasons for rejecting Mr Ho’s evidence:

There are four primary reasons for rejecting Mr Ho’s evidence. First, Mr Ho has not demonstrated the basis of his assertion as to the comparability of the comparable projects and associated agreements with the Narrabri Gas Project and the Proposed Terms. As a result, neither Santos, nor the State, nor the Tribunal can assess such alleged comparability, and therefore the relevance and correctness of Mr Ho’s opinions. Second, there is no demonstrated justification for comparing the production levy (separately from the overall offer made in the Proposed Terms) and with incomplete knowledge of the comparable projects and associated agreements. Third, estimates and assumptions which form the basis of conclusions reached in ch 15 of the report are incorrect, as demonstrated above. Fourth, in his discussion of economic principles, Mr Ho stresses the importance of voluntary negotiation. See paras 7.5-7.8, 7.10-7.11 and 7.13 of his report. In his cross-examination, at ts 242, ll 29-38, he describes the right to veto as being “pivotal” in the context of a “free transaction”. However, at ts 243, ll 40-44, he asserts that whilst the Land Rights Act allows a veto, the Native Title Act does not. Whether his view as to the Land Rights Act is correct does not matter. The point is that the Native Title Act, “allows no such veto”. As a result, Mr Ho’s discussion of economic principles in ch 7 of his report seems to be irrelevant for present purposes, given that he there discusses:

•    “an agreement reached on the same basis as any transaction, at a given price, that is satisfactory for both the buyer and the seller”;

•    fair value within a free market;

•    that “a transaction is a voluntary exchange, and the laws of supply and demand provide the sole basis for economic transactions when the participant’s decision to participate is totally voluntary, without coercion or conditions”; and

•    “an asset’s sale price agreed upon by a willing buyer and seller, assuming both parties are knowledgeable and enter the transaction freely”.

Clearly, these asserted concepts have no relevance to s 31(1) negotiations, given the requirement to negotiate in good faith, the absence of a right of veto and the role of the Tribunal.

40    The Tribunal then adds at [450] that Mr Kreicbergs’ evidence, which it accepts, “puts the matter” of any allegation that Santos knew it was making an “under value offer” beyond doubt, in terms of rendering such a suggestion untenable:

I do not understand his evidence to be challenged. It constitutes a coherent explanation of other transactions in which Santos has been involved. In my view, in light of such evidence, there is no basis upon which it can be asserted that Santos ought to have known about, and acted upon opinions such as those allegedly held by Mr Meaton and Mr Ho.

41    From [451], the Tribunal returns to the Gomeroi applicant’s contention, as it describes it, that in order to negotiate in good faith, Santos had to make an offer that was objectively reasonable. The Tribunal rejected this contention (at [452]):

Nor is there necessarily an obligation to make a “reasonable offer”. The Gomeroi applicant’s assertions reflect a misunderstanding of the negotiation process. If an offer had to be “reasonable”, the parties to negotiation would not be able to identify a realistic starting point for negotiations. Further, “reasonableness” generally bespeaks an objective standard against which particular conduct may be assessed. Section 31(1) does not require conduct which is objectively reasonable. It requires only negotiation in good faith.

42    From this paragraph to [459], the Tribunal rejects other contentions of the Gomeroi applicant along the same lines. Then from [460], the Tribunal deals with the contentions about Santos’ alleged failures to provide information required for the negotiations. It finds nothing unreasonable in Santos’ conduct. From [463], the Tribunal also finds nothing unreasonable or demonstrative of a lack of good faith in Santos making a s 35 application at the time it did.

43    Accordingly, from [465], the Tribunal rejects the contention that any of the five propositions, or the evidence said to support them, proves a lack of good faith by Santos.

44    From [468], the Tribunal deals with a supplementary submission, based on alleged contraventions of the Racial Discrimination Act 1975 (Cth). The contentions concerned a NSW government document entitled “Agreed Principles of Land Access”, dated 28 March 2014. Santos’ approach to this policy was said by the Gomeroi applicant to recognise a right of veto in non-native title proprietary interest holders over access to their land by Santos for the purposes of the Narrabri gas project, in comparison to the absence of such a veto for the Gomeroi applicant: see [474] of the Tribunal’s reasons for a summary of the argument.

45    The Tribunal rejected these contentions, and the questions of law do not impugn those conclusions. Therefore it is unnecessary to summarise the Tribunal’s reasoning on this matter.

46    From [488]-[537] the Tribunal deals with some supplementary submissions made by the parties about the good faith arguments. It is unnecessary to summarise the Tribunal’s reasoning in these passages as it is not substantively impugned in any of the arguments on the questions of law. Suffice to say nothing in the supplementary submissions changed the Tribunal’s view of the correct conclusion on good faith.

47    From [549]-[561], the Tribunal summarises its reasoning on the good faith arguments, concluding (at [561]) that there is:

no basis for finding that at any time since the notification day, or before that day, Santos failed to negotiate in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants.

48    Having therefore found that the Tribunal’s powers are not constrained by s 36(2), the Tribunal turns to the s 39 criteria.

Section 39(1) criteria

49    The Tribunal frames its task in the following way (at [562]):

The question pursuant to s 39 is whether, I consider the proposed grants should be made, or should not be made, or should be made subject to conditions. Whilst the good faith question was a matter of fact, the answer being either “yes” or “no”, the s 39 question is of a somewhat difficult kind. It is a matter of judgement. I must assess the factors listed in s 39, and then decide the preferable outcome, having regard to those factors.

50    Before describing the remainder of the Tribunal’s reasoning on the s 39(1) criteria, it is important, for the purposes of question of law 3, to set out what the Tribunal said towards the end of the “good faith” section of its reasoning.

51    From [538], the Tribunal addresses the Gomeroi applicant’s submissions about whether it should adopt the decision of the Independent Planning Commission of NSW relating to the effects of the Narrabri gas project on emissions, or whether it should prefer the evidence of Professor William Steffen, an expert witness relied on by the Gomeroi applicant in the inquiry before the Tribunal. At [542], the Tribunal held:

It is not practicable for this Tribunal to second-guess specialist bodies such as the Independent Planning Commission, save to the extent that there may be specific impact upon native title rights and interests. There may be circumstances in which such a decision should be considered in light of new information or changing scientific views. However, for a non-scientific Tribunal, to take such a step is necessarily the exception rather than the rule. I am not persuaded that the state of the evidence is such that I should depart from the decision of the Independent Planning Commission. That Commission, and this Tribunal, have functions which require the balancing of interests. There are, and will continue to be, differences of opinion about this project, however the matter may be decided. In my view, and for the reasons discussed elsewhere in this determination, the balancing exercise carried out by the Independent Planning Commission is more likely to assist the Tribunal in performing its function than is Professor Steffen’s narrower views, although they are no doubt well informed.

52    The views expressed in these passages inform the Tribunal’s approach to the s 39(1) criteria.

53    From [563]-[693], the Tribunal then proceeds to summarise the evidence relevant to each of the criteria in s 39(1). It is not necessary to set out or describe those summaries, and where necessary I return to this section of the Tribunal’s reasons when considering question of law 3. From [694], the Tribunal sets out the contentions of the Gomeroi applicant on various aspects of s 39(1). It is not necessary to summarise them here, aside from the Tribunal’s recitation of the contentions on the “public interest”. At [769]-[771] the Tribunal summarises those contentions as follows:

The Gomeroi applicant contends that the Tribunal should make a determination that the act must not be done, for the reason that it is, “against the public interest”. At para 267 of its contentions, the Gomeroi applicant states:

If the Project proceeds, a substantial quantity of greenhouse gas … emissions will be emitted. It follows that the grant of the PPLs will not only not assist with meeting the temperature targets in the Paris Accord, but will contribute to higher temperatures than the target and the more extreme impacts of climate change.

At para 268, the Gomeroi applicant submits that there is a public interest in:

(a)     seeking to mitigate and prevent the worst likely effects of global warming, which has consequences at global, national and local levels, and

(b)     the preservation and continuity of the culture and society that underpins the Gomeroi People’s tradition law [sic] and custom.

The only matters of public interest, referred to by the Gomeroi applicant, concern climate change, and the preservation and continuity of the Gomeroi people’s culture and society. These matters will be dealt with elsewhere in this determination.

54    The Tribunal then turns to a number of other contentions made by the Gomeroi applicant, and its conclusions on them, which it is not necessary to canvass as they do not arise on the appeal. From [805]-[965], the Tribunal summarises and considers Santos’ contentions in response and the State’s contentions. Again it is not necessary to descend into any description of these passages. The Tribunal summarises the Gomeroi applicant’s contentions in relation to “public interest” from [947]-[960]. At [966]-[967], the Tribunal briefly summarises the State’s contentions.

55    From [968], the Tribunal sets out its reasoning on the s 39(1)(e) and (f) criteria, under the heading “Consideration”.

56    The Tribunal’s overall approach is encapsulated at [968]-[969]:

In the present case, the Gomeroi applicant asserts that I should, “make a fresh and independent decision”, in effect asking that I review evidence underpinning the decision of the Independent Planning Commission, and then adopt the evidence of Professor Steffen. It is difficult to see any justification for the contention that I should simply disregard processes to which the Narrabri Gas Project has been subject, at both State and Federal levels, particularly having regard to Parliament’s view as set out in the explanatory memorandum concerning the 1998 Act. It would be a big step to set aside the outcome of such statutory processes in order to adopt the views of an individual scientist, or even the views of international agencies having no particular standing in Australia or in New South Wales.

It is surprising that Professor Steffen should have given his evidence on the assumption that the Narrabri Gas Project would involve hydraulic fracturing, or “fracking”. One might reasonably have expected that he would have been appropriately briefed on such matters. It is disturbing that he should dismiss the view of the Independent Planning Commission that there would be “expected emissions advantages” in using coal seam gas rather than coal. He appears to have dismissed the Commission’s views concerning the utility of such advantages on the basis of his view that, “the science is absolutely clear”, impliedly suggesting that the Commission had chosen to ignore the “absolutely clear” science. 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. It is unlikely that the Tribunal could perform that function, or was ever intended to do so.

57    The reasoning at [970] is material to question of law 3:

It is fair to say, as Santos does, that Professor Steffen did not address the matters identified in s 39(1)(a) of the Native Title Act, including the more limited considerations relating to environmental matters, subsequent to the 1998 Act, namely particular environmental concerns having particular effect on native title. In effect, he identifies expectations as to future climate change over the Eastern Australian States, to the west of the Great Dividing Range, from the Darling Downs in Queensland to the Central West of New South Wales. I accept, for present purposes, that such prediction is reasonably open in all the circumstances. However I am presently concerned with the effect of the proposed grants on the Santos project area. There is no identified “particular environmental concern” having “particular effect” on native title, presumably, in this case, the Gomeroi applicant’s native title. There is concern about worldwide climate change, predicted to affect a large part of Eastern Australia. There is nothing “particular” about either the environmental concern, or its effect on such native title. Indeed, the Gomeroi applicant has mounted no such argument. These are world-wide concerns, to be resolved by governments.

58    The Tribunal then states at [974]-[975]:

It seems to me that s 39(1)(f) provides a sufficient basis for taking into consideration the fact that there has been a rigorous examination of a proposed project by a relevant authority. However s 146 of the Native Title Act also provides a basis for reliance upon reports, findings, decisions, determinations, or judgments of the various courts, persons or bodies identified in s 146(a).

Santos contends that the Tribunal’s role is to consider the factors set out in s 39, and not to reassess the Narrabri Gas Project. It does not follow that the Tribunal should simply rely upon views expressed by other tribunals. Nor may they be ignored.

59    From [976], including by reference to Santos’ submissions, the Tribunal explains why it considers it appropriate to rely on the State level assessments and the statement of reasons for decision of the IPC on 30 September 2020. At [987], in a passage material to question of law 3, the Tribunal finds:

I accept that greenhouse gas emissions may lead to environmental harm. However, in my view, since the 1998 Act, it has not been appropriate to consider environmental (or ecological) matters, save to the extent that such concerns may have a particular effect on native title. That matter should be considered pursuant to s 39(1)(f) and subject to the Tribunal’s view as to relevance. In any event, the matter has been extensively considered by the relevant State agencies and appropriate approvals given. There are conflicting views concerning climate change and knowledge is rapidly expanding. Nonetheless a decision has been made by the relevant authority. The Gomeroi applicant seeks to avoid that decision by referring to Professor Steffen’s views. He seeks to dismiss the approvals by referring to additional information including a further report from a United Nations agency. It does not follow that I should simply dismiss the decisions of State agencies. The Tribunal’s concern is with any particular effect on native title. It cannot be said, in this case, that there is any particular effect upon native title which must be considered. The problem is world-wide.

60    From [995] the Tribunal continues on to consider the matters in s 39(2), but this aspect of its reasoning is not impugned on the appeal, and therefore need not be set out.

61    From [1001], the Tribunal sets out its conclusions on s 39, working through each of the criteria in s 39(1). At [1014]-[1016], the Tribunal refers to s 39(1)(c) and (1)(e), finding they may be considered together:

Sections 39(1)(c) and 39(1)(e) may be considered together. There can be no doubt that there is a demand for gas from the Narrabri Gas Project. It seems unlikely that either the State or Santos would otherwise have devoted undoubtedly substantial resources to the project. The proposed grants are of economic significance to Australia, the State and the region, as well as Aboriginal people. Whilst there may be some degree of risk associated with the project, there can be little doubt that the State and Santos have made substantial efforts to minimize the risk. One cannot simply dismiss scientific and engineering experience. Nor is it practicable for the Tribunal to second-guess State agencies in the performance of their prescribed functions, even when faced with Professor’s Steffen’s undoubted expertise, and the information provided by international agencies. In a democracy experts advise, but governments make final decisions and accept political responsibility for the consequences of such decisions.

Aspects of the public interest may be in conflict. Whilst the development of gas resources may be in the public interest, possibly adverse consequences may not be in the public interest. In the present case, the risk of escaping gas and contribution to climate change are factors for consideration, as is, particularly, the public interest in the preservation of Aboriginal culture and society.

The 1998 Act removed the consideration of environmental considerations from the s 39 decision-making process, save when there is a particular effect on native title. There is no apparent matter having such particular effect in this case. Whilst there may be a public interest in the consequences of exploiting gas reserves, there is no doubt that the State, in particular, and the Commonwealth have acted in accordance with State and Commonwealth law.

62    At [1017], the Tribunal deals with s 39(1)(f):

As to s 39(1)(f), I have dealt with the contentions concerning the desirability of a voluntary regime protecting cultural heritage values. I have also discussed the significance of climate change which is discussed in connection with ss 39(1)(c), (e) and (f). As to that matter, even if one takes the approach taken by Santos and the State, rather than that which I prefer, having regard to the 1998 Act and the explanatory memorandum, it is difficult to attach much weight to the public interest, beyond that attributed to it in any consideration of s 39(1)(c). Section 39(1)(f) is of no relevance, given that there is no suggestion of particular environmental concerns producing particular effects on native title.

63    These passages are material to question of law 3.

64    From [1019]-[1024], the Tribunal circles back to the s 39(1) criteria in a more general way, making a series of observations which are also material to question of law 3:

In assessing the s 39 criteria, significant weight must be given to s 39(1)(a)(i). The failure by the Gomeroi applicant to address the effect upon the enjoyment of its native title rights and interests is of some importance. The matters identified in ss 39(1)(a)(ii) and (iii) are closely associated with such enjoyment. The Gomeroi applicant’s failure to distinguish, between the native title claim area and the Pilliga on one hand, and the Narrabri Gas Project area and the Santos project area on the other, is also of considerable importance.

Concerning s 39(1)(a)(iv) Mr Kumarage places great weight upon access as being essential to the exercise of native title rights and interests and associated matters. However any difficulties in access are restricted to the Narrabri Gas Project area, including the Santos project area. In those locations, there may be some limitations on access, as the result of fencing for purposes of safety and security. However the extent of such fencing will be limited. As to s 39(1)(a)(v), there is very little, if any evidence as to the existence of areas or sites of particular significance.

Concerning s 39(1)(b), the Gomeroi has, in the end, taken a hard line in its participation in the s 31(1) negotiation process. Its current position is that there should either be a determination that the proposed grants not be made, or a determination on terms of which it approves. Such an approach makes negotiation difficult. However it also demonstrates that whatever the Gomeroi applicant’s preference might previously have been, it will no longer agree to the proposed grants.

As to the economic and other significance of the Narrabri Gas Project, Santos has identified the considerable worth of the project to the Narrabri area, the State and the Commonwealth. The Gomeroi applicant chose to base its opposition primarily upon climate change, and by its reference to unclear assertions concerning the “involuntary” nature of the development consent process. Given the extensive consideration of the climate change issue by the State, it is obvious that any decision reached by the State or its agencies should be respected. There is no reasonable basis upon which the Tribunal could justify any preference for Professor Steffen’s evidence and the views of United Nations agencies over the State’s decision. Whilst there is, no doubt, a public interest in climate change, the intentions underlying the 1998 amendments are clear.

As to the Gomeroi applicant’s concern with the non-voluntary nature of the development consent process, such concern seems to be focussed upon the operation of the Aboriginal Heritage Management Plan. The State required that such plan be incorporated into the development consent. Pursuant to the Plan, the Gomeroi applicant is represented on the Aboriginal Cultural Heritage Advisory Group and the Aboriginal Cultural Heritage Working Group. It has clear opportunities to express its views. It may be that the Gomeroi applicant’s concerns relate to the representation of other Aboriginal groups on those bodies.

I accept that the Gomeroi applicant has genuine concerns about the recognition and protection of its native title rights and interests, and the associated matters identified in s 39. It is unfortunate that the parties have been unable to agree. I attribute such failure, at least in part, to confusing expert evidence. In any event, the Tribunal must now resolve the matter. There can be little doubt that there is a significant public interest in the responsible exploitation of gas reserves. Substantial resources have been expended by the State and by Santos in ensuring such responsible exploitation. Whilst I understand the Gomeroi applicant’s concern, I consider that, having regard to the matters set out above, its concerns are outweighed by the public interest.

65    From [1025] the Tribunal deals with the imposition of conditions, which is a section of its determination that is not relevant to the questions of law on the appeal.

66    The Tribunal’s actual determination appears at [1041] of its reasons, and I have referred to it at [2] above.

QUESTIONS OF LAW

67    As the respondents pointed out, there was not always a clear correlation between how the questions of law in the further amended notice of appeal from a tribunal were expressed, and the Gomeroi applicant’s submissions in writing and orally. Nevertheless, in my view both respondents were well able to deal with (and did deal with) how the case was advanced at the appeal hearing. If anything, all this meant was that some contentions that might have appeared in the further amended notice of appeal were not advanced in written or oral submissions. I have proceeded on the basis of how matters were advanced in written and oral submissions. It is those contentions which the respondents addressed. The Court can assume counsel for the Gomeroi applicant made some forensic choices about how to advance the questions of law, given there was a degree of overlap on the five questions that addressed the good faith requirement.

68    I set out first my reasons for concluding I should not accept the Gomeroi applicant’s contentions on the five questions of law relating to the good faith requirement. Lastly, I deal with question of law 3, which concerns a different kind of alleged error.

Question 1: Good faith

69    The further amended notice of appeal puts question 1, and the accompanying grounds, as follows:

1    Did the Tribunal apply the wrong test for good faith or, alternatively, incorrectly apply the test correctly identified?

Grounds

The Tribunal erred:

(a)    in finding (at [410] and [450]) that an offeror must actually know (or ought to have known) that its offer is under-value only at the time of making it, and actually know information about comparable projects and associated agreements (at [411] and [459]);

(b)    in finding (at [454] – [459]) that whether an offer is reasonable must only be assessed subjectively from the perspective of the offeror;

in that those findings are inconsistent with authority.

70    In its reply submissions, and orally, the Gomeroi applicant conceded that the Tribunal had identified the correct test for good faith. Instead, it contends this question focuses on the application of the test to the evidence before the Tribunal.

Ground (a)

71    The Gomeroi applicant submits that the Tribunal erroneously only considered Santos’ knowledge at the time it made its first offer to the Gomeroi applicant, rather than considering good faith “in the context of the negotiations as a whole”: Western Australia v Taylor [1996] NNTTA 34; 134 FLR 211 at 218-224, 237 (Member Sumner).

72    In oral submissions, Santos contended that s 31(1) of the NTA does not require conduct that is objectively reasonable but requires negotiation in good faith assessed objectively. Santos contended that the Tribunal considered Santos’ conduct extensively and applied the correct test to the whole of Santos’ conduct, including the conduct in which the Gomeroi applicant complains.

Ground (b)

73    Relying on Brownley v State of Western Australia (No 1) [1999] FCA 1139; 95 FCR 152 at [34]-[35] (Lee J), the Gomeroi applicant also contends that the Tribunal erred in its approach to considering the reasonableness of the offer made by Santos, and in its focus only on the subjective intention of Santos.

74    The Gomeroi applicant submits that the Tribunal failed to consider that Santos had knowledge of Mr Ho and Mr Meaton’s reports in assessing Santos’ knowledge. It submits that these reports were relevant to an assessment of whether Santos “turn[ed] a blind eye”, because Santos knew its offer was outside the range set out in both the reports of Mr Ho and Mr Meaton. The Gomeroi applicant contends that a failure to inquire while holding such knowledge could, and should, support an inference that Santos was not negotiating in good faith, citing International Alpaca Management Pty Ltd v Ensor [1995] FCA 1054; 133 ALR 561 at 596-597 (Beaumont and Carr JJ), cited by Lee J in Brownley at [27].

75    In oral argument, senior counsel clarified that the Gomeroi applicant’s position was that the Tribunal focused too much on its assessment of the expert reports and whether Santos’ offer was in fact “fair value”, rather than looking at the question of whether Santos responded appropriately to the information available to it, especially in not engaging with the opinions of the experts retained by the Gomeroi applicant, and as a result whether it had not acted in good faith.

Question 1: Resolution

76    After the concession by senior counsel that the Tribunal correctly articulated the approach to whether a party has negotiated in good faith, it follows that whether a party such as Santos negotiated in good faith with the Gomeroi applicant with a view to obtaining the group’s agreement to the grant of the production leases (with or without conditions) and therefore Santos undertaking the Narrabri gas project was a question of fact: see Walley v Western Australia [1999] FCA 3; 87 FCR 565 at [11] (Carr J).

77    Subject to the observations I make below at [95] – [97], there was no real dispute between the parties about some of the indicia of acting in good faith, and not acting in good faith, and how a party’s conduct should be assessed. The Gomeroi applicant accepts that an assessment about whether a party has negotiated in good faith pursuant to s 31 of the NTA requires consideration of the conduct as a whole. In Strickland v Minister for Lands for Western Australia [1998] FCA 868; 85 FCR 303 at 321, R D Nicholson J stated:

What is required is the court or Tribunal apply the test of “negotiating in good faith”, in accordance with the common understandings encompassing subjective and objective elements, to the total conduct constituting the negotiations. All those circumstances must be considered against the legal requirements of the phrase “negotiating in good faith”.

78    The Gomeroi applicant also accepts, consistently with established authority, that the question of good faith is directed to a party’s state of mind, and requires an assessment about whether the party is honestly, legitimately and fairly negotiating towards an agreed outcome. Correctly, the Gomeroi applicant contended that this may well involve an assessment of how a party has objectively behaved, as an indicator of the party’s state of mind. However, senior counsel agreed that the inquiry was directed at whether a party was acting honestly, with an open mind, willing to listen and without any ulterior motive. See generally FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; 175 FCR 141; Charles v Sheffield Resources [2017] FCAFC 218; 257 FCR 29.

79    Again correctly, the Gomeroi applicant pointed to authorities that emphasised that acting in good faith, and acting honestly, did not permit a negotiating party to shut its eyes to the obvious, or deliberately refrain from asking questions in case information comes to their attention that they might prefer not to know: see generally, International Alpaca at 596, and also the extract in International Alpaca at 596 from Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 at 389:

these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual…

Nor does an honest person … deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless.

80    Finally, in terms of general approach to the issues before the Tribunal and now raised in the questions of law, it can be accepted, as the Gomeroi applicant put to the Tribunal in its Contentions to the Tribunal at [43], that:

the right to negotiate subsists to a large extent in the statutory duty imposed upon the negotiation parties to negotiate for at least the statutory period, in relation to at least the statutory matters, in good faith. Failure to do so will mean that the Tribunal may not make a s [38] determination.

(Footnotes omitted.)

81    In other words, satisfying the requirement to negotiate in good faith for the minimum statutory period is a constraint on the Tribunal’s powers in s 38 arising. On current authority, if the point is taken by a negotiation party and the Tribunal is satisfied that there has not been a good faith negotiation as required by s 31(1)(b), the Tribunal cannot make a determination under s 38. See generally Cox at [11]. For an example of the Tribunal considering arguments about good faith first, and reaching a conclusion that there was a lack of good faith, and therefore not proceeding with a s 38 inquiry, see Pathfinder Exploration Pty Ltd v Malarngowem Aboriginal Corporation RNTBC [2022] NNTTA 52.

82    I do not accept the Gomeroi applicant’s contentions in question 1. While the Tribunal certainly adverted (at [410]) to the time frame over which the question of Santos’ good faith negotiations should be assessed, the Tribunal did not limit itself to a consideration of whether Santos acted in good faith in making its offer in 2017. To the contrary, as the description above of the Tribunal’s reasoning demonstrates, the Tribunal carefully considered each of the stages of negotiations as articulated by the Gomeroi applicant in the way it put its case to the Tribunal, and considered good faith at each stage, and then, at the conclusion of its reasons, globally.

83    The difficulty confronting the Gomeroi applicant is that the Tribunal was not persuaded on the evidence before it that Santos knew (or even ought to have known, recalling the authorities above) that its offer as a whole, including the production levy component, was unfair, unrealistic or so far below comparable negotiation outcomes that it could be described as an offer not made in good faith.

84    The Tribunal found at [450]:

There is also a broader question as to the relevance of the valuation evidence to the question of Santos’s good faith. The Gomeroi applicant’s contention is that Mr Ho’s evidence and, to a lesser extent, that of Mr Meaton, in some way justify an inference that Santos deliberately made an offer which it knew was so “under value” as to demonstrate absence of good faith. In effect, the Gomeroi applicant asserts that the views attested to by Mr Meaton and by Mr Ho were reflective of the relevant state of knowledge (presumably that of Santos or, perhaps, the public) at all relevant times. There is no evidence to that effect. Even without Mr Kreicbergs’ evidence of Santos’s other transactions, I would have concluded that the Gomeroi applicant’s valuation evidence lacked probative value. However, Mr Kreicbergs’ evidence puts the matter beyond doubt. See his affidavit at paras 87-93 and exhibit HK-14. I do not understand his evidence to be challenged. It constitutes a coherent explanation of other transactions in which Santos has been involved. In my view, in light of such evidence, there is no basis upon which it can be asserted that Santos ought to have known about, and acted upon opinions such as those allegedly held by Mr Meaton and Mr Ho.

85    Mr Kreicbergs was at the relevant time the Manager Cultural Heritage, Aboriginal Engagement & Land for Santos. His evidence set out a table of what he described as “the evolution of Santos' offers to the Gomeroi Applicant”.

86    Mr Kreicbergs deposes (at [88] of his affidavit):

Each of the offers made to the Native Title Party during the course of the negotiations was the highest ever made for an onshore gas project in Australia in Santos' history at the relevant time. The total monetary amount payable to the Gomeroi Applicant is estimated to be approximately $36 - $50 million over the life of the Project. Although it is only possible at this stage to provide an estimate of the total monetary amount payable, even if the actual total monetary amount were at the bottom end of the range, it would be the highest amount paid to a native title group in Santos' history.

87    On appeal, the Tribunal’s statement at [343] of the determination that this evidence was not challenged was not said to be incorrect.

88    Mr Kreicbergs then set out another table, clearly intended to address the evidence of Mr Ho and the report of Mr Meaton, in which he described the summarised benefits in other agreements with native title groups that he considered were “relevant” to the offers made to the Gomeroi applicant. These were a narrower group of agreements than the ones relied on by Mr Ho and Mr Meaton, but Mr Kreicbergs justified why he had narrowed the group down. Mr Kreicbergs also deposed that Santos negotiates with native title groups in Queensland by using a “mature benchmark”, and that “a royalty payment in Queensland is unusual and does not fit into the normal benchmark for Santos”. He also deposed (at [93] of his affidavit), that outside Santos’ own agreements, he was not:

aware of any other agreements made between other resource companies and native title groups as they are confidential and not publicly available.

89    It is true that the Gomeroi applicant’s case was that information about such other agreements was available, through the evidence of Mr Ho and the report of Mr Meaton, and Santos and Mr Kreicbergs were ignoring this. However, the strength of that contention depended upon how reliable and persuasive the evidence of the Gomeroi applicant’s experts was to the Tribunal, and whether the alleged comparisons were objectively justifiable. Obviously, there was not a complete failure by Santos to take the material produced by Mr Meaton and Mr Ho into account because Mr Meaton’s report had been given to Santos in or around May 2017 and Mr Ho’s report would have been considered by Santos as part of the proceedings before the Tribunal. Santos had considered both reports and rejected the conclusions expressed in them. Santos did not agree with the relevance of the material to the terms of its offer; and considered its offer to be within reasonable bounds. As the Tribunal found (at [345], [452], [458] and [459]), as a negotiation party, Santos did not have to agree to other terms or agree to change its offer in order to act in good faith.

90    Mr Kreicbergs’ affidavit evidence (from [95]-[100]) also explained the rationale behind the differences in Santos’ offers to non-native title party landowners and native title party landowners, and explained why a wider range of benefits were included in agreements with a native title party.

91    Again, the Tribunal assessed this evidence and was not persuaded by the Gomeroi applicant’s contentions that there was a lack of honesty or fair dealing in Santos’ approach. Contrary to the Gomeroi applicant’s submissions, it is clear from the Tribunal’s reasons that it assessed Santos’ position for good faith well beyond the time its offer was first made.

92    Mr Kreicbergs’ evidence also explains the Tribunal’s finding at [411] that there was:

no evidence from which it could be inferred that Santos was aware of the information concerning the comparable projects and associated agreements, upon which Mr Ho’s evidence is based. In those circumstances, I cannot infer that Santos failed to negotiate in good faith.

93    The factual finding in paragraph [411] was not impugned as part of any argument on the questions of law. Even if it was implicitly challenged on appeal, the Court was not taken to any evidence or cross-examination of Mr Kreicbergs that could support a finding that the Tribunal erred in making this finding and drawing the inference it did. However, the bigger point is that on this issue of the approach taken by Santos, especially to what it would offer in light of its other engagement with landholders, the Tribunal was simply not persuaded that Santos’ conduct in light of the evidence of Mr Ho and the report of Mr Meaton demonstrated a lack of good faith, and was instead persuaded by the evidence of Mr Kreicbergs.

94    The Gomeroi applicant’s submissions on question 1 have not persuaded me that there was any error in the Tribunal’s approach, in terms of either a failure to look at Santos’ negotiating positions over the relevant period in a ‘global’ way, or in terms of the Tribunal’s approach to the reasonableness issue, to which I now turn.

95    It can be accepted that, in some circumstances, in performing its function under s 38, including whether it is precluded from making any determination by reason of s 36(2), read with s 37(a), the Tribunal may need to make some kind of assessment about whether the position adopted by a negotiation party said not to have acted in good faith involved an offer that was objectively reasonable. In Walley at [14]-[15] Carr J referred to the observations of R D Nicholson J in Strickland where his Honour had said that for the Tribunal to assess whether an offer was a reasonable offer requires “a further and unnecessary level of complexity and application to the interpretation of the words of s 31(1)(b)”. Carr J expressed a “reservation” to R D Nicholson J’s proposition, observing (at [15]):

if a Tribunal, as part of the overall assessment of whether the Government party has negotiated in good faith, finds it useful to consider whether any particular offer (or all offers for that matter) appears (or appear) to be reasonable, then it is open to the Tribunal to engage in that exercise. But that is not to say that it will always be obliged to do so. Much will depend on the circumstances of the particular matter. The Tribunal will be engaged on a factual assessment of the Government party’s conduct and, in some cases, the reasonableness or unreasonableness of its proposals or offers may be relevant. In other cases there may be a difference between making reasonable offers and being reasonable in negotiating in good faith. As the Tribunal noted in Strickland (WF 97/4) the Tribunal is engaged at that stage of its proceedings in deciding a preliminary issue of good faith. In that context, concepts of reasonableness would not exclude the Government party from giving priority to interests of State and not agreeing to proposed concessions.

96    I respectfully agree with Carr J’s observations. They are not inconsistent with the observations of R D Nicholson J, whose attention was primarily directed to ensuring a Tribunal did not become bogged down in its own assessment of whether an offer was “reasonable”, and thus diverting its focus from the good faith constraint. The Tribunal is after all doing no more at the good faith constraint stage than assessing the course of a negotiation, and measuring it objectively against a standard of honesty, open mindedness and willingness to listen. The fact of the making of a patently unreasonable offer in particular circumstances might be one indicia of a lack of honesty and fair dealing. It might indicate an ulterior motive. Or it may not. All will depend on the evidence and the circumstances.

97    In the present circumstances, in my opinion all the Tribunal did at [410] was to explain why, on the evidence, it did not assess Santos’ conduct in the offer(s) made as involving a position so inherently unreasonable as to indicate an ulterior motive, a lack of honesty or an unwillingness to deal fairly and with an open mind with the Gomeroi applicant.

98    Question 1 should be answered against the Gomeroi applicant’s contentions.

Question 2: the meaning of “payment” and “compensation”

99    Paragraph [2] of the further amended notice of appeal states:

2     On a proper construction of the Native Title Act 1993 (Cth) (the Act) is a “payment” in Division 3 of Part 2 of the Act synonymous with “compensation” in Division 5 of Part 2 of the Act?

Grounds

The Tribunal erred in finding that:

(a)     payment agreed pursuant to the right to negotiate is compensation within the meaning of s.53 of the Act (at [279]);

(b)     the “production levy” was a payment proposed to be made by way of compensation for “effect” or “impact” on native title (at [273], [279], [429]-[431]); and

(c)     by reference to s.31 (2) of the Act, that negotiations for payment under the right to negotiate were not the subject of the requirement for negotiation in good faith under s.31(1)(b) of the Act unless the negotiations related to compensation for the anticipated “effect” of a proposed future act on native title rights and interests (at [273]) or “impairment” or “impact” on native title (at [277], [279], [329], [347]-[348], [409], [419], [429], [430], [431], [439], [444], [465] and [518]) because no such limitation forms part of the Right to Negotiate and in particular s.33(1) of the Act;

because those findings are neither consistent with the Act, nor available on the evidence that was before the Tribunal.

100    As the question reveals, this is a challenge to a number of paragraphs of the Tribunal’s determination. However, it was not suggested that as between these paragraphs the Tribunal took any internally different or inconsistent approach and so they can generally be considered together.

101    The question, senior counsel submitted, is whether the statutory term “payment” in s 33(1) is synonymous with the statutory term “compensation” in Division 5 of Part 2 of the NTA. The Gomeroi applicant submits that the two terms are not synonymous but the Tribunal treated them as if they were, in substance requiring that a payment referred to in s 33(1) must have a connection to an impact or effect on native title rights and interests. Senior counsel used, as an example of the alleged error, paragraph [279] of the Tribunal’s determination:

The negotiation prescribed by s 31(1) of the Native Title Act does not involve concepts such as “fair value” or a “free market”. Nor is there any indication as to the subject matter of any valuation exercise. The section requires that the parties negotiate in good faith with a view to reaching agreement as to the proposed grants. No doubt, such negotiation is likely to involve consideration of financial aspects, but there is no indication as to the nature of such aspects, or as to how they may be calculated. Given the frequent references to compensation in the evidence, it would seem that any financial aspect would be compensation for impairment of native title, a matter which was considered by the High Court in Northern Territory v Griffiths. However, as far as one can see, there has been no attempt to compare the extent of any impairment of the Gomeroi people’s native title rights and interests with the extent of any impairment in the various comparable projects which have been taken into account in the reports of either Mr Meaton, Mr Ho, or both.

(Emphasis added.)

102    Santos contends that the asserted error regarding conflation of payment and compensation was not made, and the alleged findings said to evince this error are mischaracterised. Santos points to [309] of the determination to demonstrate that the President distinguished negotiation under subdivision P and compensation under s 53 of the NTA. In Santos’ submission the alleged error is based on a misreading of the determination. The Gomeroi applicant then concedes at [12] of its reply submissions that the President appeared to interpret the NTA correctly at [309], but then evaluated Mr Meaton and Mr Ho’s evidence against an erroneous interpretation of the NTA, and this erroneous interpretation led the Tribunal to find their evidence was not “valid” (this being the Gomeroi applicant’s description).

103    Santos submits that, contrary to sub-paragraphs [2(a)-(b)] of the further amended notice of appeal, paragraphs [273], [279] and [429]-[431] of the determination do not contain a finding that payment agreed pursuant to the right to negotiate is compensation within the meaning of s 53 of the NTA, but rather contain comments and criticism about the evidence. Similarly, Santos submits that the paragraphs of the determination impugned in sub-paragraph [2(c)] of the further amended notice of appeal contain no such finding but rather again contain comments and criticism about material from Mr Meaton’s report and the evidence of Mr Ho. Santos submits that the President’s findings relate to the probative value of the Gomeroi applicant’s evidence relating to whether the offer(s) made by Santos were so far below market value so as to form the basis for an inference of an absence of good faith. Santos submits that in these circumstances it is incorrect to assert that the impugned paragraphs amount to a “finding” that negotiations were not subject to good faith requirements unless the negotiations related to compensation for the anticipated “effect (…) of a proposed future act on native title rights and interests” (citing the Gomeroi applicant’s submissions in the appeal at [20]).

Ground 2: resolution

104    Santos’ submissions in answer to question of law 2 should be accepted. Read fairly, the Tribunal’s reasons do not suggest any conflation of the concept of compensation in Division 5 of Part 2 of the NTA and the concept of a “payment” in s 33(1). The Tribunal did not make any finding, express or implicit, that any condition for a “payment” that is included in an agreement, as s 33(1) contemplates it might be, is limited to payments connected to the impact or effect of the act on the native title rights and interests of the native title party.

105    In the paragraphs identified in question of law 2 above, the Tribunal was doing no more than addressing contentions put by the Gomeroi applicant, or making an observation about the way the case was conducted. Paragraph [279] of the determination set out above is a good example. There the Tribunal made an observation about the way the Gomeroi applicant put its case, and the emphasis in its own evidence that the negotiation involved a debate about “compensation”.

106    At [277] of the determination, the Tribunal is critical of the comparisons sought to be drawn with payments made to different native title holding groups for different projects, observing (and this was not challenged) that “there is no evidence as to comparability, save for assertions to that effect, with no supporting evidence”. In what might for the Gomeroi applicant be the high point of its arguments on this question, at [278], the Tribunal continues its criticism of the attempt in the evidence at making comparisons:

In short, it seems to be suggested that “compensation” for impairment of the Gomeroi applicant’s native title rights and interests should be determined by reference to amounts paid by other companies in connection with other projects. However no attempt has been made to compare impairment of native title rights and interests in connection with those projects with that which might be attributable to the proposed grants.

107    On one reading, the last sentence might be thought to imply that such a comparison was required by s 33(1), in order for a condition about payment to be imposed as part of any agreement reached between a native title party and a grantee party. However, read fairly and in the context of the whole of the Tribunal’s determination, I do not consider that is the implication that should be drawn, especially since the remainder of [278] returns to a critical evaluation of the evidence of Mr Meaton and (more so) Mr Ho. Indeed, as with other parts of the Tribunal’s determination relied on for this question of law, the conflation, if any, appears to be in the Gomeroi applicant’s evidence and argument. For example at [348], and after a brief discussion of the High Court decision in Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1, the Tribunal states, responsively to at least what it understood to be a submission put by the Gomeroi applicant, that:

Mr Kreicbergs accepted that Santos’s compensation policy did not have any provision for such additional amount. However neither the Gomeroi applicant nor Santos paid much regard, if any, to the impact of the proposed grants on native title rights and interests, let alone to any additional value representing non-economic or cultural loss. The issue seems to have been raised for the first time in Mr Kreicbergs’ cross examination. In those circumstances, I see no basis for concluding that Santos’s failure to deal with the issue should lead me to conclude that it failed to negotiate in good faith.

108    In my opinion, the Tribunal’s determination does not disclose the kind of misunderstanding alleged. The Tribunal was dealing responsively with the way contentions were put to it, and how the evidence adduced by the Gomeroi applicant was couched. In both cases, there was something of a focus on the monetary amounts being negotiated as involving compensation.

109    For example, in the Gomeroi applicant’s Contentions to the Tribunal:

(a)    At [7(c)], one of the features of Santos’ alleged failure to negotiate in good faith was described as “failing to send negotiators with authority to vary the unreasonable offer of compensation”;

(b)    At [93], [94], [100], [120], Santos’ first offer was described in several places as an “offer of compensation”;

(c)    At [128] in contending why Santos’ conduct was not in good faith, what Santos offered was again described as a “offer of compensation”;

(d)    In the sub heading from [137] onwards, and in [140], Santos’ offer is described again as an “offer of compensation”, with the “financial components” being described as the “production levy” and “‘milestone’ payments” at [138]; and

(e)    In the context of contentions about Griffiths, cultural loss and connection to country at [158]-[159], the Gomeroi Contentions again describe the payments as “compensation”.

110    The Contentions continue in this vein. It is not necessary to set out all of the remaining times they employ the concept of compensation to describe Santos’ offer, and why it is said to be inadequate.

111    At [21] of its submissions in this Court, the Gomeroi applicant makes the following submission:

Right to negotiate payments, like consent, are agreed prior to and in anticipation of the doing of an act. They are prospective. This is what Santos’s proposed Production Levy seeks to do[.] By contrast, compensation requires the quantification of actual damage, after the fact. It is retrospective.

112    While the distinction may not be quite as binary as the submissions suggest, it can be accepted that the ability of native title holders, or registered claimants, to pursue payments as part of their statutory right to negotiate serves a different and wider purpose from the ability to seek compensation for the doing of certain acts under Division 2 of Part 5 of the NTA, although the two purposes are not mutually exclusive and there may be some overlap. This matter need not be taken further, since the premise of question of law 2 is incorrect, and the Tribunal did not take the approach alleged by the Gomeroi applicant.

113    Senior counsel referred to the terms of s 31(2) of the NTA, which provides:

If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

(Emphasis added.)

114    In both written and oral submissions on appeal, the Gomeroi applicant submitted that this sub section does no more than establish a statutory minimum for the content of negotiations and does not create a “carve out” from the good faith obligation in s 31(1)(b) (at [20] of the Gomeroi applicant’s submissions):

The Applicant submits that, properly construed, s.31(2) establishes a statutory minimum for the content of negotiations. Section 31(2) does not create a “carve out” such that negotiations for payment not related to compensation for the anticipated effect, impairment or impact of a proposed future act on native title rights and interests are not the subject of the requirement for “good faith” negotiations.

115    Ultimately, as I understood their submissions, neither respondent party actively submitted that s 31(2) precluded the argument the Gomeroi applicant sought to make in the questions of law concerning an absence of good faith in Santos’ negotiations. Therefore, although the matter was touched on in something of a hypothetical way by senior counsel for Santos in oral argument, it is not necessary to determine the correct construction and scope of s 31(2) on this appeal.

116    Question 2 should be answered against the Gomeroi applicant’s contentions.

Question 4: Procedural fairness

117    This question arises from paragraph [4] of the further amended notice of appeal:

4     Did the Tribunal deny the parties procedural fairness?

Grounds

The Tribunal erred by considering, without notice to the parties:

(a)     the concept of futures trading (at [286]-[290] and [356]);

(b)     the Australian Consumer Law definition of “market” (at [286] and [289]),

and finding, on the basis of those considerations, that:

(a)     s.31(1)(b) agreements were not amenable to analysis by reference to a “market” (at [375], [385], [387] and [388]);

(b)     “no market and no market price” was established as a question of fact (at [356], [388]-[390] and [356]);

(c)     future act agreements under s.31 of the Act were “unique” and therefore incapable of comparison (at [384]-[385]),

because those findings relied on irrelevant considerations, were not available on the evidence before the Tribunal and were legally unreasonable.

118    The Gomeroi applicant contends that the Tribunal denied the parties an opportunity to be heard in relation to its consideration of the concept of futures trading and the definition of “market” under s 4E of the Competition and Consumer Act 2010 (Cth). It submits the Tribunal relied on its consideration of these concepts in making its findings in relation to whether there was a “market” or “market price” for agreements contemplated by s 31 of the NTA. The Gomeroi applicant submits that those concepts were:

(a)    not adverted to by any party;

(b)    not raised in cross-examination; and

(c)    in fairness required to be disclosed to the Gomeroi applicant and Mr Ho.

119    It also submits these matters were not obvious or natural evaluations of the material that was before the Tribunal (so as to not require any further procedural fairness steps), nor could the Tribunal take judicial notice of those concepts, nor were they matters within the Tribunal’s own knowledge. It submits the Tribunal’s decision as to its ability to determine the existence of a market, and its conclusion that no market existed, is contrary to authority. It contends that the Tribunal’s findings on these points led to its rejection of Mr Ho’s evidence as misconceived, irrelevant and lacking probative value. For these reasons, the Gomeroi applicant contends it was deprived of a realistic possibility of a different outcome, citing Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [1] (Kiefel CJ, Keane and Gleeson JJ).

Question 4: Resolution

120    The Tribunal referred to Russel V Miller, Miller’s Australian Competition and Consumer Law Annotated (Thomson Reuters, 44th ed, 2022) and the definition of “market” in the CCA at [286]-[289] and to futures trading at [356] of its determination. The former was a more expansive discussion, and the latter was a brief reference. The Tribunal also referred to the New Shorter Oxford Dictionary at [354], but there is no challenge to this aspect of its reasons.

121    I do not accept the Gomeroi applicant’s submissions that by employing these references, the Tribunal denied it procedural fairness in the making of its determination.

122    Santos is correct that it was the Gomeroi applicant, through Mr Ho’s evidence, which relied on the concept of market value and the existence of a “market” in relation to agreements with Traditional Owners, in order to support a comparison of various arrangements struck with mining companies.

123    Again, to answer this question, it suffices to refer to the Gomeroi Contentions before the Tribunal. In that document, the Gomeroi applicant contends, amongst other contentions, that Santos “presented an offer of compensation that was below market value” (Contentions at [94]). The Contentions then devote an entire section to seeking to persuade the Tribunal of this proposition, relying heavily on Mr Ho’s opinions expressed in his report (see Contentions at [137]-[149]). As exposed in the argument on question of law 1, part of the Gomeroi applicant’s complaint was that Santos did not negotiate in good faith because it did not “engage with expert advice to the effect that the proposed Production Levy was below market value” (Contentions at [162]).

124    Santos’ case to the Tribunal was that it should reject Mr Ho’s opinion that there were comparable projects which disclosed a market price for the consent of a native title party to a future act of the kind proposed by Santos with the Narrabri gas project. The Tribunal agreed with Santos’ submissions. It emphasised again at [288] that the subject matter of the negotiations was the native title party’s agreement to the doing of the future act. See also [285]. At [279], the Tribunal found that the:

negotiation prescribed by s 31(1) of the Native Title Act does not involve concepts such as “fair value” or a “free market”.

125    It rejected the lens through which much of the Gomeroi case was presented to it, which focused on the financial aspects of the offers and counter offers, and at [280] found that any consideration of “comparable” agreements for the purposes of determining whether a grantee party had negotiated in good faith would need to examine “the whole package of benefits” secured through an agreement, financial and non-financial. The questions of law before this Court do not challenge that analysis by the Tribunal. In addition, and in my opinion separately, the Tribunal was not persuaded at all by the opinions expressed by Mr Ho, on a range of bases all explained in its reasons without any error of law being disclosed. As I explain below, I reject the legal unreasonableness challenge to the Tribunal’s findings about Mr Ho’s evidence.

126    Nevertheless, it is common ground on this appeal that no party referred the Tribunal to Miller or the CCA definition of “market”, nor used the concept of futures trading as an example of where there might be a “market” for agreements. That does not mean the Gomeroi applicant was denied a reasonable opportunity to put its case to the Tribunal, nor denied a reasonable opportunity to deal with information that was relied on by the Tribunal and was credible, relevant and significant, and adverse to the case put by the Gomeroi applicant: Kioa v West [1985] HCA 81; 159 CLR 550 at 588 (Mason J) and 628-629 (Brennan J).

127    There is no direct equivalent in the NTA to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that the Administrative Appeals Tribunal “may inform itself on any matter in such manner as it thinks appropriate”. There is however s 108(2) of the NTA, which provides:

108 Function of the Tribunal

…

Research

(2)     The Tribunal may carry out research for the purpose of performing its functions.

Matters for research

(3)     Without limiting subsection (2), the Tribunal may carry out research under that subsection into:

(a)     the history of interests in relation to land or waters in Australia; or

(b)     anthropology; or

(c)     linguistics.

128    No party referred the Court to this provision, but it supports my own conclusion that there is nothing in the text, context or purpose of the future act provisions of the NTA, nor the general procedural provisions under Part 6, to suggest the legislative scheme intends to prohibit the Tribunal from consulting sources not referred to by the parties before it.

129    If the Tribunal elects to take this course, it must act fairly: see s 109(1) of the NTA. What is fair will depend on all the facts and circumstances, and in a situation such as the present one, what fairness required of the Tribunal depended very much on what issues were joined between the parties before the Tribunal and what the Tribunal had to decide in order to make a determination under s 38(1) of the NTA.

130    It can be accepted that the Tribunal is not an expert body, like a medical panel, which might apply its “collective clinical experience” and “undertake appropriate research”: see Wurth Australia Pty Ltd v Gallichio [2010] VSC 630 at [92] (Macaulay J), referred to in Noureddine v Adlard [2022] VSC 719 at [40]-[41] (Walker JA). The use by the Tribunal of Miller and its reference to futures trading cannot however be accurately described as research. The Tribunal was constituted by an experienced former Justice of the Federal Court, who could reasonably be expected by the parties to be familiar with the concept of markets and the terms “market price” and “market value”. The Tribunal did not refer to these sources or concepts as part of any “research” undertaken on its own account to better understand the evidence before it; cf Wurth and s 108 of the NTA.

131    Rather, the Tribunal referred to these sources in order to buttress the conclusion it otherwise reached about why it did not find Mr Ho’s evidence probative and persuasive. At [294], and after having discussed the concept of a “market” as described in Miller and used in the CCA, the Tribunal stated:

With all respect, it seems to me that Mr Ho justifies his recourse to the allegedly comparable projects and their associated agreements by reference to the language of markets and competition. However the appropriateness of such usage is assumed, rather than demonstrated.

132    In that sense, the Tribunal can be taken to have seen the passages in Miller and the CCA definition as significant enough to use in its reasons, and to use adversely to the opinions of Mr Ho and thus adversely to the position of the Gomeroi applicant. Nevertheless, there was no denial of procedural fairness.

133    In my opinion, the conduct of the proceedings before the Tribunal, and the position taken by Santos before the Tribunal, made it obvious that the Tribunal would be examining the way Mr Ho used the concept of a “market” in his opinions and in his report. Santos had invited the Tribunal to reject Mr Ho’s evidence. Mr Ho was cross-examined about what he understood the “market” to be. During this cross-examination, the Tribunal itself asked Mr Ho questions about how he was using the concept of market. For example:

So are we not talking about a transaction between a willing but not overly eager purchaser and a willing but not overly eager vendor? The words “purchaser” and “vendor” being used loosely. We’re not talking about a context like that, which seems to me to be the classic valuation exercise; is that what you’re saying?---Yes, well, what I’m saying is that, you know, to – to point the compensation and point it directly at the – at the native title impact, in terms of the cultural aspects and things like that, is – I think, is a misapplication of what that – of how the financial aspects of the compensation agreements are derived. It’s - - -

134    The Tribunal itself pressed Mr Ho at the completion of cross-examination on this issue:

HIS HONOUR: Could I just ask you one question. The evidence in the case so far seems to suggest that Santos is what might be described as a major player in the industry. Does that imply – or does it – is it – does it follow from that that it may, in fact – its conduct in the market may well have a lot – it may well have a significant influence upon what the price – what the going price is, in the sense that we’re using that language?---For the – for the agreements?

Yes. On agreements. Yes?---Okay. Yes. Look, I mean, that – to be honest, the – the agreements negotiated under native title are so far out – dominated by the position of the – of the proponents that it almost always is in their favour. As I said, you know, if you look at the difference between the outcomes in the NTA table versus the – the ALRA table, the delta is significant.

But wouldn’t that – sorry. Go on?---And – and most of that comes down to the fact that the – the – the traditional owners in the – in the – in the Aboriginal land rights agreements have the right to say no.

Well, wouldn’t that mean, though, that the table of comparables that you’ve prepared would be misleading if it didn’t include some refection of Santos’ activity in the market?---As I said, I don’t know the context of those agreements that were put – put forward before, earlier, so in order to properly incorporate them, I would have to understand the context of those agreements. But I would also suggest that, you know, anyone doing agreements today would be – unless there are very special circumstances to – as to why there would be no royalty – that it would be astonishing and astounding to me that any agreement would take place without a royalty arrangement, you know, that is in line with a – you know, what is being negotiated across the board in – in modern agreements. I – I’m in the process of negotiating four agreements at the moment in ..... gas, and they are nothing like the numbers we’re talking about.

135    Then, in closing arguments, there was a lengthy exchange between the Tribunal and senior counsel for the Gomeroi applicant about the concept of “market”; in particular, what the market could be defined to be: see TS 259-265. Later (at TS 269-270) there was an exchange about the role of experts such as Mr Ho and the contrast between his evidence and the factual experience of Santos in its own negotiations.

136    I find it was obvious that the Tribunal would be examining the way Mr Ho used the concept of a “market” in his opinions and in his report. That the Tribunal did so, as only part of its reasoning, by reference to material not put to it by the parties but which it had independently located does not mean there was any ‘new’ point being made, or any different reasoning applied. The principles in Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591 apply: see also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at 599 (French CJ and Kiefel J). The Tribunal used an additional source to explain its reasoning on a point centrally in dispute between the parties; that is all.

137    The parties did not refer the Court in the context of this question of law to the single Judge and Full Court decisions in Cheedy v Western Australia [2010] FCA 690 and Cheedy v Western Australia [2011] FCAFC 100; 194 FCR 562 (Cheedy FC), but in those decisions similar conclusions were reached on the facts before the Court, in what might be seen as more substantive ‘own motion’ conduct by the Tribunal: see Cheedy at [171] (McKerracher J) and Cheedy FC at [159] (North, Mansfield and Gilmour JJ).

138    Question 4 should be answered against the contentions of the Gomeroi applicant.

Question 5: Legal unreasonableness

139    This question arises from paragraph [5] of the further amended notice of appeal:

5    Was the Tribunal’s finding as to the weight of Mr Ho’s and Mr Kreicbergs’ evidence legally unreasonable?

Grounds

The Tribunal erred in finding that Mr Ho’s evidence attracted no weight (at [406]-[407]) but Mr Kreicbergs’ evidence attracted full weight (at [343], [442], [450], [505]) in circumstances in which Mr Ho was criticised for relying on confidential information as the basis for his reasoning (at [277], [295], [314], [327], [341]-[343], [407], [412] and [448]), while Mr Kreicbergs’ reliance on confidential information was not criticised (at [343], [424] and [450]) because that finding was so unreasonable that no reasonable decision maker could have come to it.

140    The Gomeroi applicant submits that Mr Ho did disclose the basis for his opinions in his report, by reference to what he said were 15 comparable onshore oil and gas projects subject to agreements with Traditional Owners, and that Mr Ho explained why he could not give more detail. It submits that these aspects of Mr Ho’s evidence were not opinion evidence, but facts, and it is not the case that there was “no evidence” as to the comparability of the agreements as set out by the Tribunal in its determination at [277] and [386]-[387], although I note [277] concerns the opinions of Mr Meaton.

141    In contrast, the Gomeroi applicant submits that the Tribunal wholly accepted evidence given at a substantively similar level of generality from Mr Kreicbergs, over its objections to the admission of that evidence. It describes the Tribunal’s approaches to the evidence of these two witnesses as “diametrically opposite”, and submits that:

either the evidence of both witnesses carried some weight, or the evidence of both witnesses carried no weight. In the circumstances it was not open to it to accord full weight to Mr Kriecbergs [sic] and none to Mr Ho.

Question 5: Resolution

142    I reject the characterisation by the Gomeroi applicant that what the Tribunal did was reduce Mr Ho’s opinions to “nought”. A more accurate description of the Tribunal’s reasoning is that it was not persuaded by Mr Ho’s opinions. For example, at [386], one of the paragraphs referred to in the Gomeroi applicant’s submissions, the Tribunal states:

In Table A, Mr Ho sets out his 15 “comparable agreements”, identifying them by reference to State or Territory, date of agreement, project type (unconventional or conventional) and the relevant legislation. As to the balance of ch 8, Mr Ho asserts, at para 8.9, that the “underlying projects” have “broad resemblance” to the Narrabri Gas Project, “so as to be comparable from an economic perspective”. However, there is no evidence to support this opinion. The term, “broad resemblance” is inevitably subjective. For that reason, if a court or tribunal is to act on the basis of comparability, it must generally be demonstrated, not simply asserted. More importantly, other parties must have opportunities to test such assertions. At para 8.10 it is said that it, “stands to reason” that the production payment payable to traditional owners, based on the financial performance of these projects, “can be similarly compared”. I do not understand the term, “it stands to reason” when used in expert evidence. Mr Ho seems to be saying that the asserted “broad resemblance” of each “comparable” project to the Narrabri Gas Project is, a sufficient basis for inferring that Santos should pay to the Gomeroi applicant an amount, fixed by reference to views formed by Mr Meaton or Mr Ho, based upon knowledge of other transactions of which we know little or nothing.

143    This reasoning reflects nothing more than an evaluation by the Tribunal of the probative value of Mr Ho’s evidence. It is a cogent explanation of why the evidence was not probative of the core aspect of the Gomeroi applicant’s case to the Tribunal; namely that these agreements were “comparable” and could be used to demonstrate that Santos’ offer was so far below “market” as to provide evidence that Santos was not negotiating in good faith.

144    As Santos submits, the evidence of the two witnesses was qualitatively different, and adduced for different purposes. Mr Ho gave opinion evidence about the “comparability” of Santos’ offer (or the financial part of it), based at least in part on his knowledge of the fifteen other agreements he referred to, but for which he claimed to be precluded from giving details about. He did so to advance his opinion that Santos’ offer was not “a substantial amount in the context of the proposed Project” (at [1.36] of Mr Ho’s report). Mr Kreicbergs recounted a factual history of agreements he had been involved in between Santos and other native title groups, and made a factual statement that Santos’ offers were the highest ever made by it for an onshore gas project in Australia at the relevant time. Santos submits Mr Kreicbergs’ evidence was not challenged on this factual statement. The Gomeroi applicant does not contend that Santos’ submission, that the offer was Santos’ “highest” ever at the time for an onshore gas project, is incorrect. Rather, it submits that it could not challenge the agreements Santos relied upon for such contention because they were not disclosed, and therefore Mr Kreicbergs’ evidence was “as prejudicial to … [the Gomeroi applicant] as Mr Ho’s evidence was to Santos”. That might be so in a general sense, but it was part of the Tribunal’s function to evaluate the evidence taking these difficulties into account.

145    The difficulties are addressed in the Tribunal’s determination at [424], where the Tribunal describes drawing:

Mr Ho’s attention to the difficulty facing me in determining whether other projects were comparable, given the absence of evidence other than his unparticularized assertions.

146    The Tribunal then recounts Mr Ho’s responses to this proposition and to the cross-examination on this matter, but did not accept the responses, concluding:

Mr Ho accepted that there were agreements of which he had no knowledge. However he said that there is, “no large sample of outliers out there that nobody knows about.” Any such outliers would be part of the, “conversation as you are negotiating these agreements”. One might have expected Mr Ho to have treated Santos as being that of an “outlier”, given the fact that its offer in this case is the largest made by it in Australia onshore, and given Mr Kreicbergs’ evidence (discussed below) concerning projects where no wellhead royalty or production levy was paid. Further, Santos is obviously a major Australian gas producer.

147    The reference is to the Santos agreements set out at [427] of the determination. From [428]-[439], the Tribunal then exposes what it considers to be the weaknesses and contradictions in Mr Ho’s evidence, including that although he (and Mr Meaton) appeared to suggest that the financial aspects of the offer were directed at compensation for the effects of the project on native title rights and interests, the amounts being discussed (including the amounts sought by the Gomeroi applicant) were not connected to any impact upon native title rights and interests. As I have explained above, this analysis is not because the Tribunal saw such a connection as mandatory, but rather because that is how the case was framed, and how the experts’ opinions were framed. See also [448].

148    At [450] of the determination, the Tribunal’s reasons make it clear that it would have reached the same conclusion, including the rejection of the evidence of Mr Ho and Mr Meaton, without Mr Kreicbergs’ evidence. That in itself is sufficient to reject the legal unreasonableness ground. The Tribunal’s reasoning did not depend on its acceptance of Mr Kreicbergs’ evidence in the same way it did depend on the rejection of Mr Ho’s evidence.

149    On no view can it be said that the approach of the Tribunal to the evidence of Mr Ho and Mr Meaton, as compared to Mr Kreicbergs, was legally unreasonable. The principles concerning legal unreasonableness are well established: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437. In Singh, the Full Court explained that in a given circumstance legal unreasonableness might need to be assessed by reference to the outcome of an exercise of power, or the manner in which it was exercised, including the reasoning applied. The present challenge involves the second of these two options, but there is no basis for the challenge made. The Tribunal’s reasoning addressed rationally and in detail why it was not persuaded by Mr Ho’s evidence, and the place of Mr Kreicbergs’ (factual) evidence in its reasoning.

150    Question 5 should be answered against the contentions of the Gomeroi applicant.

Question 6: Negotiations where the applicant is not authorised by the claimant group

151    The further amended notice of appeal sets out the relevant question, and accompanying ground, as follows:

6     On a proper construction of the Act, does a negotiating party’s knowledge that the registered Applicant is not authorised by the claimant group, and that the claimant group has authorised another applicant, operate as an exception to the requirement that the negotiating party must negotiate with the Registered Applicant?

Grounds

The Tribunal erred (at [11], [170]-[177]) in finding that Santos was required to negotiate with the registered Applicant because, in the circumstances, to do so was inconsistent with the duty of good faith in s.31(1)(b) of the Act.

152    This question is about the identity of a registered native title claimant, also known as the native title applicant. A native title applicant is a person or group of persons whose name(s) appear on the Register of Native Title Claims authorised by all the persons in the native title claim group to make a native title determination application on behalf of persons who claim native title rights and interests in the land according to their traditional laws and customs (a claim group) (see ss 61, 251B, 253 of the NTA). The native title applicant is also the group of persons to which the Government party must give notice of certain future acts (see s 29) and is also the group of persons who comprise the “negotiation party” for the purpose of good faith negotiations (see s 31). In this section of my reasoning, I adopt the term the Gomeroi native title applicant (2013-2017) for the group described in the Tribunal’s determination at [6].

153    The premise of this ground is that an analogy can be drawn between third parties who have to deal with a native title applicant and those who must deal with a company, both kinds of entities having limited authority. The Gomeroi applicant’s submissions draw on exceptions to the “indoor management rule” in corporations law (see generally Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; 170 CLR 146) based on actual knowledge, and seek to apply them to dealings with a native title applicant.

154    Just as a person who is aware of an irregularity (through actual knowledge) cannot rely on the indoor management rule (the Gomeroi applicant’s submissions refer to Howard v Patent Ivory Manufacturing Co. (1888) 38 Ch D 156, cited in Ford, Austin and Ramsay, Principles of Corporations Law (Lexis Nexis, 17th ed, 2018) at [13.190]), so the Gomeroi applicant submits Santos had actual knowledge of the ‘irregularity’ in the registration of the Gomeroi native title applicant (2013-2017) in the context of its negotiations. This, the Gomeroi applicant submits, meant Santos could not have been negotiating in good faith to continue negotiating with the individuals who made up the Gomeroi native title applicant (2013-2017), where there was a challenge to those persons’ authority to continue to act in that capacity.

155    It follows, the Gomeroi applicant submits:

A negotiating party with knowledge of those circumstances is therefore aware that the native title register is unreliable in a material respect, and is precluded from claiming (and the Tribunal from finding) that its good faith cannot be impugned by its continued and exclusive reliance on the Register. (It is not said that strict adherence to the native tile register of itself demonstrates a lack of good faith.)

Question 6: Resolution

156    The Gomeroi applicant did not dispute, and in fact agreed, that the meaning of “native title party” (and therefore also “negotiation party”, see s 30A) are those persons whose “names appear on the Register of Native Title Claims”: see especially s 29(2)(b), read with s 253. Until after this Court’s order on 7 December 2017, the Gomeroi native title applicant (2013-2017) comprised the persons whose names appeared on the Register of Native Title Claims.

157    The key part of the Tribunal’s reasoning on this issue is found at [170]-[177] of the determination. Prior to this point, from [148], the Tribunal had carefully traced the factual context in which aspects of Santos’ offer were being dealt with by the Gomeroi native title applicant (2013-2017) in communications between members of the Gomeroi native title applicant (2013-2017) and Santos, and how Santos’ offers of financial assistance for meetings of the Gomeroi claim group were being handled. The Tribunal describes (at [168]) how, from January 2015 through to December 2017, there was a dispute about which lawyers represented the Gomeroi native title applicant (2013-2017), which went to trial in this Court, and on appeal. One set of private solicitors was confirmed as having been validly appointed by the Gomeroi native title applicant (2013-2017). The Tribunal described the dispute, and its relevance to the good faith arguments before it, in the following way (at [168]):

The Full Court’s decision was delivered on 30 May 2016, so that 16 months had, by then, elapsed since the (valid) change of solicitor. During that period, and thereafter, Santos continued to negotiate with the Gomeroi applicant (2013-2017). The Gomeroi applicant, in these proceedings, now complains that Santos knew that the Gomeroi applicant (2013-2017) had acted in excess of authority in appointing Sam Hegney Solicitors as its solicitor. However Jagot J and the Full Court have determined otherwise. Even if I am not bound by those decisions, I see no basis for doubting their correctness.

158    In other words, correctly in my respectful view, the Tribunal saw the two decisions of this Court as settling the question about the validity of the appointment of the private solicitor.

159    The Tribunal then turned at [170] to the next stage of the intramural dispute within the Gomeroi claim group; namely a dispute about the constitution of the Gomeroi native title applicant which came to a head at a meeting in July 2016. Again in my respectful view correctly, the Tribunal found that unless and until the discretionary power in s 66B of the NTA was exercised, a change in the composition of a native title applicant will not take effect until the s 66B discretion has been exercised; and it was uncontroversial that there was no order under s 66B until 7 December 2017. It rejected the contention of the Gomeroi applicant that Santos’ continued negotiation with the Gomeroi native title applicant (2013-2017) during this period was not in good faith due to the ongoing process of seeking to reconstitute the native title applicant. The Tribunal found such a proposition “untenable” for two reasons (at [171]):

First, it was not possible to predict how the Court’s discretion in relation to s 66B might have been exercised, particularly given the circumstances of this case. Second, to have ceased negotiation would have been inconsistent with the duty imposed upon the negotiation parties by s 31. Where a change in composition is uncontested, there may be no problem in making some sort of informal arrangement pending the Court’s order. However where, as here, the change is contested, the position must be otherwise. Both Santos and the Gomeroi applicant (2013-2017) were bound by s 31(1) to continue negotiations.

160    The Gomeroi applicant’s challenge to the Tribunal’s reasoning under question of law 6 does not directly concern the Tribunal’s first proposition. Rather, it concerns whether the Tribunal was correct to refuse to characterise Santos’ conduct as not acting in good faith, by continuing to negotiate with the Gomeroi native title applicant (2013-2017).

161    The Tribunal’s finding of fact in [173] is that the minutes of numerous lengthy meetings between the Gomeroi native title applicant (2013-2017) and Santos during this period “suggest that the Gomeroi applicant (2013-2017) continued to prosecute the negotiations with some enthusiasm”. That finding is not impugned as part of any argument on the questions of law before this Court. At [174]-[175] the Tribunal made a series of further findings of fact which describe detailed negotiations occurring between Santos and the Gomeroi native title applicant (2013-2017), including steps actively taken by the latter. Again, none of those findings of fact are impugned as part of any argument on the questions of law in this Court. At [176], the Tribunal notes, correctly in my respectful view, the erroneous view expressed by NTSCORP Limited during this period (when it was not the solicitor acting for the Gomeroi native title applicant (2013-2017)) that Santos should not have been engaging in this way. The Tribunal then finds:

Santos seems to have dealt with the newly constituted Gomeroi applicant from the date of the order made by Rangiah J, namely 7 December 2017.

162    To the Tribunal’s findings of fact might be added that over the period of around a year and a half, while the s 66B application was being progressed, and while active negotiations continued, no Gomeroi person or persons sought to restrain the conduct of those negotiations by seeking an injunction, on the basis that the Gomeroi native title applicant (2013-2017) had no authority to negotiate with Santos.

163    At [177]-[178] the Tribunal explains why it rejects the contention that Santos’ conduct during this period was not in good faith:

At para 125 of its contentions, the Gomeroi applicant seems to assert that following the resolution of 20 July 2016, and prior to the decision on 7 December 2017, the Gomeroi applicant (2017-2022) was the “true” Gomeroi applicant. For reasons given above, I reject that proposition. At paras 126 and 127 of the contentions, the Gomeroi applicant advances a somewhat different argument. It asserts that the “legal uncertainty” of the position made it, “ill-considered” and “irrational”, for Santos to continue negotiating with the Gomeroi applicant (2013-2017). There was no legal uncertainty. Santos’s conduct was, in my view, in accordance with its obligations under s 31(1).

Setting aside the delay between early 2015 and July 2016, it seems most unlikely that Santos was, for a period of 18 months, from July 2016 until December 2017, participating in an elaborate farce. The evidence suggests that it was trying to maximize the prospects of reaching agreement with the Gomeroi applicant, however constituted. I see no basis for concluding that Santos was negotiating other than in good faith, with a view to obtaining the Gomeroi applicant’s agreement to the proposed grants. However, given the limitations imposed by the native title claim group upon the Gomeroi applicant (2013-2017), resolution was always subject to its approval.

164    In this appeal, the Gomeroi applicant impermissibly narrows the operation of s 66B in its submissions to contend that the Court’s role is only to prevent fraud, and that there is no real discretion conferred by s 66B. The Gomeroi applicant did not directly contend that the decisions to which the Tribunal referred (at [170] of the determination) about the nature and operation of s 66B were incorrect. Footnote 66 to its written submissions in reply hinted at such a contention but none was developed. There would need to be significant development of such a proposition, as the authorities include Full Court authorities. Whether or not any residual discretion in s 66B has ever been exercised, the point is that on existing authorities the power is characterised as discretionary and the Tribunal was correct to adopt this approach. The consequence is the Tribunal was also correct to decide that unless and until an order was made under s 66B, the then existing native title applicant should be understood as the “native title party” and therefore a “negotiation party” for the purposes of s 30A of the NTA, and the appropriate entity for the discharge of the good faith obligation in s 31 by the other negotiating parties.

165    The Gomeroi applicant’s submissions also fail to take in to account the clear meaning of s 30(4), which provides:

If:

(a)     an applicant (the old applicant) in relation to a claimant application is a native title party; and

(b)     the old applicant is replaced as the applicant in relation to the claimant application by another applicant (the new applicant); and

(c)     the new applicant becomes a registered native title claimant;

the new applicant also replaces the old applicant as the native title party.

166    The State’s submission is that the Register of Native Title Claims, which forms part of the definition of “registered native title claimant” and therefore “native title party”, could only have been amended to include the differently constituted Gomeroi native title applicant “once an order was made pursuant to s 66B(1) for the differently constituted Gomeroi applicant to replace the prior applicant and the Chief Executive Officer of this Court …[notifying] the Native Title Registrar of the new applicant: s 66B(3) and (4)”.

167    It is clear that “replaced” in s 30(4) is a reference to the process under s 66B. This subsection provides express support for the Tribunal’s conclusions, with which I agree. The State’s submission is correct.

168    Question 6 should be answered against the Gomeroi applicant’s contentions.

Question 3: environmental matters and public interest

169    The further amended notice of appeal puts this question, and the accompanying grounds, as follows:

3    Does s.39(1)(e) of the Act exclude “environmental matters” or include the requirements of particularity or practicability?

Grounds

The Tribunal erred in finding that:

(a)    it was prohibited from considering “environmental matters” except in relation to a “particular environmental concern having particular effect on native title” (at [970]- [972] and [987]) in that there is no such limitation of “particularity” on the mandatory considerations under s.39(1) of the Act;

(b)    the impacts of climate change were not sufficiently “particular” to the local area to consider as part of the mandatory consideration of the public interest. rather these were “world-wide concerns, to be resolved by governments” (at [970]-[972]). in that there was no such limitation on the mandatory consideration under s.39(1)(e) of the Act;

(c)    it was “impracticable” for the Tribunal to make a determination in relation to the mandatory consideration of the public interest (at [542], [1014], [1024]) in that there is no such limitation of “practicability” on the mandatory consideration under s.39(1)(e) of the Act,

and the Tribunal accordingly:

i.    failed, or constructively failed, to consider mandatory considerations; and

ii.    failed, or constructively failed, to discharge the function or to exercise the power conferred on it.

170    I have set out s 39(1) at [16] above. At issue in this question of law are paras 39(1)(e) and (f) in particular, which require the Tribunal to take into account:

(e)     any public interest in the doing of the act;

(f)     any other matter that the arbitral body considers relevant.

171    This question of law concerns the proper construction of para (e), although the argument on all sides strayed into para (f).

172    Before the Tribunal was a report by Professor Steffen, an expert witness for the Gomeroi applicant in the inquiry before the Tribunal. Professor Steffen is a climate and earth system scientist. His report was prepared on the basis that the materials presented by Santos to the IPC concerning greenhouse gas emissions (GHG emissions) from the Narrabri gas project were correct. On that basis he was asked a series of questions, which ranged from general questions about global warming to more specific questions about methods for predicting the likely consequences of global warming in the Narrabri region if no action is taken to prevent it or mitigate it. He concluded (at [5.5]-[5.6] of his report):

The analysis for Australia described above is supported by a recent global analysis by the International Energy Agency (IEA 2021), the world’s most authoritative body on the global energy sector. Australia is a member of the IEA.

The IEA examined future pathways for the global energy sector if the world is to achieve net-zero emissions by 2050. This analysis, by the peak body of the energy sector itself, outlined the challenge we face succinctly and accurately:

“The number of countries that have pledged to reach net-zero emissions by mid-century or soon after continues to grow, but so do global greenhouse emissions. This gap between rhetoric and action needs to close if we are to have a fighting chance of reaching net zero by 2050 and limiting the rise in global temperature to 1.5°C. Doing so requires nothing short of a total transformation of the energy systems that underpin our economies. We are in a critical year at the start of a critical decade for these efforts.”

The IEA report emphasises that to meet the Paris climate goal, there must be a ‘huge decline’ in the use of fossil fuels and this must begin immediately. This clearly implies that there must be no new fossil fuel developments from now (2021) onwards. In fact, the IEA report addresses this issue explicitly. In its figure ‘Key milestones in the pathway to net zero’ (page 20), the IEA clearly states that from 2021 (now) there must be no new oil and gas fields approved for development, and no new coal mines or mine extensions. The IEA makes this absolutely clear in its header for the text accompanying the figure:

“There is no need for investment in new fossil fuel supply in our net zero pathway”

In summary, multiple lines of evidence, from the climate science community through the energy sector’s global peak body, show conclusively that to meet the goals of the Paris climate accord: (i) GHG emissions must be reduced rapidly and deeply; (ii) existing fossil fuel facilities must therefore be phased out rapidly; and (iii) no new fossil fuel projects may be approved. Therefore, the evidence is exceptionally strong that the proposed Narrabri gas project must not proceed if the Paris climate goals are to be met.

173    On the basis of this expert evidence, and the sources referred to, the Gomeroi applicant made the following submissions to the Tribunal (from [254]-[272] of its Contentions to the Tribunal onwards):

The Federal Court of Australia has made the following observations about the scope of the “public interest” within the meaning of s 39(1)(e) (Evans on behalf of the Koara People v State of Western Australia (1997) 77 FCR 193 at 215) (Koara):

The words “any public interest” are not limited in their scope. In Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 at 681-682 the Full Court of this Court accepted the leading authority on the meaning of “public interest” is O’Sullivan v Farrer (1989) 168 CLR 210 particularly at 216. There Mason CJ, Brennan, Dawson and Gaudron JJ said:

“[T]he Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable...given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view”: Water Conversation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.”

The Full Court in Deloitte accepted the statement by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 245:

“The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.”

The Full Federal Court has held that it is the public interest of the specific mining proposal, not the mining industry at large, which is relevant to the Tribunal’s consideration under s 39(1)(e) of the Act (Cheedy obh Yinjibarndi People v Western Australia (2011) 194 FCR 562 at [138]):

Whilst it may be accepted that mining developments generally are in the public interest, it may be necessary in other circumstances for the Tribunal to consider the public interest in the particular project rather than by reference to the mining industry in general. For instance, if a project is insignificant in scope, or marginal in profit terms, the public interest in the particular mine may not outweigh the impact on the cultural and religious interests of the particular indigenous people. If the consideration of the public interest is limited to the benefit of mining in Western Australia in general, an argument may lie in other circumstances that the Tribunal has had regard to an irrelevant consideration. What is relevant is the effect of the particular mining project on the particular rights and interests asserted in that area.

In Western Australia v Thomas (Waljen) (1996) 133 FLR 124, at 176 (Waljen), Members Sumner, O’Neil and Neate found in a joint decision that the public interest is a broad criterion, and is not limited to economic interests. In that case, the Tribunal considered that there may be a public interest in an act not proceeding if, for example, it was going to have adverse effect on community relations or result in significant environmental damage, even if there were other economic benefits (Waljen at 176).

The Tribunal has also found that the public interest will lie in a mining grant being refused where the economic interests of Santos and the broader community do not outweigh the public detriments occasioned by the grant (Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169 at [182] (Western Desert), per Deputy President Sumner). For example, there may be a public interest against the doing of an act if it would involve the destruction of large areas of high heritage value to the Aboriginal and the general community, or involves mining in areas of special significance to Aboriginal people (Western Desert at [182]).

In considering the public interest, the Tribunal must also take into account what Santos proposes to do pursuant to the mining title, as well as considering the impact of the grant of the title itself (Waljen at 152, per Members Sumner, O’Neil and Neate).

Professor Steffen explains that climate change is driven by greenhouse gas (GHG) emissions, and that natural gas contributes to GHG emissions (Steffen [1.1], [1.2]). He explains that the global average surface temperature of the earth has increased by about 1.1 degrees Celsius since the commencement of the industrial era (Steffen [1.3], [1.5]), and will continue to increase unless the amount of GHG in the earth’s atmosphere is reduced (Steffen [3.2]). He says that an increase of 3 degrees Celsius will be devastating (Steffen [2.2]). He says that there is hope in the scientific community that limiting the increase in temperature to 2 degrees Celsius may be possible. That has been set as an international target pursuant to the Paris Accord (Steffen [4.2]).

It is also Professor Steffen’s evidence that climate change will, regardless of any efforts to reduce GHG in the earth’s atmosphere, not prevent further increases in temperature over the next 40 years, as the temperature of the earth will continue to increase to and (if sufficient measures are taken to reduce GHG in the atmosphere) stabilise at 2 degrees Celsius above pre-industrial levels. He says the following effects will, inevitably, occur over the next 40 years (Steffen [3.2]):

•    The intensity, frequency and duration of fire weather will increase.

•    Heatwaves will become more frequent and intense, with further increases in marine heatwaves and ocean acidity.

•    Further increases in droughts in the southern and eastern parts of Australia, and particularly in the southwest.

•    Sand and dust storms are projected to increase throughout Australia.

•    Increase in heavy rainfall in the northern, central and eastern parts of Australia.

•    Sea levels are rising faster than the global average around Australia, leading to increasing coastal flooding and shoreline retreat.

Professor Steffen opines that in order to avoid the worst impacts of climate change in the second half of the century, the temperature targets in the Paris Accord must be met (Steffen [3.3]). In order to meet those targets, it will be necessary to “rapidly and deeply reduce” greenhouse gas emissions (Steffen [3.3]), including by not approving any new fossil fuel projects (Steffen [5.6]). If those efforts are not made, climate change and its impacts will continue and will accelerate through the second half of the 21st century. Those impacts include significant damage to the environment, economy and mental and physical wellbeing of humans.

The worst impacts of climate change present an existential threat to humanity. Professor Steffen summarises those impacts as follows (Steffen [3.3]):

If the Paris goals cannot be met and the current trajectory towards a 3°C temperature rise continues, the risks to Australians (and the rest of humanity) escalate rapidly: many areas of Australia and other parts of the world would become uninhabitable due to extreme heat and lack of rainfall; 1-in-100 year coastal flooding events could happen every year; tropical cyclones and hailstorms will intensify, escalating damage to infrastructure, property and human health; and a cascade of tipping points could change the Earth System so dramatically that it could present an existential threat to humanity.

In relation to the Narrabri region, Professor Steffen states that the continued expansion of the fossil fuel industry will result in (Steffen [4.3]):

… more extreme heat, further and more intense droughts, harsher fire danger weather, and heavier rainfall when it occurs, all of which will continue to increase in frequency and intensity so long as the atmospheric GHG concentrations continue to rise due primarily to emissions from the combustion of fossil fuels[.]

Professor Steffen summarises the impact of climate change to Australia as follows (Steffen [3.2]):

•    The intensity, frequency and duration of fire weather will increase.

•    Heatwaves will become more frequent and intense, with further increases in marine heatwaves and ocean acidity.

•    Further increases in droughts in the southern and eastern parts of Australia, and particularly in the southwest.

•    Sand and dust storms are projected to increase throughout Australia.

•    Increase in heavy rainfall in the northern, central and eastern parts of Australia.

•    Sea levels are rising faster than the global average around Australia, leading to increasing coastal flooding and shoreline retreat.

In this case, the task for the Tribunal is to consider whether the Narrabri Gas Project, being the specific mining project that will be undertaken pursuant to the grant of PPLAs 13 to 16, is in the public interest. In considering this criterion, it is not sufficient that the Tribunal consider whether the mining or resource extraction industry in general is in the public interest.

The Narrabri Gas Project is a fossil fuel project that is expected to result in the emission of between 109.75 million tonnes of carbon dioxide equivalents (Mt CO2-e) and 120.55 Mt CO2-e, depending on the development scenario (Steffen at 4.1). This will represent approximately 0.2% of Australia’s current annual emissions (Steffen at 4.2).

If the Project proceeds, a substantial quantity of greenhouse gas (GHG) emissions will be emitted. It follows that the grant of the PPLs will not only not assist with meeting the temperature targets in the Paris Accord, but will contribute to higher temperatures than the target and the more extreme impacts of climate change.

The Gomeroi submits that there is a public interest in:

(a)     seeking to mitigate and prevent the worst likely effects of global warming, which has consequences at global, national and local levels, and

(b)     the preservation and continuity of the culture and society that underpins the Gomeroi People’s tradition law and custom.

Santos may adduce evidence of the economic impact that the Narrabri Gas Project will have on the Narrabri region and the State of New South Wales. The Gomeroi submit that the climate change impacts identified by the Professor Steffen are of a nature so grave that no other interest, public or private, could prevail over it.

The Gomeroi submit that the interests of the many in the medium and long-term must prevail over the interests of commercial gain of the few. Similarly, the interests of Narrabri’s ongoing existence and ecological health must prevail over its short-term profit.

In any event, development in the global and domestic gas markets, including in 2021, would have to be considered against Santos’s claims that the gas contained in the Narrabri gas field is required domestically or will find a market globally.

In his Report, Professor Steffen relies on the Sixth Assessment Working Group I report produced by the Intergovernmental Panel on Climate Change (IPCC AR6). IPCC AR6 summarises the impacts of climate change, as well as the current state of the global climate system. This Report was published in August 2021, and was therefore not available to the IPC when it made its decision in relation to the Project. He also refers to the report of the International Energy Agency “Net Zero by 2050: A Roadmap for the Global Energy Sector” (2021 Special Report), published on 18 May 2021, from which “Net Zero by 2050” has garnered global attention, and support from many major world powers. A review of publicly available sources indicates that domestic gas use is likely to fall, but that the global gas market will remain robust until around mid-century. Santos is, on that basis, likely to find a market for the gas produced by the Project, but with no tangible benefit to NSW or Australia and a deleterious effect on the public interest in reducing GHG emissions.

(Footnotes omitted.)

174    These contentions were contained within a much larger body of material addressing s 39(1), including the evidence before the Tribunal about the particular significance of the area in accordance with traditions of the Gomeroi People, and the potential effects of the Narrabri gas project on the Gomeroi People and their connection to their country.

175    The Tribunal notes the contentions of the Gomeroi applicant extracted above at [769]-[771] of its determination, and returns to address them later in its reasons. I discuss the Tribunal’s analysis below.

176    There was a debate between the parties in this appeal about whether the Tribunal’s reasons should be understood as disclosing that the Tribunal considered that environmental matters such as those raised by the Gomeroi applicant about climate change fell within the concept of the public interest in s 39(1)(e) or not. The Gomeroi applicant submitted that the Tribunal found such matters to be outside the proper scope of the paragraph; the State and Santos contended to the contrary.

177    On the basis of its contentions about how the Tribunal’s reasons should be understood, the Gomeroi applicant submits that the Tribunal “was required to consider Professor Steffen’s evidence because, properly construed, s.39 does not prohibit or limit the Tribunal from taking into account environmental considerations in the context of any of the s.39 criteria”.

178    It submits that the Tribunal excluded consideration of environmental considerations, especially the impacts on emissions and climate change from the Narrabri gas project because:

(a)    the Tribunal incorrectly interpreted the implications of the legislative history of the NTA, and in particular the removal of a provision from s 39; and

(b)    separately, climate change is properly considered a matter of public interest, relying on passages from authorities: in the context of the Environmental Planning and Assessment Act 1979 (NSW), Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 at [498] (Preston CJ), and, in the context of the Environmental Protection Act 1994 (Qld) and the Mineral Resources Act 1989 (Qld), Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd & Ors [2012] QLC 13 at [576] (MacDonald P).

179    Santos contends that the Tribunal did not find that it was “prohibited from considering environmental matters”. Santos points to the Tribunal’s statement at [1015]:

Aspects of the public interest may be in conflict. Whilst the development of gas resources may be in the public interest, possibly adverse consequences may not be in the public interest. In the present case, the risk of escaping gas and contribution to climate change are factors for consideration, as is, particularly, the public interest in the preservation of Aboriginal culture and society.

180    As to the second point, Santos contends that, even if “public interest” under s 39(1)(e) does extend to environmental matters, such matters were considered by the Tribunal.

181    At the appeal hearing, senior counsel for Santos conceded that if the Court finds that the Tribunal construed the NTA, in light of the 1998 amendments to the NTA made by the Native Title Amendment Act 1998 (Cth), such that it was not permitted to consider climate change, then that would be an error of law.

Question 3: Resolution

182    There are a number of passages in the Tribunal’s reasons which indicate that it did indeed consider it was no part of its function under s 39(1)(e) to evaluate for itself the environmental impact of a project such as the Narrabri gas project, including its impact on Australia’s GHG emissions and on the warming of the planet, except where the Tribunal was of the view that there was a particular effect on Gomeroi native title.

183    At the start of its consideration of the public interest factor in s 39(1)(e), and the Gomeroi applicant’s contentions, the Tribunal at [968] rejected the notion that it should make a fresh and independent decision, as the Gomeroi applicant was “in effect asking that I review evidence underpinning the decision of the Independent Planning Commission, and then adopt the evidence of Professor Steffen”. The Tribunal described it as a:

big step to set aside the outcome of such statutory processes in order to adopt the views of an individual scientist, or even the views of international agencies having no particular standing in Australia or in New South Wales.

184    Read in the context of the passages that follow, I do not consider the Tribunal here meant that such an approach would be so significant that it should not reach such a conclusion without careful consideration, and with caution. I consider what the Tribunal meant was that this was no part of its function under s 38, and no part of the mandatory public interest consideration in s 39(1)(e).

185    At [969], the Tribunal used the adjective “disturbing” to describe some of Professor Steffen’s opinions. Forming views about expert evidence was clearly within the provenance of the Tribunal’s function, but what follows in [969] clearly indicates the Tribunal was doing more than rejecting expert evidence:

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. It is unlikely that the Tribunal could perform that function, or was ever intended to do so.

(Emphasis added.)

186    As I explain below, the Tribunal’s evaluation of whether the doing of the future act is in the public interest does not necessarily involve a choice as binary and stark as the one described here by the Tribunal. Nevertheless, this passage is one of the clear indications in the determination that the Tribunal construed the mandatory consideration in s 39(1)(e) as not extending to any evaluation by the Tribunal of the environmental effects of a future act.

187    Next, at [970] the Tribunal distinguishes “particular environmental concerns having particular effect on native title”, accepting it would seem that this matter forms part of the mandatory consideration set out at s 39(1)(a) of the NTA. It does so with an express reference to the effect of the 1998 amendments to the NTA, and in my opinion this is one of several passages where the Gomeroi applicant is correct to characterise the Tribunal’s reasoning as narrowing the concept of “public interest” in para (e) because of the 1998 amendments. The Tribunal continues (at [970]):

In effect, he [Professor Steffen] identifies expectations as to future climate change over the Eastern Australian States, to the west of the Great Dividing Range, from the Darling Downs in Queensland to the Central West of New South Wales. I accept, for present purposes, that such prediction is reasonably open in all the circumstances. However I am presently concerned with the effect of the proposed grants on the Santos project area. There is no identified “particular environmental concern” having “particular effect” on native title, presumably, in this case, the Gomeroi applicant’s native title. There is concern about worldwide climate change, predicted to affect a large part of Eastern Australia. There is nothing “particular” about either the environmental concern, or its effect on such native title. Indeed, the Gomeroi applicant has mounted no such argument. These are world-wide concerns, to be resolved by governments.

188    Again, this passage as a whole reveals a construction of s 39(1)(e) that excludes the matters put by the Gomeroi applicant, and categorises them as matters for government, not for the Tribunal. At [971] the Tribunal again repeats its view that the wider climate change arguments were matters for other bodies to assess, and it should not depart from those assessments. It also refers to the decision of Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110. This was a decision of the Land and Environment Court of NSW on a judicial review challenge to the approval of the Narrabri gas project, brought by a local community action group. Santos NSW (Eastern) Pty Ltd was the active respondent in this proceeding. Many of the grounds concerned the reasoning of the IPC on the GHG emissions of the Narrabri gas project (at [19]). In rejecting one of the grounds of challenge, the Land and Environment Court made the following observations (at [65]-[67]):

An evaluation of the acceptability of a project’s GHG emissions can be assisted by placing the project’s GHG emissions in context and measuring them against the yardsticks of the GHG emissions of other comparable projects, the country in which the project is to be carried out, and the world. This assists in understanding the scale of the contribution of the projects’ GHG emissions to climate change. The larger the project’s GHG emissions, the greater the contribution to climate change. If the project’s GHG emissions are relatively large, refusal of the project may be justified in order to reduce the contribution to climate change: Gloucester Resources at [554]. In this regard, assessing the relative extent of the GHG emissions of a project can be a good servant.

It can, however, be a bad master. Climate change is caused by a myriad of individual sources of GHG emissions, each source’s contribution being individually small but cumulatively large when aggregated with other sources, so that mitigating climate change involves reducing or eliminating these individual sources of GHG emissions: Gloucester Resources at [515], [516]. The argument that because each project’s GHG emissions are relatively small compared to the country’s or the world’s total GHG emissions, they cause no measurable harm or contribution to climate change, has been rejected by many courts: see Gloucester Resources at [514]-[524] and Reference re Greenhouse Gas Pollution Pricing Act [2021] SCC 11 at [189] and cases cited therein. Hence, whilst the relative extent of a project’s GHG emissions can assist in understanding the scale of a project’s contribution to climate change, it is not dispositive and can in fact, if blindly applied, lead to a misunderstanding of the project’s contribution to climate change.

Nevertheless, the relative extent of the Project’s GHG emissions was not an irrelevant factor to be considered in evaluating the acceptability of the environmental impacts of the GHG emissions of the Project. The IPC’s consideration of this factor was one way that the IPC sought to evaluate the acceptability of the environmental impacts of the Project’s GHG emissions.

189    Although the Tribunal does not refer to any pinpoints in its reference to Mullaley, I infer that this kind of reasoning found favour with the Tribunal, it having in substance determined that other agencies and courts had examined these arguments thoroughly and there was no work for the criterion in s 39(1)(e) to do in this respect.

190    At [972] of the determination the Tribunal reiterates that its concern is not with any “global problem”, again a rejection in terms of the relevance of the Gomeroi applicant’s submissions to s 39(1)(e).

191    At [973], the Tribunal refers to a submission made by Santos about s 39(1)(f), and the Tribunal’s ability to rely on that ‘catch all’ provision, which the Tribunal does at [974]:

It seems to me that s 39(1)(f) provides a sufficient basis for taking into consideration the fact that there has been a rigorous examination of a proposed project by a relevant authority. However s 146 of the Native Title Act also provides a basis for reliance upon reports, findings, decisions, determinations, or judgments of the various courts, persons or bodies identified in s 146(a).

192    From [975], the Tribunal sets out Santos’ position, which was not as contrary to that of the Gomeroi applicant as might have been imagined (at [976]-[978]):

In its written closing submissions, at paras 86 – 89, Santos:

(a)     agreed that there is a public interest in the impact of climate change on the preservation and continuity of Gomeroi culture;

(b)     contended that Professor Steffen had referred incorrectly to hydraulic fracturing in his report, and had not considered the conditions imposed on the Narrabri Gas Project by the Independent Planning Commission;

(c)     contended that no further evidence had been put before the Tribunal, upon which it could reassess the Independent Planning Commission’s findings; and

(d)     contended that the findings of the Independent Planning Commission should prevail over Professor Steffen’s findings.

In particular, Santos submitted that there is virtually no evidence concerning the impact of climate change upon the “preservation and continuity of Gomeroi culture”.

In its oral closing submissions at ts 310 l 34 – ts 311 1 26, Santos also contended that the evidence of Professor Steffen:

(a)     in relation to the Narrabri area was at a level of generality that did not add anything that could be said to disturb the detailed consideration of expert evidence undertaken by the Independent Planning Commission;

(b)    suffered from flawed assumptions, including that the project involves extraction of gas by means of hydraulic fracturing; and

(c)     did not engage with the reasoning of the Independent Planning Commission, but rather adopted a simplistic approach, thereby rejecting the consideration of any factors relevant to new projects which emit greenhouse gasses.

193    At [979]-[980], the Tribunal placed some weight on the fact that the report of the NSW Department of Planning, Industry and Environment, which had the primary purpose to assist the IPC in evaluating matters required under the Environmental Planning and Assessment Act 1979 (NSW) (Department report), concluded that the Narrabri gas project is in the public interest. Between [981] and [986], the Tribunal extracted and clearly gave weight to the conclusions of the IPC, and the conclusions expressed in documents appended to the Department report such as an Environmental Impact Statement which included a greenhouse gas assessment prepared by Santos, all of which favoured the project proceeding.

194    Then, in a key passage reflecting the Tribunal’s understanding of the scope of s 39(1)(e), the Tribunal concluded at [987]:

I accept that greenhouse gas emissions may lead to environmental harm. However, in my view, since the 1998 Act, it has not been appropriate to consider environmental (or ecological) matters, save to the extent that such concerns may have a particular effect on native title. That matter should be considered pursuant to s 39(1)(f) and subject to the Tribunal’s view as to relevance. In any event, the matter has been extensively considered by the relevant State agencies and appropriate approvals given. There are conflicting views concerning climate change and knowledge is rapidly expanding. Nonetheless a decision has been made by the relevant authority. The Gomeroi applicant seeks to avoid that decision by referring to Professor Steffen’s views. He seeks to dismiss the approvals by referring to additional information including a further report from a United Nations agency. It does not follow that I should simply dismiss the decisions of State agencies. The Tribunal’s concern is with any particular effect on native title. It cannot be said, in this case, that there is any particular effect upon native title which must be considered. The problem is world-wide.

(Emphasis added.)

195    Read as a whole, especially in light of the parts I have emphasised in bold, this conclusion by the Tribunal is consistent with the earlier parts of its reasoning to which I have referred. The Tribunal clearly did take the view, as a matter of statutory construction, that the 1998 amendments had the consequent effect of narrowing the matters comprehended by the public interest criterion in s 39(1)(e), and excluding the matters sought to be advanced by the Gomeroi applicant. Although the Tribunal referred to Professor Steffen’s evidence, it did not evaluate that evidence for itself to any greater extent than what flowed from its principal view that the conclusions reached through the NSW assessments processes were conclusions the Tribunal should follow. Although at points the Tribunal appeared to couch its reasoning in terms of the inadequate basis for Professor Steffen’s opinions, in reality, in my view it did so only to emphasise that this task of evaluating the effects on climate change from the Narrabri gas project, and evaluating whether allowing a project which increased emissions to proceed was in the public interest at all, was no part of its function, but was, as the Tribunal itself said, a matter “for government”.

196    This reading of the Tribunal’s approach is confirmed by what the Tribunal says at [1016], where it states without qualification that:

The 1998 Act removed the consideration of environmental considerations from the s 39 decision-making process, save when there is a particular effect on native title. There is no apparent matter having such particular effect in this case. Whilst there may be a public interest in the consequences of exploiting gas reserves, there is no doubt that the State, in particular, and the Commonwealth have acted in accordance with State and Commonwealth law.

197    Then at [1017] the Tribunal expressly acknowledged that the approach it was taking was contrary even to the contentions put by Santos and the State:

I have also discussed the significance of climate change which is discussed in connection with ss 39(1)(c), (e) and (f). As to that matter, even if one takes the approach taken by Santos and the State, rather than that which I prefer, having regard to the 1998 Act and the explanatory memorandum, it is difficult to attach much weight to the public interest, beyond that attributed to it in any consideration of s 39(1)(c).

(Emphasis added.)

198    Finally, there was some debate between the parties about how passages in [1014] of the Tribunal’s reasons should be understood. In my opinion, the passages at [1014] are consistent with the understanding of the Tribunal’s reasoning I have outlined above:

There can be no doubt that there is a demand for gas from the Narrabri Gas Project. It seems unlikely that either the State or Santos would otherwise have devoted undoubtedly substantial resources to the project. The proposed grants are of economic significance to Australia, the State and the region, as well as Aboriginal people. Whilst there may be some degree of risk associated with the project, there can be little doubt that the State and Santos have made substantial efforts to minimize the risk. One cannot simply dismiss scientific and engineering experience. Nor is it practicable for the Tribunal to second-guess State agencies in the performance of their prescribed functions, even when faced with Professor’s Steffen’s undoubted expertise, and the information provided by international agencies. In a democracy experts advise, but governments make final decisions and accept political responsibility for the consequences of such decisions.

(Emphasis added.)

199    Therefore, I accept the submissions of the Gomeroi applicant about the correct way to understand the Tribunal’s reasoning, and I reject the respondents’ submissions on this matter.

200    Which now brings into focus the question whether the Tribunal’s interpretation of s 39(1)(e), in light of the 1998 amendments to the NTA, was correct.

The 1998 amendments

201    The Amendment Act was an extensive piece of legislation, which introduced the then government’s controversial ‘10 Point Plan’, formulated as its response to the High Court’s decision in Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1. The Amendment Act is also where the functions of the Tribunal were fundamentally altered to conform with the principles set out in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245, and applied by a Full Court of this Court to the Tribunal in Fourmile v Selpam Pty Ltd [1998] FCA 67; 80 FCR 151.

202    The Amendment Act repealed and substituted Division 3 of Part 2 which had the effect (amongst others) of deleting ss 39(1)(a)(vi) and (b) of the NTA. Prior to the 1998 amendments, s 39(1) required the Tribunal to take into account the following two mandatory considerations (amongst others) in making a determination about whether or not a future act may be done or may be done with conditions:

(1)     In making its determination, the arbitral body must take into account the following:

(a)     the effect of the proposed act on:

….

(vi)     the natural environment of the land or waters concerned;

(b)     any assessment of the effect of the proposed act on the natural environment of the land or waters concerned:

(i)     made by a court or tribunal; or

(ii)     made, or commissioned, by the Crown in any capacity or by a statutory authority;

…

203    The State submits that these amendments meant there was no longer any express requirement in s 39 to consider “environmental matters”. I do not accept that submission, in the broad way it was put. While the phrase “environmental matters” is used in the explanatory memorandum to the Amending Act (at 20.56), the text of s 39 of the NTA prior to the Amending Act discloses that the mandatory considerations were not so broadly expressed.

204    Prior to the 1998 amendments, s 39 imposed two quite different mandatory considerations. By s 39(1)(a)(vi) a broad consideration of the effect of the future act on “the natural environment”. There is no doubt that in order to grapple with that consideration, the Tribunal would have had to receive and evaluate evidence for itself, including expert evidence, about what impact the doing of the future act might have on the land or waters “concerned”. The use of the word “concerned” clearly implies that the Tribunal was to evaluate impact on the particular area of land or waters subject to native title (but not restricted to impact on native title rights and interests).

205    The consideration in s 39(1)(b) of the NTA prior to the Amending Act was likewise restricted to the land and waters “concerned”, but expressly required the Tribunal to take into account any existing assessments on such impact.

206    Thus, both mandatory considerations in the former ss 39(1)(a)(vi) and 39(1)(b) required the Tribunal to assess the environmental impact of a future act on the land and waters subject to native title, the latter doing so by prescribing some of the material the Tribunal must take into account, if it existed.

207    The explanatory memorandum (at 20.56) suggests the purpose of removing these provisions was that such:

assessments are more properly made in State and Territory environmental processes undertaken prior to the grant of a right, such as a mining lease.

208    It went on to assert (at 20.57) that:

If there are particular environmental concerns which may need to be taken into account because of the particular effect on native title, the arbitral body retains the ability to consider them under paragraph 39(1)(f).

209    That statement is certainly accurate in the sense that para (f) incorporates any “other matter” the Tribunal considers relevant.

210    The substantive text of the criterion in s 39(1)(e) remained the same before and after the 1998 amendments. In my opinion there is no basis for finding that its meaning was affected by the 1998 amendments. If, before the 1998 amendments para (e) was properly understood as incorporating “environmental matters” in some way, then it should be properly understood as incorporating them after the 1998 amendments. Adopting an appropriate focus on the text of the statute rather than glosses in extrinsic material (see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ), especially in the context of a suite of controversial amendments such as the Amendment Act, the text of para (e) remained substantively the same. Even if regard is had to the extrinsic material, nowhere in the extensive explanatory memorandum is there any suggestion that the Parliament intended by these amendments to restrict or alter the matters comprehended by the “public interest” in s 39(1)(e), nor to restrict the consideration of the Tribunal under that paragraph in any way.

211    That said, there is no doubt that the Tribunal was correct to see the 1998 amendments as removing a significant function from the Tribunal under s 39(1). Prior to this time, the Tribunal was given an active and no doubt quite intensive environmental assessment function, the target of that function being the environmental impact of the future act on the land and waters subject to native title. This function went beyond an evaluation of the impacts on native title rights and interests (covered elsewhere in s 39(1)) to an evaluation of the impact on lands and waters themselves. That environmental assessment function was removed. The Tribunal was correct in its determination to see that function as having been moved to State environmental assessment bodies like the IPC. It was correct to view its statutory task as not being to ‘second guess’ or re-do those environmental assessments.

212    Where the Tribunal erred, in my respectful opinion, was in conflating the removal of this environmental assessment function, with the removal of any requirement for it to consider, under s 39(1)(e) of the NTA, whether features or characteristics of the future act that might be broadly described as “environmental” weighed for or against the public interest in the doing of the future act.

213    It is well established, and the respondents did not dispute, that Parliament’s use of the phrase “any public interest” confers a wide discretionary value judgment function on a repository: O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216; Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 at [21] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 at [39] (French CJ, Crennan and Bell JJ); Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; 48 VR 129 at [313]-[317] (Tate JA). See also in the context of s 39(1)(e): Evans v State of Western Australia [1997] FCA 741; 77 FCR 193 at 215.

214    The phrase is not, and is not intended to be, susceptible of precise definition, nor is it appropriate to set out lists of matters that might fall within its scope. The adjective “public” connotes an interest of a nature that is different from a private or individual interest. It asks a repository of a power conferred in these terms to look at interests common to or held amongst a wider community, but not necessarily across an entire community, or nation.

215    There was ample material before the Tribunal to make good the proposition that a matter of public interest in connection with the Narrabri gas project was the fact (for it was not disputable) that the project would generate substantial GHG emissions, in an undisputed factual context of the connection between GHG emissions and global warming, with the increased harm to people and the environment that comes from global warming.

216    The terms of the Departmental report itself make good that this was a matter of public interest. In the executive summary, the Department report states:

The community has raised significant concerns about the project saying it would damage the region’s water resources, cause significant biodiversity impacts on the Pilliga State Forest, generate substantial greenhouse gas emissions, and adversely affect the health, safety and cohesion of the local community.

217    The section of the Departmental report on GHG emissions was as follows:

Submissions about the greenhouse gas emissions of the Narrabri Gas Project were as much about the ongoing use of fossil fuels and gas in Australia as they were about the project.

The NSW energy market is changing rapidly as more renewable energy is built and is likely to change even more rapidly over the next two decades as most of the remaining power stations in NSW are closed.

Extensive work undertaken by AEMO, however, has consistently shown that the transition of the NEM to a greater reliance on renewable energy requires significant investment in new transmission infrastructure as well as dispatchable energy (pumped hydro, battery storage and gas), and is likely to take many years.

In the interim, AMEO forecasts that gas use in NSW is likely to remain strong; and that peaking-gas fired power stations are likely to play a significant role in providing dispatchable energy to the NEM assuring a reliable and reasonably-priced supply of gas - such as the Narrabri Gas Project - can be secured.

Consequently, the greenhouse gas emissions associated with gas use in NSW are likely to continue, whether the Narrabri Gas Project is approved or not.

Using gas to generate dispatchable energy is also likely to help reduce total greenhouse gas emissions in NSW as coal use is phased out.

Recent research undertaken by the CSIRO indicates that fugitive emissions from coal seam gas projects in Australia are lower than previously thought, and that on a life cycle basis, domestic coal seam gas-fired electricity would produce up to 50% less carbon emissions compared to coal-fired production.

In relative terms, the emissions of the project are expected to be low: background levels of methane and carbon-dioxide are low in the area; the target coal seams are very deep and generally sealed off from the surface by several aquitards; and the leakage from gas wells is expected to be very low given they would be drilled in accordance with the Well Integrity Code and fitted with leak detection systems.

Finally, the project’s direct and indirect greenhouse gas emissions, including emissions from the downstream burning of the gas, would be minor, at less than 1 % of the Australia’s total emissions. This is despite the project potentially supplying up to 50% of NSW gas demand.

Consequently, the Department does not support calls to refuse the Narrabri Gas Project due to its greenhouse gas emissions. Essentially, this would be a decision against the future use of gas in NSW, which would make it harder to transition to a low emissions economy.

On the contrary, the NSW Gas Plan seeks to create a sustainable gas industry in NSW that addresses community concerns and provides vital gas supplies to NSW, including industry, businesses and the over one million households who rely on gas across NSW.

Consistent with the requirements in the Mining SEPP, the Department has recommended conditions requiring Santos to minimise the greenhouse gas emissions of the project.

218    The same is reported in the statement of reasons of the IPC. In the executive summary, the IPC identifies 8 key issues covered in the statement of reasons, one of which is GHG emissions. In considering the application in Part 4 of the statement of reasons, the IPC identified public concern about “Climate change impacts from greenhouse gas emissions” as one of 9 key issues which were the subject of unique public submissions. These 9 key issues raised in the unique public submissions align closely to the 8 key issues covered in the statement of reasons identified by the IPC in the executive summary. The tables in the statement of reasons show that this public concern about climate change impacts from GHG emissions was the second highest of the 9 concerns raised in the unique public submissions, second only to groundwater impacts. At 7.3 of the statement of reasons, the IPC considered the question of GHG emissions from the Narrabri gas project. It set out the public concerns in detail, but summarised them in this way (at [153]):

The key concerns were the contribution of greenhouse gases from the Project to climate change, and the view that fugitive emissions and the carbon dioxide (C02 ) content of the gas produced from the target coal seams had been underestimated in the EIS and not adequately addressed in the Department’s AR.

219    The IPC set out its findings at [170]-[175] of its statement of reasons:

The Commission accepts that the expected greenhouse gas emissions from the Project are as predicted in Appendix R of the EIS and summarised in paragraph 161, noting that these have been based on established National Greenhouse Accounts Factors and industry standards.

The Commission has considered public submissions stating that the Scope 1 CO2 and CH4 emissions in the EIS have been underestimated (paragraphs 155-156). The Commission agrees that substantial exceedance of these predicted emissions would jeopardise the expected greenhouse gas emissions advantages of CSG over coal, which is a strategic justification for the Project presented by the Department (paragraph 165) and the Applicant (paragraph 159). In consideration of this justification and the environmental impacts of greenhouse gases, the Commission has determined that the Project should not be permitted to exceed its predicted Scope 1 and 2 emissions.

The Commission has therefore imposed conditions B20 and B21 to require any exceedance of the predicted Scope 1 and 2 greenhouse gas emissions of the Project to be fully offset in accordance with a national government program concerning the offsetting of greenhouse gas emissions. Scope 3 emissions are not included in these conditions because the Commission’s view is that these emissions are outside the direct control of the Applicant and therefore not able to be reasonably conditioned.

The Commission has had regard to all the likely indirect and direct greenhouse gas emissions associated with the Project in its determination. In addition to the imposed conditions requiring any exceedance of the Applicant’s predicted Scope 1 and 2 greenhouse gas emissions to be fully offset, the Commission has imposed a further condition B19 requiring the Applicant to establish a Greenhouse Gas Emissions Advisory Group to inform the proper management and reporting of the Project’s greenhouse gas emissions.

With regards to the Australian Government’s international commitment to reduce greenhouse gas emissions, the Commission notes the expected emissions advantage of CSG compared to coal for electricity generation and the Government’s intent through the Commonwealth’s endorsement of the Paris Agreement and the NSW Gas Plan and NSW Energy Package MOU (Section 5.3) to increase the supply of gas in NSW. The Commission notes that petroleum production is a permitted use of the land and agrees with the Department (paragraph 168) that existing government policy relevant to the greenhouse gas emissions of fossil fuel and other mining operations is contained in the Mining SEPP.

The Commission has had regard to the likely extent of the emissions resulting from the Project, and the matters raised by the Department in its assessment referred to in paragraphs 165 to 169 above. The Commission considers that these emissions are justified because of the strategic alignment of the Project with the NSW Gas Plan and the NSW Energy Package MOU.

220    The matters canvassed here were broadly the matters canvassed by Professor Steffen, at more or less the same level of generality; certainly as to the larger questions about whether new fossil fuel projects should be allowed to proceed at all. They are also the matters canvassed in the Intergovernmental Panel on Climate Change’s reports relied on by Professor Steffen, which are not objectively capable of diminishment, with respect, in the way the Tribunal sought to do in its determination at [968]. At best, this was another example of the impermissible deference shown by the Tribunal to the State environmental approval processes, and the failure to appreciate the Tribunal’s separate, distinct and independent role in considering the matters set out in s 39(1) of the NTA.

221    The point made by the Gomeroi applicant in its submissions to the Tribunal was that the Tribunal should strike a different balance under the NTA to the one struck by the State and its agencies through the environmental assessment process. The Gomeroi People, through the Gomeroi applicant, were entitled to ask the Tribunal to do that. The Tribunal’s function is independent of State government and conferred for quite a different purpose; namely to examine the future act from the perspective of the holders (or putative holders) of native title, as well as from the perspective of other members of the community as set out in s 39(1). As I explain below, it must perform that function in a statutory context where, despite the recognition of native title in the land and waters concerned (or putative recognition through registration), native title holders or claimants do not have any veto over future acts on their country. Rather, Parliament has given the capacity of veto to the Tribunal. It is a specific function, in which similar considerations taken into account by State government and their agencies might be evaluated quite differently, in the performance of a different legislative function, one informed by the objects of the NTA and the values set out in the Preamble. The Preamble informs the content of the “public interest” when that phrase is used in the NTA. The legislative scheme of the NTA requires the Tribunal to form its own views on where the public interest lies both as a separate consideration and as part of a holistic exercise, reflecting on all the factors in s 39(1). In performing that function it is no part of the Tribunal’s role to defer to government, state or federal.

222    Here, the Tribunal’s misconstruction of s 39(1)(e) led it to defer to state environmental assessment processes, and led it to fail to engage with the mandatory consideration in s 39(1)(e) in the way the legislative scheme requires.

223    In the context of s 39(1), the s 39(1)(e) consideration is not limited to a public interest that has a direct or indirect effect on native title rights and interests, and previous authorities have not suggested so. Yet the Tribunal purported to require increases in GHG emissions from the Narrabri gas project, and the contribution to increased global warming and a failure to reduce the rate of global warming, to be proven to be tied to impacts on the Gomeroi People’s native title in the land and waters of the area (see, for example, [970] and [987] of the determination). That error is in addition to the conflation I have described above.

224    Finally, it was the Tribunal’s erroneous understanding of its task under s 39(1)(e) which also led it to dismiss Professor Steffen’s expert opinion as that of just one scientist. To begin with, Professor Steffen was expressing opinions that were on their face entirely consistent with the panel of expert authorities of the IPCC, representing a collection of the world’s leading climate scientists. Professor Steffen’s report also references research from, amongst others, the Australian Academy of Science, the Climate Council of Australia, the CSIRO and Bureau of Meteorology, and the International Energy Agency.

225    The Gomeroi applicant’s submissions to the Tribunal focused on those aspects of Professor Steffen’s report explaining what was likely to occur if global warming continues to increase beyond the target of 2 degrees Celsius above pre-industrial levels, which he explained (based also on the IPCC reports) was the predicted outcome if effective action is not taken to reduce GHG emissions, including by reducing fossil fuel developments such as the Narrabri gas project.

226    In explaining these matters Professor Steffen addressed arguments commonly put about how the contribution of a single fossil fuel project to increased global warming, or more accurately to failures to reduce global warming, can be assessed (at [4.2]):

A common argument made for proceeding with new fossil fuel developments is that the resulting emissions are so small compared to the total national (currently about 520 Mt CO2-e (Australian Government 2021)) or to global emissions (about 42.1 billion tonnes of CO2 in 2019 (Friedlingstein et al. 2020) that they do not matter. In the case of the Project being considered here, the projected annual CO2-e emissions from the Project are less than 0.2% of Australia’s current annual emissions (pre-COVID: from March 2019 through March 2020) of about 520 Mt CO2-e (Santos 2016; Australian Government 2021). On that approach, it would appear that the GHG emissions from the Project will be insignificant compared to total GHG emissions for Australia, and certainly when compared to global emissions.

The same argument is made at the national level in terms of Australia’s national emissions being such a small fraction (ca. 1.2%) of the global total that they don’t matter (i.e., “even if we reduce our emissions, it won’t have a major effect on the climate”). These arguments are, in my opinion, fundamentally flawed because they ignore the fact that global GHG emissions are made up of millions, and probably hundreds of millions, of individual emissions around the globe. All emissions are important because cumulatively they constitute the global total of GHG emissions, which are destabilising the global climate system at a rapid rate. Just as many emitters are contributing to the problem, so many emission reduction activities are required to solve the problem.

A useful analogy is the total tax revenue that a government agency collects each year to support the activities of the government. While there are certainly some large taxpayers (just as there are some large carbon emitters), there are also millions of Australians who pay a small amount of tax each year, compared to the total revenue. Each of these taxpayers could make the argument to the government agency that their amount of tax compared to the total revenue collected is so small that it does not matter, and therefore they should not have to pay tax. The government agency would very likely not accept that argument.

The Paris Accord is based on the same principle of collective action: every country is expected do its fair share in decarbonising the global economy (i.e., reducing its GHG emissions to net zero) at a rate consistent with meeting the global climate goal of keeping the rise in global temperature to ‘well below 2°C and to pursue efforts to limit the temperature rise to 1.5°C’.

227    He then explained the effects on the area covered by the Gomeroi native title claim (at [4.3]):

Returning to the consequences of the continued expansion of the fossil fuel industry, to which the proposed Project considered here would contribute, the projected impacts to the Narrabri region, and to Australia as a whole, are outlined in Question 3 above. To summarise again, these consequences for the Narrabri region are more extreme heat, further and more intense droughts, harsher fire danger weather, and heavier rainfall when it occurs, all of which will continue to increase in frequency and intensity so long as the atmospheric GHG concentrations continue to rise due primarily to emissions from the combustion of fossil fuels.

228    The Tribunal’s task under s 39(1)(e) was to actively and genuinely take these matters into account in deciding where the public interest lay in the doing of the future act. I respectfully agree with the observations of O’Bryan J in his Honour’s reasons at [345]. The mandatory consideration in s 39(1)(e), as expressed both before and after the 1998 amendments, requires an arbitral body to address and evaluate any public benefits and detriments in the act being done. Positive and negative matters are, in my respectful view, intended by Parliament to form part of the overall assessment by the arbitral body about whether there is “any” public interest in the proposed act proceeding, or being done.

229    It was a task for the Tribunal to evaluate the harms outlined by Professor Steffen as part of its consideration of whether there was “any” public interest in the doing of the future act, bearing in mind that the economic benefits and the like are expressly incorporated under other parts of s 39(1). As the Gomeroi applicant submitted in the appeal, there was no basis for the Tribunal to avoid consideration of the Gomeroi applicant’s contentions about GHG emissions from the Narrabri gas project and s 39(1)(e) by reference to notions of ‘practicability’: see determination at [542] and [1014]. These paragraphs illustrate, with respect, the impermissible deference shown by the Tribunal to state processes, which had a different purpose and focus from its own statutory task.

The Tribunal’s consideration of s 39(1)(f)

230    The Tribunal’s error in misunderstanding or misapplying s 39(1)(e) is not ameliorated or negated by its consideration of some of these matters under s 39(1)(f). There was some suggestion of this in oral argument before this Court, but the Tribunal’s reasons are clear that it did not consider the Gomeroi applicant’s arguments about why the future act should not be done because of the project’s contribution to an increase in GHG emissions under s 39(1)(f). The Tribunal says as much at [1017]:

Section 39(1)(f) is of no relevance, given that there is no suggestion of particular environmental concerns producing particular effects on native title.

231    Question of law 3 should be answered in favour of the Gomeroi applicant’s contentions. The Tribunal’s decision is affected by a legal error, in its misconstruction and misapplication of the mandatory consideration in s 39(1)(e) of the NTA.

OVERALL CONCLUSION

232    The Gomeroi applicant’s questions of law relating to good faith should be answered against its contentions. The Tribunal’s decision and reasoning on good faith is not affected by the errors alleged.

233    The Gomeroi applicant’s question of law 3 relating to the mandatory consideration in s 39(1)(e) should be answered favourably to its contentions. The Tribunal’s decision and reasoning on public interest is affected by the errors alleged.

Relief

234    Senior counsel for Santos conceded that if the Gomeroi contentions on question 3 were correct, then the Tribunal had erred in law; see TS-126 and TS-140. Neither Santos nor the State contended that if the Gomeroi applicant’s contentions were accepted there was a basis for the Court to withhold the relief sought.

235    The misconstruction and misapplication of the mandatory consideration in s 39(1)(e) deprived the Gomeroi applicant and the Gomeroi People of the possibility of a successful outcome in the process before the Tribunal: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147 (Mason, Wilson, Brennan, Deane and Dawson JJ). The appeal provisions in the NTA do not involve any requirement to establish jurisdictional error, and it is important not to confuse more recent High Court jurisprudence in that context with the well-established principles about when an error can be assessed as having sufficiently affected the discharge of a statutory task to warrant the grant of relief. It was within the Tribunal’s power under s 38 of the NTA to decide that the future act “must not be done”. It can be accepted that this power has not very often been exercised, and that it is a significant power, especially for a large project like the Narrabri gas project. Nevertheless, what is at stake for the native title party and their country is also significant.

236    The Parliament chose to give the effective veto in relation to the doing of particular future acts to the Tribunal rather than the native title party. This policy choice has recently received some scrutiny: see Joint Standing Committee on Northern Australia, ‘A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge’ (October 2021), Recommendation 4:

The Committee recommends that the Australian Government review the Native Title Act 1993 with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime.

237    The Committee recommended that such review specifically address, inter alia:

•    the current operation of the future act regime and other relevant parts of the NTA including s 31 (right to negotiate), s 66B (replacement of the applicant) and Part 6 (the operation of the NNTT)

•    developing standards for the negotiation of agreements that require proponents to adhere to the principle of Free, Prior and Informed Consent as set out in the United Nations Declaration of the Rights of Indigenous People (UNDRIP)

238    Nevertheless, that is the policy choice expressed in the legislative scheme and to be applied by the Tribunal and this Court. That being the case, despite state government environmental approval through mechanisms outside the NTA, it is within the Tribunal’s power to determine the future act must not be done. One consequence of such a determination might well be to take the parties back to the negotiating table. However, the point for the Court’s present purposes is that on the material before the Court, the Gomeroi applicant and the Gomeroi People it represented were deprived of the possibility of a successful outcome by reason of the Tribunal’s errors in relation to s 39(1)(e).

239    The parties should be given an opportunity to consider the Court’s reasons and attempt to agree on appropriate orders in light of the Court’s reasons. Failing agreement, the parties should be permitted to make submissions on appropriate orders, and any competing submissions can be dealt with by the Full Court on the papers.

240    In light of that proposed process, I make the following observations. With respect, there is force in the observations of Rangiah J at [310] of his Honour’s reasons, about some of the consequences which flow from present limitations on the Tribunal’s function.

241    Nevertheless, this remitted matter will be heard under the present legislative scheme, and therefore how the matter ought to proceed on remittal, in light of the Court’s reasons, is a matter on which the parties should be heard before the Court considers whether it should make any specific orders affecting the remitted hearing. Tremendous resources have already been invested by the parties and the Tribunal on this application. It may be appropriate to confine the Tribunal on remittal to evidence already before it, or it may not.

242    The Gomeroi applicant sought an order about the Tribunal being differently constituted on remittal. I note the Tribunal has a new President, so there will be a differently constituted Tribunal in any event.

Associate:

Dated:    6 March 2024

REASONS FOR JUDGMENT

RANGIAH J:

243    I have had the great advantage of reading Mortimer CJ’s comprehensive and thorough reasons for judgment in draft. I will adopt the abbreviations used by her Honour.

244    Grounds 1, 2, 4, 5 and 6 of the applicant’s Further Amended Notice of Appeal challenge the Tribunal’s determination, for the purposes of s 36(2) of the NTA, that Santos did not fail to negotiate in good faith. I respectfully concur with the reasons given by the Chief Justice for rejecting each of those grounds.

245    Ground 3 asserts that the Tribunal misconstrued s 39(1)(e) of the NTA in finding that it was prohibited from considering “environmental matters” except in relation to particular environmental concerns having particular effect on native title. Before the Tribunal, the applicant had submitted that the Tribunal was obliged under s 39(1)(e) to take into account the public interest in mitigation of climate change. The Tribunal reasoned that it was not permitted to take that matter into account under s 39(1)(e) because s 39(1) as a whole prohibits the Tribunal from having regard to environmental concerns except where they have a particular effect on native title. The Chief Justice would uphold Ground 3 and would consequently allow the appeal. I have, respectfully, reached a different conclusion.

246    In my opinion, neither the construction of s 39(1)(e) contended for by the applicant nor that given by the Tribunal is correct. Instead, s 39(1)(e) should be construed according to its grammatical meaning, such that it only requires an arbitral body to take into account any matter of public interest that favours or supports the doing of the proposed future act. This means that s 39(1)(e) does not require the arbitral body to have regard to a matter of public interest that is against the doing of the act. There was ultimately no error in the Tribunal’s refusal to take into account the public interest in mitigating climate change under s 39(1)(e), since that was a matter against the doing of the relevant acts. I will explain my reasons for these conclusions.

247    The applicant is the registered native title claimant in a native title determination application made on behalf of the Gomeroi People. The claim covers an area in excess of 100,000 km² in New South Wales.

248    Santos proposes to conduct a gas extraction operation, known as the Narrabri Gas Project, over 95,000 ha of land to the south and west of the town of Narrabri. The land is entirely within the Gomeroi claim area.

249    Santos applied for four petroleum production leases. The State proposed to grant the leases. After the failure of negotiations between Santos and the applicant, Santos applied to the Tribunal for an arbitral determination under s 38(1) of the NTA.

250    Section s 39(1)(e) of the NTA requires that, in making its determination, the Tribunal must take into account, “any public interest in the doing of the act”.

251    Before the Tribunal, the applicant relied on Professor Steffen’s report to submit that it was necessary that no new fossil fuel projects be approved if the temperature targets under the Paris Accord are to be met, and that, if they are not met, climate change will have a devastating impact on Australia, including the Narrabri region. The applicant argued, relevantly, that there is a public interest in, “seeking to mitigate and prevent the worst likely effects of global warming, which has consequences at global, national and local levels”.

252    The substance of the applicant’s argument is that the Tribunal erred in construing s 39(1)(e) as only allowing it to take into account a matter of public interest relating to particular impacts on native title in the land and waters in the claim area, and not a matter of public interest concerning “general environmental matters”. The applicant submits that the phrase “any public interest” in s 39(1)(e) is broad and encompasses the public interest, “in the effects of climate change”. The principal dispute between the parties is whether the Tribunal in fact interpreted the provision in the way the applicant contends it did. As to that matter, I agree with the Chief Justice’s opinion (at [182] and [199]) that the Tribunal did construe s 39(1)(e) of the NTA as only allowing it to take into account a matter of public interest relating to particular impacts on native title in the land and waters in the claim area.

253    The Chief Justice considers (at [223]) that the Tribunal misconstrued s 39(1)(e) because the provision does not limit consideration to, “a public interest that has a direct or indirect effect on native title rights and interests”. On both her Honour’s view and the Tribunal’s view, s 39(1)(e) is capable of applying to a matter of public interest weighing against the doing of the relevant future act. In that respect, I am respectfully unable to agree with the Tribunal’s and the Chief Justice’s construction.

254    In my opinion, the plain language of s 39(1)(e) (“any public interest in the doing of the act”) only requires the Tribunal to take into account any matter of public interest favouring the doing of the act. While other paragraphs of s 39(1) either enable or require the Tribunal to take into account a range of factors, including public interest factors, against the doing of the act, para (e) does not.

255    Of course, grammatical meaning is not necessarily determinative of legal meaning, and must be considered together with context: see for example, Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [65]–[66]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. Accordingly, before returning to the language of the provision, I will examine some matters of context, including the way the NTA deals with acts, called “future acts”, that affect native title.

256    The starting point is the Preamble, which provides, relevantly:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

…

The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

257    The Preamble provides part of the context in which the provisions of the NTA are construed: see North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 614 and 637; Wacando v The Commonwealth (1981) 148 CLR 1 at 23. The Preamble recognises that the Australian community has a great interest in protecting native title against acts that would diminish or extinguish those rights and interests. The Preamble also acknowledges that, in some circumstances, the interests of the Australian community may require that acts that would affect native title be permitted to be done even without the agreement of the native title holders. A number of provisions of the NTA seek to balance these competing aspects of the public interest.

258    Part 2, Division 1 of the NTA is entitled, “Recognition and protection of native title”. Section 10 provides that native title is recognised, and protected, in accordance with the NTA. Section 11(1) provides that native title is not able to be extinguished contrary to the NTA.

259    Part 2, Division 3 has the heading, “Future acts etc. and native title”. Section 24AA(1) states that Division 3 deals mainly with “future acts”. Section 24AA(2) explains that, basically, Division 3 provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

260    The word "act" is defined by s 226(2)(b) to include, "the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument". The expression “future act” is defined in s 233. Under that definition, an act cannot be a “future act” unless it “affects native title”. Accordingly, where Division 3 applies to future acts, it applies to acts that necessarily affect native title. Under s 227, an act “affects” native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

261    Section 24AA(3) explains that a future act will be valid if the parties to an Indigenous Land Use Agreement consent to it being done and the agreement is registered. Section 24AA(4) states that a future act will also be valid to the extent that the act is covered by any of twelve specified sections of the NTA. Section 24OA provides that, unless a provision of the NTA provides otherwise, a future act is invalid to the extent that it affects native title.

262    Part 2, Division 3, Subdivision P is entitled, “Right to negotiate”. Sections 25(1) and (2) explain that Subdivision P applies to certain future acts done by the Commonwealth, a State or a Territory, and that, before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.

263    Section 26(1) provides that Subdivision P also applies to a future act if, relevantly, the act is the creation of a right to mine, whether by the grant of a mining lease or otherwise.

264    Sections 29(1) and (2) require that before the act is done, the government party must give notice of the act to, inter alia, any registered native title claimant and registered native title body corporate, “in relation to any of the land or waters that will be affected by the act”.

265    Pursuant to ss 29(2) and 30(1), any registered native title claimant or any registered native title body corporate in relation to any of the land or waters that will be affected by the act is a “native title party”. Section 30A provides that a “negotiation party” is the government party, any native title party and any grantee party.

266    Section 31(1)(b) requires that the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act or the doing of the act subject to conditions.

267    Importantly, s 35(1) allows any negotiation party to apply to the arbitral body (relevantly, the Tribunal) for a determination under s 38 in relation to the act if at least six months have passed since the notification day (see s 29(4)) and no agreement has been made in relation to the act.

268    Section 38(1) of the NTA sets out the kinds of determinations that may be made by the arbitral body:

38    Kinds of arbitral body determinations

(1)    Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)    a determination that the act may be done subject to conditions to be complied with by any of the parties.

269    Section 39(1) of the NTA sets out criteria the arbitral body must take into account in making a determination:

39    Criteria for making arbitral body determinations

(1)    In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)    the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)    the way of life, culture and traditions of any of those parties; and

(iii)    the development of the social, cultural and economic structures of any of those parties; and

(iv)    the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)    any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)    the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)    any public interest in the doing of the act;

(f)    any other matter that the arbitral body considers relevant.

270    Under s 36A(1), if the arbitral body has not made a determination within the specified period, a relevant Minister may make a determination in relation to the act. Under ss 42(1) and (2), the power to overrule a determination of an arbitral body may be exercised in the interests of the State or Territory concerned or in the national interest.

271    From these provisions, a number of matters relevant to the construction of ss 38(1) and 39(1) can be discerned.

272    First, Part 2, Division 3 is only concerned with “future acts” which must, under the definition of that term in s 233, be acts that affect native title. Acts that do not affect native title are not “future acts” and are not covered by Division 3. Accordingly, ss 38(1) and 39(1) are importantly, although not exclusively, concerned with the nature and extent of the effect of the proposed act on native title rights and interests.

273    Secondly, an arbitral body comes to make a determination under s 38(1) in circumstances where the negotiation parties have been unable to agree about either whether the act should be done or the conditions under which the act may be done.

274    Thirdly, the arbitral body must make one of the three kinds of determinations set out in s 38(1): that the future act may not be done; or may be done; or may be done with conditions determined by the arbitral body.

275    Fourthly, in deciding which kind of determination to make under s 38(1), the arbitral body has a broad discretion, in the sense that no one consideration or combination of considerations is necessarily determinative of the result: cf. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]. The discretion involves, in substance, balancing the interest of the public or a section of the public in the doing of the act against the interests of the public and the native title parties in protecting native title from non-consensual interference.

276    Fifthly, under ss 38(1) and 39(1), the particular effect of the act on the native title rights and interests of the native title parties in the particular land and waters subject to the claim or determination is a factor that will be significant to the arbitral body’s determination. That may be seen from ss 29 and 30A, which give standing to be notified and to negotiate to parties who have, or have claimed, native title rights and interests in, “any of the land or waters that will be affected by the act”. Further, s 39(1)(a)(i) specially requires consideration of the effect of the act on, “the enjoyment by the native title parties of their registered native title rights and interests”: see also s 39(1)(a)(iv) and (v). However, not all the matters the arbitral body is required to take into account under s 39(1)(a)(ii) and (iii), (b), (c) and (e) are necessarily connected with any particular effect on native title rights and interests in the relevant land or waters. Further, the words, “any other matter” in s 39(1)(f) are broad enough to include matters considered by the arbitral body to be relevant even if unconnected with any particular effect on native title rights and interests in the relevant land or waters.

277    Sixthly, although, under s 39(1)(b), the arbitral body must take the native title parties’ interests, proposals, opinions or wishes into account, the arbitral body is empowered to make a determination that the future act may be done regardless of such interests, proposals, opinions or wishes. In other words, the native title parties do not have a power of veto.

278    Seventhly, s 39(1) expressly states a number of matters which the arbitral body must take into account, but does not in its terms purport to limit the matters which may be taken into account. If there are limitations upon what matters may be taken into account, they must appear by implication from the subject matter, scope and purpose of the NTA: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40.

279    I return now to the grammatical meaning of the requirement in s 39(1)(e) that, “In making its determination, the arbitral body must take into account…any public interest in the doing of the act”.

280    The phrase “any public interest” was described in O'Sullivan v Farrer (1989) 168 CLR 210 at 216 as, “classically import[ing] a discretionary value judgment to be made by reference to undefined factual matters”. However, the factors that may be considered are subject to any express limitations in the relevant statutory provision, as well as any limitations implied from the subject matter, scope and purpose of the provision. In Evans v Western Australia (1997) 77 FCR 193 at 215, R D Nicholson J described the words “any public interest” in s 39(1)(e) as, “not limited in their scope”, but, in the circumstances of that case, his Honour was not called upon to consider whether the words following the phrase “any public interest” operate to limit the scope of that phrase. In my opinion, those succeeding words expressly provide such a limitation.

281    In s 39(1)(e), the phrase “any public interest” is immediately followed by the phrase “in the doing of the act”. In the latter phrase, “doing” is a noun. The Macquarie Dictionary defines “doing” in its noun form as, “action; performance; execution: it’s all in the doing”. It does not refer to inaction or non-performance. Where, for example, the relevant act is the granting of a lease, the word “doing” is apt to refer to the lease being granted, but not a refusal to grant the lease.

282    The preposition “in” is relevantly defined in the Macquarie Dictionary as expressing, “inclusion within…limits”. It operates, not only to connect the phrase “any public interest” to the phrase “the doing of the act”, but to limit the former by reference to the latter. In other words, the phrase “in the doing of the act” confines the scope of the phrase “any public interest”. In that context, the phrase as a whole refers to any public interest favouring the doing of the act, and does not encompass any public interest against the doing of the act.

283    In my opinion, s 39(1)(e) in its grammatical meaning only requires the arbitral body to take into account any public interest in the act being done. The provision does not in its terms require any public interest in the act not being done to be taken into account. Nor does it refer to “any public interest or detriment” in the doing of the act. Nor does the provision use any broader phrase such as, “any public interest in connection with the doing of the act”, which might have been interpreted as referring to any public interest for or against the doing of the act. In my opinion, the grammatical form of s 39(1)(e) only requires the arbitral body to take into account any public interest in the act being done, not any public interest against the doing of the act.

284    A number of other provisions of Part 2, Division 3 refer to “the doing of” acts (for example, ss 24BB, 24CB, 24DB, 24EB and 31(1)). In each of the provisions, the phrase is used according to its ordinary meaning to refer to an act being done. That suggests that where the same phrase is used in s 39(1)(e), it is used in the same way.

285    It may be noted that when originally enacted, the language of s 39(1)(e) was different. It required the arbitral body to take into account, “any public interest in the proposed act proceeding”. Section 39(1)(e) was brought into its current form under the 1998 amendments. In my opinion, the change in language did not bring about any change in meaning. That is confirmed by the relevant Explanatory Memorandum, which states:

20.54 Existing section 39 of the NTA sets out the criteria that must be considered by an arbitral body in making a determination about a future act. The criteria mainly relate to the affect (sic) the act would have on native title and the interests of the native title parties and the public interest in doing the act. The Bill re-enacts section 39 with a number of changes [Schedule 1, item 9, section 39]. The changes that are significant are set out below. These changes were proposed in the 1996 amendments.”

(Emphasis added.)

286    The Explanatory Memorandum states that the criteria in s 39 relates to, relevantly, “the public interest in doing the act”. The Explanatory Memorandum does not go on to address the changes to the language of s 39(1)(e), suggesting that it was not seen as a change that was “significant”. The change appears to have been intended to make the language of s 39(1)(e) consistent with the language of the numerous other provisions of Part 2, Division 3 which refer to an act being “done” or to “the doing of” an act. In substance, s 39(1)(e) continued to require only that the arbitral body take into account any public interest in the proposed act proceeding.

287    A conclusion that s 39(1)(e) applied only to any public interest favouring the doing of an act does not mean that any public interest against the doing of the act cannot be taken into account under ss 38(1) and 39(1). Section 39(1)(f) requires the arbitral body to take into account, “any other matter that the arbitral body considers relevant”. The broad words of that provision are capable of encompassing any matter of public interest against the doing of the act, subject to whether the arbitral body considers the matter relevant to its determination. In fact, if a substantial and clearly articulated argument concerning any such matter of public interest is made, the arbitral body may, subject to its assessment of relevance, be required to take the argument into account under s 39(1)(f): see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].

288    In contrast to s 39(1)(f), there is no expressly stated requirement in s 39(1)(e) that the matter be relevant to the doing of the act. However, the connection and limitation between the phrases “any public interest” and “the doing of the act” created by the preposition “in” require that the matter of public interest be relevant to the doing of the act. Accordingly, there is symmetry between s 39(1)(e) and (f) in terms of requiring relevance of the matter to the arbitral body’s determination.

289    The reason for drafting s 39(1)(e) such that it only applies to any public interest in the act being done is probably to make it clear or to emphasise that such a matter must be taken into account. An example of a public interest of this kind is found in Cheedy v Western Australia (2011) 194 FCR 562, where the Full Court at [138] was prepared to accept that mining developments generally are in the public interest for the purposes of s 39(1)(e). The Full Court also stated that, in other circumstances, it may be necessary for the Tribunal to consider the public interest in a particular project. Another example may be that expansion of mining for a particular mineral in short supply may be in the public interest for the purposes of s 39(1)(e). It may be observed that what is regarded as a matter of public interest is susceptible to change over time.

290    It may be that a reason why s 39(1)(e) does not specify that the arbitral body must take into account any public interest against the doing of the act is that the important public interest against interference with native title without agreement of the native title parties is already inbuilt into s 39(1)(a) and (b). Under para (a) of s 39(1), the arbitral body must take into account, inter alia, the effect of the act on the enjoyment of the native title parties of their registered native title rights and interests and on their way of life, culture and traditions. Under para (b), the arbitral body must take into account the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters. In addition, as has been discussed, para (f) allows the arbitral body to take into account any other matter it considers relevant, which may include other public interest considerations against the doing of the act. That may explain why the legislature considered it unnecessary to specify in para (e) that the arbitral body must take into account any public interest against the doing of the act.

291    For these reasons, I consider that s 39(1)(e) of the NTA should be construed such that it only requires the arbitral body to take into account any public interest that favours or supports the act being done. The provision does not require any public interest against the act being done to be taken into account.

292    The Tribunal’s approach was that the public interest in “general environmental matters” was not required to be considered under s 39(1)(e) because the Tribunal is prohibited from considering environmental matters that do not have a particular effect on the particular native title rights and interests of the native title parties in land or waters to which those rights apply. The Tribunal apparently accepted that a matter of public interest which has such particular effect and which is against the doing of the act is capable of being considered under s 39(1)(e). Although I reject the Tribunal’s view that s 39(1)(e) is capable of applying to matters of public interest against the doing of the act, ultimately, the Tribunal did not take into account the public interest in mitigation of climate change (a matter against the granting of the petroleum production leases) under that provision. Accordingly, although the Tribunal’s construction of s 39(1)(e) was erroneous, the error was ultimately immaterial.

293    Under s 169 of the NTA, upon appeal, the Court may make such order as it thinks appropriate by reason of its decision. The immateriality of the Tribunal’s error means that its determination should not be set aside on the basis identified under Ground 3 of the applicant’s Further Amended Notice of Appeal.

294    Although these conclusions are enough to determine the appeal, it is appropriate to consider several related matters that were argued as they assist to provide further context for my construction of s 39(1)(e).

295    The Tribunal concluded at [987]: