Legal Insights

Gomeroi v Santos: New guidance on good faith negotiation, and the relevance of climate change

By Susanne Rakoczy, and Larissa Svetlov

• 10 April 2024 • 8 min read
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In Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 (Gomeroi Appeal), the Gomeroi People lodged an appeal in the Federal Court of Australia, seeking to overturn the decision in Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] NNTT 74 by the National Native Title Tribunal (NNTTA). The Full Federal Court (FFC) found that the Gomeroi People ultimately failed on their appeal grounds regarding the requirement to negotiate in good faith but succeeded in their ground that the NNTT should consider climate change when considering environmental matters under s 39(1)(e) of the Native Title Act 1993 (Cth) (NTA).

In the Gomeroi Appeal, Mortimer CJ and O’Byran J, Rangiah J (dissenting) considered six questions of law on the following topics:

1. good faith
2. the meaning of ’payment‘ and ’compensation’
3. environmental matters and public interest
4. procedural fairness
5. legal reasonableness
6. negotiations where the Applicant is not authorised by the claimant group.

The Gomeroi People failed on five of the six grounds of appeal, but were successful on the ground of environmental matters and public interest regarding the ability of the NNTT to take into consideration, when considering environmental matters, impacts on climate change by a future act.


In 2014, Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (Santos) lodged four petroleum production lease applications covering an area of almost 92,400ha in order to extract gas as part of their ‘Narrabri Gas Project’. The native title party were the Gomeroi People. The project was approved by the NSW Government and as a result the Gomeroi People applied to the NNTT to make a determination that the future act should not be made because the Narrabri Gas Project would result in grave and consequences for the Gomeroi People’s culture, lands and waters and would contribute to climate change. The NNTT upheld the granting of the leases by the NSW Government.

In 2023, the Gomeroi People appealed the NNTT’s decision to the FFC. The Gomerori Appeal provides clarity on what is ‘negotiating in good faith’ as well as expanding what matters should be considered by the NNTT when considering environmental matters under s 39(1) of the NTA to include impacts on climate change by the proposed future act.

Read more about the NNTT’s decision in our previous Insight article:

Negotiating in good faith - what is the test?

The Gomeroi People submitted that the NNTT erred by only considering Santos’ knowledge of their own offers to the Gomeroi People, rather than holistically considering good faith during negotiations.[1] The Gomeroi People also contended that Santos turned a ‘blind eye’ and the NNTT erred by focusing on whether Santos provided ‘fair value’ rather than focusing on Santos’ subjective intentions.[2] They argued that the NNTT neglected the evaluation of a suitable response from Santos to information and evidence provided.[3] The NNTT did not focus on the addition of expert evidence which highlighted poor compensation offered by Santos which in the Gomeroi People’s opinion would be enough evidence to demonstrate a lack of good faith.

Santos argued that s 31(1) of the NTA only requires that the negotiation be assessed objectively on whether it has been conducted in good faith, rather than be assessed as objectively reasonable overall.[4]

Chief Justice Mortimer stated that in assessing good faith, the NNTT focuses on 'assessing the course of a negotiation, measuring it objectively against a standard of honesty, open mindedness and willingness to listen.'[5] The NNTT had carefully considered each of the stages of negotiations as articulated by the Gomeroi People, and considered good faith at each stage, and then, at the conclusion of its reasons, the NNTT considered the conduct globally over all stages of the negotiation.[6]

Her Honour stated that an unreasonable offer can arise from good faith or unfair negotiations and it will depend on the evidence and circumstances. The FFC concluded that the NNTT’s original decision was correct, as their assessment of Santos’ actions were not unjust or lacking honest or unwillingness to deal fairly. Chief Justice Mortimer rejected the Gomeroi People's contentions.[7]

Environmental Matters and Public Interest

The FFC’s decision confirms that environmental factors are relevant considerations for the NNTT when considering the public interest on mining and petroleum.

In Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] the NNTTA 74 found that it was inappropriate for it to consider climate change which had already been evaluated by the ‘relevant state agencies’, and stated that it was not in the NNTT’s jurisdiction.[8] The Gomeroi People appealed as they believed that the expert evidence was qualified by s 39(1)(e) of the NTA, as the observations fell under the scope of ’public interest‘.

The Gomeroi People argued that s 39(1)(e) of the NTA, which requires the NNTT to take into account ‘any public interest in the doing of the act’, required the NNTT to consider whether the Narrabri Gas Project is in the public interest, having regard to its expected greenhouse gas emissions and their contributions to global warming.[9]

Chief Justice Mortimer found that the NNTT erred in its decision to not consider information from Professor Steffen, a climate and earth system scientist.[10] Professor Steffen warned of environmental problems caused by Santos’ greenhouse gas emissions.[11] Her Honour stated that public interest concerns relating to native title in s 39(1)(e) of the NTA are not limited by previous authorities and should be considered by the NNTT.[12]

Interestingly, Rangiah J dissented, and took a more black letter law approach. In his Honour's view, the provision should be interpreted based on its grammatical meaning – that an arbitral body only needs to consider public interest ‘that favours or supports the doing of the proposed future act’.[13]

Key takeaways

This decision highlights the need to be open minded and willing to listen when negotiating in good faith, as parties will be measured objectively against a standard of honesty. During negotiation, a perfect outcome cannot always exist for both parties. An unreasonable outcome in particular circumstances may or may not indicate a lack of honesty. It is all dependent on the evidence and circumstances.

This decision also demonstrates that the NNTT is required to consider a wide range of public interest issues, including climate change, global warming and other environmental factors and cannot rely alone on what government authorities have determined, but must turn its mind to those matters. This case highlights the broad range of matters that proponents will need to address if they face the NNTT.

At Maddocks, we have specialist experts in this area, with team members having previous archaeological and anthropological experience. If you have any questions, contact our cultural heritage specialists.

[1] Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 [71]-[72].
[2] Ibid [73]-[75].
[3] Ibid.
[4] Ibid [72].
[5] Ibid [96].
[6] Ibid [82] – [83].
[7] Ibid [95]-[98].
[8] Ibid [194]; Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] NNTT 74 [976].
[9] Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 [169].
[10] Ibid [172].
[11] Ibid.
[12] Ibid [233].
[13] Ibid [246].

By Susanne Rakoczy, and Larissa Svetlov

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