Native title year in review 2024-2025

What you need to know

• On 19 May 2025, the National Native Title Tribunal (NNTT) determined that the grant of four petroleum production lease applications required for the Narrabri Gas Project may be done, subject to 23 conditions, pursuant to section 38(1) of the Native Title Act 1993 (Cth) (Santos NSW Pty Ltd v Gomeroi People and ors [2025] NNTTA 12).

• The NNTT's determination in favour of Santos turned largely on its findings that the project would provide domestic energy reliability and security which would deliver meaningful benefits to the public. The NNTT's determination included a domestic gas supply condition, which required all gas produced from the project to be supplied to the Australian domestic gas market and not be exported.

• Despite finding that environmental risks and climate change impacts would arise from the project, and that the project would affect the Gomeroi People's enjoyment of their native title rights and interests, the NNTT considered that these could be effectively ameliorated by the project's mitigation and rehabilitation measures as well as various conditions imposed by the NSW Independent Planning Commission and the NNTT.
• The NNTT emphasised the cultural significance of particular sites in the Pilliga and was critical of the Aboriginal cultural heritage regulatory regime in New South Wales.
• The Native Title Party has again appealed the NNTT's decision, with a hearing scheduled for 25 November 2025.

What you need to do

• The NNTT may consider environmental features of a project, including climate change impacts, as part of its weighing of the public interest.
• Consider project approvals holistically. Though legally distinct, there is considerable overlap between environmental approvals, Native Title Act consents and heritage protection obligations.

NNTT again determines that the PPLs can be granted subject to conditions

On 19 May 2025, the NNTT handed down its decision in the remitted matter (Santos NSW Pty Ltd v Gomeroi People and ors [2025] NNTTA 12).

The NNTT determined that the grant of the PPLs could be done, subject to 23 conditions imposed pursuant to section 38(1)(c) of the Native Title Act. The conditions fall into four broad categories:

1. Domestic gas supply – a condition requiring that gas extracted by the project must be supplied to the Australian domestic gas market and not be exported from Australia;
2. Cultural heritage – conditions intended to strengthen the project's Aboriginal Cultural Heritage Management Plan and address the perceived insufficiency of the current NSW regime in relation to the protection of Aboriginal cultural heritage;
3. Ranger program – conditions to establish a Ranger Program for the purpose of monitoring and managing the effects of climate change in the Pilliga Forest; and
4. General conditions – conditions relating to administration, compliance and process for variation by agreement between the parties.

What the NNTT said about the factors in section 39(1) of the Native Title Act

Section 39(1) of the Native Title Act sets out the matters that the NNTT must take into account in making a determination about whether a future act may be done. The NNTT noted that the mandatory criteria in section 39 requires the NNTT to weigh potentially conflicting matters, with the weight to be afforded dependent on the evidence. In considering the effect of the acts on the matters listed in section 39(1)(a), the NNTT must also take into account the nature and extent of existing non-native title rights and interests in relation to the land or waters concerned and existing use by persons other than Gomeroi.

Effects on Native Title Rights and Interests and Social Structures: The NNTT found that the project would affect the Native Title Party's enjoyment of their native title rights, way of life, cultural traditions and social, cultural and economic structures. Nevertheless, the NNTT was satisfied that the combination of the mitigation and remediation measures included as part of the project's design and operation, and the conditions imposed under the State planning approval, together with those imposed by the NNTT, would sufficiently address these impacts.

Cultural Heritage: The NNTT imposed several conditions to supplement the protection and preservation of cultural heritage including modifications to processes under the State planning approval. These conditions give greater prominence to the role of the Native Title Party, than is provided for in the State law processes.

The NNTT also concluded that additional measures, over and above those imposed through the State planning approval, were necessary for the protection of intangible cultural heritage, imposing extended no impact zones around several areas of significance to the Gomeroi People.

Environmental and Climate Change Impacts: The NNTT accepted there were environmental and climate change risks arising directly or indirectly from the project but determined that the conditions imposed through the State planning approval and the NNTT, in conjunction with the application of the Safeguard Mechanism, would "effectively ameliorate the detriments". In imposing the Ranger Program conditions, the NNTT found that there was strong utility in having increased engagement of the Gomeroi people in the management of the Pilliga to assist in mitigating the effects of the project, including with respect to climate change.

The Public Interest: In its assessment of the public interest, which was a major focus of the remittal proceedings, the NNTT found that the project would provide domestic energy reliability and security and therefore deliver an important benefit for the wider community, provided that the gas from the project is reserved for domestic use. The project could supply up to 50% of NSW's gas needs. The NNTT's determination included a domestic gas supply condition, which requires all gas produced from the project to be supplied to the Australian domestic gas market and not be exported.

While the NNTT accepted the Native Title Party's social impact evidence in relation to local and regional risks and impacts and acknowledged it as a serious detriment, the NNTT found that significant weight must be placed on energy reliability (as the absence of reliable, secure energy has significant short to medium term detrimental impacts upon the wider community, including the Native Title Party).

The NNTT ultimately determined that the project would deliver a net public benefit and could proceed, subject to the comprehensive set of conditions.

What's next?

On 16 June 2025, the Native Title Party filed a Notice of Appeal in relation to the NNTT's determination of 19 May 2025, seeking that the determination be set aside, or in the alternative, be remitted to the NNTT to be heard by a differently constituted Tribunal and with further evidence from the Native Title Party. A hearing has been scheduled for 25 November 2025.

Want to know more?

• Next generation good faith issues – Gomeroi v Santos appeal – an overview of the Full Federal Court's determination in 2024
• Santos wins strongly in National Native Title Tribunal, but Full Federal Court will hear Gomeroi appeal – an overview of the original Tribunal determination in 2022

Other Author: Alice Jiang, Lawyer.