Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (No 2) [2024] FCAFC 49

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (No 2) [2024] FCAFC 49

The majority held that the Tribunal should not be absolutely confined to the evidence and material from the first hearing because it performs a merits decision-making function and should generally decide on the most complete, up to date and relevant material available. However, given the extensive time and resources already expended, the forensic decisions already made by well represented parties, and considerations of fairness, any further evidence on remitter should be permitted only where proper cause is shown and the Tribunal is satisfied it is appropriate.

Jurisdiction
Australia
Judgment Date
12 April 2024
Procedural Posture
Appeal From a Determination of the National Native Title Tribunal / Orders Following Allowance of Appeal and Remittal
Outcome
The determination of the National Native Title Tribunal was set aside, the applications were remitted to the Tribunal for hearing and determination according to law, and there was no order as to costs.
Legal Topics
['remittal to National Native Title Tribunal' 'future Acts' 'good Faith Negotiation' 'native Title Act 1993 (cth) S 169(7)' 'further Evidence on Remitter' 'no Order as to Costs']
['native Title' 'administrative Law' 'costs'] ['remittal to National Native Title Tribunal' 'future Acts' 'good Faith Negotiation' 'native Title Act 1993 (cth) S 169(7)' 'further Evidence on Remitter' 'no Order as to Costs']

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Procedural Posture

Appeal From a Determination of the National Native Title Tribunal / Orders Following Allowance of Appeal and Remittal

Legal Issues

  1. 1 ["Whether the Court's order under s 169(7) of the Native Title Act 1993 (Cth) should preclude the parties from adducing further evidence before the Tribunal on remitter." 'Whether the remitter should be constrained by the evidence and material before the Tribunal at the first hearing.' 'Whether a persuasive burden should be placed on any party seeking to adduce further evidence or material before the Tribunal.']

Ratio Decidendi

The majority held that the Tribunal should not be absolutely confined to the evidence and material from the first hearing because it performs a merits decision-making function and should generally decide on the most complete, up to date and relevant material available. However, given the extensive time and resources already expended, the forensic decisions already made by well represented parties, and considerations of fairness, any further evidence on remitter should be permitted only where proper cause is shown and the Tribunal is satisfied it is appropriate.

Court Disposition

The determination of the National Native Title Tribunal was set aside, the applications were remitted to the Tribunal for hearing and determination according to law, and there was no order as to costs.

Orders

  • ['Further to the orders of the Full Court made on 6 March 2024, the determination of the National Native Title Tribunal in Santos NSW Pty Ltd and Another v Gomeroi People and Another [2022] NNTTA 74 (19 December 2022) be set aside on and from the date of these orders.' 'Applications NF2021/0003; NF2021/0004;...