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The Gomeroi people have fought Santos' Narrabri Gas Project for a decade. They hope a novel climate change argument could help them win

It wasn't a question about company profits or dividends that greeted the chair of Santos when he opened the floor to stakeholders at this year's annual general meeting.

Standing at a lectern in a conference facility on Kaurna country in Adelaide in May, Keith Spence invited shareholders in the oil and gas company to ask questions relating to the most recent financial report.

The emcee called out the name of the first audience member to talk.

No-one spoke. Forty seconds went by, with Mr Spence ducking his head and peering out into the crowd, trying to find the person who'd address him.

Then, with a shaky voice, a woman broke the silence. 

"Yaama gayrr ngaya, my name's Dorothy Tighe and I travelled here today to Kaurna country to represent my people from Gomeroi.

"I'm here today to serve you mob with a cease for trespassing, a cease and desist on my country."

Dorothy Tighe had cease and desist papers with her. They weren't actual court documents, but represented a plea from the Gomeroi nation to stop gas projects on their country.

Mr Spence shifted uncomfortably as she read out the names of the Santos board members they were addressed to.

"We're here to tell you you're not welcome on Gomeroi and Githabul and Ngarabal country because there's not any proper consent done for our people," she announced.

"You never consulted with us as traditional owners, you went straight to tribunal.

"We don't want you on country. Gamil means no."

The fight for the Pilliga

Ms Tighe was referring to one of the last remaining hurdles standing in the way of Santos' multi-billion dollar Narrabri Gas Project – a matter currently before the National Native Title Tribunal.

The company has federal and state approval to develop a new coal seam gas field over 95,000 hectares of state forest and privately-owned farmland south-west of Narrabri in north-west New South Wales.

It wants to build up to 850 gas wells, which would require clearing up to 1,000 hectares of land.

Santos has committed to providing all of the project's gas to the domestic market.

It also says the project could potentially meet half of New South Wales' gas demands, and has argued in legal submissions that it will "secure energy supply" to the state, however it's under no obligation to reserve the gas for that market.

To Santos, the project is an opportunity to increase domestic gas supply to Australian households and businesses that have weathered a winter of high energy prices thanks to, among other things, a volatile international market.

But to the Gomeroi people, it's an imminent threat to one of the most spiritually significant elements of their culture: the Pilliga Forest.

Sprawling over more than half a million hectares, the Pilliga Forest — also known as the Pilliga Scrub — is the largest remaining native forest west of the Great Dividing Range.

The earth floor of the forest morphs from warm yellows to deep, rich reds; a striking contrast to the deep, bottle green of the tall, thin trees which stretch to the sky.

Ms Tighe says any destruction of the Pilliga wouldn't stop at the forest's boundaries; it would cause irreversible damage to her people.

"We [are] people of the land, we live off the land," she said.

"When our food sources and that go and we see everything deteriorating, we sort of deteriorate because the land is a part of us, we are part of the land.

"We don't own Mother Earth, Mother Earth owns us.

"[If you] destroy our sacred monuments, which is our sacred sites, we can't have connections to those places and them dreamings once they're gone."

Below the layer of Pilliga sandstone lie aquifers of the Great Artesian Basin — the largest and deepest artesian basin in the world, and the only source of fresh water through much of inland Australia.

While the whole forest is sacred to the Gomeroi people, it's this water source that Narrabri local and Gomeroi yinarr (woman) Karra Kinchela is most concerned about.

"The Pilliga is the lungs of Gomeroi country," Ms Kinchela, who is also the Narrabri Community Coordinator for environmental protection group Lock The Gate, said.

"We've got our air, we've got our water, what else could we need? The Pilliga provides all of that. It's one big major source of life.

"And they're just happy to drill through it."

'Gamil means no'

In late 2011, the Gomeroi people filed a native title claim over more than 11 million hectares of land in north-west New South Wales, including all of the Pilliga Forest.

It means, despite federal and state approvals, Santos needs Gomeroi consent, or, if they say no, a legal determination, to proceed with the project.

And there was never any question the Gomeroi people were going to say yes.

"We went to a nation meeting, and we all voted no," said Ms Kinchela.

In March, 162 Gomeroi people voted against entering into an agreement with Santos for the project to go ahead.

Only two people voted in favour, and four abstained.

The agreement would have come with financial compensation for the Gomeroi people.

The amount is confidential, but Santos has described it as "the most significant financial compensation offered to a native title group in the history of Santos' activities in Australia".

Rejecting a compensation offer is a risky move for a native title group.

Without an agreement, the matter proceeds to the National Native Title Tribunal.

If that decision goes the way of the mining, oil or gas company, and the project goes ahead, the chances of the traditional owner group receiving any financial compensation drastically narrow.

The tribunal has no power to award compensation.

If the Gomeroi's yet-to-be-determined native title claim succeeds, the group may then make an application to the Federal Court for compensation.

This is a lengthy process, and there is no guarantee any money awarded would match Santos' offer.

"With the native title process, we actually don't have a right to say no," Ms Kinchela said.

"We can only negotiate the best deal for our people.

"What we've chosen to do is not go into these negotiations.

"And with that, we may not receive anything in compensation for the Pilliga if this goes ahead."

In a statement to the ABC, Santos said it "has been engaging and working constructively with the Gomeroi community since 2012, and will continue to do so."

At the Santos AGM in May, chair Keith Spence responded to Ms Tighe:

"We have been working with the authorised applicants of the Gomeroi people, and we've been working with them in informal negotiations since 2012 and formal negotiations since 2015. We have undertaken extensive engagements to ensure the Gomeroi are fully informed on the aspects of the project."

The Gomeroi's rejection of Santos' offer means the fate of the gas project rests with tribunal president John Dowsett.

The former Federal Court judge has for months been weighing up the arguments made by Santos and the Gomeroi as to why the project should, or shouldn't, go ahead.

One of those arguments is completely new: It's never been run by a native title applicant in this kind of case before.

And if it succeeds, it would open the door for other First Nations people to use the law to stop fossil fuel projects on their country.

A novel climate change argument

The legal dispute between Santos and the Gomeroi before the tribunal is what's known as a "future act determination application".

Normally in these applications, a native title claim group will argue, among other things, how the "future act" — the oil, mining or gas project — would impact their enjoyment of their native title rights.

They might argue that the project would damage sacred cultural sites, or impact access to significant land or waters where ceremonies are carried out.

A key argument the oil or gas company might make is that the project is in the public interest, because it would power homes and businesses and strengthen the economy.

And it's that element — the public interest test — which the Gomeroi people have co-opted, to make a climate change argument never seen before in a native title case.

"We've sort of used these acts and laws that aren't technically made for us, and we're trying to flip it into something that would work for us," Ms Kinchela said.

Their argument, as outlined in legal submissions to the tribunal, went like this:

"The effects of climate change will cause significant damage to the environment, the economy and the mental and physical wellbeing of humans if the volume of greenhouse gas in the earth's atmosphere is not reduced. The [project] would, if approved, contribute to greenhouse gas emissions and therefore the level of greenhouse gases in the Earth's atmosphere. The [project] will, if approved, therefore contribute to grave environmental harm and harm to human beings in Narrabri, New South Wales, and Australia, and are therefore contrary to the public interest."

Ms Kinchela knows it's a novel argument.

"We're definitely pushing it out of its comfort zone, native title," she said.

Could it work?

Shortly before the Gomeroi submitted this argument to the tribunal, the head of the United Nations declared a "code red for humanity".

"The alarm bells are deafening and the evidence is irrefutable," UN Secretary-General Antonio Guterres said, responding to the release of the first instalment of the Intergovernmental Panel on Climate Change's Sixth Assessment Report (IPCC AR6) in August 2021.

"Greenhouse gas emissions from fossil fuel burning … are choking our planet and putting billions of people at immediate risk.

"This report must sound a death knell for coal and fossil fuels, before they destroy our planet."

In expert evidence for the Gomeroi, climate scientist Will Steffen estimated the Narrabri Gas Project would produce more than 100 million tonnes of carbon dioxide-equivalents over its 25-year lifetime.

Professor Steffen, the executive director of the Australian National University Climate Change Institute and a councillor with the Climate Council of Australia, also used model-based projections from the IPCC AR6, the Bureau of Meteorology and the CSIRO to outline what would happen to the Narrabri region if global warming exceeded 1.5 degrees.

The prediction was dire: More extreme heat and intense droughts; more days of extreme fire weather; changes in rainfall patterns and heavier rain when it does fall.

"This isn't right," Ms Kinchela said.

"[The project] is not environmentally friendly, let alone culturally safe."

The tribunal is expected to make its determination soon, although there is no set date for the decision.

Santos has told the ABC it "will respect the decision of the National Native Title Tribunal".

Whatever the result, it's likely the losing party will appeal the decision to the Federal Court.

If the Gomeroi successfully argue the gas project fails the public interest on the grounds of climate change, it could create a significant precedent for how native title laws may be used in Australia to stop fossil fuel projects, native title experts say.

It will also satisfy the deeply held obligation many First Nations people, like Dorothy Tighe, have to protect country.

"[I am] trying to stop the mining companies desecrating our Mother Earth, which is Gunimaa in Gomeroi culture," said Ms Tighe.

Climate activist organisations have been supporting the Gomeroi, Githabul and Ngarabal people in their fight to stop the Narrabri Gas Project from proceeding.

Ms Tighe's trip to the Santos AGM was funded by Extinction Rebellion's South Australian chapter and her ticket via a voting proxy was organised by ethical investment advocate group Market Forces.

'Keep fighting the fight'

Two months after the Santos AGM, sitting in the sun on the bank of the Mehi River in Moree, Dorothy Tighe watched for the first time the video of her addressing the Santos AGM.

"I sound so nervous," she laughed, "but I didn't feel it, you know?

"I felt like I had so much strength and guidance within me.

"I felt like I had the power of my ancestors to stand with me while I was serving these people.

"It was just an unbelievable feeling, what I had over me at the time.

"It sort of stunned them, I think, because they weren't ready for somebody to step up and give this notice of not trespassing on country.

"They were really quiet.

"It was sort of like a release from pressure, which we still need to do — keep fighting the fight with these people."

The story of the Gomeroi people's fight to stop the Narrabri Gas Project is told in the podcast WHO'S GONNA SAVE US? a collaboration between triple j Hack and the Science team at RN. 

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