Santos is “fighting tooth and nail” to argue that it should not have to consult Traditional Owners of the Sea Country it wants to drill in, a spokesperson for the Environment Centre of the Northern Territory (ECNT) said on November 24.
“This is the state of things in Australia,” the ECNT said. Santos is trying to stop the Tiwi Islanders’ historic victory over Santos’ $4.7 billion Barossa Gas project in the Timor Sea.
Santos’ appeal in the Federal Court was heard over November 15–16. “It has appealed the right of the Tiwi people to have a say on projects that are in their own sea county.”
It argued in the Federal Court that the Traditional Owners are not “relevant persons” under the law.
Lawyer Christopher Horan KC said that even if the islanders were “relevant”, it is unrealistic to expect Santos in the Timor Sea to identify and consult every individual with a connection to the area. About 3000 people live on the Tiwi Islands of Bathurst and Melville Islands.
Federal Court justice Mordy Bromberg ruled in September — after taking evidence from Tiwi Islanders in August — that Santos had failed to consult Traditional Owners as required under the law and had to vacate the Barossa field north of Melville Island by October 6.
Senior Tiwi Lawman Dennis Tipakalippa brought the challenge in June. He argued that the federal offshore gas regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), should not have approved Santos’ plans because Santos had failed to properly consult the Munupi Clan. There are eight landowning groups on the Tiwi Islands.
In a welcome move, Bromberg took the Federal Court to the Pitjamirra beach homeland on Melville Island, where it took on-Country evidence from Traditional Owners, including in the form of song and dance.
The Munipi Traditional Owners told the court that the gas project posed a risk to their food sources and spiritual connection to Sea Country.
Bromberg found that NOPSEMA could not have been satisfied Santos provided the information required to indicate it had considered the “values and sensitivities of the environment”.
Tipakalippa said in September that it is most important “to protect our Sea Country”.
“We will fight from the beginning to the end. Santos tried to get away with not consulting us, but today we have had our voices heard. We cannot be sidelined or silenced.”
Horan, arguing for Santos, said NOPSEMA’s approval had “very high level” references to Sea Country and outlined the consultation that had taken place with the Tiwi Land Council. He said that Bromberg’s judgement went beyond this, and that communities cannot be legal persons and that Bromberg did not define who was a “relevant person”.
The Australian Financial Review reported on November 15 that Nicholas Wood, who appeared for NOPSEMA, said it may “prove to be impossible or impractical” to individually consult large numbers of people. He said the court needed to “grapple with [the] reality” that the laws were inadequate at explaining how to deal with such a situation.
Santos argued that it had engaged the Tiwi Land Council — the relevant stakeholder — about the proposed drilling activities.
“Gas companies want to turn the NT into a sacrifice zone for new fossil fuel projects,” the ECNT said. “But people, everywhere, are standing up against them.”
A group of Traditional Owners and supporters voiced their opposition to Santos' appeal outside the court in Melbourne. Munupi clan representative Antonia Burke spoke alongside Greens Senator Lidia Thorpe. Both said Santos’ project posed a threat to Tiwi culture.
“There are no Aboriginal people on that ... [Federal Court] bench, and they’re sitting there, churning over three words: whether we have ‘functions, interests or activities’ off our own Sea Country,” Burke told the rally.
“They want to say that we don’t have any interests in that area [Timor Sea], that we don’t have any rights to speak for it. We will not be bullied or ignored by the federal government or by these mining companies.”