The Federal Court on December 2 dismissed Santos’ appeal against the finding that the oil and gas corporation had failed to consult Traditional Owners on the Barossa gas project in the Timor Sea.
The full bench upheld a September ruling by Federal Court judge Mordy Bromberg 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.
The appeal judges rejected Santos' argument that it was unreasonably required to consult the Traditional Owners affected by the project.
The Environment Centre of the Northern Territory (ECNT) said on November 24 that Santos was “fighting tooth and nail” to argue it should not have to consult Traditional Owners of the Sea Country it wants to drill in.
Santos lawyer Christopher Horan KC had argued that even if the Tiwi 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.
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.
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”.
Justices Debra Mortimer and Michael Lee ruled on December 2 that they would not, as Santos urged, “confine ‘interests’ to ‘legal interests’” and they rejected “the proposition that the connection of Traditional Owners with sea country cannot be an interest for the purposes of [the] regulation”.
They said there was a “real potential for Santos’ proposed drilling activity to have a potentially significant adverse effect on the marine resources closer to the Tiwi Islands” — a fundamental part of the traditional culture and customs of the Tiwi Islanders.
Unsurprisingly, Santos said on December 2 that it did “not anticipate any material cost or schedule impact” to its $4.7 billion Barossa Gas project and that the first gas “remains on track to be delivered in the first half of 2025”.
The ECNT said: “We have no doubt that Santos and other gas companies are behind the scenes lobbying for changes to the regulations. We can’t let this happen — we need to let Labor know to protect the judgment.”
WA Greens Senator Dorinda Cox told the ABC on December 4 the court judgment should set a new standard and that all of NOPSEMA’s recent approvals should be reviewed. Bruce Robertson, from the Institute for Energy, Economics and Financial Analysis, said that the ruling could delay approvals for future oil and gas projects by setting a “higher standard required of consultation with Traditional Owners”.
Tipakalippa said in September: “We will fight from the beginning to the end. Santos tried to get away with not consulting us, but … we cannot be sidelined or silenced.”
Tiwi Islands’ Traditional Owners will need the climate movement to help to ensure their sea country is protected, as Santos’ December 2 statement maintains it has been consulting Traditional Owners since 2016.