Clifford Chance

On the 15 January 2024, the Federal Court of Australia rejected the claims made by a Tiwi Island group that Santos' underwater gas pipeline (Project Barossa) would damage sea country and anger two creatures of their Dreaming stories. Concerns were also raised regarding whether the publicly funded, Environmental Defenders Office (EDO), presented evidence that involved "confection" and the subtle coaching of witnesses. The full judgment can be accessed here.

In 2019, Santos, Australia's biggest natural gas supplier, submitted an environmental plan to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) for the construction of a pipeline from the Barossa offshore field to a LNG processing facility in the Northern Territory. This plan was subsequently accepted in March 2020.

In October 2023, proceedings were commenced by three applicants from the Tiwi Islands of the Jikilaruwu, Munupi and Malawu clans (Applicants) alleging there was a 'significant new environmental risk' to their cultural heritage, caused by the project, not accounted for in the original environmental plan. Consequently, the applicants sought a declaration from Santos, requiring Santos to provide a revised environmental plan. They also sought an ongoing injunction restraining Santos from installing the pipeline until a revised environmental plan was submitted and accepted by NOPSEMA.

The case followed from earlier, successful challenges to Santos’ project approvals, on the basis that Santos had not undertaken the requisite level of consultation with traditional owners under the relevant environmental regulations.¹

Key Legal Considerations

The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) was the primary source of law relied upon by the applicants, namely regulation 8 and 17(6). Regulation 17(6) requires a titleholder to submit an amended environment plan when there is a significant and new environmental, or increase in existing, impact or risk. Failing to do so, and undertaking an activity constitutes an offence under regulation 8.

The applicants submitted that Santos had a present obligation to submit a revised environment plan because the construction of the pipeline gave rise to a significant new risk related to the "cultural features" of the area. Importantly, cultural features fall within the broad definition of "environment" under the regulations. The main cultural feature the applicants relied upon was their spiritual connection to the sea country through which the pipeline would pass. They contended their spiritual connection would be damaged in several ways, including:

Intangible cultural heritage:

• Disrupting the travels of Ampiji, an ancestral being, caretaker of the sea, causing her to create calamities that could harm Tiwi people; and
• Causing possible disturbance to Jirakupai or Crocodile man, a song line of great significance to the Jikilaruwu people, making him angry.

Tangible cultural heritage:

• Disturbing artefacts of archaeological significance relating to human occupation and activity on the land before sea levels rose.

Judgment

During the proceedings the Court heard from 23 Indigenous witnesses and 10 expert witnesses, ultimately holding that no obligation had been triggered for Santos to submit a revised plan. The Court indicated that archaeological burial grounds had a negligible chance of existing thus were unable to form a cultural heritage risk and there was divergence among relevant Tiwi Islanders leading to insufficient evidence there was a communal belief that Ampiji or Jirakupai were within the vicinity of the pipeline. As there was no proof the cultural features existed, the pipeline was found to pose no cultural heritage risk.

Broader Implications

Within her judgment, Justice Charlesworth raised two concerns about the EDO lawyers involved in the case. That being the subtle coaching of witnesses to tell stories and their approach to discussing strategy with the expert and lay witnesses. This raises broader questions as to the role and purpose of environmental activism in this case and the importance of a robust and independent approach when taking evidence of Indigenous people's beliefs and experiences to ensure that it is recorded appropriately and accurately without any form of agenda that may infect an individual’s account and recollections.

In the meantime, Environment Minister Tanya Plibersek has asked her department whether the EDO breached its funding agreement by confecting evidence and has contacted EDO Chief Executive David Morris making clear her expectations that the office act ethically and professionally. Simultaneously, the Opposition has called for the EDO to be defunded.²

1. Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121.
2. https://www.theaustralian.com.au/nation/politics/environmental-defenders-office-may-have-breached-funding-agreement/news-story/616293365595b386a175c4c457d95a1a