The full Federal Court has upheld a September ruling that invalidated Santos’ approvals to drill for gas in its Barossa gas project in the Timor Sea above the Tiwi islands, after Munupi clan elder Denis Murphy Tipakalippa had taken the company to court in June, arguing they did not consult properly with traditional owners.
However, in a statement after Friday’s judgement, Santos managing director and chief executive officer Kevin Gallagher said the company was looking to win new approvals for the project and for it to go ahead as the company had planned.
In a historic decision, the Court presided over by Justices Kenny, Mortimer and Lee, dismissed Santos’ arguments that Tiwi Islanders were not required to be consulted about potential impacts to “their sea country”, and the decision may mean companies will not be able to rely on consulting only with land councils but must consult more widely, such as with clan groups, to achieve environmental approvals.
“..We consider that Santos was required by reg 11A(1)(d) to consult Mr Tipakalippa and the Munupi clan because they had interests that may be affected by Santos’ proposed activities under the Drilling EP,” the judgement read.
The judgement said the Barossa Field sits in the Timor Sea about 300km north of Darwin, and 138km north of the Tiwi Islands. The judges said Santos intends to pipeline the gas through a pipe connected to an existing Bayu-Undan pipeline in Commonwealth waters, and aimed to provide a new, 20-year source of natural gas for the company’s existing LNG facility at Wickham Point in the harbour outside of Darwin.
Santos had argued that they did not need to consult with the Tiwi traditional owners because they did not have relevant interests, and stated the company had consulted with the Tiwi Land Council.
Mr Tipakalippa, an elder, senior law man and traditional owner of the Munupi clan, said his clan wanted to be heard by the whole world in a statement after the decision.
“We want the whole world to hear our voice. We want the whole world to see our power,” he said.
“We have fought to protect our sea country from the beginning to the end and we will never stop fighting. Our sea is like our mother – we are part of the sea and the sea is part of us. Santos and every other gas company must take note that this is our country and we must be consulted.”
Mr Gallagher said Santos had always sought to meet its consultation responsibilities and was continuing the process of revising the Drilling Environment Plan to address the matters contained in the judgement.
“Further, Santos will now proceed with applications for all remaining approvals in accordance with the guidance provided by the court,” he said.
“First gas from the Barossa Gas Project remains on track to be delivered in the first half of 2025.”
Environmental Defenders Office special counsel Alina Leikin called it a historic victory akin to the story of David slaying Goliath.
“The Court has confirmed unequivocally that Tiwi people have a direct and immediate interest in their sea country and that they must be consulted,” he said.
“These interests arise from traditional cultural connection with the sea. Mr Tipakalippa and his community are vindicated once again.”
In September, the gas giant was ordered to pause work on its $4.7 billion project, after the federal court ruled in favour Mr Tipakalippa.
Federal court justice Mordecai Bromberg ruled that the federal regulator failed to assess whether Santos’ approval application showed it had consulted with all relevant parties, and ruled that the project’s approval was invalid.
Environmental lawyers representing Mr Tipakalippa had argued in court that the clan was not properly consulted before approval for the project was granted by the National Offshore Petroleum and Safety Environmental Management Authority (NOPSEMA) in February and that the Tiwi Land Council was not given sufficient information about the project.
The court ruled the regulator did fail to assess whether the company showed it had consulted with all relevant parties, as required by law and also found NOPSEMA did not consider some material in the application that it was required to assess.
After the judgement NOPSEMA said it was “considering the implications” of the full court’s decision.
“NOPSEMA has been applying the Federal Court’s earlier decision by Justice Bromberg and will be applying the appeal decision from now on,” a spokesman said.
Congratulations to the Tiwi who live 138km south of the project which is outside the 12/24 Mile Territorial boundary but within the 200 mile Exclusive Economic Zone!
I hope the Federal Government calculates the revenue lost from this project and removes it from the Bermuda triangle of government spending on the Tiwi Islands!
The proliferation of marijauna on the Tiwi’s is eye opening.
How many Tiwi Elders would pass a drug test? Not many that I can see!
How many Tiwi would pass a drug test? Not many that I can see!
How many non Tiwi workers are needed on the Tiwi Islands? Stacks!