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How traditional owners won court battle against gas giant Santos

  • 08 December 2022
  The gas giant Santos was hoping to make the judges of the Australian Federal Court see sense. The company had already failed to impress Federal Court Justice Mordecai Bromberg in his September decision, which found that the National Offshore Petroleum Safety and Environmental Management Authority should never have approved the Barossa Gas Project off the Tiwi Islands.

The project envisages drilling at a site 140 kilometres from the Tiwi Islands. NOPSEMA’s primary role — and one discharged with less than due diligence on this score — is to regulate offshore petroleum activities in Australian waters and assess environmental plans under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth).

Drilling had already commenced in July, taking place in waters between 204 and 376 metres deep, some 33 kilometres from the Oceanic Shoals Australian Marine Park. In terms of the value, the natural gas project is predicted to be worth $US3.6 billion and produce up to 600 jobs.

The central contention in the case is one of consultation, a process seemingly problematic for Australia’s resource sector behemoths. Dennis Tipakalippa, a Manupi elder, insisted that he and fellow elders were not consulted over the environmental plan developed by the company. They also feared that the project could cause environmental damage to the sea country and sea resources. Legal action seeking to stop the Barossa Gas Project was taken.

Santos, for its part, argued that they had appropriately consulted the Tiwi Land Council and the Northern Land Council, the representative Native Title body. NOPSEMA, in hasty fashion, assumed such actions sufficient for it to approve the Environment Plan.

Justice Bromberg begged to differ, accepting the argument that Santos had not identified relevant persons to consult as required under the Regulations. As the statutory regime states, a ‘relevant person’ is one ‘whose functions, interests or activities may be affected by the activities to be carried out under the environment plan.’ By not looking more closely at this point, NOPSEMA missed information essential in performing its assessment, notably on the relevance of the sea country material. There was even a suggestion that the body had misunderstood its own task in the matter.

'The decision against Santos reiterates a simple but important point: rules on consultation and consideration need to be followed when it comes to gas developments and agreements made in the resource sector. The interests and concerns of First Nations peoples are indispensable in this regard.' 

On appeal to the Full Court of