In a landmark decision, the Federal Court of Australia has invalidated Santos’ approval to drill for gas in the sea north of the Tiwi Islands.
The Federal Court to set aside the acceptance by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) of an environmental plan covering the drilling and completion activities in relation to the Barossa Gas Project. The Federal Court found that Santos failed to consult Tiwi Traditional Owners as required, and Santos must now vacate the Barossa field by October 6.
The relevant drilling activities were to occur at a site in the Timor Sea, approximately 140 kilometres north of the Tiwi Islands.
The Court’s decision was based on a finding that NOPSEMA could not be lawfully satisfied that the Drilling Environment Plan met the criteria required by the Regulations and in particular failed to assess whether the Drilling Environment Plan demonstrated that Santos consulted with each person that it was required by the Regulations to consult with.
Santos said it is a disappointing outcome.
“Santos engaged about the proposed drilling activities with the Tiwi Land Council, a representative body with statutory authority under the Aboriginal Land Rights (Northern Territory) Act 1976. Similarly, Santos had engaged about the proposed drilling activities with the Northern Land Council, the Native Title representative body for the Tiwi Islands. NOPSEMA had accepted our efforts to consult with Tiwi Islanders in accordance with the Regulations when it decided to accept the Environment Plan for those activities.
“Given the significance of this decision to us, our international joint venture partners and customers, and the industry more broadly, we consider that it should be reviewed by the Full Federal Court on appeal.”
Santos said the Barossa Gas Project is approximately 46 per cent complete.
“The drilling activities are not on the critical path for the project and we have headroom in the project cost contingency.”
However, the decision will have significant implications for Santos’ Barossa gas project – and it puts other gas companies on notice not to ignore First Nations peoples.
Tiwi Senior Lawman, Dennis Tipakalippa, launched the lawsuit in June, arguing that NOPSEMA, the federal offshore gas regulator, should not have approved Santos’ plans to drill the Barossa gas field, because Santos failed to properly consult the Munupi Clan.
Traditional Owners told the court that Santos’ Barossa offshore gas project posed a risk to food sources and continuous spiritual connection to Sea Country that has endured for millennia.
In August, the Federal Court made a historic journey to travel to the Pitjamirra beach homeland on Melville Island of the Tiwi Islands to take on-Country evidence from Traditional Owners including in the form of song and dance.
At the conclusion of the hearing, Santos agreed it would halt drilling in the project before it hit the gas reservoir and while the court considered its decision.
Plaintiff, and Tiwi Elder Dennis Tipakalippa said the win brings relief.
“The most important thing for us is to protect our Sea Country.
“We want Santos and all mining companies to remember – we are powerful, we will fight for our land and Sea Country, for our future generations no matter how hard and how long.
EDO Special Counsel Alina Leikin said: “This is a huge victory for the Munupi Clan and a testament to their strength and dedication.
“Today’s decision puts oil and gas companies on notice.
“It sets a new standard about the depth of consultation that companies are required to conduct with Traditional Owners before they gain approval for drilling in Sea Country.
“It confirms that the voices of First Nations communities must be heard when their Countries and cultures are under threat.
Jason Fowler, Energy Campaigner at the Environment Centre NT said: “This is a historic decision that could have enormous ramifications not only for the Barossa project, which is now in disarray, but for all offshore oil and gas projects.
“What Santos has tried to pass off as consultation has been found to be insufficient, and now the wheels are off their project.
“Oil and gas multinationals like Santos are not above the rules.
“The Barossa gas field is the dirtiest in Australia and drilling it poses massive risks to pristine Sea Country, as well as the Federal Oceanic Shoals Marine Park.”
