The Full Federal Court has dismissed Santos’ appeal against Traditional Owners from the Tiwi Islands, setting aside NOPSEMA’s approval of the Barossa Gas Project’s Drilling Environment Plan.
The dismissal upholds an earlier ruling that the environmental approval for Santos’ Barossa offshore gas project was invalid, with Traditional Owners successfully arguing that NOPSEMA failed to ensure they were properly consulted about the project’s potential risks to their marine environment and spiritual values.
The Federal Court had earlier found Santos failed to consider Tiwi People as part of its consultation about the drilling project, as required by law.
Santos’ appeal, heard by a full bench of the Federal Court in November, came on the heels of Tiwi Senior Lawman Dennis Tipakalippa’s historic September victory.
In an historic decision, the Court, presided over by Justices Kenny, Mortimer and Lee, dismissed Santos’ arguments that Tiwi Islanders are not required to be consulted about potential impacts to their sea country. The Court also ordered Santos to pay Mr Tipakalippa’s costs.
“..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.
Jess Panegyres, Head of Clean Transitions at Greenpeace Australia Pacific said the decision means gas and resources companies must listen to the concerns of communities. Earlier this week, Woodside CEO Meg O’Neill acknowledged that they had been required to consult more widely for its Scarborough offshore gas project as a result of the Tiwi Islanders’ legal case.
“This is a huge victory for Munupi clan leader Dennis Murphy Tipakalippa and the Tiwi Islanders who have now beaten Santos twice in court. Traditional Owners and Custodians should have the final say over what happens on their land, not fossil fuel industries.”
Dr Kirsty Howey, Director Environment Centre Northern Territory said the decision sends a message to all gas companies that they cannot sideline First Nations peoples.
“Gas companies are not above the law. This case was only ever about making sure Dennis, and his clan had their say as the law requires.”
In a statement, Santos said it has consulted with Traditional Owners and their representative bodies on the Barossa Gas Project since 2016 and will continue to do so, taking into account the guidance provided by the Court.
“With a range of cultural heritage and native title agreements across 23 Traditional Owner Groups and six Land Councils around Australia, Santos has a strong track record of working constructively and collaboratively with Traditional Owners.
“Santos has always sought to meet its consultation responsibilities and is continuing the process of revising the Drilling Environment Plan to address the matters contained in the judgement.
The company said it will now proceed with applications for all remaining approvals in accordance with the guidance provided by the Court.
It further said it does not anticipate any material cost or schedule impact, and first gas from the Barossa Gas Project remains on track to be delivered in the first half of 2025.
Background
Tiwi Senior Lawman Dennis Tipakalippa launched the lawsuit in June 2022, 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 2022, 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.
