Court Battle Between Santos and Traditional Owners Continues

Santos has issued a statement after the decision of the Federal Court of Australia on November 15 ruling that pipelay activities can commence on an 86-kilometer section of pipeline for the Barossa Gas Export Pipeline (GEP) – but not south of kilometre point 86 (KP86).

This southern section would pass to the west of the Tiwi Islands.

The Court has set December 4, 2023 as the date of commencement of the hearing of application brought by Jikilaruwu traditional owner Simon Munkara and two others seeking to restrain Santos from continuing the pipelay until it revises its environmental plan after re-consultation with relevant persons, and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) accepts a revised plan.

Santos intends to vigorously defend those proceedings.

Munkara alleges laying the GEP will impact submerged Tiwi cultural heritage, creating a new environmental risk. Munkara’s lawyers say that the 263km pipeline would damage burial sites on the sea floor, dreaming tracks and songlines. (Songlines describes the features and directions of travel that were included in a song that had to be sung and memorised for the traveller to know the route to their destination.)

All three Tiwi Traditional Owners are represented by the Environmental Defenders Office (EDO).  

Senior Elder Molly Munkara said: “My heart is beating, happy one. It’s really our waterways, our place where we go and have traditional life. We are part of that area, the land and the sea. It means a lot to me. And I’m glad, I’m happy.”

EDO Special Counsel Alina Leikin said: “The Federal Court has already established that Santos needs to do proper consultation with Traditional Owners before a valid approval for work can be issued. This case is about ensuring that companies properly assess evidence of new impacts and risks caused by their projects when it comes to light in accordance with the law.”

However, Santos says it has complied with a General Direction issued by NOPSEMA in January 2023 in relation to impacts on underwater cultural heritage places to which Indigenous people have spiritual and cultural connections.

An independent expert anthropologist concluded there were no such underwater cultural heritage places, following interviews with around 170 Tiwi people and extensive archaeological and anthropological literature and studies. These studies included consideration of independent expert archaeological, geological and sedimentological assessment of the pipeline route.

Santos says it is committed to delivering the Barossa Gas Project. “With the Barossa Project set to supply the Darwin LNG plant for years to come, it is important for local jobs, as well as opportunities for Traditional Owners, exports, and relationships with investors and gas customers in Asia, that this project continues.”

Australian Energy Producers Chief Executive Samantha McCulloch said: “The economic and energy security of Australia and its valued international partners is being damaged.” The court decision is further evidence of the urgent need for the Australian Government to provide certainty for businesses and fix the broken offshore regulatory approvals system, she says.

“Reliable and affordable energy for Australian households and businesses is at risk alongside the tens of billions of dollars of economic benefits and jobs our exports deliver for Australia. The Government must act immediately to fix this issue and end the lawfare.

“Wait times for some approvals have blown out to more than two years. Courts continue to overturn or block approvals already awarded by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).

“Companies which consult with stakeholders in good faith are watching approvals granted by the regulator be overturned or blocked in court. Regulations that provide clarity and certainty for industry while maintaining comprehensive and meaningful consultation with stakeholders are urgently needed.”