Federal Court of Australia

Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

3.    There be no order as to costs respecting the second respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY AND MORTIMER JJ:

1    The appellant, Santos NA Barossa Pty Ltd, appeals from the orders of the primary judge on four grounds. The first respondent, Mr Tipakalippa, has filed a notice of contention seeking to support the orders of the primary judge on a different basis. The second respondent, the National Offshore Petroleum Safety and Environmental Management Authority, supported Santos’ appeal. Mr Tipakalippa had sought judicial review of NOPSEMA’s decision, through a delegate, to approve a Drilling Environment Plan submitted to it by Santos under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), relating to the sinking of eight wells in an area of the Timor Sea almost directly north of the Tiwi Islands. The objective of the Drilling EP is to explain how Santos will manage the environmental risks and potential environmental impacts of its offshore drilling project, for which it has already been granted a production licence under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). That Act is also the source of the power to make the Regulations. The primary judge upheld two grounds of judicial review and set aside NOPSEMA’s decision: see Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 (primary reasons).

2    Both the grounds of appeal and the notice of contention involve two overarching matters. First, the proper construction and operation of those provisions in the Regulations dealing with a report Santos was required to make to the delegate about who it had consulted with in the preparation of the Drilling EP. Second, the basis on which the delegate could form the requisite state of satisfaction under the Regulations that Santos had done what the Regulations required it to do.

3    Broadly, Mr Tipakalippa contended the Regulations require him, and other members of the Munupi clan of which he is an elder, as well as the other seven clans on the Tiwi Islands, to be consulted because the project is taking place in, and is capable of having an impact on, sea country and sea country resources to which they have traditional connections. For that reason, they have “interests” that may be affected within the meaning of the Regulations.

4    For the reasons set out below, the appeal must be dismissed. In reaching that conclusion, we would also uphold ground 1 of the notice of contention. It is unnecessary to decide ground 2 of the notice of contention.

Background

5    The primary judge described the basic background circumstances at [7]-[10] of the primary reasons:

The Tiwi Islands are located in the Timor Sea, approximately 80 km north of Darwin. The Tiwi Islands comprise two main islands, Bathurst Island and Melville Island and several smaller islands. The traditional owners of the Tiwi Islands are comprised of eight clans, one of which is the Munupi clan. The traditional land of the Munupi clan extends to the northern-most reaches of the Tiwi Islands, located on the north-western peninsula of Melville Island and includes Seagull Island located approximately 4.4 km to the north of the northern-most point of Melville Island, known as Imalu Point. The traditional land of the Munupi clan is the geographically closest land to the Operational Area.

The applicant, Dennis Murphy Tipakalippa, is an elder, senior law man and traditional owner of the Munupi clan. He lives on the Tiwi Islands, was raised there, and has always lived at Pirlangimpi and at his homelands in the northern beaches of Munupi country. He is connected to Munupi country through his father’s family.

Mr Tipakalippa complains that he and the Munupi clan were not consulted by Santos in relation to the Drilling EP. Broadly speaking, his principal claim relies upon reg 11A which provides that in the course of preparing an environment plan a “titleholder” must consult each “relevant person”, being a person “whose functions, interests or activities may be affected by the activities to be carried out under the environment plan”.

Mr Tipakalippa claims that he and the Munupi clan, as well as other traditional owners of the Tiwi Islands, have “sea country” in the Timor Sea to the north of the Tiwi Islands, extending to and beyond the Operational Area. Their asserted rights to that sea country are based upon longstanding spiritual connections as well as traditional hunting and gathering activities in which they and their ancestors have engaged. Mr Tipakalippa claims that those interests and activities were referred to in the Drilling EP. In circumstances where the Drilling EP did not show that Mr Tipakalippa, others of the Munupi clan or indeed any of the traditional owners of the Tiwi Islands were consulted, Mr Tipakalippa claims that the decision-maker could not have been “reasonably satisfied” (as was required by reg 10(1) read with regs 10A(g) and 11A of the Regulations) that the Drilling EP “demonstrates” that Santos “has carried out the consultations” required by reg 11A.

6    Mr Tipakalippa’s claim was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The grounds of review invoked ss 5(1)(c), 5(1)(d) and 5(1)(f), but in substance contended (as Santos accepted on the appeal):

(a)    NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by reg 10A and reg 11A of the Regulations was carried out; and

(b)    Santos submitted the Drilling EP without having carried out the consultations required by reg 10A and reg 11A of the Regulations.

7    As Santos submitted on the appeal, the first ground was accepted by the primary judge, albeit on a different basis to that initially advanced by Mr Tipakalippa, and the second ground was rejected by the primary judge: see primary reasons at [264]-[275].

Santos’ Barossa Project

8    The Drilling EP was submitted by Santos to permit it to conduct drilling and other activities as part of what it describes as the Barossa Project. The primary judge summarised the Barossa Project, and the activities proposed to be conducted under the Drilling EP, at [3]-[6] of the primary reasons:

The Activity under the Drilling EP is part of a wider project known as the “Barossa Project”, the focus of which is an offshore gas-condensate field in the Timor Sea known as the “Barossa Field”. Santos intends to exploit that field using a floating production storage and offloading (FPSO) facility, subsea production system, supporting in-field infrastructure and a gas export pipeline connected to an existing Bayu-Undan pipeline in Commonwealth waters. The Barossa Field is the subject of “Petroleum Production Licence NT/L1” held by Santos. As the holder of the Licence, Santos is a “petroleum titleholder”, and therefore a “titleholder”, within the meaning of the Regulations.

The Barossa Project initially proposes to exploit an area of the Barossa Field referred to in the Drilling EP as the “Operational Area” located approximately 300 km north of Darwin and 138 km north of the Tiwi Islands. The Barossa Project aims to provide a new source of natural gas for approximately 20 years to Santos’ existing onshore Darwin Liquefied Natural Gas facility at Wickham Point.

Under the Drilling EP, Santos proposes to conduct a “drilling and completions campaign”, which entails the drilling and completion of up to eight production wells using a semi-submersible mobile offshore drilling unit (MODU). The Activity is intended to take place between 2022 and 2025, with the Drilling EP noting that drilling activities were expected to commence in the second quarter of 2022. Each well is expected to take approximately 90 days to drill. The entire drilling campaign is expected to take approximately 18 months subject to weather and operational performance. By way of an overview, the Drilling EP states that the operations or works which are to take place entirely within the Operational Area include the following:

•    movement of the MODU within the Operational Area (including the entry and exit of the area);

•    MODU and vessel commissioning and demobilising activities (eg, equipment testing, tank flushing and cleaning, inventory management, etc.);

•    deployment and recovery of the MODU anchors and mooring lines (including potential for pre-lay anchors);

•    riserless drilling;

•    drilling with a conventional closed-circulating fluid system and riserless mud recovery;

•    installation of casing strings;

•    drilling using water-based and non-aqueous drilling fluid systems;

•    installation and operation of a blow-out preventer;

•    cementing;

•    well completions, including perforating and well flowback (ie, sampling, clean up, and flaring);

•    installation of Christmas trees;

•    contingency activities such as side-track drilling, re-drilling sections, re-spud and abandonment;

•    well intervention;

•    ongoing well inspection, maintenance and management; and

•    general operations associated with the use of a MODU, vessels, helicopters and remotely operated vehicles within the Operational Area.

It is intended that the drilling and completions campaign will be followed by the installation of project facilities comprising the FPSO facility, subsea production system, supporting in-field infrastructure and the gas export pipeline mentioned earlier. The intention is that the FPSO facility will store and offload condensate to vessels for transportation to market and will also treat and export dry gas through a new pipeline that is proposed to connect into the existing Bayu-Undan to Darwin pipeline located in Commonwealth waters to the north-west of Darwin.

(Original emphasis.)

Legislative framework

9    Again, this is comprehensively set out in the primary judge’s reasons at [21] to [53]. Here, we refer only to those parts of the legislative scheme necessary to introduce the issues to be resolved on the appeal. Later in these reasons, where necessary, we refer to other parts of the scheme.

10    Provided NOPSEMA has accepted what is described as an offshore project proposal (OPP) (see reg 5A), a titleholder must submit an EP for the activity to NOPSEMA: reg 9. There are various processes for NOPSEMA to request further information, and for the provisional EP to be published on NOPSEMA’s website.

11    Reg 10 deals with the power exercised in the decision under review. It provides:

Making decision on submitted environment plan

(1)    Within 30 days after the day described in subregulation (1A) for an environment plan submitted by a titleholder:

(a)    if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must accept the plan; or

(b)    if the Regulator is not reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must give the titleholder notice in writing under subregulation (2); or

(c)    if the Regulator is unable to make a decision on the environment plan within the 30 day period, the Regulator must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan.

(1A)    For the purposes of subregulation (1), the day is:

(a)    the day the Regulator publishes the plan (with the sensitive information part removed) under regulation 9AB; or

(b)    if the environment plan is a seismic or exploratory drilling environment plan—the day the Regulator receives the documents under paragraph 11B(3)(b) and, if relevant, paragraph 11B(3)(c).

Note 1:     Those paragraphs are about documents that must be given to the Regulator after the end of a 30-day period for public comment on a seismic or exploratory drilling environment plan. Regulation 11B requires the Regulator to consider certain public comments on a seismic or exploratory drilling environment plan in making a decision to take action under this regulation.

Note 2:     A seismic or exploratory drilling environment plan is taken to have been withdrawn (so the Regulator need not act under this regulation in relation to it) if the Regulator does not receive the documents under paragraph 11B(3)(b) and, if relevant, paragraph 11B(3)(c): see subregulation 11B(7).

(2)    A notice to a titleholder under this subregulation must:

(a)    state that the Regulator is not reasonably satisfied that the environment plan submitted by the titleholder meets the criteria set out in regulation 10A; and

(b)    identify the criteria set out in regulation 10A about which the Regulator is not reasonably satisfied; and

(c)    set a date by which the titleholder may resubmit the plan.

(3)    The date referred to in paragraph (2)(c) must give the titleholder a reasonable opportunity to modify and resubmit the plan.

 (4)    Within 30 days after the titleholder has resubmitted the modified plan:

(a)    if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must accept the plan; or

(b)    if the Regulator is still not reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must:

(i)    give the titleholder a further notice under subregulation (2); or

(ii)    refuse to accept the plan; or

(iii)     act under subregulation (6); or

(c)    if the Regulator is unable to make a decision on the environment plan within the 30 day period, the Regulator must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan.

(5)    If the titleholder does not resubmit the plan by the date referred to in paragraph (2)(c), or a later date agreed to by the Regulator, the Regulator must:

(a)    refuse to accept the plan; or

(b)    act under subregulation (6).

(6)    For subparagraph (4)(b)(iii) and paragraph (5)(b), the Regulator may do either or both of the following:

(a)    accept the plan in part for a particular stage of the activity;

(b)    accept the plan subject to limitations or conditions applying to operations for the activity.

(7)    A decision by the Regulator to accept, or refuse to accept, an environment plan is not invalid only because the Regulator did not comply with the 30 day period in subregulation (1) or (4).

(Original emphasis.)

12    The criteria for acceptance are set out in reg 10A:

Criteria for acceptance of environment plan

For regulation 10, the criteria for acceptance of an environment plan are that the plan:

(a)    is appropriate for the nature and scale of the activity; and

(b)    demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

(c)    demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and

(d)    provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and

(e)    includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and

(f)    does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and

(g)    demonstrates that:

(i)    the titleholder has carried out the consultations required by Division 2.2A; and

(ii)    the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and

(h)    complies with the Act and the regulations.

(Emphasis added.)

13    The reference to “the EPBC Act” in reg 10A(f) is a reference to the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

14    The “consultations” referred to in reg 10A(g) are set out in reg 11A:

Consultation with relevant authorities, persons and organisations, etc

(1)    In the course of preparing an environment plan, or a revision of an environment plan, a titleholder must consult each of the following (a relevant person):

(a)    each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;

(b)    each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;

(c)    the Department of the responsible State Minister, or the responsible Northern Territory Minister;

(d)    a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan;

(e)    any other person or organisation that the titleholder considers relevant.

(2)    For the purpose of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person.

(3)    The titleholder must allow a relevant person a reasonable period for the consultation.

(4)    The titleholder must tell each relevant person the titleholder consults that:

(a)    the relevant person may request that particular information the relevant person provides in the consultation not be published; and

(b)    information subject to such a request is not to be published under this Part.

(Emphasis added.)

15    The correct construction and operation of reg 11A, and reg 11A(1)(d) in particular, is the central issue in the appeal.

NOPSEMA’s decision under reg 10

16    The impugned decision was made by a delegate of the Chief Executive Officer of NOPSEMA.

17    Again, the summary of the events leading up to NOPSEMA’s decision, and the delegate’s decision itself, can be taken from the description by the primary judge at [55]-[64]:

On 6 October 2021, Santos submitted the Drilling EP, being the first submitted version of that document which the material before the delegate referred to as “Revision 1” (Drilling EP (Revision 1)).

On 15 October 2021, the Drilling EP (Revision 1) was found to be complete for assessment in accordance with reg 9AA and was published by NOPSEMA on NOPSEMA’s website in accordance with reg 9AB.

On 25 October 2021, NOPSEMA issued Santos with a letter advising of a change of the assessment timeframe under reg 10(1)(c), with the assessment date to be completed by 29 November 2021.

On 29 November 2021, NOPSEMA requested that Santos provide further written information under reg 9A. That correspondence, to which I will return, included amongst other matters a request for further information in relation to the consultation carried out by Santos.

In response to the request from NOPSEMA to provide further information, Santos resubmitted the environmental plan on 30 December 2021. This revised version was referred to as “Revision 2” and dated 24 December 2021.

On 24 January 2022, Santos was again requested to provide further written information by NOPSEMA under reg 9A. In response to that request, Santos resubmitted the Drilling EP on 14 February 2022 in a document referred to as “Revision 3” and dated 11 February 2022. It is that version of the Drilling EP which I have referred to as the Drilling EP.

After further assessment by the NOPSEMA assessment team, of which I will say more shortly, on 14 March 2022 the delegate accepted the assessment team’s recommendation that the Drilling EP met all the acceptance criteria set out in reg 10A of the Regulations. Notice of that decision was provided in writing to Santos on 14 March 2022 in accordance with reg 11(1).

On 6 May 2022, NOPSEMA published the Reasons.

The Reasons, which I discuss further below, contain a conclusion at [53] thereof as follows (emphasis added):

In accordance with regulation 10 and based on the available facts and evidence, NOPSEMA was reasonably satisfied that the [Drilling EP] met the following criteria set out in sub-regulation 10A of the [Regulations]:

a.    the [Drilling EP] is appropriate for the nature and scale of the activity; and

b.    the [Drilling EP] demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

c.    the [Drilling EP] provides for appropriate [environmental performance outcomes], [environmental performance standards] and measurement criteria; and

d.    the [Drilling EP] includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and

e.    the [Drilling EP] does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and

f.    the [Drilling EP] demonstrates that:

i.    the titleholder has carried out the consultations required by Division 2.2A; and

ii.    the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and

g.    the [Drilling EP] complies with the Act and the regulations.

It is the emphasised finding made at para (f) of [53] of the Reasons that Mr Tipakalippa contends is infected with legal error.

(Original emphasis, amendments to quotes in original.)

The application for judicial review

18    The primary judge sets out the jurisdictional basis for the application and what was sought at [22]-[27] of his Honour’s reasons:

Mr Tipakalippa’s application for judicial review is made pursuant to section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and sections 39B(1) & (1A) of the Judiciary Act 1903 (Cth).

Section 5(1) of the ADJR Act provides that a person who is “aggrieved by a decision” to which the ADJR Act applies may apply to this Court for an order of review in respect of a decision. The decisions to which the ADJR Act apply are defined under s 3 of the ADJR Act to mean:

… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition) … under an enactment...

That the Decision is a decision to which the ADJR Act applies is not in contest.

The definition of a person “aggrieved by a decision” under the ADJR Act relevantly includes a person whose interests are adversely affected by the decision. Mr Tipakalippa’s standing to bring this proceeding under the ADJR Act or under the Judiciary Act is not in contest.

The grounds upon which an aggrieved person may seek review of a decision are outlined in s 5 of the ADJR Act and relevantly include that:

(i)     procedures that were required by law to be observed in connection with the making of the decision were not observed (s 5(1)(b));

(ii)     the person who purported to make the decision did not have jurisdiction to make the decision (s 5(1)(c));

(iii)     the decision was not authorized by the enactment in pursuance of which it was purported to be made (s 5(1)(d));

(iv)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s 5(1)(e)); and

(v)     the decision involved an error of law, whether or not the error appears on the record of the decision (s 5(1)(f)).

By his Amended Originating Application, Mr Tipakalippa seeks judicial review of NOPSEMA’s decision under s 5(1)(c), (d) and (f) of the ADJR Act in relation to ground 1 and under s 5(1)(b) of the ADJR Act in relation to ground 2. Although Mr Tipakalippa in his written opening submissions and oral opening submissions also raised s 5(1)(e) of the ADJR Act in passing as a ground of review within ground 1, that went beyond his pleaded case but makes no material difference to it, and I have not regarded it as forming part of ground 1 to be decided in this case.

Section 39B of the Judiciary Act relevantly provides that the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (s 39B(1)). The original jurisdiction of the Court also includes jurisdiction in any matter “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter” (s 39B(1A)(c)). These provisions vest in the Court the entirety of the jurisdiction which s 75(v) of the Constitution vests in the High Court: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.

(Original emphasis.)

The evidence adduced before the primary judge

19    Whether the decision under review was unlawful as Mr Tipakalippa contended must be assessed by reference to the material before the decision-maker at the time of making the decision under review. It should have been a straightforward matter for NOPSEMA to identify and provide this material. As outlined by Lee J in separate reasons, we accept that material identified in the 1 August 2022 affidavit of Mr Grebe, an officer of NOPSEMA, disclosed that material. That is, we accept that the material before the delegate was the material in the Decision Documents Bundle (CG7) and the material in Annexures CG9 and CG10. We agree, however, that, for the reasons outlined by Lee J, reliance on this affidavit for this purpose was less than satisfactory.

The appeal

20    The grounds of Santos’ appeal are:

1.    The learned primary judge erred in concluding that the delegate of the second respondent (NOPSEMA) could not have been “reasonably satisfied” under reg 10(1)(a) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Environment Regulations) that the Barossa Development Drilling and Completions Environment Plan (Drilling EP) demonstrated that the appellant (Santos) had carried out the consultations required by Division 2.2A (being the criterion in reg 10A(g)(i)) because the Drilling EP did not demonstrate “that the methodological exercise of identifying each and every relevant person conducted by Santos had been correctly undertaken in accordance with the requirements of the consultation criteria under the Regulations” (Reasons at [127]) in that:

a.    on a proper construction of the Environment Regulations, it is not necessary for a Drilling EP to include such a methodological statement in order for the Second Respondent to be so “reasonably satisfied”;

b.    the Drilling EP identifies the persons consulted by Santos during the course of preparing the Drilling EP and the method used by Santos for identifying those persons as “relevant persons” within the meaning of reg 11A(1); and

c.     the primary judge ought to have concluded that it was open to NOPSEMA to achieve the requisite state of reasonable satisfaction on the basis of an exercise of judgment upon a holistic assessment of the Drilling EP, informed by those matters set out in the Drilling EP, including the relevant persons identified by Santos and the method used by Santos for identifying relevant persons, and its own knowledge and experience as the regulator administering the Environment Regulations.

2.    The primary judge erred in concluding that NOPSEMA could not have been “reasonably satisfied” under reg 10(1)(a) of the Environment Regulations that the Drilling EP demonstrated that Santos had carried out the consultations required by Division 2.2A (being the criterion in reg 10A(g)(i)) because it had failed “to consider material in the Drilling EP dealing with sea country and the interests and activities of traditional owners” (Reasons at [126]), later defined as “sea country material” (Reasons at [190]) in that:

a.    on a proper construction of the Environment Regulations, no consideration of the sea country material was mandated;

b.    further and alternatively to ground 2(a), it was open to infer, and the primary judge ought to have inferred, that NOPSEMA did consider the sea country material in its assessment of the EP; and

c.     the appellant repeats ground 1(c) above.

3.    Further and alternatively to grounds 1 and 2, the primary judge erred in failing to consider and determine the proper construction of reg 11A(1)(d) of the Environment Regulations (Reasons at [289]) because, on a proper construction of that regulation, it was not open to draw either of the inferences of legal error drawn by the primary judge in that:

a.    on a proper construction of reg 11A(1)(d), the connection of individuals who are part of a traditional land owning group with ‘sea country’ is not a “function, interest or activity” for the purposes of reg 11A(1)(d); and

b.     as to the first inference drawn by the primary judge:

i.    the methodological approach propounded by the primary judge required the identification of relevant persons to be by reference to “every value and sensitivity” (Reasons at [150]) in the environment that may be affected by the activities;

ii.    the identification of values and sensitivities of the existing environment that may be affected by the activities are matters relevant to the environmental assessment process under reg 13 but are not, on a proper construction of the Environment Regulations, required to be “evaluated to discover their possible intersection with the functions, interests and activities of particular people or organisations” (Reasons at [139]) in order to identify persons or organisations whose functions, interests or activities may be affected within the meaning of reg 11A(1)(d); and

iii.    the methodological exercise identified by the primary judge was therefore inconsistent with the Environment Regulations and so any failure to perform that exercise could not be a proper basis for inferring that an error had been made by NOPSEMA in forming its state of reasonable satisfaction;

c.    as to the second inference drawn by the primary judge:

i.    the primary judge found the sea country material was “sufficiently probative” because it “sufficiently suggests the existence of values or sensitivities which may be ‘functions, interests or activities’ of traditional owners that may be affected by the Activity” (Reasons at [216])”;

ii.    that finding was erroneous because, on a proper construction of reg 11A(1)(d),“values or sensitivities” cannot be equated with “functions, interests or activities”; and

iii.     therefore, on a proper construction reg 11A(1)(d), the primary [judge] ought not to have concluded that a failure to consider the sea country material provided a proper basis for inferring that an error had been made by NOPSEMA in forming its state of reasonable satisfaction;

d.    further and alternative to ground (c), the drawing of the second inference was erroneous because, on a proper construction of reg 11A(1)(d), it was reasonably open to NOPSEMA to be satisfied that individual traditional owners (including the Applicant, members of the Munupi clan and the traditional owners of the Tiwi Islands generally) were not relevant persons, such that the sea country material was not probative of whether relevant persons who fall within the description in reg 11A(1)(d) had been consulted and so no adverse inference could be drawn from the failure to include traditional owners as relevant persons;

e.    further and alternative to grounds (c) and (d), any failure by NOPSEMA to consider the sea country material was not material to the decision to accept the Drilling EP because, on a proper construction of reg 11A(1)(d), it was reasonably open to NOPSEMA to be satisfied that individual traditional owners (including the Applicant, members of the Munupi clan and the traditional owners of the Tiwi Islands generally) were not relevant persons, such that consideration of the sea country material could not give rise to a realistic possibility of a different decision; and

f.    therefore, on a proper construction of “functions, interests or activities” within the meaning of reg 11A(1)(d), the primary judge ought to have concluded that it was open to NOPSEMA lawfully to form the requisite state of reasonable satisfaction.

4.    Further and alternatively to grounds 1, 2 and 3, the judge erred in the identification of the statutory standard set by the phrase “reasonably satisfied” in reg 10(1)(a) of the Environment Regulations (Reasons at [74]).

(Original emphasis.)

21    Mr Tipakalippa’s notice of contention raised two grounds:

Ground 1

The primary judge ought to have concluded that the Second Respondent, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) was not reasonably satisfied, within the meaning of regulation 10(1) and as required by regulation 10A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Regulations), that the Barossa Developmental Drilling and Completions Environment Plan (the Drilling EP) demonstrated that the consultations required by Division 2.2(A) had been carried out by the Appellant (Santos), because:

(a)    the Drilling EP did not demonstrate that all relevant persons within the meaning of regulation 11A(1)(d) had been identified;

(b)    further or alternatively, the Drilling EP did not demonstrate that Santos had consulted each relevant person because it did not demonstrate that traditional owners of the Tiwi Islands had either been consulted, or were not relevant persons, despite the Drilling EP stating the matters in J[205]-[206], and in particular the following which indicated that they had, or were likely to have, functions, interests, or activities which may be affected by the activities to be carried out under the Drilling EP:

(i)    The operational area is located within Commonwealth waters in the Timor Sea, approximately 138 km north of the Tiwi Islands and 263 km north-northwest of Darwin (Drilling EP p 34; J[206(i)]);

(ii)    significant sea country for traditional owners exists within the environment that may be affected by the activities (EMBA) (Drilling EP p 34, J[205(i)]);

(iii)    the “potential environmental impacts and risks of the activities” on “Tiwi Islands Sea Country” and “other areas of marine or terrestrial Aboriginal Cultural significance and / or heritage” were raised by another relevant person (Drilling EP, p 112; J[205(iv)];

(iv)    “The close, long-standing relationship between Aboriginal and Torres Strait Islander peoples and the coastal and marine environments of the area is evident in indigenous culture today. …. Within the EMBA, the Tiwi Islands have a long history of occupancy by Aboriginal and Torres Strait Islander peoples and the marine areas, particularly the Arafura Marine Park, are significant sea country for Aboriginal and Torres Strait Islander peoples” (Drilling EP, Appendix C, p 119; J[205(xiii)]);

(v)    “Fishing, hunting and the maintenance of marine cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas, …. while direct use by Aboriginal and Torres Strait Islander peoples deeper offshore is limited, many groups continue to have a direct cultural interest in decisions affecting the management of these waters. The cultural connections Aboriginal and Torres Strait Islander peoples maintain with the sea may be affected, for example, by offshore fisheries and industries” (Drilling EP, Appendix C, p 119; J[205(xiii)]);

(vi)    “sensitivity mapping [derived from stakeholder engagement workshops held with Tiwi Islanders] identified Aboriginal heritage sites along the northern, western and southern coastlines of the Tiwi Islands, including areas used for food collection, sacred sites, camping sites and a dreaming site. These coastlines are within the EMBA but outside the permit area” (Drilling EP, Appendix C, pp 119-120; J[205(xiii)];

(vii)    “A number of different fisheries operate around the Tiwi Islands, which occur near the southern end of the pipeline route corridor and within the EMBA. However, there appears to be a significant overlap in the harvest of primary species by Traditional Indigenous, recreational and commercial fisheries” (Drilling EP, Appendix C, p 124);

(ix)    the impacts of hydrocarbon spills for “indigenous users” would be “similar to those discussed above for fish” (which include “mortality” and “disease”) “resulting in socio-economic impacts” (Drilling EP, pp 268, 271; J[205(ix)]);

(x)    “the potential visible presence of surface oil within the EMBA would be of concern to Indigenous people” (Drilling EP, p 278; J[205(viii)]).

Ground of contention 2

If paragraph [97] of Santos’ submissions provides a basis to conclude that NOPSEMA was reasonably satisfied that the Drilling EP demonstrated that the consultations required by Division 2.2(A) had been carried out by Santos because Santos had appropriately consulted with the Tiwi Land Council (TLC) as the relevant person under regulation 11A(1)(d) in respect of any “sea country” of traditional owners of the Tiwi Islands (which is denied), then the primary judge ought to have concluded that NOPSEMA was not reasonably satisfied, within the meaning of regulation 10(1) and as required by regulation 11A(2), of the Regulations, that the information provided by Santos to the TLC (Reasons, Annexure 2) was sufficient to make an informed assessment of the possible consequences of the activity on the functions, interests and activities of the traditional owners of the Tiwi Islands, because it did not include:

(a)    any reference to significant sea country for traditional owners or the cultural connections or interests of traditional owners of the Tiwi Islands within the EMBA;

(b)    a map of the EMBA;

(c)    any information directed to the possible consequences of the activities to be carried out under the Drilling EP on the functions, interests or activities of the traditional owners of the Tiwi Islands within the EMBA.

(Original emphasis.)

Resolution

22    We are persuaded that the orders made by the primary judge are not affected by error. NOPSEMA’s decision must be set aside.

The primary judge’s approach and our reasoning on the appeal

23    It will be apparent that we have taken a different approach to that taken by the primary judge. In large part that is because, on the appeal, Santos fairly and properly contended that if there were errors in the primary judge’s reasoning and conclusions, those errors stemmed from an approach to the construction of “relevant person” in reg 11A. It was that approach which Santos contended was erroneous. Once that became clear, the real issues on the appeal did not depend on any analysis of any “methodological flaw” or a “failure to consider” error, but rather on whether the NOPSEMA delegate had lawfully formed the requisite state of satisfaction for the purposes of reg 10(1)(a), given the interpretation adopted by Santos as to who was and was not a “relevant person”, and the NOPSEMA delegate’s acceptance of that interpretation. For those reasons, it is not necessary to rehearse in detail the reasons of the primary judge beyond what we have extracted above, and below, where necessary.

24    In other words, the real area of debate on the appeal centred on ground 3(a) of Santos’ notice of appeal. This was a matter not expressly determined by the primary judge: see [289] of the reasons. Santos was correct in submitting that the proper construction of reg 11A(1)(d) was a precondition to the resolution of Mr Tipakalippa’s other arguments on the judicial review.

25    Santos was also correct to contend, as it did in its notice of appeal in grounds 3(b), (c), (d) and (e) (although expressed in different ways), that if the construction of reg 11A(1)(d) for which it contends is correct, then most if not all of the findings that were made by the primary judge on the “methodological flaw” reasoning and on the “failure to consider” reasoning were also erroneous.

26    Conversely, senior counsel for Santos fairly accepted that if Santos’ contentions about the correct construction of reg 11A(1)(d) were not accepted, and Mr Tipakalippa and the Munupi clan members he represents in this proceeding were “relevant persons”, then the orders made by the primary judge were correct because the NOPSEMA delegate had not formed their state of satisfaction lawfully on a correct understanding of the legislative scheme in the Regulations.

27    In reply, there was some attempt by senior counsel for Santos to raise an alternative argument, to the effect that if reg 11A(1)(d) were to be construed as Mr Tipakalippa contends, Santos’ consultation with the Tiwi Land Council discharged its responsibilities to consult Tiwi Islanders. This contention was in direct conflict with the way Santos had put its arguments on the appeal in writing. At [38], Santos submitted:

Santos does not rely on an argument that consultation with the Tiwi Land Council (TLC) discharged an obligation to consult with the traditional owners of the Tiwi Islands. Rather, Santos submits that the TLC was consulted as a relevant person in its own right, on the basis that it had functions that may be affected by the activities (in particular, the function of representing indigenous residents of the Tiwi Islands) …

(Original emphasis.)

28    The appeal was conducted on the basis of the parties’ positions as set out in writing. No leave was sought to withdraw any submissions at the commencement of the appeal, or after it. It should also be borne in mind that Mr Tipakalippa had plainly prepared his answer to the appeal on the basis of Santos’ written submissions, and a change of position in reply on this point would have represented a substantial change to the conduct of the case on appeal. In this circumstance, even if Santos had sought leave, it is likely that it would have been refused. We conclude that Santos is bound by the position it adopted in writing.

A preliminary issue: the correct meaning of “reasonably satisfied” in reg 10(1)(a)

29    While this was not the principal issue on appeal, the proper construction of this phrase in reg 10(1)(a) provides the foundation for the exercise of power by NOPSEMA. It is a matter raised by ground 4 of the notice of appeal and, since the parties differed before the primary judge and on the appeal about its proper construction, we address that matter.

30    In our opinion, the distinctions between the parties’ arguments were more theoretical than substantive. The difficulty with Mr Tipakalippa’s approach was his reliance on a series of cases, including Goldie v Commonwealth of Australia [2002] FCAFC 443; 117 FCR 566, and the authorities there referred to, which all revolve around a subjective belief or opinion, where the statute has qualified the nature of the opinion or belief to be held with the adjective “reasonably”. That is a quite distinct and different context from reg 10(1)(a).

31    In the context of reg 10(1)(a), the addition of the adjective “reasonably” does no more than emphasise there must be an “evident and intelligible justification”, to be objectively ascertained by the reviewing court: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [29] (French CJ), [63], [76] (Hayne, Kiefel and Bell JJ), [88]-[92] (Gageler J). Li concerned an exercise of a discretionary power, but as Gageler J said at [90], the position is no different from an implication of reasonableness as a condition of a state of satisfaction, where satisfaction is a prerequisite to an exercise of a statutory power.

32    The main point Mr Tipakalippa sought to make can be accepted: the standard is an objective one for the reviewing Court. But as Santos and NOPSEMA submitted, there is no additional threshold or gloss to be applied to what is a reasonable satisfaction beyond the approach taken in Li.

The “interests” claimed by Mr Tipakalippa and the Munupi clan

33    Throughout Mr Tipakalippa’s amended originating application, the concise statement and the submissions, Mr Tipakalippa and the Munupi clan are described as “traditional owners”. A traditional owner is ordinarily understood to mean:

a person who has, in accordance with Indigenous tradition, social, economic, and spiritual affiliations with, and responsibilities for, the lands claimed or any part of them.

(See the online Macquarie Dictionary 2022.)

34    The expression is also part of a statutory phrase in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), where it bears a comparable meaning. Section 3 provides:

traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:

(a)    have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b)    are entitled by Aboriginal tradition to forage as of right over that land.

(Original emphasis.)

35    This is relevant since it was common ground that the Tiwi Islands were held by the traditional Aboriginal owners of the Tiwi Islands under the Land Rights Act, through a Land Trust. We note that the description of Mr Tipakalippa’s and the Munupi clan’s interest set out in the documents filed by Mr Tipakalippa in this Court is broadly consistent with this definition. This observation is subject to the qualification that it was also common ground that the Land Rights Act did not extend below the high-water mark; or to put this more generally, that the Land Rights Act conferred no rights in relation to the sea, and marine resources in the sea. Thus, it was common ground that, in relation to the OPP and ‘environment that may be affected’ (EMBA), the Land Rights Act did not give Mr Tipakalippa and the Munupi clan any recognised proprietary or statutory rights.

36    Furthermore, it was common ground that the sea area of the OPP and the EMBA were not subject to any claims or determinations under the Native Title Act 1993 (Cth) in relation to Tiwi Islanders. No party suggested that any of the EMBA was subject to any claims or determinations under the NTA in favour of any other group.

37    In its concise response at [4(c)], Santos went no further than saying:

… that if and to the extent the Applicant and/or the Munupi clan have traditional, spiritual and cultural connections that relate in one way or another to the sea country, including any sea country within the EMBA, that is not a relevant function, interest or activity for the purposes of reg 11A(1)(d).

(Emphasis added.)

38    Notwithstanding Santos’ position in this proceeding, there was no challenge to Mr Tipakalippa’s standing to bring the proceeding, a matter to which we return below. Further, and relevantly for the identification of Mr Tipakalippa’s and the Munupi clan’s interest in the sea, and the resources in the sea, in the Drilling EP and its attachments before the delegate (see the primary judgment at [205]-[206] for the relevant extracts), there was ample acknowledgment of the traditional connections of Tiwi Islanders (including Mr Tipakalippa and the Munupi clan, although not restricted to them), and other First Nations groups, to the sea and marine resources within the EMBA.

39    As the primary judge recognised, the relevant material in the Drilling EP and its attachments fell into two categories. The first category was direct references to First Nations groups and their traditional connection to the sea and the marine resources in the EMBA. This category was set out at [205] of the primary judge’s reasons, and included the following extracts from the Drilling EP and its attachments:

(iv)    In the summary of the issues raised by the “Environment Centre – NT” (ECNT), Table 4-2 notes that the ECNT raised concerns over “potential environmental impacts and risks of the activities” on “Tiwi Islands Sea Country” and “other areas of marine or terrestrial Aboriginal Cultural significance and/or heritage” (at page 112).

…

(vi)    In Table 7-15 titled “Physical and chemical pathways for hydrocarbon exposure and potential impacts to receptors” the entry for the socio-economic receptor “[c]ommercial, recreational and traditional fisheries” says: “[h]ydrocarbons in the water column can have toxic effects on fish…potentially reducing catch rates and rendering fish unsafe for human consumption. Impacts on spawning fish can also result in impacts to commercial fisheries” (at page 276).

…

(viii)    In Table 7-15 for the receptor of “Indigenous users” the following is noted: “[m]arine resource use by Indigenous people is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. While the MEVA [moderate exposure value area discussed in chapter 7, see eg Figure 7-5] is largely offshore, the potential visible presence of surface oil within the EMBA would be of concern to Indigenous people” (at page 278).

(ix)    Table 7-15 notes that the consequences of an oil spill for “indigenous users” would be “similar to the [impacts] discussed” in relation to fish (at pages 267 to 271).

(x)    In Table 7-20 titled “Impact, likelihoods and consequence ranking – loss of well control” the entry for “socio-economic receptors” says: “[t]here is potential for temporary disrupt [sic] to fishing activities (traditional, recreational and commercial) due to surface, dissolved or entrained oil. Although only expected in the medium term, the consequence is considered to be Moderate (III) due to the potential significant loss of value to local fishing industries” (at page 294).

(xi)    In a section of Appendix C to the Drilling EP discussing Australian Marine parks and specifically the Arafura Marine Park, the following is said: “The sea country of the [Arafura] marine park is part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans. Sea country is valued for Indigenous cultural identity and Indigenous people have been sustainably using and managing their sea country, including that within the Arafura Marine Park, for tens of thousands of years” (on page 111).

…

(xiii)    Appendix C also addresses “Indigenous heritage” in the context of the social, economic and cultural features of the environment that may be affected by the Barossa Project at section 14.5.1 and states (emphasis added):

Aboriginal and Torres Strait Islander peoples have a strong ongoing association with the area that extends from the beginning of human settlement in Australia some 50,000 years ago. The close, long-standing relationship between Aboriginal and Torres Strait Islander peoples and the coastal and marine environments of the area is evident in indigenous culture today. The Aboriginal and Torres Strait Islander peoples of the northwest continue to rely on coastal and marine environments and resources for their cultural identity, health and wellbeing, as well as their domestic and commercial economies (DEWHA, 2008a). Within the EMBA, the Tiwi Islands have a long history of occupancy by Aboriginal and Torres Strait Islander peoples and the marine areas, particularly the Arafura Marine Park, are significant sea country for Aboriginal and Torres Strait Islander peoples.

Marine resource use by Aboriginal and Torres Strait Islander peoples is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. However, while direct use by Aboriginal and Torres Strait Islander peoples [of] deeper offshore waters is limited, many groups continue to have a direct cultural interest in decisions affecting the management of these waters. The cultural connections Aboriginal and Torres Strait Islander peoples maintain with the sea may be affected, for example, by offshore fisheries and industries. In addition, some Indigenous people are involved in commercial activities such as fishing and marine tourism, so have an interest in how these industries are managed in offshore waters with respect to their cultural heritage and commercial interests (DEWHA, 2008a).

A mapping exercise has been undertaken with the Tiwi Island Land Council to identify environmental and socioeconomic values along the Tiwi Islands coastline (ConocoPhillips, 2019). The mapping exercise focused on the northern, western and southern coastlines of the Tiwi Islands (within the EMBA). It included an initial desktop exercise to identify publicly available environmental, social, cultural and economic datasets. Preliminary maps were developed based on these datasets, and these maps were used during stakeholder engagement workshops held with Tiwi Islanders.

Two workshops were held, the objectives of which were to verify the preliminary maps and to gain a more thorough understanding of the environmental, social, cultural and economic sensitivities of the coastlines. Final maps were then developed and presented to the Tiwi Island Land Council.

The sensitivity mapping identified Aboriginal heritage sites along the northern, western and southern coastlines of the Tiwi Islands, including areas used for food collection, sacred sites, camping sites and a dreaming site. These coastlines are within the EMBA but outside the permit area.

A search of registered Indigenous heritage sites did not identify any specific sites within the Western Australian portion of the EMBA. However, in the Northern Territory portion of the EMBA there are a number of sacred and significant sites located on the Tiwi Islands. There are currently four registered sacred sites on the Tiwi Islands (Aboriginal Areas Protection Authority, 2016). Another 56 sites of significance to Tiwi Islanders have been recorded, including two sites on the NT mainland (Tiwi Land Council, 2003). The Tiwi Islands sites hold importance as they have high spiritual and cultural history value (Tiwi Land Council, 2003).

(Original emphasis.)

40    The second category was material showing that the Tiwi Islands themselves may be affected by Santos’ activity, the main reference being the following (at [206(iii)] of the primary reasons):

    The following statements at Appendix C to the Drilling EP on pages 36 and 37:

Tiwi Islands are Aboriginal freehold land owned by the Tiwi Aboriginal Land Trust … The Tiwi Islands, and the small islands nearby, support important nesting sites for marine turtles, internationally significant seabird rookeries, and some major aggregations of migratory shorebirds (DLRM, 2009). The sandy beaches on the Tiwi Islands, specifically the west coast of Bathurst Island and the north coast of Melville Island, are particularly important for marine turtle nesting. Nesting is dominated by flatback and olive ridley turtles (Chatto & Baker, 2008). However, green and hawksbill turtles also nest on the Tiwi Islands. Significant numbers of olive ridley turtles are known to nest on the beaches of Seagull Island and the north-west coast of Melville Island… Five seabird breeding colonies have been reported on small offshore islands surrounding Melville and Bathurst islands (Chatto, 2001) that range in size from two to more than 30,000 birds (Chatto 2001). The colony on Seagull Island, off the north-west tip of Melville Island, supports a breeding BIA of about 60,000 crested terns (Woinarski et al., 2003)… The north coast of the Tiwi Islands is recognised as a key site for the conservation of dugongs (PWSNT, 2003).

41    We note that Santos put all this material before the delegate for the purpose of satisfying the criteria in reg 10A of the Regulations. Santos did not at any point disclaim the truth or reliability of the material, or otherwise call the material into question.

42    While the material that Santos placed before the decision-maker for the purpose of making the decision under review does not engage specifically with the question whether Mr Tipakalippa and the Munupi clan (or, for that matter, any other Tiwi Islands clans) had traditional rights and interests in sea country of a kind which might be recognised as proprietary (whether under the general law, or under the NTA), there is no real doubt that this material acknowledged the traditional connection of Tiwi Islanders to at least part of the sea in the EMBA and to its marine resources. There is no real doubt that this material – the Drilling EP and its attachments – also acknowledged the potential environmental risks to, and impacts on, marine resources closer to the Tiwi Islands, and recognised those resources were integral to Tiwi Islanders’ traditional culture and customs.

The proper construction of “relevant person” in reg 11A

43    We turn to the proper construction of the expression “relevant person” in reg 11A(1), and in turn to the proper construction of the phrase “functions, interests or activities” in reg 11A(1)(d). It was common ground that, for the purposes of this appeal, the proper construction of “relevant person” in reg 11A(1) depended on the proper construction of the phrase “functions, interests or activities” in reg 11A(1)(d).

44    Before turning to this particular issue, we first observe that, at the hearing of the appeal, all parties accepted that the Regulations established a substitute decision-making process for the purposes of the EPBC Act and, it would appear, specifically s 146B. It can be seen from the Regulations that, in accordance with Div 1 of Pt 10 of the EPBC Act, a series of environmental considerations have been incorporated into the approval process under the Regulations. In other words, were it not for the process established by the Regulations, Santos’ drilling activities would likely be regulated under other parts of the EPBC Act. The Regulations pick up some terms from the EPBC Act, both defined and undefined. In our view, the Regulations must therefore be construed consistently with the EPBC Act.

45    Second, we observe that while the focus of the parties’ arguments on appeal was on what, in context, the term “interest” means, the meanings of “functions” and “activities” in the composite phrase were also the subject of contention. We deal with the meanings of those two words in their context as well. This is because the three principal words in the phrase “functions, interests or activities” are used in reg 11A(1)(d) as a composite phrase, each part of which must be given work to do: Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414 (Griffith CJ).

46    Third, we observe that reg 11A(1) provides for a statutory concept of “relevant person”, and that this concept is broader than the meaning ordinarily given to “person” by s 2C of the Acts Interpretation Act 1901 (Cth). Rather, reg 11A creates an artificial definition. For example, certain Departments of the Commonwealth, the States and the Northern Territory are expressed to be a “relevant person” (singular), notwithstanding that a Department is not ordinarily classified as a ‘person’ either under that Act or in ordinary English usage (not being a body politic or corporate, or an individual).

47    Therefore, where by reg 11A(2) a titleholder must give “each relevant person” sufficient information as that sub-section prescribes, the definition of “relevant person” contemplates that, in relation to a body or group which is comprised of more than one natural person within reg 11A(1)(a), (b) and (c), the titleholder will have some decisional choice in identifying which natural person or persons is or are to be approached within that body or group and how that information will be given to allow the “relevant person” to make the assessment contemplated by reg 11A(2).

48    So too with reg 11A(1)(d). While an individual may be a “relevant person” for the purposes of reg 11A(1)(d), so too an “organisation” may be a “relevant person”. This feature of reg 11A indicates an intention to leave some decisional choice to the titleholder about how the requisite consultation is undertaken. What is meant by “consult” is not expressly defined, although it is given content by reg 11A(2). We consider this in more detail below under the heading ‘No difficulty with the “workability” of this construction’, in response to certain of Santos’ and NOPSEMA’s submissions on the topic of “workability”.

49    Fourth, we observe that, critically to a correct understanding of the delegate’s task in forming a state of satisfaction, reg 11A(1) imposes a duty on the titleholder. It is the performance of this duty which must be assessed by the delegate for the purposes of reg 10(1), read particularly with reg 10A(g). To recall the criterion in reg 10A(g), read with reg 10(1)(a), the delegate must be reasonably satisfied that the titleholder has demonstrated it has:

(a)    carried out the consultations required by Div 2.2A; and

(b)    adopted, or proposes to adopt, measures (if any) – relating to the environmental impacts and risks of the activity – that are appropriate because of the consultations.

50    The second element of this criterion is vital to understanding the purpose of the consultation requirement, and contributes to an understanding of the nature of consultation that must occur for compliance with reg 11A. It also confirms that, unless the duty in reg 11A, properly construed, has been discharged by the titleholder, then the delegate will not be presented with the requisite information on which to form a state of satisfaction about the environmental impacts and risks of the activity, being the principal subject matter of the criteria in reg 10A.

“Functions, interests or activities”

51    In our opinion, the phrase “functions, interests or activities” in reg 11A should be broadly construed, because this approach best promotes the object of the Regulations. The object of the Regulations, which is set out in reg 3, is to ensure that any offshore petroleum or greenhouse gas storage activity is carried out in a manner:

    that is consistent with the principles of ecologically sustainable development set out in s 3A of the EPBC Act;

    by which the environmental impacts and risks of the activity will be reduced as low as reasonably practicable; and

    by which the environmental impacts and risks of the activity will be of an acceptable level.

52    Santos and NOPSEMA argued for a narrow construction of the phrase “functions, interests or activities”, but such a construction would not promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. These five principles include: that “decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations” (emphasis added); the principle of inter-generational equity; and that “the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making”. That is, whether and to what extent offshore petroleum or greenhouse storage activity is to be permitted depends, amongst other things, on the potential effect of the activity on people and communities, on equitable concerns (including the principle of inter-generational equity) as well as on the natural world. Santos and NOPSEMA proposed a construction of the phrase “functions, interests or activities” that fails to promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. Their construction would also undermine the achievement of the other two objects of the Regulations. This is because, by confining the concept of a “relevant person” as it would, Santos (and other titleholders in its position) would not be required to consult with “a person or organisation” who might self-evidently be affected by its proposed offshore activity, nor would it be obliged to take or propose any measure to address their situation.

53    We note, furthermore, that the definition of “environment” in reg 4 of the Regulations is consistent with the principles of ecologically sustainable development set forth in s 3A of the EPBC Act. Thus, “environment” is defined in reg 4 to be:

(a)    ecosystems and their constituent parts, including people and communities; and

(b)    natural and physical resources; and

(c)    the qualities and characteristics of locations, places and areas; and

(d)    the heritage value of places;

and includes

(e)    the social, economic and cultural features of the matters mentioned in paragraphs (a), (b), (c) and (d).

54    Thus, when NOPSEMA is required to make a decision under reg 10, NOPSEMA must consider “the environmental impacts and risks” of the proposed activity by reference to the expansive definition of “environment” in reg 4. It may be inferred from this, and in particular reg 10A(g), that the consultations under Div 2.2A referred to in reg 10A(g) (that is, those mandated by reg 11A) are ultimately intended to inform NOPSEMA about the environment (as broadly defined in reg 4 and therefore including (amongst other things) people and communities, the heritage value of places, and their social and cultural features) which may be affected by a titleholder’s proposed activities under its environment plan. The information that the titleholder is obliged to provide to NOPSEMA is also designed to provide a basis for NOPSEMA’s considerations of the measures, if any, that a titleholder proposes to take or has taken to lessen or avoid the deleterious effect of its proposed activity on the environment, as expansively defined.

55    We conclude that the consultation required by reg 11A is designed to give effect to the objects of the Regulations as stated in reg 4, by ensuring that the titleholder, such as Santos, consult the authorities, organisations and individuals whose functions, interests or activities fall for consideration under, or in conformity with, the principles of ecologically sustainable development set out in s 3A of the EPBC Act. Plainly enough, the range of matters falling for consideration is broad and diverse, including the social and cultural features of people and communities within the relevant ecosystem.

56    Viewed in this way, the consultation required by reg 11A has, in our view, more than one purpose. Plainly enough, by this consultation, it is intended that the titleholder provide “sufficient information to allow” the affected authorities, organisations and individuals “to make an informed assessment of the possible consequences” of the proposed activity on their “functions, interests or activities”: see reg 11A(2). It is also intended that the consultation be genuine, in that the affected authorities, organisations and individuals are required to be given a “reasonable period” for the consultation, that is, a reasonable time to identify the effect of the proposed activity on their functions, interests or activities and to respond to Santos with their concerns.

57    The consultation under reg 11A is also designed to ensure that the titleholder adopts appropriate measures in response to the concerns conveyed to the titleholder by the affected authorities, organisations and individuals: see reg 10A(g)(ii). Equally importantly, the titleholder is obliged to inform NOPSEMA of the identity of the affected authorities, organisations and individuals, the nature of the titleholder’s consultations with them, and the measures that the titleholder has adopted or proposes to adopt to meet the concerns notified to the titleholder in the consultations: reg 10A(g). Construed in this way, the Regulations are directed to fulfilling their objects, consistently with the EPBC Act.

58    In light of this, we reject the submission made by Santos and supported by NOPSEMA that “activities” in reg 11A(1)(d) are to be construed in conformity with the definition of “activities” in reg 4. Regulation 4 provides that:

unless the contrary intention appears:

...

activity means a petroleum activity or a greenhouse gas activity.

(Original emphasis.)

So construed, the requirement in reg 11A(1)(d) to consult a person or organisation “whose ... activities” may be affected would be limited to other operators like Santos also engaged in an offshore petroleum or greenhouse gas activity.

59    We are of the clear view that to construe “activities” in the expression “functions, interests or activities” in this way would defeat the evident object of reg 11A and, more broadly, the objects of the Regulations. Even if the definition of “activity” would otherwise apply to the word “activities” in reg 11A, we conclude that a contrary intention is clearly expressed in reg 11A itself, having regard to its purpose and the relevant statutory and regulatory context to which we have just referred.

60    We would accept that the word “functions” in reg 11A(1)(d) refers to a power or duty to do something: see Chief Executive Centrelink v Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153; 248 FCR 236 at [69]; Noy v Tapgnuk (1997) 138 FLR 205 at 209-210. It may be accepted that, as Santos and NOPSEMA submitted, the TLC was a relevant person because it was an organisation whose functions under s 23(1)(b) of the Land Rights Act may be affected by the activities proposed to be carried out under the Drilling EP. It does not follow from this, however, that Mr Tipakalippa and the Munupi clan do not have functions as traditional owners of the Tiwi Islands with spiritual and cultural connections to sea country capable of falling within reg 11A(1)(d). It is, however, unnecessary to determine this point because we are of the clear view that they have “interests” that may be affected by the activities to be carried out by Santos under the Drilling EP.

61    The concept of an “interest” (or “interests”) that “may be affected” is well understood in various areas of Australian law, including the law with respect to standing and with respect to procedural fairness. It is also a concept that is well understood in many statutory contexts, including in the ADJR Act. In this context, a “person aggrieved by a decision” may apply under the ADJR Act for judicial review of the decision, where a person aggrieved includes a person “whose interests are adversely affected by the decision”: ADJR Act, s 3(4). We observe that neither Santos nor NOPSEMA took issue with Mr Tipakalippa’s standing to seek judicial review of NOPSEMA’s decision under the ADJR Act. It seems to us, however, that the interests that were adversely affected by NOPSEMA’s decision and which the other parties accepted gave Mr Tipakalippa standing under the ADJR Act to challenge the decision are intimately connected with the interests that he maintains required him and the Munupi clan to be consulted by Santos under reg 11A.

62    As we have already explained, we reject the submission that the word “activities” should be narrowly construed and, on this account, so too should the other words in the phrase “functions, interests or activities” in reg 11A(1)(d). Further, for the reasons set out below we would not, as Santos urged, confine “interests” to “legal interests” and reject the proposition that the connection of traditional owners with sea country cannot be an interest for the purposes of reg 11A(1)(d).

63    Under the ADJR Act and the law of standing and procedural fairness the concept of interest is a broad one. In the context of procedural fairness, an ‘interest’ includes “any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation”: Kioa v West [1985] HCA 81; 159 CLR 550 at 619 (Brennan J). Brennan J explained at 616-617:

There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests – licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials – intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.

64    This passage is apposite, it seems to us, when considering whether reg 11A(1) should be construed so as to require Santos to consult Mr Tipakalippa and the Munupi clan as traditional owners of the Tiwi Islands when it appears that their cultural and spiritual connections as traditional owners may be affected by the activity that Santos is proposing to undertake.

65    As Brennan J said in Kioa v West at 619, what is important in identifying whether there is an interest that attracts procedural fairness is how the individual interest is affected, rather than the nature of that interest. Although, as we indicate below, some care must be taken in drawing on every aspect of the procedural fairness cases, this statement is clearly apposite in considering the meaning of “interests” in reg 11A(1)(d). Furthermore, it is generally accepted that an interest that attracts procedural fairness may be equated with the interest that gives standing at common law to seek a public law remedy: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [66]-[68]; Kioa v West at 621; see also Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [121]. Having regard to the text, context and purpose of reg 11A(1)(d), we consider that “interests” in reg 11A(1)(d) is to be given a meaning that conforms to the accepted concept of ‘interest’ in other areas of public administrative law.

66    As Brennan J said in McHattan v Collector of Customs (1977) 18 ALR 154 at 157 in the context of procedural fairness:

Across the pool of sundry interests, the ripples of affection may widely extend. The problem ... is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote …

67    This observation is also applicable to this case, because, ultimately, so it seems to us, the resolution of the principal issue in this case – whether Mr Tipakalippa and the Munupi clan have interests that required Santos to consult them – is also a matter of fact and degree. The passages set out at [39] and [40] above make it clear beyond doubt that, as we have said, the material that Santos has in its possession and put before the decision-maker showed that they had a traditional connection to at least part of the sea in the EMBA and to its marine resources; and that there was a real potential for Santos’ proposed drilling activity to have a potentially significant adverse effect on the marine resources closer to the Tiwi Islands, which were a fundamental part of the traditional culture and customs of the Tiwi Islanders.

68    Mr Tipakalippa’s and the Munupi clan’s interests in the EMBA and the marine resources closer to the Tiwi Islands are immediate and direct. Furthermore, they are interests of a kind well known to contemporary Australian law. Thus, interests of this kind, which arise from traditional cultural connection with the sea, without any proprietary overlay, are acknowledged in federal legislation, such as, for example, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and have been considered by the courts.

69    It is instructive in this connection to consider the Heritage Protection Act, and in particular s 4, which provides as follows:

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

70    Protection under the scheme is given to “significant Aboriginal areas”, by Ministerial declaration. Section 3 of the Heritage Protection Act provides the following definition:

significant Aboriginal area means:

(a)    an area of land in Australia or in or beneath Australian waters;

(b)    an area of water in Australia; or

(c)    an area of Australian waters;

being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.

(Original emphasis.)

71    “Australian waters” is in turn defined in the following way:

Australian waters means:

(a)    the territorial sea of Australia and any sea on the landward side of that territorial sea;

(b)    the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or

(c)    the sea over the continental shelf of Australia;

(Original emphasis.)

72    In other words, the Heritage Protection Act recognises the capacity for sea country, and its marine resources, to be “of particular significance to Aboriginals in accordance with Aboriginal tradition”.

73    “Aboriginal tradition” is defined in s 3 as:

Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

(Original emphasis.)

74    By these references to the Heritage Protection Act, we are not intending to suggest that the Heritage Protection Act was applicable to Santos’ proposed drilling activities. Rather, we refer to that Act to make it clear that the law recognises the kind of interests that Mr Tipakalippa contends required Santos to consult with him and the Munupi clan. Reference to the Heritage Protection Act demonstrates that by this Act the federal Parliament has expressly contemplated the protection of areas of the sea from activities harmful to the preservation of Aboriginal tradition. The Parliament has done so without requiring the existence of particular proprietary interests; rather requiring only the existence of a connection by Aboriginal tradition.

75    Indeed, this is how the Full Court in Tickner v Bropho [1993] FCA 208; 40 FCR 183 approached consideration of the “Aboriginal tradition” in issue in that case, which dealt with a challenge by Mr Bropho to the redevelopment of the Swan Brewery site in Perth, Western Australia. At 227 [36], French J had no difficulty in describing the relevant tradition without reference to any proprietary language:

According to the evidence of that tradition which Mr Bropho presented to the Minister, the Swan River and associated landscape features are part of a complex of myths centred upon an ancestral being called the Waugyl which created the river and its tributaries during epic journeys in the Dreamtime. The Waugyl is one of a number of ancestral beings responsible for physical creation. It is akin to the great Rainbow Serpent which figures in Aboriginal legends throughout Australia. There are creative and punitive aspects of the Rainbow Serpent. According to Aboriginal mythology, the Waugyl commenced its journey to the sea at the sources of the Swan River. Along the way there were particular sites at which it rested or engaged in activities. These are regarded as sacred places of special power which may be beneficial or harmful according to the behaviour of those who approach them. Many such sites were well-established points where Aboriginal people traditionally met to trade and where inter-group meetings took place. Such sites might be used for the settlement of disagreements, the establishment of alliances and the teaching of initiates in the responsibilities of manhood. The teaching included the transmission of the mythology associated with particular places and the rituals necessary to pay due respect to the Waugyl. The medium for the transmission of the mythology was song.

76    French J in Bropho at 223 [30] also described the purpose of the Heritage Protection Act as being:

enacted for the benefit of the whole community to preserve what remains of a beautiful and intricate culture and mythology.

See also Onus v Minister for the Environment [2020] FCA 1807; 246 LGERA 340 at [75], where Griffiths J endorsed the description of French J in Bropho.

77    The Regulations at issue in this case have similar purposes of preservation and protection, but extending more broadly to the environment as a whole, insofar as it may be affected by a titleholder’s activity. As a substitute decision-making process under the EPBC Act, the Regulations provide the mechanism for the assessment of environmental impacts and risks from the titleholder’s proposed activity, where the concept of environment embraces people and communities and their social, economic and cultural features. In our opinion, the sea country material discloses the same kind of traditional connection to the sea country of the EMBA and the marine resources within it, as well as to the marine environment around the Tiwi Islands as that might be called in the language of the EPBC Act.

78    It follows from the foregoing that 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.

79    We accept that the identification of the kinds of traditional connections to the sea, and its marine resources in this case, is not as precise or detailed as the extract from Bropho indicates was present in that case. Santos did not address these matters in the Drilling EP as we consider they should have been because of the mistaken approach adopted by Santos and NOPSEMA to the concept of “interests” in reg 11A(1)(d). More detail and precision will come from consultations with the First Nation groups; thereafter Santos can address what if any measures need to be taken to mitigate environmental risks and impacts, which, as we have indicated, should be presented to NOPSEMA for its consideration in further decision-making.

80    In this case, we consider it clear that Mr Tipakalippa and the Munupi clan had interests within the meaning of reg 11A(1)(d) that required them to be consulted. Within this regulatory framework, “interests” includes cultural and spiritual interests of the kind described in the sea country material in the Drilling EP and attachments.

81    There remain, however, two related arguments that we have not addressed, which were said to weigh heavily against this conclusion. The first is derived from an aspect of the law relating to procedural fairness. The second is the ‘unworkability argument’. We reject these arguments for the following reasons.

The interests are not those of the public at large

82    We turn first to the aspect of the law relating to procedural fairness that was said to militate against Santos’ duty to consult Mr Tipakalippa and the Munupi clan. This was an argument to the effect that the concept of interest in the analogous context of procedural fairness did not support Mr Tipakalippa’s case. This argument relied on certain statements in cases such as Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537, Castle v Director General State Emergency Service [2008] NSWCA 231, and Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231.

83    Thus, the Court was directed to Lehane J’s discussion in Botany Bay at 553-5, referring to the difference between decisions affecting the interests of a particular individual or a group of individuals in a direct and immediate way attracting a duty of procedural fairness and decisions indiscriminately affecting members of the public at large, which did not affect interests: see also Apache Northwest at [121] (Buss JA), citing Kioa v West at 584-5 (Mason J) and 620 (Brennan J). The Court was also referred to Basten JA’s observation in Castle at [6] that:

one limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons. The obligation must be capable of identification and fulfilment, in a reasonable and practical sense, prior to the making of a decision. ... The larger the class of persons reasonably expected to be affected, the less the likelihood that procedural fairness will be attracted and, if it is, the lower the likely content of the duty. Similarly, even though the class of those affected may be small, the duty is less likely to be attracted if membership of the class is variable and not readily ascertained ...

84    There are at least two substantial difficulties with the proposition that these cases indicate that the interests of Mr Tipakalippa and the Munupi clan were not the kind of interests that, by analogy with the law of procedural fairness, would support a duty to consult. First, as senior counsel for Santos accepted in argument before the Court, it cannot seriously be suggested that the interests of Mr Tipakalippa and the Munupi clan are analogous to those of the public at large. Second, there is a fundamental difference between an express statutory obligation to consult “a person ... whose ... interests may be affected by the activities to be carried out under the environment plan” proposed by a titleholder (in circumstances where approval is being sought by the titleholder to carry out defined activities within that plan) and an unexpressed implication arising from the common law that conditions an exercise of statutory power (where a person’s interests may be adversely affected by the exercise of power). Generally speaking, the passages in Botany Bay, Castle and Apache Northwest to which the Court was referred were designed to identify the circumstances in which the implication would be unfounded or the implied duty necessarily limited because of the circumstances in which it was to be performed. In the present case, the existence of a duty to consult in reg 11A(1)(d) is express and irrefutable: the issue is only whether this duty is owed to Mr Tipakalippa and the Munupi clan as traditional owners, whose interests may be affected by the activities that Santos proposes to undertake in its Drilling EP.

85    We turn to discuss the workability issue, which was said to tend strongly against interpreting reg 11A(1)(d) as requiring Santos to consult Mr Tipakalippa and the Munupi clan as traditional owners of the Tiwi Islands.

No difficulty with the “workability” of this construction

86    Santos and NOPSEMA submitted that a construction of “interests” that required Mr Tipakalippa and the Munupi clan to be consulted would make reg 11A(1) unworkable and that this tended against the adoption of such a construction. They referred to the primary judge’s finding (at [81]) that reg 11A requires consultation with “each and every” relevant person.

87    In its written submissions, Santos described an obligation to consult under reg 11A with First Nations peoples who have traditional connections to the sea and the marine resources it holds in the OPP or EMBA as a task which was “complex, difficult and indeterminate”. It submitted the “sheer magnitude of the classes of persons who might need to be individually consulted would be unworkable”. Santos made similar submissions orally.

88    Santos and NOPSEMA submitted that the construction of the term ‘interests’ must permit the ready ascertainment of persons who have those interests. In oral argument, senior counsel for NOPSEMA agreed that persons with “interests” must be “reasonably capable of ascertainment”. We accept this latter proposition, but we do not consider that this tends against the conclusion we have reached.

89    Regulation 11A, like most statutory consultation provisions, imposes an obligation that must be capable of practicable and reasonable discharge by the person upon whom it is imposed. Consultation is a “real world” activity, with specific purposes. Here, its purpose is to ensure that the titleholder has ascertained, understood and addressed all the environmental impacts and risks that might arise from its proposed activity. Consultation facilitates this outcome because it gives the titleholder an opportunity to receive information that it might not otherwise have received from others affected by its proposed activity. Consultation enables the titleholder to better understand how others with an objective stake in the environment in which it proposes to pursue the activity perceive those environmental impacts and risks. As the Regulations expressly contemplate, it enables the titleholder to refine or change the measures it proposes to address those impacts and risks by taking into account the information acquired through the consultations. Objectively, the scheme intends that this is likely to improve the minimisation of environmental impacts and risks from the activity.

90    We see no particular difficulty with the proposition that the First Nations peoples who have a traditional connection to the sea, and to the marine resources it holds, which may be affected by Santos’ activities under the Drilling EP are reasonably ascertainable.

91    Indeed, some of the material before the delegate identified the First Nations groups whose interests might be affected. As the primary judge noted in the primary reasons at [205(xi)]:

In a section of Appendix C to the Drilling EP discussing Australian Marine parks and specifically the Arafura Marine Park, the following is said: “The sea country of the [Arafura] marine park is part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans. Sea country is valued for Indigenous cultural identity and Indigenous people have been sustainably using and managing their sea country, including that within the Arafura Marine Park, for tens of thousands of years” …

92    These clans are identified by name. In contemporary Australia, there are a myriad of ways of contacting groups of First Nations peoples. The first (but not the last) port of call might well be regional or local First Nations organisations. Many First Nations groups now have their own organisations or corporations. All First Nations groups have some kind of intramural structure, generally based around elders and family groups.

93    Even more so for Mr Tipakalippa and the members of the Munupi clan he represents. They live on the Tiwi Islands. The material before the delegate demonstrated that Santos was well aware of the presence of Tiwi Islanders, and the traditional connection to their islands, the sea around them and the marine resources within them. However, it had adopted a view of the operation of reg 11A(1)(d) which put them outside its obligation to consult.

94    Granted, a consultation with First Nations groups may not be as simple (or quick) as sending an email with a package of information, which is apparently how Santos demonstrated it had consulted the TLC. Since the TLC did not, in this proceeding or otherwise, complain that such conduct was insufficient or inadequate consultation under reg 11A, we say no more about it. However, there may well be a controversy in a given case about whether a titleholder engaged in sufficient or adequate “consultation” as required by reg 11A, especially given reg 11A(2) if the same were done in another case. In other words, it cannot be assumed that by sending an email with an information package attached, and perhaps following up with one further email, the requirement to consult in reg 11A has been satisfied.

NTA authorities

95    Where interests are held communally, or across a group, a different approach to consultation is likely to be required. In writing and orally, Santos submitted that if the obligation to consult in reg 11A were to be construed as extending to communal interests, it would operate so as to require consultation of each and every person forming part of the group holding that communal interest. As we have explained, that submission loses much of its force when it is recognised that a statutory obligation to consult must be understood in a practicable and reasonable way so that it is capable of performance.

96    We consider the authorities in relation to processes under the NTA to be illustrative of how a seemingly rigid statutory obligation to consult persons holding a communal interest may operate in a workable manner. Whilst some differences in statutory language exist, the most relevant assistance is to be gained from those authorities that have considered s 251B of the NTA. Section 251B contains a statutory definition of the term “authorise”, which is a key concept in the NTA governing decision-making by native title or compensation claim groups. For example, a native title claim group must “authorise” an application for the recognition of native title in an area over which they claim traditional connection: see s 61 of the NTA.

97    Section 251B provides:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

(Original emphasis.)

98    It can be seen that the terms of s 251B(b) are somewhat absolute – “all”. However, s 251B has consistently been construed in a way which is not so literal. In McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 the Full Court said at [36]:

The cases concerning authorisation within the meaning of s 251B(b) (for the purposes of an application to replace an applicant under s 66B of the NTA) have reiterated the principles that s 251B(b) does not require that “all” of the members of the relevant claim group be involved in making the decision. The key question will be whether a reasonable opportunity to participate in the decision-making process has been afforded by the notice for a relevant meeting. The usual question is whether the notice was sufficiently clear to enable persons to whom it has been addressed to judge for themselves whether or not to attend a meeting and to vote for or against a proposal: see, for example, Lawson (on behalf of the “Pooncarie” Barkandji (Paakantyi) People) v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 (Lawson) per Stone J (at [25] and [27]–[28]); Dingaal Tribe v Queensland [2003] FCA 999 (Dingaal) per Cooper J (at [8] and [32]); Coyne v Western Australia [2009] FCA 533 (Coyne) per Siopis J (at [27]–[51] and the cases therein cited); Weribone (on behalf of the Mandandanji People) v Queensland [2013] FCA 255 (Weribone) per Rares J (at [40]); and TJ v Western Australia (2015) 242 FCR 283; [2015] FCA 818 (TJ) per Rares J (at [91]).

(Emphasis added.)

99    In Boney v Attorney General of New South Wales [2018] FCAFC 218 the Full Court said (at [18]):

The primary judge concluded that those defects that he found in the conduct of the meeting, taken alone or in combination with all of the other matters in issue before him, would have made no material difference to the outcome of the meeting. He was also mindful that the exercise of his discretion adversely to the replacement applicant would defeat the will of the claim group as a whole, as expressed at the meeting. He referred to what Stone J had said in Lawson (on behalf of the “Pooncarie” Barkandji (Paakantyi) People) v Minister for Land & Water Conservation (NSW) [2002] FCA 1517 at [28], namely:

I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.

100    In McGlade (No 2) the Full Court added at [184]:

The authorities to date and the framework of the NTA appear to contemplate that opportunities may not be afforded equally and universally to every member of a community: Fesl [v Delegate of the Native Title Registrar [2008] FCA 1469; 173 FCR 150] per Logan J (at [71]–[72]); and Lawson per Stone J (at [25] and [27]–[28]). See also Weribone per Rares J (at [40]); TJ per Rares J (at [91]); Dingaal per Cooper J (at [8] and [32]); Coyne per Siopis J (at [32]–[51] and the authorities therein cited); and Burragubba (on behalf of the Wangan and Jagalingou People) v Queensland [2017] FCA 373 per Reeves J (at [31]).

101    Then at [187], addressing the issue in McGlade (No 2) about whether the alleged failures to give incarcerated Noongar People ready access to participation in an authorisation meeting vitiated the authorisation process, the Full Court said:

There is no doubt that proper and genuine consideration by a representative body as to the feasibility of the involvement of incarcerated members of a claim group or native title holding group would be expected as part of “reasonable efforts”. Those native title claimants, and native title holders, who are incarcerated hold the same kind and quality of native title rights as the rest of the members of any given group. In such circumstances a registered body should be in a position to demonstrate that it has explored all feasible options to enable a reasonable opportunity for participation in the authorisation process in the manner contemplated under the NTA. In the circumstances of this case, while it is possible that more might have been done, the applicants have not proven that further or different steps were feasible and reasonable, and therefore there is no error of law on the part of the Registrar in reaching a conclusion as a question of fact that she could be reasonably satisfied that reasonable efforts were made in the circumstances.

102    Finally, in Anderson v State of Western Australia [2007] FCA 1733 at [36], French J spoke in terms of the need for the Court to assess if:

the process of decision-making which was followed in this case was agreed and adopted to by a sufficiently representative section of the native title claim group for the purpose of dealing with matters arising in relation to the application.

103    We do not accept Santos’ submission that this kind of analysis is not available to be applied to reg 11A, because the consultation obligation in reg 11A is not qualified by a phrase such as ‘reasonable efforts’. It is true that some aspects of the functions of representative bodies in the NTA are qualified by a term such as “reasonable efforts”: for example, the certification function for indigenous land use agreements in s 203BE(5); see McGlade (No 2) at [24]. However, s 251B is not so qualified, as its text reveals. To the contrary, it uses absolute language of “the persons in the native title claim group or compensation claim group authorise …”, which may suggest each and every person. As the extracts above illustrate, that is not how the statute has been construed: rather, the Courts have recognised the need for practical and pragmatic approaches to provisions dealing with group decision-making, while still insisting on reasonable opportunities and some degree of representativeness.

104    As we have noted, there is no definition of what constitutes “consultation” for the purposes of reg 11A, and what does not. Some content to its meaning is given by reg 11A(2), but there is nothing in the Regulations about the method of consultation. Just as under the NTA the Courts have explained that the underlying premise of the authorisation provisions is to give all group members a “reasonable opportunity” to participate in decision-making, so too there is good reason to adopt a similarly pragmatic and practical approach to reg 11A. A titleholder will need to “demonstrate” to NOPSEMA that what it did constituted consultation appropriate and adapted to the nature of the interests of the relevant persons. Again, as the Full Court in McGlade (No 2) pointed out at [189], conduct that is superficial or token will not be enough. The same applies to reg 11A. Where interests are held communally, in accordance with tradition, the method of consultation will need reasonably to reflect the characteristics of the interests affected by the titleholder’s proposed activity. An email may be inappropriate, but properly notified and conducted meetings may well suffice. There is no shortage of guidance in decisions under the NTA concerning authorisation meetings held for the purposes of s 251B. Those circumstances often involve claim group members who are spread across Australia. In short, the NTA authorities require reasonable notice to group members, but not any exhaustive communications with each and every person.

105    We consider that our approach is consistent with the decision in Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29, although we note that Santos and NOPSEMA relied on it to support the contrary conclusion.

106    In that case, the statutory consultation obligation (in a heritage protection context) was, amongst other matters, to consult with:

any –

(i)     traditional owners; and

(ii)     other Aboriginal persons,

who, in the opinion of the Minister, have a particular interest in the matter.

See Newchurch at [13].

107    Doyle CJ found that the Minister was not obliged to consult with Mr Newchurch as an individual. His Honour said (at [114]):

I return to the status of Mr Newchurch. He is one of an unknown number of traditional owners of the site. He had not been involved in the circumstances leading to the First Authorisation, or in the negotiations and arguments that followed, in such a way as to bring him to the notice of the Minister as a traditional owner with an interest in the Revocation Decision any different from that of any other traditional owner. He had not been one of the monitors who attended the site. There was no basis for the Minister to conclude that Mr Newchurch was affected as an individual, as distinct from as a member of the class of traditional owners. In Kioa v West (1985) 159 CLR 550 Mason J (at 584) and Deane J (at 632) referred to decisions that affect rights and interests of another in a “direct and immediate way” (Mason J) and in an individual capacity “… as distinct from as a member of a general public or of a class of the general public …” (Deane J). I conclude that the Minister was not obliged to notify Mr Newchurch of the application for revocation, or to seek comments from him in relation to the request.

108    In other words, Newchurch is about what is a reasonable and practicable method of consultation, in circumstances where there is an obligation to consult a group of traditional owners. This question does not arise on this appeal because there was, in fact, no attempt to consult with Mr Tipakalippa and the Munupi clan, or any other Tiwi Islanders, and therefore the method or adequacy of consultation does not arise for consideration.

109    Rather, the key point is that there is nothing unworkable about a construction of the phrase “functions, interests or activities” in reg 11A that extends to the interests of First Nations groups by reason of a traditional connection to sea country and its marine resources which may be affected by the activities to be carried out under the Drilling EP, or the revision of the Drilling EP. To the contrary, as the heritage protection cases at the State and federal levels demonstrate, and as the NTA cases about s 251B emphasise, it is possible to construe a consultation requirement in a practical and pragmatic way that makes a process both reasonable and workable. We reject the submission that to construe reg 11A(1)(d) in this way makes this provision unworkable, in the sense that it is just too hard to consult with traditional owners as was required in this case.

Conclusion

110    In our opinion, the term “reasonably satisfied” in reg 10(1)(a) requires a state of satisfaction to be formed reasonably, rationally, and on a correct understanding of the law: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ), referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81]-[82] (Gaudron J); and also to Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] (Gageler and Keane JJ), which in turn refers to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]-[137] (Gummow J), citing R v Connell; Ex parte Hetton Bellbird Collieries Limited [1944] HCA 42; 69 CLR 407 at 430 (Latham CJ); and Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J).

111    In its report to the delegate, Santos proceeded on an incorrect understanding of the proper construction of reg 11A(1)(d), and the phrase “functions, interests or activities”. Therefore, it could not demonstrate to the delegate that it had undertaken the consultations “required” by reg 11A. The delegate likewise proceeded on a misunderstanding of reg 11A(1)(d), and of the criterion directed to this in reg 10A(g).

112    The orders of the primary judge are correct, and the appeal must be dismissed. Santos should pay Mr Tipakalippa’s costs of the appeal. There will be no order as to costs respecting NOPSEMA.

Associate:

Dated:    2 December 2022

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

113    I have had the considerable benefit of reading the reasons of Kenny and Mortimer JJ in draft, and will adopt the abbreviations used by their Honours.

114    As explained in the reasons of Kenny and Mortimer JJ, this appeal is against a determination of an application for judicial review of a decision of a delegate of NOPSEMA, a body whose functions relevantly include making a decision on submitted environment plans pursuant to reg 10(1) of the Regulations. As has been further explained:

(1)    NOPSEMA accepted the Drilling EP submitted by Santos;

(2)    the first respondent, Mr Tipakalippa, contended that he, and other traditional owners of the Tiwi Islands, have an interest in the “sea country” around the Tiwi Islands;

(3)    Mr Tipakalippa claims that those interests were referred to in the Drilling EP;

(4)    in circumstances where it was contended that the Drilling EP did not show that Mr Tipakalippa and other traditional owners of the Tiwi Islands were consulted, Mr Tipakalippa claimed, among other things, that NOPSEMA could not have been “reasonably satisfied” (as was required by reg 10(1), read with regs 10A(g) and 11A of the Regulations) that the Drilling EP “demonstrates” that Santos “has carried out the consultations” required by reg 11A; and

(5)    the appellant, Santos, argued that there was no necessity for any consultation with Mr Tipakalippa and other traditional owners of the Tiwi Islands, because they did not have a relevant “function, interest or activity” for the purposes of reg 11A(1)(d), being the basis upon which it was asserted consultation was necessary.

115    Hence, despite the unnecessarily complicated way the case was put by those acting for Mr Tipakalippa, the determinative issues presented below, and on appeal, were narrow, and can be framed as follows:

(1)    whether Mr Tipakalippa established that he and the traditional owners of the Tiwi Islands were “relevant persons” (as defined in reg 11A(1)(d), that is, “a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan”); and

(2)    if so, whether Mr Tipakalippa had established that the delegate’s relevant state of satisfaction (that the Drilling EP demonstrated that Santos had carried out the consultations with relevant persons required by reg 11A) was not lawfully reached on the material before the delegate.

116    Before addressing these two issues, it is necessary to address initially a factual issue and a legal issue: first, what actually was the material before the delegate; and secondly, what is encompassed by the expression, “functions, interests or activities” as used in reg 11A(1)(d).

B    THE MATERIAL BEFORE THE DELEGATE

117    Compounding the complicated way the issues were framed at the hearing, an array of irrelevant material was placed before the Court. Given the need to resolve the proceeding with alacrity, this presented real challenges for the primary judge.

118    In any event, as was recognised by his Honour, it is trite that the assessment of the legal validity of the decision-maker’s state of satisfaction, according to the applicable standard of review of lawfulness, falls to be considered by reference to the material before the decision-maker.

119    One suspects that in cases involving a decision under the Regulations, usually identifying the relevant material would be straightforward, given the prescriptive regulations as to the content of an environmental plan capable of acceptance. But, to the extent relevant, identifying any additional material before the delegate in any case is, of course, a bespoke factual inquiry.

120    Four matters are worth observing about the evidence relevant to this factual inquiry in this case.

121    First, NOPSEMA appeared below to assist the primary judge with submissions as to the proper construction of the Regulations, but for reasons unexplained, also adduced evidence at the final hearing. It read an affidavit sworn on 1 August 2022 by Mr Cameron Charles Grebe, who is the Head of the Division for Environment, Renewables and Decommissioning at NOPSEMA. The Grebe affidavit, which omitted the identity of the delegate, purported to specify the materials before the unknown delegate by making a number of hearsay representations and annexing a list, which was not an admissible business record, being a “Decision Documents Bundle”. This evidence was said to establish that the documents before the delegate were, in addition to the iterations of the Drilling EP and the materials identified in the “Decision Documents Bundle” (Grebe affidavit, Annexure CG7), two documents said to have been “inadvertently omitted” from the “Decision Documents Bundle”, being materials in a so-called “stakeholder correspondence register for the Drilling EP assessment” (Annexure CG9); and a NOPSEMA Environment plan assessment standard operating procedure document dated 13 December 2021: Annexure CG10.

122    Secondly, as recorded in the primary reasons (at [110]), Mr Grebe gave some evidence that NOPSEMA uses a database known as the “Regulatory Management System” for recording information about its assessment of each environment plan. For each assessment process, a file is created in that database, with standard fields that are populated in the course of the assessment, including a record of findings of the assessment team which, according to Mr Grebe, is an “iterative record”.

123    Thirdly, as part of the Barossa Project, other environment plans were also submitted to NOPSEMA, referred to by the primary judge as “related EPs”: primary reasons (at [244], [287]). Those related EPs included a Pipeline Revision EP submitted to NOPSEMA in December 2021; that is, during the period during which the Drilling EP was being considered.

124    Fourthly, given the way the parties conducted the proceedings below, the primary judge did not find it necessary to make findings as to the precise material before the delegate.

125    This was not a case where it was squarely put below (or on appeal) that jurisdictional error resulted from what could be described as a constructive failure to have regard to identified material in the database or Pipeline Revision EP, such as to warrant the conclusion that the delegate was not performing the task conferred: c.f. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (at 127–128 [97]–[98] per Robertson J). But notwithstanding this, the parties were at issue on appeal as to what aspects of the database, and whether the Pipeline Revision EP, were before the delegate. Moreover, there was even dispute as to the evidentiary record relevant to the identification of the material before the delegate.

126    But whatever else is unclear, it is apparent that there was: (a) no objection by those acting for Mr Tipakalippa to the evidence adduced as to what material was before the delegate; (b) no attempt to adduce further evidence in Mr Tipakalippa’s case, including by the tender of any verified answers to interrogatories directed to what was before the delegate; nor (c) any request made to NOPSEMA to call the delegate in chief: see s 166(f) of the Evidence Act 1995 (Cth). Further, and importantly, there was no cross-examination of Mr Grebe.

127    As noted above, the legality of the decision is to be judged by reference to the material before the delegate, not speculation as to what might have been present, or what material might have been accessible. Although unorthodox and objectionable, the evidence of Mr Grebe was adduced. It was not inherently incredible, nor was it contradicted by established facts: c.f. Precision Plastics Pty Limited v Demir [1975] HCA 27; 132 CLR 362 (at 370–371 per Gibbs J); Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 (at 347 [77] per Mansfield and Gilmour JJ). Hence, contrary to the submissions made on behalf of Mr Tipakalippa on the appeal, it is necessary to proceed on the basis that the material identified in the evidence adduced by NOPSEMA was the material before the delegate. 

128    It follows that it is by reference to this material that it is necessary to access the submission of Mr Tipakalippa that, in the context of the Drilling EP as a whole, it was not legally open to NOPSEMA to be reasonably satisfied that Santos had carried out consultations with relevant persons under reg 11A(1).

C    “FUNCTIONS, INTERESTS OR ACTIVITIES”

C.1    Principles, Text and Context

129    Unsurprisingly, there was no dispute as to the general principles relevant to construing reg 11A(1). The rules of statutory interpretation at common law also apply to the interpretation of subordinate legislation. Furthermore, s 13 of the Legislation Act 2003 (Cth) has the effect that the rules of interpretation set out in the Acts Interpretation Act 1901 (Cth) apply to a legislative instrument as if it were an Act. In short, the starting and end point is the text, while at the same time having regard to its context and purpose; and the context should be regarded in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (at 368 [14] per Kiefel CJ, Nettle and Gordon JJ).

130    Accordingly, it is worth commencing by considering the text of the relevant expression in the context of the surrounding provisions.

131    Division 2.2A of the Regulations, which is headed “Consultation in preparing an environment plan”, contains only one regulation: reg 11A. As noted above, reg 11A(1) provides that a titleholder must consult specified classes of “relevant person” in the course of preparing an environment plan. Those specified classes are as follows:

(a)    each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;

(b)    each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;

(c)    the Department of the responsible State Minister, or the responsible Northern Territory Minister;

(d)    a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan;

(e)    any other person or organisation that the titleholder considers relevant.

(Emphasis added).

132    The other surrounding provisions are set out in the reasons of Kenny and Mortimer JJ, but it is worth emphasising that regs 11A(2) and (3) provide that for the purposes of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person, and must allow a relevant person a reasonable period for the consultation.

C.2    Four Observations about Reg 11A Generally

133    Four matters are immediately apparent.

134    First, reg 11A requires a two-step process: (a) an identification of what persons or organisations fall within the meaning of a “relevant person” (which, to the extent reg 11A(1)(d) is concerned, necessarily involves an identification of whether a person or organisation has a function, interest or activity that may be affected by the activities to be carried out under the environment plan); and (b) a consultation with “each relevant person” in accordance with regs 11A(2)–(4).

135    Secondly, the titleholder’s obligation to consult is not tempered by a qualifying phrase such as “reasonable efforts” or “to the extent practicable”; nor does the obligation only extend to persons the decision-maker considers to be “relevant persons”. Rather, the regulatory drafting is such that the consultation obligation, when engaged, is unqualified.

136    Thirdly, despite the strict nature of the obligation, there is an evident need for all “relevant persons” to be ascertainable. This ascertainment must be sufficiently readily achievable to accommodate the requirement that each relevant person be consulted by the titleholder in the course of preparing an environment plan and in the manner prescribed by the Regulations. It must be taken to be the regulatory intention that the consultation requirement cannot be one that is incapable of being complied with within a reasonable time; equally, it cannot have been intended that there would be opacity as to the identity of those with whom consultations are to take place.

137    Fourthly, the relevant function, interest or activity must logically have existence anterior to, and separately from, the activity the subject of the environmental plan: it must be something that is in existence, and may be affected by what is proposed under the environment plan.

C.3    The “Workability” Argument and the “Scheme” of the Regulations

138    Neither Santos nor NOPSEMA disputed the above propositions. Apart from a misconceived argument by Santos based on the definition of the word “Activity”, which I will deal with below, the focus of the submissions was on the strictness of the obligation and the need for ready ascertainment, by the titleholder, of the existence of a “function, activity or interest”. It was emphasised that the scheme in reg 11A operates on the premise that a titleholder will be able, with “reasonable diligence”, to identify each relevant person and then discharge its obligation to consult each such person. It was said to follow that a construction of “function, interest or activity” that admits of the possibility of a “relevant person” including each and every member of a large, variable and indeterminate class of individuals who share interests in common is unworkable, and hence wrong. In this regard, reliance was placed on the longstanding principle that “unreasonable consequences” should be avoided when a provision is susceptible to alternative constructions: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 (at 232 [100] per Nettle J); Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) (at [9.30]).

139    Separate but allied to this workability argument was the further contention that the general “scheme” of the Regulations supports a refined approach to what constitutes relevant “functions, interests or activities”. Prior to any environmental plan being the subject of consultation, the regulatory scheme requires that any “activity” of a titleholder proposed in an environment plan will have already been set out in an “offshore project proposal” (reg 5A(5)(b)) in respect of which NOPSEMA will have sought public comment: reg 5C(3). These public comments will have been adequately addressed by the proponent before the proposal was accepted: reg 5D. In this way, it is said Pt 1A the Regulations provides an opportunity for those who are generally concerned with the proposal (but who do not have a “function, interest or activity” as defined in the Regulations), to participate in the decision-making process as to whether a project will proceed.

140    The force of this last proposition is, however, somewhat dissipated by the reality that the publication required by Pt 1A is confined to placing the proposal on the Regulator’s website: see reg 5C(3). The prospect of interested members of the public breathlessly monitoring the NOPSEMA website is an unlikely one. It suffices to note that the existence of a website publication of a preceding step as being of real significance in assisting the construction of regulations dealing with a later, and targeted consultation process, is an unpersuasive one. The relevance of this earlier and different process is that it demonstrates a regulatory intention to treat general members of the public quite differently to those persons or organisations who have an existing and identifiable function, interest or activity that may be affected.

141    To take a narrow approach to the scope of the consultation process (simply because members of the public have a chance to have their say at an earlier time) is inapt when it is recalled that the objects of the Regulations (see reg 3) include ensuring that environmental impacts and risks of the activity will be reduced to as low as reasonably practicable (reg (3)(b)) and will be of an acceptable level (reg 3(c)), and that the activity will be carried out consistently with the principles of ecologically sustainable development in s 3A of the EPBC Act. Those include that “decision-making processes” should “integrate … social and equitable considerations”. It seems to me these regulatory objects are best achieved by a consulting process that is practicable, but is sufficiently broad so as to collect available input into the possible risks and environmental impacts of the activity and ways of reducing those risks and impacts and managing them to an acceptable level.

142    With the terms of reg 11A and these contextual arguments in mind, it is appropriate to turn directly to the notions of a “function, interest or activity”. In this regard, it is worth noting it was common ground that reg 11A(1)(d) deals with three distinct concepts, separated by a disjunctive, requiring individual analysis. Although it can be misleading to construe what might be described as a composite phrase simply by combining the dictionary meanings of its component parts (see, for example, XYZ v Commonwealth [2006] HCA 25; 227 CLR 532 (at 543–544 [19] per Gleeson CJ)), here the parties proceeded correctly on the basis that each concept had a distinct meaning and each must be given work to do: Commonwealth v Baume [1905] HCA 11; 2 CLR 405 (per Griffith CJ at 414).

143    Although the case initially put below was that Mr Tipakalippa and the traditional owners of the Tiwi Islands had or were likely to have “functions” and “interests” and “activities” that may be affected by the Drilling EP, as is explained by Kenny and Mortimer JJ, the focus of argument, both below and on appeal, was on the contention that Mr Tipakalippa and the traditional owners had an “interest”. Accordingly, it is worth dealing with the concepts of a “function” and “activity” initially, and relatively briefly, and then focus upon the real constructional issue: what is meant by the concept of an “interest” as used in reg 11A(1)(d).

C.4    Function

144    The word “function” derives from the Latin verb, fungor; that is, to perform or to execute. In ordinary modern parlance, a function involves a role to perform, or something to be exercised. This is how the concept is used, for example, in s 33(1) of the Acts Interpretation Act. It is best seen as an existing power or duty pertaining to an office or role. There is no reason to think is it used in reg 11A(1)(d) in anything other than the usual way. Indeed, a good example of its relevant use can be seen from Table 4-1 in section 4.2 of the Drilling EP, which identified the TLC as a relevant person, stating that Santos had considered the TLC to be a relevant person given that the “function” of the TLC is “to represent indigenous residents of the Tiwi Islands”. It will be necessary to return to this reference below.

C.5    Activity

145    The word “activity” is defined in reg 4 to mean “a petroleum activity or a greenhouse gas activity”. Santos submitted that where the word “activities” is used in reg 11A(1)(d) (which occurs twice), it is used consistently, and in its “defined sense”.

146    This argument must be rejected. Although “Activity” is a defined term, the definition is only operative “unless the contrary intention appears”. As noted above, it is readily apparent that the “activity” as first used in reg 11A(1)(d) is something quite separate from, and which “may be affected” by, what is proposed; that is, the activities to be carried out under the environment plan. Put another way, the relevant concept is not directed to what the titleholder proposes to do, but rather what other persons or organisations are already doing. The word activity as relevantly used in another grammatical form, in the phrase “activities, interests, and functions”, has its ordinary English meaning: a thing that a person or group does.

C.6    Interest

147    Relying upon the “workability” argument discussed above, Santos’ argument proceeds on the premise that a construction should be given to the word “interests” that requires that the interests of the relevant persons to be “capable of ready ascertainment” by the titleholder. Despite this being criticised by Mr Tipakalippa as an a priori assumption, in reality, it is nothing more than a recognition of an aspect of both context and purpose: the Regulations require all “relevant persons” to be ascertainable so that each relevant person can be consulted by the titleholder in the manner required by the Regulations.

148    It is the next step in the argument of Santos that is misconceived. Because of this need for ascertainment, Santos contends the construction of “interests” required “is a meaning that is directed to ‘legal interests’”. This construction is said to give the word “interests” important work to do. Hence, Santos contends that those with fishing licences have a relevant legal interest and should be consulted as relevant persons, but this is to be contrasted to a non-proprietary spiritual or cultural connection of an indigenous person to an area of land or waters.

149    There is an immediate flaw in this submission: why just legal interests? Why does one draw the line there? What about a person holding a beneficial interest in property or, short of some form of equitable estate, a person who has a mere equity, which might be thought as “proprietary” in that, in certain circumstances, it can be enforced against, and alienated in favour of, certain third parties, but does not amount to an interest in any property to which it relates?

150    When this issue was raised during the course of oral submissions, the response of Santos was to fasten then upon the notion of a “legally cognisable interest”, being something in the nature of, or affecting, a proprietary right. But this too has difficulties. It is well beyond the scope of these reasons to scratch even the surface of so large and as vexed a topic as to how one defines what constitutes “property”, or an “interest affecting property”. Lord Wilberforce famously suggested in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (at 1247–1248), that before a right or interest can be admitted into a category of property or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. But this definition is focussed primarily on private law individual property rights (although this definition would, of course, encompass the common property rights enjoyed by the traditional owners of the Tiwi Islands under the Land Rights Act, through a Land Trust). But his Lordship’s description is not exhaustive, as would be understood by anyone seeking to assess the proprietary nature of some equitable interests. Drawing bright lines as to what constitutes property, and interests associated with property, is notoriously difficult. This is well illustrated by Professor Stuart Banner in his book, American Property: A History of How, Why and What We Own (1st ed, Harvard University Press, 2011), where he argues property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant and developing in response to exogenous changes, such as society’s recognition of types of “common interests” resulting in new forms of property.

151    These complications can, however, be put to one side. It is sufficient to observe that the approach of Santos demonstrates the arbitrariness and difficulties of fixing upon a certain type of interest (even one as broad as an interest in, or affecting, property) and then using it to attenuate a concept, which the relevant context and purpose suggest is a broad one (albeit one capable of ready ascertainment). After all, as noted above, the concept must be sufficiently broad to obtain available input into the possible risks and environmental impacts and the possible means of reducing and managing those risks and impacts. Had it been intended to confine the concept in the way suggested, it would have been easy to do so, for example, by adopting the qualifier “legal”, or perhaps by using the somewhat narrower word “rights”.

152    Notably, NOPSEMA did not embrace the approach of Santos. Despite initially going somewhat further in written submissions, its refined position was that the concept of “interests” is revealed by focussing on the two-step process of reg 11A: that is, the initial proactive identification step; and then the later prescriptive consultation step. “Workability” can only be achieved if “each” member of a class of persons holding an interest in common could be identified, and there is a practical means or mode by which they might be “given” information and told things. It is said that these kinds of concerns have driven the well-established case law, addressed at length by NOPSEMA, as to the extent of an obligation (express or implied into a statute) to hear from or consult a person whose “interests” may be affected by a particular decision or conduct.

153    But when one accepts the important qualifier that the “interests” must be readily ascertainable, the workability problems recede, as Kenny and Mortimer JJ explain in their Honours’ reasons under the heading “No difficulty with the ‘workability’ of this construction”. The apparent suggestion that it is somehow impracticable to consult with each person holding a common interest that is readily ascertainable is unpersuasive. The nature of the interest will necessarily inform the appropriate discharge of the prescriptive consultation step. For an interest held individually, the method or mode adopted to “give each relevant person” information or “tell” them things, may be quite different to giving each person information or “telling” them things, when the relevant interest is commonly held. Just as giving information or telling things to a person under a legal disability, or a person who is but one member of a large partnership or unincorporated association, will be done differently to giving information or telling things to a sole registered proprietor of affected Torrens title land.

154    As outlined above, there is a separate public comment regime in regs 5C and 11B. This means that a person with no greater interest in the proposed activity than any other member of the public will, to the extent they wish to make comment, be left to this regime. However, reg 11A serves a quite different purpose, and is triggered upon a person or organisation being of a particular type or having a characteristic that is already in existence, being a function, interest or activity (reg 11A(1)(d)), or because the titleholder considers them relevant (reg 11A(1)(e)). At the risk of repetition, given the objects of the consultation regime, and contrary to the submissions of Santos, this does not point to any narrow reading of what constitutes a relevant “interest”. Put simply, if an interest (in its usual sense) is readily recognisable to the titleholder as being an existing interest over and above a member of the public at large, then there is an “interest” as used in reg 11A(1)(d).

C.7    Conclusion

155    As Santos would have it, reg 11A(1)(d) would be read as follows: “… a titleholder must consult each of the following (a relevant person): a person or organisation whose [legal] functions, [legal] interests or [petroleum or greenhouse gas] activities may be affected by the [petroleum or greenhouse gas] activities to be carried out under the environmental plan, or the revision of that plan”. For the reasons I have explained, this approach is not only a distortion of the text read in context, but also jars with the evident purpose and the objects of the Regulations.

D    RETURNING TO THE DETERMINATIVE ISSUES

156    At [115] above, I identified the two determinative issues.

157    As to the first, having settled upon a proper construction of reg 11A(1)(d), I agree that Mr Tipakalippa did establish that he and the traditional owners of the Tiwi Islands were “relevant persons” whose interests may be affected by the activities to be carried out under the Drilling EP. This is because of the existence, as Kenny and Mortimer JJ have explained, of the traditional, customary connection of the traditional owners of the Tiwi Islands to at least part of the sea in the EMBA and to its marine resources (as was acknowledged in the Drilling EP).

158    The cultural or spiritual interests of the kind described in the sea country material within the Drilling EP were sufficiently ascertainable by Santos. This conclusion is unsurprising given, as the primary judge recorded, the sea country material included, among other things, reference to the “Tiwi Islands Sea Country” and “areas of marine … Aboriginal Cultural significance” (primary reasons (at [205(iv)])); “maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge” (primary reasons (at [205(viii)])); and noted that sea country “is part of the responsibility of” indigenous peoples and that “sea country is valued for Indigenous cultural identity and Indigenous peoples have been sustainability using and managing their sea country … for tens of thousands of years”: primary reasons (at [205(xi)]). Moreover, as recorded in the primary reasons (at [205(xiii)]), there was reference to the fact that while:

direct use by Aboriginal and Torres Strait Islander peoples [of] deeper offshore waters is limited, many groups continue to have a direct cultural interest in decisions affecting the management of these waters. The cultural connections Aboriginal and Torres Strait Islander peoples maintain with the sea may be affected, for example, by offshore fisheries and industries.

(Emphasis added).

159    This brings me to the second issue: whether Mr Tipakalippa had established that the delegate’s relevant state of satisfaction (that the Drilling EP demonstrated that Santos had carried out the consultations required by reg 11A) was not lawfully reached on the material before the delegate.

160    The only argument that seemed to me to have any potential weight in asserting this onus was not discharged is one identified in the primary reasons (at [232]), to the effect that if (as was the case) the sea country material did reveal an interest of traditional owners of the Tiwi Islands, it would not necessarily suggest that the Drilling EP did not demonstrate that all relevant persons were not consulted, because the Drilling EP demonstrated that, through the contact Santos made with the TLC, the traditional owners of the Tiwi Islands were consulted.

161    But such an argument does not assist Santos, not least because Santos twice expressly disavowed an argument that consultation with the TLC discharged any obligation to consult with each of the traditional owners of the Tiwi Islands: as recorded by Kenny and Mortimer JJ (at [28] above).

162    But in any event, even if the argument was able to be made, it does not withstand scrutiny. As noted above, the Drilling EP identified the TLC as a relevant person, but further specified that the “Reason for engagement” with the TLC was because of its “function”. It was consulted because this function was “to represent indigenous residents of the Tiwi Islands” – much like, for example, the Northern Territory Seafood Council was consulted as a relevant person because it performed the “function” of representing commercial fishing licence holders. The problem for Santos is that unlike the Northern Territory commercial fishing licence holders, who were also identified as relevant persons because they had readily ascertainable “interests”, this was not done with Mr Tipakalippa and the traditional owners of the Tiwi Islands.

163    It follows that Mr Tipakalippa did establish that the delegate’s state of satisfaction (that the Drilling EP demonstrated that Santos had carried out the required consultations) was not open.

E    CONCLUSION AND ORDERS

164    Santos made much of ambiguity and the fact that the sea country material was not confined in its application to sea country likely to be associated with the traditional owners of the Tiwi Islands. But the Regulation provides for both the proactive identification step to be completed in relation to all relevant persons and for subsequent consultation. If reg 11A(1)(d) as properly applied causes what is perceived to be unacceptable expense and delay (about which I express no view), the solution is not to distort its construction by adopting an unprincipled and restricted reading of what constitutes “interests”, but rather regulatory reform to provide greater specificity as to what is required, consistent with the object of the Regulations to provide for effective consultation with persons with interests affected by a proposed activity.

165    Ground 1 of the notice of contention is made out for the reasons I have explained. I agree with what Kenny and Mortimer JJ have said about ground 2 of the notice of contention and the grounds of appeal. It follows I agree the primary judge did not err in making the orders his Honour made. The orders proposed by Kenny and Mortimer JJ dismissing the appeal with costs should be made.

Associate:

Dated:    2 December 2022