Federal Court of Australia

Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the respondent is restrained from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020) until 5.00pm on 13 November 2023.

2.    There be a further case management hearing at 11.00am (AEDT) on 3 November 2023, the parties have leave to attend by way of web conference link.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 1 November 2023 the Court made an order granting an urgent interim injunction in this action. Oral reasons were delivered on that day. What follows is a written record of the Court’s oral reasons, with some revisions from the transcript to improve expression or to expand on principles where appropriate. The reasons remain expressed in the present tense.

2    The parties have been informed that the conclusions expressed in these reasons should be understood as provisional in their nature and based on the materials presently before the Court. Whether the interim relief should be extended to apply until judgment on the originating application will be the subject of a further argument on 13 November 2023.

Record of oral reasons for judgment

3    Yesterday evening a vessel (known as a Primary Installation Vessel) departed the Port of Darwin to commence work on the installation of a gas export pipeline in the Timor Sea. The Primary Installation Vessel is scheduled to commence works for the construction of a 263 km long pipeline in the Bonaparte Basin in an hour or two from now. The pipeline is comprised of carbon steel and is coated with concrete. Works for the laying of the pipeline include the installation of foundations at each terminating end as well as “span correction” and “buckle correction” mattresses fixed to the ocean floor. The pipeline is expected to settle into the sea bed at depths that will vary along its length.

4    The pipeline will run in a north-south direction and will pass to the west of the Tiwi Islands, at its closest point approximately seven kilometres off Cape Fourcroy.

5    Construction of the pipeline is an activity of a joint venture including the respondent Santos NA Barossa Pty Ltd (Barossa Project). Santos is the holder of a Petroleum Licence and a Pipeline Licence issued under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). It is a titleholder for the purposes of the Act and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth).

6    On 9 March 2020, a delegate of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) accepted the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Pipeline EP) pursuant to reg 10(1)(a) of the Regulations. The Pipeline EP relates to the installation of the pipeline as well as all other activities necessary or incidental to its installation. It is one of five environment plans relating to the Barossa Project.

7    The applicant, Mr Simon Munkara, is an Aboriginal man from the Tiwi Islands. He is a member of the Jikilaruwu clan and a traditional owner of the land at Cape Fourcroy. Other traditional owners of the Tiwi Islands include members of the nearby Malawu and Munupi clans.

8    Mr Munkara commenced this proceeding by an originating application two days ago. The substantive order sought on his originating application is expressed as follows:

1.    An injunction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth), prohibiting or restraining on a final basis the Respondent from undertaking the Activity until:

a.    it submits a proposed revision to the Pipeline EP in accordance with reg 17(6) of the Environment Regulations; and

b.    that revision is accepted by NOPSEMA in accordance with reg 21.

9    In addition, Mr Munkara filed an application for an urgent interlocutory injunction restraining Santos from undertaking any of the activities described in the Pipeline EP until the hearing and determination of this proceeding or until further order.

10    Mr Munkara submits that the construction of the pipeline will, or is likely to, impact upon significant tangible and intangible underwater Tiwi cultural heritage in the vicinity of the pipeline including but not limited to the sea bed. He submits that Santos is in breach of the obligation in reg 17(6) to submit a proposed revision to the Pipeline EP in relation to that environmental impact or risk.

11    With the concurrence of the parties, the Court will hear the interlocutory application on 13 November 2023 and will give directions for the filing of additional materials in advance of that hearing. In the meantime, Mr Munkara presses an application for urgent interim relief restraining any activities described in the Pipeline EP until 13 November 2023 when his application for an injunction pending final judgment will be heard.

12    For the reasons that follow, the application for urgent interim relief will be granted.

Criteria for an injunction

13    The criteria for an interlocutory injunction are well established. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, Gleeson CJ and Crennan J said (at [19]):

… in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.  …

14    As Weinberg J said in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 (at [23]):

Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved:  ICF Spry, The Principles of Equitable Remedies (6th ed, 2001) (‘Spry’) at 466.

15    As to the balance of convenience, the Court must assess and compare the prejudice likely to be suffered by each party if an injunction is granted with that which is likely to be suffered if one is not granted:  Lucisano v Westpac Banking Corporation [2015] FCA 243, Gordon J (at [7]).

16    In O’Neill Gummow and Hayne JJ said (at [65]), that an applicant for an interlocutory injunction must show a “sufficient likelihood” of success to justify the preservation of the status quo for the duration of the restraint. The sufficiency of the likelihood depends upon the nature of the rights the applicant asserts and the consequences that are likely to flow from the order:  see Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, Kitto, Taylor, Menzies and Owen JJ (at 622); Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238, Dowsett, Foster and Yates JJ (at [59]).

17    Thus, the two criteria of “serious question to be tried” and “balance of convenience” interrelate, and the extent to which it is appropriate to examine the merits of an applicant’s claim for relief will always depend on the circumstances of the case:  Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, Gleeson CJ (at [18]).

18    The present application is to be decided in circumstances where Mr Munkara has not given an undertaking as to damages. His reasons for not doing so need not be explored here. The absence of the undertaking means that the financial losses that would be suffered by Santos should the injunction be granted would not be compensable, in the event that Mr Munkara’s claim should ultimately fail. That circumstance is to be afforded significant weight in determining where the balance of convenience lies. In addition, the claim for injunctive relief is made at the eleventh hour, a circumstance that increases the losses that may be suffered by Santos as a consequence of the order sought. The reasons for the urgency will be considered later in these reasons. For now it is sufficient to state my acceptance that financial losses as a consequence of the Court’s order are significant. Inconvenience and delay associated with even a short term restraint on the pipeline laying activities are also a form of prejudice, especially given the history of dealings between the parties as outlined in the parties’ submissions.

19    Against that background it is necessary to give an overview of the statutory regime that governs the Barossa Project more generally and specifically Santos’ obligations in connection with the Pipeline EP.

The Act and Regulations

20    Regulation 3 sets out the objects of the Regulations. It states:

The object of these Regulations is to ensure that any petroleum activity or greenhouse gas activity carried out in an offshore area is:

(a)    carried out in a manner consistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act; and

(b)    carried out in a manner by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

(c)    carried out in a manner by which the environmental impacts and risks of the activity will be of an acceptable level.

21    Section 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (referred to in reg 3(a) above) sets out “principles of ecologically sustainable development”. They include:

(b)    if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)    the principle of inter-generational equity-that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

22    The word “environment” is defined in reg 4 to mean:

(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).

23    The expression “environmental impact” is defined to mean any change to the environment, whether adverse or beneficial, that wholly or partially results from an activity.

24    It is an offence for a titleholder to undertake an “activity” if there is no environment plan in force for the activity:  reg 6. It is also an offence for a titleholder to undertake an activity in a way that is contrary to an environment plan in force for the activity, or contrary to any limitation or condition applying to operations for the activity under the Regulations:  reg 7.

25    Regulation 8(1) creates an offence that assumes some significance in the proceeding. It provides:

Operations must not continue if new or increased environmental risk identified

(1)    A titleholder commits an offence if:

(a)    the titleholder undertakes an activity after the occurrence of:

(i)    any significant new environmental impact or risk arising from the activity; or

(ii)    any significant increase in an existing environmental impact or risk arising from the activity; and

(b)    the new impact or risk, or increase in the impact or risk, is not provided for in the environment plan in force for the activity.

26    The words “occurrence”, “significant”, “new” and “risk” are not defined.

27    Division 2.2 of Pt 2 of the Regulations establishes a scheme for the submission and acceptance of environment plans.

28    Before commencing an activity, the titleholder must submit an environment plan for the activity to NOPSEMA, defined as the “Regulator”:  reg 9. The criteria for an environment plan are set out in reg 10A. It provides:

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.

29    The Regulations confer functions and powers on NOPSEMA with respect to an environment plan submitted to it, including obligations of publication and a discretion to request the provision of further information. Regulation 10 relevantly provides that if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, the Regulator must accept the plan. If not reasonably satisfied, it must provide the titleholder with an opportunity to resubmit the environment plan, and then accept the resubmitted plan if satisfied that the criteria in reg 10A are fulfilled in respect of it.

30    For the purposes of reg 10A(g)(i), reg 11A imposes obligations of consultation on a titleholder in respect of the preparation of an environment plan. It provides:

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.

31    For the purposes of the preparation of the Pipeline EP presently in force, there is no dispute that Mr Munkara was a “relevant person” within the meaning of that provision, including because he is a person whose interests or activities may be affected by the activities to be carried out pursuant to it.

32    Division 2.3 of the Regulations prescribes the content of an environment plan. It contains the following requirements (reg 13):

Description of the environment

(2)    The environment plan must:

(a)    describe the existing environment that may be affected by the activity; and

(b)    include details of the particular relevant values and sensitivities (if any) of that environment.

…

Evaluation of environmental impacts and risks

(5)    The environment plan must include:

(a)    details of the environmental impacts and risks for the activity; and

(b)    an evaluation of all the impacts and risks, appropriate to the nature and scale of each impact or risk; and

(c)    details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level.

(6)    To avoid doubt, the evaluation mentioned in paragraph (5)(b) must evaluate all the environmental impacts and risks arising directly or indirectly from:

(a)    all operations of the activity; and

(b)    potential emergency conditions, whether resulting from accident or any other reason.

33    Division 2.4 of the Regulations is titled “Revision of an environment plan”. Regulation 17(6) provides:

New or increased environmental impact or risk

(6)    A titleholder must submit a proposed revision of the environment plan for an activity before, or as soon as practicable after:

(a)    the occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the environment plan in force for the activity; or

(b)    the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of:

(i)    a significant new environmental impact or risk; or

(ii)    a significant increase in an existing environmental impact or risk;

that is not provided for in the environment plan in force for the activity.

34    Regulation 18(1) provides that a titleholder must submit to NOPSEMA a proposed revision of the environment plan for an activity if NOPSEMA requests the titleholder to do so. Such a request must set out the matters to be addressed by the revision, the proposed date of effect of the revision and the grounds for the request:  reg 18(2).

35    Regulation 21 relevantly provides that regs 10, 10A and 11A apply to the proposed revision as they do to an environment plan. More specifically, in the preparation of a revised environment plan, the titleholder must undertake the consultations required under reg 11A and NOPSEMA must not accept the revised environment plan unless satisfied that the criteria relating to consultation are fulfilled:  Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158 (at [4]).

36    Regulation 22 provides:

Effect of non-acceptance of proposed revision

If a proposed revision is not accepted, the provisions of the environment plan in force for the activity existing immediately before the proposed revision was submitted remain in force, subject to the Act and these Regulations, (in particular, the provisions of Division 2.5), as if the revision had not been proposed.

37    Subject to procedural requirements, NOPSEMA may withdraw the acceptance of an environment plan if it has refused to accept a proposed revision of it:  reg 23(2)(c). NOPSEMA may also withdraw an environment plan if a titleholder has not complied with (relevantly) reg 17 or reg 18.

38    Section 574 of the Act confers upon NOPSEMA the discretion to issue a direction to a titleholder in relation to any matter in which regulations may be made. It is an offence to engage in conduct in breach of such a direction: Act, s 576(1).

Jurisdiction and Standing

39    On its terms, the originating application invokes the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). It confers original jurisdiction on this Court 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”.

40    The originating application does not invoke the Court’s supervisory jurisdiction to review any decision or conduct of NOPSEMA, nor is NOPSEMA joined as a respondent.

41    For present purposes Santos makes no submissions with respect to whether the qualification in s 39B(1A)(c) of the Judiciary Act with respect of criminal prosecutions “or any other criminal matter” applies, but reserves it position with respect to that issue. Its primary submission is that the Court does not have before it a “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act.

42    As Kiefel, Keane, Nettle and Gordon JJ observed in Palmer v Ayres (2017) 259 CLR 478:

26    A ‘matter’, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding – ‘controversies which might come before a Court of Justice’ (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a ‘single justiciable controversy’ must be capable of identification, but it is not capable of exhaustive definition. ‘What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’.

27    The requirement that, for there to be a ‘matter’, there must be an ‘immediate right, duty or liability to be established by the determination of the Court’ reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.

(original emphasis, footnotes omitted)

43    The existence of a “matter” cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability:  Abebe v Commonwealth (1999) 197 CLR 510, Gleeson CJ and McHugh J (at [32]). It is therefore necessary to have close regard to the relief sought in the proceeding:  Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443, Besanko, Charlesworth and O’Bryan JJ (at [148]).

44    There plainly exists a controversy between Mr Munkara and Santos. The subject matter of their dispute is whether Santos presently has a duty under reg 17(6) of the Regulations (a law of the Commonwealth) to submit a revised environment plan. That is the question that Mr Munkara asks the Court to determine. If it be the case that Santos presently has an immediate duty to submit a revised environment plan, then it would follow that Mr Munkara, as a “relevant person”, has a present right to be consulted in the course of its preparation. In addition, it is not disputed that as an Aboriginal man he has an interest of the kind that the Act and the Regulations are designed to protect, at least insofar as the Act is concerned with the protection of cultural heritage as an aspect of the environment. That aspect of his interest is not wholly protected by the creation of the criminal offence in reg 8 of the Regulations. The answer to the question arising under reg 17(6) has very real and immediate consequences both for Santos and for Mr Munkara:  cf Australia Bay Seafoods. There is nothing hypothetical about the question. I do not understand Santos to submit otherwise.

45    Rather, Santos’ position is that there can be no “matter” because the injunctive relief claimed on the originating application is not relief that the Court can grant, at least on Mr Munkara’s application. The present case, Santos submitted, must be distinguished from cases in which an application for judicial review has been made in respect of a decision of NOPSEMA, and in which orders are sought against titleholders to preserve the subject matter of the judicial review proceeding:  see for example Cooper.

46    Santos submitted that a person in the position of Mr Munkara may remonstrate to NOPSEMA for the exercise of its regulatory powers and then, if dissatisfied with the decision (or failure to make a decision as the case may be) he should commence an application for judicial review. It submitted that the present proceeding was “unorthodox” because Mr Munkara did not invoke the Court’s supervisory jurisdiction vis a vis NOPSEMA. It submitted that the suite of powers conferred on NOPSEMA were such as to give rise to an implication that it was for NOPSEMA to supervise the discharge by Santos of its obligations under the Act, and that Mr Mankara’s rights to sue were therefore confined.

47    Whilst reference was made to a provision of the Act which relates to injunctions (namely s 611J), the Court was not given an explanation as to how it should be construed, nor as to how it supported the implication contended for, whether alone or in conjunction with other provisions.

48    On the basis of the submissions and material presently before me, I am not satisfied that the Act and Regulations should be construed so as to preclude Mr Munkara from seeking a final injunction to secure the performance by Santos of a duty that Mr Munkara submits has arisen on the facts and the law. There are three reasons for that conclusion.

49    First, on its terms reg 17(6) imposes an obligation in either of the events referred to in paragraphs (a) or (b). Whether the obligation has arisen turns on an objective assessment that is not premised on the formation of a state of mind of NOPSEMA as the Regulator or any other person. There is no express provision conferring exclusively on NOPSEMA the power to determine whether Santos is presently in breach of the obligation. It is true that the Regulations make provision for NOPSEMA to make a request under reg 18. However, the circumstance that it has not done so does not mean that Santos is not presently in breach of any discrete obligation presently arising under reg 17(6). Similarly, NOPSEMA has the power to issue a direction to Santos under s 574 of the Act including in respect of matters concerned with the protection of Mr Munkara’s asserted interests and concerns. Indeed it has already done so, albeit not to the extent of requiring that Santos submit a revised Pipeline EP. I do not consider that the fact or scope of NOPSEMA’s power to issue a direction supports a construction that precludes a person in Mr Munkara’s position from seeking an injunction with a view to enforcing any obligation that arises under reg 17(6). To the extent that Santos submitted that the originating application involves an usurpation of NOPSEMA’s functions, I do not accept the submission.

50    Second, in the absence of an express provision precluding the grant of relief sought (should the obligation be proven), the Court should be slow to identify any such preclusion by way of implication, in light of the objects stated in reg 3. On the construction preferred by Santos, a “relevant person” who became aware that a titleholder was in breach of reg 17(6), would be limited to remonstrating his or her concern to NOPSEMA, no matter how imminent the threatened harm. He or she would be required to seek redress for non observance with the statute (and hence the protection of their relevant interest) by indirect rather than direct means. The objects of the Act tend against such a construction, because they are directed to the prevention of environmental harm.

51    Third, the structure of the environment plan regime is that a “relevant person” has a right to be consulted by the titleholder, not by NOPSEMA. In that respect the Act itself establishes an obligation and coextensive right as between the titleholder and the relevant person. It would frustrate the objects of the Regulations if the titleholder avoided the obligation to submit the revised environment plan and so avoided the consultation obligations under reg 11A by incorrectly concluding that the obligation had not been triggered. In that sense, the controversy is one that directly arises between Mr Munkara and Santos, and concerns rights and duties as between them. The circumstance that NOPSEMA may impose other consequences on a titleholder for non-compliance with reg 17 (including the withdrawal of acceptance of the environment plan) does not foreclose, by necessary implication or otherwise, other avenues of relief for (at least) persons who meet the description of relevant persons.

52    Santos drew the Court’s attention to the voluminous correspondence passing between Mr Munkara’s solicitors, Santos and NOPSEMA since December 2022 in which Mr Munkara asserted the very interest sought to be protected in this proceeding and urged NOPSEMA to exercise its powers, including its discretion under reg 18 to request Santos to submit a revised Pipeline EP. Those remonstrations may be relevant in the exercise of the Court’s discretion to grant relief on the present application. However, I do not consider they inform the question of jurisdiction and standing. The evidence goes no further than to demonstrate that Mr Munkara (correctly) comprehends that there may exist alternate legal avenues to achieve the same object.

53    Finally, it should be observed that the arguments as to the availability of relief are closely related to the question of standing. I accept that a real question arises as to the geographical extent of Mr Munkara’s “interests” as that word is employed in reg 11A of the Regulations. However, whether the claim for relief is cast too broadly depends on facts that cannot be substantively determined on an urgent application such as the present. The extent of his interests in the area affected by the pipeline is properly a matter for the trial judge. It is neither possible nor appropriate to substantively determine it as a preliminary issue.

54    As to the test for standing more generally, the best guidance is that given by Gibbs CJ in Onus v Alcoa of Australia Limited (1981) 149 CLR 27 (at 35 – 36):

The case is therefore one in which two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s.21 of the Relics Act. The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.

(footnotes omitted)

55    In the present case there can be no suggestion that Mr Munkara is abusing the processes of the law, nor that he is a busybody, crank, or actuated by malice. His concerns are not merely intellectual or emotional. He has a direct stake in the outcome of the proceeding. His interest in the underlying subject matter is beyond that of an ordinary member of the public. The same considerations affect my consideration as to whether there exists a matter arising under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act. For the purposes of considering the limited application before me, I proceed on the basis that there is such a matter and that the relief is of a kind for which Mr Munkara has standing to sue.

The imminent works

56    Before proceeding further it is necessary to identify with more precision the activities that would be undertaken by Santos between now and 13 November 2023 should an interim injunction not be granted. The reports in evidence describe the pipeline as commencing at a place referred to as K0, with each “kilometre point” southward along the pipeline defined by the letters KP and the distance in kilometres. The imminent works are to commence at KP86 and the laying of the pipeline will progress at a rate of three kilometres per day, with the result that as at 13 November 2023, the works will have reached KP121. Submissions on this application focused on tangible and intangible cultural heritage values in the vicinity of that area. As I have mentioned at the commencement of these reasons, the pipeline itself will embed in the sea bed at varying levels. Within the area KP86 – KP121, the settling depth is projected to be about 380mm or less. Mr Munkara and other deponents from the Tiwi Islands express concerns both as to the situation of the pipeline and as to disruption caused by the works themselves.

Evidence

57    There are three affidavits of Mr Munkara’s solicitor. The first affidavit gives a long chronology of events that have occurred since December 2022 through to the commencement of this proceeding, specifically dealings between the legal representatives of Mr Munkara, the legal representatives of Santos and NOPSEMA. To understand Santos’ arguments it is necessary to summarise some of that chronology.

58    On 22 December 2022, nearly two years after the acceptance of the Pipeline EP, Mr Munkara’s solicitor received a briefing paper titled “Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route”. The report was prepared by a marine geoscientist Professor Mick O’Leary, marine archaeologist Professor Jonathan Benjamin, Australian archaeologist Dr Daryl Wesley and anthropologist Professor Amanda Kearney. The four authors had conducted a desktop review of the archaeological potential of the sea bed. They collectively expressed concerns that the construction of the pipeline may impact on what are known as “features” that may be situated there.

59    Earlier in 2022, the Full Court of this Court delivered judgment in Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124. The Full Court upheld conclusions of the primary judge that the Tiwi applicants had a traditional connection to at least part of the sea in an area that may be affected by the titleholder’s activities, and that those interests were immediate and direct. Mr Munkara submits that the judgment in Tipakalippa and the briefing paper reflect a “new” and evolving understanding of the nature of Indigenous connection to the sea, including the sea bed.

60    After receiving the briefing paper, Mr Munkara’s solicitors wrote to NOPSEMA, drawing its attention to the paper and to the Full Court’s judgment in Tipakalippa urging it to exercise its powers to protect the interests of the Tiwi Islander people in respect of their cultural heritage in the whole of the area affected by the pipeline.

61    In the context described below, Mr Munkara has subsequently commissioned expert reports from Professor O’Leary and from an anthropologist, Mr Gareth Lewis.

62    On 15 January 2023, NOPSEMA issued the direction to Santos and another joint venturer under s 574 of the Act, in the following terms:

Schedule 1

Direction 1

The registered holders must notify NOPSEMA of any future activities covered by the Barossa Gas Export Pipeline Installation Environment Plan (EP) that are to commence at least 10 days before the activity commences.

Direction 2

The registered holders must undertake and complete an assessment to identify any underwater cultural heritage places along the Barossa pipeline route (Pipeline Route) to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections that may be affected by the future activities covered by the EP (the assessment), as follows:

a)    The assessment is to be undertaken by suitably qualified and independent experts with relevant experience and research credentials (experts).

b)    In undertaking the assessment, the experts must:

i. obtain information from people and /or organisations who have, in accordance with Indigenous tradition, spiritual and cultural connections to any underwater cultural heritage places along the Pipeline route that may be affected by the activities; and

ii.    record and have regard to the information obtained.

c)    The assessment must be recorded in a report that is to be provided on completion to:

i.    people and/or organisations who provided information under paragraph (b)(i) above;

and

ii.    NOPSEMA.

Direction 3

Following the completion of the assessment required by Direction 2, if any underwater cultural heritage places along the Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections are identified that may be affected by future activities covered by the EP, the registered holders must update the EP. This must include relevant content as required under regulation 13 and regulation 14 of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Environment Regulations), including details and evaluation of impacts and risks (the evaluation) of future activities, including:

a.    the methods and results of the evaluation on any identified underwater cultural heritage places along the Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections identified in undertaking Direction 2;

b.    details of the control measures (if any) adopted to demonstrate that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable (ALARP) and be of acceptable levels;

c.    a description of any other legislative requirements that apply to the activity and a demonstration of how those will be met; and

d.    how any information obtained from people and / or organisations who provided information under paragraph 2(b)(i) above, has been taken into account in the evaluation, and in determining control measures.

Direction 4

The registered holders must submit progress reports to NOPSEMA detailing progress in undertaking the actions required by Directions 2 and 3 every 7 days from the date of this Direction, until those Directions have been met.

(footnotes omitted)

63    For the purpose of the assessment required to be undertaken by Direction 2, Santos commissioned its own reports, including an archaeological report produced by Wessex Archaeology (together with recommendations) (Wessex Report), two reports from geoscientist Dr Henry Posamentier and a report from anthropologist Dr Brendan Corrigan.

64    Since December 2022 Mr Munkara, through his solicitor, has been in regular correspondence with Santos, for the most part challenging the methodology of Dr Corrigan and specifically asserting which clans of the Tiwi Islander people have particular interests in the sea country where the pipeline is to be situated and who among them has authority to speak for that sea country in accordance with Tiwi Islander traditional law and custom. It remains Mr Munkara’s view that Santos has not complied with the direction, including because of shortcomings in the consultation process, but that is not the principal concern of this proceeding.

65    In recent weeks, the correspondence from Mr Munkara’s solicitor has increased in its urgency, characterised by demands for undertakings and information, including demands for copies of the Wessex report and information about the timing of the pipeline works.

66    At the same time, Mr Munkara has continued to remonstrate with NOPSEMA. He has sought information and undertakings concerning the exercise or proposed exercise of its powers in connection with the Direction, including by asserting that he should be heard before NOPSEMA forms any view about whether Santos has complied with it. He repeatedly asked NOPSEMA to share information about when works on the pipeline would commence. NOPSEMA has in large part declined those requests or demands and in some instances it has told Mr Munkara that his concerns should be raised with Santos and not NOPSEMA as the Regulator. It has stated that the exercise of its powers is for it to decide, and has not given any indication as to whether it will exercise its powers under reg 18 to request that Santos submit a revised environment plan. In this judgment I should not be understood to express any view on the exercise of NOPSEMA’s powers, other than to say that the evidence before me tends to support a finding that NOPSEMA has formed a view that Santos has complied with the direction and hence with its obligations under reg 17(6).

67    As I have mentioned earlier, whether or not Santos has complied does not depend on NOPSEMA’s state of satisfaction as to whether there is compliance. It is an objective assessment, not a subjective one. For present purposes, little turns on any view NOPSEMA might have formed with respect to the issue, rightly or wrongly. Whilst respect is to be afforded to the view of the Regulator, it is not at all apparent that NOPSEMA has based any decision on information directly presented to it by Mr Munkara.

68    Mr Munkara’s solicitor’s first affidavit attaches statements of Tiwi Islanders, summarised later in these reasons. The statements refer to different aspects of traditional law and custom, both tangible and intangible. There is a persistent theme in the statements of the spiritual significance of two travelling creation beings, Ampitji and the Crocodile Man. Other evidence concerns the broader spiritual conceptualisation of sea country and its significance to Tiwi Islander identity. The spiritual interests are of the same or similar kind as those referred to by the Full Court in Tipakalippa. There is no dispute that any impact or risk of impact on those interests are encompassed within the statutory definition of environment and environmental impact, notwithstanding that they are not associated with physical relics or specific locations, such as sacred sites.

69    In relation to tangible cultural heritage, the report of Dr Corrigan refers to a difference of views among geoscientists on some topics relating to archaeological potential in the sea bed and the likelihood of human artefacts having survived the erosional, dispositional and carbonation forces of the ocean.

70    In relation to intangible cultural heritage, Dr Corrigan identified the spiritual significance to Tiwi Islanders of the travels of the Crocodile Man, but observed that there is considerable disagreement among the Tiwi Islanders as to the impact of the pipeline on that aspect of their cultural heritage. He repeatedly states that there is a divergence of views among Tiwi Islanders themselves about the existence and significance of cultural heritage values that might be impacted.

71    Dr Corrigan goes on to state (at [177(b)]):

…  In addition, as mentioned routinely to informants who have participated with my research, while sacred sites (as defined for example in the Northern Territory Sacred Sites Act 1989 (NT)) are automatically protected in the Northern Territory, there is a long history of it being notoriously difficult to arrange any protection for the known travels of associated spiritual beings (even where the details of such travels are universally agreed upon by relevant Aboriginal parties).

72    Dr Corrigan draws the following conclusions about the “location of mother Ampiji”.

c.    The location of mother Ampitji. Whilst the significance and existence of this place is clearly not agreed by all relevant parties it is also specifically identified by Dr O’Leary as being outside the proposed construction corridor of the proposed GEP.

d.    The travels of Ampitji. The constant theme in relation to Ampitji that arises from my interviews with the Tiwi Islanders, is that Ampitji travel within the waterholes of the island and surrounding the Tiwis, protecting the Tiwi Islanders. While there are no specific underwater cultural heritage places that have been identified in relation to Ampitji along the GEP corridor, I accept that Ampitji is known to exist in the sea country surrounding the Tiwi Islands, by some Tiwi Islanders. I also note that the existence of Ampitji in the sea is rejected by some Tiwi Islanders as is the proposition that (it/he/she) would be affected by the laying of a gas pipeline on the seafloor.

(emphasis added)

73    Dr Corrigan does not otherwise report on the extent of sea country in which Ampitji is known to reside or travel.

74    Dr Corrigan made recommendations which he said were “derived from Indigenous feedback” as follows (at [178]):

a.    A number of senior and authoritative informants proposed that one culturally appropriate step to take in the instance of proceeding with the GEP is to have suitable Tiwi Islanders accompany the construction crew and undertake an introduction of them to the seas and spiritual entities thereof. Other Tiwi Islanders say that this would be inappropriate, but my overriding sense of their objection is that it is to the project in general.

b.    A related proposal is that Santos employ a number of Tiwi Islanders to accompany the construction crew at all times as indigenous monitors, so as to ensure a culturally appropriate figure was present, at all times, for spiritual protection of all concerned.

c.    A proposal that was often put forward was that there be concrete development of economic strategies where Santos could valuably assist community aspirations.

d.    A proposal put forward strenuously at my presentation of this research on 24 August 2023 at Pirli by [redacted] and some clients of the EDO was that Santos should support further archaeological explorations and specifically, diving based strategies. To this end, I refer to the discussion above on Wessex and Dr Posamentier’s reports. While I support an examination of any helpful progression of this proposal, I note that the Wessex and Dr Posamentier reports highlight the likely lack of specific archaeological targets or of finding artefacts in an in situ condition.

75    Dr Corrigan’s report was submitted to NOPSEMA on 25 September 2023. Whilst a copy was provided to Mr Munkara’s solicitors, Santos at first refused to provide Mr Munkara with copies of the other reports to which Dr Corrigan had referred in the preparation of his opinion. Mr Munkara was not provided with a copy of the Wessex Report and the report of Dr Posamentier until the evening of Friday, 13 October 2023.

76    Santos relied on the affidavit of Mr Marcel John (Beau) Deleuil. Mr Deleuil refers (at [39] and [40]) to internal processes within Santos for the consideration of information. He states that there are existing internal processes to consider information and documents pertaining to potential environmental impacts or risks of Santos’ activities, and that the information considered in accordance with that process included all of the reports to which I have referred in these reasons. Mr Deleuil goes on to say (at [40]):

I am informed by John Sarto, General Manager Offshore Approvals, that:

(a)    The internal process was undertaken to determine whether any information contained within the documents referenced above constituted a new or increased environmental risk or impact. I am informed that this process is standard procedure for all Environmental Plans.

(b)    The result of the process was that Santos concluded that there was no occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the EP.

(c)    Following the process, Santos has adopted a number of cultural heritage control measures. These control measures include implementing a process to address unexpected cultural heritage finds throughout the pipelaying process. As part of this, I am instructed that Santos has created positions for appropriate Tiwi personal to be onboard the pipe-laying vessel to monitor and supplement the process.

77    On the basis of that evidence I find that Santos has sought to implement at least some, if not all, of the recommendations made by Dr Corrigan in his report.

78    The second affidavit of Mr Munkara’s solicitor annexes affidavits constituting the evidence-in-chief of lay Aboriginal people who gave evidence at the trial of the proceeding culminating in the Full Court judgment in Tipakalippa. Those affidavits are relevant to the extent that they contain information about the content of traditional law and custom as it relates to the sea and the sea bed. They support a conclusion that Mr Munkara’s concerns are founded in that tradition, and so qualify as interests relating to the environment, as broadly defined in the Regulations. I do not understand that issue to be in dispute. I otherwise afford those affidavits little weight because they were not prepared in the factual context of the present proceeding. To the extent that they shed some light on the asserted extent of Tiwi sea country more generally, that is a subject matter dealt with directly in the statements annexed to the first affidavit of Mr Munkara’s solicitor going to the same subject matter.

79    The current Pipeline EP is in evidence. The Court was taken to parts of the plan that concern Aboriginal cultural heritage. To the extent that Santos submitted that the Pipeline EP covers the subject matter of Mr Munkara’s concerns I reject the submission, at least for the purposes of the present application. Counsel for Santos acknowledged (properly) that to the extent that Santos’ own expert Dr Corrigan accepted the significance of the Ampitji dreaming in the coastal waters surrounding the Tiwi Islands, the risk of harm to that dreaming is not the subject of risk presently identified in the Pipeline EP. Nor is there any reference in the Pipeline EP to the risk of harm to the asserted spiritual associations with sea country more generally, nor does the Pipeline EP address any risks of harm to cultural heritage associated with the travelling path of the Crocodile Man. Santos does not dispute that interests of the kind asserted are interests related to environmental impacts for the purpose of reg 17(6). The issues in dispute are more confined, and they involve both questions of fact and law.

80    Santos’ position is that against the factual background just described three questions arise:

(1)    has there been an “occurrence” within the meaning of reg 17?;

(2)    to the extent that there is an environmental impact or risk is it “significant”? and

(3)    to the extent that there is a significant environmental impact or risk is it “new”?

81    One or more of those questions may involve a question of the proper construction of the undefined expressions in reg 17(6). It is not necessary to articulate those questions of law here. The circumstance that there is a dispute about the proper construction of the regulation does not assist Santos on the present application. It simply means that there is a serious question to be tried with respect to the meaning of reg 17 and its application to the facts.

82    There appear to be a multitude of factual issues in dispute.

83    Before the Court are statements from five Tiwi Islanders from the Jikilaruwu, Malawu and Munupi clans.

84    For Santos it was submitted that the statements should be approached with caution because the statements do not make clear what information the witnesses have been provided with including about the nature of the pipeline laying works. Whilst there is some strength in that submission, questions affecting the weight that may be afforded to the testimony of a witness at trial is not my present concern. The criticisms of Santos with respect to the quality of the evidence are not of a kind that would require a conclusion that the claims are not bona fide nor a conclusion Mr Munkara’s originating application does not enjoy sufficient prospects of success.

85    The statements of the Aboriginal witnesses contain expressions of spiritual beliefs and the significance of those beliefs within their own cultural system. It is not the task of this Court on the present application (or at all) to make findings as to whether the asserted beliefs are objectively true. The legislative framework defines the word “environment” in very broad terms, so as to encompass (for example) the social and cultural features of (for example), locations, places and areas. The cultural features and their significance are to be identified from an Aboriginal perspective, and the evidence contained in the statements go directly to that topic. The witnesses express beliefs about the significance of the sea more generally, as well as more specific beliefs about the location of songlines. Each of the witnesses describe the importance of stories relating to Ampitji and Crocodile Man. Among other things, they express their cultural beliefs about the spiritual consequences of disturbing those beings. Some of the witnesses also express concerns about impacts upon the natural environment. In some respect their concerns about risks to the natural environment may already be provided for in the Pipeline EP. In other respects, however, they refer to social and cultural impacts that are not presently included, specifically the asserted impact upon their spiritual connection to sea country resulting from the severance or disturbance of their songlines relating to Ampitji and Crocodile Man. Their evidence is to the collective effect that they fear an irreparable impact on their cultural heritage, including by reference to asserted traditional responsibilities to protect the sea from harm.

86    As to tangible cultural heritage, Mr Munkara states:

34.    I have been informed by my lawyer that a company called Wessex found 163 sites of archaeological potential where the pipeline is going, and nearby. This is important cultural heritage for us. I think it is important for the Jikilaruwu clan to have the opportunity to look at and learn about these sites and identify them and talk about cultural stories that could relate to them.

35.    If Santos just go ahead, then they are disrespecting us.

36.    I am worried that the pipelay could cause damage to the seafloor, and our cultural heritage because it involves laying pipeline, including laying concrete blocks across areas where our physical cultural heritage is and could be. I am also worried about damage to the seafloor from moving the sand and seafloor around. I am worried about the pipelay boats, the chemicals, and risk of spills.

87    Santos submitted that these passages indicate that Mr Munkara has not personally read the Wessex Report and so has not properly understood its context and content. There is force in that submission and I have taken it into account in assessing whether there is a question to be tried sufficient to justify the interim relief that is presently sought.

88    In assessing the sufficiency of Mr Munkara’s case to justify the relief sought, I place weight on the background to which I have referred and particularly on NOPSEMA’s supervision of Santos’ compliance with the Direction. As I have said earlier, it may be inferred that it is NOPSEMA’s view that Santos has not breached, and is not presently in breach of reg 17(6). The formation of that view would, of course, depend on the information that was before NOPSEMA. It has declined to hear directly from Mr Munkara, despite his requests that he be heard on the closely related question of Santos’ compliance with the Direction. With that qualification, the Court affords some respect to the views of the Regulator. However, as I have said, the statutory scheme is such that Parliament has not cast Santos’ obligation in terms depending on any state of satisfaction on NOPSEMA’s part. Whether there is compliance with reg 17(6) is a mixed question of law and objective fact.

89    In addition, the fact of disagreement between experts about the existence, nature, degree and location of environmental risks in and of itself does not preclude a conclusion that the objective conditions giving rise to the obligation exist. To the extent that Santos relies on Dr Corrigan’s observation that there is no universal agreement between Tiwi Islanders about the existence and significance of the risks, for present purposes I place little weight on the fact that there exists some debate.

90    A real question arises as to the degree of precision with which a risk may be capable of being articulated or its significance measured by a titleholder in Santos’ position before the obligation under reg 17(6) is triggered.

91    Dr Corrigan may be wrong in his view that universal acceptance is important or necessary. That too is a matter in dispute. On the material before me I am not satisfied that the content of traditional law and custom depends upon a majority view of all Tiwi Islanders irrespective of the location of their estate groups or the authority.

92    Furthermore, to the extent that Dr Corrigan referred to the inherent difficulty in devising ways to avoid or minimise harm, my preliminary view is that that is an irrelevant consideration in determining whether an obligation under reg 17(6) is enlivened. The purpose of reg 17(6) is to put in train a procedure by which the persons affected by the impact are consulted with respect to mitigating measures in accordance with reg 11A. As the Full Court said in Tipakalippa (at [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.

93    Whether a revised environment plan meets the statutory criteria, including in respect of the sufficiency of protection, is a matter for NOPSEMA to decide. The present application does not usurp any part of NOPSEMA’s functions in that regard.

94    I place significant weight on the evidence of Mr Deleuil to the effect that Santos has implemented recommendations in the report of Dr Corrigan to the extent that they relate to tangible archaeological artefacts. However, to my mind, the fact that the recommendations were made supports a conclusion that there is a serious question to be tried as to the existence of risks of significant impact for which no provision is presently made in the Pipeline EP.

95    As I have mentioned, Santos acknowledged Dr Corrigan’s acceptance of the significance of Ampitji in coastal waters around the Tiwi Islands. I have already observed that there is no provision in the Pipeline EP with respect to the risk of impacts upon intangible cultural heritage related to Ampitji and the Crocodile Man. There appears to be no recommendation made by Dr Corrigan with respect to what is to be done about that. More importantly, the legislative regime is such that the question of how such a risk may be mitigated, if at all, is not for Santos to determine unilaterally. If a risk encompassed by reg 17(6) exists in fact, the Regulations mandate a procedure by which relevant persons are to be consulted in respect of a revised environment plan and a procedure by which NOPSEMA may then consider it. The regime does not envisage that a titleholder in Santos’ position may manage any “new” risk as it thinks fit, no matter how well intentioned the titleholder may be.

96    I have had regard to the quality of the evidence that the applicant has put before the Court thus far. Santos has made submissions as to the weight that should be afforded to it. Much of the evidence is in the nature of hearsay, some of which would be admissible at a trial under s 72 of the Evidence Act 1995 (Cth) to the extent that it relates to the content of Aboriginal traditional law and custom. It may also be observed that the evidence is in part expressed at a high level of generality, especially in relation to Aboriginal conceptualisation of sea country and its geographical reach. At trial, the evidence of the lay witnesses may ordinarily be approached with some understanding of Aboriginal cultural norms, which are also referred to in the material. That includes an apparent disinclination to speak in terms of boundaries as western lawyers tend to do.

97    The Court is nonetheless concerned with the proper application of the legislative regime to matters concerning Aboriginal traditional law and custom, and it is necessary to have close regard to the asserted risk of impact in the particular location at which the imminent works will proceed, namely between KP86 and KP121.

98    To that end, Santos relied on a map contained in a report of Professor O’Leary which, it submitted, represented the highest point of Mr Munkara’s case. The map is said to identify the location of the Ampitji dreaming in an area further west of the pipeline route, that is, on the further side of the pipeline route from the Tiwi Islands. However, in my view the location referred to in that part of the report should be understood as the resting place of Ampitji and not the wider region of its travel. Dr Corrigan himself refers to there being a difference between the two concepts. In addition, it does not accord with the statements of the proposed witnesses in Mr Munkara’s case to confine the area affected in relation to the Ampitji dreaming to the limited region referred to in the report of Professor O’Leary. To the extent that Santos submitted that the map contained in the report of Professor O’Leary represented the high point of Mr Munkara’s case with respect to the extent (in geographical terms) of the asserted interests, I reject the submission. Mr Munkara’s case is not so confined. At its highest, his case is that the conceptualisation of Tiwi Island sea country has no bounds. How that conceptualisation is to be properly understood, and whether it is in fact limited in a geographical sense, forms some part of the question to be tried. For present purposes, I proceed on the basis that the asserted sea country does not extend, for example, to the coast off Western Australia. There is a boundary to it, but it is not necessary for present purposes to identify that boundary with precision.

99    I am satisfied that there is a serious question to be tried to the extent that it is asserted that the sea country extends at least to the point of the commencement of works with which I am presently concerned, between KP86 and KP121. The point at KP121 is about 40 kilometres from the nearest coast of the Tiwi Islands. Whatever be the outermost extent of Tiwi sea country, there exists a serious question to be tried as to whether the imminent works involve a risk of “environmental impact” that is “new” as asserted by Mr Munkara. I reach that conclusion on the basis of the lay evidence, irrespective of any opinion expressed in the expert reports.

100    I consider it unnecessary to resolve any residual submission of Santos that the expert reports are inadmissible because of non-compliance with procedural rules in connection with them, or that their use should be limited under s 136 of the Evidence Act. Non-compliance with procedural requirements for an expert report is not necessarily to be regarded as affecting admissibility, rather than weight.

101    In any event, for present purposes I approach the evidence before me as an indication of the kind of evidence intended to be adduced by Mr Munkara at trial, but it is not to be assumed that his evidence is presently in the form that it will take at the time of the trial proper. That is not unusual at all in the context of an urgent application for injunctive relief. Criticism of the quality of the evidence contained in the statements is to be considered in light of the urgency of the application. The Court does not have before it the whole of Mr Munkara’s evidentiary case.

102    For certainty, I have not read Tipakalippa for the purposes of making any factual findings with respect to the issues that presently arise.

103    Much of what I have said thus far relates to intangible aspects of the asserted cultural heritage. I consider that those issues in and of themselves give rise to a serious question to be tried in the relevant area, without regard to the tangible aspects of cultural heritage referred to in the evidence.

104    With respect to tangible cultural heritage, Santos relies upon the report of Dr Corrigan and on the anticipated depth of settlement of the pipeline referred to earlier in these reasons. For present purposes, I accept Santos’ evidence that the environmental impact is not significant with respect to the depth of embedment. I proceed on the basis that the pipeline itself does not exceed a metre in diameter between K86 and K121. That too is relevant to the assessment of the significance of the impact, as is evidence about the number of “features” in that area. In addition, there is a dispute among experts about the likelihood that there exist tangible artefacts on the sea bed. For present purposes, it is not necessary to resolve that issue. It is sufficient to observe that the strength of Mr Munkara’s case with respect to tangible cultural heritage appears to be weaker than his case founded on interests that are more intangible in their nature.

105    Mr Munkara claims that he has not yet had a proper opportunity to consider the opinions contained in the Wessex Report. His case is that he is entitled to be consulted with respect to it and to make submissions about the risk to Tiwi Islander cultural heritage by reference to it. My preliminary view is that it appears doubtful that those claims, in and of themselves, could support a conclusion that Santos has a present obligation to prepare a revised environment plan. However, it does not detract from my conclusion that there exists a serious question to be tried in any event with respect to intangible cultural heritage values.

106    The circumstance that it might be difficult to articulate and assess a risk in a revised environment plan does not mean that no obligation under reg 17(6) can arise. As the Full Court said in Tipakalippa, a proper conceptualisation of the risk may not be possible until the obligations under reg 11A are complied with. It may be prudent for a titleholder to be open to information provided by a person in Mr Munkara’s position in identifying whether there exists a risk.

107    In summary, real questions of fact and law arise as to whether there presently exists an environmental impact or risk, whether it is significant and whether it is new. For the purpose of the grant of interim relief, they are sufficiently serious questions having regard to the limited relief sought.

Balance of convenience

108    At present, Mr Munkara seeks a short term cessation of the works, commencing from today and continuing for about 10 days.

Prejudice to Santos

109    The extent of Santos’ financial losses as a consequence of an injunction depends to some extent on whether a 10 day delay in the commencement of the works may create a situation where Santos’ contractor loses access to the Primary Installation Vessel which in due course must be deployed elsewhere.

110    Mr Deleuil deposes that if Santos is required to move the installation of the pipeline window to (for example) 2025, it may incur further project costs between USD 452,000,000.00 and USD 707,000,000. Those costs include a figure of USD 150,000,000.00 for the transportation and installation of the pipeline. He deposes that if Santos is required to issue a notice of suspension as a result of an injunction it would incur the following costs under the terms of a contract it has with the contractor:

(1)    standby costs of approximately USD 1,018,500.00 per day;

(2)    fuel rise and fall costs of approximately USD 13,000.00 per day;

(3)    remobilisation costs, which are not yet able to be calculated; and

(4)    remobilisation costs if the contractor could resume the work within the suspension period.

111    On the material before me I am not satisfied that the grant of short term relief would result in the pipelay works being deferred to 2025, nor am I satisfied that the short term relief that is presently sought would be such as to render the pipelay program impossible. If anything, it might delay the finalisation of the pipelay, perhaps by an equivalent period of time. I nonetheless accept that there are significant holding costs with respect to the disruption of works, even for that short period of time.

112    On any view, the injunction would have a significant financial impact, and, as I have mentioned earlier, should Mr Munkara’s claim succeed, that financial loss would not be compensable. I afford that circumstance significant weight.

113    Weighing against that is the circumstance that Santos is presently conducting its operations in the Timor Sea, not because of a private right enjoyed by all citizens but because of a right that is conferred by the very statutory regime that gives rise to the obligation that is presently under consideration. It is reasonable to expect that in the conduct of its business operations, Santos would accommodate financial risks related to the supervision of its compliance with that regime, not only in connection with the exercise of NOPSEMA’s powers but also in connection with the jurisdiction of this Court under s 39B(1A)(c) of the Judiciary Act to determine controversies arising under the relevant law.

The relevance of timing

114    I have had regard to the very short proximity of the commencement of this proceeding with the start date of the works. On the material before me, I am satisfied that Mr Munkara, by his solicitors, knew from about 4 October 2023 that it was Santos’ intention to commence the works at the end of October or early November.

115    However, as I have said, his solicitors did not obtain the Wessex Report from Santos until 13 October 2023. Over that same period, Mr Munkara, was making urgent enquiries of NOPSEMA as to whether it would exercise its powers under reg 18 and whether or not he could be heard before NOPSEMA made any decision about whether or not Santos had complied with the direction issued under s 574 of the Act. It happened that in the chronology of time, all of those events were occurring in close proximity to the time at which Santos intended to conduct the works.

116    Counsel for Santos submitted that there was a strategic element to the timing of this application but disavowed any use of the word “tactic”. I am unsure what is meant by the word “strategic”. To the extent that it was submitted that the fact and timing of this action is a deliberate attempt to frustrate and delay the works on the pipeline for an improper purpose or without proper grounds, I reject the submission.

117    It nonetheless remains that the proximity of this application for urgent relief to the commencement of the works involves considerable operational inconvenience to Santos and associated holding costs of some significance.

118    I consider that it was open to Santos to choose to provide more information to Mr Munkara at an earlier time, whether or not it was legally obliged to do so. A consequence of providing the Wessex Report to Mr Munkara on 13 October 2023 (rather than in response to his earlier repeated requests) is that Mr Munkara commenced this proceeding closer to the works commencement date.

119    In addition, I find that from at least 24 October 2023, Santos was in possession of sufficient information to anticipate and predict that this proceeding would be commenced and the form of relief that would be sought.

120    It was not unreasonable for Mr Munkara to await confirmation from NOPSEMA as to whether or not it would take steps under reg 18, that might have achieved the same outcome, before commencing this action.

Prejudice to Mr Munkara

121    In respect of the loss and damage that will be suffered by Mr Munkara, authorities of this Court have previously made remarks about the unique nature of the interests that are in issue:  Tipakalippa (at [68]). I am satisfied that if the works were to continue and if Santos is, indeed, in breach of its obligation under reg 17(6), that there would be irreparable harm to Mr Munkara as the named applicant.

122    The interests that Mr Munkara is asserting in this proceeding are so closely aligned to the objects of the Act that they ought to be given very great weight in determining where the balance of convenience lies. There is a public interest in titleholders complying with their obligations.

123    The trial of the proceeding is one that I anticipate can be brought forward on an expedited basis, and I have regard to assurances from Mr Munkara’s solicitor that they can proceed to trial within a very short timeframe. The Court can modify its own procedures and make orders for expedition, should the application for injunctive relief continue for a later time, but all of that is for consideration at a later time. For present purposes I am satisfied that Mr Munkara’s claims are bona fide and I note his commitment to expedition more generally.

124    I am otherwise satisfied that the criterion for the interim short term relief is satisfied, including because there is a sufficient likelihood of success to justify the grant of relief that is presently sought.

125    The Court’s orders will be as follows:

(1)    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the respondent is restrained from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020) until 5.00pm on 13 November 2023.

(2)    There be a further case management hearing at 11.00am (AEDT) on 3 November 2023, the parties have leave to attend by way of web conference link.

Associate:

Dated:    2 November 2023