FEDERAL COURT OF AUSTRALIA

Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

2.    The order with injunction granted on 15 November 2023 is discharged.

3.    Subject to these orders, the applicants are to pay the respondent’s costs, such costs to be assessed by a Registrar of the Court on a lump sum basis.

4.    Any application to vary or substitute the order in paragraph 3 is to be filed and served on or before 29 January 2024, such application to be accompanied by:

(a)    an affidavit in support; and

(b)    written submissions not exceeding five pages.

5.    In the event that an application is filed and served in accordance with paragraph 4, on or before 14 February 2024 the person served is, if so advised, to file and serve:

(a)    an affidavit in opposition; and

(b)    written submissions not exceeding five pages.

6.    In the event that an application is filed and served in accordance with paragraph 4, the application is to be set down for hearing on a date to be fixed, not before 19 February 2024.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

PART I

INTRODUCTION

1    The applicants, Simon Munkara, Carol Puruntatameri and Maria Purtaninga Tipuamantumirri are Aboriginal people from the Tiwi Islands. They assert that they have cultural and spiritual connections to the sea forming part of their clan country.

2    The Tiwi Islands are located about 80km north of Darwin in the Timor and Arafura Seas. Parts of those waters are offshore areas within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Act establishes a regulatory framework for petroleum exploration and recovery in offshore areas extending seaward to the outer limits of the continental shelf.

3    The respondent, Santos NA Barossa Pty Ltd ACN 109 974 932 is the proponent of a project for the extraction and export of gas from the Bonaparte Basin in the Timor Sea, known as the Barossa Project. It is the holder of a number of licences issued under the Act authorising certain activities for the construction of infrastructure for the extraction and conveyance of gas in offshore areas. One of those activities involves the construction of a 262km gas export pipeline (referred to at times as the GEP), commencing in the Barossa Field and joining the existing Bayu-Undan pipeline in the south. The pipeline route passes to the west of the Tiwi Islands, past Cape Helvetius and within 7km of Cape Fourcroy. When completed, the pipeline will be used to supply gas to a liquified natural gas processing plant in Darwin.

4    The applicants alleged that there is a risk that the construction of the pipeline, and its existence on the sea bed, will significantly impact their cultural heritage.

5    The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (2023 Regulations) came into force on 10 January 2024, less than a week before the publication of these reasons. They repealed and substituted the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to which the parties referred throughout the proceedings. The provisions of the now repealed Regulations have been re-numbered or organised differently in the 2023 Regulations, but in substance they are left unchanged. An explanatory memorandum to the 2023 Regulations confirms that changes in language are not intended to alter the meaning of the law as previously in force. In these reasons I will refer to the Regulations as numbered and in force when this action commenced, as they are relevantly unchanged by the 2023 Regulations. Neither party has suggested that the outcome would differ under the law now in force and I am independently satisfied that is so.

6    The Regulations establish a regime for the preparation by a titleholder of an environment plan for an “activity”, and acceptance of the environment plan by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). On 9 March 2020 NOPSEMA accepted an environment plan relating to the construction of the pipeline, titled “Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020)” (Pipeline EP). That is the environment plan that is “in force for the activity” for the purposes of reg 17(6) of the Regulations. It 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.

7    Regulation 8 provides that a titleholder commits an offence if the titleholder undertakes an activity after the occurrence of (relevantly) any significant new environmental impact or risk arising from the activity which is not provided for in the environment plan in force for the activity.

8    Multiple questions of construction arise, including the intended meaning of the words “occurrence”, “significant”, “new” and “risk”, which are not defined in the Regulations. As will be explained later in these reasons, the word “environment” is broadly defined in the Regulations to include (among other things) “cultural features” of places, locations, areas and ecosystems. The phrase “cultural features” is not defined.

The applicants’ case

9    The first applicant, Simon Munkara, commenced this action on 30 October 2023, two days before works for the construction of the pipeline were then scheduled to commence. Carol Puruntatameri and Maria Tipuamantumirri were later joined as the second and third applicants. The applicants are respectively members of the Jikilaruwu, Munupi and Malawu clan groups.

10    The applicants alleged that Santos presently has an obligation under reg 17(6) to submit a revised environment plan, that obligation having been triggered by an “occurrence”. They alleged that the construction of the pipeline gives rise to a significant new environmental impact or risk, or a significant increase in an existing environmental impact or risk, that is not provided for in the Pipeline EP, within the meaning of reg 17(6). They alleged that commencement of the works for the construction of the pipeline would constitute an offence under reg 8.

11    Numerous risks were relied upon, referred to at trial as relating to both “intangible cultural heritage” and “tangible cultural heritage”.

12    The case concerning intangible cultural heritage was based in part on two Dreaming stories said to form a part of the applicants’ cultural life relating to two ancestral or spiritual beings:  a rainbow serpent or serpents known as Ampiji, and the Crocodile Man, known as Jirakupai.

13    There are two aspects to the intangible cultural heritage case.

14    The first aspect is one founded on ancient oral tradition, involving song lines told by certain clans of the Tiwi Islanders both in words and in their songs, dances and ceremonies over many generations. Reduced to its briefest expression, the allegation is that:

(1)    There are one or more rainbow serpents named Ampiji, one of which resides in Lake Mungatuwu, a freshwater lake in the south west of Bathurst Island. Ampiji is a caretaker of the land and the sea. She patrols the coastline around the Tiwi Islands and also travels into the deep sea and thus into the vicinity of the pipeline. The risk arising from the activity was alleged to include a fear that the construction and presence of the pipeline would disturb Ampiji and that she may cause calamities, such as cyclones or illness that would harm (at least) the people of certain clans. The applicants allege that the pipeline will thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to areas of sea country through which the pipeline will pass.

(2)    The Crocodile Man song line is connected with a place in the sea in the vicinity of the pipeline. The applicants allege there is a risk that the activity will disturb the Crocodile Man in his travels and thereby damage the spiritual connection of the Jikilaruwu people to areas of sea country through which the pipeline will pass.

15    The second aspect of the intangible cultural heritage case relied upon what was referred to in closing submissions (but not before then) as “potentially adapted beliefs”. It involves an account of Ampiji said by the applicants to have been recently adapted in response to new information Tiwi Islanders have obtained about their sea country, presented to them by a geoscientist in June 2023. The new information, on the applicants’ case, is that in ancient times when the land now forming the sea bed was subaerially exposed, there existed a very large and deep freshwater lake in the area situated about 10km from what is now the western most point of Bathurst Island at or around Cape Fourcroy. At the mouth of the lake, the applicants allege, was an embayment (a recess in the landscape). Whether those features ever existed is an issue in dispute. I will refer them as the Ancient Lake and the Ancient Embayment without suggesting any finding that they ever existed in fact.

16    The pipeline route lies between Cape Fourcroy and the place where the Ancient Lake and the Ancient Embayment are allegedly situated. The Ancient Lake is referred to in some materials as a “sacred freshwater source”.

17    The “potentially adapted beliefs” proceed from the premise that culture is ever changing, that matters of traditional cultural significance may evolve and adapt to new situations and circumstances, including new information and knowledge. The alleged adapted belief is that there exists a Mother Ampiji who lives in the Ancient Lake. The Mother Ampiji travels around the sea, including around the Tiwi Islands. The applicants assert a spiritual belief that the pipeline will pass between the Ancient Lake and the Tiwi Islands, that it will “disconnect” the Jikilaruwu, Munupi and Malawu clans from the Ampiji who lives in the Ancient Lake and thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of their sea country through which the pipeline will pass.

18    The claims relating to Mother Ampiji and the Ancient Lake are also alleged to form a part of ancient Tiwi traditional knowledge and belief passed to Carol Puruntatameri by older generations.

19    The case founded on tangible cultural heritage alleged that there may be an archaeological record on and under the sea bed in the area to be affected by the activity, specifically objects and artefacts evidencing human occupation and activity from tens of thousands of years ago when the sea bed was subaerially exposed. The applicants alleged that there is a risk that the activity of constructing the pipeline and its embedment into the sea bed will cause the loss, destruction or relocation of some of that archaeological record and so presents a risk to Aboriginal cultural heritage having significance to the Jikilaruwu, Munupi and Malawu people. In addition, the applicants allege that the activity creates a risk of disturbance or destruction of a series of burial grounds that are said to be located between the pipeline route and the west coast of Bathurst Island.

20    Each of the alleged risks were described as involving a “real chance” of there being “notable” consequences, language that reflected the applicants’ preferred construction of reg 17(6).

21    The applicants allege that, for the purposes of reg 17(6), the risks asserted by them are “new” because they were not previously assessed by NOPSEMA and that they are not provided for in the Pipeline EP that is presently in force. They alleged that there was an “occurrence” of the risks within the meaning of the provision when the risks were first brought to Santos’ attention in late 2022 and throughout 2023, including by the commencement of these proceedings. They submitted that the conditions to trigger the obligation in reg 17(6) exist, and that Santos is therefore obliged to submit a revised environment plan to NOPSEMA for assessment. Upon the submission of such a plan, it would be for NOPSEMA to determine whether or not it should be accepted in accordance with conditions on its powers identified elsewhere in these reasons.

22    The above paragraphs give only a crude summary of the applicants’ case. They are intended to provide a sketch of broad issues so that the lengthy summaries of evidence that are soon to follow can be read with some framework of the allegations in mind. The case as finally articulated in closing submissions is detailed at [847] below.

The relief sought

23    The relief sought on the amended originating application filed 22 November 2023 included a declaration under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) that:

1A.    … the Respondent must submit a proposed revision to the Pipeline EP that provides for the risk posed by the Activity to submerged Tiwi cultural heritage, in accordance with reg 17(6) of the Environment Regulations.

24    In addition, the applicants sought a permanent injunction restraining Santos from undertaking the activity of laying the pipeline until it submits a proposed revision of the Pipeline EP in accordance with reg 17(6) and that revision is accepted by NOPSEMA.

The role of the Court

25    This not an application for judicial review of any prior decision of NOPSEMA, and NOPSEMA is not joined as a party. The case articulated by the applicants was confined to an allegation that Santos has a present obligation to submit a revised environment plan. Even if that allegation were to be proven to the requisite standard, it would form no part of the Court’s function to decide what consultation must then take place between Santos and any person. Nor would it form any part of the Court’s function to determine what the content of any revised environment plan should be, nor to determine whether such a plan could or should be accepted by NOPSEMA.

Summary of outcome

26    For the reasons that follow the evidence does not establish that the obligation under reg 17(6) (properly construed) has been triggered. It follows that the amended originating application must be dismissed.

THE TRIAL AND EVIDENCE

27    This action was commenced by originating application filed on 30 October 2023, accompanied by an interlocutory application seeking urgent injunctive relief. Simon Munkara was at that time the sole applicant. Argument on his application for interim relief extended into the evening of 1 November 2023. On the following day, the Court granted a short term injunction to restrain all work on the pipeline until 13 November 2023. Orders were made setting the matter down for more detailed argument on the question of whether there should be an ongoing injunction pending final judgment in the case. Oral reasons were given and written reasons followed:  Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348 (Munkara No 1).

28    In Munkara No 1, I explained why I was satisfied that the Court had jurisdiction to grant the relief then sought by Simon Munkara, and why I was satisfied at that time that he was a person who had standing to apply for it (at [39] – [55]).

29    The interim injunction remained in force until 15 November 2023. On that day, the Court granted an interlocutory injunction of a more limited kind. The order had the effect of restraining Santos from undertaking works on all but the northernmost 86km of the pipeline route and was expressed to remain in force until 15 January 2024, or such later date as the trial judge may determine:  Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421 (Munkara No 2). At the time of those orders, the final relief sought on the originating application was confined to an injunction. The claim for declaratory relief was later added by amendment.

30    In Munkara No 2, I addressed again the questions of jurisdiction and standing, including by rejecting a new argument raised by Santos on those questions. Questions of jurisdiction and standing have not been re-agitated and I remain of the views expressed in Munkara No 1 and Munkara No 2 on those interrelated topics.

31    An important feature of these proceedings is that the application for the interlocutory injunction was unsupported by any undertaking as to damages given by Simon Munkara or any person on his behalf. I concluded that it was in the interests of justice to proceed expeditiously to trial and judgment. That is principally because of conclusions I had previously drawn as to where the balance of convenience lay with respect to the injunctive relief, considered in light of the absence of the usual undertaking, and having regard to an earlier indication from Simon Munkara’s Counsel that he and other likely applicants were ready to proceed to trial. In addition, contractual terms relating to the pipeline’s construction were such that Santos’s losses were likely to significantly increase if the restraint were to remain in force for a longer period of time.

32    In the circumstances just described, the Court’s practice and procedure provisions have been applied in a way to best achieve the objective of making final orders on or before 15 January 2024, being the earliest date on which the Court could conceivably deliver judgment, having regard to the number and nature of issues in dispute. The matter was made ready for trial within a tight timeframe given its factual and legal complexity. The trial proceeded over 10 days in tranches between 4 and 22 December 2023, including oral closing submissions. The Court then received written closing submissions on 4, 5 and 7 January 2024.

33    The matter proceeded by way of a concise statement and a concise response in lieu of formal pleadings, although as will be seen, over the course of the proceedings the applicants reframed some aspects of their case and abandoned others.

Lay evidence

34    The Court received written and oral evidence from 23 Aboriginal witnesses from the Tiwi Islands (in roughly even numbers from both sides of the dispute). The focus of the applicants’ case is on the people of three clan groups having land and sea country on and to the west of the Tiwi Islands, namely the Jikilaruwu, Munupi and Malawu clans. The 23 witnesses were from six clans, namely the Jikilaruwu (Simon Munkara, Ancilla Warlapikimayuwu Kurrupuwu, Molly Munkara, Valentine Intalui, Magdalen Kelantumama, Marie Frances Tipiloura, Eulalie Munkara, John-Louis Munkara, Jonathon Munkara, Mario Munkara and Theresa Munkara) the Munupi clan (Dennis Murphy Tipakalippa, Pirrawayingi Puruntatameri, Richard Tungatalum and Carol Puruntatameri), the Malawu clan (Therese Wokai Bourke and Marie Tipuamantumirri), the Wurankuwu clan (Tony Majirliyanga Pilakui and Brian Dixon Tipungwuti), the Mantiyupwi clan (Kaitline Kerinauia, Wesley Kerinaiua and Walter Kerinauia) and the Wulirankuwu clan (Stanley Tipiloura).

35    Given the common surnames, I will refer to the Tiwi witnesses by their full names throughout these reasons.

36    The first tranche of the trial was conducted in Darwin over four days, it being the most proximate place to the Tiwi Islands, the place of residence of nearly all of the lay witnesses. The applicants’ early suggestions for an on-country sitting were rejected as unrealistic.

37    The Court made orders for lay evidence-in-chief to be adduced by way of affidavit or by adoption of written witness statements. The parties had liberty to apply to adduce evidence-in-chief viva voce. However, that liberty was not exercised, other than the applicants making an application to give song and dance evidence by way of demonstration under s 136 of the Evidence Act 1995 (Cth). That application was disallowed principally because the time available for the sitting in Darwin was already too compressed, but also because there would be an insufficient opportunity for Santos to obtain advice and give instructions to enable the applicants’ witnesses to be cross-examined in respect of some disputed matters that were expected to arise from it. The applicants ultimately tendered video recordings of the songs and dances. The Court made a ruling limiting their use, to avoid unfairness arising from their late provision.

Expert evidence

38    The Court has before it 26 expert reports prepared by multiple experts, many of them responsive or counter-responsive. It is convenient at this juncture to name the experts and to give shorthand descriptions for their reports. The shorthand descriptions will be used throughout these reasons without referring again to the report titles. Some of the earlier reports were commissioned and produced before the proceedings were commenced and for purposes relating to a General Direction issued by NOPSEMA, discussed below. Consequently, some of the instructions put to the experts do not align entirely with the subject matter of the litigation. Each report is to be understood in the context in which it was sought and prepared. For the most part the experts themselves have acknowledged that limitation.

39    For convenience I will use the title “Dr” in connection with most experts, meaning no disrespect to those with higher titles.

Dr Brendan Corrigan

40    Dr Brendan Corrigan is a Consultant Anthropologist. He holds a PhD in Anthropology (University of Western Australia) and an Honours degree in Anthropology and Archaeology (Australian National University). He has consulted on anthropological and traditional owner issues in relation to native title, environment and resource matters. Dr Corrigan authored three reports:

(1)    “Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia”, dated 15 September 2023 (prepared with the assistance of others) (Corrigan 1);

(2)    “Report in response to Lewis Supplementary Report and two supplementary reports by Associate Professor Michael O’Leary”, dated 27 November 2023 (Corrigan 2); and

(3)    “Supplementary Report, Dr Brendan Corrigan, 13 December 2023”, dated 13 December 2023 (Corrigan 3).

Dr Jodie Benton

41    Dr Jodie Benton is a Director and Principal Consulting Archaeologist of OzArk Environment & Heritage. She has a PhD in Burial Archaeology, Bachelor of Arts First Class Honours (Archaeology) and Bachelor of Arts (Archaeology and English) (University of Sydney). Dr Benton has 35 years’ experience in managing archaeological projects, including Aboriginal and historic heritage assessments and community consultation. Dr Benton assisted in the preparation of Corrigan 1 and provided one further report, titled “Report of Dr Jodie Benton 27 November 2023”, dated 27 November 2023 (Benton 1).

Ms Stephanie Rusden

42    Ms Stephanie Rusden is a Senior Archaeologist at OzArk Environment & Heritage. She holds a Bachelor Science (Land and Heritage Management) (University of Wollongong), Bachelor of Arts (Archaeology) (University of New England), and a MicroMasters in Evidence-Based Management (Australian National University). Ms Rusden assisted in the preparation of Corrigan 1, but did not give evidence in the proceedings.

Mr Harrison Rochford

43    Mr Harrison Rochford is an Archaeologist at OzArk Environment & Heritage. He holds a Masters of Philosophy (Arts and Social Sciences), Bachelor of Liberal Studies (Advanced) (Psychology/Ancient History) (Hons) (University of Sydney). Mr Rochford assisted in the preparation of Corrigan 1, but did not give evidence in the proceedings.

Mr Gareth Lewis

44    Mr Gareth Lewis is a consultant anthropologist and member of the Australian Anthropological Society. He holds a Bachelor of Arts (Social Sciences) with majors in Anthropology and Asian Area Studies (Curtin University of Technology) and has published papers on anthropological issues related to the environment and resources. Mr Lewis authored two reports:

(1)    “Barossa Gas Export Pipeline Installation Cultural Heritage Assessment” Anthropologist’s Report prepared for Simon Munkara, Dennis Tipakalippa, Pirrawayingi Puruntatameri, Therese Bourke, Lynette De Santis, Valentine Intalui and Edward Puruntatameri (clients of the Environmental Defenders Office)”, dated 21 July 2023 (Lewis 1); and

(2)    “Barossa Gas Export Pipeline Installation Cultural Heritage Assessment: Anthropologist’s Supplementary report in response to Dr Corrigan’s report of 15 September 2023”, dated 24 October 2023 (Lewis 2).

Dr Amanda Kearney

45    Dr Amanda Kearney is an Anthropologist and Professor at San Diego State University and the University of Melbourne. She holds a PhD in Anthropology (University of Melbourne) and Bachelor of Arts with Honours (Anthropology) (University of Queensland) and has served as a consultant and expert advisor to NOPSEMA. Dr Kearney provided one report titled “A Report to the Environmental Defenders Office, in regard to Munkara v Santos (VID907/2023) – Barossa Development Drilling and Completions Environment Plan”, dated 27 November 2023 (Kearney 1).

Dr Andrew McWilliam

46    Dr Andrew McWilliam is an Anthropologist and Professor of Anthropology at Western Sydney University. He is a Fellow of the Australian Anthropological Society and member of the Australian Institute for Aboriginal and Torres Strait Islander Studies. Dr McWilliam holds a PhD in Anthropology (Timor Ethnography) (Australian National University) and provided one report titled “Review of the methodologies adopted by Dr Brendan Corrigan and Mr Gareth Lewis”, dated 27 November 2023 (McWilliam 1).

Dr Henry W Posamentier

47    Dr Henry W Posamentier is a Geological and Geophysical consultant and Adjunct Professor of Geology at the University of Western Australia. He holds a PhD in Geology, a Master of Arts (Geology) (Syracuse University) and Bachelor of Science (Geology) (City College of New York). Dr Posamentier works as a consultant in the petroleum exploration and development sector with a focus on depositional settings. Dr Posamentier authored seven reports:

(1)    “Barossa Field Seafloor Late Pleistocene/Holocene Depositional Environment”, dated 11 July 2023 (Posamentier 1);

(2)    “Comments on the Report of Wessex Archaeology LTD”, dated 11 August 2023 (Posamentier 2);

(3)    “Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report”, dated 21 August 2023 (Posamentier 3);

(4)    “Schedule of my Analysis of the Features identified in Wessex Archaeology LTD Report”, dated 2 September 2023 (Posamentier 4);

(5)    “Response to Supplementary Report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment by Associate Professor Mick O’Leary”, dated 4 October 2023 (Posamentier 5);

(6)    “Additional Observations Regarding Barossa Field Pipeline Seafloor”, dated 27 November 2023 (Posamentier 6); and

(7)    “Report Summarizing my Response to O’Leary Report of November 30, 2023, and to Wessex Archaeology Report of December 11, 2023”, dated 14 December 2023 (Posamentier 7).

Dr Mick O’Leary

48    Dr Mick O’Leary is an Associate Professor at the School of Earth Sciences and the University of Western Australia Oceans Institute. He holds a PhD in Marine Sciences (James Cook University). Dr O’Leary has consulted on resource project assessments and conducts research with a focus on geomorphology and archaeology. Dr O’Leary provided five reports:

(1)    “Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated July 2023 (O’Leary 1);

(2)    “Supplementary report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated 11 September 2023 (O’Leary 2);

(3)    “Further supplementary report responding to matters arising from a report authored by Dr Brendan Corrigan titled Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia”, dated 7 October 2023 (O’Leary 3);

(4)    “Supplementary Report #3 Assessing uncertainty arising from findings in the Wessex and Posamentier underwater cultural heritage (UCH) assessments”, dated 27 October 2023 (O’Leary 4); and

(5)    “Supplementary report #4 responding to matters arising from a report authored by Prof Henry Posamentier titled Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report”, dated 30 November 2023 (O’Leary 5).

Wessex Archaeology

49    Wessex Archaeology Ltd and its subcontractor Extent Heritage were commissioned by Santos, in response to NOPSEMA’s General Direction to undertake a targeted scientific archaeological assessment of the proposed route of the pipeline. Multiple specialists from different disciplines assisted in the preparation of two reports under engagement by Santos. When Santos informed the Court that it would not be calling any of those authors as part of its case, the applicants sought leave to issue subpoenas to six of them. Three of the subpoenas were later recalled. The remaining three addressees (Dr Hanna Steyne, Dr Andrew Emery and Dr Andrew Bicket) appeared in response to subpoenas and participated in a concurrent session with Dr Posamentier. In advance of that session, the three witnesses prepared a third report. The three reports are as follows:

(1)    “Barossa Gas Export Pipeline Submerged Palaeolandscapes Archaeological Assessment Technical Report”, dated July 2023 (Wessex 1);

(2)    “Barossa Gas Export Pipeline Submerged Palaeolandscapes Archaeological Assessment Recommendations”, dated July 2023 (Wessex 2); and

(3)    “Independent Expert report”, dated 11 December 2023, (Wessex 3).

Joint reports

50    The experts were cross-examined in various concurrent sessions.

51    Prior to those sessions there were two pre-trial conclaves helpfully facilitated by a former Justice of this Court, the Hon Neil McKerracher KC. The following three joint reports were produced following the conclaves:

(1)    “Anthropology report (Methodology)” of Benton, Corrigan, Kearney, Lewis and McWilliam (conclave 9 December, 2023 report dated 11 December 2023) (Methodology Joint Report);

(2)    “Geoscience report of O’Leary and Posamentier” (report dated 13 December 2023) (Geoscience Joint Report); and

(3)    “Anthropology report of Corrigan, Lewis and Benton” (conclave 9 December, 2023 report dated 14 December 2023) (Anthropology Joint Report).

Video evidence

52    The Court has before it video evidence falling within two categories. There are 10 video recordings of traditional dances performed by the applicants and other Tiwi Islanders evidencing their traditional connection to the sea and their song lines. There are a further 41 video recordings of some events that occurred at a workshop on 19 June 2023 with Dr O’Leary (June O’Leary Workshop).

53    I have personally viewed all of the videos.

Documents

54    There are two tender books before me, totalling more than 14,000 pages. Some of the more critical documents have been read in full. I have otherwise confined my attention to those documents or parts of documents to which the parties have specifically drawn my attention, whether during the course of the trial or in their oral and written closing submissions.

55    Some evidentiary material has been received subject to rulings under s 136 of the Evidence Act limiting their use. It is not necessary to repeat the reasons for those rulings here. The parties are aware of them and should approach these reasons on the basis that my consideration of the documents has been limited by them.

56    Before proceeding further, it is necessary to set out some background facts and findings on preliminary issues. Unless stated otherwise, the background that follows may be understood as based on unchallenged evidence or uncontroversial facts.

THE TIWI ISLANDS

57    The shoreline of the present day Tiwi Islands has remained largely unchanged for about 8,000 years. However, about 18,000 years ago, much of what today constitutes the continental shelf was subaerially exposed. The period between about 26,000 and 20,000 years ago is referred to as the last glacial maximum (LGM), being the most recent time during the last glacial period that ice sheets were at their greatest extent. At that time, the shoreline lay well seaward of where it is today. The land masses now known as the Tiwi Islands did not exist as islands but rather formed a part of the mainland. The shoreline was located well north of the modern mainland shoreline, approximately 60km south of the centre of what is now the Barossa Field. That is referred to in the evidence as lowstand shoreline, lowstand being a time during which sea levels are at their lowest, typically during glacial periods in the Earth’s history.

58    Between about 20,000 to 18,000 years ago, the sea level was about 120m lower than it is today. From between 18,000 to 12,000 years ago, the sea level rose slowly. The rise in sea level accelerated between 12,000 to 10,000 years ago before reaching its present position about 8,000 years ago.

59    The more rapid flooding of the continental shelf and the associated movement of the shoreline are known as shoreline transgression. In the period of more rapid sea rise, the flooding proceeded at a rate of about 18m each year. The shoreline transgression resulted in a landward shift of the shoreline by approximately 150km to 200km.

60    The present day Tiwi Islands are comprised of two large and several smaller islands. Bathurst Island (in the west) and Melville Island (in the east) are separated by the narrow Aspley Strait. To the south of Melville Island are the three smaller Vernon Islands. Clarence Strait lies between the Tiwi Islands and the mainland.

TIWI SOCIETY

61    Under their traditional laws and customs, the people of the Tiwi Islands have a system of social and territorial organisation described by anthropologists as a manifestation of the creation era and ordained by their creation ancestors. As Dr Corrigan expressed it (Corrigan 1, [93]):

In common with other Australian indigenous societies … the Tiwi have a normative system of laws and customs which provides a format for appropriate social life, including marriage practices, economic practices, ceremonial matters and concepts of discipline and punishment for transgressions of the same.  …

62    Santos accepts that the normative system is what defines Tiwi people as a society.

63    According to their laws and customs, Tiwi Islanders are members of clan groups and skin groups.

64    Clans are local descent groups, comprised of one or more lineages or families. The anthropologists described clan groups as the patrilineal or patrifocal territorial unit of Tiwi society. Clan membership is ordinarily determined by descendance through the father, although there may be interests in land or waters within a clan’s estate that are derived by adoptions, maternal lines or burials of certain ancestors at a place. There are eight clan groups: Jikilaruwu, Munupi, Wurankuwu, Malawu, Yimpinari, Mantiyupwi, Wulirankuwu and Marrikawuyanga.

65    Under modern law, the land that comprises the Tiwi Islands is controlled by the Tiwi Land Council under and in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Aboriginal Land Rights Act). The Tiwi Land Council has responsibilities as a trustee of the interests of the Tiwi people as the traditional owners of the land and waters to which the statute relates. As I understand it, membership of the Tiwi Land Council is representative in nature, with each clan group having at least one person representing the interests of their clan estates.

66    The territorial locations of each clan are depicted on this map, prepared by the Tiwi Land Council (Map 1):

67    Membership of a skin group is acquired through the mother. The skin groups are non-territorial. They are manifestations of a kinship system which regulates marital and social relationships between clans and across the whole of Tiwi society. An aspect of that system is the avoidance relationship, prohibiting communications between certain individuals. Continued adherence to that customary practice was apparent throughout the course of the proceedings with witnesses at times declining to mention the names of others, explaining why they had not had dealings with another on the topic of the pipeline, or using the word “poison” to describe the relationship.

Estates and boundaries

68    It was sometimes said by Tiwi witnesses that they did not speak in western concepts of boundaries. Those statements are to be understood in their proper context. The weight of the evidence is that there was a very strong sense among all witnesses that there existed such a thing as clan country. Map 1 demonstrates that the clan estates can and have been represented by the Tiwi Islanders themselves in a cartographic way, at least for some purposes. A good portion of the evidence focussed on the topic of who might have authority to speak for “Jikilaruwu country” or “Malawu country” or “Munupi country”, no witness questioning that such distinct places existed. That is hardly surprising given the territorial focus of the clans within the Tiwi social structure described by Dr Corrigan. Understood in their proper context, and at least when applied to land, assertions such as “we don’t speak in boundaries” may usually be understood as a reluctance to speak in terms of hard lines, absolute terms, modern measurements or two dimensions. But there is plainly such a thing as clan country:  the Court was invited to assume the boundaries as depicted on Map 1 and to draw inferences about their natural extension into the sea.

Registration of sacred sites

69    The Northern Territory Aboriginal Sacred Site Act 1989 (NT) applies to the dry areas of the Tiwi Islands and the Northern Territory seas (extending about 2km from the shoreline). The Tiwi Land Council has been instrumental in recording and registering sacred sites under that regime, resulting in a map depicting many sacred sites on the land including around the coast. I accept that is an ongoing process. At present, the registered sacred sites do not include any place beyond the coast and into the vicinity of the pipeline, but that is no doubt explained by the territorial limit of the legislation.

Cultural authority and the right to speak for country

70    The topic of cultural authority was all pervasive during the course of the trial. It arises in part because the Court has before it conflicting accounts about what constitutes “culture” in light of differing views among Tiwi people as to whether the pipeline will have the impact the applicants assert. The applicants in particular sought to address that issue by inviting the Court to identify those who could, in accordance with Tiwi custom, speak authoritatively on a topic and to afford little or no weight to those who did not. The topic of cultural authority at times was equated with the question of which person had a right to speak for which country. The issue most often arose in the form of questions in cross-examination, putting the proposition that only Jikilaruwu can speak for Jikilaruwu country or song lines. Those questions did not get to the nub of the matter. They belied some complexity as to who could have an interest in (for example) Jikilaruwu country other than by way of patrilineal descent. They did not assist the Court to identify what song lines were exclusive to any particular clan. They were peculiar in a sense because the applicants themselves sought to draw on evidence of less senior Jikilaruwu people in preference over the evidence of those more senior, and to some extent draw on the evidence of non-Jikilaruwu people in relation to song lines that they say are exclusively Jikilaruwu. Perhaps most importantly, they do not assist the Court to grapple with the stark reality in the evidence that there were conflicting accounts given by Jikilaruwu clan members (including senior members of the same family group) about the content of song lines and the impact of the pipeline upon them. It will be necessary to return to the question of cultural authority and the related question of dissent. It is an issue infiltrating nearly all of the broader issues in dispute.

Spiritual beliefs, Dreamings and song lines

71    In these proceedings it is necessary to avoid language that labels “a thing” without carefully examining it for its essential meaning and features. As the Anthropology Joint Report stated:

We note that the term ‘Songline’ is a popular gloss for complex social phenomena akin to other glosses such as ‘Dreamings’ and ‘the Dreamtime’. We caution that such terms often hold contextually variable meaning(s) amongst Tiwi people which can be misleading. The following answer seeks to provide a best effort summary of how the term is used on the Tiwi Islands.

Songlines are sung narratives which recall and maintain the actions, journeys and behaviours of the creation ancestors. Songlines serve as a mnemonic device for maintaining and transmitting narrative across generations. They also serve to identify and justify cultural knowledge and proof of ownership of country. They act as a form of charter connecting the creation ancestors to the present bridging the gap between ancestral past and present. Ownership and performance of songlines emphasises connections both within clans to a specific segment of a songline relevant to their clan estate, as well as between clans and individuals who may share knowledge of all or parts of a songline for and beyond their own estate. Songlines are not physical features of the landscape or fresh water or the sea but they typically name and describe the actions of creation ancestors often with reference to particular sites and/or places.

72    Dr Corrigan added that he did not use the phrase “song line” in his reports or notes, that it did not appear to be a Tiwi word nor to have a Tiwi equivalent. He preferred the more nuanced phrase “traditional songs and any associated places therein mentioned”. In these reasons I will use the phrase “song line” to convey that same nuanced idea, subject to all of the qualifications to which I have just referred. So qualified, there are three song lines that should be briefly identified by way of background.

Mudungkala

73    In Corrigan 1, Dr Corrigan extracted passages from a 2008 report of Mr Graham written for the purpose of supporting a land claim by the Mantiyupwi clan relating to the Vernon Islands. Mr Graham explained the creation story on the basis of information drawn from his Mantiyupwi informants as follows:

99    The Tiwi myth begins at the place known as Murupianga, on the Melville Island coast north east from Cape Gambier. From here an ‘Old Woman’ known as Mudungkala (Murtutakala), the ‘creation lady’ as one Tiwi described her, emerged from the ground. She had been living underground and broke to the surface by digging upwards with her wooden digging stick. She had three children, two girls and a boy (who are in turn major elements of Tiwi mythology, particularly her son Purrukuparli whose later story underlies the pukumani story). Mudungkala travelled widely in the area and created the islands, her journey forming the coasts of Bathurst and Melville Islands by extensive digging of the land’s surface with her stick. Water from the sea flowed into her depressions and created all of the waters and coastlines including the Clarence Strait. The claim area was described to the author by Tiwi informants as having been created by her. Mudungkala and her children’s story is one of the main Tiwi Dreamtime narratives and is to be found in a number of the published works on the Tiwi. Morris’ map number 5, (2001: 19) illustrates the ‘Creative Travels of Mudungkala (Murtankala)’. She formed the strait separating Bathurst and Melville Islands, as well as the Clarence Strait. Mudungkala and her children are shown in a painting exhibited at the Tiwi museum at Nguiu (copied below). [images not copied]

100    The various versions of this mythology are all essentially similar, Morris for example says that:

... the Tiwi hold that their islands were created by a woman, in this case an old, blind lady named Murtankala (also spelt by various researchers as Murdankala, Mudangkla and Mudungkala). Briefly, in the distant past the land was covered in darkness and contained no geographical features, animals or humans. Below the earth there lived some spirit people, including Murtankala and her three children. One day she dug her way up to the land’s surface. As she crawled about searching for food for herself and her infant children she gradually carved out the outlines of the Tiwi Islands. During her arduous journey she carried the children in a bark basket or tunga. Water flowed in behind Murtankala to surround the islands. The Creator Being began and ended her slow journey at Murupianga, on what is now the coast of Yimpinari (Impinari). Here she placed her children on the beach. With a bark torch she lit up the world, making day and night. Before disappearing forever, Murtankala clothed the islands with vegetation and introduced animal life to provide food for her children, Purrukuparli (Purukuparli) and his sisters Wurupurungala and Murupiyankala, the ancestors of the Tiwi. In his last hours on Melville Island, Purrukuparli performed the first Pukumani mortuary ritual near Cape Keith (Eeparli), declaring that thereafter all Tiwi were duty bound to carry out this ritual whenever an Islander passed away (Morris, 2001: 14-16).

101    It is Mudungkala's creativity, among other things of course, that is celebrated in Tiwi ritual. The most significant of these rituals are the kulama and mirringilaja initiations and pukumani funerary and mourning rituals. Again detailed accounts of them all can be found in the various ethnographic works referred to above:  (Mountford, (1958), Hart and Pilling, (1960), Goodale, (1971) and Brandl, (1971). Of these, the Pukumani rituals are the most well known, involving the spectacular painted poles. While carried out as part of the last rites for deceased persons, these rituals have many other aspects as well.

(footnotes omitted)

74    The Anthropology Joint Report confirms that Mudungkala and her children are foundational creation narratives which are Tiwi wide. They explain the existence of the Tiwi Islands and the identity of the Tiwi people as islanders.

Yiminga

75    Yiminga (sometimes spelt Yimunga, Imunga or Imunka) was described in various ways by the Tiwi witnesses, most often as a spiritual force or presence. There is Yiminga present at sacred sites (especially but not only at burial sites). The word was used to refer to the real presence of ancestors in the here and now. Another witness said that the word meant “heart”. In CP Mountford’s early ethnography (Mountford, C.P., The Tiwi:  their art, myth and ceremony (Phoenix House, 1958)), Charles Mountford described it as “a universal life essence which permeates all living things, the plants, the creatures and man”.

76    In their concise statement the applicants originally referred to there being Yiminga in the whole of the sea. They alleged, as a discrete aspect of their claims, that the pipeline would disturb that Yiminga. Yiminga is now relied upon in the more narrow context of the claim relating to the travels of Ampiji, discussed below.

77    On a boat trip on 9 June 2023, Valentine Intalui explained Yiminga to Dr Corrigan as meaning a life force, something that gave Tiwi people their strength. He said “That’s how we have become”. Dr Corrigan asked Valentine Intalui if Yiminga was a life force in relation to everything, how was it that a house could be built near the place that they were then discussing. In cross-examination, Dr Corrigan paraphrased Valentine Intalui’s response: “Houses can be there because we know the right place, if there’s no sacred site or burial”.

Ampiji

78    Beliefs about Ampiji (sometimes spelt at Ampitji) among Tiwi Islanders are varied in several respects, particularly on the question of the extent of her travels and the related question as to whether the pipeline would cause her to become disturbed. There are also differing accounts as to whether there is more than one Ampiji, and as to whether there exists a Mother Ampiji. Some of those differences are more significant than others.

79    The differences in account were as apparent in the evidence given in these proceedings, as they were at the time that Dr Corrigan obtained informant accounts for the purposes of preparing Corrigan 1. Dr Corrigan said that locations where Ampiji was said to reside on Bathurst Island, were Lake Mungatuwu (a freshwater lake on Jikilaruwu country on the south west coast) and Rocky Point (a protrusion on the north west coast of Malawu country). Some informants told Dr Corrigan that the Ampiji believed to inhabit Rocky Point and Lake Mungatuwu were one and the same, others said they were different. Dr Corrigan said that when passing those places on various boat trips, “relevant Tiwi Islanders” would call out to the spirits of ancestors and Ampiji to assure them that correct people were taking visitors to look around in the proper manner” (Corrigan 1, [110]). He said that he was advised that was the best way of taking people around and introducing them to the country and the spirits within it, to ensure the visitors’ physical and spiritual wellbeing.

80    Dr Corrigan reported that there were different accounts as to whether Ampiji went into the sea. In a passage relied upon heavily by the applicants, he said: (footnote omitted)

3.    A consistent theme which has emerged among some informants is that a spirit being (or spirit beings) called Ampitji (sometimes known as a rainbow serpent, sometimes said to be plural, and sometime male or female in various versions) routinely traverses all of the sea in the vicinity of the islands and the GEP and that Ampitji might become disturbed by the laying of the GEP and cause spiritual and physical harm to the Tiwi Islanders and others. In some instances, people who believe this also believe that preventative measures, such as having relevant Tiwi people ‘introduce the pipeline and its work to the rainbow serpent’ would ameliorate any risk. Others have put the view that Ampitji remains fairly local to known geographic sites on the islands and does not travel in the sea around the Tiwi Islands.

81    Fundamentally, it does not appear to be disputed that the spiritual belief in one or more Ampiji is a feature of Tiwi Islanders’ spiritual life, but is not exclusive to the Jikilaruwu, Malawu and Munupi clans. References to one or more Ampiji in earlier ethnographic materials confirm that the narratives about Ampiji are a long-standing feature of Tiwi spiritual life and that Ampiji may also have a role to play in ensuring compliance with Tiwi law. So much is not disputed by Santos.

Crocodile Man

82    Prior to this litigation there were several accounts of the Crocodile Man story recorded in writing by or with the assistance of Tiwi Islanders. Some of those accounts will be extracted here. The first comes from a book titled “Murli la: Songs and Stories of the Tiwi Islands”:

Song titled “Tini Ngini Yirrikapayi Yima Kapi Wiyapurali”

The crocodile man is sitting down making a spear

He was at this Country/home Wiyapurali on the beach

His people [of the tribe] Jikilawula did not like him

Because he did not share the land

Lying low down in the mud

When he crawled away and he changed into the crocodile

He crawled towards the sea with the spear in his back

At Wiyapurali they saw him - he was running very fast

The sharp pointed spear went through its back

Crocodile goes out with the sea

His people [of the tribe] Jikilawula did not like him

They all said you will be, from now on, the crocodile wuwu!

83    In the same text there is a reference to a heavy ceremonial spear known as the “Arawanakiri” with a broad spearhead at both ends resembling the tail of the Crocodile Man.

84    The story of the Crocodile Man is told in relatively the same terms in a picture book created in 1991, with a notation that it was sung by Beatrice Kerinaiui.

85    The following is an extract of the Crocodile Man story from a display at the Patakijiyali Museum, which some witnesses said accorded with the story told to them by their Elders:

Then Yirrakipayi ran and jumped. Hanging from his back where the spears that the people had thrown in him. Then he crawled along the beach cried out in pain and dived into the sea. After diving into the sea, he then surfaced for area far out in the deep water.

Then all the people came to watch him. ‘You are now the crocodile,’ they all shouted. ‘Your name will be crocodile,’ they said. So that is what we call him. His mother, Pawunga, cried for her son. Then she was transformed into Pied heron.

Pawunga sang this song for her son:  ‘He was speared in the back so he ran into the sea at Wiyapurali. Then they call him ‘crocodile’.’

86    With only minor exceptions, the Tiwi Islander witnesses referred to a beach near Cape Fourcroy as the place where the Crocodile Man entered the sea. That aligns with the accounts given to Dr Corrigan, as summarised in Corrigan 1:

130.    In the various instances where people raised details of the very well-known and routinely quoted story of the Crocodile Man, it was stated that he patrolled the various waters in the vicinity of a cave on the sea water edge on Cape Fourcroy, known as Wiya Pureli. When we visited that cave on boat trip #2 (16 March 2023), I was advised by the various Tiwi male delegates that the Crocodile Man lived in that cave and would patrol the waters up and down the coast in the general area, keeping an eye on things.

131.    It is also the case that some Tiwi informants advised me about other spirit crocodile beings, who inhabit the seas in other parts of the Tiwi Islands, including one at Karlslake (to the northwest of Milli). Based on my interviews, there are no specific ‘underwater cultural heritage places’ that were identified in relation to the Crocodile Man along the GEP corridor.

87    Dr Corrigan reported accounts of the Crocodile Man travelling “in a range of locations”. He went on to note that it was apparent that the significance of a pipeline on the sea bed “to the movements of the Crocodile Man” was the subject of considerable disagreement amongst relevant Tiwi Islanders.

Totemic species

88    Individual Tiwi Islanders spoke of having a totem, often a plant or animal having special spiritual significance to them, and an attendant sense of responsibility to care for the environment in which their totem species lived or moved. Concerns about the environmental impact or risks of the pipeline were in some instances expressed as a concern about risks to a particular totemic species, such as the turtle or dugong. Although that is not articulated as a discrete risk upon which the applicants’ claims were based, they may inform the question of whether there exists a spiritual connection to areas in the sea through which the pipeline will pass.

THE PIPELINE EP

89    As I have mentioned, the Pipeline EP is the environment plan that is “in force” for the relevant activity concerning the pipeline. Its preparation followed the acceptance by NOPSEMA of the Barossa Area Development Project Proposal in March 2018. The objective of the Barossa Project is to develop a “gas and light condensate field using a Floating Production Storage and Offloading (FPSO) facility, subsea production system, supporting subsea infrastructure and the pipeline.”

90    The Pipeline EP is one of several environment plans relating to the Barossa Project. It is structured in a way so as to address the detailed requirements for an environment plan prescribed in the Regulations. The following description of the pipeline and the environment that may be affected by it is drawn from the Pipeline EP itself.

91    The Barossa Field is located in the Bonaparte Basin in 210 – 2275m of water. Australia’s north west continental shelf edge lies approximately 60km south of the centre of the Barossa Field. The pipeline extends from the Barossa Field approximately 227km north of the Northern Territory mainland, to a tie-in location at the existing Bayu-Undan to Darwin pipeline approximately 100km north of the mainland.

92    Water depths along the pipeline route range from between 33m to 254m and the pipeline traverses three geomorphic regions:

(1)    continental outer shelf/slope (KP0 – KP73) comprising the shelf break and slopes of the Arafura Shelf characterised by gentle slopes (up to 0.2°);

(2)    continental middle slope (KP73 – KP106) comprising a carbonate bank and terrace system of the Van Diemen Rise with intersecting valleys between banks; and the

(3)    continental inner shelf (KP106 – KP262.39) comprising variable sediment types, including sub-aerially exposed cemented materials and significant terrestrial sediments especially in shallower water depths.

93    The “activity” consists of the installation of a 262km long 26-inch diameter carbon steel, concrete coated rigid pipeline. It encompasses installation of “pipeline end terminators” (PLET) including foundations and concrete mattresses to control flex and movement. The mattresses are to be made of blocks of dense material (typically concrete) bound together by flexible cables. The mattresses are 6m x 3m in area. Some scour protection may be added to the mattresses adding a further 3m around the structures. In addition, wedge-shaped support structures will be used, each having a sea bed footprint of 4m x 4m, with up to 3m of surrounding scour protection.

94    The total sea bed footprint (including the pipeline itself) is estimated to be 28.7ha.

95    The outside diameter of the pipeline varies according to the depth of water along its route, but it will not exceed 661mm in any one place. Once installed, the pipeline is expected to embed itself on the sea bed, at varying depths, not exceeding 65cm.

96    Places along the pipeline route are referred to by reference to their distance in kilometres from its northern most PLET (K0) to its tie-in point at the southern end (around K262). The distances from places on the Tiwi Islands are apparent in the map forming Schedule A to Munkara No 2.

97    The “operational area” is the area in which vessels constructing the pipeline will operate. It consists of a 3000m radius around each PLET and a 2000m buffer along each side of the pipeline route, reduced in some sections to remain within a proposed route presented in the accepted proposal.

98    The pipeline route passes over an existing fibre optic cable system located at KP257.3. Concrete mattresses are to be installed at that crossing point.

99    The pipeline route is said in the Pipeline EP to minimise the installation of the pipeline over areas of sea bed that are associated with certain features and values, including the shelf break and slope of the Arafura Shelf, and a carbonate bank and terrace system of what is known as Van Diemen Rise. The route crosses that bank and terrace system at two instances; between about KP70 and KP110 and in the south between about KP250 and KP255.

100    The Pipeline EP refers to a process known as “Mass Flow Excavation”, a method of “Span Rectification”, that involves:

… both pre-laying (i.e. by creating a trench for the pipeline) or post-laying (i.e. by facilitating burial) of a pipeline if a given span cannot be effectively rectified using mattresses or grout bags. Mass flow excavation reduces span heights at the span shoulders and assists pipeline stability by facilitating partial or complete burial of the pipeline in unconsolidated sediments. Mass flow excavation may be achieved by localised suction or jetting of water, with resuspended sediments being moved away from the pipeline. This process results in localised lowering of the pipeline into the sediment, with subsequent partial or complete burial of the pipeline providing stabilisation and therefore removal of a pipeline span. The direct disturbance footprint of mass flow excavation is dependent on the depth of excavation required. Use of mass flow excavation will be limited and any associated seabed disturbance has been included in the footprint estimations for span rectification in Table 3-6.

101    There is a dispute between the parties as to whether mass flow excavation would or could lawfully be employed, Santos having informed NOPSEMA of an intention not to carry it out. As will be explained, I have not considered it necessary to resolve that issue.

102    Once installed, the pipeline will be cleaned using chemically treated sea water, including a dye, up to 15,000 cubic metres of which will then discharge at the termination end.

103    In accordance with the Regulations, the Pipeline EP defines the “environment that may be affected” (EMBA) by the activity. Its spatial extent was identified using modelling technology assuming a spill scenario resulting from a vessel-to-vessel collision, as that represented the largest geographic extent of the EMBA. That is a much larger area than the 4km wide operational area along the pipeline route, and extend to the Tiwi Island shores.

104    The Pipeline EP contains an assessment of the environmental features and values of the operational area and the EMBA, by reference to the very broad statutory definition of the word “environment” discussed later in these reasons. It identifies biologically important areas, such as habits for marine life, for example turtles and dugongs.

105    Under the heading “Aboriginal Heritage” there are statements that “There are no recorded Indigenous heritage sites within the Operational Area” and “The Tiwi Islands are a declared Aboriginal reserve and comprise a number of protected sacred sites”. There are references to studies undertaken, among them a study titled “Tiwi Islands sensitivity mapping study” described as:

Collection of data on environmental, social, cultural and economic sensitivities for the Tiwi Islands. A desktop review of available data (spatial datasets) was followed by workshops with Traditional Owners to identify cultural and environmental sensitivities along the coast of the Tiwi Islands.

106    Part 4.6 of the Pipeline EP is titled “Socio-Economic and Cultural Environment”. It contains the following:

4.6.6    Aboriginal Heritage

There are no recorded Indigenous heritage sites within the Operational Area. The Tiwi Islands are a declared Aboriginal reserve and comprise a number of protected sacred sites under the Northern Territory Aboriginal Sacred Sites Act. Traditional practices (including fishing, which is addressed in Section 4.6.8) continue to take place on the islands. Most traditional fishing occurs within 3 nm of the shoreline.

ConocoPhillips undertook a mapping exercise with the Tiwi Island Land Council to identify environmental and socioeconomic values along the Tiwi Islands coastline (ConocoPhillips, 2019). The mapping exercise focussed 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 data sets. 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 Operational Area.

107    The Pipeline EP also contains information about traditional fishing activities which need not be elaborated upon here.

108    Part 7.6.5 of the Pipeline EP contains processes for the “Management of Change”. That portion of the Pipeline EP states that a revised environment plan will be submitted if the obligation under reg 17 is triggered. As such, the Management of Change processes are not to be regarded as a mechanism for avoiding the obligation under reg 17(6), should it arise. The Pipeline EP also states that it may also be revised in line with the Management of Change process, but may not be resubmitted to NOPSEMA if reg 17(6) does not require it.

109    Part 8 of the Pipeline EP contains information about stakeholder consultation, including consultation with Indigenous groups. I will return to the question of consultation at the conclusion of these reasons.

EVENTS PRIOR TO THE LITIGATION

110    The applicants are legally represented by the Environment Defenders Office (EDO). The identity of a party’s lawyer is not ordinarily relevant, however in this case the EDO has undertaken work that forms a part of the factual background against which the issues are to be decided. In correspondence preceding the litigation (directed to both Santos and NOPSEMA) the EDO stated that it represented five clients, including Simon Munkara and three other witnesses in these proceedings.

111    The proponents of the Barossa Project originally included ConocoPhillips Australia Exploration Pty Ltd. In 2018, ConocoPhillips submitted the Barossa Area Development Offshore Project Proposal (Barossa OPP) to NOPSEMA in relation to a potential offshore development area approximately 100km north of the Tiwi Islands and 300km north of Darwin.

112    Acceptance by NOPSEMA of the Barossa OPP relating to the whole of the Barossa Project was necessary to enable ConocoPhillips to submit environment plans to NOPSEMA for assessment of future project activities. NOPSEMA accepted the Barossa OPP in March 2018.

113    Preparation of the Pipeline EP then occurred between March 2018 and March 2020. The process involved (among other things) the preparation of geophysical surveys, geotechnical site investigations and environmental mapping processes. ConocoPhillips engaged Jacobs Group (Australia) Pty Ltd to consult with the Tiwi Islands community in relation to the impact of the project. The scope of that engagement is in dispute.

114    Proposed environment plans relating to the pipeline were published on 29 July 2019 (Revision 0), 6 August 2019 (Revision 1), 30 October 2019 (Revision 2) and 6 February 2020 (Revision 3). The various revisions were prepared as NOPSEMA provided Santos with opportunities to provide additional information, including additional information concerning its consultation processes.

115    The Pipeline EP (being Revision 3) was accepted by NOPSEMA on 9 March 2020. In its written statement of reasons NOPSEMA stated that it had considered the description of the environment that may be affected by the activity “including relevant values and sensitivities” and found that “[s]ocial, economic and cultural features of the environment relating to the Commonwealth marine area, Australian Marine Parks (in this case, the Oceanic Shoals Marine Park), reef protection areas, cultural and heritage values, defence areas, tourism and recreational activities, commercial shipping, Commonwealth and Territory managed commercial fisheries and petroleum industry activities” had been identified and described. NOPSEMA recorded its finding that (relevantly) “[c]ultural and heritage environment features and values have been identified and described”. When applying the criteria for acceptance of an environment plan, NOPSEMA recorded that it was reasonably satisfied that Santos had carried out the required consultations and that the measures they proposed to adopt because of the consultations were appropriate. NOPSEMA recorded its satisfaction that all other criteria for acceptance had been complied with and so accepted the Pipeline EP. There has been no application for judicial review of that decision.

Tipakalippa proceedings

116    On 14 March 2022 NOPSEMA approved an environment plan relating to offshore gas drilling in the Barossa Field (Drilling EP). The Drilling EP is one of five environment plans which together cover the various activities of the Barossa Project. It is not the same as the Pipeline EP.

117    By orders made by Bromberg J on 21 September 2022, NOPSEMA’s decision to approve the Drilling EP was set aside on judicial review:  Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121; 406 ALR 41 (Tipakalippa No 2). Those proceedings were commenced by Dennis Tipakalippa, an Elder and traditional owner of the Munupi clan (and a witness in the present proceedings). The judicial review proceedings were confined to a challenge to the Drilling EP, and did not impugn NOPSEMA’s decision to approve the Pipeline EP, which had occurred about two years earlier. Mr Tipakalippa was represented in those proceedings by the EDO. A number of Tiwi Islanders provided affidavits in the proceedings which have been tendered in evidence before me. They included Dennis Tipakalippa, Pirrawayingi Puruntatameri and Carol Puruntatameri.

118    Among other things, Dennis Tipakalippa claimed that he and other traditional owners had “sea country” in the area north of the Tiwi Islands where the drilling was proposed. He alleged that NOPSEMA had failed to discharge its statutory obligation to reasonably satisfy itself that Santos had conducted the mandated consultation with “relevant person[s] … whose functions, interests or activities may be affected by the activities to be carried out under the environment plan”, as required by reg 11A(1) of the Regulations because the people of the Tiwi Islands had not been consulted in respect of the preparation of the Drilling EP. That ground of review was upheld. The Court held that Mr Tipakalippa was a “relevant person” for the purposes of the Regulations, that NOPSEMA was not lawfully satisfied that the consultation requirements of the Regulations were fulfilled, nor had it considered material within the Drilling EP that it was bound to consider. An appeal by Santos to the Full Court was unsuccessful:  Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124 (Kenny, Mortimer and Lee JJ). Judgment of the Full Court was delivered on 2 December 2022. The Full Court upheld the decision at first instance, as well as Ground 1 of Dennis Tipakalippa’s notice of contention: that NOPSEMA was not reasonably satisfied, within the meaning and as required by reg 10(1) and reg 10A respectively of the Regulations, that the Drilling EP demonstrated that Santos had undertaken the required consultations because the Drilling EP:  (a) failed to demonstrate that all relevant persons as defined by the Regulations had been identified; and (b) failed to demonstrate that Santos had consulted each relevant person, insofar as the Drilling EP failed to demonstrate the traditional owners had either been consulted or were not relevant persons.

119    In December 2022 (the precise date is uncertain), the EDO received an undated report titled “Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route” (Knowing Sea Country Report) authored by Dr O’Leary, Dr Kearney and three other academics. The Knowing Sea Country Report concludes with a series of recommendations directed to Santos and expressly relating to the pipeline route. The EDO sent the Knowing Sea Country Report to both Santos and NOPSEMA together with correspondence and statements asserting their clients’ interests in the area in the vicinity of the pipeline.

120    On 15 January 2023, NOPSEMA issued the General Direction to Santos and another joint venturer in the exercise of a power conferred by s 574 of the Act. It was 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)

121    The Explanatory Statement accompanying the General Direction contained a summary of the background to the acceptance of the Pipeline EP. It noted that Santos had become named as a titleholder in May 2021 and that the Pipeline EP had been updated through an internal Management of Change process in September 2021. It referred to an inspection carried out in December 2022 by NOPSEMA Inspectors. It stated that the Inspectors had identified that “more information was required to be obtained by the registered holders regarding consideration of environmental impacts and risks of the activity to any underwater cultural heritage places along the Barossa Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections”. It noted that Santos had given an undertaking not to commence construction of the pipeline until it had undertaken a Management of Change process in relation to the “environmental impacts and risks of the activity not previously identified in the EP”.

122    The Explanatory Statement noted that the undertaking offered by Santos was “consistent with regulation 8 of the Environment Regulations”. It stated that NOPSEMA had nevertheless determined that the General Direction was required “to ensure that any environmental impacts or risks to underwater cultural heritage places along the Barossa Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections not provided for in the EP in force, are identified and reduced to [as low as reasonably practicable] and are of an acceptable level. The Explanatory Statement stated:

In accordance with regulation 17(6) of the Environment Regulations, titleholders are required to submit a proposed revision of the EP for an activity before or as soon as practicable after:  (a) the occurrence of a significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the EP; 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 a significant new environmental impact or risk or a significant increase in an existing environmental impact or risk.

123    By letter dated 27 February 2023, Santos engaged Dr Corrigan to undertake an assessment to “identify any underwater cultural heritage places along the Barossa pipeline route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections that may be affected by the activities covered by the [pipeline]”. Dr Corrigan and those assisting him conducted a series of meetings, interviews and boat trips between 9 March 2023 and 15 August 2023. This included boat trips on 8 and 9 June 2023 (respectively, the 8 June Boat trip and the 9 June Boat trip) and a meeting on 12 March 2023 (March Corrigan Meeting).

124    Over the course of 2023, Santos engaged other experts including Wessex and Dr Posamentier. The EDO (on behalf of several clients for whom it then acted) engaged Dr O’Leary and Mr Lewis. A meeting was held with some Tiwi Islanders, Mr Lewis and the EDO on 30 May 2023 (May Lewis Meeting) and the June O’Leary Workshop.

125    On 15 September 2023 Corrigan 1 was provided to Santos. It contained references to Wessex 1 and Posamentier 1. Dr Corrigan made the following recommendations:

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.

126    In response to those recommendations, Santos subsequently employed Stanley Tipiloura (a member of the Wulirankuwu clan and a witness in these proceedings) to act as a cultural advisor on the vessel Audacia as it surveys the proposed pipeline route and carries out the construction works.

127    On 25 September 2023, Santos engaged with NOPSEMA about its compliance with the General Direction. On the following day, NOPSEMA advised Santos that its inspection team was considering the materials and that they would be in contact if further information was needed.

128    The EDO was provided with Wessex 1 and Posamentier 1 on 13 October 2023.

129    These proceedings were commenced on 30 October 2023.

130    On 1 November 2023, Santos provided NOPSEMA with an updated version of the Pipeline EP which it refers to as Revision 3.4 (Updated EP). It is not a revised environment plan that has been accepted by NOPSEMA and so is not the environment plan that is “in force for the activity” for the purposes of reg 17(6).

PART II

THE PROPER CONSTRUCTION OF REG 17(6)

131    There are more than 80 pages of written submissions devoted to this question alone. It is neither necessary nor practical to engage with every submission advanced by each party on every contentious issue. My reason for rejecting a particular submission of one party should be apparent from what follows, even if it is not expressly stated.

132    The applicants submitted that the obligation to submit a revised environment plan will be triggered under reg 17(6) if five conditions exist. First, there must be an “environmental impact or risk” or an “increase in an existing environmental impact or risk”. Second, the impact or risk must be “new”. Third, the impact or risk must be “significant”. Fourth, the impact or risk must have “occurred”. Fifth, the impact or risk must be one that is not provided for in the environment plan in force for the activity.

133    From that starting point the applicants advance submissions as to the intended meaning of undefined words and phrases contained in the provision itself or within the statutory definitions of those words and phrases that are defined.

134    With some exceptions I accept that the conditions are broadly as described by the applicants, although their broad description says nothing about the meaning of words and phrases. It is necessary to descend into some analysis of their separate meaning, however, that task should not detract from the task of construing the whole of the provision. As Gordon J said in Westpac Securities Administration Ltd v Australian Securities and Investments Commission (2021) 270 CLR 118 (at [54]), a statutory provision is to be read as a whole: it is not to be dissected into separate words or phrases, the meanings of which are then “amalgamated into some composite meaning”. The parties’ submissions do not necessarily suffer from that vice. I read the applicants’ list of elements as intending to provide a framework for advancing arguments on the constructional task in their preferred order. I will approach some of the questions differently.

135    Regulation 17(6) is to be construed in accordance with the Acts Interpretation Act 1901 (Cth) and well established principles. As Kiefel CJ, Nettle and Gordon JJ said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.  …

(footnote omitted)

136    Context, their Honours said, should be regarded at this first stage and not at some later stage, and it should be regarded in its widest sense. The statutory, historical or other context of a provision may suggest that a word bears a meaning other than its ordinary meaning. In such a case, the ordinary meaning must be rejected:  SZTAL at [14] and the cases cited therein.

137    To similar effect, in Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531, Gageler and Keane JJ said:

65    Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ...  But not always.’ Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

66    Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

(footnotes omitted)

138    And as Bell and Gageler JJ said R v A2 (2019) 269 CLR 507 (at [124]):

Consideration of context in its widest sense and the purpose of the statute informs the interpretive task throughout (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.). That consideration and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ.).

139    As a general principle, each word or phrase in the provision should bear a meaning and so be given meaningful work to do:  R v A2, Bell and Gageler JJ (at [154]). The same word or phrase should ordinarily be given the same meaning in each instance where it appears in the statute. Similarly, a provision should be construed in the context of the whole of the statute, to avoid incoherency or absurd outcomes.

140    Some of the words and phrases that appear in reg 17(6) also appear in many other provisions of the Regulations. Especially relevant are reg 7 and reg 8. They provide:

7    Operations must comply with the accepted environment plan

(1)    A titleholder must not undertake an activity in a way that is contrary to:

(a)    the environment plan in force for the activity; or

(b)    any limitation or condition applying to operations for the activity under these Regulations.

Penalty: 80 penalty units.

(1A)    An offence against subregulation (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(2)    Subregulation (1) does not apply in relation to an activity if the titleholder has the consent in writing of the Regulator to undertake the activity in that way.

Note: A defendant bears an evidential burden in relation to the matter in subregulation (2)—see subsection 13.3(3) of the Criminal Code.

(3)    The Regulator must not give a consent under subregulation (2) unless there are reasonable grounds for believing that the way in which the activity is to be carried out will not result in the occurrence of any significant new environmental impact or risk, or significant increase in any existing environmental impact or risk.

8    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.

Penalty: 80 penalty units.

(1A)    An offence against subregulation (1) is an offence of strict liability.

Note:    For strict liability, see section 6.1 of the Criminal Code.

(2)    Subregulation (1) does not apply in relation to an activity if the titleholder submits a proposed revision of the environment plan in force for the activity in accordance with subregulation 17(6) and the Regulator has not refused to accept the revision.

Note 1:    Under subregulation 17(6), the titleholder is required to submit a proposed revision of the environment plan before, or as soon as practicable after, the occurrence of a significant new, or significantly increased, environmental impact or risk.

Note 2:    A defendant bears an evidential burden in relation to the matter in subregulation (2)—see subsection 13.3(3) of the Criminal Code.

141    Regulation 17(6) must be construed in a way that coheres sensibly with each of those provisions, especially given the express interaction in reg 8(2) and the implied interaction in reg 7(3). As offence provisions, they, in turn, are to be construed against the principle stated by the High Court in R v A2. Kiefel CJ and Keane J there said (at [52]):

A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any ‘loose’ construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.

(footnotes omitted)

142    Their Honours added that a broad construction of an offence provision may be warranted in a particular case including when it has a protective purpose (at [55]).

143    Adopting a purposive construction does not otherwise extend to widen the meaning of a provision that creates a criminal offence beyond its textual limits:  R v A2, at [124], Bell and Gageler JJ, citing French CJ, Hayne, Bell, Gageler and Keane JJ in Milne v The Queen (2014) 252 CLR 149 at [38]). On that point, Edelman J said in R v A2:

164    When this Court said in Milne v The Queen that ‘[p]urposive construction does not justify expanding the scope of a criminal offence beyond its textual limits’ it was not suggesting the existence of a separate principle of interpretation for criminal statutes that circumscribed the role of purpose or context to operate only within the covers of the dictionaries of the time. The point being made by this Court was that once courts have interpreted the meaning of the words of a provision they cannot expand that meaning in an attempt to give the words a wider effect. It is not open to courts, independently of their interpretation of the statutory words, to ‘suppose the law-maker present, and that you have asked him this question:  Did you intend to comprehend this case?’ As McHugh J said in Krakouer v The Queen, a decision cited with approval in Milne:

‘If conduct of a particular kind stands outside the [meaning of the] language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than [the meaning of] its language admits.’

165    There might sometimes be a fine line between asking:  ‘In light of its legislative purpose, what would Parliament have intended in these circumstances?’ and asking:  ‘Does the intended meaning of the words used by Parliament extend to these circumstances?’ But the proper question to ask in statutory interpretation is always the latter. Where the relevant meaning of the words of a statute concerns a criminal offence it is particularly important to respect the difference between the two questions, lest the judiciary create, and apply retroactively, a new criminal offence.  …

(footnotes omitted)

Express objects

144    The contextual starting point is that reg 17(6) is subordinate legislation made under the Act. The object of the Act is stated in s 3 as follows:

… provide an effective regulatory framework for:

(a)    petroleum exploration and recovery; and

(b)    the injection and storage of greenhouse gas substances;

in offshore areas.

145    The need for an effective regulative framework is related to factual subject matter of considerable importance. As Allsop CJ said in Federal Commissioner of Taxation v Shell Energy Holdings Australia Ltd (2022) 288 FCR 193 (at [5]), “the context of the legislation in question includes the commercial and sovereign dealing with national resources of great importance.” That subject matter is inherently one in which competing interests may be at play, whether public or private.

146    For Santos it was submitted that the objectives of the Act should be understood as relating to the public interest in energy supply and security, which included the need for a titleholder to have certainty, and for unnecessary burdens, disruptions and delay to be minimised or avoided. Subject to what follows, I accept that submission. The factual subject matter of the Act encompasses large scale infrastructure projects potentially involving considerable investment, such that an “effective” regime must be one in which the law regulating that activity is law that should be easily understood and readily applied to practical, real-life concerns. But the “effectiveness” of a regulatory framework is not to be directly equated with the efficacy, efficiency or profitably of the activity of extracting and exporting gas or petroleum. The word “effective” does not indicate a leaning toward the interests of the titleholder or any other financially invested interest. It is a reference to the effectiveness of the law, but it implies no policy statement as to how competing public or private interests are to prioritised. The law should be certain in its meaning to stakeholders, but it need not be construed in a way that appeals to them.

147    As is common with regulatory regimes, the broad “framework” of the Act is to prohibit conduct, and then to establish a licensing regime by which the otherwise unlawful conduct might be lawfully engaged in. Such regulation is typically (but not always) by way of conditions imposed on the licence holder by direct enactment or by the exercise of mandatory or discretionary administrative powers conferred upon a regulating body.

148    In the present context, NOPSEMA became the single Regulator following the passage of the Greenhouse Gas Storage Amendment (National Regulator) Bill 2001 (Cth) and replaced seven separate authorities then in existence. That amendment was in response to a 2009 Productivity Commission report titled “Review of Regulatory Burden on the Upstream Petroleum (Oil and Gas) Sector” and the “Report of the Montara Commission of Inquiry June 2010”. In accordance with the first mentioned report, the amendments were to “reduce unnecessary burdens on the upstream oil and gas sector – in other words, regulatory burdens that can be removed without compromising desirable outcomes, such as relating to resource management, the environment, heritage, development, land access and occupational health and safety”. The latter report was a response to Australia’s third largest oil spill. It recommended the establishment of a single regulatory body to oversee safety as a primary objective, which encompassed well integrity and environmental management. To the extent that Santos submitted that the Bill had the aim of lessening environmental protections, I reject the submission.

149    The Act provides for the grant of titles including a “pipeline petroleum production licence” and a “pipeline licence”. It is an offence to construct a pipeline in an offshore area, unless the construction is authorised by a pipeline licence:  Act, s 210. A person holding such a licence is a “titleholder” for the purposes of the Act and the Regulations. Section 211 of the Act confers certain rights on a pipeline licence holder including the right to construct a pipeline in an offshore area (specified in the licence) a pipeline (along a route that is specified in the licence) and associated pumping, tank and valve stations (as specified in the licence) and to operate the pipeline and those stations. Those rights are expressly made subject to the Act and the Regulations:  Act, s 211(2).

150    The Act contains empowering provisions authorising the making of regulations, including regulations creating criminal offences:  see ss 781, 782, 790. At trial, Santos did not advance any argument to the effect that the Regulations are ultra vires the Act.

151    The objects of the Regulations are stated in reg 3, as follows:

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.

152    For the purposes of paragraph (a) of those objectives, the relevant principles are the “principles of ecologically sustainable development” set out in s 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). 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;

153    Two things may be said of those principles. First, there is an objective to prevent harm, taking precedence over an approach that remediates or repairs harm once done. Secondly, there is a focus upon measures being taken to reduce, eliminate or minimise risk, even if it is not possible to scientifically determine the precise degree of risk, or the precise nature of the harm that might be caused should the risk transpire. That principle is one relating to threats of serious or irreversible environment damage. Paragraphs (b) and (c) of reg 3 reinforce those principles to an extent, however they also make it plain that the objective of the Regulations is not to eliminate or avoid risk altogether. The phrases “as low as reasonably practicable” and “acceptable level” are highly evaluative and context sensitive.

154    As with the Act, the framework established under the Regulations involves the creation of offences for engaging in specified conduct in specified circumstances. It is an offence for a titleholder to undertake an “activity” if there is no environment plan in force for the activity:  reg 6. And, as discussed earlier, it is 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. The word “activity” is defined to include a “petroleum activity”, which encompasses operations or works in an offshore area undertaken for the purpose of exercising a right or discharging an obligation conferred or imposed on the titleholder under a petroleum title. The rights referred to in that definition necessarily encompass the rights conferred on Santos as the holder of a pipeline licence issued under s 210 of the Act.

The factual and legal landscape in which reg 17(6) resides

155    Against that wider context, it is necessary to consider the placement of reg 17(6) within the scheme established by the Regulations as a whole. On its terms, it is a provision that can only come into play in circumstances where there is already an environment plan “in force”. An environment plan is “in force” if it has been accepted by NOPSEMA, and that acceptance has not been withdrawn, and the operation of the plan has not ended:  reg 4. That directs attention to Div 2.2 of Pt 2 of the Regulations, which establishes a detailed regime for the preparation, submission and acceptance of environment plans.

156    NOPSEMA’s power to accept an environment plan is conferred under reg 10. The task of construing reg 17(6) must necessarily involve some consideration of the nature of that power and the conditions on its exercise. Examining the nature and limits on the power also assists in determining the factual and legal landscape against which an obligation to submit a revised environment plan may arise.

157    Before commencing an activity, the titleholder must submit an environment plan for the activity to NOPSEMA, defined as the “Regulator”:  reg 9. Regulation 10 relevantly provides that if NOPSEMA is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, it 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. The criteria are as follows:

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.

158    Paragraphs (a) to (f) reflect the mandatory content for an environment plan prescribed in reg 13, including requirements that the plan describe the existing environment that may be affected by the activity, and that it include (among other things):

(1)    details of the particular relevant values and sensitivities (if any) of that environment;

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

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

(4)    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 (including an evaluation of all the environment impacts and risks arising directly or indirectly from all operations of the activity and potential emergency conditions).

159    In respect of the first mentioned requirement, reg 13(2) and reg 13(3) provide:

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.

Note:  The definition of environment in regulation 4 includes its social, economic and cultural features.

(3)    Without limiting paragraph (2)(b), particular relevant values and sensitivities may include any of the following:

(a)    the world heritage values of a declared World Heritage property within the meaning of the EPBC Act;

(b)    the national heritage values of a National Heritage place within the meaning of that Act;

(c)    the ecological character of a declared Ramsar wetland within the meaning of that Act;

(d)    the presence of a listed threatened species or listed threatened ecological community within the meaning of that Act;

(e)    the presence of a listed migratory species within the meaning of that Act;

(f)    any values and sensitivities that exist in, or in relation to, part or all of:

(i)    a Commonwealth marine area within the meaning of that Act; or

(ii)    Commonwealth land within the meaning of that Act

160    Additional requirements for the content of an environment plan are prescribed in regs 14 to 16. Regulation 14 requires that the environment plan contain an “implementation strategy” and prescribes in some detail what that strategy must include. Among other things, the strategy must include an “environmental management system” to ensure that, for the duration of the activity, the environmental impacts and risks of the activity continue to be identified and reduced to a level that is as low as reasonably practicable.

161    The phrases “environmental impacts and risks” and “impact and risks” appear repeatedly throughout the provisions referred to thus far.

162    Regulation 11A 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.

163    In Santos, Kenny and Mortimer JJ said this of the consultative process:

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.

164    See also Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158, Colvin J (at [4]).

165    The power to accept an environment plan under reg 10 is therefore conditioned by a requirement that NOPSEMA form a state of satisfaction that the submitted plan has the substantive content prescribed under regs 13, 14, 15, 16: see for example, regs 10(a), (d), (e), (h). It also requires NOPSEMA to perform the highly evaluative tasks envisaged by regs 10(a), (b), (c), specifically by satisfying itself that the environment plan is appropriate for the nature and scale of the activity and demonstrates that the environmental impacts and risks will be reduced to as low as reasonably practicable and that they will be of an acceptable level. NOPSEMA must be satisfied not only that the titleholder has carried out the consultation required under reg 11A, but also as to the appropriateness of the measures (if any) that the titleholder has adopted or proposes to adopt because of those consultations. The intent of that scheme is to put before NOPSEMA all of the information it requires to perform the evaluative task exclusively conferred upon it.

166    The regime relating to the preparation of an original environment plan does not envisage that the titleholder can determine for itself how impacts and risks are to be managed, mitigated or avoided. Rather, its obligation is to undertake the significant assessments required under reg 13 so as to identify the values and sensitivities of the whole of the environment that may be affected by the activity, and then to submit to NOPSEMA its proposed response to them.

167    The circumstance that there is an environment plan “in force” envisages that, in the ordinary course, all of the requirements referred to thus far have been fulfilled. Importantly for present purposes, the acceptance of the environment plan reflects NOPSEMA’s satisfaction that the titleholder has fulfilled its obligation to provide details of the values and sensitivities (if any) of the environment that may be affected by the activity and that it has proposed measures to reduce or address environmental impacts and risks to prescribed standards and that NOPSEMA has satisfied itself of the appropriateness of the titleholder’s proposal in multiple respects. It also envisages that relevant persons have been consulted and that they have therefore had an opportunity to disclose to the titleholder any matters relevant to the titleholder’s investigations and the exercise of NOPSEMA’s powers.

Revised environment plans

168    Regulation 17 addresses a number of circumstances in which an obligation to submit a revised environment plan may arise, including that there is a new activity (reg 17(1), (2), (3), (4)), a significant modification or new stage in an activity (reg 17(5)), a new or increased environmental impact or risk (reg 17(6)), or a change in titleholder (reg 17(7)).

169    In addition, a titleholder must submit a revised environment plan if requested by NOPSEMA to do so, under and in accordance with a power conferred by reg 18. It relevantly provides:

(1)    A titleholder must submit to the Regulator a proposed revision of the environment plan for an activity if the Regulator requests the titleholder to do so.

(2)    A request by the Regulator must be in writing and set out the following:

(a)    the matters to be addressed by the revision;

(b)    the proposed date of effect of the revision;

(c)    the grounds for the request.

…

(6)    A titleholder must comply with a request made by the Regulator under subregulation (1) and not withdrawn, or with a variation of a request under paragraph (5)(c), as soon as practicable.

170    NOPSEMA may withdraw an environment plan in (and only in) the circumstances described in reg 23. They do not include the circumstance that the titleholder has failed to comply with regs 13 to 16. However, they do include the circumstance that the titleholder has failed to comply with reg 17 or reg 18.

171    The power in reg 18 is not expressly pre-conditioned by any of the factual conditions referred to in reg 17, nor is it pre-conditioned by NOPSEMA having any state of mind about any one of those things. A concern by NOPSEMA that any one of the events referred to in reg 17 has occurred may of course form the basis for a request under reg 18, or the exercise of other powers (including the power to issue a Direction under s 574 of the Act), but on its terms, reg 18 does not confine the power to make a request to factual circumstances to which reg 17 refers. The broad scheme is that the Regulations themselves directly prescribe the factual circumstances in which a revised environment plan must be submitted and, in addition, confer a discretion on NOPSEMA to request that a revised plan be submitted in those or other circumstances. The other circumstances may include NOPSEMA’s concern that the titleholder’s initial investigations were insufficient to identify all relevant values and sensitivities of the relevant environment. They may also include a concern that a previously unknown risk associated with the activity has subsequently become known.

172    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).

173    The power to accept a revised environment plan is contained in reg 21. It specifies certain regulations that are to apply to a proposed revision if relevant “as if a reference in those regulations to the submission, acceptance or non-acceptance of the environment plan were a reference to the submission, acceptance of non-acceptance of the proposed revision”. The named regulations include reg 11A imposing the obligation to consult. It would apply to the preparation of the revised environment plan only to the extent that it is relevant. It seems to me that the nature and extent of the consultation required may be affected by all manner of circumstances, including the reason for the need to submit the revised plan, but it is not necessary to decide that point.

174    If a proposed environment plan 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, as if the revision has not been proposed:  reg 22. However, NOPSEMA may withdraw its acceptance of the environment plan that is in force, including after its non-acceptance of a proposed revised environment plan:  regs 23 to 25.

175    That is the broad legislative context against which the words and phrases used or referenced in reg 17(6) are to be construed.

“Occurrence” and knowledge

176    For what follows it is helpful to push the text of reg 17(6) to the front of stage again. The words are as follows:

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;

177    The opening words of the provision impose upon a person (the titleholder) an obligation to do a thing (submit a revised environment plan) at a point in time (before or as soon as practicable after any one or more of the circumstances then described). The circumstances described in (a) and (b) are expressed in objective language: their existence does not depend on the state of mind of any person.

178    The applicants submitted that the circumstances “occur” when the titleholder first becomes aware of the impact or the risk (as the case may be). That submission gives the word “occurrence” an an ill-fitting meaning. The word “occurrence” in reg 17 is textually connected with an objective event, not with the state of mind of any person.

179    Nor do the words of the offence in reg 8 attach any knowledge requirement or qualification to the phrase “occurrence of any significant new environmental impact or risk”.

180    Regulation 8 is extracted at [140] above. The physical element of the offence is the undertaking of the activity at a time “after the occurrence of” the circumstances described in reg 8(1)(a)(i) or (ii) and where the circumstance in reg 8(b) also exists. The offence is one of strict liability: reg 8(1A). Accordingly, proof of commission of the offence does not require proof that the titleholder knew of the existence of the relevant occurrence:  He Kaw Teh v The Queen (1985) 157 CLR 523, Gibbs CJ (at 532). Rather, at a trial for the commission of the offence, the onus would be on the prosecution to prove, to the criminal standard, that the titleholder did not make an honest and reasonable mistake of fact as to whether or not there had been an occurrence at the time that the activity was undertaken:  He Kaw Teh, Gibbs CJ (at 532). It is unnecessary to attach a knowledge aspect to the word “occurrence” in order for the offence provision to be workable. To the contrary, importing a knowledge requirement into the word “occurrence” does violence to the plain intention of the provision and its express exclusion of knowledge as a fault element attaching to the physical element. Proof of the titleholder’s actual knowledge of the existence of the relevant occurrence or circumstance would of course assist the prosecution in disproving the existence of an honest and reasonable mistake of fact. But knowledge is not the fault element.

181    Attaching a knowledge aspect to the word “occurrence” also creates unnecessary complexity and incongruity in the context of reg 7(3). It provides that NOPSEMA’s power to grant its consent for a thing to happen (being a thing that would otherwise constitute an offence) is conditioned by a requirement that NOPSEMA not give the consent “unless there are reasonable grounds for believing that the way in which the activity is to be carried out will not result in the occurrence,” etc. The word “occurrence” in that context cannot sensibly be laden with an actual knowledge aspect. Attempting to do so creates a problem as to whose knowledge is relevant. If it is to be NOPSEMA’s knowledge, then that would do violence to the requirement that all that need be identified are reasonable grounds for a belief that the objective circumstances exist. If it be the titleholder’s knowledge, then the power to grant consent would be conditioned by a requirement that there be no reasonable grounds for a belief that the titleholder is aware of the objective existence of the relevant circumstance. That is not a sensible construction.

182    It may be accepted that the meaningful and practical operation of reg 17(6) requires that there be some measure by which a titleholder, NOPSEMA, or another interested person, may ascertain at any point in time that the obligation under reg 17(6) has or has not arisen. There is a requirement for certainty in at least that temporal respect. The question of whether a titleholder has acted “as soon as reasonably practicable” after the objective circumstances exist is a question that requires consideration to be given as to when the titleholder first became aware of that existence.

183    In my view, it is implicit that the time at which the knowledge is acquired will be a relevant circumstance in determining whether the obligation to act “as soon as reasonably practicable” has been fulfilled. That implication may readily be drawn given that the objective of the Act is to establish an effective regulatory framework, being one that is understandable and workable in practical, real-world circumstances having regard to the importance of the subject matter of the Act and the generally protective purpose of the Regulations. But it is not necessary to distort the meaning of the word “occurrence” to achieve that objective.

184    The consequences of that construction in its application to the facts of a case may be no different to the consequences of the construction preferred by the applicants. However, I have dealt with that question first because if the word “occurrence” is to be given anything but its ordinary meaning, that may have had implications for the remaining questions to be decided.

185    The ordinary meaning of the word “occurrence” hardly needs explaining. It points to a thing that has “occurred”, to something that has taken place or happened. One of the “occurrences” to which reg 17(6) refers is a “significant new environmental impact”. The next question is how the word is to operate in connection with the word “risk”.

“Occurrence” of a risk

186    In its ordinary meaning, the word “risk” refers to a chance of an adverse thing occurring. It says nothing about the degree of the chance or the magnitude or nature of the adverse thing. A risk may be miniscule in terms of mathematical probability, but serious with respect to the gravity of the consequence should it transpire. A risk may be great in terms of mathematical probability and yet trivial in respect of the adverse consequence.

187    On the applicants’ preferred construction, the two alternatives referred to in reg 17(6)(a) are the “occurrence of any significant new environmental impact” (a limb not relied upon) and “the occurrence of a risk of any significant new environmental impact” (a limb relied upon).

188    The applicants submitted that a risk is not always something that “occurs” at an identifiable point in time, or at all. They submitted that a latent risk in connection with an activity may be always and ever present, but not known. They submitted that the word “occurrence” does not naturally attach to such a thing and it was therefore necessary to conceive of a risk occurring when the titleholder first becomes aware of it. I have rejected that interpretation of the word “occurrence” for reasons just given.

189    I have no difficulty in conceiving of a risk “occurring”. A risk occurs when the objective circumstances that give rise to the danger first come into existence. As identified above, a titleholder will act as soon as reasonably practicable if it submits the proposed revision as soon as reasonably practicable after acquiring knowledge of the facts or circumstances that have given rise to it. That knowledge may be acquired some time after the risk has “occurred” in the sense I have explained. Whether a risk that has occurred may properly be characterised as “new” is a different question.

190    The text and structure of reg 8 confirm that a risk may be something that “occurs”. It does no violence to that provision to conceive of a risk occurring when the facts and circumstances giving rise to the relevant danger first come into existence, assessed objectively. The state of mind of the titleholder is irrelevant at that stage of the inquiry. Again, whether the risk is “new” is a different and additional requirement.

191    The parties’ submissions proceeded on the correct basis that the risk to which reg 17(6) refers is a risk of “environmental impact”, not a risk of something extraneous to the Regulations. It is convenient to construe that phrase before turning to the concepts of “significant” and “new”.

Environmental impact

192    The expression “environmental impact” is defined in reg 4 to mean “any change to the environment, whether adverse or beneficial, that wholly or partially results from an activity”. The word “environment” is defined in very broad terms 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).

193    The applicants employed the phrase “cultural features” in paragraph (e) of the definition in their connection with matters mentioned in (a) and (c). They relied on three combinations of words and phrases as follows:

(1)    cultural features of an “area” (which are said to encompass spiritual connection to sea country);

(2)    cultural features of locations or places (which are said to encompass tangible cultural heritage); and

(3)    cultural features of an “area” or “people” (which are said to encompass song lines or Dreamings).

194    The applicants relied principally on this definition of the word “culture” as it appears in the Oxford English Dictionary (online):

Refinement of mind, taste, and manners; artistic and intellectual development. Hence: the arts and other manifestations of human intellectual achievement regarded collectively.

195    The closing submissions relegated an important part of the dictionary definition to a footnote:

The distinctive ideas, customs, social behaviour, products, or way of life of a particular nation, society, people, or period. Hence: a society or group characterized by such customs, etc

196    Both parts of the dictionary definition have a communal or collective aspect.

197    The notion of a society or group being characterised by customs, social behaviour, ideas or a way of life is not unfamiliar in the context of native title law. The identification of a normative system of traditional laws and customs assumes importance in that legal context for several reasons. On an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (NT Act) the applicant (typically authorised to represent a group of Aboriginal people) must establish that the members of the represented group have native title rights and interests in land or waters as defined in s 223. It relevantly provides:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and