Federal Court of Australia

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

SUMMARY

In cases of public interest, importance or complexity it is the practice of the Federal Court to prepare a summary of reasons for the Court’s orders to assist the public to understand the outcome of the proceeding. This summary is not to be read as a complete statement of the Court’s reasons, which are provided in the published judgment that will appear in due course on the Court’s website.

These proceedings were commenced on 30 October 2023. The initiating documents included an urgent application for an injunction to stop the commencement of works for the installation of a 262km long gas export pipeline in the Timor Sea.

The three applicants are Aboriginal people from the Tiwi Islands, respectively of the Jikilaruwu, Munupi and Malawu clans. The respondent, Santos NA Barossa Pty Ltd, holds a pipeline licence issued under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and is a titleholder for the purposes of that Act.

In 2019, Santos submitted to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), an environment plan relating to the activity of constructing the pipeline. That environment plan was accepted on 9 March 2020 in the exercise of a power conferred under reg 10 of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth).

Last week the Regulations were repealed and replaced, but the proceedings have continued on the common ground that the new regulations now in force have not altered the meaning of critical provisions. As in the reasons for judgment, for convenience this summary refers to the provisions of the recently repealed Regulations, as if they remain in force. The same outcome ensues under the newly enacted law.

Regulation 17(6) relevantly 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:

Regulation 8 provides that a titleholder will commit a criminal offence if it undertakes an activity in circumstances where, relevantly, there has been the occurrence of any significant new impact or risk that is not provided for in the environment plan in force for the activity.

The word “environment” is defined very broadly in the Regulations. It includes “ecosystems and their constituent parts, including people and communities” and “the qualities and characteristics of locations, places and areas”. Critically for the purposes of this proceeding, it also includes the “cultural features” of those things.

The applicants allege that there has been an occurrence of a significant new environmental impact or risk within the meaning of both reg 8 and reg 17(6). They seek a declaration to the effect that Santos has a present obligation to submit a revised environment plan, and an ongoing injunction restraining it from installing the pipeline until the revised environment plan is accepted by NOPSEMA.

The applicants allege that there are a number of “cultural features” relating to the area of the pipeline route. They allege that an overriding cultural feature is the spiritual connection that the Jikilaruwu, Munupi and Malawu people have to the area of sea country through which the pipeline will pass. They allege that that spiritual connection will be damaged in a number of ways.

They allege that the pipeline will disturb the travels of an ancestral being of fundamental importance in their culture, a rainbow serpent known as Ampiji. They allege that Ampiji is the caretaker of the sea and that the pipeline will not only disturb her in her travels but cause her to create calamities that may harm Tiwi people. In addition, it is alleged that there is a song line of significance to the Jikilaruwu people about a shape-shifting ancestral being known as Jirakupai, or the Crocodile Man. The applicants allege that that song line is one having a pathway from Cape Fourcroy on the western most point of Bathurst Island into the deep sea in the vicinity of the pipeline route. They allege that the activity of constructing the pipeline will either intersect that song line or otherwise disturb the Crocodile Man in his wider travels in the sea. They further allege that the pipeline will anger the Crocodile Man because it is in his territory in Jikilaruwu sea country.

Those aspects of the applicants’ claims were referred to in the proceedings as relating to intangible cultural heritage.

In addition, the applicants allege that a cultural feature of the place where the pipeline is to be laid is that it may contain artefacts of archaeological significance relating to human occupation and activity on the land before sea levels rose. The applicants allege that the archaeological record forms a part of their cultural heritage and that the construction of the pipeline gives rise to a significant risk that their cultural heritage will be damaged, destroyed or lost.

That aspect of the applicants’ claims was referred to in the proceedings as tangible cultural heritage.

On 2 November 2023, the Court granted an injunction which prohibited works on the pipeline from proceeding at all for a short period until argument on an interlocutory injunction could be heard and determined. On 15 November 2023, the Court granted a varied injunction prohibiting work from proceeding other than in the northern most reaches of the pipeline route. That injunction was expressed to remain in force until 5.00pm today unless varied by the trial judge. The reason for the injunction remaining in force for that period of time is explained in reasons published as Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421.

The trial of this action was expedited. The Court heard from 23 Indigenous witnesses as well as ten expert witnesses. It has before it 25 expert reports.

An issue in dispute relates to the proper interpretation of a number of words and phrases contained in reg 17(6) and other provisions, particularly the words and phrases “cultural feature”, “occurrence”, “significant”, “new” and “risk”. Part II of the written reasons for judgment contains my conclusions about the proper construction of the provision as a whole, having regard to its text, context and the purpose of the legislative regime.

I have concluded that what must be shown is a risk that is significant having regard not only to the chance that an adverse event might occur but also to the nature and gravity of the feared harm.

I have concluded that, on the proper construction of the word “new”, the risk must be one that arises by virtue of facts and circumstances first coming into existence after the original approval of the environment plan. I have concluded that risks that do not meet that description are intended to be addressed by other provisions in the Regulations, such that it is not necessary to construe reg 17(6) in a broad way to capture them.

In this case the onus was on the applicants to prove that the area of the sea through which the pipeline will pass has one or more of the cultural features they asserted. That has required the evidence to be approached having particular regard to the way in which the applicants framed their case. In large part, that case was framed in terms of the beliefs and customs of the Jikilaruwu, Munupi and Malawu people as a people. Accordingly, it was not sufficient for the applicants or their witnesses to give evidence about their personal beliefs. Rather, it was necessary to show that those beliefs (if accepted on the evidence), were broadly representative of the people of the relevant clans with respect to each song line.

The case founded on the Ampiji Dreaming had two aspects to it. One of those aspects included a claim that there was a “potentially adapted account” of the traditional Dreaming of the Ampiji. The applicants allege that members of the relevant clan groups had adapted their oral traditions and their Dreaming stories, having regard to new information that they had learned about their environment. The new information they relied upon is that identified in an expert report of a geoscientist who engaged in what was referred to as a “cultural mapping” exercise with some Tiwi Islanders. The geoscientist discussed his process as one involving the reinterpretation of Aboriginal tradition “through a Western scientific lens and mapped within a GIS environment”, which he said was based on oral descriptions of Tiwi people.

The geoscientist expressed an opinion that there existed in ancient times a “massive freshwater lake” in a place on the landscape before it was submerged by rising sea levels. That place is about ten kilometres west of Cape Fourcroy on Bathurst Island and on the other side of the pipeline route. The adaptive account that arose from the cultural mapping exercise is that there resides in that freshwater lake a Mother Ampiji that travels around the Tiwi Islands and, also, in the wider sea. In submissions and other documents, the ancient lake is referred to as a “sacred freshwater source”.

As explained in Part V of my reasons I have rejected that aspect of the applicants’ claims entirely. I have drawn conclusions about the lack of integrity in some aspects of the cultural mapping exercise which undermined my confidence in the whole of it. As a consequence of that conclusion, I am not satisfied that there is any risk of environmental impact of the kind asserted by the applicants in this part of the case, and it has therefore been unnecessary to consider whether any such risk should be characterised as “significant” or “new”.

The case founded on the traditional accounts of the Ampiji and the Crocodile Man was characterised by a significant degree of divergence among relevant Tiwi Islanders about the content of those Dreaming or song lines. It has been necessary to make findings about the significance of that division among the witnesses. It is a division that must be considered having regard to other aspects of the culture of the Jikilaruwu, Munupi and Malawu people, including about such matters as who has the authority to speak for certain country or song lines.

In the result, I have concluded that the evidence asserting that the song lines relate to or extend into the area of sea country through which the pipeline will pass is insufficient. On the evidence before me, I am not satisfied that evidence given by the witnesses called by the applicants is broadly representative of beliefs held by the relevant group or groups of people and so cannot be characterised as a “cultural feature” of an area, place or ecosystem (including people as a constituent part). That part of the applicants’ case is dealt with in Part IV of my reasons.

In respect of the claim founded on tangible cultural heritage, the evidence establishes nothing more than a negligible chance that there may be objects of archaeological value in the area of the pipeline route. Accordingly, I do not consider that there is a risk of the requisite kind to trigger the obligation in reg 17(6), properly construed. I have reached that conclusion largely because I am not satisfied that the expert reports relied upon by the applicants can support the propositions for which they argued. I deal with that aspect of the applicants’ case in Part VI of my reasons.

In addition, as discussed in Part VII of my reasons, I am not satisfied that the risks relating to tangible and intangible cultural heritage are “new” within the meaning of reg 17(6), properly construed. I have rejected the applicants’ submissions about the intended meaning of that word.

The Court will now make orders dismissing the amended originating application and discharging the injunction granted on 15 November 2023.

CHARLESWORTH J

15 JANUARY 2024, ADELAIDE