This is our country and we must be consulted

Tiwi Islanders are rejoicing after the Full Federal Court upheld a landmark ruling that invalidated Santos’ approvals to drill for gas in Tiwi Sea Country.

The Federal Court had earlier found Santos failed to consider Tiwi People as part of its consultation about the drilling project, as required by law.

Santos’ appeal, heard by a full bench of the Federal Court in November, came on the heels of Tiwi Senior Lawman Dennis Tipakalippa’s historic September victory. 

Mr Tipakalippa argued that NOPSEMA, the federal offshore gas regulator, should not have approved Santos’ plans to drill the Barossa gas field because the company had not properly consulted the Munupi Clan. 

“We have fought to protect our sea country from the beginning to the end and we will never stop fighting. Our sea is like our mother - we are part of the sea and the sea is part of us. Santos and every other gas company must take note that this is our country and we must be consulted”, He added.

In a historic decision, the Court presided over by Justices Kenny, Mortimer and Lee, dismissed Santos’ arguments that Tiwi Islanders are not required to be consulted about potential impacts on their sea country. 

“..we consider that Santos was required by reg 11A(1)(d) to consult Mr Tipakalippa and the Munupi clan because they had interests that may be affected by Santos’ proposed activities under the Drilling EP,” the judgement read.

The judge found it was not legally open to the management authority to be reasonably satisfied that Santos had carried out consultations with relevant persons under the regulations.

The court’s decision to reject Santos’ appeal will have significant implications for the Barossa gas project, with drilling stalled since early October and Santos now required to go back to the drawing board on their plans. 

Santos has been ordered to pay Mr Tipakalippa’s costs.

While Environment Centre Northern Territory Director Dr Kirsty Howey said the decision sends a message to all gas companies that they cannot sideline First Nations peoples.

In a statement, Santos notes the decision by the Full Federal Court today to dismiss the appeal from Justice Bromberg’s decision in September, which set aside NOPSEMA’s approval of the Barossa Gas Project’s Drilling Environment Plan (Plan).

Santos has always sought to meet its consultation responsibilities and is continuing the process of revising the Drilling Environment Plan to address the matters contained in the judgement.

Further, Santos will now proceed with applications for all remaining approvals in accordance with the guidance provided by the Court.

As a result, Santos does not anticipate any material cost or schedule impact, and first gas from the Barossa Gas Project remains on track to be delivered in the first half of 2025.

Tiwi Senior Lawman Dennis Tipakalippa launched the lawsuit in June 2022, arguing that NOPSEMA, the federal offshore gas regulator, should not have approved Santos’ plans to drill the Barossa gas field, because Santos failed to properly consult the Munupi Clan.

Traditional Owners told the court that Santos’ Barossa offshore gas project posed a risk to food sources and a continuous spiritual connection to Sea Country that has endured for millennia.

In August 2022, the Federal Court made a historic journey to travel to the Pitjamirra beach homeland on Melville Island of the Tiwi Islands to take on-Country evidence from Traditional Owners including in the form of song and dance.