Court decision

Federal Court lifts injunction, dismissing application against Santos’ Barossa Project export pipeline

By James Plumb and Aaron Alcock / 22 January 2024

The Federal Court has dismissed an application seeking to prevent construction of a 262km gas export pipeline connecting the Barossa Field to existing infrastructure (the Barossa Pipeline). The application contended that the pipeline project would significantly impact Aboriginal cultural heritage.

Partners James Plumb and Aaron Alcock report, with support from Law Clerk Siobhan Lyons.

Background

Santos, the operator of the Barossa Gas Project, an offshore gas and condensate project, holds various approvals for the project, including acceptance by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) of an environment plan for the construction of the Barossa Pipeline.

The applicants alleged that a significant new environmental impact or risk within the meaning of Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (the Regulations) regulation 17(6) had occurred, and that this required Santos to submit a revised environment plan for consideration by NOPSEMA before activities could commence.  

The application was filed on 30 October 2023, two days before works for the construction of the Barossa Pipeline were scheduled to commence. The applicants successfully obtained a temporary injunction preventing construction within a specific section of the proposed pipeline area in November 2023, which was later extended by the Court until the application could be finally determined. Those decisions are the subject of our previous articles: Tiwi Islands Traditional Owners win legal case against Santos’ Barossa offshore projectFederal Court rejects Santos appeal, upholding Tiwi Islands Traditional Owners’ landmark legal win against Barossa offshore gas project and Federal Court extends injunction stopping construction of Barossa Project export pipeline

Reasoning behind the decision

The applicants sought orders that:

  1. Santos be required to submit a revised environment plan to NOPSEMA under regulation 17(6);
  2. a permanent injunction restraining Santos from laying the Barossa Pipeline until it submitted the revised plan and the revised plan was accepted by NOPSEMA.

On 15 January 2024, the Federal Court of Australia handed down its decision in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 dismissing the application and discharging the temporary injunction.

Significant risk

It was argued by the applicants that, after the environment plan had been approved by NOPSEMA, new evidence had come to light which indicated that a number of cultural features were at risk in the area of the pipeline route, including tangible and intangible cultural heritage.

There were two key aspects to the intangible cultural heritage case. The first aspect was argued to have been founded on ancient oral tradition including allegations that the construction and presence of the Barossa Pipeline would disturb the ancestral beings known as Ampiji (being one or more rainbow serpents said to be caretaker of the land and sea) and that the Crocodile Man (who is connected with a place in the sea in the vicinity of the Barossa Pipeline) would be disturbed in his travels. The second aspect involved an argument that the historical home of a Mother Ampiji (said to be an Ancient Lake and Ancient Embayment) would be disconnected from the applicants’ clan country in the Tiwi Islands by the presence of the Barossa Pipeline.

Her Honour held that the evidence that the intangible cultural heritage extended into the area of sea country through which the Barossa Pipeline would pass was insufficient. Her Honour agreed with Santos’s submissions that the cultural mapping exercise that had been undertaken created confusion in the Tiwi Islanders who had participated in it and that it involved, in part, a “confection” or “construction”, tainting the consideration that could be given to the evidence.  

The case for tangible cultural heritage was that the area of the Barossa Pipeline may contain artefacts of archaeological significance of human occupation and activity. It was alleged these cultural artefacts would face significant risk of being damaged, destroyed or lost, if construction occurred.  

Her Honour accepted the applicants’ argument that the actual presence of such artefacts was not required to be established on the balance of probabilities. Regardless, she found that the evidence showed that the chance of such artefacts being proximate to the pipeline route was negligible. While acknowledging the genuine concern for the preservation of objects of cultural significance, Her Honour concluded that the evidence was insufficient to show that, if such an object existed, it might be at a risk of damage, destruction or loss.  

Ultimately, it was found that the asserted risk was not significant (as required by regulation 17(6)). 

Meaning of new environmental impact or risk

The applicants submitted that, for the purpose of regulation 17(6), an environmental risk occurs when it comes to the attention of the party applying for approval of the relevant environment plan, and that such a risk is new if it is not contemplated by that plan.  

Her Honour disagreed, finding the proper construction of the word “new” required that the relevant risk must arise under facts and circumstances arising after the original approval of the environment plan.  

On that construction, Her Honour found that the word “new” does not include the discovery of a previously unknown risk, created by facts and circumstances coming into existence before the environment plan was approved. 

Conclusion

Her Honour found that the risks asserted by the applicants were neither “new” or “significant” for the purpose of regulation 17(6).

The decision represents a key development in the interpretation of regulation 17 and provides guidance for judicial acceptance of evidence associated with tangible and intangible cultural heritage.

The rejection of the application will allow Santos to construct the Barossa Pipeline in accordance with existing approvals. Despite Santos’s success, some commentators have called for further amendments to the Regulations and associated Federal environmental legislation to give proponents greater project certainty and comfort against challenges of the type seen in this case.

Key Contacts
James Plumb
Partner
James is a Partner in our Resources, Energy and Projects practice.
Aaron Alcock
Partner
Aaron is a Partner in our Dispute Resolution practice with a particular focus on resolving disputes involving resources and energy projects, property, technology and intellectual property.

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