Santos win reveals the environmental movement’s damaging own-goal

There are salutary lessons to be had from this week’s failure to legally block the building of a gas pipeline on the grounds of its risks to Indigenous cultural heritage – the first is not to over egg an argument and to keep it plausible.

The Federal Court judge presiding over the case found some evidence presented by the environmental group to be confected, contradictory and even made up.

Molly Munkara, a Jikilaruwu elder, is one of the Tiwi Islanders who in November 2023 appealed to the environment minister to stop Santos laying a pipeline through their sea country for its Barossa gas project.Credit: Tymunna Clements

It is a dangerous and damaging defeat in which the judge said an expert witness and a lawyer for the environmental group had taken part in “a subtle form of coaching” of Indigenous witnesses.

The clear message is that environmental groups need to pick their battles more wisely.

Environmental groups have had a pretty good batting score when seeking to alter or restrict developments, but this precedent won’t do the cause any favours.

Santos, whose plans to develop its Barossa LNG project with a new pipeline now has a green light, is more familiar with losing to environmentalists.

The Tiwi Islander loss risks raising the bar for future cases brought by environmental and Indigenous groups.

The LNG project involves the development of the Barossa gas field offshore from the Northern Territory that involved the construction of a new pipeline west of the Tiwi Islands to connect the field to the existing Bayu-Undan underwater pipeline already taking gas to the Darwin LNG plant.

But this case was no Juukan Gorge 2.0, which involved Rio Tinto’s destruction of precious First Nations historical artefacts in 2020. The public outcry around Juukan was a red-letter day for Indigenous culture and a wake-up call for companies and the fragility of their social licences. In the ensuing months and years, Rio’s chief executive and two senior managers lost their jobs and the board was overhauled.

For Australia, it was a national embarrassment that captured attention on a world stage.

The Santos case brought by Tiwi Islanders – and backed by the Environmental Defenders Office – wasn’t in the same league. This case claimed that Santos’ pipeline would damage Sea Country and anger two creatures of Dreaming stories – Ampiji, the rainbow serpent, and the Crocodile Man – and losing it was a meaningful setback for those wishing to protect Indigenous culture.

The case could inform a large number of legal challenges against new gas projects from Indigenous groups who are arguing insufficient consultation has taken place on the effects of various proposed projects on their cultural heritage.

Fellow oil and gas company Woodside is fighting a similar case over its $16.5 billion Scarborough gas project in Western Australia.

The Tiwi Islander loss risks raising the bar for future cases brought by environmental and Indigenous groups.

The judge also opined that the risk must be “significant” in terms of the chances of it occurring, and the nature and gravity of the consequences.

Not surprisingly, the judgement has been branded as a major victory for Santos, given Justice Natalie Charlesworth said she was unconvinced by the arguments the pipeline would cause irreparable harm for the traditional owners and their connection to the sea, and as a result Santos would not need to revise its environmental plan.

The judgement, meanwhile, is being hailed in business circles as significant victory and win for Australia’s sovereign risk.

There are around $30 billion in LNG projects under consideration in Australia and their chances of receiving environmental approvals have arguably improved thanks to this decision.

For the environmentalists, this was surely an own goal.

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