Federal Court rejects Indigenous heritage claim against Santos gas pipeline

Gas producer Santos is free to install a vital gas pipeline from its $5.5 billion Barossa gas project after the Federal Court rejected claims it could damage Indigenous cultural heritage, and criticised an expert witness and a lawyer acting for Tiwi Islanders.

On Monday, Justice Natalie Charlesworth lifted an injunction imposed in early November on installing the pipeline near the Tiwi Islands after finding concerns about its effect on a rainbow serpent named Ampiji and a song line about a Crocodile Man were not widely held among Tiwi Island traditional owners.

Jikilaruwu traditional owner Simon Munkara. Credit: Tymunna Clements

Simon Munkara, a Tiwi Islands traditional owner, launched a case in the Federal Court in October, represented by the Environmental Defenders Office, to stop the installation of the pipeline until Santos did more to protect underwater cultural heritage. Two other Tiwi clans later joined the case.

In her judgment, Charlesworth said differing accounts from witnesses from the Jikilaruwu, Munupi and Malawu people led her to conclude the beliefs and customs that formed the intangible cultural heritage the applicants claimed could be damaged by the pipeline were not broadly accepted within their communities.

Munkara said in a statement he was disappointed in the outcome.

“We brought this case to protect our Sea Country,” he said. “We are hurting and need some time to think.”

Santos noted the decision in a statement to the market and said it would continue laying the pipeline.

Charlesworth criticised evidence from Dr Mick O’Leary, an expert witness for the applicants, who conducted a “cultural mapping” exercise with Tiwi Islanders to combine evidence from science and Indigenous traditional stories to demonstrate intangible cultural heritage existed along the pipeline route.

The judge found O’Leary lied to Tiwi Islanders at the June 2023 exercise because he wanted the results to be used to stop the pipeline.

“It is conduct far-flung from proper scientific method, and falls short of an expert’s obligation to this court,” she said.

Charlesworth also criticised an Environmental Defenders Office lawyer at the June 2023 exercise for drawing on a map “in a way that could not on any reasonable view truthfully reflect what the Tiwi informant had said”.

Concerns over tangible cultural heritage along the pipeline route from the time the area was not underwater were also rejected by Charlesworth, who found there was a negligible chance of archaeological remains.

The Barossa project has been dogged by legal challenges based on concerns over protecting Indigenous culture.

In September 2022, the Federal Court found the Adelaide-based company had not adequately consulted traditional owners – led by Tiwi Islander Dennis Tipakalippa – before submitting its plans to the offshore environment regulator, and ordered it to stop drilling for gas at Barossa.

The decision threw the offshore oil and gas sector into turmoil as companies withdrew their plans lodged with the regulator and launched new rounds of consultation to ensure the plans could withstand a similar legal appeal.

After a series of legal hearings, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) in December accepted Santos’ revised plan for drilling at Barossa, and it is understood the drilling rig is moving to the site and will commence work shortly.

Despite the legal challenges, Santos as recently as October said the key project remained on track to start production in the first half of 2025 within the budget of $US3.7 billion ($5.5 billion).

The Barossa field will supply gas to Santos’ Darwin liquefied natural gas plant that shut down in late 2023 when the gas supply from the Bayu-Undan field in Timor-Leste waters was exhausted.

Santos shares rose 3.7 per cent to $7.83 a share on Monday after the court decision.

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