Munkara v Santos NA Barossa Pty Ltd

This case was brought on Oct. 30, 2023 by Simon Munkara, later joined by Carol Maria Puruntatameri and Maria Simplicia Purtaningatipuamantumirri, Aboriginal people of the Tiwi Islands belonging to the Jikilaruwu, Munupi, and Malawu clan groups. The applicants sought to restrain Santos NA Barossa Pty Ltd from commencing construction of a 262 km gas export pipeline in the Timor Sea, authorized under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). They argued that under section 17(6) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009, Santos was required to submit a revised environment plan because of the “occurrence of a new significant environmental risk.” The asserted new risks included the pipeline’s intrusion into waters spiritually significant to the Tiwi people, interference with ancestral songlines, and the possibility of disturbing artifacts or ancestral burial grounds along the pipeline’s route. Because the action was initiated two days before construction was scheduled to begin, the Court granted an interim injunction on Nov. 2, 2023 restraining works until Nov. 13, 2023. On Nov. 15, 2023, the Court issued an interlocutory injunction of narrower scope, preventing construction along most of the pipeline route except the northernmost 86 km, effective until Jan. 15, 2024. The trial proceeded in December 2023. On Jan. 15, 2024, Justice Charlesworth dismissed the application. The Court held that “occurrence of a risk” under regulation 17(6) refers to objective circumstances creating a danger, not to subjective states of knowledge. It found insufficient evidence of a spiritual connection between the applicants and the sea area affected by the pipeline and concluded that the chance of archaeological remains being present was negligible, falling short of a “new significant risk” . Following dismissal, the Court discharged the interlocutory injunction and ordered the applicants to pay Santos’s costs on a lump-sum basis, with costs to be assessed by the Registrar. Provision was made for further applications regarding variation of the costs order.