On 2 November 2023, the Federal Court granted an interim injunction in favour of Simon Munkara, a traditional owner of Tiwi Islands land in the Northern Territory (Munkara), against Santos NA Barossa Pty Ltd (Santos). The injunction has prevented Santos commencing construction on the 262-kilometre pipeline which forms part of Santos’ Barossa Gas Export Pipeline project in the Timor Sea. The urgent interlocutory hearing occurred before the Honourable Justice Charlesworth.
The injunction remains in place until 13 November 2023, when Mr Munkara and Santos will return to Court to argue more substantively on whether an injunction should be ordered for a lengthier period. If granted, that injunction would remain in place until a hearing on the substantive issues at trial is held.
Application
Munkara, represented by the Environmental Defenders Office (EDO), commenced proceedings against Santos seeking an injunction to permanently restrain Santos from undertaking installation or construction activities on the Barossa Gas Export Pipeline until after Santos has submitted, and National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) has accepted, a revised environmental plan for the pipeline.
The application claims that after the acceptance of the current Barossa Gas Export Pipeline Installation Environment Plan (Pipeline EP) by NOPSEMA in March 2020, it has been subsequently identified that the installation and construction of the pipeline “will significantly impact, or alternatively, that there is a significant risk that it will impact submerged Tiwi cultural heritage, in particular underwater cultural heritage”. In particular, the originating application claims that the pipeline risks:
- “damaging sea country”;
- “causing spiritual injury and damage to dreaming tracks, songlines and areas of cultural significance”;
- “physically and spiritually alienating or disconnecting areas of sea country and adjacent or spiritually connected areas of land”;
- “interrupting [traditional owners’] ability to fulfil their spiritual and social responsibilities”.
Munkara argued that these constituted an environmental impact or risk, and that the current Pipeline EP approved by NOPSEMA did not account for those impacts or risks. He therefore argued that the commencement of the pipeline installation and construction activities by Santos would be “unlawful” due to Santos not having “submitted a proposed revision of the environment plan as required by reg 17(6) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth)” (OPGGS Regulations).
Regulation 17(6) requires a titleholder to submit a proposed revision of an environment plan after “the occurrence of any significant new environmental impact or risk”.
Munkara also claimed to have standing to bring the application against Santos by reason of having a “special interest” in avoiding or mitigating these risks allegedly posed by the pipeline due to, among other things, him being a member of the Jikilaruwu clan with traditional cultural authority and a traditional owner of the land on the Tiwi Islands which are “most proximate” to the proposed route of the pipeline.
Interim interlocutory decision
Whilst the written Reasons for Decision are not yet out, what we do know so far is that Justice Charlesworth considered the usual elements to determine whether an injunction should be granted, including whether there was a serious question to be tried and whether the balance of convenience favoured granting the injunction. There was also a question of standing as to whether Munkara was entitled to bring the proceedings in the first place, which centred on a debate of whether a private citizen can bring a case enforcing the OPGGS Regulations, or whether this can only be properly be enforced by NOPSEMA as the regulator.
As to these issues, the transcript reveals that Her Honour found on a preliminary basis:
- Standing: Munkara had standing to bring the action. The OPGGS Regulations, and the role of NOPSEMA and its powers to issue directions to require revisions of EP, do not prevent a third party from seeking to prevent a breach of the Regulations. Further, Munkara has a special interest beyond that of an ordinary member of the public, which aligns with him having standing to bring the action.
- Serious question to be tried: There was a serious question to be tried on the meaning of regulation 17(6).
- Balance of convenience: The balance of convenience favoured the granting of the injunction. Her Honour considered that the financial sums suffered by Santos, while significant, were outweighed by the potential for irreparable spiritual harm caused to Munkara by the activity proceeding without considering risks and impacts to potential underwater cultural heritage and intangible cultural values.
Accordingly, an interim injunction was granted until 13 November 2023, when a substantive injunction hearing will take place.
Significance and next steps
It is important to recognise that the orders made by Justice Charlesworth are interim in nature, and the outcome may change after the substantive hearing.
These proceedings form part of a wave of clients represented by EDO bringing challenges against environmental plans (EPs) which have been approved by NOPSEMA as the regulator under the OPGGS Regulations. While each action has been distinct, there is a clear trend of applicants asserting that they have not been consulted with in accordance with the OPGGS Regulations to allow for the proper consideration of how the activity under the EP might impact their functions, interests and activities.
Watch this space for further updates from KWM when the final outcome of the application is determined.
