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Santos argues traditional owners have no legally defined interest
The Federal Court has heard Santos’ appeal on the landmark ruling that invalidated its drilling approvals due to improper consultation with traditional owners.
Jess Feyder
Santos’ appeal against Tiwi Island traditional elder Dennis Tipakalippa commenced in the Federal Court on Tuesday (15 November) before Justices Susan Kenny, Debra Mortimer and Michael Lee.
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The gas company is attempting to overturn the September 2022 decision, which put a halt to Santos’ $3.5 billion Barossa gas project, rendering the expensive drill rig halfway complete and idle.
The case was brought by Mr Tipakalippa after he and Tiwi Island traditional owners — the Munupi Clan — claimed they were not properly consulted about drilling that could “irreparably damage their sea country”.
This marked the first case in Australia brought by First Nations peoples challenging an offshore project based on lack of consultation.
Santos quickly appealed the ruling in October, stating that the decision was damaging to investor confidence in Australia.
The gas company, represented by Christopher Horan KC, launched two key arguments in their appeal.
Firstly, that the traditional owners’ connection to sea country did not legally qualify as “functions, interests or activities”, as outlined in the legislation.
Mr Horan posited that the term “interest” includes “something in which one has an interest, as of ownership” and relates to “being affected by something in respect of advantage or detriment”.
Mr Horan stated that while the Munupi Clan’s connection to sea country was “genuine and real”, it did not legally qualify as an “interest”.
Secondly, that the ruling judge had not properly considered what constituted a “relevant person” in need of consultation — that if the legislation were applied, it would mean Santos would have had to consult each individual in the Munupi Clan — an unrealistic proposition.
Outside the court, a group of traditional owners, environmental lawyers and their supporters gathered to voice their opposition, the ABC reported early Wednesday morning.
Munupi clan representative Antonia Burke addressed the rally: “There are no Aboriginal people on that ... bench, and they’re sitting there, churning over three words: whether we have ‘functions, interests or activities’ off our own sea country.
“They want to say that we don’t have any interests in that area, that we don’t have any rights to speak for it.
“We will not be bullied or ignored by the federal government or by these mining companies.”
If the ruling is upheld, it is said to have potentially significant national and global implications in setting a new standard for consultation with First Nations people on mining projects.
