Written by:

Romany Tauber

Romany is an advocate, lawyer, researcher and strategist with over twenty years’ experience. She has diverse commercial legal practice experience across several key sectors including business, government, human rights and philanthropy.

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The issue in this case was around the development of a new fossil fuel project which will allow Australian industry to supply greenhouse gas to Japan and other countries in the region.

Summary and Outcomes

On 15 January 2024 Justice Charlesworth of the Federal Court of Australia delivered her judgment in the matter of Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 (Munkara v Santos No 3). The matter concerns the proposal for the laying of a 262 km long pipeline in the sea which at its closest point would be 7km from the Tiwi Islands.

The issue in this case was around the development of a new fossil fuel project which will allow Australian industry to supply greenhouse gas to Japan and other countries in the region. The applicants in the matter are a section of the relevant Traditional Owners who are represented by the Environmental Defenders Office. The applicants maintained there was a real risk of damage to cultural heritage from this development. A significant number of other Traditional Owner who were also witnesses in the case disagreed that there was risk to their cultural heritage arising from the proposal. The position of Santos was that the applicant Traditional Owners are motivated by environmental ideals rather than a belief in a genuine risk to their cultural heritage.

The judgment examines the differing positions regarding the risk to cultural heritage and determines the applicants' position was not substantiated by sufficient evidence. In part the judgment is instructive in how to run a case relating to a proposed offshore development on Traditional Owners’ Sea Country, principally because it mentions (almost) everything not to do when collecting and reporting on evidence. Ultimately and unfortunately, this judgment tells an all-too-familiar story. That story is one of Traditional Owners’ exercise of self-determination with respect to decisions regarding developments on their land and sea country being distorted through the actions of external actors.

Justice Charlesworth remarks [at para 883] that “(a)n overarching area of controversy relates to the relevance, if any, about how the Court should approach its fact-finding task.”  Yet the Court’s fact-finding task is the key issue in this case.  The Court’s findings are startling to say the least. Charlesworth J finds that Traditional Owners were led by experts that lacked independence, relevant expertise, and lied to them, so much so that much of the evidence provided could not be relied upon at all. Despite the concerning nature of the findings, it is obvious that yet again, Traditional Owners are held to an absurd standard. While this judgment and Tipakalippa make it clear that Traditional Owner groups are not required to reach “consensus”, Traditional Owners must broadly agree on their cultural beliefs “as a people” or they lose on the grounds that they are unreliable. It begs the question, what cross section of our society agrees about controversial proposals for new greenhouse gas projects? There remains deep division within our society about these issues. Why should Traditional Owners be unified when the rest of society is not? It’s the same old story which we have seen play out on a national scale all too recently with The Voice referendum. Traditional Owners cannot agree about the way something will impact them, so they lose. And the non-Indigenous community, has yet another reason not to listen to Traditional Owners.  

In this case, as required by s 140 of the Evidence Act 1995 (Cth) in a civil proceeding, the burden of proof is on the applicant and the case must be established on the balance of probabilities. The Court held that a “significant risk” can be one that involves “(a) mathematical chance of less than 50%” (at para 220), but it appears there can be no doubt that the cultural features are believed by the people “as a people”. The Court held that the test to establish a new and/or significant risk is one of “sufficiency” (at para 221), and there was not sufficient evidence, according to Charlesworth J, to prove that the risk was new or significant on the basis that the evidence regarding the beliefs about the “cultural features” could not be relied upon. The Court held that it is necessary to prove that “individual beliefs are broadly representative of the beliefs of other members of the group” (at para 922).  Santos was able to show that there was divergence in the beliefs of the members of the group, and in addition, the evidence of a key witness for the applicant was not accepted as sufficient by the Court even though it was given in direct testimony under cross-examination. The assessment of the reliability and sufficiency of evidence by the Court treads a very fine line and does not provide certainty for Traditional Owners or proponents.nt evidence to prove that the risk was new or significant on the basis that the

It is important to note that division within the Traditional Owner community about cultural heritage is not the only reason the applicants’ case failed. Critically, the applicants’ failed to assert that their spiritual connection to their sea country was founded on an assertion that the sea country formed part of their estate. This is a fundamental principle of native title and land rights law. Charlesworth J opines [at para 862] that:

“A case founded on a spiritual connection to waters not founded on an assertion that the waters formed a part of a clan’s estate is an ambiguous shift in the applicants’ claims.  It should fail for that reason alone.”

This is a major oversight by the applicants and the reason for it is hard to fathom.

Of course, we know that settler law requires straightforward legal tests to establish the legitimacy of the cultural beliefs of Traditional Owners, and the boundaries of sea country, particularly where so much is at stake – impacts on global climate change, the supply of crucial energy to nations, and the massive revenue streams of huge billion-dollar companies.  

Perhaps the test to legitimise Traditional Owners’ beliefs where those beliefs are held “as a people”, will assist some Traditional Owners. However, what it fails to account for, is the problematic exercise of fitting Traditional Owners’ cultural heritage evidence within the requirements of "Australian” law. It remains all too easy for a major energy company with deep pockets to win against Traditional Owners whose cultural heritage has been impacted by genocide over generations. First Peoples will continue to lose out, while billion-dollar energy companies go on to build infrastructure on sea country and generate massive revenues. The story will not change until appropriate regulatory reform is achieved.

Background and the Environment Regulations

In 2019, Santos submitted to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), an environment plan (EP) relating to constructing the pipeline. That EP was accepted by NOPSEMA in 2020, but there have been two Court actions in relation to it since.  One of those actions resulted in the decision of Tipakalippa which provided the requirements for proponents to consult with relevant persons (see our Briefing Paper for an overview of Tipakalippa). The judgment in Munkara v Santos No 3 does not derogate from those requirements but despite the problematic issues noted above, the judgment does provide clarity for all parties to inform the requirements of how proper consultation with Traditional Owners may proceed (see section below Implications for consultation requirements for Offshore energy proposals for more on this issue).  

The relief sought by the Traditional Owner applicants in this instance, were orders from the Court that Santos submit a proposed revision to the environment plan (EP) that provides for the risk posed by the Activity to submerged Tiwi cultural heritage, in accordance with regulation 17(6) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Environment Regulations). The applicants assert that the pipeline proposal constitutes an occurrence of a new significant environmental impact or risk and sought a permanent injunction restraining Santos from undertaking the activity of laying the pipeline until it submits a proposed revision of the Pipeline EP in accordance with reg 17(6) and that revision is accepted by NOPSEMA.  

Regulation 17(6) provides that “(a) titleholder must submit a proposed revision of the environment plan for an activity before, or as soon as practicable after:

(a)   the occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the environment plan in force for the activity; or

(b)   the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of:

(i) a significant new environmental impact or risk; or

(ii) a significant increase in an existing environmental impact or risk;

      that is not provided for in the environment plan in force for the activity.”

Charlesworth J provides a concise summary of the other relevant sections of the Environment Regulations as follows:  

Regulation 8 provides that a titleholder will commit a criminal offence if it undertakes an activity in circumstances where, relevantly, there has been the occurrence of any significant new impact or risk that is not provided for in the environment plan in force for the activity.
The word “environment” is defined very broadly in the Regulations. It includes “ecosystems and their constituent parts, including people and communities” and “the qualities and characteristics of locations, places and areas”. Critically for the purposes of this proceeding, it also includes the “cultural features” of those things. 

Cultural Heritage

At issue in the case is the applicants’ assertion that the proposed pipeline constitutes an Activity that poses a new and significant risk to their tangible and intangible cultural heritage, because they are “cultural features” in accordance with the Environment Regulation 17(6).  

The intangible cultural heritage that is alleged to be at risk by the proposed pipeline are “cultural features” in the form of a spiritual connection to sea country in which the pipeline will pass, understood by Traditional Owners to be ancestral beings of fundamental importance in their culture; a rainbow serpent known as Amiji, and a shape-shifting ancestral being known as Jirakupai, the Crocodile Man. The applicants allege that the rainbow serpent is the caretaker of the sea, and not only would the pipeline disturb her, but it would also cause her to create calamities that may harm the Tiwi people. It is also alleged that the song line of the Crocodile Man would intersect with the proposed pipeline, and that song line would disturb the Crocodile Man in his wider travels in the sea. They further allege the pipeline will anger the Crocodile Man because it is in his territory.  

While the Court accepts the Traditional Owners’ cultural heritage includes these ancestral beings, and even that there are specific locations on the coastline which are sacred, the Court does not accept that the sacred locations are located in the deeper sea. Crucially, there is not sufficient evidence to support the assertion that these cultural features are located where the pipeline is proposed because “(f)or each belief to constitute a ‘cultural feature’ within the meaning of reg 17(6) it must be a belief of those people as a people” (Charlesworth J at para 920).

The tangible cultural heritage the applicant’s assert is at risk is in the seabed where the pipeline is proposed. The applicants provide evidence that the seabed may contain artefacts of archaeological significance relating to Traditional Owner occupation and activity on the land before sea levels rose 18,000 years ago. The applicants allege that the archaeological record of the seabed forms a part of their cultural heritage, and the construction of the pipeline gives rise to a significant risk that their cultural heritage will be damaged, destroyed or lost. While the Court acknowledges that this kind of archaeological evidence would be of critical importance not just to the Traditional Owners but also to the whole of humanity, in that it would be a unique and valuable record of the development of humanity, it rejects the evidence from the applicants in its entirety.

Assessment of Evidence  

On the face of the judgment, the applicant’s team of experts (legal and others) may have made some errors in the performance of their professional duties, that at best were sloppy and were at worst, improper. However, the rulings fail to appreciate the complexity of working with Traditional Owners whose cultural methods and understandings do not fit nicely within settler law or methodologies. One example of this is the recounting of the conduct in the cultural mapping exercise undertaken by the applicants with their team of experts.  Charlesworth J notes the phrase used by the anthropologist employed by the applicants, that “we will do some activities to get your brains ticking” [see para 1127 and 1133]. This is one example of a phrase that contributed to the ruling that the experts were “leading” the applicants, and the evidence could not be relied upon by the Court. One can speculate endlessly about the truth in this situation. Perhaps the experts were not sufficiently impartial. Or perhaps this indicates there was some mismanagement of key experts by the applicants’ legal team.  Or then again, perhaps it was easy for Santos’ counsel to show the deficiencies of a process that is always going to be deficient, in hearings that occurred in a compressed timeframe. One could continue to conjecture. What is clear, is that this trajectory is experienced repeatedly by Traditional Owners. The party with the deepest pockets wins, Traditional Owners are divided in response to settler proposals, and once again are not listened to.

It is unfortunate for the Traditional Owners that Charlesworth J rules that the cultural mapping exercise is not accepted by the Court on the basis that the maps presented to the witnesses by experts depict the Tiwi Islands as they are today, and the ancient freshwater lake as it was 18,000 years ago. Charlesworth J considers this unacceptable because she accepts the argument that the map is inaccurate on the basis that the Tiwi Islands did not exist in the current form, as they were part of a larger mass of land (see para 1141 of the judgment). But this larger land mass was not indicated on the map in any way and the discrepancy was not marked on the map nor verbally explained to Traditional Owners witnesses in video evidence of the cultural mapping activity provided to the Court. This insults the intelligence of Traditional Owner witnesses. How does one know that Traditional Owners did not understand that the map depicted the Tiwi Islands as they are now, and the ancient lake as it was 18,000 years ago? This is part of the fact-finding controversy to which Charlesworth J refers towards the beginning of her judgment [para 883]. The task of eliciting cultural stories from Traditional Owners who have been subjected to genocide for generations, is no simple task. It is all too easy to be critical.

However, it was not the depiction of the islands and lake on the maps alone that rule the cultural mapping exercise unreliable. It is also the Court’s view that the expert witnesses who conducted the exercise lacked independence, expertise, and that the experts led the applicants and even lied to them.  

Santos’ anthropological evidence was preferred over the applicants’ because it was based on wide ranging firsthand interviews with relevant clan members, rather than relying on secondary reports as the applicants’ anthropologist appeared to.  

The Court rules that differing points of view can be supported by independent expert evidence, but the expert evidence needs to deal with those differing viewpoints, not ignore or hide them. It must also demonstrate how differing views are dealt with in the relevant Traditional Owner society.

For tangible cultural heritage, clear archaeological evidence would have to be unequivocal, and this may be is difficult when the seabed has been submerged and remains submerged for a significant period such as 18,000 years or more.  

The authority of particular people who “speak for country” must be confirmed. This may be done by either the relevant Traditional Owner body or through experts with relevant expertise that are thoroughly independent.

Despite the apparent failures (or perhaps mere slip ups) of the applicants’ expert team, the judgment illustrates a failure to appreciate the complexity and difficulty for experts and Traditional Owners alike to run a case of this kind. It is all too easy for the Court to rule that Traditional Owners’ cultural heritage evidence is unreliable, when those Traditional Owners have grown up in a context of genocide, which at its mildest (can genocide ever be mild?) as its raison d’etre encourages people to forget parts of their cultural heritage.  What person doesn’t need prompts to recall aspects of their cultural heritage? Even more so, when the people of that culture have been subjected to genocide.  

Implications for consultation requirements for Offshore energy proposals  

While devastating for the applicant Traditional Owners, the judgment does not in any way weaken the requirements for consultation set out in Tipakalippa. Indeed, it strongly supports the notion that consultation with the correct Traditional Owners must be done properly. While the judgment does not explicitly discuss consultation requirements, the detailed analyses of the type and forms of oral evidence that are required to substantiate Traditional Owners legitimate claims to their cultural heritage and its location is very informative.  

Charlesworth J is very clear that the views of one person are not sufficient on their own, it must be the correct Traditional Owner group as confirmed by the relevant Traditional Owner representative institution – in this case, the relevant (ALRA) Aboriginal Land Council. Views of an individual must be shown to be "broadly representative of other members of the group" (at para 922). This provides clarity after Tipakalippa where the question of whether genuine consultation facilitated through a Prescribed Body Corporate (PBC) or Native Title Representative Body (NTRB) was sufficient, was not finally resolved but there appeared to be a strong flavour of the interest being interests held by individuals, not representative organisations.  Munkara v Santos No.3 resolves this issue significantly by making it clear that it is what the relevant people believe “as a people”.

As noted above, the judgment does not resolve what to do where there is disagreement, “even more so when the discord is among persons of equivalent authority and persons having the same lineage” (para 924). This underscores the need for regulatory reform to provide some level of certainty to both proponents and Traditional Owners.

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