Munkara v Santos NA Barossa Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348

File number: VID 907 of 2023
Judgment of: CHARLESWORTH J
Date of judgment: 2 November 2023
Date of publication of reasons: 9 November 2023
Catchwords: PRACTICE AND PROCEDURE – application for interim injunction restraining works for the construction of a gas pipeline – respondent a titleholder under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) – applicant alleging the respondent is in breach of an obligation under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to prepare and submit a revised environment plan – whether a matter arises under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – whether the applicant has standing to apply for the relief sought on the originating application – serious question to be tried as to the respondent’s obligation – balance of convenience favouring the applicant – short term injunction granted
Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3A

Evidence Act 1995 (Cth) ss 72, 136

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 39B

Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 574, 576, 611J

Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) regs 3, 4, 6, 7, 8, 9, 10, 10A, 11A, 13, 17, 18, 21, 22, 23

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158

Lucisano v Westpac Banking Corporation [2015] FCA 243

Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365

Onus v Alcoa of Australia Limited (1981) 149 CLR 27

Palmer v Ayres (2017) 259 CLR 478

Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238

Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 125
Date of hearing: 1 November 2023
Counsel for the Applicant: Ms F Batten with Mr P Coleridge
Solicitor for the Applicant: Environmental Defenders Office
Counsel for the Respondent: Ms V Whittaker SC with Mr J Waters SC, Mr N Landis and Ms H Lenigas
Solicitor for the Respondent: Quinn Emanuel Urquhard & Sullivan

ORDERS

VID 907 of 2023
BETWEEN:

SIMON MUNKARA

Applicant
AND:

SANTOS NA BAROSSA PTY LTD

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

2 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the respondent is restrained from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100…

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Details
Case
[2023] FCA 1348
Decision Date

CaseChat Overview and Summary

The case of Munkara v Santos NA Barossa Pty Ltd concerns an application for an interim injunction to restrain Santos from undertaking the construction of a gas export pipeline in the Timor Sea. The applicant, Mr Simon Munkara, an Aboriginal man from the Tiwi Islands and a traditional owner of the land at Cape Fourcroy, seeks to restrain the respondent from undertaking any activities described in the Barossa Gas Export Pipeline Installation Environment Plan until a revised environment plan is prepared and accepted by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). The legal issues that the Court had to decide were whether the matter arose under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and whether Mr Munkara had standing to apply for the relief sought on the originating application. The Court found that the matter did arise under a law of the Commonwealth and that Mr Munkara had standing to bring the application. The Court was satisfied that there was a serious question to be tried as to the respondent’s obligation under the Regulations to prepare and submit a revised environment plan, and that the balance of convenience favoured the applicant. The Court granted a short-term injunction to restrain the respondent from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan until 5.00pm on 13 November 2023. The Court also ordered a further case management hearing at 11.00am (AEDT) on 3 November 2023.

Orders

Orders of the court

1. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the respondent is restrained from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020) until 5.00pm on 13 November 2023.

2. There be a further case management hearing at 11.00am (AEDT) on 3 November 2023, the parties have leave to attend by way of web conference link.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Before proceeding further it is necessary to identify with more precision the activities that would be undertaken by Santos between now and 13 November 2023 should an interim injunction not be granted. The reports in evidence describe the pipeline as commencing at a place referred to as K0, with each “kilometre point” southward along the pipeline defined by the letters KP and the distance in kilometres. The imminent works are to commence at KP86 and the laying of the pipeline will progress at a rate of three kilometres per day, with the result that as at 13 November 2023, the works will have reached KP121. Submissions on this application focused on tangible and intangible cultural heritage values in the vicinity of that area. As I have mentioned at the commencement of these reasons, the pipeline itself will embed in the sea bed at varying levels. Within the area KP86 – KP121, the settling depth is projected to be about 380mm or less. Mr Munkara and other deponents from the Tiwi Islands express concerns both as to the situation of the pipeline and as to disruption caused by the works themselves.EVIDENCE There are three affidavits of Mr Munkara’s solicitor. The first affidavit gives a long chronology of events that have occurred since December 2022 through to the commencement of this proceeding, specifically dealings between the legal representatives of Mr Munkara, the legal representatives of Santos and NOPSEMA. To understand Santos’ arguments it is necessary to summarise some of that chronology. On 22 December 2022, nearly two years after the acceptance of the Pipeline EP, Mr Munkara’s solicitor received a briefing paper titled “Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route”. The report was prepared by a marine geoscientist Professor Mick O’Leary, marine archaeologist Professor Jonathan Benjamin, Australian archaeologist Dr Daryl Wesley and anthropologist Professor Amanda Kearney. The four authors had conducted a desktop review of the archaeological potential of the sea bed. They collectively expressed concerns that the construction of the pipeline may impact on what are known as “features” that may be situated there. Earlier in 2022, the Full Court of this Court delivered judgment in Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124. The Full Court upheld conclusions of the primary judge that the Tiwi applicants had a traditional connection to at least part of the sea in an area that may be affected by the titleholder’s activities, and that those interests were immediate and direct. Mr Munkara submits that the judgment in Tipakalippa and the briefing paper reflect a “new” and evolving understanding of the nature of Indigenous connection to the sea, including the sea bed. After receiving the briefing paper, Mr Munkara’s solicitors wrote to NOPSEMA, drawing its attention to the paper and to the Full Court’s judgment in Tipakalippa urging it to exercise its powers to protect the interests of the Tiwi Islander people in respect of their cultural heritage in the whole of the area affected by the pipeline.

Decision

Reasons for decision

The parties have been informed that the conclusions expressed in these reasons should be understood as provisional in their nature and based on the materials presently before the Court. Whether the interim relief should be extended to apply until judgment on the originating application will be the subject of a further argument on 13 November 2023.RECORD OF ORAL REASONS FOR JUDGMENT Yesterday evening a vessel (known as a Primary Installation Vessel) departed the Port of Darwin to commence work on the installation of a gas export pipeline in the Timor Sea. The Primary Installation Vessel is scheduled to commence works for the construction of a 263 km long pipeline in the Bonaparte Basin in an hour or two from now. The pipeline is comprised of carbon steel and is coated with concrete. Works for the laying of the pipeline include the installation of foundations at each terminating end as well as “span correction” and “buckle correction” mattresses fixed to the ocean floor. The pipeline is expected to settle into the sea bed at depths that will vary along its length. The pipeline will run in a north-south direction and will pass to the west of the Tiwi Islands, at its closest point approximately seven kilometres off Cape Fourcroy. Construction of the pipeline is an activity of a joint venture including the respondent Santos NA Barossa Pty Ltd (Barossa Project). Santos is the holder of a Petroleum Licence and a Pipeline Licence issued under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). It is a titleholder for the purposes of the Act and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth). On 9 March 2020, a delegate of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) accepted the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Pipeline EP) pursuant to reg 10(1)(a) of the Regulations. The Pipeline EP relates to the installation of the pipeline as well as all other activities necessary or incidental to its installation. It is one of five environment plans relating to the Barossa Project. The applicant, Mr Simon Munkara, is an Aboriginal man from the Tiwi Islands. He is a member of the Jikilaruwu clan and a traditional owner of the land at Cape Fourcroy. Other traditional owners of the Tiwi Islands include members of the nearby Malawu and Munupi clans. Mr Munkara commenced this proceeding by an originating application two days ago. The substantive order sought on his originating application is expressed as follows:1.An injunction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth), prohibiting or restraining on a final basis the Respondent from undertaking the Activity until:a.it submits a proposed revision to the Pipeline EP in accordance with reg 17(6) of the Environment Regulations; andb.that revision is accepted by NOPSEMA in accordance with reg 21. In addition, Mr Munkara filed an application for an urgent interlocutory injunction restraining Santos from undertaking any of the activities described in the Pipeline EP until the hearing and determination of this proceeding or until further order.

Ratio Decidendi

Legal Principle Established

Regulation 8(1) creates an offence that assumes some significance in the proceeding. It provides:Operations must not continue if new or increased environmental risk identified (1) A titleholder commits an offence if: (a)the titleholder undertakes an activity after the occurrence of:(i)any significant new environmental impact or risk arising from the activity; or(ii)any significant increase in an existing environmental impact or risk arising from the activity; and(b)the new impact or risk, or increase in the impact or risk, is not provided for in the environment plan in force for the activity. The words “occurrence”, “significant”, “new” and “risk” are not defined. Division 2.2 of Pt 2 of the Regulations establishes a scheme for the submission and acceptance of environment plans. Before commencing an activity, the titleholder must submit an environment plan for the activity to NOPSEMA, defined as the “Regulator”: reg 9. The criteria for an environment plan are set out in reg 10A. It provides:Criteria for acceptance of environment planFor regulation 10, the criteria for acceptance of an environment plan are that the plan:(a)is appropriate for the nature and scale of the activity; and(b)demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and(c)demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and(d)provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and(e)includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and(f)does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and(g)demonstrates that:(i)the titleholder has carried out the consultations required by Division 2.2A; and(ii)the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and(h) complies with the Act and the regulations. The Regulations confer functions and powers on NOPSEMA with respect to an environment plan submitted to it, including obligations of publication and a discretion to request the provision of further information. Regulation 10 relevantly provides that if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, the Regulator must accept the plan. If not reasonably satisfied, it must provide the titleholder with an opportunity to resubmit the environment plan, and then accept the resubmitted plan if satisfied that the criteria in reg 10A are fulfilled in respect of it. For the purposes of reg 10A(g)(i), reg 11A imposes obligations of consultation on a titleholder in respect of the preparation of an environment plan. It provides:Consultation with relevant authorities, persons and organisations, etc(1)In the course of preparing an environment plan, or a revision of an environment plan, a titleholder must consult each of the following (a relevant person):(a)each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;(b)each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;(c)the Department of the responsible State Minister, or the responsible Northern Territory Minister;(d)a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan;(e)any other person or organisation that the titleholder considers relevant.(2)For the purpose of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person.(3)The titleholder must allow a relevant person a reasonable period for the consultation.(4) The titleholder must tell each relevant person the titleholder consults that:(a)the relevant person may request that particular information the relevant person provides in the consultation not be published; and(b)information subject to such a request is not to be published under this Part.