Munkara v Santos NA Barossa Pty Ltd (No 3)

Simon Munkara, an Aboriginal person from the Tiwi Islands, brought an action against Santos NA Barossa Pty Ltd, which holds a pipeline licence under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) to construct a 262km gas export pipeline in the Timor Sea. The pipeline route passes the west coast of the Tiwi Islands within 7km at its closest point. Munkara's claim sought an injunction to prevent Santos from undertaking the construction, alleging that the pipeline would cause significant environmental harm by interrupting song lines and interfering with the travels of ancestral beings, thus impacting the spiritual connection to sea country. Additionally, the claim argued that there was a risk of impact to tangible cultural heritage in the form of artefacts evidencing human occupation and activity on the land before sea levels rose. The primary legal issue before the court was whether Santos was obliged to submit a revised environment plan in accordance with reg 17(6) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) because there had been an occurrence of a new significant environmental impact or risk.

The court found that the evidence did not establish that the obligation under reg 17(6) had been triggered. It was concluded that on the proper construction of the regulation, the risk of environmental impact that is “new” and “significant” had not been proven. The court dismissed the amended originating application, discharged the interlocutory injunction, and ordered that the applicants pay the respondent’s costs, to be assessed by a Registrar of the Court on a lump sum basis. Any application to vary or substitute the costs order must be filed and served on or before 29 January 2024, accompanied by an affidavit in support and written submissions not exceeding five pages. If an application is filed, the respondent, if so advised, must file and serve an affidavit in opposition and written submissions not exceeding five pages by 14 February 2024. The application is to be set down for hearing on a date to be fixed, not before 19 February 2024.