Santos NA Barossa Pty Ltd v Tipakalippa

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FEDERAL COURT OF AUSTRALIA

Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193

Appeal from:

Tipakalippa v National Offshore Petroleum Safety and

Environmental Management Authority (No 2) [2022] FCA 1121
File number(s): VID 555 of 2022
Judgment of: KENNY, MORTIMER AND LEE JJ
Date of judgment: 2 December 2022
Catchwords: ADMINISTRATIVE LAW – appeal from decision of single judge of the Federal Court setting aside decision of second respondent (NOPSEMA) to accept an environmental plan under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) – where NOPSEMA to be reasonably satisfied that the plan meets specified criteria, including for consultation of a person “whose functions, interests or activities may be affected by the activities” under the plan – construction of “reasonably satisfied” – where judicial review applicant claimed the appellant as proponent of the plan should have and did not consult him and other traditional owners of the Tiwi Islands as required by the Regulations – whether the first respondent and other traditional owners were each “a relevant person” whose “functions, interests or activities may be affected by the activities” under the plan – interests held by traditional owners because of connection to the sea and marine resources; no issue with workability of consultation requirement; consultation required; delegate misunderstood the applicable law – NOPSEMA not therefore reasonably satisfied in accordance with the Regulations – appeal dismissed
Legislation:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3, 23

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 4

Acts Interpretation Act 1901 (Cth) ss 2C, 33(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(4), 5(1)

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3A, 146B

Evidence Act 1995 (Cth) s 166(f)

Legislation Act 2003 (Cth) s 13

Native Title Act 1993 (Cth) ss 61, 203BE(5), 251B

Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)

Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) Pt 1A; Div 2.2A; regs 3, 4, 5A, 5C, 5D, 9, 10, 10A, 11A, 11B
Cases cited:

Anderson v State of Western Australia [2007] FCA 1733

Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35

Apache Northwest Pty Ltd v Agostini[No 2] [2009] WASCA 231

Ashby v Slipper [2014] FCAFC 15; 219 FCR 322

Boney v Attorney General of New South Wales [2018] FCAFC 218

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537

Buck v Bavone [1976] HCA 24; 135 CLR 110

Castle v Director General State Emergency Service [2008] NSWCA 231

Chief Executive Centrelink v Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153; 248 FCR 236

Commonwealth v Baume [1905] HCA 11; 2 CLR 405

Goldie v Commonwealth of Australia [2002] FCAFC 443; 117 FCR 566

Kioa v West [1985] HCA 81; 159 CLR 550

McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374…

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Details
Case
[2022] FCAFC 193
Decision Date

CaseChat Overview and Summary

The case of Santos NA Barossa Pty Ltd v Tipakalippa involved Dennis Murphy Tipakalippa, an elder and traditional owner of the Munupi clan of the Tiwi Islands, who sought judicial review of a decision by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept an environmental plan submitted by Santos NA Barossa Pty Ltd. Tipakalippa argued that he and other traditional owners of the Tiwi Islands were not consulted by Santos as required by the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009, and thus NOPSEMA could not have been reasonably satisfied that the plan met the consultation criteria. The primary issue was whether Tipakalippa and other traditional owners were "relevant persons" under the Regulations whose functions, interests, or activities might be affected by Santos' activities, thereby requiring consultation.

The court found that Tipakalippa and the traditional owners had a sufficient connection to the sea and marine resources in the area, which made them relevant persons whose interests could be affected by the proposed activities. The court held that the consultation requirement was workable and that NOPSEMA's failure to ensure consultation meant it could not have been reasonably satisfied that the plan met the statutory criteria. The court dismissed Santos' appeal, holding that the delegate misunderstood the applicable law and that NOPSEMA's decision was therefore flawed.

The court concluded that Santos and NOPSEMA's narrow interpretation of "functions, interests, or activities" would not align with the principles of ecologically sustainable development, as it would exclude potentially affected parties from consultation. The broader interpretation of "environment" in the Regulations, which includes social, economic, and cultural features, supported the necessity of broad consultation. The court dismissed the appeal and ordered Santos to pay the costs of the appeal to Tipakalippa.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

3. There be no order as to costs respecting the second respondent.

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

Background

Background to the litigation

For the reasons set out below, the appeal must be dismissed. In reaching that conclusion, we would also uphold ground 1 of the notice of contention. It is unnecessary to decide ground 2 of the notice of contention.BACKGROUND The primary judge described the basic background circumstances at [7]-[10] of the primary reasons:The Tiwi Islands are located in the Timor Sea, approximately 80 km north of Darwin. The Tiwi Islands comprise two main islands, Bathurst Island and Melville Island and several smaller islands. The traditional owners of the Tiwi Islands are comprised of eight clans, one of which is the Munupi clan. The traditional land of the Munupi clan extends to the northern-most reaches of the Tiwi Islands, located on the north-western peninsula of Melville Island and includes Seagull Island located approximately 4.4 km to the north of the northern-most point of Melville Island, known as Imalu Point. The traditional land of the Munupi clan is the geographically closest land to the Operational Area.The applicant, Dennis Murphy Tipakalippa, is an elder, senior law man and traditional owner of the Munupi clan. He lives on the Tiwi Islands, was raised there, and has always lived at Pirlangimpi and at his homelands in the northern beaches of Munupi country. He is connected to Munupi country through his father’s family.Mr Tipakalippa complains that he and the Munupi clan were not consulted by Santos in relation to the Drilling EP. Broadly speaking, his principal claim relies upon reg 11A which provides that in the course of preparing an environment plan a “titleholder” must consult each “relevant person”, being a person “whose functions, interests or activities may be affected by the activities to be carried out under the environment plan”.Mr Tipakalippa claims that he and the Munupi clan, as well as other traditional owners of the Tiwi Islands, have “sea country” in the Timor Sea to the north of the Tiwi Islands, extending to and beyond the Operational Area. Their asserted rights to that sea country are based upon longstanding spiritual connections as well as traditional hunting and gathering activities in which they and their ancestors have engaged. Mr Tipakalippa claims that those interests and activities were referred to in the Drilling EP. In circumstances where the Drilling EP did not show that Mr Tipakalippa, others of the Munupi clan or indeed any of the traditional owners of the Tiwi Islands were consulted, Mr Tipakalippa claims that the decision-maker could not have been “reasonably satisfied” (as was required by reg 10(1) read with regs 10A(g) and 11A of the Regulations) that the Drilling EP “demonstrates” that Santos “has carried out the consultations” required by reg 11A. Mr Tipakalippa’s claim was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The grounds of review invoked ss 5(1)(c), 5(1)(d) and 5(1)(f), but in substance contended (as Santos accepted on the appeal):(a)NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by reg 10A and reg 11A of the Regulations was carried out; and(b)Santos submitted the Drilling EP without having carried out the consultations required by reg 10A and reg 11A of the Regulations.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Reg 10 deals with the power exercised in the decision under review. It provides:Making decision on submitted environment plan (1)Within 30 days after the day described in subregulation (1A) for an environment plan submitted by a titleholder:(a)if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must accept the plan; or (b)if the Regulator is not reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must give the titleholder notice in writing under subregulation (2); or (c)if the Regulator is unable to make a decision on the environment plan within the 30 day period, the Regulator must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan.(1A) For the purposes of subregulation (1), the day is:(a)the day the Regulator publishes the plan (with the sensitive information part removed) under regulation 9AB; or (b)if the environment plan is a seismic or exploratory drilling environment plan—the day the Regulator receives the documents under paragraph 11B(3)(b) and, if relevant, paragraph 11B(3)(c).Note 1: Those paragraphs are about documents that must be given to the Regulator after the end of a 30-day period for public comment on a seismic or exploratory drilling environment plan. Regulation 11B requires the Regulator to consider certain public comments on a seismic or exploratory drilling environment plan in making a decision to take action under this regulation.Note 2: A seismic or exploratory drilling environment plan is taken to have been withdrawn (so the Regulator need not act under this regulation in relation to it) if the Regulator does not receive the documents under paragraph 11B(3)(b) and, if relevant, paragraph 11B(3)(c): see subregulation 11B(7).(2) A notice to a titleholder under this subregulation must:(a)state that the Regulator is not reasonably satisfied that the environment plan submitted by the titleholder meets the criteria set out in regulation 10A; and (b)identify the criteria set out in regulation 10A about which the Regulator is not reasonably satisfied; and (c)set a date by which the titleholder may resubmit the plan.(3)The date referred to in paragraph (2)(c) must give the titleholder a reasonable opportunity to modify and resubmit the plan.(4) Within 30 days after the titleholder has resubmitted the modified plan:(a)if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must accept the plan; or (b)if the Regulator is still not reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must:(i)give the titleholder a further notice under subregulation (2); or(ii)refuse to accept the plan; or (iii) act under subregulation (6); or(c)if the Regulator is unable to make a decision on the environment plan within the 30 day period, the Regulator must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan.(5)If the titleholder does not resubmit the plan by the date referred to in paragraph (2)(c), or a later date agreed to by the Regulator, the Regulator must:(a)refuse to accept the plan; or (b)act under subregulation (6).(6)For subparagraph (4)(b)(iii) and paragraph (5)(b), the Regulator may do either or both of the following:(a)accept the plan in part for a particular stage of the activity;(b)accept the plan subject to limitations or conditions applying to operations for the activity.(7)A decision by the Regulator to accept, or refuse to accept, an environment plan is not invalid only because the Regulator did not comply with the 30 day period in subregulation (1) or (4).(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Santos and NOPSEMA argued for a narrow construction of the phrase “functions, interests or activities”, but such a construction would not promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. These five principles include: that “decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations” (emphasis added); the principle of inter-generational equity; and that “the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making”. That is, whether and to what extent offshore petroleum or greenhouse storage activity is to be permitted depends, amongst other things, on the potential effect of the activity on people and communities, on equitable concerns (including the principle of inter-generational equity) as well as on the natural world. Santos and NOPSEMA proposed a construction of the phrase “functions, interests or activities” that fails to promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. Their construction would also undermine the achievement of the other two objects of the Regulations. This is because, by confining the concept of a “relevant person” as it would, Santos (and other titleholders in its position) would not be required to consult with “a person or organisation” who might self-evidently be affected by its proposed offshore activity, nor would it be obliged to take or propose any measure to address their situation. We note, furthermore, that the definition of “environment” in reg 4 of the Regulations is consistent with the principles of ecologically sustainable development set forth in s 3A of the EPBC Act. Thus, “environment” is defined in reg 4 to be:(a)ecosystems and their constituent parts, including people and communities; and(b)natural and physical resources; and(c)the qualities and characteristics of locations, places and areas; and(d)the heritage value of places;and includes(e)the social, economic and cultural features of the matters mentioned in paragraphs (a), (b), (c) and (d). Thus, when NOPSEMA is required to make a decision under reg 10, NOPSEMA must consider “the environmental impacts and risks” of the proposed activity by reference to the expansive definition of “environment” in reg 4. It may be inferred from this, and in particular reg 10A(g), that the consultations under Div 2.2A referred to in reg 10A(g) (that is, those mandated by reg 11A) are ultimately intended to inform NOPSEMA about the environment (as broadly defined in reg 4 and therefore including (amongst other things) people and communities, the heritage value of places, and their social and cultural features) which may be affected by a titleholder’s proposed activities under its environment plan. The information that the titleholder is obliged to provide to NOPSEMA is also designed to provide a basis for NOPSEMA’s considerations of the measures, if any, that a titleholder proposes to take or has taken to lessen or avoid the deleterious effect of its proposed activity on the environment, as expansively defined.