On November 2, 2023, the Federal Court ruled that Santos could not commence work on the pipeline from the Barossa Gasfield, located north of Darwin, because it might damage a Tiwi islander’s Sea Country and cultural sites. Once again, an Iindigenous protestor and taxpayer-funded environmental-activist lawyers have interrupted work on a gas development project of national importance at a potential cost of hundreds of millions of dollars. This, at a time of worsening gas supply problems and rising energy costs. The Scarborough Gasfield offshore Western Australia is currently being delayed by the same legal firm and another Aboriginal complainant, as discussed in Fair Warning from Scarborough in the November Quadrant. (Financial loss by Woodside shareholders is now estimated at $300 million.)
This is the latest ploy in a very well organised movement to stop the development of the Barossa Gasfield. Barossa was discovered in 2005 by US company ConocoPhillips and its partners, Australian company Santos and SK E&S, a Korean conglomerate. Five appraisal wells confirmed the field, and the development proposal was approved by the federal authority NOPSEMA in 2018. Six development wells were to be drilled, with the gas delivered to the Darwin liquified natural gas (LNG) processing facility by a 260 km pipeline. Liquid condensate will be processed aboard a floating facility (FPSO) at the field. Santos became project operator in October 2019 after purchasing ConocoPhillips’ interests and now holds a 50 per cent interest, having sold 12.5 per cent to JERA, Japan’s largest power generation company in 2022.
In preparing their Environmental Plans (EP) for the field development, ConocoPhillips began consultations with the Tiwi Land Council (TLC), which represents the eight clans living on Bathurst and Melville islands near Darwin, and with the Northern Land Council, the Native Title representative body for the Tiwi Islands. Consultations relating to the Barossa pipeline commenced in August 2018 and involved numerous workshops, meetings, and discussions over subsequent months. TLC concerns about the potential impact on marine life and the risks of discharges or spills were addressed by ConocoPhillips, who were advised by the TLC on March 18, 2019, that they had no further concerns. The pipeline EP was submitted to NOPSEMA on August 2, 2019, and accepted on March 9, 2020. The EP for the development drilling and other activities was initially lodged on October 5, 2021, with the second revision submitted on February 11, 2022, and accepted by NOPSEMA on March 14 of that year.
Environmental opposition, simmering for several years, increased markedly in 2022, fronted by dissenting Tiwi Islanders but backed by various environmental groups, including Jubilee Australia, Project Sunrise and Environment Centre NT, and with some high-profile supporters, including Twiggy Forrest, who described Barossa as ‘an atrocious project’. The main criticism relates to the high percentage of carbon dioxide in the Barossa natural gas deposit, but all the carbon dioxide will be taken by pipeline to the depleted Bayu Undan Gasfield and sequestered underground.
In June 2022, Tiwi Island lawman Dennis Tipakalippa, despite having been a party to the successful consultations, challenged NOPSEMA’s approval of the development drilling EP in the Federal Court, arguing that the Santos consultations had not adequately included his Munupi clan. They were concerned, he claimed, about the potential threat to Tiwi food sources and interference with their ‘continuous spiritual connection to Sea Country that had existed for millennia’. Tipakalippa was represented by the legal firm Environment Defenders Office (EDO), whose funding with taxpayer’s money had recently been re-instated by the newly elected Albanese government. Use of the term Sea Country is very clever, of course, building on the Capital-C Country terminology now used ubiquitously for residential areas of Aboriginal clans and tribes, regardless of the period of residency involved.
In August 2022, the Federal Court ruled in favour of Tipakalippa, ordered that all activity cease and a new EP be prepared. Santos/ConocoPhillips might have consulted with all Tiwi Islander representative bodies, the Court said, but they had not consulted with each Tiwi Island person. The appeal against this ruling was unsuccessful and Santos has initiated a new round of consultations with ‘traditional owners’ and other affected parties.
The Barossa opposition also took an international approach, with court action in South Korea seeking to prevent the Export Bank of Korea and the Korean Trade Insurance Corporation from funding loans for the project. While this seems more in the tradition of legal activism than Tiwi Island culture, it was fronted by Jikilaruwu clan leaders Daniel Munkara and Francisco Babui who claimed that their people weren’t properly consulted on the project from the ‘jump’. The Koreans expressed serious reservations about the funding because of the carbon dioxide content of the Barossa natural gas but these concerns have reportedly been alleviated by the planned sequestration.
In December 2022, the latest opposition initiative was launched by the EDO, acting for Simon Munkara, the trustee for the Jikilaruwu clan and their representative on the Tiwi Land Council. An EDO letter to NOPSEMA claimed, among other points, that sacred rocks, burial sites, and sites associated with the Rainbow Serpent were threatened by the pipeline. In response, NOPSEMA directed Santos to conduct anthropological and archaeological field surveys to investigate these claims and to modify the EP if indicated. Mr Munkara had been a party to the original consultations with the TLC about the pipeline but had not raised any concerns at that time.
Extensive anthropological, submarine archaeological and related surveys were conducted for Santos by Dr Brendan Corrigan of ABMC Consulting Pty Ltd and by Wessex Archaeology, both renowned authorities. Dr Corrigan, who holds degrees in both anthropology and archaeology and has worked for decades with Aboriginal communities in northern Australia, found no evidence of cultural sites of significance on the seafloor which, in any event, has been extensively eroded and redeposited over thousands of years. This entire region was submerged beneath rising seas about 18,000 years ago as the ice melted at the end of the so-called Last Glacial Maximum. Specifically, a review of the seafloor topography by world-renowned sedimentologist Dr Henry Posamentier found that the so-called burial mounds were natural sedimentary features. This new work included interviews with over 170 Tiwi islanders, none of whom reported any sites of relevance along the pipeline route. The opposition’s claims are based on conflicting reports by EDO’s consultants, archaeologist Dr Mick O’Leary from the University of Western Australia and anthropologist Gareth Lewis of GL Anthropology, Darwin, both also experienced professionals.
Based on the Corrigan/Wessex findings that the pipeline posed no threat to cultural heritage sites, Santos did not seek to revise the EP and began to mobilise vessels, materials and personnel for the pipe-laying program. This work was well underway and the pipe-laying vessel enroute to the Barossa site when the EDO applied to the Federal Court on October 30, 2023, on behalf of Mr Munkara for an injunction to stop all work on the pipeline. The EDO argued that Santos’ ‘underwater pipeline would damage Sea Country, dreaming tracks, songlines and areas of cultural significance’ for Mr Munkara. Their consultants’ reports had revealed significant new cultural information, they posited, and Santos must be ordered to submit a new EP to NOPSEMA to properly assess the pipeline’s impact on, and risks to, this newly discovered important underwater cultural heritage.
Santos responded that the Corrigan and Wessex independent experts had concluded, based on the many interviews with Tiwi people and extensive archaeological and anthropological surveys and studies, that there were no such underwater cultural heritage places. Nonetheless, the Court ordered the Santos vessel to return to Darwin and issued a temporary injunction preventing any work by Santos until a further hearing on November 13. Justice Charlesworth accepted that her decision would involve financial loss to Santos but said this had to be balanced against the ‘irreparable’ damage Mr Munkara could suffer to his Sea Country, dreaming tracks and areas of cultural significance.
Other Australians might struggle with Justice Charlesworth’s sense of balance. After the announcement, Santos shares dropped $0.25, representing a loss of over $800 million by shareholders in the company. Major shareholders of Santos provide superannuation and other investments for Australian workers and retirees, including Vanguard Corporation, Colonial First State Investors, and the Commonwealth Superannuation Corporation, which covers government employees and ADF personnel. As of the time of writing, Santos shares are down in value by over one billion dollars in total and, while that also reflects other factors, the coincidence of the court’s decision and the precipitous share price fall is clear.
At the November 13 hearing Justice Charlesworth let the injunction remain in place until a case-management hearing on November 15, at which time the injunction against pipe-laying activities was lifted for the northern area near the Barossa Gasfield itself but reinstated for the southern section nearer the Tiwi Islands. The full case will be heard by Justice Charlesworth on December 5, with her decision to be handed down on 12 January 2024.
With the earlier Federal ruling delaying the development drilling, this new initiative was clearly – and successfully – designed to delay the pipeline construction. If the legal challenge is successful, that delay could be substantial, with significant implications for the national energy supplies and economy.
This issue highlights, yet again, the increasing weaponising of Aboriginal cultural sites by well-funded activists serving environmental or anti-development agendas. The trend to halt Australian development projects, specifically those related to oil and gas production, is clearly now the top priority for many environmentalists. The Scarborough and Barossa cases show that the current strategy is for legal challenges to the regulatory approvals processes, based on indigenous issues about cultural heritage and claims of inadequate consultation.
The prevailing romanticism about Aboriginal culture in Australia, which accepts that any associated site or song is sacred beyond the Anglo-Celtic imagination, makes this an easy ploy. If there is one Aboriginal dissenter who claims his sacred sites are threatened then, regardless of expert or Aboriginal community views to the contrary, the prospect of a sympathetic court looms large. When damage to the site is said to carry the danger of spiritual and physical harm, even death, to the affected community, public sympathy swells and judicial caution prevails. At Barossa, the ‘sacred’ claims are being taken beyond the modern landscape and applied to features drawn from ‘deep time’ memories of a landscape submerged for millennia.
This issue also calls into question, yet again, where the rights and views of the majority in a democratic society are to stand in relation to the rights and views of a small dissenting minority, both in the local context of the Tiwi Islands and more broadly in the Australian national setting.