Australia’s environment movement and fossil fuel interests are weighing the significance of a sharp judicial slapdown delivered in the federal court.
In a judgment on Monday, Justice Natalie Charlesworth rejected claims that a pipeline necessary for a $5.8bn gas development north of Darwin posed a major risk to the cultural heritage of Indigenous people who have lived in the area for tens of thousands of years.
The immediate upshot is that Santos, one of Australia’s biggest oil and gas companies, can escalate work on its massive Barossa development. It plans to extract gas from the Bonaparte Basin and pump it via a 262km pipeline to a processing facility in Darwin. It will then be compressed into liquefied natural gas (LNG) and shipped to Asia, mainly Japan.
This is significant enough, but the judgment is drawing closer attention than it might otherwise have due to the strength of language used. Charlesworth was damning about aspects of the case made by environmental lawyers on behalf of three Tiwi Islanders.
Gas industry figures and their backers have been quick to claim the judgment adds weight to their case that urgent regulatory reform is needed to prevent people concerned about the climate crisis using legal action to slow extraction plans. This is a self-interested argument that goes well beyond what the court found, but expect to hear more of it in the days and weeks ahead.
It’s worth briefly stepping through what the case was about. It was brought by Simon Munkara of the Jikilaruwu people, Carol Puruntatameri of the Munupi people and Maria Tipuamantumirri of the Malawu people. They were represented by the Environmental Defenders Office (EDO), a legal organisation that advocates on conservation and climate issues and runs on a mix of private and government funding.
The case was filed in October last year, two days before work on the pipeline was due to start. Contrary to claims in some media coverage, it was not about whether Santos had consulted enough with traditional owners in developing an environmental plan. That was the subject of a separate landmark legal case in 2022 that is still reverberating.
This case was based on a new claim that the pipeline route, running 7km to the west of Bathurst Island, would affect Tiwi Islanders’ spiritual connection to the area’s “sea country” (described in the case as “intangible cultural heritage”) and artefacts showing human occupation on the land before sea levels rose about 20,000 years ago (“tangible cultural heritage”). The Tiwi Islanders who brought the case wanted an injunction preventing work on the pipeline until Santos submitted, and had approval for, an environmental plan that considered these newly raised risks.
The intangible heritage part of the case has received the most attention. It said ancient oral tradition passed down in words, song, dance and ceremonies told of two creatures – a rainbow serpent and caretaker of the land and sea named Ampiji and a Crocodile man – that could be disturbed by the pipeline, potentially leading to calamity and harm for the clans represented.
Charlesworth heard evidence from 23 Tiwi Islanders, roughly split between those supporting an injunction and those who backed Santos. She found there was insufficient evidence that the claims Ampiji would be disturbed were broadly representative of the beliefs of local clans, and “negligible chance” of a significant impact on tangible underwater archaeological sites.
The most critical part of her judgment focused on a cultural mapping exercise that she found involved some “confection or construction” by EDO lawyers and a consultant. She found the opinions expressed as a result of it were “so lacking in integrity that no weight can be placed on them”.
She found at another meeting a cultural anthropologist and an EDO lawyer engaged in “a form of subtle coaching” that went beyond encouraging the Tiwi Islanders present to tell their stories and effectively urged them “to tell their stories in a way that propelled their traditions into the sea and into the vicinity of the pipeline”.
At the time of writing the EDO is yet to say whether it will appeal. The chief executive, David Morris, described the ruling as “exceedingly disappointing” and said it was still digesting what it described as a particularly lengthy judgment.
A few early conclusions can be drawn, though.
The first is that it is a challenging result for the Tiwi Islanders involved, and a bruising outcome for the EDO and some academic consultants. It is likely to prompt a rethink about how and when cases based on Indigenous cultural heritage are launched and run in future. It is easy to say now, but some people within the environment movement believed this case was always likely to fail and there were better ways to challenge the environmental and cultural impact of the Barossa development.
Another is that Charlesworth’s judgment makes clear this case is not related to a federal review of the rules governing what oil and gas companies need to do to properly consult with Indigenous communities about new offshore developments. It was a failed attempt to argue a new environmental plan was needed for the Santos pipeline based on new information. People shouldn’t conflate the two.
The case also does not say anything about the legitimacy of developing a gas project on this scale when the evidence says the world needs a rapid reduction in global emissions.
Barossa has a high carbon dioxide concentration for a gas field, and the development could add hundreds of millions of tonnes of heat-trapping CO2 to the atmosphere once the fuel is burned overseas.
Neither Santos nor the federal or territory governments have demonstrated how this fits with a plan to cut emissions, or how it marries up with the global commitment at last month’s Cop28 climate summit to transition away from fossil fuels, including gas.
