Lawyers for Santos have told a court the gas giant was not legally required to consult a specific clan of traditional owners over its plans to drill in the Barossa gas field in the Timor Sea, north of Darwin.
The company launched an appeal on Tuesday against a landmark Federal Court decision that ruled its $4.7 billion Barossa gas project was invalid because the offshore gas regulator had failed to assess whether Santos had consulted with all "relevant parties", as required by law.
In September, Federal Court Justice Mordecai Bromberg ruled that "relevant parties" should have included Munupi clan elder Dennis Tipakalippa, who said his community was not consulted about the project which will run a gas pipeline through his family's sea country.
The approval — granted by the National Offshore Petroleum and Safety Environmental Management Authority (NOPSEMA) — was deemed unlawful and Santos was ordered to suspend drilling operations in the gas field.
Shortly after, the company requested an appeal.
Santos argues legal issues remain
Representing Santos in the Federal Court in Melbourne, barrister Christopher Horan KC argued the judge did not explain what constituted a "relevant person" who needed to be consulted.
He said although Santos recognised that traditional owners' connection to sea country was "genuine and real", it did not legally qualify as "functions, interests or activities" as outlined in the legislation.
Mr Horan KC also said a community did not constitute as a "relevant person", meaning Santos would need to identify and consult with "each and every" individual in the clan group, which he argued was unreasonable.
The gas company has previously said consultation with Tiwi traditional owners started in 2016 and included contacting the Tiwi Land Council about the project.
But environmental lawyers have argued the contact with the land council about the pipeline was limited to a couple of emails that went unanswered.
Mr Horan KC said the legal issues identified in the case needed to be resolved because they had implications for other companies seeking to submit environmental plans in the future.
A threat to culture
Outside the court, a group of traditional owners, environmental lawyers and their supporters gathered to voice their opposition to the appeal.
Munupi clan representative Antonia Burke, speaking alongside federal Greens senator Lidia Thorpe, said the project posed a threat to Tiwi culture.
"There are no Aboriginal people on that ... bench, and they're sitting there, churning over three words: whether we have 'functions, interests or activities' off our own sea country," she told the rally.
"They want to say that we don't have any interests in that area, that we don't have any rights to speak for it.
"We will not be bullied or ignored by the federal government or by these mining companies."
The appeal hearing before three Federal Court justices continues on Wednesday.
Meanwhile, the drill rig that Santos had booked for work on the Barossa project — which is nearly halfway complete — remains idle between Darwin and the Tiwi Islands.
