The Federal Court has dismissed a challenge by Tiwi Islanders against Santos' gas pipeline in the Timor Sea, in a decision welcomed by the oil and gas industry.
Jikilaruwu traditional owner Simon Munkara lodged civil enforcement proceedings in the Federal Court in October against Santos over its Barossa gas export pipeline, saying cultural heritage would be at risk by its construction.
Mr Munkara asked the court for an immediate short-term injunction to prevent Santos from beginning work to install its Barossa pipeline, as well as a wider injunction to prevent the work going ahead until Santos had revised its environmental plan, so the pipeline's impact and risk to underwater cultural heritage were properly assessed.
Justice Natalie Charlesworth granted the emergency interim injunction, stopping work from beginning on the pipeline, just hours before it was due to start in early November.
In a further November hearing Justice Charlesworth granted a partial interim injunction to restrain work on the pipeline, except for in an area about 75km north of the Tiwi Islands and further.
On Monday Justice Charlesworth dismissed the Tiwi Islanders' case and awarded costs to Santos.
"This outcome is very disappointing," Mr Munkara said.
"We brought this case to protect our sea country.
"We are hurting and need some time to think."
The decision was welcomed by Santos, which told the Australian Stock Exchange in a statement it would continue pipelaying.
Australian Energy Producers chief executive Samantha McCulloch said the court decision ended a period of uncertainty, delay and cost to the project.
"Reform of the offshore approvals system is urgently needed to put an end to the lawfare as activists seek to exploit the ambiguities in the regulations," she said.
In March 2020 the National Offshore Petroleum Safety and Environmental Management Authority accepted Santos' environment plan for construction of the pipeline.
The Tiwi applicants argued there was a significant new environmental impact or risk.
They told the court there are a number of cultural features along the area of the pipeline route.
They said the Jikilaruwu, Munupi and Malawu peoples of the Tiwi Islands have a spiritual connection to the area of sea country through which the pipeline will pass.
The pipeline will disturb the travels of an ancestral being of fundamental importance in their culture, Ampiji, a rainbow serpent, the traditional owners argued.
Tiwi people also argued that the pipeline would disturb the Jirakupai or the Crocodile Man songline, which runs from Cape Fourcroy on the western most point of Bathurst Island into the deep sea in the vicinity of the pipeline route.
Justice Charlesworth said for the Tiwi applicants to be successful, they needed to show there was a significant new environmental impact or risk.
The new information they relied upon is an expert report of a geoscientist, who engaged in a cultural mapping exercise with Tiwi Islanders.
"I have drawn conclusions about the lack of integrity in some aspects of the cultural mapping exercise, which undermined my confidence in the whole of it," Justice Charlesworth said.
"As a consequence of that conclusion, I am not satisfied that there is any risk of environmental impact of the kind asserted by the applicants in this part of the case, and it has therefore been unnecessary to consider whether any such risk should be characterised as 'significant' or 'new'."
The judge said there had been a significant degree of divergence in traditional owners' accounts about the Ampiji and the Crocodile Man songlines.
"On the evidence before me, I am not satisfied that evidence given by the witnesses called by the applicants is broadly representative of beliefs held by the relevant group or groups of people and so cannot be characterised as a 'cultural feature' of an area, place or ecosystem," she said.
Justice Charlesworth found there wasn't a significant risk to tangible cultural heritage either.
"The evidence establishes nothing more than a negligible chance that there may be objects of archaeological value in the area of the pipeline route," she said.
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