The Full Court of the Federal Court of Australia has rejected an appeal by Santos against a decision that it failed to adequately consult with affected persons in relation to its offshore petroleum development in the Barossa gas field in the waters of the Timor Sea, north of Darwin. This decision upholds the Federal Court’s landmark decision as referred to in our previous alert.
Santos’ grounds for appeal
Santos raised a number of grounds for appeal before the Full Court of the Federal Court of Australia. Those grounds included that the primary judge erred in:
- concluding that the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) could not be reasonably satisfied that Santos had carried out the necessary consultations because:
(a) it did not demonstrate that a methodological exercise of identifying each and every relevant person had been correctly undertaken; (b) it had failed to consider material dealing with Sea Country and the interests and activities of Traditional Owners; and
- failing to consider and determine the proper construction of Regulation 11A(1)(d) because, on a proper construction of that Regulation, it was not open to infer that the connection of individuals who are part of a traditional owning group with “Sea Country” is not a “function, interest or activity for the purposes of Regulation 11A(1)(d)”.
Reasoning behind the decision
The Court indicated that the real area of debate for the appeal centered on ground two referred to above, which was a matter that was not expressly determined by the primary judge. Essentially, Santos submitted that the interests of Mr Tipakalipppa and the Munupi Clan were not a “person or organisation whose functions, interests or activities may be affected by” Santos’ proposed activities and, as a result, it was not required to consult with Mr Tipakalipppa and the Munupi Clan.
Santos and NOPSEMA argued for a narrow construction of the phase “functions, interests or activities”. Santos further argued that to follow a construction of those terms that admits of the possibility of including each and every member of a large, variable and indeterminate class of individuals who share common interests is unworkable and therefore wrong.
The Court, however, disagreed and found that the phrase “functions, interests or activities” should be broadly construed, because that approach best promotes the objects of the relevant regulations which relate to the protection of the environment. The Court found the construction of those terms argued by Santos would not promote the principles of ecologically sustainable development.
As a result, the Court considered that Santos was required to consult Mr Tipakalipppa and the Munupi Clan because they had interests that may be affected by Santos’s proposed activities.
Santos also sought to argue, adopting an aspect of the law relating to procedural fairness, that the larger the class of persons affected by a particular act or decision, the less the likelihood that the principles of procedural fairness would apply and, if they did apply, the lower the likely content to the duty top provide procedural fairness. Santos argued this concept should be applied in this case to support the argument that Mr Tipakalipppa was not required to be consulted.
The Court rejected this argument on the basis that it could not seriously be suggested that the interests of Mr Tipakalipppa and the Munupi Clan are analogous to those of the public at large and, in addition, such a concept only applies to an implied right to procedural fairness rather than an express statutory obligation to consult, as was the case in this matter.
Santos and NOPSEMA also argued that an interpretation of “interests” that required Mr Tipakalipppa and the Munupi Clan to be consulted would make the relevant regulations unworkable and this tended against the adoption of such an interpretation.
The Court also rejected this argument, drawing parallels to extensive Native Title case law which demonstrates that the First Nations Peoples have a traditional connection to the sea which may be affected by Santos’ activities and it is possible to construe a consultation requirement in a practical and pragmatic way that makes the process both reasonable and workable.
Santos has indicated that it will revise its environmental plan for the Barossa Project to address the matters contained in the judgement.
This decision is a significant victory for First Nations Peoples as it further entrenches their right to be consulted in relation to resource projects within their traditional lands and seas.