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A Federal Court justice has questioned Santos' argument that it was "unworkable" to try and consult a specific clan of traditional owners over the company's plans to drill in the Barossa gas field.
Key points:
- Santos is appealing a landmark Federal Court ruling that halted drilling on its massive Barossa gas project, north of Darwin
- A Federal Court justice challenged the gas giant's argument that it didn't have to consult the Munupi clan over its plans
- The two-day appeal has concluded in Melbourne without a judgement date
Justice Debra Mortimer is one of three Federal Court justices presiding over an appeal by Santos against a landmark decision that halted drilling operations for its $4.7 billion project in the Timor Sea.
The project — which will extract gas from under the Timor Sea 300 kilometres north of Darwin — is one of the largest Australian oil and gas investments in nearly a decade.
In September, the project was ruled invalid after a judge found the offshore gas regulator had failed to assess whether the company had consulted with all "relevant parties", which he said should have included the Munupi clan of the Tiwi Islands.
Appealing the decision, lawyers for Santos have argued the clan did not legally count as "relevant persons" and that it was unreasonable to expect the company to consult with "each and every" individual clan member.
However, Justice Mortimer told the court on Wednesday:
"The only category which is said to be unworkable are Aboriginal and Torres Strait Islander people who have interests in this area."
"It's not said to be unworkable to contact a department. It's not said to be unworkable to consult an organisation. It's not said to be unworkable to consult a fisheries body [which] has hundreds of members.
"It's only said to be unworkable to consult with Aboriginal and Torres Strait Islander people."
Debate over consultation process
Santos 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.
Claire Harris KC, who is representing Munupi clan elder Dennis Tipakalippa, said the company should have gone further.
"You can't just say, 'here's an email TLC' and that's done, because the TLC has no decision-making power on behalf of the traditional owners," she told the court.
"There are multiple reasons why it could not stand as the representative for all traditional owners of the Tiwi Islands for this purpose."
Representing Santos, barrister Christopher Horan KC said a function of the Tiwi Land Council could be understood as "representing the interests of Indigenous residents as a community".
"In one sense ... it's an example of consultation carried out with the TLC as a relevant person," he told the court.
The Federal Court justices did not permit Mr Horan KC's argument, as Santos initially said it had contacted the TLC in its own right and not as a representative of traditional owners.
Traditional owners stand up against project
Speaking to the ABC outside the Federal Court in Melbourne, Munupi clan representative Antonia Burke said "regardless of the outcome of this appeal, Tiwi people are going to keep fighting".
"There are absolutely no circumstances at all that the Munupi clan or Tiwi people will agree to any fossil fuel activities in deep sea country off the coastline of the Tiwi islands where we live," she said.
"Tiwi people will not be ignored."
The two-day appeal has now concluded.
A judgement date has not been set.
In the meantime, Santos must maintain a pause on drilling operations for the project, which it says is about 46 per cent complete.