In the recent decision of Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9, the Federal Court has set the standard of proof required to support an assertion that a particular project is likely to cause a significant risk to Aboriginal cultural heritage. We discuss below some key aspects of the decision which provide improved clarity as to how such legal claims may be dealt with.

A number of significant findings were made about the evidence that will be required to establish the existence of intangible Aboriginal cultural heritage such as Dreaming stories and songlines, and the extent to which that intangible heritage is likely to be harmed by a proposed development. The decision also considered the issues of identifying which First Nations people possess the appropriate cultural authority to speak for their country, establishing the bounds of spiritual connection with land and sea and how a Court might reconcile inconsistent accounts of particular beliefs. 

Justice Charlesworth ultimately dismissed the application and lifted the injunction previously imposed on Santos, clearing the way for construction of the Barossa Project pipeline to proceed. 

While the decision raises the evidentiary bar for a party wishing to oppose a project on the basis of cultural heritage, it doesn’t prevent similar claims from being run in future. Until regulatory guidance is provided, uncertainty remains for Traditional Owners and project proponents, and proponents run the risk of significant delays as a result of similar legal proceedings.

Tangible and intangible Aboriginal cultural heritage claims

The applicants, Mr Munkara, Ms Puruntatameri and Ms Purtaninga Tipuamantumirri (Applicants), who are respectively Jikilaruwu, Munupi and Malawu people from the Tiwi Islands, relied upon their cultural and spiritual connections to sea country to bring the proceedings.

The respondent was Santos NA Barossa Pty Ltd (Santos), the proponent of an offshore gas project (the Barossa Project). Santos proposes to construct a gas pipeline that passes within 7km west of the Tiwi Islands for the purposes of the Barossa Project.
The regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), accepted an environmental plan in respect of Santos’ proposed construction of the pipeline on 9 March 2020. 

The Applicants had previously obtained an urgent interim injunction to prevent construction of the pipeline on the basis of their allegations that it would significantly impact both “intangible cultural heritage” and “tangible cultural heritage”, and that construction of the pipeline would constitute an offence because the risk to cultural heritage was not provided for in the approved environmental plan. 

The intangible cultural heritage in question related to two Dreaming stories concerning one or more rainbow serpents, the Ampiji, and the Crocodile Man, Jirakupai, and associated songlines. It was alleged the pipeline would damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to areas of sea country through which it would pass.

One witness also gave evidence of “potentially adapted beliefs”, relating to the existence of a ‘Mother Ampiji’ and an ancient lake, that would be impacted by the proposed pipeline. These beliefs derived from traditional knowledge asserted to be held by a single person, Carol Puruntatameri, and had evolved from new information presented to Tiwi Islanders by a geoscientist in June 2023 as part of a ‘cultural mapping’ exercise. 

The asserted tangible cultural heritage was archaeological artefacts and burial grounds that may be located on or under the seabed from a time dating back to the last ice age where these areas were subaerially exposed, which were at risk of being lost, destroyed or relocated by the construction of the pipeline. 

‘New’ risk of impact to cultural heritage?

The Barossa Project is governed by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (Act) and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Regulations). (Note: since the hearing of the application, but prior to the publication of the judgment, the Regulations were repealed and substituted by the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth), but that does not bear on the decision: at [5].) 

Under the Regulations, the holder of a petroleum title is required to submit an environmental plan prior to carrying out any ‘activity’ for acceptance by NOPSEMA: r 6. In preparing the environmental plan, the titleholder is required to consult with ‘relevant persons’, including government agencies, responsible Ministers and persons whose interests may be affected by the activity sought to be approved under the environmental plan: r 11A. 

If a new or increased environmental impact arises, the titleholder must, as soon as practicable after such occurrence, submit a proposed revision of the environmental plan: r 17(6). Undertaking an activity after the occurrence of a significant new environmental impact or risk which is not provided for in the environment plan is an offence: r 8.

The Applicants alleged that the risks of impact to their cultural heritage were “new” within the meaning of r 17(6) because they were not included in the approved environmental plan and had not been previously assessed by NOPSEMA. They alleged that on the “occurrence” of being made aware of the risks, Santos became obliged to submit a revised environment plan to NOPSEMA as soon as practicable thereafter. 

Key findings regarding cultural heritage

Justice Charlesworth considered the following key areas of contention:

• Relevant persons under the Regulations: Justice Charlesworth accepted that Aboriginal people have a sufficient interest, in respect of their country, to collectively be considered ‘relevant persons’ for the purposes of r 11A of the Regulations: at [855]. They are therefore entitled to be consulted in the preparation or revision of an environmental plan. But that interest does not, of itself, trigger the obligation under r 17(6) to revise the environmental plan: at [855].
• When does a ‘new’ risk ‘occur’? Justice Charlesworth did not accept that, under r 17(6), the allegations concerning Ampiji and the Crocodile Man amounted to “new” risks : at [1312]. Contrary to the Applicants’ submissions, a risk is not “new” merely because NOPSEMA had not previously considered it: at [222]. Such a reading would be contrary to the purpose of consultation in the preparation of the environmental report, and would penalise the titleholder for late disclosure of a risk by consultees. Rather, a risk is new on the occurrence of an event that creates that risk: at [238]. Her Honour also did not accept that the alleged risks that had “occurred” on the date Santos was made aware of them, following the approval of the existing environmental plan. The term “occurrence” used in both r 8 and r 17(6) connotes an objective event, rather than the titleholder’s subjective knowledge or state of mind: at [178]-[179]. Consistently with this construction, something can “occur” whether or not it is known by the titleholder: at [180]. Therefore, even were it not for the evidentiary issues discussed below, the Applicants failed to establish that a circumstance that would trigger the obligation on Santos under r 17(6) of the Regulations to revise the environmental plan had occurred.
• The meaning and scope of cultural authority: for example, who was entitled to speak on the subject of the songlines and for the areas of sea proposed to be impacted by the pipeline, and how to reconcile inconsistent evidence, including between people of equivalent cultural authority and even within the same families. Her Honour made the following key findings in respect of what must be proven to the Court to establish cultural authority:
  • One aspect of cultural authority is the ‘right’ to speak for country as determined by the traditional laws and customs of the relevant Traditional Owners, which must be established through the evidence before the Court: at [900]. The Applicants presented evidence that contentious issues are customarily resolved collectively at a clan meeting, but there was otherwise little evidence as to how to resolve divergent beliefs as to, for example, the location of a songline: at [906]; 
  • The Court accepted that views of witnesses who did not have the requisite cultural authority to speak on a particular matter could be disregarded. But the evidence of a reliable witness of equivalent cultural authority with a dissenting view could not be ignored, as that tends against a finding that the belief is broadly held: at [923]-[924]; 
  • Where there are divergent views on a particular cultural matter, it is insufficient to merely ask the Court to weigh up who has relevant or greater cultural authority, and thus prefer the evidence of some witnesses over others. The evidence must explain the existence of the divergent views and address how the Court ought to resolve the conflicting accounts: at [904]-[905]; and
  • Evidence of the existence of a continuing communal belief “requires more than the evidence of a single member of the group, irrespective of the cultural authority of that single member”: at [958]. A belief of a single person may, but may not, be representative of the community as a whole, but if it is the belief of an individual only, it cannot be said to be a ‘cultural feature’ of the place about which the belief is held: at [205].
• Whether it was necessary for the Applicants to prove the extent of the Jikilaruwu, Munupi and Malawu peoples’ sea country, and whether the Tiwi Islanders had a relevant connection to sea that was not ‘their’ country: The Applicants repeatedly asserted that only a person from a particular clan can speak for that clan’s country, and yet the Applicants submitted that the Court need not determine whether a particular area of sea forms part of a clan’s sea country: at [862]. The Court did not accept this submission, finding that:
  • “A spiritual connection to country is routinely one requiring proof over and above a mere assertion that a place forms a part of the group’s country” (at [866]), which proof may be established through communally held beliefs; and 
  • Whilst a cogent argument might be made that a spiritual connection between Aboriginal people and their country (that is, a part of their traditional estates) might be damaged by a pipeline traversing that country, a broader argument that there is a general connection to sea, regardless of whether or not it is their country is too ambiguous to stand: at [862]. The former argument would have been supported by the evidence adduced at trial: at [863]-[864]; the latter was based solely on general statements: at [865].
• Weighing up the evidence as a whole, whether intangible cultural heritage may be threatened by the construction of the Barossa Project pipeline: While the Court was satisfied of the existence of cultural beliefs and songlines concerning Ampiji and the Crocodile Man (see [81], [902]), the evidence did not quantitively or qualitatively establish that, as a people, the Jikilaruwu, Munupi and Malawu people believed those songlines extended into the vicinity of the proposed pipeline: at [1002]-[1003], [1014]. In particular: 
  • Charlesworth J was not persuaded that there must necessarily be consensus as to the beliefs held by the group as a whole, but given that it is necessary for a ‘cultural feature’ to be communally held (see [920]), the evidence adduced from the witnesses called must satisfy the Court that the beliefs said to constitute a ‘cultural feature’ are broadly representative of the relevant group: at [922]. The Court need not accept the evidence of a single witness merely because it is not contradicted by another witness: at [957]; 
  • The credibility and consistency of witnesses’ accounts was a significant issue, including evidence that was given for the first time during cross-examination (see [958]), evidence that was vague or lacking in detail (see [958], [986]) or conversely that was implausibly detailed for knowledge passed orally through countless generations (see [1176]-[1177]) and contradictory evidence given without explanation of the inconsistencies (see [905]); and
  • Evidence at times appeared to have been coached, in particular through a community meeting and the ‘cultural mapping’ exercise undertaken in 2023, with the aim of presenting evidence that the songlines extended to where the pipeline was proposed to be laid: at [994]. Evidence relating to the cultural mapping process in particular was found to be, at least in part, “confection” or “construction”: at [1027].

Further regulatory certainty needed

The Barossa decision can bring some comfort to government and industry in that it has set a higher bar for the evidence required to establish a threat posed by a proposed development to intangible cultural heritage. For instance, mere assertion of the existence of a songline will be insufficient. Proponents can also be more confident in focussing on dealing with recognised cultural authority holders of the country in which they are operating, and that they need not consult with every individual who professes to hold cultural knowledge, provided the proponent is confident the relevant beliefs are not representative of the group as whole.  

But the decision does not prevent similar actions from being brought in future, and proponents run the risk of significant delays as a result of similar legal proceedings. In an effort to deliver greater certainty, the Commonwealth Government is currently seeking public consultation on consultation requirements for offshore petroleum and greenhouse gas activities as part of a three-year offshore environmental management review, with Federal Resources Minister Madeleine King saying she wanted “clear and unambiguous rules that give communities and stakeholders a real say, and are also workable for industry participants”. Consultation is open until 8 March 2024, and all parties eagerly await the outcome of the review. 

In the meantime, the Barossa decision stands, with the time for the Applicants to appeal having expired on 29 January 2024 and no appeal being filed.