Santos lays down argument in Barossa appeal

SANTOS has argued it did not need to consult individual clans and communities of native titleholders in its bid to undo an earlier judgment handed down by the Federal Court just weeks ago.
Santos lays down argument in Barossa appeal Santos lays down argument in Barossa appeal Santos lays down argument in Barossa appeal Santos lays down argument in Barossa appeal Santos lays down argument in Barossa appeal

Paul Hunt

Deputy Editor: Energy & Commodities

Paul Hunt

In late September, Federal Court justice Mordecai Bromberg found in favour of Tiwi Islander Dennis Tipakalippa who claimed he was not adequately consulted by Santos before it received drilling approvals. 

Santos was granted an expedited hearing to appeal the decision in October and over the last two days made its case before the full bench of the Court in Melbourne. 

Barrister Christopher Horan KC, Santos' legal counsel, raised concerns about the requirement of consulting "relevant persons" and how this was defined. 

He claimed Justice Bromberg had not solidified the definition and that Tipakalippa may not be a "relevant person" under legislation. 

Horan also said that even if Tipakalippa was considered a relevant person, that the company did not need to consult him as that could be considered unreasonable. 

He noted that some Tiwi islanders may have relocated to other cities and states in Australia, or indeed internationally, and questioned whether Santos would need to have conducted consultation nation-wide. 

This he argued would have been an unrealistic expectation, a claim also backed by the National Offshore Petroleum Safety and Environmental Management Authority's legal team. 

He said that Santos had adequately consulted Tiwi Islanders by engaging both the Tiwi Land Council and the Northern Land Council about the company's drilling plan. 

However, one of the three-judge panel members noted that consultation is not often as simple as this and claimed that could have gone above and beyond to consult the Tiwi community more broadly. 

"It's not a difficult exercise, is it?", she asked. 

"We do not just say ‘this is the area we're going to drill and this is Arab island' and then go talk to the people that live on Arab island?"

Horan said that while Santos recognised Traditional Owners had a connection to "sea country"  they may not have "functions, interests or activities" which is a requirement for consultation under the legislation.

Furthermore, Horan also argued that there was ambiguity over the geographical location of "sea country". 

Outside of the Court, a group of environmental activists voiced their opposition to the appeal. 

This included federal greens senator Lidia Thorpe. 

Santos' drilling rig remains at port in Darwin.