Indigenous Australian Clan Scores Landmark Legal Win Against Santos Energy Project

“Today’s decision puts oil-and-gas companies on notice,” said Alina Leikin, a lawyer with the nonprofit Environmental Defenders Office, which represented Mr. Tipakalippa. “It confirms that the voices of First Nations communities must be heard when their countries and cultures are under threat.”

The case is one of several recent disputes in which companies have faced pressure to respond to the concerns of indigenous people, and is notable because the judge, Mordecai Bromberg, traveled to the Tiwi Islands to hold a hearing and gather testimony from community members. Lawyers, indigenous people and activists viewed the on-country hearing as a sign that Australian institutions are increasingly taking the concerns and heritage of indigenous people into account.

Elsewhere, a Chilean court this year threw out a government deal for a Chinese company to mine lithium, used in electric-car batteries, ruling that indigenous groups hadn’t been properly consulted. And in 2020,

Rio Tinto

PLC apologized and executives resigned after the mining company blew up ancient caves significant to Australian indigenous groups.

Santos said it plans to appeal the ruling and would seek fresh approval for the $3.6 billion project, which has financial backing from overseas. It said it is committed to improving its consultation process with indigenous communities, but that the project is important for enhancing jobs and exports and warned that the decision could impact Australia’s reputation as a stable place for foreign investors.

“Project approval uncertainty is a public policy issue that should be urgently addressed by Australian governments to reduce risk for trade and investment in projects around the country,” Santos said.

Australia’s offshore safety and environmental regulator, which signed off on the drilling plan, said it is considering the implications of the decision.

Santos argued it consulted the Tiwi Land Council, a statutory body representing all eight clans of Tiwi people, and held in-person meetings with locals. But Mr. Tipakalippa and other members of his clan, which view the sea near the islands as sacred, said Santos should have had more direct communications with the clan. They also worried the drilling, increased vessel traffic and potential oil spills could threaten local wildlife.

In his ruling, Judge Bromberg noted at one point that there was no indication the land council contacted any other Tiwi Islanders, and that the land council was at times unresponsive, making it hard to conclude the regulator could be satisfied that everyone possibly affected by the drilling had been sufficiently consulted.

Santos doesn’t expect the decision to affect the Barossa project’s budget or timing, though that could change depending on how both the legal case and the new application for regulatory approval proceeds. When Santos decided to move forward with the project last year, it said it was targeting first gas production for the first half of 2025.

Write to Mike Cherney at [email protected]

“Today’s decision puts oil-and-gas companies on notice,” said Alina Leikin, a lawyer with the nonprofit Environmental Defenders Office, which represented Mr. Tipakalippa. “It confirms that the voices of First Nations communities must be heard when their countries and cultures are under threat.”

The case is one of several recent disputes in which companies have faced pressure to respond to the concerns of indigenous people, and is notable because the judge, Mordecai Bromberg, traveled to the Tiwi Islands to hold a hearing and gather testimony from community members. Lawyers, indigenous people and activists viewed the on-country hearing as a sign that Australian institutions are increasingly taking the concerns and heritage of indigenous people into account.

Elsewhere, a Chilean court this year threw out a government deal for a Chinese company to mine lithium, used in electric-car batteries, ruling that indigenous groups hadn’t been properly consulted. And in 2020,

Rio Tinto

PLC apologized and executives resigned after the mining company blew up ancient caves significant to Australian indigenous groups.

Santos said it plans to appeal the ruling and would seek fresh approval for the $3.6 billion project, which has financial backing from overseas. It said it is committed to improving its consultation process with indigenous communities, but that the project is important for enhancing jobs and exports and warned that the decision could impact Australia’s reputation as a stable place for foreign investors.

“Project approval uncertainty is a public policy issue that should be urgently addressed by Australian governments to reduce risk for trade and investment in projects around the country,” Santos said.

Australia’s offshore safety and environmental regulator, which signed off on the drilling plan, said it is considering the implications of the decision.

Santos argued it consulted the Tiwi Land Council, a statutory body representing all eight clans of Tiwi people, and held in-person meetings with locals. But Mr. Tipakalippa and other members of his clan, which view the sea near the islands as sacred, said Santos should have had more direct communications with the clan. They also worried the drilling, increased vessel traffic and potential oil spills could threaten local wildlife.

In his ruling, Judge Bromberg noted at one point that there was no indication the land council contacted any other Tiwi Islanders, and that the land council was at times unresponsive, making it hard to conclude the regulator could be satisfied that everyone possibly affected by the drilling had been sufficiently consulted.

Santos doesn’t expect the decision to affect the Barossa project’s budget or timing, though that could change depending on how both the legal case and the new application for regulatory approval proceeds. When Santos decided to move forward with the project last year, it said it was targeting first gas production for the first half of 2025.

Write to Mike Cherney at [email protected]