In Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 (Santos No.3), for the first time the Federal Court has ruled on what is considered a significant cultural heritage risk and the standard of proof required to prove that risk. In addition, Santos No.3 also sends a clear message to lawyers and experts not to taint or reshape direct evidence from Indigenous witnesses.

In brief

In March 2020, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) accepted an environmental plan submitted by Santos NA Barossa Pty Ltd (Santos) relating to the construction of a 262km gas export pipeline 7km from the west coast of the Tiwi Islands.

Two days before construction was to commence, members of the Jikilaruwu, Manupi and Malawu people sought an injunction against Santos, alleging that Santos was under an obligation to submit a revised environment plan on the basis that there was a ‘significant new environmental risk’ to their cultural heritage, being both intangible and tangible. An interim injunction was granted.

On 15 January 2024, the Federal Court of Australia handed down its judgment on a permanent injunction application. The Federal Court found in favour of Santos and discharged injunctions from earlier proceedings.

Many similarities have been drawn between Santos No.3 and Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 (Tipakalippa). Despite both cases being concerned with disputes between Tiwi Islanders and Santos, Tipakalippa was concerned with consultation rights, whilst in Santos No.3 the major issue was what constitutes a cultural heritage risk.

What is a significant and new heritage risk?

Under reg 17(6) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Regulations) in force at the time, a titleholder must submit a revised environment plan after the occurrence of any significant and new, or increase in an existing, environmental impact or risk. A failure to do so constitutes an offence under reg 8 of the Regulations upon the commencement of the activity not provided for in the environment plan. The Tiwi Islanders submitted that Santos was under a present obligation to submit a revised environment plan on the basis that the construction of the pipeline gives rise to a significant new risk relating to:

• ’intangible cultural heritage’ regarding the spiritual connection between the Tiwi Islanders and two spirits asserted to be located in sea country that the pipeline will pass through; and
• ‘tangible cultural heritage’ consisting of objects and artefacts on and under the sea bed and a burial ground asserted by a mapping expert, Dr O’Leary, to be located between the pipeline route and the west coast of the Tiwi Islands.

Under reg 4 of the Regulations, ‘cultural heritage’ is given a broad definition to include, among other things, a ‘cultural feature’. The Federal Court accepted that the definition therefore included not only the type of tangible cultural heritage asserted by the Tiwi Islanders, but also a ‘spiritual connection’ to an area (i.e. intangible cultural heritage) provided that the connection to that area is by the laws and customs of a people.

In determining whether the pipeline posed a ‘significant’ risk to ‘cultural heritage’, it is necessary to have regard to both the degree of chance of impact to the cultural heritage and the nature or the gravity of that impact. Therefore, the ’test for a significant risk is one about sufficiency’^[1], requiring the injunction applicant to demonstrate a risk of significant adverse impact upon the cultural heritage.

Further, the burden of proof falls on the party seeking to assert the risk, meaning that the Tiwi Islanders had to establish on the balance of probabilities that the pipeline posed a risk to cultural heritage, being an impact that is both significant and new, which may be one involving mathematical chance of less than 50%.^[2] Justice Charlesworth held it was not enough to prove that the cultural features ‘may exist’ or that the Tiwi Islanders ‘might have’ a spiritual connection to sea country, or beliefs in song lines and Dreamings.

Ultimately, the Federal Court held that the existence of such burial grounds were found to have no more than a negligible chance of existing, and therefore they were incapable of forming a cultural heritage risk. Further, there was insufficient evidence to prove that the Tiwi Islanders, as a people, held a communal belief that extended to two spirits into the vicinity of the pipeline route. Therefore, as there was no proof that the cultural features existed, there was no cultural heritage risk posed by the pipeline.

Interviewing Indigenous witnesses

Interestingly, much of the evidence from Indigenous witnesses was given little to no weight on the basis that the Federal Court was able to detect that the witness statements did not contain words actually spoken by the witnesses and was not recorded verbatim. The Court suggested the applicants’ solicitors had engaged in ‘a form of subtle coaching’ by distorting affidavits of Indigenous people to make it seem like the spirits were located in the Operation Area which, in doing so, was a manipulation of cultural heritage risk to have the Santos project stopped.

Respecting cultural heritage and tainted evidence of experts

However, despite having 10 experts provide a combination of archaeological, anthropological and geological expert reports, it was clear that one expert, a geoscience expert Dr Mick O’Leary planted the belief of a cultural heritage burial ground through showing the Tiwi Islander informants problematic maps which could not on any reasonable measure correctly represent the pre-inundation landscape in the period to which they relate^[3] and the maps were coloured in a way to draw the eye to the Ancient Lake as a standout feature of the landscape.^[4] Dr O’Leary provided evidence beyond his expertise that infected client answers with his desired outcome.^[5] Something as culturally significant as a burial ground requires scientific evidence^[6] usually from archaeological and anthropological experts. This cultural mapping by Dr O’Leary was relied upon heavily by EDO and it was discussed with the Tiwi Islanders as one strategy to stop the pipeline by the ‘use of cultural heritage stories as a weapon…’.^[7] A mapping of the burial site by a geoscience expert wrongly presented to the Tiwi Islander informants ‘as constituting a form of objective truth’ was never enough to prove the existence of the site, as rightfully called out by the Federal Court.^[8]

Key takeaways

1. How to determine if there is a significant cultural heritage risk

The decision presents an insight into what is considered a significant risk to cultural heritage. Importantly, the risk must relate to something that exists – it was not enough to prove that the cultural features ‘may’ exist or that there ‘might’ be a spiritual connection.

2. What a lawyer should do when interviewing Indigenous witnesses

Solicitors should endeavour to record evidence that is a true reflection of the experiences and beliefs of the witness, and should not engage in any form of rephasing a witnesses evidence or undertake any form of coaching. Asking open-ended questions and recording affidavit as interwoven stories may be the best ways to obtain an Indigenous witness’s evidence. Equally, barristers have a responsibility to monitor and ensure that the solicitor acting has not engaged in these activities to ensure only evidence that is a true reflection of Indigenous witnesses is on the record.

3. Experts should stay within their field of expertise and not act as advocates

Matters of cultural heritage should be treated with respect. When experts present an opinion pushed by their own ideological views, distrust in the legal system is only deepened which results in poor outcomes for Indigenous communities and cultural heritage protection. Experts should not act as advocates. When cultural heritage significance is to be assessed, the correct experts to be engaged are anthropologists and archaeologists.