Evidence
57 There are three affidavits of Mr Munkara's solicitor. The first affidavit gives a long chronology of events that have occurred since December 2022 through to the commencement of this proceeding, specifically dealings between the legal representatives of Mr Munkara, the legal representatives of Santos and NOPSEMA. To understand Santos' arguments it is necessary to summarise some of that chronology.
58 On 22 December 2022, nearly two years after the acceptance of the Pipeline EP, Mr Munkara's solicitor received a briefing paper titled "Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route". The report was prepared by a marine geoscientist Professor Mick O'Leary, marine archaeologist Professor Jonathan Benjamin, Australian archaeologist Dr Daryl Wesley and anthropologist Professor Amanda Kearney. The four authors had conducted a desktop review of the archaeological potential of the sea bed. They collectively expressed concerns that the construction of the pipeline may impact on what are known as "features" that may be situated there.
59 Earlier in 2022, the Full Court of this Court delivered judgment in Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124. The Full Court upheld conclusions of the primary judge that the Tiwi applicants had a traditional connection to at least part of the sea in an area that may be affected by the titleholder's activities, and that those interests were immediate and direct. Mr Munkara submits that the judgment in Tipakalippa and the briefing paper reflect a "new" and evolving understanding of the nature of Indigenous connection to the sea, including the sea bed.
60 After receiving the briefing paper, Mr Munkara's solicitors wrote to NOPSEMA, drawing its attention to the paper and to the Full Court's judgment in Tipakalippa urging it to exercise its powers to protect the interests of the Tiwi Islander people in respect of their cultural heritage in the whole of the area affected by the pipeline.
61 In the context described below, Mr Munkara has subsequently commissioned expert reports from Professor O'Leary and from an anthropologist, Mr Gareth Lewis.
62 On 15 January 2023, NOPSEMA issued the direction to Santos and another joint venturer under s 574 of the Act, in the following terms:
Schedule 1
Direction 1
The registered holders must notify NOPSEMA of any future activities covered by the Barossa Gas Export Pipeline Installation Environment Plan (EP) that are to commence at least 10 days before the activity commences.
Direction 2
The registered holders must undertake and complete an assessment to identify any underwater cultural heritage places along the Barossa pipeline route (Pipeline Route) to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections that may be affected by the future activities covered by the EP (the assessment), as follows:
a) The assessment is to be undertaken by suitably qualified and independent experts with relevant experience and research credentials (experts).
b) In undertaking the assessment, the experts must:
i. obtain information from people and /or organisations who have, in accordance with Indigenous tradition, spiritual and cultural connections to any underwater cultural heritage places along the Pipeline route that may be affected by the activities; and
ii. record and have regard to the information obtained.
c) The assessment must be recorded in a report that is to be provided on completion to:
i. people and/or organisations who provided information under paragraph (b)(i) above;
and
ii. NOPSEMA.
Direction 3
Following the completion of the assessment required by Direction 2, if any underwater cultural heritage places along the Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections are identified that may be affected by future activities covered by the EP, the registered holders must update the EP. This must include relevant content as required under regulation 13 and regulation 14 of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Environment Regulations), including details and evaluation of impacts and risks (the evaluation) of future activities, including:
a. the methods and results of the evaluation on any identified underwater cultural heritage places along the Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections identified in undertaking Direction 2;
b. details of the control measures (if any) adopted to demonstrate that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable (ALARP) and be of acceptable levels;
c. a description of any other legislative requirements that apply to the activity and a demonstration of how those will be met; and
d. how any information obtained from people and / or organisations who provided information under paragraph 2(b)(i) above, has been taken into account in the evaluation, and in determining control measures.
Direction 4
The registered holders must submit progress reports to NOPSEMA detailing progress in undertaking the actions required by Directions 2 and 3 every 7 days from the date of this Direction, until those Directions have been met.
(footnotes omitted)
63 For the purpose of the assessment required to be undertaken by Direction 2, Santos commissioned its own reports, including an archaeological report produced by Wessex Archaeology (together with recommendations) (Wessex Report), two reports from geoscientist Dr Henry Posamentier and a report from anthropologist Dr Brendan Corrigan.
64 Since December 2022 Mr Munkara, through his solicitor, has been in regular correspondence with Santos, for the most part challenging the methodology of Dr Corrigan and specifically asserting which clans of the Tiwi Islander people have particular interests in the sea country where the pipeline is to be situated and who among them has authority to speak for that sea country in accordance with Tiwi Islander traditional law and custom. It remains Mr Munkara's view that Santos has not complied with the direction, including because of shortcomings in the consultation process, but that is not the principal concern of this proceeding.
65 In recent weeks, the correspondence from Mr Munkara's solicitor has increased in its urgency, characterised by demands for undertakings and information, including demands for copies of the Wessex report and information about the timing of the pipeline works.
66 At the same time, Mr Munkara has continued to remonstrate with NOPSEMA. He has sought information and undertakings concerning the exercise or proposed exercise of its powers in connection with the Direction, including by asserting that he should be heard before NOPSEMA forms any view about whether Santos has complied with it. He repeatedly asked NOPSEMA to share information about when works on the pipeline would commence. NOPSEMA has in large part declined those requests or demands and in some instances it has told Mr Munkara that his concerns should be raised with Santos and not NOPSEMA as the Regulator. It has stated that the exercise of its powers is for it to decide, and has not given any indication as to whether it will exercise its powers under reg 18 to request that Santos submit a revised environment plan. In this judgment I should not be understood to express any view on the exercise of NOPSEMA's powers, other than to say that the evidence before me tends to support a finding that NOPSEMA has formed a view that Santos has complied with the direction and hence with its obligations under reg 17(6).
67 As I have mentioned earlier, whether or not Santos has complied does not depend on NOPSEMA's state of satisfaction as to whether there is compliance. It is an objective assessment, not a subjective one. For present purposes, little turns on any view NOPSEMA might have formed with respect to the issue, rightly or wrongly. Whilst respect is to be afforded to the view of the Regulator, it is not at all apparent that NOPSEMA has based any decision on information directly presented to it by Mr Munkara.
68 Mr Munkara's solicitor's first affidavit attaches statements of Tiwi Islanders, summarised later in these reasons. The statements refer to different aspects of traditional law and custom, both tangible and intangible. There is a persistent theme in the statements of the spiritual significance of two travelling creation beings, Ampitji and the Crocodile Man. Other evidence concerns the broader spiritual conceptualisation of sea country and its significance to Tiwi Islander identity. The spiritual interests are of the same or similar kind as those referred to by the Full Court in Tipakalippa. There is no dispute that any impact or risk of impact on those interests are encompassed within the statutory definition of environment and environmental impact, notwithstanding that they are not associated with physical relics or specific locations, such as sacred sites.
69 In relation to tangible cultural heritage, the report of Dr Corrigan refers to a difference of views among geoscientists on some topics relating to archaeological potential in the sea bed and the likelihood of human artefacts having survived the erosional, dispositional and carbonation forces of the ocean.
70 In relation to intangible cultural heritage, Dr Corrigan identified the spiritual significance to Tiwi Islanders of the travels of the Crocodile Man, but observed that there is considerable disagreement among the Tiwi Islanders as to the impact of the pipeline on that aspect of their cultural heritage. He repeatedly states that there is a divergence of views among Tiwi Islanders themselves about the existence and significance of cultural heritage values that might be impacted.
71 Dr Corrigan goes on to state (at [177(b)]):
… In addition, as mentioned routinely to informants who have participated with my research, while sacred sites (as defined for example in the Northern Territory Sacred Sites Act 1989 (NT)) are automatically protected in the Northern Territory, there is a long history of it being notoriously difficult to arrange any protection for the known travels of associated spiritual beings (even where the details of such travels are universally agreed upon by relevant Aboriginal parties).
72 Dr Corrigan draws the following conclusions about the "location of mother Ampiji".
c. The location of mother Ampitji. Whilst the significance and existence of this place is clearly not agreed by all relevant parties it is also specifically identified by Dr O'Leary as being outside the proposed construction corridor of the proposed GEP.
d. The travels of Ampitji. The constant theme in relation to Ampitji that arises from my interviews with the Tiwi Islanders, is that Ampitji travel within the waterholes of the island and surrounding the Tiwis, protecting the Tiwi Islanders. While there are no specific underwater cultural heritage places that have been identified in relation to Ampitji along the GEP corridor, I accept that Ampitji is known to exist in the sea country surrounding the Tiwi Islands, by some Tiwi Islanders. I also note that the existence of Ampitji in the sea is rejected by some Tiwi Islanders as is the proposition that (it/he/she) would be affected by the laying of a gas pipeline on the seafloor.
(emphasis added)
73 Dr Corrigan does not otherwise report on the extent of sea country in which Ampitji is known to reside or travel.
74 Dr Corrigan made recommendations which he said were "derived from Indigenous feedback" as follows (at [178]):
a. A number of senior and authoritative informants proposed that one culturally appropriate step to take in the instance of proceeding with the GEP is to have suitable Tiwi Islanders accompany the construction crew and undertake an introduction of them to the seas and spiritual entities thereof. Other Tiwi Islanders say that this would be inappropriate, but my overriding sense of their objection is that it is to the project in general.
b. A related proposal is that Santos employ a number of Tiwi Islanders to accompany the construction crew at all times as indigenous monitors, so as to ensure a culturally appropriate figure was present, at all times, for spiritual protection of all concerned.
c. A proposal that was often put forward was that there be concrete development of economic strategies where Santos could valuably assist community aspirations.
d. A proposal put forward strenuously at my presentation of this research on 24 August 2023 at Pirli by [redacted] and some clients of the EDO was that Santos should support further archaeological explorations and specifically, diving based strategies. To this end, I refer to the discussion above on Wessex and Dr Posamentier's reports. While I support an examination of any helpful progression of this proposal, I note that the Wessex and Dr Posamentier reports highlight the likely lack of specific archaeological targets or of finding artefacts in an in situ condition.
75 Dr Corrigan's report was submitted to NOPSEMA on 25 September 2023. Whilst a copy was provided to Mr Munkara's solicitors, Santos at first refused to provide Mr Munkara with copies of the other reports to which Dr Corrigan had referred in the preparation of his opinion. Mr Munkara was not provided with a copy of the Wessex Report and the report of Dr Posamentier until the evening of Friday, 13 October 2023.
76 Santos relied on the affidavit of Mr Marcel John (Beau) Deleuil. Mr Deleuil refers (at [39] and [40]) to internal processes within Santos for the consideration of information. He states that there are existing internal processes to consider information and documents pertaining to potential environmental impacts or risks of Santos' activities, and that the information considered in accordance with that process included all of the reports to which I have referred in these reasons. Mr Deleuil goes on to say (at [40]):
I am informed by John Sarto, General Manager Offshore Approvals, that:
(a) The internal process was undertaken to determine whether any information contained within the documents referenced above constituted a new or increased environmental risk or impact. I am informed that this process is standard procedure for all Environmental Plans.
(b) The result of the process was that Santos concluded that there was no occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the EP.
(c) Following the process, Santos has adopted a number of cultural heritage control measures. These control measures include implementing a process to address unexpected cultural heritage finds throughout the pipelaying process. As part of this, I am instructed that Santos has created positions for appropriate Tiwi personal to be onboard the pipe-laying vessel to monitor and supplement the process.
77 On the basis of that evidence I find that Santos has sought to implement at least some, if not all, of the recommendations made by Dr Corrigan in his report.
78 The second affidavit of Mr Munkara's solicitor annexes affidavits constituting the evidence-in-chief of lay Aboriginal people who gave evidence at the trial of the proceeding culminating in the Full Court judgment in Tipakalippa. Those affidavits are relevant to the extent that they contain information about the content of traditional law and custom as it relates to the sea and the sea bed. They support a conclusion that Mr Munkara's concerns are founded in that tradition, and so qualify as interests relating to the environment, as broadly defined in the Regulations. I do not understand that issue to be in dispute. I otherwise afford those affidavits little weight because they were not prepared in the factual context of the present proceeding. To the extent that they shed some light on the asserted extent of Tiwi sea country more generally, that is a subject matter dealt with directly in the statements annexed to the first affidavit of Mr Munkara's solicitor going to the same subject matter.
79 The current Pipeline EP is in evidence. The Court was taken to parts of the plan that concern Aboriginal cultural heritage. To the extent that Santos submitted that the Pipeline EP covers the subject matter of Mr Munkara's concerns I reject the submission, at least for the purposes of the present application. Counsel for Santos acknowledged (properly) that to the extent that Santos' own expert Dr Corrigan accepted the significance of the Ampitji dreaming in the coastal waters surrounding the Tiwi Islands, the risk of harm to that dreaming is not the subject of risk presently identified in the Pipeline EP. Nor is there any reference in the Pipeline EP to the risk of harm to the asserted spiritual associations with sea country more generally, nor does the Pipeline EP address any risks of harm to cultural heritage associated with the travelling path of the Crocodile Man. Santos does not dispute that interests of the kind asserted are interests related to environmental impacts for the purpose of reg 17(6). The issues in dispute are more confined, and they involve both questions of fact and law.
80 Santos' position is that against the factual background just described three questions arise:
(1) has there been an "occurrence" within the meaning of reg 17?;
(2) to the extent that there is an environmental impact or risk is it "significant"? and
(3) to the extent that there is a significant environmental impact or risk is it "new"?
81 One or more of those questions may involve a question of the proper construction of the undefined expressions in reg 17(6). It is not necessary to articulate those questions of law here. The circumstance that there is a dispute about the proper construction of the regulation does not assist Santos on the present application. It simply means that there is a serious question to be tried with respect to the meaning of reg 17 and its application to the facts.
82 There appear to be a multitude of factual issues in dispute.
83 Before the Court are statements from five Tiwi Islanders from the Jikilaruwu, Malawu and Munupi clans.
84 For Santos it was submitted that the statements should be approached with caution because the statements do not make clear what information the witnesses have been provided with including about the nature of the pipeline laying works. Whilst there is some strength in that submission, questions affecting the weight that may be afforded to the testimony of a witness at trial is not my present concern. The criticisms of Santos with respect to the quality of the evidence are not of a kind that would require a conclusion that the claims are not bona fide nor a conclusion Mr Munkara's originating application does not enjoy sufficient prospects of success.
85 The statements of the Aboriginal witnesses contain expressions of spiritual beliefs and the significance of those beliefs within their own cultural system. It is not the task of this Court on the present application (or at all) to make findings as to whether the asserted beliefs are objectively true. The legislative framework defines the word "environment" in very broad terms, so as to encompass (for example) the social and cultural features of (for example), locations, places and areas. The cultural features and their significance are to be identified from an Aboriginal perspective, and the evidence contained in the statements go directly to that topic. The witnesses express beliefs about the significance of the sea more generally, as well as more specific beliefs about the location of songlines. Each of the witnesses describe the importance of stories relating to Ampitji and Crocodile Man. Among other things, they express their cultural beliefs about the spiritual consequences of disturbing those beings. Some of the witnesses also express concerns about impacts upon the natural environment. In some respect their concerns about risks to the natural environment may already be provided for in the Pipeline EP. In other respects, however, they refer to social and cultural impacts that are not presently included, specifically the asserted impact upon their spiritual connection to sea country resulting from the severance or disturbance of their songlines relating to Ampitji and Crocodile Man. Their evidence is to the collective effect that they fear an irreparable impact on their cultural heritage, including by reference to asserted traditional responsibilities to protect the sea from harm.
86 As to tangible cultural heritage, Mr Munkara states:
34. I have been informed by my lawyer that a company called Wessex found 163 sites of archaeological potential where the pipeline is going, and nearby. This is important cultural heritage for us. I think it is important for the Jikilaruwu clan to have the opportunity to look at and learn about these sites and identify them and talk about cultural stories that could relate to them.
35. If Santos just go ahead, then they are disrespecting us.
36. I am worried that the pipelay could cause damage to the seafloor, and our cultural heritage because it involves laying pipeline, including laying concrete blocks across areas where our physical cultural heritage is and could be. I am also worried about damage to the seafloor from moving the sand and seafloor around. I am worried about the pipelay boats, the chemicals, and risk of spills.
87 Santos submitted that these passages indicate that Mr Munkara has not personally read the Wessex Report and so has not properly understood its context and content. There is force in that submission and I have taken it into account in assessing whether there is a question to be tried sufficient to justify the interim relief that is presently sought.
88 In assessing the sufficiency of Mr Munkara's case to justify the relief sought, I place weight on the background to which I have referred and particularly on NOPSEMA's supervision of Santos' compliance with the Direction. As I have said earlier, it may be inferred that it is NOPSEMA's view that Santos has not breached, and is not presently in breach of reg 17(6). The formation of that view would, of course, depend on the information that was before NOPSEMA. It has declined to hear directly from Mr Munkara, despite his requests that he be heard on the closely related question of Santos' compliance with the Direction. With that qualification, the Court affords some respect to the views of the Regulator. However, as I have said, the statutory scheme is such that Parliament has not cast Santos' obligation in terms depending on any state of satisfaction on NOPSEMA's part. Whether there is compliance with reg 17(6) is a mixed question of law and objective fact.
89 In addition, the fact of disagreement between experts about the existence, nature, degree and location of environmental risks in and of itself does not preclude a conclusion that the objective conditions giving rise to the obligation exist. To the extent that Santos relies on Dr Corrigan's observation that there is no universal agreement between Tiwi Islanders about the existence and significance of the risks, for present purposes I place little weight on the fact that there exists some debate.
90 A real question arises as to the degree of precision with which a risk may be capable of being articulated or its significance measured by a titleholder in Santos' position before the obligation under reg 17(6) is triggered.
91 Dr Corrigan may be wrong in his view that universal acceptance is important or necessary. That too is a matter in dispute. On the material before me I am not satisfied that the content of traditional law and custom depends upon a majority view of all Tiwi Islanders irrespective of the location of their estate groups or the authority.
92 Furthermore, to the extent that Dr Corrigan referred to the inherent difficulty in devising ways to avoid or minimise harm, my preliminary view is that that is an irrelevant consideration in determining whether an obligation under reg 17(6) is enlivened. The purpose of reg 17(6) is to put in train a procedure by which the persons affected by the impact are consulted with respect to mitigating measures in accordance with reg 11A. As the Full Court said in Tipakalippa (at [89]):
Regulation 11A, like most statutory consultation provisions, imposes an obligation that must be capable of practicable and reasonable discharge by the person upon whom it is imposed. Consultation is a 'real world' activity, with specific purposes. Here, its purpose is to ensure that the titleholder has ascertained, understood and addressed all the environmental impacts and risks that might arise from its proposed activity. Consultation facilitates this outcome because it gives the titleholder an opportunity to receive information that it might not otherwise have received from others affected by its proposed activity. Consultation enables the titleholder to better understand how others with an objective stake in the environment in which it proposes to pursue the activity perceive those environmental impacts and risks. As the Regulations expressly contemplate, it enables the titleholder to refine or change the measures it proposes to address those impacts and risks by taking into account the information acquired through the consultations. Objectively, the scheme intends that this is likely to improve the minimisation of environmental impacts and risks from the activity.
93 Whether a revised environment plan meets the statutory criteria, including in respect of the sufficiency of protection, is a matter for NOPSEMA to decide. The present application does not usurp any part of NOPSEMA's functions in that regard.
94 I place significant weight on the evidence of Mr Deleuil to the effect that Santos has implemented recommendations in the report of Dr Corrigan to the extent that they relate to tangible archaeological artefacts. However, to my mind, the fact that the recommendations were made supports a conclusion that there is a serious question to be tried as to the existence of risks of significant impact for which no provision is presently made in the Pipeline EP.
95 As I have mentioned, Santos acknowledged Dr Corrigan's acceptance of the significance of Ampitji in coastal waters around the Tiwi Islands. I have already observed that there is no provision in the Pipeline EP with respect to the risk of impacts upon intangible cultural heritage related to Ampitji and the Crocodile Man. There appears to be no recommendation made by Dr Corrigan with respect to what is to be done about that. More importantly, the legislative regime is such that the question of how such a risk may be mitigated, if at all, is not for Santos to determine unilaterally. If a risk encompassed by reg 17(6) exists in fact, the Regulations mandate a procedure by which relevant persons are to be consulted in respect of a revised environment plan and a procedure by which NOPSEMA may then consider it. The regime does not envisage that a titleholder in Santos' position may manage any "new" risk as it thinks fit, no matter how well intentioned the titleholder may be.
96 I have had regard to the quality of the evidence that the applicant has put before the Court thus far. Santos has made submissions as to the weight that should be afforded to it. Much of the evidence is in the nature of hearsay, some of which would be admissible at a trial under s 72 of the Evidence Act 1995 (Cth) to the extent that it relates to the content of Aboriginal traditional law and custom. It may also be observed that the evidence is in part expressed at a high level of generality, especially in relation to Aboriginal conceptualisation of sea country and its geographical reach. At trial, the evidence of the lay witnesses may ordinarily be approached with some understanding of Aboriginal cultural norms, which are also referred to in the material. That includes an apparent disinclination to speak in terms of boundaries as western lawyers tend to do.
97 The Court is nonetheless concerned with the proper application of the legislative regime to matters concerning Aboriginal traditional law and custom, and it is necessary to have close regard to the asserted risk of impact in the particular location at which the imminent works will proceed, namely between KP86 and KP121.
98 To that end, Santos relied on a map contained in a report of Professor O'Leary which, it submitted, represented the highest point of Mr Munkara's case. The map is said to identify the location of the Ampitji dreaming in an area further west of the pipeline route, that is, on the further side of the pipeline route from the Tiwi Islands. However, in my view the location referred to in that part of the report should be understood as the resting place of Ampitji and not the wider region of its travel. Dr Corrigan himself refers to there being a difference between the two concepts. In addition, it does not accord with the statements of the proposed witnesses in Mr Munkara's case to confine the area affected in relation to the Ampitji dreaming to the limited region referred to in the report of Professor O'Leary. To the extent that Santos submitted that the map contained in the report of Professor O'Leary represented the high point of Mr Munkara's case with respect to the extent (in geographical terms) of the asserted interests, I reject the submission. Mr Munkara's case is not so confined. At its highest, his case is that the conceptualisation of Tiwi Island sea country has no bounds. How that conceptualisation is to be properly understood, and whether it is in fact limited in a geographical sense, forms some part of the question to be tried. For present purposes, I proceed on the basis that the asserted sea country does not extend, for example, to the coast off Western Australia. There is a boundary to it, but it is not necessary for present purposes to identify that boundary with precision.
99 I am satisfied that there is a serious question to be tried to the extent that it is asserted that the sea country extends at least to the point of the commencement of works with which I am presently concerned, between KP86 and KP121. The point at KP121 is about 40 kilometres from the nearest coast of the Tiwi Islands. Whatever be the outermost extent of Tiwi sea country, there exists a serious question to be tried as to whether the imminent works involve a risk of "environmental impact" that is "new" as asserted by Mr Munkara. I reach that conclusion on the basis of the lay evidence, irrespective of any opinion expressed in the expert reports.
100 I consider it unnecessary to resolve any residual submission of Santos that the expert reports are inadmissible because of non-compliance with procedural rules in connection with them, or that their use should be limited under s 136 of the Evidence Act. Non-compliance with procedural requirements for an expert report is not necessarily to be regarded as affecting admissibility, rather than weight.
101 In any event, for present purposes I approach the evidence before me as an indication of the kind of evidence intended to be adduced by Mr Munkara at trial, but it is not to be assumed that his evidence is presently in the form that it will take at the time of the trial proper. That is not unusual at all in the context of an urgent application for injunctive relief. Criticism of the quality of the evidence contained in the statements is to be considered in light of the urgency of the application. The Court does not have before it the whole of Mr Munkara's evidentiary case.
102 For certainty, I have not read Tipakalippa for the purposes of making any factual findings with respect to the issues that presently arise.
103 Much of what I have said thus far relates to intangible aspects of the asserted cultural heritage. I consider that those issues in and of themselves give rise to a serious question to be tried in the relevant area, without regard to the tangible aspects of cultural heritage referred to in the evidence.
104 With respect to tangible cultural heritage, Santos relies upon the report of Dr Corrigan and on the anticipated depth of settlement of the pipeline referred to earlier in these reasons. For present purposes, I accept Santos' evidence that the environmental impact is not significant with respect to the depth of embedment. I proceed on the basis that the pipeline itself does not exceed a metre in diameter between K86 and K121. That too is relevant to the assessment of the significance of the impact, as is evidence about the number of "features" in that area. In addition, there is a dispute among experts about the likelihood that there exist tangible artefacts on the sea bed. For present purposes, it is not necessary to resolve that issue. It is sufficient to observe that the strength of Mr Munkara's case with respect to tangible cultural heritage appears to be weaker than his case founded on interests that are more intangible in their nature.
105 Mr Munkara claims that he has not yet had a proper opportunity to consider the opinions contained in the Wessex Report. His case is that he is entitled to be consulted with respect to it and to make submissions about the risk to Tiwi Islander cultural heritage by reference to it. My preliminary view is that it appears doubtful that those claims, in and of themselves, could support a conclusion that Santos has a present obligation to prepare a revised environment plan. However, it does not detract from my conclusion that there exists a serious question to be tried in any event with respect to intangible cultural heritage values.
106 The circumstance that it might be difficult to articulate and assess a risk in a revised environment plan does not mean that no obligation under reg 17(6) can arise. As the Full Court said in Tipakalippa, a proper conceptualisation of the risk may not be possible until the obligations under reg 11A are complied with. It may be prudent for a titleholder to be open to information provided by a person in Mr Munkara's position in identifying whether there exists a risk.
107 In summary, real questions of fact and law arise as to whether there presently exists an environmental impact or risk, whether it is significant and whether it is new. For the purpose of the grant of interim relief, they are sufficiently serious questions having regard to the limited relief sought.