Munkara v Santos NA Barossa Pty Ltd

The applicants' case 9 The first applicant, Simon Munkara, commenced this action on 30 October 2023, two days before works for the construction of the pipeline were then scheduled to commence. Carol Puruntatameri and Maria Tipuamantumirri were later joined as the second and third applicants. The applicants are respectively members of the Jikilaruwu, Munupi and Malawu clan groups. 10 The applicants alleged that Santos presently has an obligation under reg 17(6) to submit a revised environment plan, that obligation having been triggered by an "occurrence". They alleged that the construction of the pipeline gives rise to a significant new environmental impact or risk, or a significant increase in an existing environmental impact or risk, that is not provided for in the Pipeline EP, within the meaning of reg 17(6). They alleged that commencement of the works for the construction of the pipeline would constitute an offence under reg 8. 11 Numerous risks were relied upon, referred to at trial as relating to both "intangible cultural heritage" and "tangible cultural heritage". 12 The case concerning intangible cultural heritage was based in part on two Dreaming stories said to form a part of the applicants' cultural life relating to two ancestral or spiritual beings: a rainbow serpent or serpents known as Ampiji, and the Crocodile Man, known as Jirakupai. 13 There are two aspects to the intangible cultural heritage case. 14 The first aspect is one founded on ancient oral tradition, involving song lines told by certain clans of the Tiwi Islanders both in words and in their songs, dances and ceremonies over many generations. Reduced to its briefest expression, the allegation is that: (1) There are one or more rainbow serpents named Ampiji, one of which resides in Lake Mungatuwu, a freshwater lake in the southwest of Bathurst Island. Ampiji is a caretaker of the land and the sea. She patrols the coastline around the Tiwi Islands and also travels into the deep sea and thus into the vicinity of the pipeline. The risk arising from the activity was alleged to include a fear that the construction and presence of the pipeline would disturb Ampiji and that she may cause calamities, such as cyclones or illness that would harm (at least) the people of certain clans. The applicants allege that the pipeline will thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to areas of sea country through which the pipeline will pass. (2) The Crocodile Man song line is connected with a place in the sea in the vicinity of the pipeline. The applicants allege there is a risk that the activity will disturb the Crocodile Man in his travels and thereby damage the spiritual connection of the Jikilaruwu people to areas of sea country through which the pipeline will pass. 15 The second aspect of the intangible cultural heritage case relied upon what was referred to in closing submissions (but not before then) as "potentially adapted beliefs". It involves an account of Ampiji said by the applicants to have been recently adapted in response to new information Tiwi Islanders have obtained about their sea country, presented to them by a geoscientist in June 2023. The new information, on the applicants' case, is that in ancient times when the land now forming the sea bed was subaerially exposed, there existed a very large and deep freshwater lake in the area situated about 10km from what is now the western most point of Bathurst Island at or around Cape Fourcroy. At the mouth of the lake, the applicants allege, was an embayment (a recess in the landscape). Whether those features ever existed is an issue in dispute. I will refer to them as the Ancient Lake and the Ancient Embayment without suggesting any finding that they ever existed in fact. 16 The pipeline route lies between Cape Fourcroy and the place where the Ancient Lake and the Ancient Embayment are allegedly situated. The Ancient Lake is referred to in some materials as a "sacred freshwater source". 17 The "potentially adapted beliefs" proceed from the premise that culture is ever changing, that matters of traditional cultural significance may evolve and adapt to new situations and circumstances, including new information and knowledge. The alleged adapted belief is that there exists a Mother Ampiji who lives in the Ancient Lake. The Mother Ampiji travels around the sea, including around the Tiwi Islands. The applicants assert a spiritual belief that the pipeline will pass between the Ancient Lake and the Tiwi Islands, that it will "disconnect" the Jikilaruwu, Munupi and Malawu clans from the Ampiji who lives in the Ancient Lake and thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of their sea country through which the pipeline will pass. 18 The claims relating to Mother Ampiji and the Ancient Lake are also alleged to form a part of ancient Tiwi traditional knowledge and belief passed to Carol Puruntatameri by older generations. 19 The case founded on tangible cultural heritage alleged that there may be an archaeological record on and under the sea bed in the area to be affected by the activity, specifically objects and artefacts evidencing human occupation and activity from tens of thousands of years ago when the sea bed was subaerially exposed. The applicants alleged that there is a risk that the activity of constructing the pipeline and its embedment into the sea bed will cause the loss, destruction or relocation of some of that archaeological record and so presents a risk to Aboriginal cultural heritage having significance to the Jikilaruwu, Munupi and Malawu people. In addition, the applicants allege that the activity creates a risk of disturbance or destruction of a series of burial grounds that are said to be located between the pipeline route and the west coast of Bathurst Island. 20 Each of the alleged risks were described as involving a "real chance" of there being "notable" consequences, language that reflected the applicants' preferred construction of reg 17(6). 21 The applicants allege that, for the purposes of reg 17(6), the risks asserted by them are "new" because they were not previously assessed by NOPSEMA and that they are not provided for in the Pipeline EP that is presently in force. They alleged that there was an "occurrence" of the risks within the meaning of the provision when the risks were first brought to Santos' attention in late 2022 and throughout 2023, including by the commencement of these proceedings. They submitted that the conditions to trigger the obligation in reg 17(6) exist, and that Santos is therefore obliged to submit a revised environment plan to NOPSEMA for assessment. Upon the submission of such a plan, it would be for NOPSEMA to determine whether or not it should be accepted in accordance with conditions on its powers identified elsewhere in these reasons. 22 The above paragraphs give only a crude summary of the applicants' case. They are intended to provide a sketch of broad issues so that the lengthy summaries of evidence that are soon to follow can be read with some framework of the allegations in mind. The case as finally articulated in closing submissions is detailed at [847] below.

The relief sought 23 The relief sought on the amended originating application filed 22 November 2023 included a declaration under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) that: 1A. … the Respondent must submit a proposed revision to the Pipeline EP that provides for the risk posed by the Activity to submerged Tiwi cultural heritage, in accordance with reg 17(6) of the Environment Regulations. 24 In addition, the applicants sought a permanent injunction restraining Santos from undertaking the activity of laying the pipeline until it submits a proposed revision of the Pipeline EP in accordance with reg 17(6) and that revision is accepted by NOPSEMA.

The role of the Court 25 This not an application for judicial review of any prior decision of NOPSEMA, and NOPSEMA is not joined as a party. The case articulated by the applicants was confined to an allegation that Santos has a present obligation to submit a revised environment plan. Even if that allegation were to be proven to the requisite standard, it would form no part of the Court's function to decide what consultation must then take place between Santos and any person. Nor would it form any part of the Court's function to determine what the content of any revised environment plan should be, nor to determine whether such a plan could or should be accepted by NOPSEMA.

Summary of outcome 26 For the reasons that follow the evidence does not establish that the obligation under reg 17(6) (properly construed) has been triggered. It follows that the amended originating application must be dismissed.

THE TRIAL AND EVIDENCE 27 This action was commenced by originating application filed on 30 October 2023, accompanied by an interlocutory application seeking urgent injunctive relief. Simon Munkara was at that time the sole applicant. Argument on his application for interim relief extended into the evening of 1 November 2023. On the following day, the Court granted a short term injunction to restrain all work on the pipeline until 13 November 2023. Orders were made setting the matter down for more detailed argument on the question of whether there should be an ongoing injunction pending final judgment in the case. Oral reasons were given and written reasons followed: Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348 (Munkara No 1). 28 In Munkara No 1, I explained why I was satisfied that the Court had jurisdiction to grant the relief then sought by Simon Munkara, and why I was satisfied at that time that he was a person who had standing to apply for it (at [39] - [55]). 29 The interim injunction remained in force until 15 November 2023. On that day, the Court granted an interlocutory injunction of a more limited kind. The order had the effect of restraining Santos from undertaking works on all but the northernmost 86km of the pipeline route and was expressed to remain in force until 15 January 2024, or such later date as the trial judge may determine: Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421 (Munkara No 2). At the time of those orders, the final relief sought on the originating application was confined to an injunction. The claim for declaratory relief was later added by amendment. 30 In Munkara No 2, I addressed again the questions of jurisdiction and standing, including by rejecting a new argument raised by Santos on those questions. Questions of jurisdiction and standing have not been re-agitated and I remain of the views expressed in Munkara No 1 and Munkara No 2 on those interrelated topics. 31 An important feature of these proceedings is that the application for the interlocutory injunction was unsupported by any undertaking as to damages given by Simon Munkara or any person on his behalf. I concluded that it was in the interests of justice to proceed expeditiously to trial and judgment. That is principally because of conclusions I had previously drawn as to where the balance of convenience lay with respect to the injunctive relief, considered in light of the absence of the usual undertaking, and having regard to an earlier indication from Simon Munkara's Counsel that he and other likely applicants were ready to proceed to trial. In addition, contractual terms relating to the pipeline's construction were such that Santos's losses were likely to significantly increase if the restraint were to remain in force for a longer period of time. 32 In the circumstances just described, the Court's practice and procedure provisions have been applied in a way to best achieve the objective of making final orders on or before 15 January 2024, being the earliest date on which the Court could conceivably deliver judgment, having regard to the number and nature of issues in dispute. The matter was made ready for trial within a tight timeframe given its factual and legal complexity. The trial proceeded over 10 days in tranches between 4 and 22 December 2023, including oral closing submissions. The Court then received written closing submissions on 4, 5 and 7 January 2024. 33 The matter proceeded by way of a concise statement and a concise response in lieu of formal pleadings, although as will be seen, over the course of the proceedings the applicants reframed some aspects of their case and abandoned others.

Lay evidence 34 The Court received written and oral evidence from 23 Aboriginal witnesses from the Tiwi Islands (in roughly even numbers from both sides of the dispute). The focus of the applicants' case is on the people of three clan groups having land and sea country on and to the west of the Tiwi Islands, namely the Jikilaruwu, Munupi and Malawu clans. The 23 witnesses were from six clans, namely the Jikilaruwu (Simon Munkara, Ancilla Warlapikimayuwu Kurrupuwu, Molly Munkara, Valentine Intalui, Magdalen Kelantumama, Marie Frances Tipiloura, Eulalie Munkara, John-Louis Munkara, Jonathon Munkara, Mario Munkara and Theresa Munkara), the Munupi clan (Dennis Murphy Tipakalippa, Pirrawayingi Puruntatameri, Richard Tungatalum and Carol Puruntatameri), the Malawu clan (Therese Wokai Bourke and Maria Tipuamantumirri), the Wurankuwu clan (Tony Majirliyanga Pilakui and Brian Dixon Tipungwuti), the Mantiyupwi clan (Kaitline Kerinauia, Wesley Kerinaiua and Walter Kerinauia) and the Wulirankuwu clan (Stanley Tipiloura). 35 Given the common surnames, I will refer to the Tiwi witnesses by their full names throughout these reasons. 36 The first tranche of the trial was conducted in Darwin over four days, it being the most proximate place to the Tiwi Islands, the place of residence of nearly all of the lay witnesses. The applicants' early suggestions for an on-country sitting were rejected as unrealistic. 37 The Court made orders for lay evidence-in-chief to be adduced by way of affidavit or by adoption of written witness statements. The parties had liberty to apply to adduce evidence-in-chief viva voce. However, that liberty was not exercised, other than the applicants making an application to give song and dance evidence by way of demonstration under s 136 of the Evidence Act 1995 (Cth). That application was disallowed principally because the time available for the sitting in Darwin was already too compressed, but also because there would be an insufficient opportunity for Santos to obtain advice and give instructions to enable the applicants' witnesses to be cross-examined in respect of some disputed matters that were expected to arise from it. The applicants ultimately tendered video recordings of the songs and dances. The Court made a ruling limiting their use, to avoid unfairness arising from their late provision.

Expert evidence 38 The Court has before it 26 expert reports prepared by multiple experts, many of them responsive or counter-responsive. It is convenient at this juncture to name the experts and to give shorthand descriptions for their reports. The shorthand descriptions will be used throughout these reasons without referring again to the report titles. Some of the earlier reports were commissioned and produced before the proceedings were commenced and for purposes relating to a General Direction issued by NOPSEMA, discussed below. Consequently, some of the instructions put to the experts do not align entirely with the subject matter of the litigation. Each report is to be understood in the context in which it was sought and prepared. For the most part the experts themselves have acknowledged that limitation. 39 For convenience I will use the title "Dr" in connection with most experts, meaning no disrespect to those with higher titles.

Dr Brendan Corrigan 40 Dr Brendan Corrigan is a Consultant Anthropologist. He holds a PhD in Anthropology (University of Western Australia) and an Honours degree in Anthropology and Archaeology (Australian National University). He has consulted on anthropological and traditional owner issues in relation to native title, environment and resource matters. Dr Corrigan authored three reports: (1) "Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia", dated 15 September 2023 (prepared with the assistance of others) (Corrigan 1); (2) "Report in response to Lewis Supplementary Report and two supplementary reports by Associate Professor Michael O'Leary", dated 27 November 2023 (Corrigan 2); and (3) "Supplementary Report, Dr Brendan Corrigan, 13 December 2023", dated 13 December 2023 (Corrigan 3).

Dr Jodie Benton 41 Dr Jodie Benton is a Director and Principal Consulting Archaeologist at OzArk Environment & Heritage. She has a PhD in Burial Archaeology, Bachelor of Arts First Class Honours (Archaeology) and Bachelor of Arts (Archaeology and English) (University of Sydney). Dr Benton has 35 years' experience in managing archaeological projects, including Aboriginal and historic heritage assessments and community consultation. Dr Benton assisted in the preparation of Corrigan 1 and provided one further report, titled "Report of Dr Jodie Benton 27 November 2023", dated 27 November 2023 (Benton 1).

Ms Stephanie Rusden 42 Ms Stephanie Rusden is a Senior Archaeologist at OzArk Environment & Heritage. She holds a Bachelor of Science (Land and Heritage Management) (University of Wollongong), Bachelor of Arts (Archaeology) (University of New England), and a MicroMasters in Evidence-Based Management (Australian National University). Ms Rusden assisted in the preparation of Corrigan 1, but did not give evidence in the proceedings.

Mr Harrison Rochford 43 Mr Harrison Rochford is an Archaeologist at OzArk Environment & Heritage. He holds a Masters of Philosophy (Arts and Social Sciences), and a Bachelor of Liberal Studies (Advanced) (Psychology/Ancient History) (Hons) (University of Sydney). Mr Rochford assisted in the preparation of Corrigan 1, but did not give evidence in the proceedings.

Mr Gareth Lewis 44 Mr Gareth Lewis is a consultant anthropologist and member of the Australian Anthropological Society. He holds a Bachelor of Arts (Social Sciences) with majors in Anthropology and Asian Area Studies (Curtin University of Technology) and has published papers on anthropological issues related to the environment and resources. Mr Lewis authored two reports: (1) "Barossa Gas Export Pipeline Installation Cultural Heritage Assessment" Anthropologist's Report prepared for Simon Munkara, Dennis Tipakalippa, Pirrawayingi Puruntatameri, Therese Bourke, Lynette De Santis, Valentine Intalui and Edward Puruntatameri (clients of the Environmental Defenders Office)", dated 21 July 2023 (Lewis 1); and (2) "Barossa Gas Export Pipeline Installation Cultural Heritage Assessment: Anthropologist's Supplementary report in response to Dr Corrigan's report of 15 September 2023", dated 24 October 2023 (Lewis 2).

Dr Amanda Kearney 45 Dr Amanda Kearney is an Anthropologist and Professor at San Diego State University and the University of Melbourne. She holds a PhD in Anthropology (University of Melbourne) and Bachelor of Arts with Honours (Anthropology) (University of Queensland) and has served as a consultant and expert advisor to NOPSEMA. Dr Kearney provided one report titled "A Report to the Environmental Defenders Office, in regard to Munkara v Santos (VID907/2023) - Barossa Development Drilling and Completions Environment Plan", dated 27 November 2023 (Kearney 1).

Dr Andrew McWilliam 46 Dr Andrew McWilliam is an Anthropologist and Professor of Anthropology at Western Sydney University. He is a Fellow of the Australian Anthropological Society and member of the Australian Institute for Aboriginal and Torres Strait Islander Studies. Dr McWilliam holds a PhD in Anthropology (Timor Ethnography) (Australian National University) and provided one report titled "Review of the methodologies adopted by Dr Brendan Corrigan and Mr Gareth Lewis", dated 27 November 2023 (McWilliam 1).

Dr Henry W Posamentier 47 Dr Henry W Posamentier is a Geological and Geophysical consultant and Adjunct Professor of Geology at the University of Western Australia. He holds a PhD in Geology, a Master of Arts (Geology) (Syracuse University) and Bachelor of Science (Geology) (City College of New York). Dr Posamentier works as a consultant in the petroleum exploration and development sector with a focus on depositional settings. Dr Posamentier authored seven reports: (1) "Barossa Field Seafloor Late Pleistocene/Holocene Depositional Environment", dated 11 July 2023 (Posamentier 1); (2) "Comments on the Report of Wessex Archaeology LTD", dated 11 August 2023 (Posamentier 2); (3) "Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report", dated 21 August 2023 (Posamentier 3); (4) "Schedule of my Analysis of the Features identified in Wessex Archaeology LTD Report", dated 2 September 2023 (Posamentier 4); (5) "Response to Supplementary Report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment by Associate Professor Mick O'Leary", dated 4 October 2023 (Posamentier 5); (6) "Additional Observations Regarding Barossa Field Pipeline Seafloor", dated 27 November 2023 (Posamentier 6); and (7) "Report Summarizing my Response to O'Leary Report of November 30, 2023, and to Wessex Archaeology Report of December 11, 2023", dated 14 December 2023 (Posamentier 7).

Dr Mick O'Leary 48 Dr Mick O'Leary is an Associate Professor at the School of Earth Sciences and the University of Western Australia Oceans Institute. He holds a PhD in Marine Sciences (James Cook University). Dr O'Leary has consulted on resource project assessments and conducts research with a focus on geomorphology and archaeology. Dr O'Leary provided five reports: (1) "Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment", dated July 2023 (O'Leary 1); (2) "Supplementary report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment", dated 11 September 2023 (O'Leary 2); (3) "Further supplementary report responding to matters arising from a report authored by Dr Brendan Corrigan titled Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia", dated 7 October 2023 (O'Leary 3); (4) "Supplementary Report #3 Assessing uncertainty arising from findings in the Wessex and Posamentier underwater cultural heritage (UCH) assessments", dated 27 October 2023 (O'Leary 4); and (5) "Supplementary report #4 responding to matters arising from a report authored by Prof Henry Posamentier titled Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report", dated 30 November 2023 (O'Leary 5).

Wessex Archaeology 49 Wessex Archaeology Ltd and its subcontractor Extent Heritage were commissioned by Santos, in response to NOPSEMA's General Direction to undertake a targeted scientific archaeological assessment of the proposed route of the pipeline. Multiple specialists from different disciplines assisted in the preparation of two reports under engagement by Santos. When Santos informed the Court that it would not be calling any of those authors as part of its case, the applicants sought leave to issue subpoenas to six of them. Three of the subpoenas were later recalled. The remaining three addressees (Dr Hanna Steyne, Dr Andrew Emery and Dr Andrew Bicket) appeared in response to subpoenas and participated in a concurrent session with Dr Posamentier. In advance of that session, the three witnesses prepared a third report. The three reports are as follows: (1) "Barossa Gas Export Pipeline Submerged Palaeolandscapes Archaeological Assessment Technical Report", dated July 2023 (Wessex 1); (2) "Barossa Gas Export Pipeline Submerged Palaeolandscapes Archaeological Assessment Recommendations", dated July 2023 (Wessex 2); and (3) "Independent Expert report", dated 11 December 2023, (Wessex 3).

Joint reports 50 The experts were cross-examined in various concurrent sessions. 51 Prior to those sessions there were two pre-trial conclaves helpfully facilitated by a former Justice of this Court, the Hon Neil McKerracher KC. The following three joint reports were produced following the conclaves: (1) "Anthropology report (Methodology)" of Benton, Corrigan, Kearney, Lewis and McWilliam (conclave 9 December 2023 report dated 11 December 2023) (Methodology Joint Report); (2) "Geoscience report of O'Leary and Posamentier" (report dated 13 December 2023) (Geoscience Joint Report); and (3) "Anthropology report of Corrigan, Lewis and Benton" (conclave 9 December 2023 report dated 14 December 2023) (Anthropology Joint Report).

Video evidence 52 The Court has before it video evidence falling within two categories. There are 10 video recordings of traditional dances performed by the applicants and other Tiwi Islanders evidencing their traditional connection to the sea and their song lines. There are a further 41 video recordings of some events that occurred at a workshop on 19 June 2023 with Dr O'Leary (June O'Leary Workshop). 53 I have personally viewed all of the videos.

Documents 54 There are two tender books before me, totalling more than 14,000 pages. Some of the more critical documents have been read in full. I have otherwise confined my attention to those documents or parts of documents to which the parties have specifically drawn my attention, whether during the course of the trial or in their oral and written closing submissions. 55 Some evidentiary material has been received subject to rulings under s 136 of the Evidence Act limiting their use. It is not necessary to repeat the reasons for those rulings here. The parties are aware of them and should approach these reasons on the basis that my consideration of the documents has been limited by them. 56 Before proceeding further, it is necessary to set out some background facts and findings on preliminary issues. Unless stated otherwise, the background that follows may be understood as based on unchallenged evidence or uncontroversial facts.

THE TIWI ISLANDS 57 The shoreline of the present day Tiwi Islands has remained largely unchanged for about 8,000 years. However, about 18,000 years ago, much of what today constitutes the continental shelf was subaerially exposed. The period between about 26,000 and 20,000 years ago is referred to as the last glacial maximum (LGM), being the most recent time during the last glacial period that ice sheets were at their greatest extent. At that time, the shoreline lay well seaward of where it is today. The land masses now known as the Tiwi Islands did not exist as islands but rather formed a part of the mainland. The shoreline was located well north of the modern mainland shoreline, approximately 60km south of the centre of what is now the Barossa Field. That is referred to in the evidence as lowstand shoreline, lowstand being a time during which sea levels are at their lowest, typically during glacial periods in the Earth's history. 58 Between about 20,000 to 18,000 years ago, the sea level was about 120m lower than it is today. From between 18,000 to 12,000 years ago, the sea level rose slowly. The rise in sea level accelerated between 12,000 to 10,000 years ago before reaching its present position about 8,000 years ago. 59 The more rapid flooding of the continental shelf and the associated movement of the shoreline are known as shoreline transgression. In the period of more rapid sea rise, the flooding proceeded at a rate of about 18mm each year. The shoreline transgression resulted in a landward shift of the shoreline by approximately 150km to 200km. 60 The present day Tiwi Islands are comprised of two large and several smaller islands. Bathurst Island (in the west) and Melville Island (in the east) are separated by the narrow Aspley Strait. To the south of Melville Island are the three smaller Vernon Islands. Clarence Strait lies between the Tiwi Islands and the mainland.

TIWI SOCIETY 61 Under their traditional laws and customs, the people of the Tiwi Islands have a system of social and territorial organisation described by anthropologists as a manifestation of the creation era and ordained by their creation ancestors. As Dr Corrigan expressed it (Corrigan 1, [93]): In common with other Australian indigenous societies … the Tiwi have a normative system of laws and customs which provides a format for appropriate social life, including marriage practices, economic practices, ceremonial matters and concepts of discipline and punishment for transgressions of the same. … 62 Santos accepts that the normative system is what defines Tiwi people as a society. 63 According to their laws and customs, Tiwi Islanders are members of clan groups and skin groups. 64 Clans are local descent groups, comprised of one or more lineages or families. The anthropologists described clan groups as the patrilineal or patrifocal territorial unit of Tiwi society. Clan membership is ordinarily determined by descendance through the father, although there may be interests in land or waters within a clan's estate that are derived by adoptions, maternal lines or burials of certain ancestors at a place. There are eight clan groups: Jikilaruwu, Munupi, Wurankuwu, Malawu, Yimpinari, Mantiyupwi, Wulirankuwu and Marrikawuyanga. 65 Under modern law, the land that comprises the Tiwi Islands is controlled by the Tiwi Land Council under and in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Aboriginal Land Rights Act). The Tiwi Land Council has responsibilities as a trustee of the interests of the Tiwi people as the traditional owners of the land and waters to which the statute relates. As I understand it, membership of the Tiwi Land Council is representative in nature, with each clan group having at least one person representing the interests of their clan estates. 66 The territorial locations of each clan are depicted on this map, prepared by the Tiwi Land Council (Map 1): 67 Membership of a skin group is acquired through the mother. The skin groups are non-territorial. They are manifestations of a kinship system which regulates marital and social relationships between clans and across the whole of Tiwi society. An aspect of that system is the avoidance relationship, prohibiting communications between certain individuals. Continued adherence to that customary practice was apparent throughout the course of the proceedings with witnesses at times declining to mention the names of others, explaining why they had not had dealings with another on the topic of the pipeline, or using the word "poison" to describe the relationship.

Estates and boundaries 68 It was sometimes said by Tiwi witnesses that they did not speak in western concepts of boundaries. Those statements are to be understood in their proper context. The weight of the evidence is that there was a very strong sense among all witnesses that there existed such a thing as clan country. Map 1 demonstrates that the clan estates can and have been represented by the Tiwi Islanders themselves in a cartographic way, at least for some purposes. A good portion of the evidence focussed on the topic of who might have authority to speak for "Jikilaruwu country" or "Malawu country" or "Munupi country", no witness questioning that such distinct places existed. That is hardly surprising given the territorial focus of the clans within the Tiwi social structure described by Dr Corrigan. Understood in their proper context, and at least when applied to land, assertions such as "we don't speak in boundaries" may usually be understood as a reluctance to speak in terms of hard lines, absolute terms, modern measurements or two dimensions. But there is plainly such a thing as clan country: the Court was invited to assume the boundaries as depicted on Map 1 and to draw inferences about their natural extension into the sea.

Registration of sacred sites 69 The Northern Territory Aboriginal Sacred Site Act 1989 (NT) applies to the dry areas of the Tiwi Islands and the Northern Territory seas (extending about 2km from the shoreline). The Tiwi Land Council has been instrumental in recording and registering sacred sites under that regime, resulting in a map depicting many sacred sites on the land including around the coast. I accept that is an ongoing process. At present, the registered sacred sites do not include any place beyond the coast and into the vicinity of the pipeline, but that is no doubt explained by the territorial limit of the legislation.

Cultural authority and the right to speak for country 70 The topic of cultural authority was all pervasive during the course of the trial. It arises in part because the Court has before it conflicting accounts about what constitutes "culture" in light of differing views among Tiwi people as to whether the pipeline will have the impact the applicants assert. The applicants in particular sought to address that issue by inviting the Court to identify those who could, in accordance with Tiwi custom, speak authoritatively on a topic and to afford little or no weight to those who did not. The topic of cultural authority at times was equated with the question of which person had a right to speak for which country. The issue most often arose in the form of questions in cross-examination, putting the proposition that only Jikilaruwu can speak for Jikilaruwu country or song lines. Those questions did not get to the nub of the matter. They belied some complexity as to who could have an interest in (for example) Jikilaruwu country other than by way of patrilineal descent. They did not assist the Court to identify what song lines were exclusive to any particular clan. They were peculiar in a sense because the applicants themselves sought to draw on evidence of less senior Jikilaruwu people in preference over the evidence of those more senior, and to some extent draw on the evidence of non-Jikilaruwu people in relation to song lines that they say are exclusively Jikilaruwu. Perhaps most importantly, they do not assist the Court to grapple with the stark reality in the evidence that there were conflicting accounts given by Jikilaruwu clan members (including senior members of the same family group) about the content of song lines and the impact of the pipeline upon them. It will be necessary to return to the question of cultural authority and the related question of dissent. It is an issue infiltrating nearly all of the broader issues in dispute.

Spiritual beliefs, Dreamings and song lines 71 In these proceedings it is necessary to avoid language that labels "a thing" without carefully examining it for its essential meaning and features. As the Anthropology Joint Report stated: We note that the term 'Songline' is a popular gloss for complex social phenomena akin to other glosses such as 'Dreamings' and 'the Dreamtime'. We caution that such terms often hold contextually variable meaning(s) amongst Tiwi people which can be misleading. The following answer seeks to provide a best effort summary of how the term is used on the Tiwi Islands. Songlines are sung narratives which recall and maintain the actions, journeys and behaviours of the creation ancestors. Songlines serve as a mnemonic device for maintaining and transmitting narrative across generations. They also serve to identify and justify cultural knowledge and proof of ownership of country. They act as a form of charter connecting the creation ancestors to the present bridging the gap between ancestral past and present. Ownership and performance of songlines emphasises connections both within clans to a specific segment of a songline relevant to their clan estate, as well as between clans and individuals who may share knowledge of all or parts of a songline for and beyond their own estate. Songlines are not physical features of the landscape or fresh water or the sea but they typically name and describe the actions of creation ancestors often with reference to particular sites and/or places. 72 Dr Corrigan added that he did not use the phrase "song line" in his reports or notes, that it did not appear to be a Tiwi word nor to have a Tiwi equivalent. He preferred the more nuanced phrase "traditional songs and any associated places therein mentioned". In these reasons I will use the phrase "song line" to convey that same nuanced idea, subject to all of the qualifications to which I have just referred. So qualified, there are three song lines that should be briefly identified by way of background.

Mudungkala 73 In Corrigan 1, Dr Corrigan extracted passages from a 2008 report of Mr Graham written for the purpose of supporting a land claim by the Mantiyupwi clan relating to the Vernon Islands. Mr Graham explained the creation story on the basis of information drawn from his Mantiyupwi informants as follows: 99 The Tiwi myth begins at the place known as Murupianga, on the Melville Island coast north east from Cape Gambier. From here an 'Old Woman' known as Mudungkala (Murtutakala), the 'creation lady' as one Tiwi described her, emerged from the ground. She had been living underground and broke to the surface by digging upwards with her wooden digging stick. She had three children, two girls and a boy (who are in turn major elements of Tiwi mythology, particularly her son Purrukuparli whose later story underlies the pukumani story). Mudungkala travelled widely in the area and created the islands, her journey forming the coasts of Bathurst and Melville Islands by extensive digging of the land's surface with her stick. Water from the sea flowed into her depressions and created all of the waters and coastlines including the Clarence Strait. The claim area was described to the author by Tiwi informants as having been created by her. Mudungkala and her children's story is one of the main Tiwi Dreamtime narratives and is to be found in a number of the published works on the Tiwi. Morris' map number 5, (2001: 19) illustrates the 'Creative Travels of Mudungkala (Murtankala)'. She formed the strait separating Bathurst and Melville Islands, as well as the Clarence Strait. Mudungkala and her children are shown in a painting exhibited at the Tiwi museum at Nguiu (copied below). [images not copied] 100 The various versions of this mythology are all essentially similar, Morris for example says that: ... the Tiwi hold that their islands were created by a woman, in this case an old, blind lady named Murtankala (also spelt by various researchers as Murdankala, Mudangkla and Mudungkala). Briefly, in the distant past the land was covered in darkness and contained no geographical features, animals or humans. Below the earth there lived some spirit people, including Murtankala and her three children. One day she dug her way up to the land's surface. As she crawled about searching for food for herself and her infant children she gradually carved out the outlines of the Tiwi Islands. During her arduous journey she carried the children in a bark basket or tunga. Water flowed in behind Murtankala to surround the islands. The Creator Being began and ended her slow journey at Murupianga, on what is now the coast of Yimpinari (Impinari). Here she placed her children on the beach. With a bark torch she lit up the world, making day and night. Before disappearing forever, Murtankala clothed the islands with vegetation and introduced animal life to provide food for her children, Purrukuparli (Purukuparli) and his sisters Wurupurungala and Murupiyankala, the ancestors of the Tiwi. In his last hours on Melville Island, Purrukuparli performed the first Pukumani mortuary ritual near Cape Keith (Eeparli), declaring that thereafter all Tiwi were duty bound to carry out this ritual whenever an Islander passed away (Morris, 2001: 14-16). 101 It is Mudungkala's creativity, among other things of course, that is celebrated in Tiwi ritual. The most significant of these rituals are the kulama and mirringilaja initiations and pukumani funerary and mourning rituals. Again detailed accounts of them all can be found in the various ethnographic works referred to above: (Mountford, (1958), Hart and Pilling, (1960), Goodale, (1971) and Brandl, (1971). Of these, the Pukumani rituals are the most well known, involving the spectacular painted poles. While carried out as part of the last rites for deceased persons, these rituals have many other aspects as well. (footnotes omitted) 74 The Anthropology Joint Report confirms that Mudungkala and her children are foundational creation narratives which are Tiwi wide. They explain the existence of the Tiwi Islands and the identity of the Tiwi people as islanders.

Yiminga 75 Yiminga (sometimes spelt Yimunga, Imunga or Imunka) was described in various ways by the Tiwi witnesses, most often as a spiritual force or presence. There is Yiminga present at sacred sites (especially but not only at burial sites). The word was used to refer to the real presence of ancestors in the here and now. Another witness said that the word meant "heart". In Charles Mountford's early ethnography (Mountford, C.P., The Tiwi: their art, myth and ceremony (Phoenix House, 1958)), Charles Mountford described it as "a universal life essence which permeates all living things, the plants, the creatures and man". 76 In their concise statement the applicants originally referred to there being Yiminga in the whole of the sea. They alleged, as a discrete aspect of their claims, that the pipeline would disturb that Yiminga. Yiminga is now relied upon in the more narrow context of the claim relating to the travels of Ampiji, discussed below. 77 On a boat trip on 9 June 2023, Valentine Intalui explained Yiminga to Dr Corrigan as meaning a life force, something that gave Tiwi people their strength. He said "That's how we have become". Dr Corrigan asked Valentine Intalui if Yiminga was a life force in relation to everything, how was it that a house could be built near the place that they were then discussing. In cross-examination, Dr Corrigan paraphrased Valentine Intalui's response: "Houses can be there because we know the right place, if there's no sacred site or burial".

Ampiji 78 Beliefs about Ampiji (sometimes spelt Ampitji) among Tiwi Islanders are varied in several respects, particularly on the question of the extent of her travels and the related question as to whether the pipeline would cause her to become disturbed. There are also differing accounts as to whether there is more than one Ampiji, and as to whether there exists a Mother Ampiji. Some of those differences are more significant than others. 79 The differences in account were as apparent in the evidence given in these proceedings, as they were at the time that Dr Corrigan obtained informant accounts for the purposes of preparing Corrigan 1. Dr Corrigan said that locations where Ampiji was said to reside on Bathurst Island, were Lake Mungatuwu (a freshwater lake on Jikilaruwu country on the southwest coast) and Rocky Point (a protrusion on the northwest coast of Malawu country). Some informants told Dr Corrigan that the Ampiji believed to inhabit Rocky Point and Lake Mungatuwu were one and the same, others said they were different. Dr Corrigan said that when passing those places on various boat trips, "relevant Tiwi Islanders" would call out to the spirits of ancestors and Ampiji to assure them that correct people were taking visitors to look around in the proper manner" (Corrigan 1, [110]). He said that he was advised that was the best way of taking people around and introducing them to the country and the spirits within it, to ensure the visitors' physical and spiritual wellbeing. 80 Dr Corrigan reported that there were different accounts as to whether Ampiji went into the sea. In a passage relied upon heavily by the applicants, he said (Corrigan 1, [3]): A consistent theme which has emerged among some informants is that a spirit being (or spirit beings) called Ampitji (sometimes known as a rainbow serpent, sometimes said to be plural, and sometime male or female in various versions) routinely traverses all of the sea in the vicinity of the islands and the GEP and that Ampitji might become disturbed by the laying of the GEP and cause spiritual and physical harm to the Tiwi Islanders and others. In some instances, people who believe this also believe that preventative measures, such as having relevant Tiwi people 'introduce the pipeline and its work to the rainbow serpent' would ameliorate any risk. Others have put the view that Ampitji remains fairly local to known geographic sites on the islands and does not travel in the sea around the Tiwi Islands. (footnote omitted) 81 Fundamentally, it does not appear to be disputed that the spiritual belief in one or more Ampiji is a feature of Tiwi Islanders' spiritual life, but is not exclusive to the Jikilaruwu, Malawu and Munupi clans. References to one or more Ampiji in earlier ethnographic materials confirm that the narratives about Ampiji are a long-standing feature of Tiwi spiritual life and that Ampiji may also have a role to play in ensuring compliance with Tiwi law. So much is not disputed by Santos.

Crocodile Man 82 Prior to this litigation there were several accounts of the Crocodile Man story recorded in writing by or with the assistance of Tiwi Islanders. Some of those accounts will be extracted here. The first comes from a book titled "Murli la: Songs and Stories of the Tiwi Islands": Song titled "Tini Ngini Yirrikapayi Yima Kapi Wiyapurali" The crocodile man is sitting down making a spear He was at this Country/home Wiyapurali on the beach His people [of the tribe] Jikilawula did not like him Because he did not share the land Lying low down in the mud When he crawled away and he changed into the crocodile He crawled towards the sea with the spear in his back At Wiyapurali they saw him - he was running very fast The sharp pointed spear went through its back Crocodile goes out with the sea His people [of the tribe] Jikilawula did not like him They all said you will be, from now on, the crocodile wuwu! 83 In the same text there is a reference to a heavy ceremonial spear known as the "Arawanakiri" with a broad spearhead at both ends resembling the tail of the Crocodile Man. 84 The story of the Crocodile Man is told in relatively the same terms in a picture book created in 1991, with a notation that it was sung by Beatrice Kerinaiui. 85 The following is an extract of the Crocodile Man story from a display at the Patakijiyali Museum, which some witnesses said accorded with the story told to them by their Elders: Then Yirrikipayi ran and jumped. Hanging from his back were the spears that the people had thrown in him. Then he crawled along the beach cried out in pain and dived into the sea. After diving into the sea, he then surfaced for air far out in the deep water. Then all the people came to watch him. 'You are now the crocodile,' they all shouted. 'Your name will be crocodile,' they said. So that is what we call him. His mother, Pawunga, cried for her son. Then she was transformed into Pied heron. Pawunga sang this song for her son: 'He was speared in the back so he ran into the sea at Wiyapurali. Then they called him 'crocodile'.' 86 With only minor exceptions, the Tiwi Islander witnesses referred to a beach near Cape Fourcroy as the place where the Crocodile Man entered the sea. That aligns with the accounts given to Dr Corrigan, as summarised in Corrigan 1: 130. In the various instances where people raised details of the very well-known and routinely quoted story of the Crocodile Man, it was stated that he patrolled the various waters in the vicinity of a cave on the sea water edge on Cape Fourcroy, known as Wiya Pureli. When we visited that cave on boat trip #2 (16 March 2023), I was advised by the various Tiwi male delegates that the Crocodile Man lived in that cave and would patrol the waters up and down the coast in the general area, keeping an eye on things. 131. It is also the case that some Tiwi informants advised me about other spirit crocodile beings, who inhabit the seas in other parts of the Tiwi Islands, including one at Karlslake (to the northwest of Milli). Based on my interviews, there are no specific 'underwater cultural heritage places' that were identified in relation to the Crocodile Man along the GEP corridor. 87 Dr Corrigan reported accounts of the Crocodile Man travelling "in a range of locations". He went on to note that it was apparent that the significance of a pipeline on the sea bed "to the movements of the Crocodile Man" was the subject of considerable disagreement amongst relevant Tiwi Islanders.

Totemic species 88 Individual Tiwi Islanders spoke of having a totem, often a plant or animal having special spiritual significance to them, and an attendant sense of responsibility to care for the environment in which their totem species lived or moved. Concerns about the environmental impact or risks of the pipeline were in some instances expressed as a concern about risks to a particular totemic species, such as the turtle or dugong. Although that is not articulated as a discrete risk upon which the applicants' claims were based, they may inform the question of whether there exists a spiritual connection to areas in the sea through which the pipeline will pass.

THE PIPELINE EP 89 As I have mentioned, the Pipeline EP is the environment plan that is "in force" for the relevant activity concerning the pipeline. Its preparation followed the acceptance by NOPSEMA of the Barossa Area Development Project Proposal in March 2018. The objective of the Barossa Project is to develop a "gas and light condensate field using a Floating Production Storage and Offloading (FPSO) facility, subsea production system, supporting subsea infrastructure and the pipeline." 90 The Pipeline EP is one of several environment plans relating to the Barossa Project. It is structured in a way so as to address the detailed requirements for an environment plan prescribed in the Regulations. The following description of the pipeline and the environment that may be affected by it is drawn from the Pipeline EP itself. 91 The Barossa Field is located in the Bonaparte Basin in 210 - 2275m of water. Australia's northwest continental shelf edge lies approximately 60km south of the centre of the Barossa Field. The pipeline extends from the Barossa Field approximately 227km north of the Northern Territory mainland, to a tie-in location at the existing Bayu-Undan to Darwin pipeline approximately 100km north of the mainland. 92 Water depths along the pipeline route range from between 33m to 254m and the pipeline traverses three geomorphic regions: (1) continental outer shelf/slope (KP0 - KP73) comprising the shelf break and slopes of the Arafura Shelf characterised by gentle slopes (up to 0.2°); (2) continental middle slope (KP73 - KP106) comprising a carbonate bank and terrace system of the Van Diemen Rise with intersecting valleys between banks; and the (3) continental inner shelf (KP106 - KP262.39) comprising variable sediment types, including sub-aerially exposed cemented materials and significant terrestrial sediments especially in shallower water depths. 93 The "activity" consists of the installation of a 262km long 26-inch diameter carbon steel, concrete coated rigid pipeline. It encompasses installation of "pipeline end terminators" (PLET) including foundations and concrete mattresses to control flex and movement. The mattresses are to be made of blocks of dense material (typically concrete) bound together by flexible cables. The mattresses are 6m x 3m in area. Some scour protection may be added to the mattresses adding a further 3m around the structures. In addition, wedge-shaped support structures will be used, each having a sea bed footprint of 4m x 4m, with up to 3m of surrounding scour protection. 94 The total sea bed footprint (including the pipeline itself) is estimated to be 28.7ha. 95 The outside diameter of the pipeline varies according to the depth of water along its route, but it will not exceed 661mm in any one place. Once installed, the pipeline is expected to embed itself on the sea bed, at varying depths, not exceeding 65cm. 96 Places along the pipeline route are referred to by reference to their distance in kilometres from its northern most PLET (K0) to its tie-in point at the southern end (around K262). The distances from places on the Tiwi Islands are apparent in the map forming Schedule A to Munkara No 2. 97 The "operational area" is the area in which vessels constructing the pipeline will operate. It consists of a 3000m radius around each PLET and a 2000m buffer along each side of the pipeline route, reduced in some sections to remain within a proposed route presented in the accepted proposal. 98 The pipeline route passes over an existing fibre optic cable system located at KP257.3. Concrete mattresses are to be installed at that crossing point. 99 The pipeline route is said in the Pipeline EP to minimise the installation of the pipeline over areas of sea bed that are associated with certain features and values, including the shelf break and slope of the Arafura Shelf, and a carbonate bank and terrace system of what is known as Van Diemen Rise. The route crosses that bank and terrace system at two instances; between about KP70 and KP110 and in the south between about KP250 and KP255. 100 The Pipeline EP refers to a process known as "Mass Flow Excavation", a method of "Span Rectification", that involves: … both pre-laying (i.e. by creating a trench for the pipeline) or post-laying (i.e. by facilitating burial) of a pipeline if a given span cannot be effectively rectified using mattresses or grout bags. Mass flow excavation reduces span heights at the span shoulders and assists pipeline stability by facilitating partial or complete burial of the pipeline in unconsolidated sediments. Mass flow excavation may be achieved by localised suction or jetting of water, with resuspended sediments being moved away from the pipeline. This process results in localised lowering of the pipeline into the sediment, with subsequent partial or complete burial of the pipeline providing stabilisation and therefore removal of a pipeline span. The direct disturbance footprint of mass flow excavation is dependent on the depth of excavation required. Use of mass flow excavation will be limited and any associated seabed disturbance has been included in the footprint estimations for span rectification in Table 3-6. 101 There is a dispute between the parties as to whether mass flow excavation would or could lawfully be employed, Santos having informed NOPSEMA of an intention not to carry it out. As will be explained, I have not considered it necessary to resolve that issue. 102 Once installed, the pipeline will be cleaned using chemically treated sea water, including a dye, up to 15,000 cubic metres of which will then discharge at the termination end. 103 In accordance with the Regulations, the Pipeline EP defines the "environment that may be affected" (EMBA) by the activity. Its spatial extent was identified using modelling technology assuming a spill scenario resulting from a vessel-to-vessel collision, as that represented the largest geographic extent of the EMBA. That is a much larger area than the 4km wide operational area along the pipeline route, and extends to the Tiwi Island shores. 104 The Pipeline EP contains an assessment of the environmental features and values of the operational area and the EMBA, by reference to the very broad statutory definition of the word "environment" discussed later in these reasons. It identifies biologically important areas, such as habits for marine life, for example turtles and dugongs. 105 Under the heading "Aboriginal Heritage" there are statements that "There are no recorded Indigenous heritage sites within the Operational Area" and "The Tiwi Islands are a declared Aboriginal reserve and comprise a number of protected sacred sites". There are references to studies undertaken, among them a study titled "Tiwi Islands sensitivity mapping study" described as: Collection of data on environmental, social, cultural and economic sensitivities for the Tiwi Islands. A desktop review of available data (spatial datasets) was followed by workshops with Traditional Owners to identify cultural and environmental sensitivities along the coast of the Tiwi Islands. 106 Part 4.6 of the Pipeline EP is titled "Socio-Economic and Cultural Environment". It contains the following: 4.6.6 Aboriginal Heritage There are no recorded Indigenous heritage sites within the Operational Area. The Tiwi Islands are a declared Aboriginal reserve and comprise a number of protected sacred sites under the Northern Territory Aboriginal Sacred Sites Act. Traditional practices (including fishing, which is addressed in Section 4.6.8) continue to take place on the islands. Most traditional fishing occurs within 3 nm of the shoreline. ConocoPhillips undertook a mapping exercise with the Tiwi Island Land Council to identify environmental and socioeconomic values along the Tiwi Islands coastline (ConocoPhillips, 2019). The mapping exercise focussed on the northern, western and southern coastlines of the Tiwi Islands (within the EMBA). It included an initial desktop exercise to identify publicly available environmental, social, cultural and economic data sets. Preliminary maps were developed based on these datasets, and these maps were used during stakeholder engagement workshops held with Tiwi Islanders. Two workshops were held, the objectives of which were to verify the preliminary maps and to gain a more thorough understanding of the environmental, social, cultural and economic sensitivities of the coastlines. Final maps were then developed and presented to the Tiwi Island Land Council. The sensitivity mapping identified Aboriginal heritage sites along the northern, western and southern coastlines of the Tiwi Islands, including areas used for food collection, sacred sites, camping sites and a dreaming site. These coastlines are within the EMBA but outside the Operational Area. 107 The Pipeline EP also contains information about traditional fishing activities which need not be elaborated upon here. 108 Part 7.6.5 of the Pipeline EP contains processes for the "Management of Change". That portion of the Pipeline EP states that a revised environment plan will be submitted if the obligation under reg 17 is triggered. As such, the Management of Change processes are not to be regarded as a mechanism for avoiding the obligation under reg 17(6), should it arise. The Pipeline EP also states that it may also be revised in line with the Management of Change process, but may not be resubmitted to NOPSEMA if reg 17(6) does not require it. 109 Part 8 of the Pipeline EP contains information about stakeholder consultation, including consultation with Indigenous groups. I will return to the question of consultation at the conclusion of these reasons.

EVENTS PRIOR TO THE LITIGATION 110 The applicants are legally represented by the Environment Defenders Office (EDO). The identity of a party's lawyer is not ordinarily relevant, however in this case the EDO has undertaken work that forms a part of the factual background against which the issues are to be decided. In correspondence preceding the litigation (directed to both Santos and NOPSEMA) the EDO stated that it represented five clients, including Simon Munkara and three other witnesses in these proceedings. 111 The proponents of the Barossa Project originally included ConocoPhillips Australia Exploration Pty Ltd. In 2018, ConocoPhillips submitted the Barossa Area Development Offshore Project Proposal (Barossa OPP) to NOPSEMA in relation to a potential offshore development area approximately 100km north of the Tiwi Islands and 300km north of Darwin. 112 Acceptance by NOPSEMA of the Barossa OPP relating to the whole of the Barossa Project was necessary to enable ConocoPhillips to submit environment plans to NOPSEMA for assessment of future project activities. NOPSEMA accepted the Barossa OPP in March 2018. 113 Preparation of the Pipeline EP then occurred between March 2018 and March 2020. The process involved (among other things) the preparation of geophysical surveys, geotechnical site investigations and environmental mapping processes. ConocoPhillips engaged Jacobs Group (Australia) Pty Ltd to consult with the Tiwi Islands community in relation to the impact of the project. The scope of that engagement is in dispute. 114 Proposed environment plans relating to the pipeline were published on 29 July 2019 (Revision 0), 6 August 2019 (Revision 1), 30 October 2019 (Revision 2) and 6 February 2020 (Revision 3). The various revisions were prepared as NOPSEMA provided Santos with opportunities to provide additional information, including additional information concerning its consultation processes. 115 The Pipeline EP (being Revision 3) was accepted by NOPSEMA on 9 March 2020. In its written statement of reasons NOPSEMA stated that it had considered the description of the environment that may be affected by the activity "including relevant values and sensitivities" and found that "[s]ocial, economic and cultural features of the environment relating to the Commonwealth marine area, Australian Marine Parks (in this case, the Oceanic Shoals Marine Park), reef protection areas, cultural and heritage values, defence areas, tourism and recreational activities, commercial shipping, Commonwealth and Territory managed commercial fisheries and petroleum industry activities" had been identified and described. NOPSEMA recorded its finding that (relevantly) "[c]ultural and heritage environment features and values have been identified and described". When applying the criteria for acceptance of an environment plan, NOPSEMA recorded that it was reasonably satisfied that Santos had carried out the required consultations and that the measures they proposed to adopt because of the consultations were appropriate. NOPSEMA recorded its satisfaction that all other criteria for acceptance had been complied with and so accepted the Pipeline EP. There has been no application for judicial review of that decision.

Tipakalippa proceedings 116 On 14 March 2022 NOPSEMA approved an environment plan relating to offshore gas drilling in the Barossa Field (Drilling EP). The Drilling EP is one of five environment plans which together cover the various activities of the Barossa Project. It is not the same as the Pipeline EP. 117 By orders made by Bromberg J on 21 September 2022, NOPSEMA's decision to approve the Drilling EP was set aside on judicial review: Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121; 406 ALR 41 (Tipakalippa No 2). Those proceedings were commenced by Dennis Tipakalippa, an Elder and traditional owner of the Munupi clan (and a witness in the present proceedings). The judicial review proceedings were confined to a challenge to the Drilling EP, and did not impugn NOPSEMA's decision to approve the Pipeline EP, which had occurred about two years earlier. Mr Tipakalippa was represented in those proceedings by the EDO. A number of Tiwi Islanders provided affidavits in the proceedings which have been tendered in evidence before me. They included Dennis Tipakalippa, Pirrawayingi Puruntatameri and Carol Puruntatameri. 118 Among other things, Dennis Tipakalippa claimed that he and other traditional owners had "sea country" in the area north of the Tiwi Islands where the drilling was proposed. He alleged that NOPSEMA had failed to discharge its statutory obligation to reasonably satisfy itself that Santos had conducted the mandated consultation with "relevant person[s] … whose functions, interests or activities may be affected by the activities to be carried out under the environment plan", as required by reg 11A(1) of the Regulations because the people of the Tiwi Islands had not been consulted in respect of the preparation of the Drilling EP. That ground of review was upheld. The Court held that Mr Tipakalippa was a "relevant person" for the purposes of the Regulations, that NOPSEMA was not lawfully satisfied that the consultation requirements of the regulations were fulfilled, nor had it considered material within the Drilling EP that it was bound to consider. An appeal by Santos to the Full Court was unsuccessful: Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124 (Kenny, Mortimer and Lee JJ). Judgment of the Full Court was delivered on 2 December 2022. The Full Court upheld the decision at first instance, as well as Ground 1 of Dennis Tipakalippa's notice of contention: that NOPSEMA was not reasonably satisfied, within the meaning and as required by reg 10(1) and reg 10A respectively of the Regulations, that the Drilling EP demonstrated that Santos had undertaken the required consultations because the Drilling EP: (a) failed to demonstrate that all relevant persons as defined by the Regulations had been identified; and (b) failed to demonstrate that Santos had consulted each relevant person, insofar as the Drilling EP failed to demonstrate the traditional owners had either been consulted or were not relevant persons. 119 In December 2022 (the precise date is uncertain), the EDO received an undated report titled "Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route" (Knowing Sea Country Report) authored by Dr O'Leary, Dr Kearney and three other academics. The Knowing Sea Country Report concludes with a series of recommendations directed to Santos and expressly relating to the pipeline route. The EDO sent the Knowing Sea Country Report to both Santos and NOPSEMA together with correspondence and statements asserting their clients' interests in the area in the vicinity of the pipeline. 120 On 15 January 2023, NOPSEMA issued the General Direction to Santos and another joint venturer in the exercise of a power conferred by s 574 of the Act. It was 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) 121 The Explanatory Statement accompanying the General Direction contained a summary of the background to the acceptance of the Pipeline EP. It noted that Santos had become named as a titleholder in May 2021 and that the Pipeline EP had been updated through an internal Management of Change process in September 2021. It referred to an inspection carried out in December 2022 by NOPSEMA Inspectors. It stated that the Inspectors had identified that "more information was required to be obtained by the registered holders regarding consideration of environmental impacts and risks of the activity to any underwater cultural heritage places along the Barossa Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections". It noted that Santos had given an undertaking not to commence construction of the pipeline until it had undertaken a Management of Change process in relation to the "environmental impacts and risks of the activity not previously identified in the EP". 122 The Explanatory Statement noted that the undertaking offered by Santos was "consistent with regulation 8 of the Environment Regulations". It stated that NOPSEMA had nevertheless determined that the General Direction was required "to ensure that any environmental impacts or risks to underwater cultural heritage places along the Barossa Pipeline Route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections not provided for in the EP in force, are identified and reduced to [as low as reasonably practicable] and are of an acceptable level." The Explanatory Statement stated: In accordance with regulation 17(6) of the Environment Regulations, titleholders are required to submit a proposed revision of the EP for an activity before or as soon as practicable after: (a) the occurrence of a significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the EP; or (b) the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of a significant new environmental impact or risk or a significant increase in an existing environmental impact or risk. 123 By letter dated 27 February 2023, Santos engaged Dr Corrigan to undertake an assessment to "identify any underwater cultural heritage places along the Barossa pipeline route to which people, in accordance with Indigenous tradition, may have spiritual and cultural connections that may be affected by the activities covered by the [pipeline]". Dr Corrigan and those assisting him conducted a series of meetings, interviews and boat trips between 9 March 2023 and 15 August 2023. This included boat trips on 8 and 9 June 2023 (respectively, the 8 June Boat trip and the 9 June Boat trip) and a meeting on 12 March 2023 (March Corrigan Meeting). 124 Over the course of 2023, Santos engaged other experts including Wessex and Dr Posamentier. The EDO (on behalf of several clients for whom it then acted) engaged Dr O'Leary and Mr Lewis. A meeting was held with some Tiwi Islanders, Mr Lewis and the EDO on 30 May 2023 (May Lewis Meeting) and the June O'Leary Workshop. 125 On 15 September 2023 Corrigan 1 was provided to Santos. It contained references to Wessex 1 and Posamentier 1. Dr Corrigan made the following recommendations: 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. 126 In response to those recommendations, Santos subsequently employed Stanley Tipiloura (a member of the Wulirankuwu clan and a witness in these proceedings) to act as a cultural advisor on the vessel Audacia as it surveys the proposed pipeline route and carries out the construction works. 127 On 25 September 2023, Santos engaged with NOPSEMA about its compliance with the General Direction. On the following day, NOPSEMA advised Santos that its inspection team was considering the materials and that they would be in contact if further information was needed. 128 The EDO was provided with Wessex 1 and Posamentier 1 on 13 October 2023. 129 These proceedings were commenced on 30 October 2023. 130 On 1 November 2023, Santos provided NOPSEMA with an updated version of the Pipeline EP which it refers to as Revision 3.4 (Updated EP). It is not a revised environment plan that has been accepted by NOPSEMA and so is not the environment plan that is "in force for the activity" for the purposes of reg 17(6).

THE PROPER CONSTRUCTION OF REG 17(6) 131 There are more than 80 pages of written submissions devoted to this question alone. It is neither necessary nor practical to engage with every submission advanced by each party on every contentious issue. My reason for rejecting a particular submission of one party should be apparent from what follows, even if it is not expressly stated. 132 The applicants submitted that the obligation to submit a revised environment plan will be triggered under reg 17(6) if five conditions exist. First, there must be an "environmental impact or risk" or an "increase in an existing environmental impact or risk". Second, the impact or risk must be "new". Third, the impact or risk must be "significant". Fourth, the impact or risk must have "occurred". Fifth, the impact or risk must be one that is not provided for in the environment plan in force for the activity. 133 From that starting point the applicants advance submissions as to the intended meaning of undefined words and phrases contained in the provision itself or within the statutory definitions of those words and phrases that are defined. 134 With some exceptions I accept that the conditions are broadly as described by the applicants, although their broad description says nothing about the meaning of words and phrases. It is necessary to descend into some analysis of their separate meaning, however, that task should not detract from the task of construing the whole of the provision. As Gordon J said in Westpac Securities Administration Ltd v Australian Securities and Investments Commission (2021) 270 CLR 118 (at [54]), a statutory provision is to be read as a whole: it is not to be dissected into separate words or phrases, the meanings of which are then "amalgamated into some composite meaning". The parties' submissions do not necessarily suffer from that vice. I read the applicants' list of elements as intending to provide a framework for advancing arguments on the constructional task in their preferred order. I will approach some of the questions differently. 135 Regulation 17(6) is to be construed in accordance with the Acts Interpretation Act 1901 (Cth) and well established principles. As Kiefel CJ, Nettle and Gordon JJ said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (at [14]): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. … (footnote omitted) 136 Context, their Honours said, should be regarded at this first stage and not at some later stage, and it should be regarded in its widest sense. The statutory, historical or other context of a provision may suggest that a word bears a meaning other than its ordinary meaning. In such a case, the ordinary meaning must be rejected: SZTAL at [14] and the cases cited therein. 137 To similar effect, in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531, Gageler and Keane JJ said: 65 Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.' Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. 66 Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. (footnotes omitted) 138 And as Bell and Gageler JJ said R v A2 (2019) 269 CLR 507 (at [124]): Consideration of context in its widest sense and the purpose of the statute informs the interpretive task throughout (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.). That consideration and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ.). 139 As a general principle, each word or phrase in the provision should bear a meaning and so be given meaningful work to do: R v A2, Bell and Gageler JJ (at [154]). The same word or phrase should ordinarily be given the same meaning in each instance where it appears in the statute. Similarly, a provision should be construed in the context of the whole of the statute, to avoid incoherency or absurd outcomes. 140 Some of the words and phrases that appear in reg 17(6) also appear in many other provisions of the Regulations. Especially relevant are reg 7 and reg 8. They provide: 7 Operations must comply with the accepted environment plan (1) A titleholder must not undertake an activity in a way that is contrary to: (a) the environment plan in force for the activity; or (b) any limitation or condition applying to operations for the activity under these Regulations. Penalty: 80 penalty units. (1A) An offence against subregulation (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (2) Subregulation (1) does not apply in relation to an activity if the titleholder has the consent in writing of the Regulator to undertake the activity in that way. Note: A defendant bears an evidential burden in relation to the matter in subregulation (2) - see subsection 13.3(3) of the Criminal Code. (3) The Regulator must not give a consent under subregulation (2) unless there are reasonable grounds for believing that the way in which the activity is to be carried out will not result in the occurrence of any significant new environmental impact or risk, or significant increase in any existing environmental impact or risk. 8 Operations must not continue if new or increased environmental risk identified (1) A titleholder commits an offence if: (a) the titleholder undertakes an activity after the occurrence of: (i) any significant new environmental impact or risk arising from the activity; or (ii) any significant increase in an existing environmental impact or risk arising from the activity; and (b) the new impact or risk, or increase in the impact or risk, is not provided for in the environment plan in force for the activity. Penalty: 80 penalty units. (1A) An offence against subregulation (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (2) Subregulation (1) does not apply in relation to an activity if the titleholder submits a proposed revision of the environment plan in force for the activity in accordance with subregulation 17(6) and the Regulator has not refused to accept the revision. Note 1: Under subregulation 17(6), the titleholder is required to submit a proposed revision of the environment plan before, or as soon as practicable after, the occurrence of a significant new, or significantly increased, environmental impact or risk. Note 2: A defendant bears an evidential burden in relation to the matter in subregulation (2) - see subsection 13.3(3) of the Criminal Code. 141 Regulation 17(6) must be construed in a way that coheres sensibly with each of those provisions, especially given the express interaction in reg 8(2) and the implied interaction in reg 7(3). As offence provisions, they, in turn, are to be construed against the principle stated by the High Court in R v A2. Kiefel CJ and Keane J there said (at [52]): A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any 'loose' construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction. (footnotes omitted) 142 Their Honours added that a broad construction of an offence provision may be warranted in a particular case including when it has a protective purpose (at [55]). 143 Adopting a purposive construction does not otherwise extend to widen the meaning of a provision that creates a criminal offence beyond its textual limits: R v A2, at [124], Bell and Gageler JJ, citing French CJ, Hayne, Bell, Gageler and Keane JJ in Milne v The Queen (2014) 252 CLR 149 (at [38]). On that point, Edelman J said in R v A2: 164 When this Court said in Milne v The Queen that '[p]urposive construction does not justify expanding the scope of a criminal offence beyond its textual limits' it was not suggesting the existence of a separate principle of interpretation for criminal statutes that circumscribed the role of purpose or context to operate only within the covers of the dictionaries of the time. The point being made by this Court was that once courts have interpreted the meaning of the words of a provision they cannot expand that meaning in an attempt to give the words a wider effect. It is not open to courts, independently of their interpretation of the statutory words, to 'suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case?' As McHugh J said in Krakouer v The Queen, a decision cited with approval in Milne: 'If conduct of a particular kind stands outside the [meaning of the] language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than [the meaning of] its language admits.' 165 There might sometimes be a fine line between asking: 'In light of its legislative purpose, what would Parliament have intended in these circumstances?' and asking: 'Does the intended meaning of the words used by Parliament extend to these circumstances?' But the proper question to ask in statutory interpretation is always the latter. Where the relevant meaning of the words of a statute concerns a criminal offence it is particularly important to respect the difference between the two questions, lest the judiciary create, and apply retroactively, a new criminal offence. … (footnotes omitted)

Express objects 144 The contextual starting point is that reg 17(6) is subordinate legislation made under the Act. The object of the Act is stated in s 3 as follows: … provide an effective regulatory framework for: (a) petroleum exploration and recovery; and (b) the injection and storage of greenhouse gas substances; in offshore areas. 145 The need for an effective regulative framework is related to factual subject matter of considerable importance. As Allsop CJ said in Federal Commissioner of Taxation v Shell Energy Holdings Australia Ltd (2022) 288 FCR 193 (at [5]), "the context of the legislation in question includes the commercial and sovereign dealing with national resources of great importance." That subject matter is inherently one in which competing interests may be at play, whether public or private. 146 For Santos it was submitted that the objectives of the Act should be understood as relating to the public interest in energy supply and security, which included the need for a titleholder to have certainty, and for unnecessary burdens, disruptions and delay to be minimised or avoided. Subject to what follows, I accept that submission. The factual subject matter of the Act encompasses large scale infrastructure projects potentially involving considerable investment, such that an "effective" regime must be one in which the law regulating that activity is law that should be easily understood and readily applied to practical, real-life concerns. But the "effectiveness" of a regulatory framework is not to be directly equated with the efficacy, efficiency or profitably of the activity of extracting and exporting gas or petroleum. The word "effective" does not indicate a leaning toward the interests of the titleholder or any other financially invested interest. It is a reference to the effectiveness of the law, but it implies no policy statement as to how competing public or private interests are to prioritised. The law should be certain in its meaning to stakeholders, but it need not be construed in a way that appeals to them. 147 As is common with regulatory regimes, the broad "framework" of the Act is to prohibit conduct, and then to establish a licensing regime by which the otherwise unlawful conduct might be lawfully engaged in. Such regulation is typically (but not always) by way of conditions imposed on the licence holder by direct enactment or by the exercise of mandatory or discretionary administrative powers conferred upon a regulating body. 148 In the present context, NOPSEMA became the single Regulator following the passage of the Greenhouse Gas Storage Amendment (National Regulator) Bill 2001 (Cth) and replaced seven separate authorities then in existence. That amendment was in response to a 2009 Productivity Commission report titled "Review of Regulatory Burden on the Upstream Petroleum (Oil and Gas) Sector" and the "Report of the Montara Commission of Inquiry June 2010". In accordance with the first mentioned report, the amendments were to "reduce unnecessary burdens on the upstream oil and gas sector - in other words, regulatory burdens that can be removed without compromising desirable outcomes, such as relating to resource management, the environment, heritage, development, land access and occupational health and safety". The latter report was a response to Australia's third largest oil spill. It recommended the establishment of a single regulatory body to oversee safety as a primary objective, which encompassed well integrity and environmental management. To the extent that Santos submitted that the Bill had the aim of lessening environmental protections, I reject the submission. 149 The Act provides for the grant of titles including a "pipeline petroleum production licence" and a "pipeline licence". It is an offence to construct a pipeline in an offshore area, unless the construction is authorised by a pipeline licence: Act, s 210. A person holding such a licence is a "titleholder" for the purposes of the Act and the Regulations. Section 211 of the Act confers certain rights on a pipeline licence holder including the right to construct a pipeline in an offshore area (specified in the licence) a pipeline (along a route that is specified in the licence) and associated pumping, tank and valve stations (as specified in the licence) and to operate the pipeline and those stations. Those rights are expressly made subject to the Act and the Regulations: Act, s 211(2). 150 The Act contains empowering provisions authorising the making of regulations, including regulations creating criminal offences: see ss 781, 782, 790. At trial, Santos did not advance any argument to the effect that the Regulations are ultra vires the Act. 151 The objects of the Regulations are stated in reg 3, as follows: The object of these Regulations is to ensure that any petroleum activity or greenhouse gas activity carried out in an offshore area is: (a) carried out in a manner consistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act; and (b) carried out in a manner by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and (c) carried out in a manner by which the environmental impacts and risks of the activity will be of an acceptable level. 152 For the purposes of paragraph (a) of those objectives, the relevant principles are the "principles of ecologically sustainable development" set out in s 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). They include: (b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (c) the principle of inter-generational equity-that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; 153 Two things may be said of those principles. First, there is an objective to prevent harm, taking precedence over an approach that remediates or repairs harm once done. Secondly, there is a focus upon measures being taken to reduce, eliminate or minimise risk, even if it is not possible to scientifically determine the precise degree of risk, or the precise nature of the harm that might be caused should the risk transpire. That principle is one relating to threats of serious or irreversible environment damage. Paragraphs (b) and (c) of reg 3 reinforce those principles to an extent, however they also make it plain that the objective of the Regulations is not to eliminate or avoid risk altogether. The phrases "as low as reasonably practicable" and "acceptable level" are highly evaluative and context sensitive. 154 As with the Act, the framework established under the Regulations involves the creation of offences for engaging in specified conduct in specified circumstances. It is an offence for a titleholder to undertake an "activity" if there is no environment plan in force for the activity: reg 6. And, as discussed earlier, it is an offence for a titleholder to undertake an activity in a way that is contrary to an environment plan in force for the activity, or contrary to any limitation or condition applying to operations for the activity under the Regulations: reg 7. The word "activity" is defined to include a "petroleum activity", which encompasses operations or works in an offshore area undertaken for the purpose of exercising a right or discharging an obligation conferred or imposed on the titleholder under a petroleum title. The rights referred to in that definition necessarily encompass the rights conferred on Santos as the holder of a pipeline licence issued under s 210 of the Act.

The factual and legal landscape in which reg 17(6) resides 155 Against that wider context, it is necessary to consider the placement of reg 17(6) within the scheme established by the Regulations as a whole. On its terms, it is a provision that can only come into play in circumstances where there is already an environment plan "in force". An environment plan is "in force" if it has been accepted by NOPSEMA, and that acceptance has not been withdrawn, and the operation of the plan has not ended: reg 4. That directs attention to Div 2.2 of Pt 2 of the Regulations, which establishes a detailed regime for the preparation, submission and acceptance of environment plans. 156 NOPSEMA's power to accept an environment plan is conferred under reg 10. The task of construing reg 17(6) must necessarily involve some consideration of the nature of that power and the conditions on its exercise. Examining the nature and limits on the power also assists in determining the factual and legal landscape against which an obligation to submit a revised environment plan may arise. 157 Before commencing an activity, the titleholder must submit an environment plan for the activity to NOPSEMA, defined as the "Regulator": reg 9. Regulation 10 relevantly provides that if NOPSEMA is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, it must accept the plan. If not reasonably satisfied, it must provide the titleholder with an opportunity to resubmit the environment plan, and then accept the resubmitted plan if satisfied that the criteria in reg 10A are fulfilled in respect of it. The criteria are as follows: Criteria for acceptance of environment plan For regulation 10, the criteria for acceptance of an environment plan are that the plan: (a) is appropriate for the nature and scale of the activity; and (b) demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and (c) demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and (d) provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and (e) includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and (f) does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and (g) demonstrates that: (i) the titleholder has carried out the consultations required by Division 2.2A; and (ii) the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and (h) complies with the Act and the regulations. 158 Paragraphs (a) to (f) reflect the mandatory content for an environment plan prescribed in reg 13, including requirements that the plan describe the existing environment that may be affected by the activity, and that it include (among other things): (1) details of the particular relevant values and sensitivities (if any) of that environment; (2) details of the environmental impacts and risks for the activity; (3) an evaluation of all the impacts and risks, appropriate to the nature and scale of each impact or risk; and (4) details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level (including an evaluation of all the environment impacts and risks arising directly or indirectly from all operations of the activity and potential emergency conditions). 159 In respect of the first mentioned requirement, reg 13(2) and reg 13(3) provide: Description of the environment (2) The environment plan must: (a) describe the existing environment that may be affected by the activity; and (b) include details of the particular relevant values and sensitivities (if any) of that environment. Note: The definition of environment in regulation 4 includes its social, economic and cultural features. (3) Without limiting paragraph (2)(b), particular relevant values and sensitivities may include any of the following: (a) the world heritage values of a declared World Heritage property within the meaning of the EPBC Act; (b) the national heritage values of a National Heritage place within the meaning of that Act; (c) the ecological character of a declared Ramsar wetland within the meaning of that Act; (d) the presence of a listed threatened species or listed threatened ecological community within the meaning of that Act; (e) the presence of a listed migratory species within the meaning of that Act; (f) any values and sensitivities that exist in, or in relation to, part or all of: (i) a Commonwealth marine area within the meaning of that Act; or (ii) Commonwealth land within the meaning of that Act 160 Additional requirements for the content of an environment plan are prescribed in regs 14 to 16. Regulation 14 requires that the environment plan contain an "implementation strategy" and prescribes in some detail what that strategy must include. Among other things, the strategy must include an "environmental management system" to ensure that, for the duration of the activity, the environmental impacts and risks of the activity continue to be identified and reduced to a level that is as low as reasonably practicable. 161 The phrases "environmental impacts and risks" and "impact and risks" appear repeatedly throughout the provisions referred to thus far. 162 Regulation 11A provides: Consultation with relevant authorities, persons and organisations, etc (1) In the course of preparing an environment plan, or a revision of an environment plan, a titleholder must consult each of the following (a relevant person): (a) each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant; (b) each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant; (c) the Department of the responsible State Minister, or the responsible Northern Territory Minister; (d) a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan; (e) any other person or organisation that the titleholder considers relevant. (2) For the purpose of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person. (3) The titleholder must allow a relevant person a reasonable period for the consultation. (4) The titleholder must tell each relevant person the titleholder consults that: (a) the relevant person may request that particular information the relevant person provides in the consultation not be published; and (b) information subject to such a request is not to be published under this Part. 163 In Santos, Kenny and Mortimer JJ said this of the consultative process: 54 Thus, when NOPSEMA is required to make a decision under reg 10, NOPSEMA must consider 'the environmental impacts and risks' of the proposed activity by reference to the expansive definition of 'environment' in reg 4. It may be inferred from this, and in particular reg 10A(g), that the consultations under Div 2.2A referred to in reg 10A(g) (that is, those mandated by reg 11A) are ultimately intended to inform NOPSEMA about the environment (as broadly defined in reg 4 and therefore including (amongst other things) people and communities, the heritage value of places, and their social and cultural features) which may be affected by a titleholder's proposed activities under its environment plan. The information that the titleholder is obliged to provide to NOPSEMA is also designed to provide a basis for NOPSEMA's considerations of the measures, if any, that a titleholder proposes to take or has taken to lessen or avoid the deleterious effect of its proposed activity on the environment, as expansively defined. 55 We conclude that the consultation required by reg 11A is designed to give effect to the objects of the Regulations as stated in reg 4, by ensuring that the titleholder, such as Santos, consult the authorities, organisations and individuals whose functions, interests or activities fall for consideration under, or in conformity with, the principles of ecologically sustainable development set out in s 3A of the EPBC Act. Plainly enough, the range of matters falling for consideration is broad and diverse, including the social and cultural features of people and communities within the relevant ecosystem. 164 See also Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158, Colvin J (at [4]). 165 The power to accept an environment plan under reg 10 is therefore conditioned by a requirement that NOPSEMA form a state of satisfaction that the submitted plan has the substantive content prescribed under regs 13, 14, 15, 16: see for example, regs 10(a), (d), (e), (h). It also requires NOPSEMA to perform the highly evaluative tasks envisaged by regs 10(a), (b), (c), specifically by satisfying itself that the environment plan is appropriate for the nature and scale of the activity and demonstrates that the environmental impacts and risks will be reduced to as low as reasonably practicable and that they will be of an acceptable level. NOPSEMA must be satisfied not only that the titleholder has carried out the consultation required under reg 11A, but also as to the appropriateness of the measures (if any) that the titleholder has adopted or proposes to adopt because of those consultations. The intent of that scheme is to put before NOPSEMA all of the information it requires to perform the evaluative task exclusively conferred upon it. 166 The regime relating to the preparation of an original environment plan does not envisage that the titleholder can determine for itself how impacts and risks are to be managed, mitigated or avoided. Rather, its obligation is to undertake the significant assessments required under reg 13 so as to identify the values and sensitivities of the whole of the environment that may be affected by the activity, and then to submit to NOPSEMA its proposed response to them. 167 The circumstance that there is an environment plan "in force" envisages that, in the ordinary course, all of the requirements referred to thus far have been fulfilled. Importantly for present purposes, the acceptance of the environment plan reflects NOPSEMA's satisfaction that the titleholder has fulfilled its obligation to provide details of the values and sensitivities (if any) of the environment that may be affected by the activity and that it has proposed measures to reduce or address environmental impacts and risks to prescribed standards and that NOPSEMA has satisfied itself of the appropriateness of the titleholder's proposal in multiple respects. It also envisages that relevant persons have been consulted and that they have therefore had an opportunity to disclose to the titleholder any matters relevant to the titleholder's investigations and the exercise of NOPSEMA's powers.

Revised environment plans 168 Regulation 17 addresses a number of circumstances in which an obligation to submit a revised environment plan may arise, including that there is a new activity (reg 17(1), (2), (3), (4)), a significant modification or new stage in an activity (reg 17(5)), a new or increased environmental impact or risk (reg 17(6)), or a change in titleholder (reg 17(7)). 169 In addition, a titleholder must submit a revised environment plan if requested by NOPSEMA to do so, under and in accordance with a power conferred by reg 18. It relevantly provides: (1) A titleholder must submit to the Regulator a proposed revision of the environment plan for an activity if the Regulator requests the titleholder to do so. (2) A request by the Regulator must be in writing and set out the following: (a) the matters to be addressed by the revision; (b) the proposed date of effect of the revision; (c) the grounds for the request. … (6) A titleholder must comply with a request made by the Regulator under subregulation (1) and not withdrawn, or with a variation of a request under paragraph (5)(c), as soon as practicable. 170 NOPSEMA may withdraw an environment plan in (and only in) the circumstances described in reg 23. They do not include the circumstance that the titleholder has failed to comply with regs 13 to 16. However, they do include the circumstance that the titleholder has failed to comply with reg 17 or reg 18. 171 The power in reg 18 is not expressly pre-conditioned by any of the factual conditions referred to in reg 17, nor is it pre-conditioned by NOPSEMA having any state of mind about any one of those things. A concern by NOPSEMA that any one of the events referred to in reg 17 has occurred may of course form the basis for a request under reg 18, or the exercise of other powers (including the power to issue a Direction under s 574 of the Act), but on its terms, reg 18 does not confine the power to make a request to factual circumstances to which reg 17 refers. The broad scheme is that the Regulations themselves directly prescribe the factual circumstances in which a revised environment plan must be submitted and, in addition, confer a discretion on NOPSEMA to request that a revised plan be submitted in those or other circumstances. The other circumstances may include NOPSEMA's concern that the titleholder's initial investigations were insufficient to identify all relevant values and sensitivities of the relevant environment. They may also include a concern that a previously unknown risk associated with the activity has subsequently become known. 172 Section 574 of the Act confers upon NOPSEMA the discretion to issue a direction to a titleholder in relation to any matter in which regulations may be made. It is an offence to engage in conduct in breach of such a direction: Act, s 576(1). 173 The power to accept a revised environment plan is contained in reg 21. It specifies certain regulations that are to apply to a proposed revision if relevant as if "a reference in those regulations to the submission, acceptance or non-acceptance of the environment plan were a reference to the submission, acceptance or non-acceptance of the proposed revision". The named regulations include reg 11A imposing the obligation to consult. It would apply to the preparation of the revised environment plan only to the extent that it is relevant. It seems to me that the nature and extent of the consultation required may be affected by all manner of circumstances, including the reason for the need to submit the revised plan, but it is not necessary to decide that point. 174 If a proposed environment plan is not accepted, the provisions of the environment plan in force for the activity existing immediately before the proposed revision was submitted remain in force, as if the revision has not been proposed: reg 22. However, NOPSEMA may withdraw its acceptance of the environment plan that is in force, including after its non-acceptance of a proposed revised environment plan: regs 23 to 25. 175 That is the broad legislative context against which the words and phrases used or referenced in reg 17(6) are to be construed.

"Occurrence" and knowledge 176 For what follows it is helpful to push the text of reg 17(6) to the front of stage again. The words are as follows: New or increased environmental impact or risk (6) A titleholder must submit a proposed revision of the environment plan for an activity before, or as soon as practicable after: (a) the occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the environment plan in force for the activity; or (b) the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of: (i) a significant new environmental impact or risk; or (ii) a significant increase in an existing environmental impact or risk; 177 The opening words of the provision impose upon a person (the titleholder) an obligation to do a thing (submit a revised environment plan) at a point in time (before or as soon as practicable after any one or more of the circumstances then described). The circumstances described in (a) and (b) are expressed in objective language: their existence does not depend on the state of mind of any person. 178 The applicants submitted that the circumstances "occur" when the titleholder first becomes aware of the impact or the risk (as the case may be). That submission gives the word "occurrence" an ill-fitting meaning. The word "occurrence" in reg 17 is textually connected with an objective event, not with the state of mind of any person. 179 Nor do the words of the offence in reg 8 attach any knowledge requirement or qualification to the phrase "occurrence of any significant new environmental impact or risk". 180 Regulation 8 is extracted at [140] above. The physical element of the offence is the undertaking of the activity at a time "after the occurrence of" the circumstances described in reg 8(1)(a)(i) or (ii) and where the circumstance in reg 8(b) also exists. The offence is one of strict liability: reg 8(1A). Accordingly, proof of commission of the offence does not require proof that the titleholder knew of the existence of the relevant occurrence: He Kaw Teh v The Queen (1985) 157 CLR 523, Gibbs CJ (at 532). Rather, at a trial for the commission of the offence, the onus would be on the prosecution to prove, to the criminal standard, that the titleholder did not make an honest and reasonable mistake of fact as to whether or not there had been an occurrence at the time that the activity was undertaken: He Kaw Teh, Gibbs CJ (at 532). It is unnecessary to attach a knowledge aspect to the word "occurrence" in order for the offence provision to be workable. To the contrary, importing a knowledge requirement into the word "occurrence" does violence to the plain intention of the provision and its express exclusion of knowledge as a fault element attaching to the physical element. Proof of the titleholder's actual knowledge of the existence of the relevant occurrence or circumstance would of course assist the prosecution in disproving the existence of an honest and reasonable mistake of fact. But knowledge is not the fault element. 181 Attaching a knowledge aspect to the word "occurrence" also creates unnecessary complexity and incongruity in the context of reg 7(3). It provides that NOPSEMA's power to grant its consent for a thing to happen (being a thing that would otherwise constitute an offence) is conditioned by a requirement that NOPSEMA not give the consent "unless there are reasonable grounds for believing that the way in which the activity is to be carried out will not result in the occurrence". The word "occurrence" in that context cannot sensibly be laden with an actual knowledge aspect. Attempting to do so creates a problem as to whose knowledge is relevant. If it is to be NOPSEMA's knowledge, then that would do violence to the requirement that all that need be identified are reasonable grounds for a belief that the objective circumstances exist. If it be the titleholder's knowledge, then the power to grant consent would be conditioned by a requirement that there be no reasonable grounds for a belief that the titleholder is aware of the objective existence of the relevant circumstance. That is not a sensible construction. 182 It may be accepted that the meaningful and practical operation of reg 17(6) requires that there be some measure by which a titleholder, NOPSEMA, or another interested person, may ascertain at any point in time that the obligation under reg 17(6) has or has not arisen. There is a requirement for certainty in at least that temporal respect. The question of whether a titleholder has acted "as soon as reasonably practicable" after the objective circumstances exist is a question that requires consideration to be given as to when the titleholder first became aware of that existence. 183 In my view, it is implicit that the time at which the knowledge is acquired will be a relevant circumstance in determining whether the obligation to act "as soon as reasonably practicable" has been fulfilled. That implication may readily be drawn given that the objective of the Act is to establish an effective regulatory framework, being one that is understandable and workable in practical, real-world circumstances having regard to the importance of the subject matter of the Act and the generally protective purpose of the Regulations. But it is not necessary to distort the meaning of the word "occurrence" to achieve that objective. 184 The consequences of that construction in its application to the facts of a case may be no different to the consequences of the construction preferred by the applicants. However, I have dealt with that question first because if the word "occurrence" is to be given anything but its ordinary meaning, that may have had implications for the remaining questions to be decided. 185 The ordinary meaning of the word "occurrence" hardly needs explaining. It points to a thing that has "occurred", to something that has taken place or happened. One of the "occurrences" to which reg 17(6) refers is a "significant new environmental impact". The next question is how the word is to operate in connection with the word "risk".

"Occurrence" of a risk 186 In its ordinary meaning, the word "risk" refers to a chance of an adverse thing occurring. It says nothing about the degree of the chance or the magnitude or nature of the adverse thing. A risk may be miniscule in terms of mathematical probability, but serious with respect to the gravity of the consequence should it transpire. A risk may be great in terms of mathematical probability and yet trivial in respect of the adverse consequence. 187 On the applicants' preferred construction, the two alternatives referred to in reg 17(6)(a) are the "occurrence of any significant new environmental impact" (a limb not relied upon) and "the occurrence of a risk of any significant new environmental impact" (a limb relied upon). 188 The applicants submitted that a risk is not always something that "occurs" at an identifiable point in time, or at all. They submitted that a latent risk in connection with an activity may be always and ever present, but not known. They submitted that the word "occurrence" does not naturally attach to such a thing and it was therefore necessary to conceive of a risk occurring when the titleholder first becomes aware of it. I have rejected that interpretation of the word "occurrence" for reasons just given. 189 I have no difficulty in conceiving of a risk "occurring". A risk occurs when the objective circumstances that give rise to the danger first come into existence. As identified above, a titleholder will act as soon as reasonably practicable if it submits the proposed revision as soon as reasonably practicable after acquiring knowledge of the facts or circumstances that have given rise to it. That knowledge may be acquired some time after the risk has "occurred" in the sense I have explained. Whether a risk that has occurred may properly be characterised as "new" is a different question. 190 The text and structure of reg 8 confirm that a risk may be something that "occurs". It does no violence to that provision to conceive of a risk occurring when the facts and circumstances giving rise to the relevant danger first come into existence, assessed objectively. The state of mind of the titleholder is irrelevant at that stage of the inquiry. Again, whether the risk is "new" is a different and additional requirement. 191 The parties' submissions proceeded on the correct basis that the risk to which reg 17(6) refers is a risk of "environmental impact", not a risk of something extraneous to the Regulations. It is convenient to construe that phrase before turning to the concepts of "significant" and "new".

Environmental impact 192 The expression "environmental impact" is defined in reg 4 to mean "any change to the environment, whether adverse or beneficial, that wholly or partially results from an activity". The word "environment" is defined in very broad terms to mean: (a) ecosystems and their constituent parts, including people and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of locations, places and areas; and (d) the heritage value of places; and includes (e) the social, economic and cultural features of the matters mentioned in paragraphs (a), (b), (c) and (d). 193 The applicants employed the phrase "cultural features" in paragraph (e) of the definition in their connection with matters mentioned in (a) and (c). They relied on three combinations of words and phrases as follows: (1) cultural features of an "area" (which are said to encompass spiritual connection to sea country); (2) cultural features of locations or places (which are said to encompass tangible cultural heritage); and (3) cultural features of an "area" or "people" (which are said to encompass song lines or Dreamings). 194 The applicants relied principally on this definition of the word "culture" as it appears in the Oxford English Dictionary (online): Refinement of mind, taste, and manners; artistic and intellectual development. Hence: the arts and other manifestations of human intellectual achievement regarded collectively. 195 The closing submissions relegated an important part of the dictionary definition to a footnote: The distinctive ideas, customs, social behaviour, products, or way of life of a particular nation, society, people, or period. Hence: a society or group characterized by such customs, etc 196 Both parts of the dictionary definition have a communal or collective aspect. 197 The notion of a society or group being characterised by customs, social behaviour, ideas or a way of life is not unfamiliar in the context of native title law. The identification of a normative system of traditional laws and customs assumes importance in that legal context for several reasons. On an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (NT Act) the applicant (typically authorised to represent a group of Aboriginal people) must establish that the members of the represented group have native title rights and interests in land or waters as defined in s 223. It relevantly provides: Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. 198 It is because of that definition (drawn from the principles stated in Mabo v Queensland (No 2) (1992) 175 CLR 1) that rights and interests must be shown to owe their existence to laws and customs that existed at the time that the British Crown asserted sovereignty over the relevant land or waters (which may appropriately adapt). It is not necessary to give a treatise of the principles here. It is enough to observe that extracts of native title cases must be applied with caution in the present distinct legal context, because the word "culture" in the Act does mandate that there be a normative system of laws and customs that pre-date sovereignty. 199 The word "culture" (and hence the word "cultural") nonetheless has a communal aspect in its ordinary meaning. In cases where the cultural feature is one relating to Aboriginal people, regard may of course be had to the body of principles stated or discussed in native title cases with a particular focus on Aboriginal societies. I consider that that is the very reason why the evidence of anthropologists is relevant and admissible to assist the Court to understand aspects of "culture" upon which the applicants rely. The structure of Tiwi society as including clans with discrete estates, together with laws and customs (including beliefs) was a central feature of the evidentiary case as the applicants themselves framed it. 200 It may readily be accepted that the cultural features of areas, locations or places may include the circumstance that there exists in those areas, locations or places cultural heritage in the form of artefacts or other objects evidencing human occupation and activities over the course of human history. 201 The applicants submit that the cultural features of an "area" are capable of encompassing the circumstance that the area forms a part of land or waters to which Aboriginal people have a spiritual connection, being a connection of the kind discussed by the High Court in Western Australia v Ward (2002) 213 CLR 1 in the different context of a native title claim. Whilst I accept that submission, it is important to bear in mind that the connection there discussed by the High Court is one that arises under a normative system of laws and customs giving rise to native title rights and interests. "Connection", in the legal context of native title law, is a word appearing in the definition of "native title" itself, and in that context it must be a connection under laws and customs acknowledged and observed by members of the Aboriginal society. I am satisfied that a spiritual connection to an area may be a "cultural feature" of the area provided that the connection is by the laws and customs of a people. 202 For Santos it was submitted that the relevant "people" is the Tiwi Island society as a whole, and that no one clan group can exist as a society independently of the wider community of which the clan forms a part. As will be explained elsewhere in these reasons, each clan does indeed form a part of the wider Tiwi Islands society, but that of itself does not mean that a cultural feature cannot exist by reference to customs, practices or beliefs that are unique to a particular clan. 203 I make two further observations with respect to the word "people". 204 First, the applicants' third combination utilises the word "people" devoid of its context in para (a) of the definition, which describes the environment as an ecosystem and its constituent parts. People and communities are expressly referred to as being included within the constituent parts of an ecosystem. People are included, but only insofar as they form a part of the relevant ecosystem. They are not the environment per se. The phrase "cultural features" is one that attaches to the word "ecosystem" with all of it constituent parts. But in my view, when asking whether the environment (as described) has or might change, the focus must remain on the ecosystem, of which people (expressed in the plural) form a part. The focus is not upon an individual person devoid of the context of the ecosystem. 205 Secondly, the phrase "cultural features", when applied to "people" as constituent parts of an ecosystem, is not directed to idiosyncratic views or beliefs of an individual. A thought or belief of a single individual about a place may be the manifestation of a culture of the society of which that person forms a part and so meet the combined definition in paras (c) and (e) or it may be broadly representative of the beliefs held by the relevant group. But if it is not, then it is difficult to comprehend how the thought or belief of the individual about a place could be a cultural feature of the place. 206 As Santos correctly submitted, whether by reference to "people" or "community", the applicants must show a sufficient cogent or coherent belief that is sufficiently accepted so that it can be described as having normative content for the people or community viewed as a constituent part of an ecosystem, such that a singular perspective will not suffice. Having said that, the question of whether a view is sufficiently cogent or coherent may itself be answered by reference to the customs and practices of the relevant people, including relevant customs and practices (if any) concerning the authority to speak on a topic or relevant customs and practices (if any) concerning the resolution of division. Those are areas of significant factual dispute. 207 In their written closing submissions, the applicants asserted that to succeed in this action it would be sufficient for them to prove that "any of the Jikilaruwu, Munupi, MalaMalawuwu [sic] and Munupi people have any of the 'cultural features'" upon which they rely (the emphasis is theirs). If that submission was intended to focus on individual persons, it oversimplifies the inquiry. It tends to employ the word "people" in the definition of "environment" outside of the context of an ecosystem. In addition, it invites an inquiry into what are the "cultural features" of a single individual, which is not a question that arises from paras (a), (c) and (e) of the definition of the word "environment". 208 In my view, to the extent that the applicants rely upon beliefs and values relating to or attributable to an area or place, the correct question is whether those beliefs and values are properly to be characterised as cultural features of the place. More specifically, it is necessary to ask whether the beliefs and values are held by the relevant people as a people. There is considerable dispute as to who are the relevant people for the purposes of that enquiry. But the enquiry cannot be avoided by a construction of the Regulations that ignores the communal or collective aspect of the word "cultural" in its ordinary meaning. 209 I emphasise again that for a feature to be "cultural" the relevant "culture" need not be comprised of beliefs, customs or practices that have existed since time immemorial. As Santos correctly submitted, "culture is a dynamic proposition". However much will depend on the nature of the case that is presented. Here, the applicants base most of their case on beliefs founded in ancient customs that define each respective clan as "a people". A great deal of the evidence is dedicated to that topic. The present case is one where the nature of one part of the cultural feature alleged by the applicants necessitates proof that certain asserted beliefs or values are sourced in ancient tradition. As a matter of statutory construction, the word "cultural" is wide in its meaning, but the focus of the Court is on whether the applicants have made out the specific case they allege in connection with each category of risk. 210 I therefore defer the completion of this analysis to later in these reasons so as to focus on the case as framed and the facts as found.

Distribution of the adjectives "significant" and "new" 211 In a case alleging the existence of a risk, it is necessary to determine whether the phrases "significant new" and "significant increase" should be distributed both to environmental impact and risk, or just to environmental impact. 212 Santos submitted that the preferrable distribution results in reg 17(6) providing as follows (at [81]): A title holder must submit a proposed revision of the environment plan for an activity before, [or] as soon as practicable after; (a) the occurrence of any significant new environmental impact or the occurrence of any significant new risk of an environmental impact, or significant increase in an existing environmental impact or significant increase in an existing risk of an environmental impact, not provided for in the environment plan in force for the activity; or (b) the occurrence of a series of new environmental impacts or the occurrence of a series of new risks of an environmental impact, or a series of increases in existing environmental impacts or a series of increases in existing risks of an environmental impact, which, taken together, amount of the occurrence of: (i) a significant new environmental impact or a significant new risk of an environmental impact; or (ii) a significant increase in an existing environmental impact or a significant increase in an existing risk of an environmental impact; that is not provided for in the environment planning force for the activity. (original emphasis) 213 That construction should be accepted. It can be coherently applied to both reg 7 and reg 8, and it is consistent with the applicants' approach in requiring that the risk of environmental impact be one that is both significant and new.

Meaning of significant risk 214 The detailed provisions of the Regulations prescribing the content of an environment plan require the titleholder to (among other things) assess the values and sensitivities of places in order to identify "environmental impacts and risks" that will or may arise from the activity to which the environment plan relates. That obligation applies to all impacts and risks. The word "significant" does not appear in that part of the Regulations prescribing the procedure for the preparation of an environment plan or its content, nor are NOPSEMA's powers conditioned by any such word. Impacts and risks identified in the assessment must be provided for in the original environment plan, whether significant or not. 215 The word "significant" in reg 17(6) and its connection with the phrase "environmental impact" says something about the gravity of the impact or change that must have occurred (or be at risk of occurring) before the obligation to submit a revised environment plan is triggered. The word must be given meaningful work to do, given its absence in the earlier provisions. Considered in the context of the regulatory scheme as a whole, the qualifying statements "significant" and "new" mean that there will be some risks and impacts that will not trigger the obligation to submit a revised plan. They indicate that protection of the environment is not an absolute objective to be achieved by reg 17(6) alone. 216 The applicants submitted, and I accept, that in determining whether a risk is significant it is necessary to have regard both to the degree of chance of the consequence and the nature or the gravity of that consequence. 217 The applicants sought to draw assistance from case law considering the phrase "significant risk" in the context of personal injury law, specifically its use in s 5K of the Civil Liability Act 2002 (NSW) where a "dangerous recreational activity" was defined as involving a significant risk of physical harm. In Fallas v Mourlas (2006) 65 NSWLR 418, the words "significant risk" in that provision were equated with a "real chance": Fallas, Ipp JA (at [14], [16]) and Tobias JA (at [91]). There is a danger in applying judicial statements in such case law, given the vast difference in subject matter between personal injury law and the regulation of offshore petroleum exploration and extraction. The statements in Fallas provide little guidance with respect to the proper construction of reg 17(6). 218 In a more analogous context Krajniw v Brisbane City Council (No 2) [2011] FCA 563, Dowsett J said this of the phrase "significant impact" as it appeared in s 18 of the EPBC Act (at [10]): The term 'significant' is not defined in the Act. The authorities suggest that it should be interpreted as meaning 'important, notable, or of consequence having regard to its context or intensity': Booth v Bosworth (2001) 114 FCR 39 at [99]; Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 at [191]-[192]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [109]. In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A. Moreover, those sections are concerned with impact upon a relevant species. An adverse effect upon an individual member of the species, or even a number of individual members may not be sufficient to engage those sections. The applicant must demonstrate a risk of significant adverse impact upon the species as a whole. 219 Throughout their submissions, the applicants equated the word "significant" with the word "notable", drawn from the above passage. I consider it neither necessary nor appropriate to substitute the statutory language in that shorthand way. Dowsett J did not do so. Rather, his Honour used the more nuanced phrase "important, notable, or of consequence having regard to its context or intensity". The test for a significant risk is one about sufficiency - it is an evaluative phrase intended to be applied in a myriad of factual contexts. The fact that performance of the evaluative task is difficult does not warrant any gloss or alteration of the words to make the task easier. The word "significant" means what it says. There is no warrant to substitute it with the single word "notable".

Standard or proof in respect of a risk 220 In these proceedings the applicants bear the burden of proof in all aspects of their case. The civil standard of proof applies, such that the "case" is to be established on the balance of probabilities: Evidence Act, s 140. That requires that the applicants prove that there is a risk of environmental impact that is both significant and new. However, it does not require that the applicants prove that it is more probable than not that the feared harm will transpire. The case that must be established, to the civil standard, is that there is a risk of environmental impact that meets the statutory description of "significant". A significant risk may be one involving a mathematical chance of less than 50%. 221 At times throughout the proceedings, the applicants contended that it was not necessary for them to prove on the balance of probabilities that the "cultural features" upon which they rely exist in fact. It was enough, they submitted, to prove that the cultural features may exist. I do not accept that submission at least to the extent that it applies to the asserted intangible cultural heritage aspect of the case. It will not be sufficient for the applicants to show that they might have a spiritual connection to sea country, or that they might have beliefs in song lines and Dreamings or that those things might be cultural features.

"New" 222 The applicants submitted that the word "new" means nothing more than that an environmental impact or risk having the required significance has not been assessed by NOPSEMA. In my view, that formulation gives the word no meaningful work to do independently of the closing words "that has not been provided for in the environment plan in force". Attempts by the applicants to show a meaningful difference between those words and the word "new" were unpersuasive. 223 The word is intended to be limiting, not only within reg 17(6) but also in reg 7 and reg 8. 224 I have explained above how reg 17(6) resides with the regulatory scheme in a context after the acceptance of an environment plan, NOPSEMA being satisfied that it has the prescribed content and that it otherwise complies with the Act and the Regulations. That state of satisfaction extends to the titleholder's compliance with reg 9 to reg 16, involving procedural and substantive requirements of considerable detail and import. An interested person who alleges that NOPSEMA ought not to have been satisfied that a requirement in the Act has been met (including a requirement to assess the values and sensitivities of the environment that may be affected by an activity) may bring an application for judicial review to have the acceptance decision set aside. 225 It is highly significant that NOPSEMA may request that the titleholder submit a revised environment plan under reg 18. That power does not require NOPSEMA to first be satisfied that there has been any one of the events referred to in reg 17. It is wide enough to support a request founded on a concern by NOPSEMA that the titleholder did not originally comply with obligations of the kind prescribed reg 13. If the titleholder does not comply with a request under reg 18, NOPSEMA may withdraw its acceptance of the environment plan under reg 23. 226 In light of the availability of those remedies and powers, I do not accept (as the applicants submitted) that reg 17(6) must be construed to address the mischief that a titleholder has failed to comply with any one of reg 9 to reg 16 and so failed to make provision for a risk. Their submission was that the word "new" must bear their preferred meaning because if it did not, then risks to which the Regulations were directed would necessarily remain unaddressed in the environment plan, with potentially serious consequences for the environment. 227 The asserted mischief is real. But it does not follow that reg 17(6) is the mechanism intended by Parliament to address it. There are good reasons to find that it is not. 228 The applicants' construction of the word "new" would include a risk first brought to the titleholder's attention by a relevant person, being a risk that was known by the relevant person to exist at the time of the reg 11A consultative process, and peculiarly within the relevant person's knowledge, and yet not previously disclosed at the time of those processes by that person when afforded the opportunity. It is difficult to envisage why Parliament would intend such a late disclosure to be regarded as "new". Such a narrow construction of the word "new" would defeat the objective of establishing an effective regulatory framework. It would denude the consultative processes mandated by reg 11A of their purpose. It would result in the resources of NOPSEMA being diverted again to consider what the statutory process would have captured, were it not for the relevant person's withholding of information. It would place the titleholder in the invidious position of having large scale activities immediately halted upon the belated disclosure, lest it be subject to criminal sanction. Regulation 17(6) should not be construed in a way that automatically permits of any such scenario. 229 The applicants have sought to avoid grappling with that obviously unsatisfactory outcome by alleging that Santos did not in fact comply with the mandated consultative processes at the time when the Pipeline EP was prepared. The factual allegation permeated oral and written submissions. But for construction purposes, that is not to the point. Whatever be the facts of this particular case, the applicants have not explained how their narrow construction of the word "new" could avoid the consequence flowing in a case where a relevant person, in fact consulted, has withheld disclosure of critical information about a risk, only to disclose it after the detailed, lengthy and resource intensive processes described in Pt 2 of the Regulations are complete. They have not adequately explained what is "new" about such a risk, other than that it was previously unknown to the compliant titleholder but has subsequently been disclosed to it. Nor does the applicants' construction sensibly conform with the ordinary language of a new risk occurring. 230 The applicants next relied on a guideline published by NOPSEMA in which it assumes the word "new" to have the same meaning advanced by them in this action. The guideline indeed asserts a particular construction, but I place little weight on it in determining what Parliament intended the meaning should be. 231 Given the unsatisfactory outcomes that may result from the applicants' construction of the word "new", the construction should be avoided if there is a sensible alternative that conforms with the ordinary language of the provision, construed in its proper context and in accordance with legal principle. 232 The preferred construction is that advanced by Santos in closing submissions. It is that reg 17(6) exists to enable the process for the submission, consideration and acceptance of environment plans to be re-enlivened after the occurrence of a new and significant environmental impact or risk of impact which arises from the activity. On that construction, "new" means objective facts and circumstances arising after the approval of the environment plan that either have a significant environmental impact arising from the activity in fact, or that together create a significant risk of environmental impact arising from the activity. The phrase "not provided for in the environment plan in force for the activity" comprehends that there will be facts and circumstances first arising after the approval of the environment plan, the occurrence of which has been anticipated in the original assessment stage. Those new facts and circumstances will not trigger the obligation to submit a revised environment plan. 233 On that construction, the word "new" does not include the discovery of a previously unknown risk, created by facts and circumstances coming into existence before the environment plan was approved. 234 The applicants submitted that a construction of that kind must be avoided because it permits a large range of risks and impacts that may not be detected at the original assessment stage leading up to the approval of the environment plan for reasons including non-compliance and default by the titleholder. They submitted that if such circumstances were not captured by reg 17(6) then the protective statutory purposes in reg 3 and the associated principles under the EPBC Act would be completely undermined. There would be considerable force in that submission if reg 17(6) were construed divorced from the regulatory scheme as a whole. 235 It is not correct to say that facts and circumstances not captured by reg 17(6) (or other provisions in reg 17) will go unchecked or unmanaged giving rise to the possibility of environmental catastrophe. Facts or circumstances that do not trigger the directly enacted obligation in reg 17 may be captured by reg 18 and so warrant the exercise of that discretionary power. Regulation 18 is in turn supported by the discretion in s 574 of the Act to issue a Direction. Information obtained in response to a direction may inform NOPSEMA's decision as to whether or not to make a request under reg 18. 236 The broad scheme evinces an intention that there be classes of cases in which the obligation to submit a revised environment plan turns on the exercise of NOPSEMA's discretion (reg 18), and classes of cases in which it does not (reg 17). Viewed in that way, the objects of the Act and the Regulations are not undermined by construing the directly imposed obligations in reg 17 narrowly. The kinds of mischiefs dealt with in this part of my reasons are naturally of a kind that can be dealt with in the exercise of the power in reg 18, given the myriad of facts and circumstances that may explain why a previously unknown risk was missed at the original assessment stage. 237 In addition, as the submissions in this case demonstrate, there is sufficient ambiguity in the meaning of the word "new" as it appears in reg 8 to attract the principle stated in R v A2 and the authorities discussed therein. The ambiguity should be resolved by preferring a more narrow meaning of the word, especially given the existence of other provisions that address the mischief to which the applicants referred, and that together fulfill the protective purpose of the Regulations. 238 For those reasons I conclude that a new risk will occur upon the happening of facts or circumstances that create a risk, being facts or circumstances coming into existence after the acceptance of the environment plan.

SOURCES OF TIWI EVIDENCE 239 There are several sources of evidence of Tiwi Islanders bearing on the issues in dispute. 240 Most obviously, there is the written evidence-in-chief and the oral evidence given in cross-examination by those witnesses who were called. 241 As the Anthropology Joint Report correctly stated, there can be difficulties with Aboriginal witnesses giving lay evidence in an adversarial litigious context. It may be inferred that those difficulties are heightened in urgent high stakes controversies of this kind. Both parties informed the Court that the pipeline and these proceedings had become the source of conflict and division among Tiwi Islanders, and to some extent that was apparent in the evidence before me. In assessing the weight of the evidence of the Tiwi Islander witnesses I have had regard to the urgent circumstances in which their witness statements were prepared and to the likely unfamiliar setting in which they were cross-examined. 242 The present context differs from the more familiar procedures applicable in proceedings under the NT Act, for example, which usually allow for extended research and proofing of evidence, and for adaption of the Court's procedures in cases where time and resources permit. The anthropologists themselves were unable to conduct research at the level that they would otherwise have done in the context of a land claim. 243 As I have mentioned, no party exercised the liberty to apply to adduce oral evidence-in-chief from Tiwi witnesses on critical topics that might better have been given viva voce so that the Court could hear their evidence-in-chief accounts in their own words from the witness box in response to non leading questions. 244 There was evidence of some witnesses preparing their statements in the company of other witnesses, but that evidence was not so compelling to warrant a conclusion that the evidence recorded in the statement was confected. With the consent of all parties, witnesses gave evidence in the company of others and (also at the joint request of the parties) the Court did not make the usual direction that all witnesses in the proceedings be absent from the Court until their evidence was given and was complete. That affects the weight to be given to some of the evidence of those witnesses who testified on critical subjects after first hearing what others had to say about them, but not to the extent that it has any bearing on the outcome. 245 It was apparent that English was not the sole or preferred language of the Tiwi witnesses. Some witnesses had better proficiency in spoken English than others. The English proficiency of some of them was so stilted that I have formed the view that their written witness statements should be approached with considerable caution. With one exception, it was not suggested that any person had the assistance of an interpreter when preparing their statement (a fact the Court would expect to be disclosed). The exception was Eulalie Munkara who was assisted with some interpretation by her daughters in the preparation of her written statement. Eulalie Munkara was assisted by an interpreter for cross-examination, but that proved problematic for reasons discussed below. 246 The involvement of lawyers in the preparation of witness statements is not of itself unusual. However, in the present case I cannot accept that the witness statements contain words actually spoken by the witnesses and recorded verbatim. The record of Tiwi evidence in this part of my reasons discloses the extent to which it was at times difficult to understand the meaning of an answer. The answers in many instances indicated that a question had not been understood, and in other instances they lacked nuance such that further questioning was necessary to discern a witness's intended meaning. Oftentimes that further questioning did not happen. 247 Whilst cross-examination is not a perfect means of extracting information, the Court is at least able to detect where a witness has used his or her own words, rather than assenting or agreeing to a proposition worded by somebody else. The evidence of the Tiwi Islanders was the most compelling when questions were more open and explorative. It is reasonable to infer that the work of preparing some of the witness statements involved a considerable amount of paraphrasing, or the conversion of "yes/no" responses to complete sentences. I specifically include Carol Puruntatameri in that conclusion. 248 The next source of evidence is the plethora of prior statements made by Tiwi Islanders and recorded in documents before me. They include statements made by informants who provided information to the anthropologists throughout 2023. They also include affidavits of three persons who gave evidence in the Tipakalippa No 2 proceedings: Dennis Tipakalippa, Pirrawayingi "Marius" Puruntatameri and Carol Puruntatameri. Accounts of Tiwi Islanders are also contained in the ethnographic materials as provided to anthropologists over time and now recorded in academic works. The prior statements also include statements of Tiwi Islanders that were recorded and "synthesized" by the EDO in a manner that in due course will be subjected to careful scrutiny. 249 There is before the Court a body of prior statements recording accounts of Tiwi Islanders about their laws and customs (particularly the content of Dreamings or song lines), many of whom were not called to give evidence in the proceedings. Those representations were admissible as an exception to the hearsay rule under s 72 of the Evidence Act. It provides: The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. 250 Whilst admissible, the weight to be afforded to it is a different question entirely: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599. I do not accept Santos's submission that no weight at all can be given to them. Nor do I accept that the applicants have not established that the persons whose accounts are recorded in the field notes are Indigenous Australians for the purposes of applying s 72 of the Evidence Act to them. The application of s 72 is proven at the very least by the content of Corrigan 1 which records the methods by which Dr Corrigan identified appropriate informants. 251 I place considerably more weight on the out of court statements of those persons who were witnesses in the proceedings and available to be cross-examined about them. That is not to criticise any party for not calling other makers of out of court statements per se. It simply reflects the reality that nuances in the statements cannot be explored, nor can ambiguities in the statements be resolved, nor can the Court discern the extent to which the statements were made in response to closed or leading questioning, nor does the Court have sufficient information about the individual circumstances of the informant so as to put their account into its proper context. In some instances some of the context of prior statements can be discerned and is relevant to varying degrees, particularly where statements are recorded in minutes of meetings occurring in 2023. For the purposes of some issues in dispute, the evidence is admissible for non hearsay purposes, particularly to prove the fact that something was said or not said. 252 The next source of evidence from Tiwi Islanders is that recorded in the video evidence. The song and dance evidence incorporates words spoken in language that has not been interpreted for the Court. Explanations of the songs and movements is given by the applicants' witnesses and I have no reason to question the reliability of those explanations or that video evidence generally.

TIWI TESTIMONY 253 There are several factors that generally guide my assessment of the reliability of the written and oral testimony of the Tiwi witnesses. At the broadest level, I have regard to material contained in the anthropological reports about the social and cultural norms concerning how information should be shared and how conflicting views should be discussed and resolved. The compulsion to answer questions under cross-examination in an adversarial trial pays little regard to any such customary practices and preferences. 254 The witnesses had varying levels of English proficiency and their responses to questions often betrayed a misunderstanding of the question's meaning. I have included some (but not all) such instances in the pages that follow. The miscommunication was compounded on occasion by poorly crafted questions. It was for the parties to inform the Court as to whether interpreters were required for any particular witness. No notice was given to the Court of any such need. An interpreter was arranged by Santos in connection with one of its witnesses, Eulalie Munkara; however, the interpreter appeared by telephone link which was not ideal, the witness understandably having obvious difficulty communicating with the "voice in the sky". An alternative arrangement was put in place by consent, but that procedure was abandoned when the applicants' consent was withdrawn. It is unfortunate that the Court did not have the benefit of an independent in-person interpreter for that witness, given her seniority in age and her status in the Tiwi community. 255 Several of the witnesses had hearing difficulties and were provided with equipment to assist them. 256 On occasions the questions of Counsel were phrased in a way that could be understood to involve a challenge to the logic of essential spiritual beliefs. In large part I found such lines of questioning to be unhelpful, applying literal and logical themes to essentially spiritual and mythical concerns. 257 In addition, the Court was made aware that the Barossa Project and this very litigation were the cause of discord among Tiwi Islanders, including among members of the same family. I am conscious of the care and respect that witnesses for the most part showed when giving contrary views and listening to the contrary views of others. To the extent that individual witnesses tended to hesitate before answering a question I have not drawn any adverse inference. My observation of the witnesses generally is that they gave considered responses to questions once they were properly understood. I should not be understood to have drawn any adverse inference by reason of non-responsive answers or outward demeanour, except where I expressly say so. 258 The cross-examination of most witnesses was largely characterised by a quick succession of closed questions requiring a yes or no answer. That is why my summaries of the cross-examination refer to witnesses having agreed, confirmed, acknowledged, accepted or denied a fact. The testimony was usually more impactful when witnesses were invited to explain concepts in their own words and in their own time. The summary of the cross-examination includes extracts of answers that in some instances are not readily understood, but the meaning of which is revealed in later responses. 259 In light of everything said so far, I have considered it neither necessary nor appropriate to adjudge the reliability of the testimony of the indigenous witnesses based solely on the impression they conveyed in the witness box. I have nonetheless formed some impressions of some witnesses that have led me to treat some aspects of their evidence with caution, when considered in conjunction with other factors. Those matters will be discussed as the occasion for considering their testimony arises on an issue by issue basis. 260 The following summary of evidence is drawn from the witness statements and cross-examination. The written evidence-in-chief is first summarised, followed by a summary of the oral evidence given in cross-examination. The summaries are not intended to capture every aspect of the evidence or every nuance in it. To the extent that evidence has been paraphrased, its impact will be lost to an extent. That is especially so in connection with the witnesses' expression of connection to country or the nature and intensity of the concerns that they have expressed. If there are omissions or loss of emphasis or nuance, that is not deliberate. All of the testimony has been read and considered in the complete form in which it was presented to the Court.

Pirrawayingi "Marius" Puruntatameri 261 Pirrawayingi Puruntatameri is a Munupi man and Elder. His father and grandfather were leaders of the Munupi clan. He is a spiritual ceremonial Elder who leads ceremonies and has cultural authority in the community, which makes him an Alawura (meaning "boss"). A former teacher and health worker, he was previously the Mayor of the Tiwi Islands Regional Council, the service provider for the three communities on the Tiwi Islands. In that capacity he was a spokesperson who worked with the Northern Territory and Commonwealth Government Departments on Tiwi Islands issues. 262 Pirrawayingi Puruntatameri said that his cultural authority comes from his role in ceremonies and the knowledge he has about cultural practices. He said that he knows who can speak for different areas of land and sea country. He explained that knowledge of culture and land is also important for being an Elder and added that the most important thing is that the community recognises you as having cultural authority because of your knowledge, your integrity, and the values you display in everyday life. He said that it is not the Tiwi way to make comparisons between Elders. 263 He said that he has the authority and knowledge to sing the song lines in ceremony and that he is one of the few people on the Tiwi Islands in that position. He said that he sings the songs in old Tiwi and is one of the only people who can speak it. Pirrawayingi Puruntatameri said that he cannot name the other people with the cultural authority to sing at ceremonies because it would be disrespectful to say their names. However, he acknowledged that some people, such as Tony Pilakui, have cultural authority and are knowledge holders even if they do not lead ceremony. 264 Pirrawayingi Puruntatameri said that women are an integral part of the cultural life of Tiwi Islanders and that they have cultural authority and responsibility. He emphasised that the creator of the Tiwi Islands is a woman and that women sing and dance in ceremony. However, he said it would be disrespectful to identify those who have cultural authority by their names, including because of avoidance customs related to his skin group. 265 Pirrawayingi Puruntatameri said that Tiwi people have totems or dances that are integral parts of the Dreaming and connect them to the creatures in the sea. He says: 44. We face the sea when we dance and perform ceremony. When we face the sea, we are calling out to the spirits of our ancestors. It signifies also that we, as Munupi Traditional Owners, have ownership of that Sea Country. We are the holders of ownership of anything that's on the sea, in the sea, under it and all its existence. We are the holders of knowledge about that Sea Country and anything that goes with it. It is part of us. It is part of who we are as traditional Aboriginal people. We need people to understand that: it's so important. 45. When we say that we own the sea, that is not the whole story. It is sometimes more accurate to say: it owns us. Our country owns us, both land and sea Country. We are the holders of the knowledge and we also bear the ramifications. 266 Pirrawayingi Puruntatameri said that he can speak for Munupi country and emphasised that it is the only country he can speak for. He said that Munupi traditional owners have ownership of the knowledge in the sea country and anything that is within it. Pirrawayingi Puruntatameri described Tiwi people's connection to the sea as spiritual as well as physical; they are connected to the sea through their song lines and Dreaming. He said to draw boundaries in the sea was a white man's system, but not the Tiwi way. He said that Tiwi people's connection to the sea was immeasurable, "very, very powerful" and has been there for thousands of years. He said, "[it] is as far as the eye can see to the horizon and beyond". In a responsive statement he added that he disagreed with statements that Tiwi water was governed by the high water and low water marks. He said that those water marks were relevant for land ownership under the Aboriginal Land Rights Act, but land rights under legislation are different to Tiwi concepts of stories extending into the deep water. 267 Pirrawayingi Puruntatameri said that when he stands on country and looks out to sea, the connection goes "a fair way off". He said that it goes from the land and continues from places such as reefs and islands, including places where Tiwi people go to hunt and to visit sites, and beyond them into the deep water. He said that the place that is now under the sea was where Tiwi people's ancestors were living and practising their ceremonies and their culture. 268 Pirrawayingi Puruntatameri described Yiminga as being "our very existence". He explained that Yiminga was descriptive of the inside, the very core or soul of a person's being, and worked side by side with all existence on earth and the spirit world. He said that the connection was difficult for white people to understand and that it could not be measured in distance. Pirrawayingi Puruntatameri explained that another meaning of Yiminga referred to areas of sacred significance, with a very strong connection to the spirit world, that people were not allowed to go near. He explained that Yiminga sites can include deep water, surrounding seas, landmarks and reefs. 269 In a responsive statement, Pirrawayingi Puruntatameri disputed that there were no Yiminga in the sea, but acknowledged that some people may not have heard about those things. He described Yiminga as "our very soul, it is also out on country". He again said that Yiminga cannot be measured and that you cannot measure how far a Dreaming of the spirituality of the sea goes. He continued: Yiminga are connected to the songlines and the spirit world. It's not possible to say they will not be affected by the pipeline. The pipeline will interfere with our spiritual connection in the sea, which includes Yiminga and the areas surrounding sacred sites. Any desecration to the sea close to Yiminga or sacred sites close to the pipeline will interfere with our spiritual connection with the sea. 270 Pirrawayingi Puruntatameri described the pipeline as going to the west of Bathurst Island and he said, "It will pass to the west of the Tiwi Islands and it will pass Jikilaruwu, Malawu and Wurankuwu and then Munupi land and will go a long way north from Seagull Island (which is Munupi country) through reefs and on to where the drilling site is located." He described that as "Tiwi sea country". He said that Ampiji is in that sea country and described the site where the drilling was to be conducted as Munupi sea country. In his responsive statement, he added that he followed old people who knew the songs of the country at Seagull Island. He said that the sea song goes far out, past Seagull Island. He said that any impact on things that live in the ocean would be an impact on Ampiji. He said Ampiji is part of the environment and is connected to all species in the sea and to the Tiwi people. 271 Pirrawayingi Puruntatameri said that sources of freshwater on the Tiwi Islands were connected by a basin to freshwater sources in Papua New Guinea which he said was attached to Australia in the north millions of years ago. He described a connection with the people of Papua New Guinea. 272 In his responsive statement, Pirrawayingi Puruntatameri referred to others who have denied that there are burial sites in the sea and expressed concern that the statements are similar to those contained in the report prepared by Dr Corrigan. He said that ceremonies were happening when water levels were lower in the ice age. He said that the passage of time did not change the cultural connection with those places and that there are still spiritual connections with those places which are carried through to the present day. 273 Pirrawayingi Puruntatameri said that he has been told that Wessex found 163 sites that may have potential archaeological significance. He said that he would like to understand more about those sites. 274 Pirrawayingi Puruntatameri said that he was involved in drafting a protocol which was put to Dr Corrigan about the right way to work with Tiwi people. He said he was very worried about how Dr Corrigan was going to use the information he gathered. Pirrawayingi Puruntatameri said that he expressed his concern about respecting intellectual property rights. He claimed that Dr Corrigan did not care about the protocol put to him by the Tiwi people and he was concerned that the Tiwi people had not seen what Dr Corrigan had written before his report was submitted to NOPSEMA. He said that Dr Corrigan's dealings and consultations with the Munupi people and Tiwi people were culturally inappropriate and that he should have spoken to the people who had cultural authority instead of making assumptions. He said that Dr Corrigan disrespected the cultural Elders and traditional owners by not doing things in the proper way. 275 Pirrawayingi Puruntatameri said that laying the pipeline would affect the sea life and, in turn, the Tiwi people. He described the effect as "damage that will last for a long time, perhaps forever, in a spiritual way to the people." He said that to disturb the sea was to disturb the spirit world and that there would be "repercussions from the spirit world, from our ancestors" resulting from the Tiwi people's obligation to protect sea country. He said that laying the pipeline would have a negative effect on the song lines and animals in Munupi sea country and would be devastating to Munupi, Malawu, Wurankuwu and Jikilaruwu spiritual connections. He said that sickness may come to the Tiwi people, and that it would be devastating "to everything that we hold in our culture and languages and our very yiminga, our being inside us". 276 Pirrawayingi Puruntatameri denied that most of the people from the eight Tiwi clans support the pipeline. He said that those who were concerned about it were supporting the four clans that were most affected (the Munupi, Malawu, Wurankuwu and Jikilaruwu clans) and that by doing so, they were showing respect for another person's country. 277 In his responsive statement, Pirrawayingi Puruntatameri elaborated on his evidence about who may speak for country. He said that if a person has cultural authority they exercise their responsibilities, including by leading ceremonies, if that was their role. He denied that having cultural authority meant that you can speak for another's country. 278 Pirrawayingi Puruntatameri said that a person working as a cultural advisor for Santos would need to take care not to make a decision about other people's country. He said it was culturally inappropriate for a person to say that they had authority for all areas where the pipeline would go. A person advising Santos, he said, would need to consult with the traditional owners of the area, the people who have cultural authority to make decisions concerning that country. He denied that for development to occur on the Tiwi Islands or in the sea, only one particular person could assess and approve the development. Rather, he said, a cultural advisor would need to speak to any affected clans about it because that was how decisions were made. He said that was not only provided for in the Aboriginal Land Rights Act but was also how cultural authority works. 279 Pirrawayingi Puruntatameri said that song lines did not need to be recorded under legislation, such as the Aboriginal Land Rights Act, for them to be important. He disputed that a person could call out to song lines to let the ocean know that Santos is laying the pipeline and to make it okay. He said that it is not for one person to say that laying the pipeline was alright, but that it was a matter for the clan people who were affected.

Cross-examination of Pirrawayingi "Marius" Puruntatameri 280 In cross-examination, Pirrawayingi Puruntatameri confirmed that he was part of the Pandanus skin group. He confirmed that about 30 years ago, the Marrikawuyanga clan was once part of Munupi. He said that animal species were not confined to clan area. He said that he had obligations to his mother's line. He explained that conflicts could arise within a skin group and that he has an obligation to resolve them, and he would listen to the Elders of the skin group. He confirmed that his mother was Jikilaruwu and that her father had four brothers who were all leaders of the Munkara family. He said that whilst he had no responsibilities in relation to Jikilaruwu land, he did have to respect that it was his mother's country. 281 Pirrawayingi Puruntatameri confirmed that he was once the mayor of the Tiwi Regional Council, a role which involved monthly meetings in Pirlangimpi with people who lived there. He said that it was okay for people to live on the country of another clan. He confirmed he was a member of the Tiwi Land Council for 27 years until about 2013, including at a time when the Tiwi Land Council was involved in registering sacred sites under Northern Territory legislation. He confirmed that that was largely a responsibility of the Tiwi Land Council. He agreed that the sites that were registered were chosen because of their special features, and that it was the practice of the Tiwi Land Council to register all sites that they knew of that were considered to be special. He said that the process of registering sites had been going on for as long as he could remember, since the Tiwi Land Council started. He confirmed that he was not aware of any cases where the Tiwi Land Council had found out about sites but did not register them. He confirmed that the traditional owners of each clan had responsibility for registering the sites. 282 When asked whether he was the person having the highest authority within the Munupi clan, Pirrawayingi Puruntatameri said that it was not up to him to make that decision, and that it was left to the people. He said that the people see how he performed ceremonies and his behaviour in the community, which were the most important things. He said, "So in answer to that, I don't nominate myself to be the Elder, I leave it to the community, the people". He said that that is the way that it worked across all of the Tiwi clans. 283 Pirrawayingi Puruntatameri said that he was involved in teaching children Tiwi language and to dance in the appropriate way. At the school where he taught, there were children of different clans and skin groups, and he said it was okay to pass on knowledge to all of those groups. However, there were dances that only certain clan members and family members could do, that he taught his own and that others will teach their own. He agreed that ceremonies involved people of more than one clan and that if someone knew the dance they could participate. 284 When asked during his evidence-in-chief about whether the whole universe is part of us and includes everything, the sky, the sun, the moon and the stars, he confirmed that was the case and said, "It always is and it always has". He confirmed that his song lines follow animals including turtles and seagulls, dugongs and sharks, and that they go as far as the animals go. The cross-examination continued: Q: Some of those animals like seagulls and sharks are all around the world. How does that work? Do songlines go all around the world? A: There is - if I can put it this way: we don't have a measurement of where they go, where they live. It's only when they are around our sea areas that our people and ancestors have sung these dances in respect to those animals. 285 When asked how his country or song lines might be limited by the fact that there are other people in other places that are not Tiwi nearby, and whether the song lines adjust to make allowance for other people's existence, Pirrawayingi Puruntatameri said: There is no lines, boundaries, because a lot of the songlines that we sing involve spirituality, including the species. So that's very hard to determine because they are travelling in different places. So it's not about where they go, it's a spirituality thing. I'm not sure if you can comprehend that, but this is what we believe. 286 He confirmed that that is the reason why he said that "the whole universe is part of us" and his people have coexisted with the universe for a long time. 287 It was put to Pirrawayingi Puruntatameri that there were no registered sacred sites to the west of Bathurst Island, as depicted on a map prepared by the Tiwi Land Council in 2017. He responded that when the water level was down, there was a ceremonial place "there on the west at Fourcroy", and that there were ceremonial practices happening around that area. When asked how he had learned about that he referred to a meeting with Dr O'Leary, and said that "A lot of us" had been shown the sites by him. He confirmed that he had attended a workshop organised by the EDO, and that the EDO had asked him to attend. He said that it was mainly Munupi people who attended the workshop. The cross-examination continued: Q: Do you know why Professor O'Leary was asked to come along to talk to people? A: Because of the sacred sites. Q: Okay. That he had found out about or someone else had found out about? A: No, he found out about it and wanted to inform us about that. 288 Pirrawayingi Puruntatameri said that Dr O'Leary talked about what the water level had been 40,000 years ago, and how it had gradually risen. He confirmed that before that time he had some idea about that from his role as a schoolteacher and from what he had read in books. He later confirmed that he knew that there was a water source in a basin that comes from Papua New Guinea to the Tiwi Islands. In re-examination, he confirmed that he had knowledge of a basin connecting Papua New Guinea with the Tiwi Islands before he spoke to Dr O'Leary. 289 When asked what he knew about the area where the pipeline was to go before he met Dr O'Leary, Pirrawayingi Puruntatameri said that only certain clans would be affected "by where the sacred site may be". He later said that people from the Jikilaruwu clan may have known about the sacred sites around the area that Dr O'Leary showed them during the workshop. He said, "I'm pretty sure that was the information that they wanted to know". He said, "it's not up to me. That's not my country". When asked whether he knew about a freshwater source somewhere out near where the pipeline was going to go, he said, "we knew from the land council that there was water coming up from the sea around the island". 290 When asked whether anybody at the meeting with Dr O'Leary mentioned any particular Dreaming or song line, Pirrawayingi Puruntatameri said: I think when we saw that there was a ceremonial ground during that age we know that our people practice our cultural ceremonies because there was a ceremonial pole erected in that area. 291 The cross-examination continued: Q: And the map showed you the water level when it was way down a long time ago? A: Correct. Q: And it showed what you now think was a ceremonial ground? A: Well, I don't think, I know. Q: How do you know? A: Because there was a ceremonial pole there. Q: You could see the pole? A: Yeah, so we know that they're practising, they have been practising ceremonies there. Q: Just one pole, was it? A: May I just say you don't have a ceremonial pole erected in an area if you don't do ceremonies. 292 Pirrawayingi Puruntatameri confirmed again that there was a ceremonial pole visible on a map to all who were there at the meeting, and that there was an area marked as a ceremonial ground. He said that the most significant information, from his point of view, was the ceremonial poles and the practices that happened around that time. He did not give a reason as to why he had not mentioned the ceremonial pole in his witness statement. He confirmed that he had placed a lot of reliance on the map that he had seen and said that it was "proof" that there was a ceremonial ground out near where the pipeline was planned to go. 293 Pirrawayingi Puruntatameri was asked how the information about an area now under the sea could be reconciled with the creation story about the blind woman who created Bathurst and Melville Islands. He first said that the area that she had created "could have been far". He then said, "I just don't think we can bring the creation story into this". He said, "What you do scientifically in a white man's world, you do, but what we do and what we believe by soul, spiritually connection to the land in the sea". 294 Pirrawayingi Puruntatameri was questioned about what he had said in his witness statement about the Wessex Report identifying 163 places having archaeological potential in the area where the pipeline was to go. He first responded, "I'm not sure what you are talking about". He was taken to what he had said in his witness statement on that topic. The cross-examination continued: Q: Well, you said in your statement at paragraph 71 that somebody said something about the Wessex Report and you've learnt that there are 163 places of archaeological potential. Is that something you remember? A: On the Tiwi Islands, both islands, yes. Q: That's on the islands? A: Yes. Q: Okay. Now, I'm talking about in the sea. As far as you know, do you know whether the Wessex was talking about the sea, where the pipeline is planned to go? A: Not sure. Q: Do you know what I'm talking about when I talk about Wessex? Did someone tell you about a report that had obtained from an organisation called Wessex? A: I think so. I think I remember that, yes. Q: And do you now remember that it said something about 163 places of archaeological potential? A: Right. 295 Pirrawayingi Puruntatameri said that he did not know where the places identified by Wessex were situated. 296 When asked about the cultural protocol he had discussed in his witness statement, Pirrawayingi Puruntatameri denied that he had drafted a document telling Dr Corrigan how he should go about his consultation. When asked whether his witness statement was wrong insofar as it contained a statement that he was involved in drafting the protocol he said, "I'm not sure what you mean". He then denied that he was involved in choosing the words or writing up the protocol. In re-examination, Pirrawayingi Puruntatameri was shown a copy of a cultural protocol and his attention was drawn to specific passages in it referring to intellectual property. When asked whether he recalled a document that contained those passages, he said, "I'm not sure if I did see this document". When asked whether he recalled having any involvement in drafting a protocol concerning intellectual property, he said that he did not recall. 297 Pirrawayingi Puruntatameri was reminded of what he had said about Ampiji in sea country. When asked whether he meant to suggest that there were particular parts or any special places that the Ampiji went, he said, "It goes to special places but it travels around and it goes back to where it came from". When asked where Ampiji came from he said, "Any specific area that we all Tiwi people know". When it was suggested that none of those areas are as far out as where the pipeline is going to go, he said, "we really can't measure the distance of how far they travel". The cross-examination continued: Q: Has anyone told you that they do travel a long way out to near where the pipeline is going to go? A: Like I said, there is a spiritual connection. We have a spiritual connection to everything. Q: And that's the universe? A: And anything, including the Ampiji 298 Pirrawayingi Puruntatameri was shown a map which he confirmed was the same as that which he had seen at the meeting with Dr O'Leary. When asked what that map told him, he first qualified his answer about the need to show respect to the Jikilaruwu clan "because that is not my country so I will not going to speak to anything to that country". He then said that it was mainly Jikilaruwu people who had spoken with Dr O'Leary "because they are affected by the pipeline that is going to their country so I'm not going to talk any more on that". 299 Pirrawayingi Puruntatameri was shown a list of persons from the Tiwi Islands with whom ConocoPhillips initially consulted in 2017 about the Barossa Project. He confirmed that very few of them were non-Jikilaruwu and that most of them were senior people. He confirmed that they were appropriate people to be consulted in relation to a proposal concerning the western Tiwi Islands, provided that the consultation was done with the rest of the clan. 300 In respect of the impact of the pipeline, Pirrawayingi Puruntatameri referred to the damage that might be done to marine life if there was a leak, as well as an impact on the "spirituality of our people, culture, the songlines". He explained: … My fathers and my Elders have always explained that if there are any desecration in the sea to the animal in the sea, including the environment, then we will get sick. Sickness will come through us. Now this might be hard for you to understand also but they are things that happens, natural disasters, earthquakes, floods and other things like that. It has happened over a number of [centuries] we believe that. 301 Pirrawayingi Puruntatameri repeated his evidence about those beliefs, explaining that the impact of the pipeline was something that had been discussed among Munupi people before the meeting with Dr O'Leary. In response to propositions that other intensive activities in the sea that affect the sea bed had not impacted upon Tiwi culture, he maintained his evidence that there would be spiritual harm. With respect to the impact on burial sites, he said that it was for the Jikilaruwu people to discuss if they are "spared any impact". He also left it to the Jikilaruwu people to talk about whether there was any knowledge of the location of a freshwater source in the area around the pipeline site west of Bathurst Island. 302 In re-examination, Pirrawayingi Puruntatameri confirmed that he had seen a ceremonial pole in a different map to that to which he had been taken in cross-examination. He confirmed that he had seen the ceremonial pole in the map that is now extracted at [1075] of these reasons.

Tony Majirliyanga Pilakui 303 Tony Majirliyanga Pilakui is an Elder of the Wurankuwu clan. His totem and skin group are Takaringuwi, the mullet. His Dreaming is crocodile and he has the responsibility of singing and dancing the crocodile song line. He speaks for the land and sea of his country, Wurankuwu, which is on the western side of Bathurst Island and extends into the sea. He lives in Pirlangimpi and is a very senior man and traditional owner. He says he can only speak for the Wurankuwu clan, not other clans or country. His connection to Wurankuwu country came through his father and grandfather. When he visits his country he camps there and does cultural dances and ceremony. 304 Tony Pilakui teaches and passes on cultural knowledge to children and other clan members. Sometimes he goes to schools to teach children about Dreamtime stories, the animals they should hunt and eat, bush medicine and proper cultural behaviour. 305 Tony Pilakui said that he was told about the 163 potential sites found by Wessex where the pipeline is proposed to go. He said that those sites should be left alone because they are his people's cultural heritage. He said that there could be evidence of his ancestors there and the sites should be investigated. 306 Tony Pilakui met Dr Corrigan. Tony Pilakui said that he understood that Dr Corrigan said there were no underwater cultural heritage places along the pipeline route. He said that this showed that Dr Corrigan did not understand the Tiwi beliefs about spiritual connection to sea country. Tony Pilakui said that he had been told that Dr Corrigan recommended that Tiwi people introduce the pipeline crew to spiritual entities like Ampiji but said that that would neither offer spiritual protection, nor a solution to the impact of the pipeline on cultural heritage. 307 Tony Pilakui said that there were many Ampiji that lived in the sea around the Tiwi Islands. He said that Mother Ampiji lived with her children, the other Ampiji, in the large freshwater lake under the sea in the water west of Bathurst Island. He said that Ampiji provides protection to Tiwi people. 308 Tony Pilakui said that one story he knew about Ampiji and her children involves a male Ampiji that connected to and impregnated the female Ampiji. Tony Pilakui said the male Ampiji then left and had not been seen since. He said that no one talked about the male Ampiji, only about Mother Ampiji and her children, and, though the male Ampiji left, Mother Ampiji remained in the "deep freshwater source under the sea". 309 Tony Pilakui said that he was concerned that the pipeline would interfere with Ampiji. He was concerned that Santos wanted to build the pipeline without properly checking the proposed route. He said that he had not had an opportunity to explain what the pipeline would do to Wurankuwu sea country, song lines and Dreaming. 310 In a responsive statement, Tony Pilakui said that he disagreed with statements made by Santos's witnesses that the Crocodile Man would not care about the pipeline. He explained that Crocodile Man was much more than a normal crocodile, he moved in the sea and everywhere he wanted to go. 311 Tony Pilakui said that the Crocodile Man story at Cape Fourcroy is a Jikilaruwu story. He said that Jimalura is his father's father. He said that it is for Jikilaruwu to speak with authority about that song, not Wulirankuwu or Munupi, and only Jikilaruwu could say who has cultural authority for it. He disputed evidence given by Stanley Tipiloura to the effect that his own great-great-grandfather Jimalura created the song about the Crocodile Man. 312 In his responsive statement, Tony Pilakui said that he disputed the truth of evidence given by Brian Tipungwuti about a crocodile named Wiarprali, who some people called Elvis. 313 Tony Pilakui disagreed with statements that Yiminga are not in the sea and will not be affected by the pipeline. In his responsive statement, he said that Yiminga are connected to song lines and that they "are our spirituality and you can't say how far our spirituality goes. We don't measure that." He said that Yiminga are connected to what Tiwi people eat and hunt in the sea and that the pipeline might affect that. 314 Tony Pilakui referred to what Richard Tungatalum said in his statement about Santos needing people from the Tiwi Islands to call out to song lines when they install the pipeline. Tony Pilakui said that calling out and having a ceremony on the boat is not acceptable.

Cross-examination of Tony Majirliyanga Pilakui 315 In cross-examination, Tony Pilakui said that there is just one crocodile story involving a human who turned into a crocodile. When asked whether the crocodile lived at Cape Fourcroy he said, "Crocodile lives everywhere". 316 Tony Pilakui said that he was not able to speak about the sacred sites and Dreamings on the west coast because it was not his country, nor was he able to speak about the impact or possible impact of the proposed pipeline on those sacred sites or Dreamings. 317 Tony Pilakui denied participating in a workshop with Dr O'Leary, and confirmed he was sure about that. The cross-examination continued: Q: On 19 June this year did you go with a number of other Tiwi Islanders to a workshop. A: No, I didn't. Q: You did? A: No. Q: Okay. Were you at any time shown a map by Professor O'Leary? A: No. Q: And do you recall an occasion when with about 16 other people you were shown maps? A: No. 318 Tony Pilakui was shown one of Dr O'Leary's maps and asked to confirm if he had seen that document before: A: I haven't seen that. Q: You have? A: No. Q: If O'Leary's records or someone say that you were present at that meeting, would they be wrong? A: I don't know O'Leary. I haven't seen him. I haven't met him. Q: I won't ask. Never met him. Has anyone told you what O'Leary said? A: No. I got no business there.

Dennis Murphy Tipakalippa 319 Dennis Tipakalippa, also known as Murphy, is 51 years old. He is an Elder, senior law man and traditional owner of the Munupi clan. He has lived in Pirlangimpi on the Tiwi Islands all his life. His totem is turtle and his skin group is Wantarringuwi, the sun. Dennis Tipakalippa's connection to Munupi country comes through his father while his mother's country is Wurankuwu country on the western side of Bathurst Island. He was an executive manager of the Tiwi Land Council between 2016 and 2020. He continues to be a member of the Tiwi Land Council, as a delegate of the Munupi Clan. 320 Dennis Tipakalippa said that he had cultural obligations in his community including organising cultural events and directing ceremonies, including funerals, where he dances his totem, the turtle dance. He said that he attended clan meetings to deliver messages to the Munupi clan group on behalf of his families. 321 Dennis Tipakalippa said that there are spiritual stories for his clan that "go right out into the deep water", such as the important story of Ampiji. He said that Ampiji, the rainbow serpent, was the caretaker of the Tiwi Islands, Tiwi people, the ocean and the seas. He said that the Ampiji dance is performed on funeral days as ceremony. He said that there are three Ampiji who protect the Tiwi Islands, the ocean and the seas. He said that the mother and father Ampiji travel around Melville Island and observe what is happening. The mother, who he said is the main Ampiji, is around Imalu Point and has a resting place in Munupi sea country off Melville Island. He said that the father is in the east and the baby protects Jikilaruwu country. In a responsive statement, Dennis Tipakalippa said that Ampiji moves through freshwater and salt water; the Ampiji dance is about Ampiji moving through both. 322 Dennis Tipakalippa said that he was worried that if something went wrong with the pipeline Ampiji would be upset and do damage. He said Ampiji could be dangerous to the Tiwi people, and even more dangerous to the non-Tiwi people who are disturbing her with their pipeline. 323 Dennis Tipakalippa described Yiminga as the spiritual essence of the land and sea that protects Tiwi people. Yiminga are related to Tiwi skin groups. He said that the pipeline may disturb the Yiminga that are present at specific sites in the sea, some of which are close to the pipeline. He said that disturbing the Yiminga could, in turn, affect how people connect with each other, because of skin groups and song lines. 324 Dennis Tipakalippa said that when he sat with Dr O'Leary and did "the mapping", he "could see there would have been a large waterfall." He said that he believed that his ancestors would have gone there and known that that waterfall was important. 325 Dennis Tipakalippa said that he understood that the Wessex Report identified 163 sites that could have potential archaeological material underwater including artefacts from Tiwi ancestors. He said that by looking at maps showing what the land looked like during the last ice age, he could see that there was no sea where the pipeline will go past the Tiwi Islands. He said that he believed there may be artefacts very close to the pipeline route, where his ancestors did ceremony. 326 Dennis Tipakalippa said that the pipeline was going to go across the sea bed that was once land. He said that the land was culturally important to Tiwi people and that he could be affected by harm to Jikilaruwu sea country. He said that disrespecting cultural sites by laying the pipeline across artefacts could result in the senior people, the Elders from each clan, getting sick. 327 Dennis Tipakalippa further explained that there were turtle nesting grounds in the same area as Lake Mungatuwu, close to the pipeline route. He said that turtles were important, spiritually and for food. He said that turtles were like humans in that their generations go on and on, they knew where they were from, and come back to the same place to lay their eggs. 328 Dennis Tipakalippa disagreed with Dr Corrigan's suggestion that an appropriate step would be to have suitable Tiwi people go with the pipeline construction crew and introduce them to the sea and the spiritual entities including Ampiji. He said that that was not how spiritual protection worked and that such a recommendation was not respectful to Tiwi people. 329 Dennis Tipakalippa said he attended a meeting with Dr Corrigan. He said he was concerned that Dr Corrigan would not show the Tiwi people the Wessex Report. He believed that Dr Corrigan was culturally inappropriate by not considering which specific clan groups had authority to speak for which country. He said that Dr Corrigan has not listened to the Tiwi people and was delivering the wrong message about their spiritual connection to the sea. 330 In a responsive statement, Dennis Tipakalippa said that if Stanley Tipiloura was working as a cultural advisor, helping to conduct surveys on the sea bed, he had to be careful to ensure that all feedback came from the clan group with authority to approve the disturbance. He said that Stanley Tipiloura could not give approval for the part of the pipeline that was in Jikilaruwu country, unless he is Jikilaruwu. 331 In his responsive statement, Dennis Tipakalippa further disagreed with evidence of Brian Tipungwuti about culture and adoption. He said that if you were adopted into Tiwi culture, you were Tiwi: you are part of the family and your cultural responsibility and authority are the same. 332 Dennis Tipakalippa said that it was hard to understand what John-Louis Munkara had said about having only heard about the Crocodile Man two weeks prior to making his statement. Dennis Tipakalippa explained that the Crocodile Man story made its way to Pirlangimpi on Munupi country and that people know about it there. He said that it was a song line from Jikilaruwu country and those stories had been handed down by his ancestors. 333 With respect to Stanley Tipiloura's evidence that the EDO spoke to the Tiwi Land Council about Santos's pipeline and potential burial sites and showed maps of the sea bed, Dennis Tipakalippa said that, as far as he was aware, the EDO never attended a Tiwi Land Council meeting but attended some clan group meetings. 334 Dennis Tipakalippa further disagreed with Stanley Tipiloura's statement that women did not sing and dance in ceremony. In his responsive statement, Dennis Tipakalippa said that everyone participated in ceremony including women who normally participated and sang song lines. He said that Pirrawayingi Puruntatameri, Walter Kerinauia and Richard Tungatalum were culture men of the Tiwi Islands. He said that they all lead ceremonies and that Richard Tungatalum was an up-and-coming leader of ceremony.

Cross-examination of Dennis Murphy Tipakalippa 335 Dennis Tipakalippa confirmed that he is a Munupi man who could only speak on behalf of the Munupi clan group and could not speak of the impact of Dreamings in the sea west of Bathurst Island. 336 Dennis Tipakalippa was shown the same map that had been shown to Pirrawayingi Puruntatameri. He said that he thought it told a story. When asked whether he had heard about the things shown on the map before he said, "This story has always been passed down from generation to generation and so forth". When asked what story he referred to, he mentioned Crocodile Man and other species that connected the land to the sea, such as turtles. He said that he could not speak of the crocodile but could speak of the turtle because it was his Dreaming. He said that turtles had nesting grounds that they returned to, and he expressed concern that future generations may not be able to eat what was in the sea. 337 Dennis Tipakalippa confirmed that the features on the map, including a blue area, poles to the right of that area and crocodiles below that, did not have anything special to do with the turtle, but said that he believed that there was an "artefact" where the pipeline was going to be. When asked who had told him that he said, "There is some totem poles, some artefacts", and that Dr O'Leary had told him that. He confirmed that he had not known about those things beforehand and said, "It is our right to know all that what's down there". 338 When taken to the list of names of Tiwi Islanders with whom ConocoPhillips consulted in 2017, Dennis Tipakalippa confirmed that Danny Munkara was a senior Jikilaruwu Elder and "the right man of that area". 339 Dennis Tipakalippa agreed that Danny Munkara would know about things that were sacred to Jikilaruwu people, and that he knew the Dreaming that is special to them and has been passed down. He agreed that Danny Munkara was a man who would be expected to speak up, and that he would be well placed to judge the impact of the pipeline from a Jikilaruwu.

Therese Wokai Bourke 340 Therese Wokai Bourke is a senior Malawu woman, Elder and community leader from the Malawu clan. Malawu is her mother and grandfather's country, and her grandmother's country is Munupi country. Therese Bourke's skin group is Wulinjuwula and her totem is Takaringuwi, the sea mullet. Her Dreaming is Ampiji, the rainbow serpent, which she dances in addition to the buffalo, Jurrunga. She gave evidence at the hearing concurrently with Carol Maria Puruntatameri and Maria Tipuamantumirri. 341 Therese Bourke is a councillor for the Tiwi Islands Regional Council for the Pirlangimpi ward, a director of the Pirlangimpi Shop Committee, and is on the Pirlangimpi Local Authority as part of the Tiwi Islands Regional Council. She teaches young people about culture, language and stories through her role on the Tiwi Cultural Heritage Group under the Tiwi Land Council. She previously went to schools to teach children about culture, Tiwi Dreaming, song lines and stories. 342 Therese Bourke says that her mother was part of the Stolen Generation which meant she had to learn about her culture later in life and has worked very hard to become an Elder. She said that she has authority to speak for Malawu country and the sea that is west of Malawu country. She explained that Malawu sea country goes out west from Malawu country and up north until Munupi sea country, and that the land underwater is also Tiwi country. 343 Therese Bourke said that Ampiji was in the sea and was a spiritual and comforting feeling. She said that she felt protected and loved by Ampiji's presence in the water and that Ampiji "travels far in the sea." She said that Mother Ampiji was in "the old deepwater lake that exists in the sea". She said that that lake has a deep connection to other water sources, also around the islands, where Ampiji's children live. She said that Tiwi people know about Ampiji from listening to Elders. She said that she saw from the map that Dr O'Leary produced how the land looked thousands of years ago. 344 Therese Bourke said that there were sacred rocks near the sea at Rocky Point on Malawu country and that those rocks are important because an Ampiji lives there. She said that Ampiji comes out from the rocks into the sea when she senses danger. She said that Ampiji travelled to Malawu sea country and could go further than that, she travelled throughout the whole area where Tiwi people once "lived, walked and died, near the freshwater source". 345 Therese Bourke said that a few years ago, before the Tiwi people had heard about the Santos threat, some blokes came back from hunting, agitated, and said they had seen Ampiji. She said that they thought it was because Ampiji could sense danger and, once they found out about the Santos threat, they thought that Ampiji was perhaps coming out because of it. 346 Therese Bourke said that the pipeline will disturb everything and that Ampiji would feel it and know what was happening, no matter how far away she was. She said that Ampiji would smell the chemicals in the pipeline and recognise that it was foreign and could be dangerous. She believed that when Ampiji is upset and angry, there were more social problems for Tiwi people, such as people using drugs and alcohol. 347 Therese Bourke explained that putting a pipeline between the freshwater lake and the Tiwi Islands would disconnect the Mother Ampiji from her children and would disconnect Tiwi people from Mother Ampiji. She said that it would be much better for Tiwi people if the pipeline was put on the other side of the freshwater lake, though there would still be concerns for the safety of the environment. 348 In her responsive statement prepared with Maria Tipuamantumirri, Therese Bourke said that she was surprised to hear other Tiwi people say that there was only one Ampiji. She explained, in response and speaking only with authority for Malawu country, that there was an Ampiji at Rocky Point and that there was also Mother Ampiji whose children live in the waterways around the island. She said that the Ampiji in the sea had different names and referred to an Elder who had that knowledge. 349 Therese Bourke explained that there were lots of different meanings of Yiminga. She said that Yiminga represented everything spiritual and was also used to describe sacred areas around the island. She said that Yiminga existed everywhere; they are in the sea and in the freshwater, not only onshore. Yiminga existed at sacred sites. She said that there were Yiminga in the "old freshwater source where Mother Ampiji lives" and that installing a pipeline there would separate the Tiwi people from their Yiminga. She said that destroying their sea country would come back to them because they would not be honouring their ancestors. She explained that without their Yiminga, the Tiwi people would feel lost and adrift. 350 Therese Bourke said she was dreading the installation of the pipeline because it would result in the Tiwi people being disconnected from their Yiminga and Ampiji. She said: …I've reconnected with my spirituality, and now they want to take it away from me and from us. They are going to cast us adrift. … It is another form of colonisation, trying to disconnect Tiwi people from our protector, Ampiji. At this point in time, we need to protect our protector. That way, she will continue to protect us. 351 She said that her ancestors were buried where the pipeline would go and that there were "artefacts and things that they might have left behind". She said that putting a pipeline on burial and ceremonial sites would disturb the Tiwi people's Yiminga. 352 Therese Bourke said that she heard that Wessex found 163 sites along the pipeline route where there could be archaeological material from Tiwi people who were there thousands of years ago. She said that she and her family had not had an opportunity to look at the report or understand the sites and that she wanted to know more about them because they were in her sea country, where her ancestors lived. She said she met Dr Corrigan many times as he was making his report for NOPSEMA. She wanted to see the report to check that there were no mistakes, but Dr Corrigan said it was not his process to do that. Therese Bourke said that she believed that a lot of his report was therefore wrong and that he did not understand the impact the pipeline would have on the Tiwi people. She said that he did not understand that you could not go out to sea and introduce Ampiji to Santos - that was not how it works. She said that Ampiji will know the pipeline is unnatural and could do damage to the waters and islands. 353 Therese Bourke said that the Tiwi people had given Dr Corrigan information but he had not given them any in return. She said that they were not told about the risks or impacts of the pipeline. She said she wanted to know what might happen to the sea country if the pipeline was put further out. She said that the threat of the pipeline had brought sickness and fighting to the community because Ampiji was upset. She said she was also worried about what the pipeline would do to the marine life and animals; and that they might die from an accident. 354 In her responsive statement, Therese Bourke said that Stanley Tipiloura should speak only for his clan, the Wulirankuwu clan, and that Santos should not be seeking cultural advice from someone who cannot speak for another clan's country. She said that decisions about the pipeline needed to be made in consultation with the right clan groups and their traditional owners. She said that she was worried about Stanley Tipiloura being a cultural advisor to Santos and saying that there was no cultural heritage under the sea. 355 Therese Bourke said that she disagreed with what Stanley Tipiloura said about women not playing a big role in Tiwi cultural heritage. She said that women and men share the roles in the Tiwi ceremonial system and that women sang and danced in ceremonies. Further, she said that women played an important role as knowledge holders and teachers, teaching cultural awareness and telling important cultural stories. 356 Therese Bourke said that she remembered Dr O'Leary showing the maps of what the land looked like thousands of years ago that did not feature any sacred sites or burial spots. She disagreed with Wesley Kerinaiua that the cultural map of when the water was low back in the ice age is Marie Munkara's map. She said that Dr O'Leary showed maps from thousands of years ago and videos of the sea level rising and that everyone at the meetings worked together, with Dr O'Leary, to make a map based on Tiwi culture, stories, knowledge and beliefs. Therese Bourke noted that Maria Tipuamantumirri also helped make the map by contributing her stories and information from Jikilaruwu.

Cross-examination of Therese Wokai Bourke 357 In cross-examination, Therese Bourke agreed with the proposition that you had to be Jikilaruwu to speak up for Jikilaruwu country and that it was for Jikilaruwu people to ask questions about sites off the coast to the west of Jikilaruwu country. She recalled attending the June O'Leary Workshop. When it was suggested that she had not been told by "the old people" about a freshwater lake of the kind depicted in a map shown to her by Dr O'Leary, said that she thought she had heard a story from Marie Munkara a couple of months before, but that Marie Munkara had not spoken about seeing maps and an underwater sea lake. She said that Marie Munkara had said that "her grandmother or some of her relatives told her about some special site out on the sea there", but did not give details about them. 358 Therese Bourke recalled Dr O'Leary telling her about a man from the Pilbara named Timmy Douglas who recognised his kangaroo Dreaming story underneath the sea when shown maps. She confirmed that she remembered Dr O'Leary asking whether she could think of any stories going out west to where the pipeline was going. 359 Therese Bourke said that she sat down with Dr O'Leary to talk about Dreaming stories for Jikilaruwu country because she was a Tiwi, and "we're all connected, we're all related". She said that she was not going to limit herself to fighting for just one part of the Tiwi Islands. 360 Therese Bourke confirmed that Ampiji lived at Lake Mungatuwu. She declined to speak of the Crocodile Man because she was not Jikilaruwu, but confirmed that people who were not Jikilaruwu could speak about the crocodile if it was their totem. 361 Therese Bourke agreed that Danny Munkara was a senior member of the Jikilaruwu clan who can speak on behalf of Jikilaruwu country. 362 Therese Bourke confirmed that it was important that people from each clan make sure that their sacred sites were registered, and acknowledged that the lake that Dr O'Leary showed her in the June O'Leary Workshop was not a registered site. She said, "That's because it was underwater and they didn't have map-making equipment and all of that back then. … That's why there's no registration for that site, because they didn't have the technology back then to do this sort of thing". 363 Therese Bourke said that she went fishing in the waters off Malawu country. She confirmed that she had gone on a boat trip with Dr Corrigan to the area where the pipeline was going to be put down. She confirmed that she had never been to that area before. 364 In a peculiar line of questioning, it was suggested that Tiwi people moved "to the land that was still there" as the sea levels rose because "they were smart". The question continued: So they also took Ampiji with them into that lake in Jikilaruwu country, didn't they? They didn't leave him out there in the lake under the sea, did they? Why would Tiwi people leave their special snake under the sea? 365 After listening to Carol Puruntatameri's response to that question, Therese Bourke interrupted to say (in an understandably firm tone): Ampiji is not a pet. You can't take it with you. She will just know, she will just follow where the Tiwi mob went as they moved. It's not like a dog or something that you can say, 'Come on, let's go.' … Saying Tiwi people, we didn't take Ampiji with us, we didn't make sure to bring it with us. She's not a pet. 366 Therese Bourke said that following the meeting with Dr O'Leary "we wanted to find out more about what was under the sea. We wanted more research done so we could have proof". The cross-examination continued: Q: So it's important for you to have proof of scientific research? A: Yes. Q: Because you didn't know it was there, so the science proves it; is that right? A: Yes. 367 Therese Bourke expressed concerns about damage to the pipeline that might be caused by violent cyclones and storms. She said that the pipeline would have a spiritual, cultural and physical impact. She acknowledged that her main concern had previously been environmental, but said that the safety of the environment "is connected to the safety and wellbeing of our cultural and spiritual beliefs in the environment around us". She agreed with a proposition that she was "the main person from Tiwi who asked the EDO to come and help". She said, "the environment and our spiritual and cultural beliefs, they all connected. You damage one, it's going - you're going to have a domino effect".

Carol Maria Puruntatameri 368 Carol Maria Puruntatameri is a Tiwi woman from the Munupi clan who lives in Pirlangimpi on the Tiwi Islands. She is a senior Munupi Elder, culture woman and traditional owner with authority to speak for Munupi country, including sea country from west of Munupi land to north of Munupi land. Carol Puruntatameri's father's country is Munupi country and her mother's country is Jikilaruwu. 369 She works as a senior artist at the Munupi Arts Centre and is a part of the Tiwi Cultural Heritage group where she teaches Tiwi children about their culture. Carol Puruntatameri speaks at Pirlangimpi Local Authority community meetings as the representative of the Miatuwi skin group for the Munupi clan. 370 Carol Puruntatameri said that Ampiji, the rainbow serpent, is caretaker of the sea who lives in the freshwater and the salt water. She said that if Ampiji smelt danger, she went into the sea to protect it. She explained that there was an Ampiji that lived at Lake Mungatuwu who came from the running water, down to the beach. Then, there were Ampiji at three other places, more inland in Pirlangimpi; Blue Water Creek, Kulumpini and Yapilika. She said that Ampiji travel from the freshwater creeks into the sea, visiting other Ampiji. 371 Carol Puruntatameri said that there was one Mother Ampiji who lives in the deepwater area in Jikilaruwu sea country, a sacred site, and was connected to all of her children who lived at sacred sites around the Tiwi Islands. She said that she believed that laying the pipeline would destroy Munupi sea country and disconnect Mother Ampiji from her children and Tiwi people from Mother Ampiji. 372 Carol Puruntatameri said that Mother Ampiji would get upset if disconnected from her children and would cause destruction by coming out and spitting fire. If Tiwi people were disconnected from Mother Ampiji, she said they would be lost, as if their spirituality were taken away from them. She said that Ampiji was worried about the pipeline and had been warning her people about it. She explained that she realised that Ampiji was trying to show the Tiwi people something, before they found out about the pipeline and drilling, because Ampiji came out to the barge landing at Garden Point one day, to show herself. In relation to the effect of the pipeline on Ampiji, Carol Puruntatameri said: … We cannot have the pipeline in that Sea Country because we need to connect with Mother Ampiji. If the pipeline was put there, it would spiritually disconnect us from Ampiji. I would feel sick in the body, spiritually disturbed. Ampiji is connected to us and we feel her connection. The pipeline would disturb this. 373 Carol Puruntatameri said that the Tiwi people do not think in the way of boundaries. She said: … Our connection goes out all the way in the Timor Sea. Wherever Ampiji is, we have connection to that area, and Ampiji travels as far as the eye can see and beyond. 374 Carol Puruntatameri said that she believed there could be archaeological material from her Tiwi ancestors along the pipeline route, including evidence of burial and ceremonial sites such as cultural artefacts. She said that the 163 sites along the pipeline route set out in the Wessex Report could also be spiritual sites as the ancestors of the Tiwi people walked, did ceremony and danced on that land. 375 Carol Puruntatameri said that she had asked Dr Corrigan to see his report but he said that he would not show it to the Tiwi people. She said that it felt like Dr Corrigan was trying to divide the Tiwi people. She believed he took stories from people who did not have authority to tell them and then framed the stories as if to demonstrate disagreement among Tiwi people, in an attempt to divide them. 376 Carol Puruntatameri said that she understood that Dr Corrigan's report suggested that if Tiwi people called out to Ampiji then it would be alright for Santos to install the pipeline. She disagreed that calling out and having Tiwi people accompany the Santos crew would provide spiritual protection for the project. She said that Ampiji, as protector of the sea, would sense the danger, know that the pipeline would destroy the sea and would therefore do something to Santos and to the pipeline. 377 Carol Puruntatameri said that installing the pipeline along the proposed route would upset the Yiminga of the Tiwi people, their spirituality and their song lines. She said that Tiwi people could get sick if "we don't respect all our spirituality" and that the pipeline should be stopped because "our ancestors are buried there". 378 Carol Puruntatameri said that the pipeline needed to be installed far away, outside Tiwi sea country, and that there should be proper consultation with all Tiwi people about their cultural heritage and beliefs. 379 In her responsive statement, Carol Puruntatameri said that in many statements filed in these proceedings, stories were told with respect to country that was not the country of the person telling the story. She said that that was not right and that Tiwi people could only speak for their own clan and country. 380 Carol Puruntatameri explained that women played a very important role in Tiwi culture and could have cultural authority. She said that many women, like herself, were artists who record Tiwi stories and song lines by painting. She said that women taught younger generations about their culture and went into schools to pass on that knowledge.

Cross-examination of Carol Maria Puruntatameri 381 In cross-examination, Carol Puruntatameri agreed with the proposition that you have to be Jikilaruwu to speak up for Jikilaruwu country and that it was for Jikilaruwu people to ask questions about sites off the coast to the west of Jikilaruwu country. She agreed that Danny Munkara was a senior member of the Jikilaruwu clan who could speak on behalf of Jikilaruwu country. 382 Carol Puruntatameri said that she recalled attending the June O'Leary Workshop and confirmed that there was a lawyer in attendance from the EDO. She recalled Dr O'Leary telling her about a man from the Pilbara named Timmy Douglas who recognised his kangaroo Dreaming story underneath the sea when shown maps. She confirmed that she remembered Dr O'Leary asking whether she could think of any stories going out west to where the pipeline was going. 383 There was then this exchange about why Carol Puruntatameri had met with Dr O'Leary about matters affecting Jikilaruwu country: Q: … Getting back to speaking for this area, Carol, can I ask you, you've just given evidence that Jikilaruwu people should be speaking up for their country and their sea country, but you sat down with Mick O'Leary and drew up this map and put things in, like the Ampiji area, which is the map you've got in front of you that I'm referring to, MR1, and you also put a crocodile line there, but this wasn't your country. That wasn't appropriate, was it? A: No. 384 She confirmed that Ampiji lives at Lake Mungatuwu but travelled around to different waterholes. She said: There's a lot of Ampiji there, in different connection, in Munupi, all around Ranku. We all got different Ampiji. 385 Carol Puruntatameri confirmed that she was aware of the Crocodile Man story, but said it was not her Dreaming. She said that different clans had their own crocodile story. She later confirmed she knew little detail about it. 386 Carol Puruntatameri said that the Ampiji that lived in Lake Mungatuwu moved sometimes to other waterholes and that she went down to the sea. She agreed with the proposition that "she is around the edges of the sea, around the coast" all around Bathurst Island. The cross-examination continued: Q: So getting back to mother Ampiji, that's in Lake Mungutuwu, she's protecting the coast, isn't she, around Bathurst Island, making sure that the Tiwi people are protected? A: Yes, Ampiji stay at Mungutuwu, but there's one in the sea from each clan and she's the caretaker of the sea. 387 Carol Puruntatameri said again that there was an Ampiji for Melville Island, and that Ampiji was the caretaker of the sea. She said that she did not want to speak for the Ampiji on Bathurst Island and referred to the Jikilaruwu. 388 Carol Puruntatameri referred to there being a Mother Ampiji which she said was different from the Ampiji at Lake Mungatuwu. She said that the Ampiji discussed with Dr O'Leary was "the mother Ampiji there and all around that Tiwi Island, that's all her children". The cross-examination on that topic continued: Q: But this idea that mother Ampiji is out under the water, deep down near where that pipe is going to be built, that's something that you thought of lately when you were talking to Mick O'Leary, wasn't it? A: No, that was before he came. Q: But it wasn't from your grandmother, was it? A: Old people that live there, that pass it on. Q: Yes, but they - - - A: Grandmother, yes, grandmother. Q: When I am talking about old people - - - A: My grandmother. Q: - - - I'm talking about your grandmothers who - - - A: From Jikilaruwu. A: - - - who taught you a lot of knowledge and passed that knowledge down to you, they didn't talk about this lake under the water, did they? A: Yes, they did, and my old - before she buried there at Fourcroy, down the beach, she's buried there. Q: But you didn't mention anything about this lake under the water to Brendan Corrigan when he met with you, did you? A: I did. With all them people that was there, I told them there's the mother Ampiji and all her children, they live around Tiwi Island. Q: So you were telling him about the mother Ampiji that's in the lake near Fourcroy. A: No. I wasn't talking about the Mungutuwu. Not that one. The one - - - Q: You weren't talking about Mungutuwu? A: No. Q: Which mother Ampiji were you talking about? A: Jikilaruwu and there's a water where the pipeline going, going to be built. There's a water there, so there's the mother Ampiji lives there. 389 Carol Puruntatameri said that she was not aware of members of her family being involved in the registration of sacred sites. She agreed with the proposition that if her "old people" thought that it was an important lake, they would have had it registered. 390 Carol Puruntatameri confirmed that she would go fishing in a boat within swimming distance of the shore off Munupi land, no more than two kilometres out. She confirmed that the first time that she had been to the area where the pipeline was to be put down was when she attended the boat trip with Dr Corrigan. 391 In response to suggestions that the Tiwi people would have "taken" Ampiji with them when they moved to the "land that was still there". Carol Puruntatameri responded in terms that made it plain that there was a difference between the Ampiji that lived at Lake Mungatuwu and the Ampiji that was the "caretaker of the sea". 392 Carol Puruntatameri confirmed that she had been told about the Wessex Report by the EDO. She confirmed that she was aware of its content. She said, "we told them go there and, you know, do more - explore. Maybe they will find our ancestors there, ancient tools and probably burial sites there". She confirmed that was what she was hoping for. 393 Carol Puruntatameri agreed that she was aware that every other witness that was going to give evidence for the applicants was at the meeting with Dr O'Leary, and she confirmed that they had all talked about the underwater lake site together on that day, that they felt very strongly about it and that they then decided to give evidence after that. 394 When asked about the impact of the pipeline, Carol Puruntatameri said: We go fishing, hunting and everything in the sea that we eat and hunt and they are all connected to us. Spiritually, we got songline, so when the pipe go then and ships 24/7 will damage all the animals in the sea. 395 She acknowledged that there were a lot of ships around the Tiwi Islands and expressed concern about damage that may be caused if the pipeline burst. She said, "whatever is there, everything will come down to us shores".

Maria Simplicia Purtaninga Tipuamantumirri 396 Maria Simplicia Purtaninga Tipuamantumirri is a senior woman of the Malawu clan who lives in Pirlangimpi in the Tiwi Islands. Her country is Malawu country and her authority to speak for country comes from her father's side. Maria Tipuamantumirri's skin is Takaringuwi, the sea mullet, and her Dreaming is Ampiji, the shark, the sea eagle and the turtle egg. 397 Maria Tipuamantumirri works as a translator and was previously employed as a bilingual teacher. She sings and dances Ampiji in ceremony and teaches children about Tiwi culture out bush and in schools. 398 Maria Tipuamantumirri said that she only had authority to speak for Malawu country. She said that Ampiji, the rainbow serpent, was the caretaker of the land and sea who travelled in the sea around the Tiwi Islands. She said that Ampiji helped to calm the waves and keep the sea down. She said that those waves had the colour of Ampiji and that her father told her that the rainbow ripples in the sea were Ampiji. She said that Mother Ampiji was the Ampiji that lived in the deep freshwater lake in the sea, where she had her children. She said that the children Ampiji separated from the Mother Ampiji and that they lived at sacred sites all around the Tiwi Islands. 399 Maria Tipuamantumirri said that when you go to sacred sites, you had to call out to Ampiji to tell her your clan and which area you were from. She explained that, in order to be protected from Ampiji when going to sacred sites, non-Tiwi people had to travel with, and follow, Tiwi people who called out to Ampiji. 400 Maria Tipuamantumirri said she went on a boat trip with Dr Corrigan who showed where the pipeline would go but did not provide information beyond that. She also said that she met Dr Corrigan at other times and he asked questions but did not explain anything about the pipeline. Maria Tipuamantumirri said she did not believe that the suggestion in Dr Corrigan's report that Tiwi people introduce the pipeline to Ampiji and the spirits in the sea would work. She said that Ampiji would be angered by the pipeline because it was unnatural and not Tiwi by smell. Maria Tipuamantumirri said that she believed Dr Corrigan should have spoken with the senior people of all four clan groups that would be affected by the pipeline, Munupi, Malawu, Wurankuwu and Jikilaruwu. 401 Maria Tipuamantumirri said that there might be artefacts, peoples' remains, ancient tombs and burial grounds, amongst the potential archaeological material identified along the pipeline route as set out in the Wessex Report. She believed Santos had possession of the Wessex Report for months before it was given to the Tiwi people. 402 Maria Tipuamantumirri said that the pipeline was a big risk to the Tiwi land and sea because it may leak and pollute the sea country. She said Ampiji would smell the chemicals in the pipeline and would be disturbed by the noise. She said that she was concerned that it would disconnect Mother Ampiji spiritually from her children and would cut her off from where she rests in the deep water. She said that Ampiji would destroy the place where the pipeline was laid and this could result in the destruction of her survival foods, in the sea and on land, the ones that Tiwi people hunt and on which they survive. Maria Tipuamantumirri said that, even if the pipeline was placed on the other side of the deepwater lake, it would affect the sea and disturb Ampiji. She said she believed the pipeline should be put far out beyond the boundaries of Tiwi sea country.

Cross-examination of Maria Simplicia Purtaninga Tipuamantumirri 403 In cross-examination, Maria Tipuamantumirri confirmed that she was one of the most senior Elders of the Malawu clan on the northwest of Bathurst Island. 404 She agreed with the proposition that you have to be Jikilaruwu to speak up for Jikilaruwu country and that it was for Jikilaruwu people to ask questions about sites off the coast to the west of Jikilaruwu country. She agreed that Danny Munkara was a senior member of the Jikilaruwu clan who can speak on behalf of Jikilaruwu country. 405 Maria Tipuamantumirri confirmed that she had heard about the Crocodile Man story. When asked whether she had also heard about the Crocodile Man dance, she said, "We all know about that. We all know about a crocodile dance and every movement they make, the crocodile do". 406 When asked whether she had ever heard of an underwater lake 10km west of Cape Fourcroy before she had met with Dr O'Leary, Maria Tipuamantumirri said: I've heard about that but this only explained things about the water and the sea levels, about how Tiwi people have dance Kulama ceremony and our cultural, spiritual way of teaching kids, and all that, and artefacts. 407 Maria Tipuamantumirri said that Dr O'Leary had explained about people walking on the land that is now under the sea. She recalled Dr O'Leary telling her about a man from the Pilbara named Timmy Douglas who recognised his kangaroo Dreaming story underneath the sea when shown maps. She confirmed that she remembered Dr O'Leary asking whether she could think of any stories going out west to where the pipeline was going. 408 Maria Tipuamantumirri confirmed that she had met with Dr O'Leary and drawn up the map with him but said, "I was sitting there but it's only talk about how that Ampiji was there, which I didn't even know". She confirmed that Ampiji lived at Lake Mungatuwu. She said that she danced Ampiji and that it was her Dreaming. 409 Maria Tipuamantumirri said that she would go fishing at Wulama near Rocky Point on the northwest side of Malawu country. 410 She confirmed that she went on the boat trip with Dr Corrigan and that it was the first time that she had been to the area where the pipeline was to go. 411 When asked about the Wessex Report referred to in her statement, Maria Tipuamantumirri did not have any recollection of having been shown it and could not remember anything about what was contained in it, including after being told that it referred to potential sites under the water. 412 Maria Tipuamantumirri confirmed that she was concerned not only about the environmental impacts that the pipeline might have on the sea, but also on Ampiji. When asked whether her main concern was environmental, she referred to the "Environment of all the seas and the land because that's the way we survived long time ago, our generations". She said she did not want the pipeline to be there and, when asked what were her concerns, she replied, "My concern is about my dreaming Ampiji, she smells different sorts of senses. She will be really angry and make big waves." She confirmed her belief that she "might get sick".

Molly Munkara 413 Molly Munkara is an Elder, senior woman and traditional owner of the Jikilaruwu clan who lives in Wurrumiyanga (Bathurst Island). Her country is Jikilaruwu and her connection to Jikilaruwu comes through her father and her mother. She works part time for the Red Cross, running programs for community members, and as a translator. She gave evidence together with Ancilla Kurrupuwu and Marie Frances Tipiloura. 414 Molly Munkara's totem is the small wren bird and her skin group is Marntimapila, the rock. Her role in her clan is as a translator and knowledge-holder of stories. She teaches cultural knowledge to the next generation of her clan to preserve the stories through time. She dances the Crocodile Man dance at ceremonies such as funerals. 415 Molly Munkara said that she had "authority to speak for Jikilaruwu country, Sea Country and Jikilaruwu people". She said that only some leaders can speak about certain aspects of cultural knowledge and that people of a clan group can only speak for their country, unless they have authorisation from another clan. In a responsive statement, she said that men with important ceremonial responsibility lead ceremonies for all Tiwi Islanders but that role did not give them the right to speak for another clan's country, stories or song lines. 416 Molly Munkara said that her people have a deep connection to the sea and land of their country, including the land under the sea. She said that she felt the need to protect the sea bed because that is where her ancestors lived, and therefore, it is a sacred place. She said that the animals of the sea and land were spiritual to her people and were connected to their totems, skin groups and Dreaming. 417 Molly Munkara explained that Cape Fourcroy is connected to the Jikilaruwu song line about Crocodile Man, Jirakupai. She said that the Crocodile Man story is one of the Jikilaruwu Dreamtime stories that was "given to us by our ancestors". She said that there is a dance for the story and the song line and she, "Maggie and Marie dance the crocodile" as it was their song line. She said that the story was about a man who owned and lived at the land at Wiyapurali and was making spears. The man was selfish and would not allow the Jikilaruwu tribe to share his land, so the tribe speared him. Molly Munkara said that, with the spears in his back, the man ran into the closest water, became a crocodile and swam "far out and travelled out into the deep water". She said he was given the name, Jirakupai, which means "crocodile". 418 Molly Munkara said that the Crocodile Man story happened before the water came up. She said that she believed that the water he crawled into was the deep water source that existed there. She said that was the place that she knew when she saw a map of the land under the sea provided by Dr O'Leary. Molly Munkara said that Jirakupai is still in the deep water today, he travels there because that is his territory and he is territorial. She said that he can be seen floating in shallow waters, waiting for food, when the tide is full. 419 In her responsive statement Molly Munkara said that Jirakupai is not just a normal crocodile. She said that, though she sometimes sees a crocodile when visiting Cape Fourcroy, the crocodile she had referred to in her statement was Jirakupai from the song line and dance that were handed down from the ancestors of the Jikilaruwu clan. 420 Molly Munkara said that Ampiji, the rainbow serpent who lived in the water, was the protector of the land, the sea and the waterways. She explained that there were Ampijis that lived all around the islands; they are connected to and rested in sacred places. She said that some Ampijis stuck to their sea country and some travelled around the islands. She said that the Jikilaruwu Ampiji lived at Lake Mungatuwu, a sacred place that was connected to Cape Fourcroy, and travelled from the freshwater stream into the sea. She said that when her people went out to Cape Fourcroy, they called out to their ancestors and to Ampiji asking to be welcomed and protected. 421 Molly Munkara said that there was a Mother Ampiji who travelled around the island, particularly in the wet season, after the rain, to visit her children and protect the land, sea and waterways. She explained that Ampijis are connected to sacred places and rest there but also travel around the Tiwi Islands, providing protection for the Tiwi people. She said that when "we see a rainbow out in the sea, that is Ampiji showing herself as she travels". 422 Molly Munkara said that there are also other Ampiji from different places in the salt water. She said: … There are Ampiji out in the sea, including where they are laying the pipeline. That deep water place under the sea on the map is also connected to Ampiji. That is a special, important place. That is the resting place of Mother Ampiji. That deep water place close to where the pipeline will be is Jikilaruwu sea country. 423 In her responsive statement, Molly Munkara again said that there was more than one Ampiji on the Tiwi Islands and in the sea, but there was one Ampiji that lives on Jikilaruwu country. She said that she could only tell the story of the Jikilaruwu Ampiji. 424 She said that the story of the Ampiji that lived at Lake Mungatuwu was important and, though Lake Mungatuwu was important for Jikilaruwu, it was not where all Jikilaruwu spirits went when they passed away. She said that the spirit of someone Jikilaruwu who passed away went back to their country, to where they were a traditional owner. 425 Molly Munkara explained that when Ampiji was disrespected or disturbed, she got angry, and a big disaster happened. She said that Ampiji was always watching and could tell someone's clan group from the smell of their sweat. She explained that Ampiji must be shown respect and called out to, to inform her of our presence. She said she believed that if someone does damage to the waterways, Ampiji appeared to show that the waters had been disrespected and brought non-stop rain. 426 Molly Munkara said that there were Ampiji in the sea where the pipeline will be laid. She said that the deepwater place under the sea on the map was also connected to Ampiji. She explained that it was a special and important place and the resting place of Mother Ampiji on Jikilaruwu sea country. 427 Molly Munkara explained that there were Yiminga in sacred sites all around the islands, including where the lighthouse is at Cape Fourcroy. She said that the sites where there are Yiminga were very precious to Jikilaruwu people. She said that if the pipeline was put in, it would destroy Tiwi country and, therefore, affect Tiwi people. In her responsive statement, Molly Munkara said that there were Yiminga in Jikilaruwu sea country, not just along the coast, and that they were an important part of Tiwi people's identity. She said that Tiwi people own the sea and it is part of them. 428 Molly Munkara said that she was uncomfortable about Dr Corrigan's report and felt that some of it was not true. She said that Dr Corrigan asked some clan groups and tribes to speak about other people's country which he should not have done. She said that the Jikilaruwu sea country and its stories, including that of the Crocodile Man, belonged to her and her people. She said that Dr Corrigan also made mistakes about Yiminga and Ampiji, and that he did not understand that laying the pipeline would anger the ancestors and upset Ampiji. Molly Munkara said that Dr Corrigan was also wrong in saying that if Tiwi people travelled with Santos workers, that spiritual protection would be provided to everyone. She said that it did not work that way and that Dr Corrigan did not understand the Tiwi people's spiritual and cultural connections. 429 Molly Munkara said that she had heard that Wessex had identified 163 sites with potential archaeological material. She believed there may be burial sites, ceremonial sites, stones axes and tools on those sites as her people lived on that land. She said that even though her people lived on that land a long time ago and the land is now under water "it was always our heritage and it is all part of our beliefs". She said that there were important connections to water under the sea as freshwater comes from under the ground. 430 Molly Munkara said that if the pipeline was installed in the proposed route, it would impact the beliefs, identity and spirituality of the Tiwi people, including their legends and song lines like the Crocodile Man story and Ampiji. She said that it would "cut us off from the area where Jirakupai travelled to". She explained that the Crocodile Man song line formed part of the Tiwi people's beliefs and the stories that were handed down from their ancestors that their future generations need to know. 431 Molly Munkara said that Ampiji was listening and always watching the Tiwi people and could hear their voice. She said that if Tiwi people could not protect the sea, they felt upset, and that Ampiji, the protector of the sea, would know and get upset. She said that if Ampiji was not happy, disaster would come, such as a big storm and lots of rain. She said that the pipeline would destroy Tiwi culture and that, without that culture, Tiwi people would feel sick, sad and lost. She explained that it would affect their mental health and make them physically sick. She said that she was worried that the pipeline would "destroy our sacred sites and our burial grounds". Molly Munkara said that the pipeline should not be put between the deepwater place and the Tiwi islands but should, instead, "be placed far away, outside of Tiwi Sea Country." 432 In her responsive statement, Molly Munkara said that senior Tiwi women had important cultural responsibilities and authority. She explained that women had a big role in passing on cultural heritage and keeping song lines. She said that when dancing at ceremonies, women are on the left side and men on the right; that men and women had different roles but they all took part. She said that women also keep culture strong by going to Tiwi schools and teaching children Tiwi culture, through song and dance, as well as the clans' family trees.

Cross-examination of Molly Munkara 433 In cross-examination, Molly Munkara confirmed that she is 66 years old and was born on the Tiwi Islands. She said that Munupi people could not speak for Jikilaruwu sea country. She said people from another clan group could not speak on behalf of another clan's country, because it was disrespectful and not their business. 434 Molly Munkara confirmed that Danny Munkara was a senior Jikilaruwu Elder, but said there were others who had that responsibility too. She said that she did not speak with Danny Munkara because of avoidance customs. 435 Molly Munkara said that she had not previously seen a map of registered sacred sites prepared by the Tiwi Land Council. She confirmed that if she wanted to get a site protected, she would go to a more senior Elder for help. She confirmed that it was important to remember Tiwi stories passed down to the next generation and that the stories formed part of her beliefs. She confirmed that she had helped to record Tiwi stories for younger generations. 436 When asked about Ampiji, Molly Munkara said, "The only Ampiji that is in our Lake Mungutuwu and that story was told to us by Elders". She described Ampiji as "a protector of the waterways and the sea". She said that the Ampiji that lives in Lake Mungutuwu is the only Ampiji in the Jikilaruwu area. When asked whether Ampiji moved around or stayed in the lake, she said, "the only area she goes around is on the coast and the western side of the island". She said that Ampiji went to places named Kilimraka, Jordiamo, Taparanupi, Wiyapurali, Aponikiki and Woolapongara and confirmed that those places were "all on Jikilaruwu clan country". She agreed that Ampiji then went back to and lived in Lake Mungatuwu. When asked whether Ampiji goes outside Jikilaruwu country when she goes around to the other waterways, Molly Munkara said, "I suppose she do." She said that she was aware of Ampiji going to other places that were not within her clan area and that it was up to the other clan groups to tell those stories. 437 Molly Munkara marked a map with a pink highlighter to show where Ampiji travelled, depicting a route in the water encircling the islands hugging the land mass. The map is extracted at [460] below. 438 Molly Munkara confirmed that the Ampiji she referred to on Exhibit R1 (was the only Ampiji in the Jikilaruwu area and that she lived in Lake Mungatuwu. 439 Molly Munkara confirmed that she was at the June O'Leary Workshop. She agreed with a proposition that Dr O'Leary had told those at the meeting about a man from Western Australia named Timmy Douglas who had been shown maps of the bottom of the ocean at Flying Foam Passage on the Burrup Peninsula and who had "instantly recognised it from his memory". She first denied that Dr O'Leary had then said that he wanted to know the song lines for the area under the sea to the west of Bathurst Island, then later said that she could not remember. 440 Molly Munkara recalled that she had been shown maps and that Dr O'Leary had pointed to what he called a freshwater lake. She said that Dr O'Leary told those at the meeting that it was likely that people lived in those areas 60,000 years ago. The cross-examination continued: Q: And is that what he told you, Mick O'Leary that day? A: Yep. Q: Did you know anything about that before you met with him? A: Beg your pardon? Q: Did you know anything about people walking around there on the land that is now under the ocean before Mick O'Leary told you about that? A: We were told it's likely people living in that area before the sea level rose. Q: Who told you that? Who was the first person - - - A: It was our thought. Q: That was your thought? A: Yes. Q: Did someone read it in a book and tell you about it? A: No. Q: Who told you about it? A: I was thinking about the map. Q: So when you were looking at the map you were thinking maybe some people had been walking around here? A: Yes, it's likely. Q: Is that because Mick O'Leary said that was something that could have happened? A: Yes ..... 441 Molly Munkara denied any recollection of Dr O'Leary saying that the maps were blurry or a little inaccurate. She had no recollection of Pirrawayingi Puruntatameri saying that there would be song lines associated with the area shown on the map since the beginning of time. 442 Molly Munkara said that "Elders told us" that there was always water along the beach and under the ground and confirmed that she had seen freshwater springs coming up near the beach, and running into the salt water. She said that the Elders had only shown them places where freshwater could be found and seen. 443 Molly Munkara said that nobody mentioned Ampiji at the June O'Leary Workshop. She did not agree with a proposition that it would be wrong for a Munupi person to talk about Ampiji with Dr O'Leary. She said, "we all have the same stories" and that different clan groups had their own responsibilities to tell stories about Ampiji. She confirmed that only Jikilaruwu people should speak up for Jikilaruwu country. In re-examination on that topic, she was asked whether Carol Puruntatameri could speak of the Ampiji from Munupi song lines. She responded, "no". The cross-examination continued: Q: And did Mick O'Leary tell you that he could help you stop Santos building that pipeline if you could remember some songlines or stories for that area he was showing you on the map under the water, which he said was a lake in the middle of the ocean? A: In those times, in those days, in the olden days, we weren't told about the songlines. Q: So you don't know whether there is a songline that goes out to where those maps showed or Mr O'Leary said there was a big lake under the ocean? You don't know of the songlines for that area? A: No. 444 Molly Munkara confirmed that when she went to the June O'Leary Workshop she wanted to stop the pipeline. When asked why she did not want the pipeline, she said: The reason is we are spiritually connected to the sea country and marine life that can impact if it go ahead, and its important those - the sea environment is protected for marine life. 445 Molly Munkara said that at the June O'Leary Workshop, Magdeline Kelantumama had told Dr O'Leary about the Crocodile Man story. She told the story in the following terms: This story is about a man who didn't want to share his land, Jikilaruwu, and this other group of Jikilaruwu tribe came and they saw him making spears and they ask him, 'Why are you here?' 'I'm here because it is my land'. 'Do you have families?' 'No, I'm alone'. And the other clan group they were talking about, they said they are going to spear him. So they spear him, spear him and then he crawled down to the beach, crawled down to the beach and dive into the deep water and then they saw him surfacing and they say to him - they said to him, 'You now called a crocodile Jirakupai. And now crocodile, we have a Tiwi name for Crocodile Man, which is Jirakupai. 446 She said that the song line went to the places that Ancilla Kurrupuwu had marked on Exhibit R2 (see below). She denied that it went to any other places. She confirmed that in the early 1970s the Crocodile Man story had been written down for a museum by Ancilla Kurrupuwu and Magdeline Kelantumama. 447 When asked why she went to the June O'Leary Workshop, she answered as follows: Q: … did you go to the meeting because you had cultural concerns for the Tiwi Islands if the pipeline was put down? A: I only speak for my Jikilaruwu clan group and I'm responsibility to because for the future generations. Q: Did you have any cultural concerns before you came to the meeting with Mick O'Leary? A: Individual people have their own concern. Q: What were your concerns? A: My concern is for the future generation, the sea connection. The country and the land is very important for future generation. 448 Molly Munkara added that she was concerned about the marine life, including species like turtles, fish and crabs that are part of traditional Tiwi food. She referred to seeing news stories about oil spills that had killed marine life. 449 Molly Munkara said that she was unaware of another pipeline or cables in the sea near the Tiwi Islands. She said that she was aware of ships and fishing trawlers but said that they did not disturb the sea country.

Ancilla Warlapikimayuwu Kurrupuwu 450 Ancilla Kurrupuwu, also known as Cilla, is an Elder, senior woman and traditional owner of the Jikilaruwu clan. She grew up and lives on Wurrumiyanga (Bathurst Island). Ancilla Kurrupuwu's family are the traditional owners of Cape Fourcroy in Jikilaruwu country along the coast from Lake Mungatuwu to the northwest of Bathurst Island. Ancilla Kurrupuwu's country, surname, dance and clan come from her father and her skin group comes from her mother. Ancilla Kurrupuwu's skin group is Wantarringuwi, the sun, and her totem is Punkwarinyuwi, the stingray. Her Dreaming is the boat, Kapal, and she dances this song line in ceremony. Ancilla Kurrupuwu previously worked as a bilingual literacy worker. She now works at the Patakijiyali Museum in Wurrumiyanga where she maintains the stories, books and archival material of Tiwi culture, as well as working as a translator and artist. 451 She said that she has cultural responsibility and spoke for the Jikilaruwu country and sea country. 452 Ancilla Kurrupuwu described Ampiji as the rainbow serpent that lives at Lake Mungatuwu which is an important place in Jikilaruwu country. She said that Ampiji is connected to the ocean where the freshwater runs from the lake out into the sea. She said that Ampiji went way out into the sea and protected the sea and waterways. 453 Ancilla Kurrupuwu said that the story of Jirakupai, the Crocodile Man, was an important Jikilaruwu story. She said that a man who owned the land at Wiyapurali, near Cape Fourcroy, was approached by people from the Jikilaruwu clan, that he was selfish and would not share his land with them, so they speared him. She said that he crawled into the closest water, with spears in his back, and then became a crocodile. She said that he swam "far out and travelled out into the deep water." She said that when he came to the surface, the people saw Jirakupai's crocodile tail that was like a spear. She said that Crocodile Man stays in the water off Wiyapurali and only travels in Jikilaruwu sea country; "[he] lives in the deep fresh water source in Jikilaruwu country". 454 Ancilla Kurrupuwu said that Yiminga is the spirit that lives in sacred spots. She said it was something the Tiwi people could feel and hear. She said that the presence of the ancestors and spirits that Tiwi people hear is Yiminga. 455 When Ancilla Kurrupuwu was shown by Dr Corrigan where the pipeline would go, she became very worried because of how close the route was to her country and sacred spots. She said she was concerned about what would happen if there was an accident or something happened to the sea animals. 456 Ancilla Kurrupuwu said that her people were not shown the Wessex Report when they asked Santos to see it. She said she believed there may be burial and ceremonial sites and possibly stone axes and other tools on the proposed site of the pipeline. She said that the Tiwi people had stories connected to the area where the Wessex Report showed that there were potential archaeological sites. 457 Ancilla Kurrupuwu said she believes that if the pipeline disturbed the important stories of Ampiji and Jirakupai, people would get sick and their "spirits will go down" and Jirakupai's travels and the Jirakupai song line will be affected. She said she was worried about how the stingray might be affected if the pipeline was damaged. She said that she would feel sad, worried and sick inside if something happened to the stingray, as Tiwi people have deep spiritual connection to their totems which were part of their identity. She said she was worried about damage to the sea bed and sea creatures, and that she did not want the sacred sites and burial grounds under the sea to be disturbed.

Cross-examination of Ancilla Warlapikimayuwu Kurrupuwu 458 In cross-examination, Ancilla Kurrupuwu confirmed that she was born on the Tiwi Islands and was 62 years old. She further confirmed that she was Jikilaruwu but from Port Hurd. She said that she could speak for Jikilaruwu sea country because of her family connections, but Munupi people could not. She agreed that if Malawu or Munupi people spoke for Jikilaruwu country, the Elders would tell them that it was not right to do so. She said that she had not previously seen a map of registered sacred sites prepared by the Tiwi Land Council. She confirmed that when growing up she was taught Dreaming stories from old people. 459 Ancilla Kurrupuwu agreed that Ampiji travelled to the places in Jikilaruwu country mentioned by Molly Munkara, and that other clans had Ampiji stories that she did not know about. Ancilla Kurrupuwu marked up the map Exhibit R1 in blue to depict where Ampiji goes, drawing a route a little wider than that drawn by Molly Munkara. 460 As marked up by both Molly Munkara (in pink) and Ancilla Kurrupuwu (in blue) the map (Exhibit R1) appears like this (Map 2): 461 Ancilla Kurrupuwu agreed with the proposition that Ampiji travelled a "little bit more around the coast" and that it was her intention to show that Ampiji travelled under water. She too agreed that there was only one Ampiji in the Jikilaruwu area and that she lived in Lake Mungatuwu. 462 Ancilla Kurrupuwu initially said that she could not recall attending the June O'Leary Workshop. 463 Ancilla Kurrupuwu said that Elders had told her that there was freshwater deep under the sea. When asked where it was, she said, "Along the beach". 464 She agreed that Danny Munkara was the most senior Jikilaruwu leader and that if he said something about Jikilaruwu country it would be right. She said she did not speak with Danny Munkara because they were in an avoidance relationship. 465 Ancilla Kurrupuwu denied that she had been taught Dreaming stories or song lines that went 10km west from Jikilaruwu country where there might be a lake under the water. She confirmed that it was her understanding that Dr O'Leary was showing Jikilaruwu people the maps because he was there to stop the pipeline. She said that Molly Munkara had told her about the maps and that she had been told that before the sea rose there was Jikilaruwu land there. She said she was told by Molly Munkara that there were burial sites there, and other things like "Maybe stone axe or spear". 466 When asked whether the maps showed anything important, Ancilla Kurrupuwu referred to the Crocodile Man. She said that she had told Molly Munkara, "When they spear him, he crawled all the way to the sea where the water is". She identified Wiyapurali as the place where the Crocodile Man lived and where he went into the sea. In retelling the story, she described the Crocodile Man being speared while inland, then crawling all the way to the beach across the land, until he got to the water. She said that when he got into the sea he dived down and later "he came up to surface and then they seen his head and he changed into a crocodile". When asked where he went after that, she said, "Just on his Jikilaruwu territory". She indicated that territory as being the area around Cape Fourcroy, drawing the area on a copy of Exhibit R1 with a black marker to indicate it. That marked up copy is now Exhibit R2. It is as follows (Map 3): 467 When asked whether he went any further into the sea from around Cape Fourcroy she said, "No, just round his territory". 468 Ancilla Kurrupuwu confirmed that she wanted to stop the pipeline from being built. She said that that was why she went to the meeting with Dr O'Leary. She confirmed that she was concerned about a leak or something going wrong with the environment. 469 Ancilla Kurrupuwu confirmed that when she went on a boat trip to the pipeline route it was the first time she had been there, the first time that she had been out that far. She confirmed that there was no name for the place in the sea where she went with Dr Corrigan. 470 Ancilla Kurrupuwu said that it was not right to put the pipeline "near my country, Jikilaruwu country". She referred to the importance for younger generations who would care for the country and hunt around the sea and inland for bush food and sea food. 471 Ancilla Kurrupuwu said she was not concerned about ships in the sea spilling oil, but she was concerned that if the pipeline spilled gas on shore, everything would be dead. She referred to watching news stories about oil spills.

Marie Frances Tipiloura 472 Marie Frances Tipiloura is an Elder, senior woman and traditional owner of the Jikilaruwu clan. She lives in Wurrumiyanga (Bathurst Island) and her country is Jikilaruwu, "which includes the Sea Country that comes off Jikilaruwu land". She is Jikilaruwu through her father; her mother is Malawu. Marie Tipiloura's skin group is Wantarringuwi, the sun, and her Dreaming and song line are the crocodile. 473 Marie Tipiloura said that she had cultural responsibility for Jikilaruwu stories, songs, ceremony and dancing. She teaches her cultural knowledge to the younger generations of Jikilaruwu people. 474 Marie Tipiloura said that she had authority to speak for Jikilaruwu country on the land southwest of Bathurst Island and for waters west, northwest and southwest of Cape Fourcroy. 475 Marie Tipiloura said that the Crocodile Man (Jirakupai) song line runs from the Cape Fourcroy coast out into the deep water of the sea. She said that the story is of a man who was speared on the beach at Cape Fourcroy, near Wiyapurali, because he would not share his land. Marie Tipiloura said that the man crawled out into the sea and became a crocodile and remained in the sea now. 476 Marie Tipiloura said that another important Jikilaruwu story was that of Ampiji who lived in Lake Mungatuwu, a freshwater late on Jikilaruwu country. She said that Ampiji travelled out into the ocean and around coastal waters, sometimes visiting other Ampiji in the ocean. She explained that other Ampiji lived at sacred sites around the Tiwi Islands and that those Ampiji also travelled. Marie Tipiloura said that there was a Mother Ampiji that lived in the deep water in Jikilaruwu sea country, out where the pipeline route will be. She said that there are other Ampiji stories for other clans. 477 Marie Tipiloura said that, on 8 June 2023, she met Dr Corrigan and went out on a boat with him on the western side of the island, near Cape Fourcroy. She said that on that day they called out to Mother Ampiji. She said that she saw rainbows on the sea and believed it was Mother Ampiji protecting and guiding them. She said she told Dr Corrigan about Ampiji and expressed her concerns about the location of the proposed pipeline.

Cross-examination of Marie Frances Tipiloura 478 In cross-examination, Marie Tipiloura confirmed that she was born on the Tiwi Islands, is 65 years old and is Jikilaruwu. 479 She confirmed that she had not previously seen a map of registered sacred sites prepared by the Tiwi Land Council. She said it was important to teach generations about the Tiwi language and what she had learned from her Elders, and that it was important to record the stories to make sure the young generation learn them. She confirmed that she had helped make recordings. 480 Marie Tipiloura said that the Ampiji story about places on Jikilaruwu country was not her story to tell. She confirmed that her mother was Malawu and danced the Ampiji "from her mob". She agreed with both routes of Ampiji drawn by Molly Munkara and Ancilla Kurrupuwu on the map Exhibit R1 (Map 2). She said that the Ampiji depicted on the map was the only Ampiji in the Jikilaruwu area, and agreed that Ampiji goes in the area marked in blue and pink by Molly Munkara and Ancilla Kurrupuwu. 481 Marie Tipiloura confirmed that she was at the June O'Leary Workshop. She could not recall Dr O'Leary speaking about Timmy Douglas in Western Australia, nor could she recall whether he asked those present about their song lines under the sea to the west of Bathurst Island. She confirmed that Dr O'Leary had explained that the sea was land before the ice age came and that "there's still freshwater underneath, sitting still there". She denied that Dr O'Leary had said that the images were blurry and not really accurate. 482 Marie Tipiloura confirmed that she knew of freshwater sources at the beach on Jikilaruwu country when the tide was out, and said that she hunted there. She confirmed that her Elders had taught her about them. She said that her two aunties, Winnie Munkara and Consolita Munkara had told her about freshwater under the deep sea that was "Still there … right in the middle". 483 Marie Tipiloura referred to a crocodile but said that it was not her story and she could not speak for it because her clan was inland. She confirmed that Danny Munkara was an Elder to both Winnie Munkara and Consolita Munkara and that he was the most senior person in the family. She confirmed that if Danny Munkara said something about Jikilaruwu country he was correct. 484 Marie Tipiloura said she could not remember anybody at the June O'Leary Workshop mentioning Ampiji. She agreed with a proposition that if someone was speaking with Dr O'Leary about Ampiji at the June meeting, it should have been a senior Jikilaruwu person speaking for Jikilaruwu country. 485 Marie Tipiloura confirmed that she had concerns about the pipeline, including because it might leak. She confirmed it was her understanding that when Dr O'Leary was showing maps and talking about the ancient lake, he was there to help stop the pipeline. She said that she was not aware of another pipeline about 40km south of the Tiwi Islands. When questioned about it she said, "It's not close up to Tiwi". 486 When asked why she went to the June O'Leary Workshop the following exchange occurred: A: I just went for our right. Q: For a right? A: The place, yes. Q: But you didn't want to make any decisions at that - - - A: Just to make sure I know where the pipeline will be putting there. Q: So it was about the pipeline? A: Yes. Q: Did you have any cultural problems with the pipeline being put down? Did it concern you that your Tiwi culture might be affected by the pipeline? A: Because of the disturbance in the sea level from maybe tidal wave or earthquake, yes. Q: So you went along because of those concerns? A: Yes. Q: But not cultural concerns? A: No.

Magdalen "Maggie" Kelantumama 487 Magdalen "Maggie" Kelantumama is an Elder, senior woman and traditional owner of the Jikilaruwu clan who lives in Wurrumiyanga (Bathurst Island). She is a literacy worker, translator and teacher. Her mother, father and husband are also Jikilaruwu and her mother was a Jikilaruwu Elder. Her traditional land in Jikilaruwu country is Marnawu (Barge Landing) at Tipwangampi (Port Hurd). She speaks both traditional and modern Tiwi. 488 Magdalen Kelantumama's Dreaming is the crocodile and she sings and dances Jirakupai, the Crocodile Man, in ceremonies. Her skin group is Takaringuwi, the mullet, and her totem is Jilarruwi, the brolga. 489 Magdalen Kelantumama said that when she was growing up, the family and Elders of the senior Jikilaruwu women, including Magdalen Kelantumama, took her out bush and taught her songs, dances, stories, hunting, fishing and gathering. She said that this was what gives the senior women cultural authority. She said that she had cultural responsibility for Jikilaruwu knowledge and a responsibility to pass on those stories to the next generation. 490 Magdalen Kelantumama said that she could only speak for her country. She explained that you could speak about your stories with other clans in the same room, but you could not speak on behalf of other clans or about their stories without authorisation. 491 Magdalen Kelantumama said that she learnt the story of the Crocodile Man that is connected to her song lines from her mother's side. She explained that Crocodile Man was making spears down on the beach at Cape Fourcroy, where the lighthouse is now. She said that when the Jikilaruwu clan went out and saw him, he did not want to share his land with that mob. The clan speared him, and he ran away into the water and turned from a man into a crocodile. 492 Magdalen Kelantumama translated the Jirakupai story from Elders and wrote it in a book that is annexed to her witness statement. Her translation of the Jirakupai story recorded in the book states that, after the Crocodile Man ran and jumped, with the spears that people had thrown at him hanging from his back, "he crawled along the beach cried out in pain and dived into the sea. After diving into the sea, he then surfaced for air far out in the deep water." 493 Magdalen Kelantumama said that Ampiji was an important story of a rainbow serpent that lives in the Jikilaruwu sea country and protects you when you went out into the sea. She explained that if you do not call out to Ampiji when you go out into Jikilaruwu country, Ampiji will not protect you and there will be non-stop rain or some other accident, such as a car accident or snake bite. She said that calling out to Ampiji was especially important when you had visitors. 494 Magdalen Kelantumama said that the Jikilaruwu Ampiji lived at Lake Mungatuwu and the Mother Ampiji lived in the deep freshwater lake under the sea. She explained that those Ampiji were separate but connected by the freshwater streams that went out to the sea from Lake Mungatuwu. She said that the pipeline could not be put in the proposed location in the deep water close to Mother Ampiji because she would damage it. 495 Magdalen Kelantumama was concerned that the pipeline would pollute the sea with gas and affect the food like crabs and oysters that the Tiwi people took from the sea country. She said that she believed that if the pipeline was put in the proposed location in Jikilaruwu sea country people would be sick with mental illness and would lose their memories. She said that she was not consulted about the location of the pipeline and believed that its proposed location was in the wrong place; the risks associated with putting the pipeline there were too high.

Cross-examination of Magdalen "Maggie" Kelantumama 496 In cross-examination, Magdalen Kelantumama said that she was 72 years old and was born on Bathurst Island. She said she had not previously seen a map of registered sacred sites prepared by the Tiwi Land Council. She agreed that Ampiji lived in Lake Mungatuwu, protected the Tiwi people and travelled around the waterways, protecting them and the sea around the islands. She agreed that Ampiji lived in Lake Mungatuwu most of the time except when she was travelling. She confirmed that she had learned the story of Ampiji from her Elders and read the story in a book written by her father, Hillary Munkara. 497 Magdalen Kelantumama said that Dr O'Leary had shown her a map at the June O'Leary Workshop. Questioning on that topic proceeded as follows: Q: What did you say he showed you, Mick O'Leary? A: He showed us that thing about that pipeline, is it? The pipeline. Q: Okay. Did he show you anything else on the map? A: Showed us about crocodile. Can't remember. Q: Can't remember? A: I can't remember. My hearing is not good and I'm pretty sick. 498 Magdalen Kelantumama went on to say that she could not remember the other people that were at the June O'Leary Workshop. She said that she was asked to go to the meeting by Valentine Intalui and Simon Munkara. 499 Magdalen Kelantumama said that she did not want the pipeline to go through because anything might happen. She said that a cyclone might cause the pipe to blow out and harm mangroves, country and animals "like some food, crab, fish, whatever, our land". When asked who told her about those things she said that it came from her own thinking, "from my mind, my heart". She said that each of the people at the June O'Leary Workshop had said, "I don't want no pipelines going through my country at Fourcroy" and that they had discussed it destroying things in the mangroves, such as fish and crabs. The cross-examination continued: Q: When you went to the meeting with Mick O'Leary, were you worried about any of your culture getting destroyed by the pipeline? A: Yes, I'm worried too. I don't want to lose anything there, like our seafood and things might get destroyed, or the gas pipe might blow up, something like that. Q: What things do you mean could blow up? A: Just fire, from lightning, storm. Q: And could it have any effect on Jikilaruwu culture if it blew up? A: Yeah, it will. Q: How is that? A: Because we got culture too, you know, the animals, whatever we get. We got culture too. Got to keep that culture strong. If you put in pipeline in, we lose everything, animals that we eat like fish, crab, muscles, oysters. That's what I'm a bit worried about if the pipeline, you know, gas pipe happen during storm and it burst, it will spread everywhere and we will lose the whole thing, you know, taste of soul food.

Simon Munkara 500 Simon Munkara is 40 years old. He was raised on the Tiwi Islands and describes his homelands as being on the southwest coast of Bathurst Island. His connection to that country is through patrilineal descent. Simon Munkara's father is an Elder, a former President of the Tiwi Shire Council and a former member of the Tiwi Land Council representing the Jikilaruwu clan. His mother is from the country of the Yimpinari clan. 501 Simon Munkara said that he was a community leader and has been the trustee for the Jikilaruwu clan under the Aboriginal Land Rights Act for five years. He has been an executive member of the Tiwi Land Council for three years. He said that when there was a clan group meeting, he acted as the chairperson and led the meeting. 502 Simon Munkara said that his totem was Kapala, which he danced at funeral ceremonies. He said that the Jikilaruwu have authority and speak for Jikilaruwu sea country. He said that their sea country does not have the boundaries that white people speak of. He said that their song lines start at the land and go far into the sea, as far as the crocodile, mullet or turtle go; there is no end to the song lines. However, he said that Tiwi people's spiritual and cultural worry and concern go beyond the sea country for which they have authority to speak because the animals, ancestors and spiritual beings, like Ampiji and the Crocodile Man, travel very far and without boundaries. 503 Simon Munkara said that the clans have their own stories. He explained that the right person to tell a story is the person who comes from that land and sea country. He said that the owners of country make decisions about their country. He said that a rule from way back was that "[i]f a person from another clan enters our country they call out, to show respect". 504 Simon Munkara said that Wiarprali, the Crocodile Man, is a very important Jikilaruwu story. He said that the sea country from near Cape Fourcroy out into the deep water was the home of Wiarprali, "that's where he lives: that's his territory". In his responsive statement, Simon Munkara said that the Crocodile Man not only stayed near the coast but also went out to sea. He said that although others may know part of the story, only Jikilaruwu people have authority to speak about the story of the Crocodile Man. 505 Simon Munkara said that Ampiji was a protector who lives in the freshwater and salt water and was also important to Jikilaruwu people. He said that Ampiji was "the mother of all waters" and that she went all around the Tiwi Islands and into the deep waters. He said that Lake Mungatuwu was an important place on his country for Ampiji. In his responsive statement, he added that there was more than one Ampiji; one Jikilaruwu Ampiji at Lake Mungatuwu and also the Ampiji in the salt water. He said he could only speak about Ampiji on his country, but he knew of others too. 506 Simon Munkara said that he was told by his lawyer that the Wessex Report showed 163 sites of archaeological potential at and around the place the pipeline was proposed to go. He said that it was important that the Jikilaruwu, Wurankuwu, Malawu and Munupi clans be given the opportunity to learn about those sites and talk about the cultural stories that could be relevant to them. He said he believed that the Wessex people should talk to the Tiwi people about their research and listen to the Tiwi people about the spiritual and cultural significance of places where their ancestors lived, performed ceremony and were buried. He said that it was disrespectful that the Tiwi people were not provided with the Wessex Reports or the opportunity to have input into them before they were finished. 507 Simon Munkara said that he did not meet Dr Corrigan. He said that his lawyer had read him Dr Corrigan's recommendation that Tiwi people accompany the pipeline laying crew to introduce them to the spirits. Simon Munkara said that laying the pipeline while calling out to the sea would not prevent harm to the Tiwi people; it did not work that way. He said he believed that the people from his country would not agree to do the calling out and that people who are not Jikilaruwu should not do the calling out, as it was not their country. 508 Simon Munkara said that putting the pipeline under the water on the sea bed would upset the Crocodile Man and Ampiji. He said that if Crocodile Man was not happy about the pipeline going in his territory, he could harm the children when they are out hunting or the boats. He explained that installing the pipeline on the sea bed where the Crocodile Man song line was could make him sick and sad and hurt him and his people for the rest of their lives. He said that if Ampiji was angry there could be a big storm. He said he was also worried that it could cause harm to Santos. He said that there were burial sites "in the sea". 509 Simon Munkara said he was concerned that the pipeline may damage the sea bed and the cultural heritage of Tiwi people, including an underwater burial site. He said he believed that putting a pipeline on top of the sea bed, something that belonged to the ancestors of the Tiwi people, would be disrespectful and culturally damaging. He said he was also worried about damage to the sea bed and the potential for an oil or gas spill. 510 Simon Munkara said that Dr Corrigan had not engaged in a proper consultation. He said that for that to occur, Santos would need to come to a clan group meeting and speak with the Jikilaruwu clan. Simon Munkara said he remembered a meeting on a videoscreen in 2021 with his clan group about the pipeline. He said he thought that meeting was about the Santos Barossa pipeline but that was the only meeting about the Barossa pipeline that he could remember. 511 In his responsive statement, Simon Munkara said that cultural heritage was a clan responsibility. He said it is important that Stanley Tipiloura advises Santos only in relation to Wulirankuwu country, and not Jikilaruwu country. He said that only Jikilaruwu people could speak for the part of the proposed pipeline route within Jikilaruwu sea country. 512 In his responsive statement, Simon Munkara said that women, like men, had an important role in Tiwi ceremonies. He explained that women sung, danced and participated in ceremonies and had cultural responsibility for keeping song lines. Simon Munkara said that the role of women in culture was evident in old photos that depicted women participating in ceremony and in the work done to record song lines at the Patakijiyali Museum. He said that Maggie Kelantumama, a senior Jikilaruwu woman, had recorded the full meaning of the song lines and was the voice on some of the recordings at the museums.

Cross-examination of Simon Munkara 513 In cross-examination Simon Munkara acknowledged that he was an "up and coming leader" and confirmed that that meant he was still developing as a leader. He named leaders of the Jikilaruwu clan that were more senior than him, including Danny Munkara, John-Louis Munkara, Mario Munkara, Eulalie Munkara, Magdeline Kelantumama, Molly Munkara, Marie Frances Tipiloura and Ancilla Warlapikimayuwu Kurrupuwu. 514 Simon Munkara acknowledged that he should have consulted with Jikilaruwu people before commencing this litigation, but said he had to do it in a rush. He acknowledged that in the month since the litigation was commenced, he had not discussed the proceedings with other family members or Elders. He acknowledged that a reason he had not done so was that he knew that they disagreed with what he was doing, and that he had not listened to some of the senior clan people in bringing the case as far as it had come. 515 Simon Munkara confirmed that membership of a clan was by patrilineal descent but added that it was possible for a person to join a clan through their mother, by exercising a choice to go with their mother's country. He confirmed that his skin was Pandanus and his totem was the boat. He confirmed that in his statement he had described his totem as "battleship" and said that he had taken his totem through his father and grandfather. 516 Simon Munkara told the Court about a group named Tupamapula, comprised of some family groups that were associated with country at Port Hurd, but who formed a part of the Jikilaruwu clan. 517 Simon Munkara said that Wiraprali Beach was a special place for the Crocodile Man story. When asked what happened there, he said: A man got speared because of his - he was a greedy person, he didn't share no food, so they had to spear him, so he just crawl down, down to the beach, the water, then he was drifting middle of the - probably not far from where he got speared, the Wiyapurali water, then he change into a crocodile. 518 Simon Munkara was shown pages from a picture book said to be created in 1991 by persons he recognised as Munupi and Jikilaruwu people. He confirmed that the Jikilaruwu people named as contributors were suitably knowledgeable to be able to put down the correct version of the Crocodile Man story. The picture book contained the following passage: Then Yirrikapayi ran and jumped. Hanging from his back were the spears that the people had thrown at him. Then he crawled along the beach, cried out in pain and dived into the sea. After diving into the sea, he then surfaced for air far out in the deep water. … Then all the people came to watch him and, 'You are a crocodile', they all shouted. 519 Simon Munkara first confirmed that the book recorded the story as it was taught to him by his Elders, but then said that it differed. He said that he had been taught that the man had crawled into the water after being speared but had not jumped into the water. He said that the man went as far out into the water as he could and then turned into a crocodile. He agreed that in the story he was told, the people who came and shouted at the man were Jikilaruwu people and they saw that when the man came up for air, he was a crocodile. He confirmed that the place where the crocodile came up was a place that could be seen from the land. 520 When it was suggested to Simon Munkara that the Crocodile Man story went nowhere near where the pipeline was going, he first responded, "I don't believe in that story". He continued: I believe when I go out to my country, stand on the cliff looking out where the pipeline is, and when the sun goes down you see the edge of the water. I believe that's our water. 521 Simon Munkara then said that "the water where the pipeline is, that's still part of Wiyapurali. The Yirrikapayi man, that's his water too". He said he had learned that "from my dad and myself". He confirmed that his father told him that "when the sun goes down, you can see the water, that's how far the crocodile can go". 522 Simon Munkara acknowledged that the Crocodile Man story as displayed at the Patakijiyali Museum was different from what he had been told by his father. He denied that the version of the story involving the Crocodile Man going as far as the horizon was not the traditional version of the story. 523 Simon Munkara said that if the pipeline goes down, the Crocodile Man would get angry "because the pipeline is down in his territory". He said that the Crocodile Man would probably attack either his family or his kids when they go out hunting as well as "the pipeline or whoever works on the big ship." He acknowledged that other activities had occurred in the water, including trawling and fishing that had not necessarily upset the Crocodile Man. 524 Simon Munkara confirmed his belief that the only place on land that was associated with the Ampiji was in Jikilaruwu country at Lake Mungatuwu but said that when he "was a kid" he learnt that Ampiji is associated with deep water as well. He said that the Ampiji went not only through Lake Mungatuwu but into all Jikilaruwu water and that he got that belief "from himself". He said that the only Yiminga place associated with Ampiji was Lake Mungatuwu "and the Jikilaruwu water". When pressed about whether it was all water and whether there was a place he could name he said that he could only speak for his country. When asked how laying the pipeline would interfere with the continuity of the Ampiji story and his belief that Ampiji circulated in Jikilaruwu waters, he said that something could happen, like a big storm. 525 When asked whether there were any Yiminga sites "out there", Simon Munkara said that there probably were and that "it could be where the pipeline is". When asked for traditional names for those places he said that it was "Wiyapurali Water". 526 When asked where there were burial sites in the sea, Simon Munkara replied, "where the pipeline going to lay". He said he had been told that by his father when he was a kid. When asked who is buried there, he said that it could be "Jikilaruwu mob, … could be my ancestors". 527 Simon Munkara confirmed that he had attended the June O'Leary Workshop with Dr O'Leary on 19 June 2023 and that he had invited Molly Munkara to come. He said that he understood the meeting was about sea levels and that he attended because it was "important for my country, water". 528 Simon Munkara seemed reluctant to provide direct answers to straight forward questions about the meeting. The Court reminded him to listen carefully to the questions and to answer them. There was then the following exchange: Q: Mr Munkara, I'm not trying to trick you. I'm really just giving you a chance to explain what you know. A: And can I - and I'm explaining what I know and I'm defending myself. Q: Well, what did you understand was going to happen at the meeting? What was the point of it? A: The point was to attend the meeting. Q: Okay. I will ask you a more direct question. A: Yes, go on. Q: I don't mean to be rude, but was the point of the meeting to find ways to stop Santos from putting the pipeline in? A: Yes. Q: You're nodding your head. A: Hey? Q: You're nodding your head, are you? Yes? A: Yes. I said yes. Q: Can I ask you why you didn't say that straightaway when I began asking you questions about this? A: Because I thought you got me - complicated it. 529 He then confirmed that he went to the meeting because he wanted to stop Santos. 530 Simon Munkara confirmed that he was aware before the June O'Leary Workshop that Dr O'Leary was going to present a map containing information about Jikilaruwu water. He was shown a map produced by Dr O'Leary at the June O'Leary Workshop (MFI-R1). He said that Dr O'Leary explained about "the freshwater" by reference to it. He said that he understood the map to represent what things were like in the ice age. He confirmed that Dr O'Leary had not said anything about the reliability of the map. He denied that Dr O'Leary had said anything about burial places, or about song lines covering any place on the map, or about the Crocodile Man and Yiminga sites. When asked whether anybody else had said anything about any one of those things, he refused to answer the question. 531 When asked whether a lawyer from the EDO was the first to mention anything about Crocodile Man at the meeting, Simon Munkara said he could not remember. He said that the only thing he could remember about the meeting was that he had been shown the map. 532 Simon Munkara agreed that nine of the 12 witnesses called in his case had attended the meeting. He was non-responsive to questions about the idea of the pipeline interfering with song lines having first been raised in the meeting. 533 Simon Munkara acknowledged that he had three opportunities to consult with Dr Corrigan. He explained that he did not avail himself of those opportunities because he was busy with work commitments. He acknowledged he did not attend either of the boat trips arranged by Dr Corrigan, but said that he sent his family members. 534 Simon Munkara said that he did not remember environmental assessments and consultations that had been undertaken by ConocoPhillips in 2018 for the purposes of the initial proposal for the Barossa Project. He confirmed that his father, Danny Munkara, would have been an appropriate person to meet with, as were (without being exhaustive) Simon Peter Munkara, Vernona Munkara, John Angelo Munkara, Anna T Munkara, Colin Kerinauia. He agreed that those names had been identified by the Tiwi Land Council as the right people to be consulted about the environmental impact of the Barossa Project and that they were the right people to consult. The following exchange then occurred: Q: I want to suggest to you that nothing emerged from that consultation about the areas that are now proposed for the pipeline during the course of that environmental assessment. Does that surprise you? A: Yes. Q: I want to suggest to you that that's because the current concerns all come out of the meeting on 19 June and they don't come out of Tiwi tradition. That's right, isn't it? A: Yes. Q: Yes? A: Yes. 535 Simon Munkara then denied a proposition that it was the meeting with Dr O'Leary that triggered him and other people at the meeting to use Tiwi tradition and ideas of Dreamings affecting the area west of Bathurst Island to try to stop Santos.

Valentine Intalui 536 Valentine Intalui is a Jikilaruwu clan director and community leader for Wurrumiyanga, where he has lived his whole life. His mother's country is Jikilaruwu and his father's country is Arnhem Land, but he prefers to go with his mother's side because she brought him up. He speaks for Jikilaruwu country. He has three children who are Jikilaruwu. His totem is Jurrunga, the buffalo, and his tribe is Wantarranungi, the sun. He represents Jikilaruwu on the Tiwi Land Council and participates in ceremonies such as funerals and the Pukumani ceremony. 537 Valentine Intalui said that it was important that cultural stories were only spoken about by people who are from the country to which those stories relate. Valentine Intalui said that he and Simon Munkara can provide that information in relation to Jikilaruwu land to the west and into deep water, but they could not speak for other country and did not interfere with other clans' decisions. He said that they respected members of other clans and knew where the boundary is between their land and his clan's country. 538 In his responsive statement, Valentine Intalui said he was concerned about members of other clans stating that the pipeline would not affect song lines, Yiminga and burial sites in Jikilaruwu country. He said that other clan group members within the Tiwi Land Council should seek permission from the Jikilaruwu clan group if they wanted to have their say about Jikilaruwu country, and that it was a matter of respect. 539 Valentine Intalui said that sea country and the water were extremely important to his people. He said that Tiwi people were connected to whatever lived in the water through the song lines. Valentine Intalui said that there were burial grounds on Jikilaruwu country all the way along the coastline. He said that Tiwi people were living on the land under the water and there would be burial sites there, too. He said, "you cannot put something on top of a sacred site on the land or a burial ground, then it's the same in the sea: you can't put a pipeline on something important under the sea". He said that Tiwi people did not think of boundaries like lines on a map but knew where their clan's country and other clans' country were. 540 Valentine Intalui said that there was a song line called Wiarprali about a Crocodile Man, Jirakupai, who lived in the sea. He said that the song line was connected from Cape Fourcroy to the ancient freshwater area that is now under the sea and remained in that water today. He explained that Jirakupai was a Tiwi person, but he was selfish and did not want to share his land with the other tribes, so they speared him. Valentine Intalui said that after being speared, the Crocodile Man "went to the closest water, the old freshwater lake, and became a crocodile". He said that at the end of the story, the Crocodile Man learned to be generous and provided for Tiwi people, he left food in the sea and oysters on the coastline that people come to collect. Valentine Intalui said that the "songline for Jikilaruwu goes from the land to the sea. And the turtle and whatever lives in the sea goes into the songline." He said that he called out to the Crocodile Man when he went swimming out there in the water and that the Crocodile Man "keeps us safe". 541 Valentine Intalui said that Jikilaruwu people occupied Jikilaruwu sea country before the water came up and when the water covered the land, the Dreamtime story came alive. He said that the Crocodile Man would be angry if a pipeline was laid between Cape Fourcroy and the ancient freshwater in Jikilaruwu sea country. He said that if the pipeline was built and brought poison into the sea, the Crocodile Man would no longer be generous and there would be an end to hunting in the sea off Cape Fourcroy. He said he believed that the pipeline would disconnect Tiwi people from Jirakupai, breaking the song line and their connection to sea country and their ancestors. 542 Valentine Intalui said that Ampiji was very important to Tiwi people. He explained that Ampiji lived in different places all around the Tiwi Islands and in the sea. He said that Ampiji created all the waters on the Tiwi Islands and was the mother of the Tiwi Islands. He said that the senior women of the Jikilaruwu clan knew the Ampiji story best. 543 Valentine Intalui said that his area is Lake Mungatuwu on Jikilaruwu country. He said he had a small house close to the lake where his grandmother's Dreaming lived. He said that he and his family would go for visits, hunt, camp and spend time there. He said that when he was out there, he felt very blessed and connected to the land, Ampiji, the sea around the land and his Dreamtime story of Jirakupai. 544 Valentine Intalui said that he went out in a boat with Dr Corrigan in June to where the pipeline would be laid and he had the feeling that he was in his country. He told Dr Corrigan that something was in the water and that there were Yiminga at that place. 545 Valentine Intalui described Yiminga as a spiritual concept, something that you felt, that talked to you and protected Tiwi people. He said that it was hard to describe, and that Tiwi people believed that when they passed away, they see it, but for now, they cannot. He said that there were Yiminga that go all along Jikilaruwu country on land and in the water. He said Yiminga was a system that worked through the Tiwi people, the sea, the Dreamtime story, Ampiji, bush medicine and the traditional food that they hunted. He said that Yiminga protected culture and went along to each generation. He said that Yiminga meant a lot to the Tiwi people and that everything they believed in would be stopped if Yiminga is stopped. He said that Yiminga can be dangerous if disturbed. 546 Valentine Intalui said he believed that if the Tiwi people did not care for country or if something disturbed it, something very bad would happen, such as a cyclone, storm or tsunami. He said that the land and water were important to Tiwi people and they had a duty of care to look after them. 547 Valentine Intalui said he knew that Santos had the Wessex Report for months before they shared it with the Tiwi people, which he said was disrespectful. He said he believed the Wessex Report showed Santos what Tiwi people already know, that there is something out there. He said that the potential archaeological sites should be investigated and were powerful evidence of Tiwi ancestors. He said that Tiwi people would be willing to speak to the archaeologists about what they might find. 548 Valentine Intalui said that Dr Corrigan's report was hurting Jikilaruwu people. He said that Dr Corrigan was misleading and disrespecting Tiwi people and was creating resentment. Valentine Intalui said that he attended a meeting in Wurrumiyanga on 23 August 2023. He said that the meeting should not have been for the whole community as only Jikilaruwu people could speak for the Crocodile Man story; people from other clans do not have the authority. 549 Valentine Intalui said that Dr Corrigan got Yiminga wrong and that Tiwi people told him that Yiminga is in the sea. He did not agree that if Tiwi people were with the Santos construction people it would protect Yiminga; he said it did not work like that. He further disagreed with Dr Corrigan that the pipeline would be protected if people called out to Ampiji. He said he knows that it is wrong to put the pipeline in the proposed route because "We called out to Ampiji and she told us it is wrong to put it there. Ampiji is against the pipeline." 550 Valentine Intalui said that something very bad would happen if the pipeline was put in. He said that Tiwi people would get sick, everything would be spiritually poisoned and Ampiji might stop protecting the Tiwi Islands. He said that the pipeline would damage Yiminga and the whole system of Tiwi culture. He said Tiwi people would lose all connection to their spiritual beliefs. He said that installing the pipeline would open the door for disaster and break his spirit and the spirit of others.

Cross-examination of Valentine Intalui 551 In cross-examination, Valentine Intalui confirmed that he was an Elder of the Tupaganpila group within the Jikilaruwu clan, as were his cousin, his father, and Magdalen Kelantumama. 552 He confirmed he had been shown maps at the June O'Leary Workshop and that Dr O'Leary gave information about "the look of the place" thousands of years ago. He said that the map was used to "explain and give us a clear picture of what the land looked like back then" and "possibly of, yes, there were people occupied this area because of the water". 553 Valentine Intalui said that he had been invited to attend the meeting because he represented Jikilaruwu as a Tiwi Land Council director. He said that others had been informed "by word" about the meeting. He named some people he had told but was in some respects vague in responses to questions about any personal involvement he had in informing others, saying, "they knew" and "everyone knew". 554 Valentine Intalui said that maps showing how the land was thousands of years ago were not new information. He said that he "knew it was land on deep water" but was not asked how he knew. He said that he believed his ancestors had given a callout to bring Dr O'Leary on board so that he could make non-Tiwi people understand. He said it was good to have non-Tiwi people involved in the discussion so that there could be a better understanding of the pipeline. He acknowledged that he had that understanding before the meeting, and that he considered it important to have that better understanding because he already had a wish to stop the pipeline. 555 Valentine Intalui confirmed that it was the EDO that approached Jikilaruwu people and that they had explained about Dr O'Leary and the work that he does, and that was what had led them to bring Dr O'Leary to speak with them. 556 Valentine Intalui confirmed that the people who were at the June O'Leary Workshop were there because they had already indicated that they did not favour the pipeline going in as planned. He said that Dr O'Leary had said that there was the "potential of land" in Jikilaruwu waters and freshwater below that, so it was highly likely that there were people occupying that area. He said that Dr O'Leary had not mentioned anything about Dreamings or song lines. He said that the Jikilaruwu people had told Dr O'Leary what they knew about the song line. 557 When asked whether he had any belief about how far out song lines connected with Ampiji went, he said, "we don't draw line where the Ampiji goes. It's unmeasurable". He said that his story about the Ampiji in the area of the pipeline was the same as that described by Simon Munkara "and others". The cross-examination continued: Q: In remembering or just now indicating that you knew about that area, what name would you describe that area? A: Jikilaruwu. Q: Just 'Jikilaruwu'? A: Jikilaruwu. Q: So it's all Jikilaruwu. A: Jikilaruwu land, Jikilaruwu water. Q: And Jikilaruwu water goes on forever? A: It never ends. Q: And does it go underneath the water, through the bottom of the floor of the ocean? A: Yes. Q: Right down forever? A: Forever. Q: Okay. And to the sky forever? A: The sky, the moon, everything. 558 Valentine Intalui confirmed that there was only one Ampiji, then described the land that is under the water as "the old Jikilaruwu country". He said that he believed that the land that he lived on today is the "second Jikilaruwu". When asked to describe the area of the ocean where the pipeline is going that is near where Ampiji goes, he said: Your Honour, it's very sacred. Very sacred. It's a holy place. 559 Valentine Intalui was asked to name the place in the sea that was associated with an area said to have burial grounds. He responded again, "Jikilaruwu". He was then asked whether he had come to understand, at the June O'Leary Workshop, that if he could remember song lines linked to places near where the pipeline was going to go, he could maybe stop Santos. He responded, "I've always had that strong understanding growing up. I've always had that strong understanding". 560 Valentine Intalui said that it surprised him that when senior people had met with ConocoPhillips in 2018 they had said nothing about an impact of the kind he was now talking about in this case. He denied that it was his meeting with Dr O'Leary that led him to see interference with song lines as a result of the pipeline and said that the people he was talking to had not recognised the Dreamtime story in the water at that time. When asked what caused the change, he said, "well, it was coming from Jikilaruwu people". When asked which Jikilaruwu people had, between 2018 and 2023, revealed to other Jikilaruwu people the song lines going way to the west, he said, "Jikilaruwu people". When asked to provide names, he referred to Simon Munkara's father and then said "I think nearly all of them. Pretty sure".

Walter Kerinauia 561 Walter Kerinauia is a traditional owner of Wurrumiyanga and an Elder of the Mantiyupwi clan. He is a board member of the Aboriginal Areas Protection Authority (AAPA) and has responsibility in that role for the protection of Tiwi sacred sites. He said that protection of Tiwi sacred sites and Tiwi culture was very important to him. 562 Walter Kerinauia said that he was the "head Culture Man and Ceremony Man for all of the Tiwi Islands" and in that role was the leader for the Tiwi ceremonies and funerals. He said that he holds that knowledge and teaches it to others. He said that he was previously a trustee of the Tiwi Land Council for Mantiyupwi for about 20 years. 563 Walter Kerinauia said that he had authority to speak on behalf of Mantiyupwi clan and for the whole of the Tiwi Islands because of his position in the community. He said that because of his position as head Culture Man he knows the sacred sites and the song lines. He said that he made the decisions concerning cultural ceremonies. 564 Walter Kerinauia said that there are no sacred sites or song lines in the ocean where the pipeline was to go. He said that there was a sacred site or "Imunga" at Rocky Point on the coastline, named Buffalo Rock. He said that that site was on the land and would not be affected by the pipeline out at sea. 565 Walter Kerinauia referred to the Crocodile Man story on Cape Fourcroy and to another crocodile near that country referred to as King Elvis. He said that the pipeline would have no effect on them. 566 Walter Kerinauia said that Ampiji came from Arnhem Land and rested at Lake Mungatuwu, an inland freshwater lake. He said that was a special place. He told a story of a man who took a water lily from the lake, disturbing Ampiji, making him feel unwell and causing it to rain for days. He said that the rain stopped when the man returned the water lily to the water. 567 Walter Kerinauia said that if you take anything from the lake, Ampiji could be disturbed, but she would not be disturbed by the pipeline. He said that Ampiji did not travel out to the ocean but stays in one place at the lake. 568 Walter Kerinauia said that there were no burial sites in the ocean. He said that was something that was not taught or learned as a part of Tiwi culture. 569 Walter Kerinauia said that he was not concerned about his culture being affected by the pipeline, and that it would not affect anything culturally. He said that the pipeline should go ahead because it would attract investment in the Tiwi Islands for better roads, houses, cars and planes. He said he supported the pipeline because he wanted generations to benefit in the future.

Cross-examination of Walter Kerinauia 570 In cross-examination, Walter Kerinauia confirmed that his skin is Pandanus, and that skin groups were a part of Aboriginal kinship affecting things such as who one could marry and who one should avoid. He confirmed that Mantiyupwi country was on the southern parts of both Bathurst and Melville Islands, and also incorporated the Vernon Islands. He confirmed that all of the clans on the Tiwi Islands supported each other, but that it was also important that members of one clan respected the country of another. 571 Walter Kerinauia confirmed that in addition to the Tiwi Land Council there were separate independent Aboriginal Corporations on the Tiwi Islands managing the land for the different clans, and having their own directors from the specific clan and their own policies and procedures. 572 Walter Kerinauia did not wholly accept the proposition that only members of one clan could speak for particular land and particular sea. He said "We all share. Share the land, share the sea". He later referred to shared ceremony. He did not wholly agree that there were some parts of the land and the sea that were more special for certain clans. He did accept that there may be some sacred sites for one clan that another clan didn't know about. He also acknowledged that there were some stories that might be special to some clans. From time to time in the course of his cross-examination he emphasised again that "we all share". 573 Walter Kerinauia agreed that Molly Munkara, Marie Frances Tipiloura and Maggie Kelantumama were Jikilaruwu Elders having cultural authority for Jikilaruwu. 574 Walter Kerinauia acknowledged that he was a member of the AAPA, and that its job was to protect sacred sites for the Northern Territory. He said that that task was ongoing and agreed that there were lots of sacred sites that were not on the register yet. He agreed that the role of the AAPA was limited to the Northern Territory and did not extend to Commonwealth waters. 575 Walter Kerinauia confirmed that Ampiji was special for Tiwi people. He said that there was just one Ampiji, that it was on Jikilaruwu country and that it lived in Lake Mungatuwu. He did not agree that that Ampiji lived in the sea or that her job was to protect the sea. He did not agree that people called out to her in the sea, nor did he agree that people had seen her in the sea. He confirmed that he had heard that the Ampiji connects the freshwater lake on Jikilaruwu country with the freshwater source out at sea. However, when asked to reflect on that evidence, he denied that he had heard a story about freshwater going under the ground. He said that he had not heard stories of people digging at the low-tide mark to find freshwater on Jikilaruwu country, and said that he had not heard people talking of water coming from under the sea, or rivers under the sea. He denied that he had heard any story about "Mother Ampiji creating the islands". He said he had not heard that the Vernon Islands were once part of Tiwi, or part of the same land, and that they had become separated by water. He said he did not agree with that. 576 Walter Kerinauia confirmed the version of the Crocodile Man story given in his witness statement. He agreed that there was nothing special about that crocodile, and said that there were no other stories about Crocodile Man. 577 Walter Kerinauia agreed that Maggie Kelantumama was an important Elder for the Jikilaruwu. He said he was aware that Maggie Kelantumama had translated a book in 1991 about the Crocodile Man. He denied that he had heard the Crocodile Man story as told in that book. 578 Walter Kerinauia agreed with the proposition that "you want to do the right thing by Santos so they do the right thing by you". He denied talking to Santos or anyone else about the kind of support Santos might give to him or the Tiwi people. The cross-examination continued: Q: And did you think that if you said things that Santos liked in your statement, they might invest in the Tiwi Islands? A: Yes. Q: And did that affect what you said in your statement? A: No 579 Walter Kerinauia acknowledged that he was aware that Stanley Tipiloura had a job with Santos. When asked whether he thought that if he said things that Santos liked in his statement, there might be jobs for him, he said, "Yes". When asked whether that affected what he had said in his statement, he said, "No". 580 Walter Kerinauia said that he signed his witness statement when he was at the Novatel Hotel in Darwin. He said he had first had a telephone conversation with somebody about its contents and that it was printed for him when he arrived at the hotel. He first denied that his witness statement contained information about ships in the ocean and trawling, but did recall that content when it was read to him. He denied that the "story" in his statement about trawling and fishing "came from Santos". He denied that Santos had told him that fishing and trawling were things he should be worried about. He denied knowledge of talk on the Tiwi Islands about Dr Corrigan saying there had been trawling out at sea. 581 In re-examination, Walter Kerinauia said that there were two stories of creation. He told a creation story about brothers, Purukuparli and Kunaniyi.

Kaitline Kerinauia 582 Kaitline Kerinauia gave evidence together with Amy Munkara and Eulalie Munkara. 583 Kaitline Kerinauia is 30 years old and lives in Wurrumiyanga on Bathurst Island. She denied ever hearing of any burial sites in the sea. She said that nobody has ever told her anything about that. 584 Kaitline Kerinauia said that she heard of the Crocodile Man story that went along the coast of the Tiwi Islands and into a cave at Cape Fourcroy near the big white dome. She said that she did not think that any bad things would happen to the Crocodile Man story if the pipeline is put in place. 585 Kaitline Kerinauia said that there was only one Ampiji, at Lake Mungatuwu, and that this Ampiji did not travel into the deep water. 586 Kaitline Kerinauia described Yiminga as "a feeling we have, in our heart". She said that she did not think that the pipeline would affect Yiminga. 587 Kaitline Kerinauia said that she had seen a lot of ships, fishing boats and trawlers in the seas off the Tiwi Islands, but did not feel that they harm her culture or spiritual belief. She said that she was not concerned about Santos building the pipeline on the sea bed and does not think that there would be any negative impacts for the Tiwi people. She said that the pipeline would be a good thing for the future of the Tiwi Islands, and that it would hopefully see some investment in the community from Santos as a result.

Cross-examination of Kaitline Kerinauia 588 In cross-examination, Kaitline Kerinauia confirmed that she is from the Mantiyupwi clan and that her skin is pandanus. She agreed that cultural authority came from the land. She said that she learned song lines through Elders of the clan, and she had got that from her grandfather and uncle. She denied that a person from the Mantiyupwi clan could not tell people from the Jikilaruwu clan what their song lines are. She said, "We're all sharing - like Walter said, we all share the song lines and culture". She agreed with the evidence of Amy Munkara about the cultural significance of ceremonies involving all of the clans on the Tiwi Islands at which the clans danced their different song lines. 589 Kaitline Kerinauia said that she signed her statement at the Novotel Hotel in Darwin and that she signed it in the company of two people otherwise identified in the evidence as lawyers from Santos. She said that she had telephone conversations about the preparation of the statement before she came to Darwin, and that she had done more work on the statement on the first day after arriving in Darwin, whilst in the same room as Eulalie Munkara and Amy Munkara and in the company of the lawyers. 590 Kaitline Kerinauia was questioned about the similarity of words in her statement and Amy Munkara's statement concerning the presence of ships and fishing trawlers in the sea. When asked why she included the topic in her statement she said, "I see them there all the time when I go out for hunting". When it was suggested that it was lawyers from Santos who first suggested the issue of fishing boats to her, she said, "Can't answer that", but was not pressed on why. 591 Kaitline Kerinauia denied ever hearing about a company called Wessex Archaeology. She confirmed that lawyers from Santos had not mentioned the company. She confirmed that she had not previously been made aware of the conclusions in Wessex 1. She then said that she had spoken with Santos but could not remember whether they had told her about Wessex 1. 592 Kaitline Kerinauia did not understand a course of questions about whether she had any knowledge of Simon Munkara asking Santos for a copy of Wessex 1. When asked whether she thought there should be a meeting of her clan to discuss the Wessex Report before Santos was allowed to build the pipeline, she said, "I can't answer that". 593 Kaitline Kerinauia said that Danny Munkara was a Jikilaruwu Elder who is respected by the Mantiyupwi clan. She said that she had seen him at ceremonies but could not recall the role that he performed. 594 Kaitline Kerinauia confirmed that Molly Munkara and Ancilla Kurrupuwu are Jikilaruwu Elders who have cultural knowledge. 595 She confirmed that she knew Stanley Tipiloura and that he is employed by Santos. She said she knew that he is a witness in the proceedings.

Theresa "Amy" Munkara 596 Amy Munkara is a Jikilaruwu woman from Wurrumiyanga on Bathurst Island. Her totem is the crocodile. 597 Amy Munkara said that she knew of song lines on the land but had never heard of any stories or song lines extending out into the water. She said that she was aware of burial sites on the land but had not heard of any in the sea. 598 Amy Munkara said that she knew about the Crocodile Man story. She said that the Crocodile Man lived at Cape Fourcroy, that he stayed near the shore in a cave and did not go out into the sea. She said that the Crocodile Man would not care about the pipeline. 599 Amy Munkara said that according to her stories there was only one Ampiji, a freshwater Ampiji that lived at Lake Mungatuwu. She said that she did not believe that Ampiji would care about the pipeline. 600 Amy Munkara described Yiminga as follows (at [12]): Yiminga is heart. It means tribe. Like a totem, a sun, a tribe. It is a big concept. It is the feeling of the heart. Yiminga also refers to sacred places. The pipeline won't affect Yiminga. … 601 She said that she had seen a lot of ships, fishing boats and trawlers in the sea off the Tiwi Islands and she did not feel that they harm her culture or spiritual beliefs. She said she was not worried about the pipeline on the sea bed because she did not think it would have negative impacts for the Tiwi people. She said that she thought that installing the pipeline would be a good thing for the younger community and would result in investment in the community.

Cross-examination of Theresa "Amy" Munkara 602 In cross-examination, Amy Munkara agreed that cultural authority came from the land. Amy Munkara said that cultural leaders of the skin group talk about song lines, and that she had learned that from her grandmother. She said that somebody from the Mantiyupwi clan could tell a person from the Jikilaruwu clans about Jikilaruwu song lines. She continued: Because we are all Tiwi people. We all live in one - the Tiwi people. We all share. We all come to every ceremony from different clans when it comes to setting up a burial and ceremony. … Not only the Jikilaruwu clan, but from different parts, our clans come together. … The song lines, the dance. Yes. 603 Amy Munkara confirmed that there were different crocodile song lines between the different clans, and that the different clans brought different song lines and dances to the big ceremony. She confirmed that the ceremonies were culturally significant to the Tiwi people. 604 Amy Munkara said she had signed her witness statement at the Novotel Hotel in Darwin in the company of her mother, Eulalie Munkara, her sister, Kaitline Kerinauia, and lawyers from Santos. She said that the lawyers had given her information about the pipeline before she signed the statement and shown her a map. She said that she was told that the pipeline "is far" and "in the middle of the water". She said, "It is really far out from Jikilaruwu". 605 When asked whose idea it was to include the topic of fishing boats and trawlers in her statement she said, "The three of us". When asked why she thought the topic of fishing boats and trawlers was something that needed to go into her statement, she said, "Because it doesn't worry me. It doesn't worry me about the ship. What is in the sea doesn't affect me, doesn't worry me". The cross-examination continued: Q: … If I was to say 'Hey, was it [Santos lawyers] who was the first person to come up with the idea of talking about fishing boats', what would you say? A: I would say yes. Q: They were the first people? A: Yes 606 Amy Munkara denied ever hearing about a company called Wessex Archaeology. She said she could not remember if lawyers from Santos had mentioned the company. She confirmed she had not previously been made aware of the conclusions in Wessex 1. However, there was then this exchange: Q: … how do you feel about being asked to provide a statement in this proceedings without being told what it was that Wessex found in their report? Do you think that's fair? A: Yes. Q: You think that is fair? You don't want to learn about the report before you provided your statement? A: No, I did learn about the report. Yes. Q: Yes. When did you learn about it? A: I can't remember the day. Q: Who told you about it? A: Can't remember. 607 When asked whether she thought that Santos should have to ask the Tiwi Islanders what they thought of Wessex 1 before the pipeline was built, she said "yes". She continued "Especially the Jikilaruwu clan. That is why we've been talking about the Jikilaruwu clan". She went on to say that Santos needed to ask the whole Jikilaruwu clan, and that Munupi, Wurankuwu and Malawu people should also be consulted. She confirmed that Santos had not consulted with a "Jikilaruwu clan meeting" to discuss Wessex 1, and agreed that Santos should have to call a Jikilaruwu clan meeting so that all Jikilaruwu people could discuss Wessex 1 before the pipeline was built. 608 Amy Munkara denied that Danny Munkara was an Elder having cultural authority to speak about Jikilaruwu song lines. When asked who did have cultural authority to speak about the song line she said "everyone". She denied that Marie Frances Tipiloura was an Elder and said that the only person she knew to be a Jikilaruwu Elder was her mother (Eulalie Munkara) who was the oldest person in the Jikilaruwu clan. However, she went on to name additional Elders, including John-Louis Munkara, Mario Munkara and Magdalen Kelantumama. She confirmed that Magdalen Kelantumama had cultural authority to speak about Jikilaruwu song lines, but then said that she would not listen carefully to what Magdeline said because she would listen to her mother instead. She said, "I don't sit with them and talk about cultural things". The cross-examination continued: Q: … The reason why you initially said Maggie had cultural authority but … now you have changed your mind is because you have just remembered that Maggie gave evidence for Simon. Is that why? A: Yes. Q: Is that why you changed your mind about whether she has cultural authority? A: No, she has. Q: She does have cultural authority? A: Yes. I don't know. 609 Amy Munkara confirmed that Molly Munkara and Ancilla Kurrupuwu were Jikilaruwu Elders who have cultural knowledge. 610 Amy Munkara confirmed that she knew Stanley Tipiloura and that he was employed by Santos. She said she had not spoken to him about his job but was aware that he was a witness in the proceedings. 611 In response to a series of questions about the role of women in Tiwi society, Amy Munkara gave variable responses, at times shaking her head whilst at the same time saying yes, then saying that she did not know the answer, then confirming that she needed time to think about it, then later saying she was not sure. 612 Amy Munkara confirmed that freshwater was important to the Jikilaruwu people and that there was freshwater on Jikilaruwu country at Lake Mungatuwu. After some variable responses, Amy Munkara confirmed that there was freshwater at other places, naming "Kokiniyi". When provided with a map of the Tiwi Islands and asked to markup all places on Jikilaruwu country where there was freshwater, she said there was no freshwater, then said that Lake Mungatuwu was the only place. She said she had not heard about freshwater bubbling up on the beaches when the tide went out on Jikilaruwu country. When asked again whether freshwater was important to Jikilaruwu people she said "No" then "I don't know" then "Yes". 613 Amy Munkara described Lake Mungatuwu as a sacred place. When asked why, she said, "It is just the freshwater. That is where the Ampiji is". She said she had learned stories about where the Ampiji lived from her mother, her grandmother, and her stepfather. She said that she was told that there was only one Ampiji, and that it lives at Lake Mungatuwu. When asked what she was told Ampiji does at Lake Mungatuwu, she said "Nothing. That is their heritage. That is their place, yes." The cross-examination continued: Q: … what is the story of Ampiji? A: It is just Ampiji that lives there. Q: And what was the story you were told about Ampiji? A: That is the story I was told about the Ampiji. There is the only one, Ampiji, and it lives there - Lake Mungutuwu. Q: Yes. But is there a song line about Ampiji? A: I don't know. Q: No? A: No. Q: Can't recall? A: Can't recall. Q: You can't recall what you mum told you about Ampiji? A: No. 614 Amy Munkara denied that any other Jikilaruwu person had talked about the Ampiji story when she was preparing her witness statement. She confirmed that other members of the Jikilaruwu clan had told her that Ampiji was a caretaker of Jikilaruwu land. When asked whether those same people had told her that Ampiji was a caretaker of the Jikilaruwu sea, she said "Don't know", then "Don't know about that". 615 Amy Munkara said she had not heard of Dr O'Leary. Amy Munkara was shown a map prepared by Dr O'Leary depicting what was said to be blue water. She was asked whether, if the blue water was a freshwater lake, that information would be important to her as a Jikilaruwu person; she said, "No". When asked why not, she said that it was a long way from Jikilaruwu. 616 Amy Munkara confirmed that she had heard the story of the Crocodile Man by her father and stepfather. She confirmed that she had been told the story and that she had seen it depicted at a museum and in a book. She said she had not attended ceremonies where the crocodile story was sung. She told the story in the following way: He has been speared by the Tiwi people, and he turned into a crocodile. Then he just vanished in the sea 617 In re-examination Amy Munkara said that she had been to ceremonies where different crocodile song lines were danced. 618 At times Amy Munkara asked for a question to be repeated because she did not understand it, after providing a response to it. She said, "[d]idn't quite understand that" and "[s]ay it again" (twice) or "[g]et me confusing now". On other occasions, she gave answers to questions that made it plain that she did not understand them. At other times, she changed her responses. For example, when asked what was the last time a Jikilaruwu person had told her the Ampiji story she responded, "short time", then said she could not remember who told her. When asked "[e]ven though it was a short time ago?", she said "[p]robably long time ago, yes".

Eulalie Munkara 619 Eulalie Munkara is a 72-year-old Elder and traditional owner of the Jikilaruwu clan which she said comes from her father's side. Her mother is a member of the Munupi clan. She is the aunty of the first applicant, Simon Munkara. Her totem or Dreaming are the boat and her skin group is the sun. 620 Eulalie Munkara said that she had heard of the Crocodile Man story. She said that the Crocodile Man got speared and turned into a crocodile. She said that he did not travel into the deep ocean, but stayed close to the shore. She said that the pipeline would not affect the Crocodile Man story because "there is nothing out there where the pipeline is supposed to go". 621 Eulalie Munkara said that there is one Ampiji who stayed in the freshwater lake at Lake Mangatuwu. She said that Ampiji did not go into the sea and that the pipeline would not affect her. 622 Eulalie Munkara said that there are two types of Yiminga, one being a feeling and the other being a sacred place. She said that there was a sacred place on the land at Rocky Point which would not be affected by the pipeline. 623 Eulalie Munkara said that she had not been told about any burial sites in the ocean nor had she been told of any song lines, stories or sacred sites in the ocean where the pipeline was to go. 624 Eulalie Munkara said that she felt good about the pipeline and wanted it to go ahead. She referred to another pipe to the south-west of the Tiwi Islands that had been there for a long time and said there had been no issues with it.

Cross-examination of Eulalie Munkara 625 In cross-examination, Eulalie Munkara confirmed that she was related to Danny Munkara through her grandfathers. She confirmed that he had cultural authority to tell the Jikilaruwu song lines. Then said, "yes". Then said, "no". 626 Eulalie Munkara denied that Marie Frances Tipiloura was a Jikilaruwu Elder but agreed that she had cultural knowledge for the Jikilaruwu people. She confirmed that Molly Munkara was her "cousin sister" and that both Molly Munkara and Ancilla Kurrupuwu had cultural knowledge for Jikilaruwu people. She agreed that women had cultural authority to talk about the song lines. 627 Eulalie Munkara agreed that freshwater was important to the Jikilaruwu people and that it was on the beaches. When asked where the freshwater on the beach came from, she said "It comes down through the sea". She said that there was freshwater in Lake Mungatuwu and also in a running stream from the bush to the beach that washed into the sea. She said that her father and grandfather had taught her where the freshwater goes. The cross-examination continued: Q: Can you tell the court the story of Ampiji? A: Ampiji stays in the lake. Ampiji in Mungutuwu Lake. Q: And what is the Jikilaruwu story for Ampiji? A: Ampiji stays there at the lake. 628 Eulalie Munkara agreed that Ampiji is the caretaker of Jikilaruwu land, but when asked whether Ampiji is the caretaker of the Jikilaruwu sea, she replied, "No". She went on to say that if you pull the flower out of the lake, Ampiji gets wild. 629 When asked where Ampiji came from, Eulalie Munkara said, "She is staying underwater - underwater in Mungutuwu Lake". There was then this exchange: Q: Did someone tell you to tell this court that Ampiji is always at Lake Mungutuwu? A (through the interpreter): Yes. A: Yes. Q: Who told you to tell the court that? A (through the interpreter): Our father. A: My father and my grandfather. Q: Who told you - did someone tell you to tell the court, this judge, that Ampiji doesn't leave Lake Mungutuwu? A (through the interpreter): She is saying again that father, when father said Ampiji doesn't go out. Q: I will ask one more time, Eulalie, and you must listen to my question. A (through the interpreter): She doesn't understand. 630 Eulalie Munkara said that her mother and father told her the story of the Crocodile Man when she was young, and that she told the story to younger Jikilaruwu people. She gave a version of the Crocodile Man story involving a man who went to the sea and turned into a man. When asked "where did the Crocodile Man go", she said "He is dead. He is gone to sea". She later repeated that the Crocodile had died. She later said, "they shoot the crocodile and he turned to a man".

Brian Dixon Tipungwuti 631 Brian Dixon Tipungwuti is a 40 year old who lives in Wurrumiyanga on Bathurst Island. He is a member of Wurankuwu clan and his father and grandfather were both from the same clan. His totems are the buffalo and the yowie. 632 Brian Tipungwuti said that his father brought him into a position of leadership in the clan in 2005. He said that he had been on the Tiwi Land Council for nearly 20 years and had recently been elected as a trustee for his clan. 633 Brian Tipungwuti said that he was also the chairperson of the Aboriginal Land Trust, which administered an approval process in relation to land on the Tiwi Islands and the surrounding water. He said that he acted as an advisor to Federal Ministers and local government. Brian Tipungwuti said that he was currently the chairperson of the Tiwi Island Cultural Heritage Committee, funded by the Federal Government. 634 Brian Tipungwuti said that his father held positions of leadership among Tiwi Islanders and within Commonwealth Government agencies. He said that his father knew a lot about the country, and told him about the country whenever they travelled, especially on the Tiwi Islands. He said that his father passed away three years ago. 635 Brian Tipungwuti said that he attended a number of consultation meetings held by Santos on the Tiwi Islands. At those meetings, he was shown maps indicating where Santos proposed to build the pipeline. He said "the pipeline will pass in the sea off my country". Brian Tipungwuti said that he had never heard anything about song lines or cultural burial sites off the coast of the Tiwi Islands in the ocean. He said he had never been told about any stories in the ocean. 636 In relation to the Crocodile Man song line Brian Tipungwuti stated: 12. I have heard about a crocodile man songline at ceremonies. I have seen this crocodile. He doesn't live in the ocean, he lives in the swamp and has oysters on his head. I have seen him, I know which one he is, he's a big bugger. He's no humbug he just comes in and goes his own way. He doesn't go out in the ocean. He doesn't go out anywhere near where Santos wants to put that pipeline. This is just a crocodile and we have name for him which is Wiarpralia. Some people call him Elvis because of the oysters on his head. 13. I do not know a songline about a crocodile man that travels out into the sea. If there is a songline, it needs to be recorded under the Aboriginal Land Rights Act. If you can't say what the name is and tell the knowledge about the songline, it does not exist. 637 Brian Tipungwuti said that stories about an Ampiji that lived at Lake Mungatuwu are a true and respected Tiwi Dreaming. However, he said that he had never seen Ampiji in the area around Cape Fourcroy and that Ampiji did not travel out to the sea. He said that Ampiji would not be affected by the pipeline and "will only get angry if someone jumps into the lake where she lives in the freshwater or takes water lilies from the lake." 638 Brian Tipungwuti described Yiminga as a spirit. He said that sometimes the spirit is good, sometimes bad. He said that the pipeline would have no effect on Yiminga "because there is no traditional burial on the site of the pipeline". 639 Brian Tipungwuti described seeing ships, fishing boats and trawlers in the sea of the Tiwi Islands, so many that it looks like "a little city". He said that this had no effect on Tiwi culture. He said that he was concerned about the operation of prawn trawlers and netting. He said that he did not understand why people were concerned about the laying of the pipeline, which would not kill fish, when the sea bed is "getting scraped all the time from prawn trawlers". 640 Brian Tipungwuti alleged that some Tiwi Islanders (including the applicants) were making up stories and could not give details of the sacred sites that they said are out in the sea. Brian Tipungwuti said that his father never told him about a burial site under the water, and that no such site was recorded or had ever been named. He stated (at [20]): I have seen some of the statements that Simon Munkara has been making in the media. They are not true. I am not happy because he is saying this is about him and his family. A lot of the Traditional Owners are not happy, it's not just about him it is about all Tiwis. I am concerned because Simon has no knowledge about the sea, about culture, he knows nothing about it. This also came about from Valentine Intalui. He was saying there's a songline, there's a cultural burial under that water. I have asked him many times and he cannot tell me a name. My father never told me about this, it was never passed down through my ancestors. If it was we would have known about it and know the name. That is where knowledge comes from. 641 Brian Tipungwuti denied that Marie Munkara is a traditional owner. He stated that she had been adopted into Tiwi culture and "she doesn't know". He denied that Antonia Bourke was from the Tiwi Islands. He stated that she was not a traditional owner and had no right to say anything. 642 Brian Tipungwuti continued: 25 It is not right that the Jikilaruwu people are trying to stop something that is good for the people. I spoke to the Santos people and I believe that this project is going to be good for Tiwi people 26 I am supportive of the pipeline project going ahead because the project will not hurt my cultural heritage and I can see that there will be investment in the Tiwi community from this project. I understand how projects like this work and I can see that there will be jobs for Tiwi people in investment from the work Centres wants to do that we can use to make Tiwi people better.

Cross-examination of Brian Dixon Tipungwuti 643 In cross-examination, Brian Tipungwuti confirmed that he is a 40-year-old Wurankuwu man. He said that cultural authority comes down from the father, as it had done so since ancient times. He said there was a difference between cultural authority and government business. He confirmed that he lives in Wurrumiyanga, on Mantiyupwi country. Brian Tipungwuti confirmed that there was a Wurankuwu organisation that was responsible for Wurankuwu to look after their own land, and that each of the other clans had their own corporations for looking after their own country. 644 When asked whether a Munupi man could come on to Wurankuwu country and tell them what to do with their land, Brian Tipungwuti said: … culture, everyone come together. … Then only one people. … At the end of the day, we are all Tiwi people. We only speak one language, and we - we dance the same dreaming as everybody else on the Tiwi Islands. 645 Brian Tipungwuti nonetheless agreed that a Munupi person could not come over to Melville Island and tell him what to do on Wurankuwu country. He agreed that Tiwi Islanders from different clans support each other, but that the land for one clan was special to that clan. He confirmed that the land was special because of special cultural knowledge and song lines for that land. When asked whether there were stories that Wurankuwu people tell other Wurankuwu people, he said, "I have got my own story, and I pass it down to my family". He said that other Wurankuwu people had their own stories. He said, "We are in the same clan, but everyone has their own history and song lines, stories of - of themselves". He said that when everyone went to ceremonial funerals they shared song lines. He said, "we come as one, as Tiwi". He said that he would sing his own song line but did not sing the song lines of other people. He repeated that the song line belongs to him, and that other families' song lines belonged to them. 646 Brian Tipungwuti confirmed that it was the job of the AAPA to protect sacred sites for the Northern Territory. He agreed that that work was ongoing and that there were a lot of sacred sites that were not yet on the sacred sites register. He said that where a family knew that there was a sacred site on the land, they would "go and do that themselves … with AAPA". He said, "The people have to know about it". He agreed that AAPA was concerned with sacred sites in the Northern Territory, but not in Commonwealth waters. The cross-examination continued: Q: … you need a name to put a sacred site on the AAPA registration? A: That is right. … And that site where the pipeline is going to go, that is not a name there, and you just can't make up a name. Q: You can't make up a name? … A: It has got to be passed down from knowledge, from elders, go down to - from grandfather, son to grandson. Q: You can't make up a name, but you can look to the history to found out that name, can't you? A: You can, but if somebody knows about it. 647 Brian Tipungwuti went on to say that if a traditional owner knew of country having a song line or sacred site, he should register it under the Aboriginal Land Rights Act. 648 Brian Tipungwuti said that he was aware of records created by anthropologist John Morris about the Tiwi Islands that were held elsewhere. He agreed that it was good because Tiwi people were finding out about culture, including old names that might have been lost or forgotten. He agreed that he had told Dr Corrigan about the importance of getting the anthropological records back so that they could put names to things and get them on the map. When asked whether you could refer to the research of people like John Morris to look for the names of things, he said "Maybe, if he knows". The cross-examination continued: Q: But what you are accepting, I think, is that sometimes there might not be names for sacred places, but that doesn't mean that they are not sacred or that they weren't sacred in Tiwi culture a long time ago? A: Are you telling me that he got something from our - there? Q: No, I am not talking about that; I am talking generally. You said: He got that history there. And I think you are just talking about Tiwi history generally. And: The Land Council got to get it back so we can put the name on that and get it on the map. And I am asking you if you agree that a Tiwi person might not know the name for something very special, but it might have had a special name that has been lost? A: Everything comes with names, and we know what our things are. Q: Do you disagree with me? A: Yes, I do. 649 Brian Tipungwuti agreed that he had heard the Tiwi story about Mudungkala. He agreed that it was as told by John Morris in the following terms: As Mudungkala crawled about searching for food for herself and her infant children, she carved out the outlines of the Tiwi Islands. During her arduous journey, she carried the children in a bark basket, or tunga, and water flowed in behind Mudungkala to surround the islands. 650 Brian Tipungwuti agreed that before the water came up there might have been more land. He denied that in Tiwi culture there were songs and dances about water coming up. He said, "That hasn't been passed down to me". He said that the story of Mudungkala and her three kids explained how the Vernon Islands were created. In re-examination he confirmed that the Mudungkala story was the creation story for the Tiwi people and that there was no other story coming from a time before it. 651 Brian Tipungwuti said that everybody had crocodile song lines and that they were all different. He said that there were probably 30 -40 crocodile song lines from different families from different clans. He confirmed that his Crocodile story was as told in his witness statement, that the crocodile had always been a crocodile and that there was nothing special about him. He said that he knew a little bit about a man being speared. He said that story had been taught in schools "and not only for one mob of people". He believed that that story was special for all Tiwi people that danced the crocodile "Because everyone sings it and everyone dances it". He said that he did not have to have cultural authority to talk about the Crocodile Man song line. 652 Brian Tipungwuti said that he knew of the Ampiji story, and that it was his grandmother's Dreaming, her totem and her dance. He agreed that his grandmother was a Malawu woman and that Ampiji was down on Jikilaruwu country. He said that the only Ampiji was at the lake, that it sat in one place and did not go anywhere. He did not agree that different clans might have different Dreamings, song lines or stories about Ampiji. When asked whether there was a special Jikilaruwu story about Ampiji, he said: That Ampiji story, like I said, it is for all Tiwi, not only one clan. Just because it lives in that - in that country, it doesn't belong to them; it belongs to Tiwi. That is what people need to understand. 653 Whilst he accepted that there were Elders from the Jikilaruwu clan who had cultural authority to talk about Ampiji, Brian Tipungwuti did not agree that Ampiji belonged to one clan. He described Ampiji as "the protector of the Tiwi Islands". 654 When asked about an Ampiji in the sea, Brian Tipungwuti described it as "that colourful one". He said, "And when rain and you see all that colourful one, that is what they are talking about Ampiji. It is all over the place". He confirmed that that was different from the Ampiji that lived at Mungatuwu. He went on to confirm that he was referring to a rainbow after rain. He said, "we Tiwi people call that Ampiji too". He said that he had not heard any story about a rainbow serpent that was out at sea, nor had he "seen Ampiji come out of the sea". 655 Brian Tipungwuti said that he was the only person who hunted "in that Jikilaruwu area, Malawu area" and that he did not see any traditional owners there. He said that the only people he saw fishing out there were trawlers and non-Tiwi people from Darwin. He said that he saw the traditional owners on the beach, but not in the water. He said that he had told Dr Corrigan about that trawling and fishing. He disagreed that it was Dr Corrigan who had raised the issue of trawling and fishing and that it is something that was directly relevant to think about. He said, "He didn't tell me, like I said. … I seen it with my own two eyes. I seen trawlers there in my time in fishing out there". He denied hearing any exchange at a meeting with Dr Corrigan during which Dr Corrigan was challenged about his brief to enquire into fishing and trawlers. He agreed that he told those at the meeting that it was not right that Jikilaruwu were trying to stop something that was good for the people, that he had spoken to Santos and that he believed that the project was going to be good for the Tiwi people. 656 Brian Tipungwuti confirmed that he had spoken to people from Santos at the presentation. When asked whether they had said anything about investment in the Tiwi Islands he said, "They didn't tell me. I told them what we wanted". When asked what was needed, he referred to roads and cars, and said that people were crying to go back to homeland. He said that he would try to negotiate with Santos for those things. The cross-examination continued: Q: And your hope is that if you work together, if you help Santos they will help you with roads and cars and things like that? A: I am not helping Santos. I am just trying to do the right thing for all Tiwis. … because, you know, we need - we need things. 657 Brian Tipungwuti confirmed that it was his hope that Santos would invest money in the community. He denied ever having said that he was worried about Santos with all of its money bribing Tiwi people. It was put to Brian Tipungwuti that at a meeting with Dr Corrigan on 24 August, he had talked about a lot of people walking out of the meeting on the previous day because they had not been paid for their time. He denied having said, "You see, Santos will think they can bribe people?". The cross-examination concluded with the following exchange: Q: … want to suggest to you that the reason you have given the statement that you have given is that you want to support Santos because you want to see investment in the Tiwi Islands? A: Exactly. Q: I want to suggest to you that you just don't have cultural authority to talk about the Crocodile Man or Ampiji or anything like that? A: Like I said, it belongs to all Tiwi, not only one clan. I don't have to repeat it.

Wesley Kerinaiua 658 Wesley Kerinaiua is a traditional owner of Wurrumiyanga and a trustee on the Tiwi Land Council for the Mantiyupwi clan. He is 39 years old. He is the chairman of the Mantiyupwi Family Trust and the Mantiyupwi Aboriginal Corporation. He is the director of entities operating businesses on the Tiwi Islands and a director of Port Melville. Until recently, he was a member of the Islands Training and Education Board. 659 Wesley Kerinaiua said that he had authority to speak for the Mantiyupwi clan and that before he did, he sat with seniors to discuss the decisions they needed to make. He said that the Tiwi way was to speak with the clan group first, with Elders and senior clan members, before making decisions to move forward together. 660 Wesley Kerinaiua said that he attended consultation meetings held by Santos on the Tiwi Islands concerning the Barossa Project. He said he was confused by some of the things being said by the first applicant, Simon Munkara, and that he did not think that they were true. 661 Wesley Kerinaiua said that in Tiwi culture it was important that Tiwi history is learned from Elders who know the song lines. He said that the Culture Men for the Tiwi Islands were Walter Kerinauia and Richard Tungatalum. He said that they led the ceremonies and the funerals and that he respected them and their knowledge. 662 Wesley Kerinaiua said that he used to go hunting around the Cape Fourcroy area on Jikilaruwu country, but had never been told about any song lines that go out in the sea. He said that the only story is about a ship that sank inside Tiwi waters during the bombing of Darwin. He said that there was nothing outside Tiwi waters and that "Tiwi water is governed by the high water and low water marks". He continued (at [12]): There are no songlines, stories or ceremonies that extend out into the deep water. I do not think there are any burial sites in the water. Not now and not our ancestors a long time ago. 663 Wesley Kerinaiua referred to a map based on information provided by Marie Munkara. He said that Marie Munkara did not live on the island, that he never saw her, and that she was not respected by people on the island because she does not know the Tiwi culture. He said that the map was made up. He expressed his understanding that the sea bed in the vicinity of the pipeline was not underwater thousands of years ago, but said that there was no recording that demonstrates that people were there then, and it was not part of Tiwi history. He said that to suggest it was wrong. 664 Wesley Kerinaiua referred to the creation story from Tiwi Dreaming, Mudungkala, who was a blind lady who rose with her three kids in a basket and crawled across the landscape creating the two islands. 665 Wesley Kerinaiua said that it was important that cultural stories were passed down through generations and told in the correct way. 666 Wesley Kerinaiua said that he had never heard of any song lines that go out in the deep ocean. He denied that there are sacred sites in the ocean. 667 He said that he had never heard of any ancestors being buried on the land that is now under the ocean thousands of years ago when the ocean level was lower. He said that there were no stories in Tiwi culture about there being land where the sea is now. He said that if there were, they would not be Tiwi people as the Tiwi Islands would be connected to the mainland. 668 Wesley Kerinaiua said he knows about the Crocodile Man story. He said the story goes that people got angry with a man, so they speared him and he turned into a crocodile. He said that the pipeline would not affect the Crocodile Man song because he only travelled along the coast from Cape Fourcroy up to Rocky Point. He said: 18. … When they see him they call him Elvis. The crocodile that inspired the story probably died a long time ago, but it's just a story. 19. Nothing bad will happen to the Crocodile Man story if they build the pipeline. 669 Wesley Kerinaiua said that Ampiji stayed at the freshwater lake at Lake Mungatuwu and that she did not move from there. He said that there was one other Ampiji at Rocky Point, the salt water Ampiji, who some people call the dragon. He said (at [20]): Around four years ago they did mining in the Jikilaruwu area, on the land in the sand dune right near the lake where the rainbow serpent, Ampiji, lives. Right next to it. They did a lot of sample work out there. This is Lake Mungatuwu. This is a sacred site. No one from Jikilaruwu jumped up and down about it. The mining company went to the Munkara family and the Munkara family supported them mining the sand dunes. Now they're jumping up and down about something offshore. The sand mining was bad because there was a sacred site right there and the Munkara family let them go ahead. Now they say things about this pipeline where there are no sacred sites. It doesn't make sense. 670 Wesley Kerinaiua said that there were lots of sacred sites around the Tiwi Islands for Yiminga. He said that he believed that the pipeline would not cause problems for the Yiminga as the scared sites are onshore and, therefore, a long way from the pipeline. 671 Wesley Kerinaiua said that he was not at all worried about Santos building the pipeline. He hoped that if the pipeline went ahead, the Tiwi people might start to get job opportunities and other investments in their community from Santos. He said that the route where the pipeline was supposed to go was in Commonwealth water, not on Tiwi land.

Cross-examination of Wesley Kerinaiua 672 In cross-examination, Wesley Kerinaiua confirmed that he is a traditional owner of the Mantiyupwi clan and has lived his whole life in the Wurrumiyanga community. He confirmed that there were some song lines that belonged specifically to the Mantiyupwi clan and that he had cultural authority to pass down Mantiyupwi stories. He agreed that it would be disrespectful for people from a different clan to tell another clan that their stories were wrong, and that only Mantiyupwi people could speak for Mantiyupwi country. 673 Wesley Kerinaiua said that he supported the Barossa Project because he thought that the pipeline would bring benefits to his community, such as dialysis services and education to keep the culture strong. He said that it would lead to investments being made in the Tiwi community. He denied that Santos had told him that. 674 When questioned about what he had said in his statement concerning mining activities happening on Jikilaruwu country, he confirmed that he was aware that the activities had not gone past initial testing, but said that the breaking up of the area had occurred where there was a sacred site and that there was some disturbance of it. He said that if something is endangering a sacred site, "we all have a say on it". 675 Wesley Kerinaiua was asked why he thought that the topic of fishing and trawling boats is relevant to the Barossa pipeline. He confirmed that he wanted that information contained in his statement and said, "Because that - it won't affect nothing". He denied that it was Santos's lawyers who first raised the topic of trawling ships with him in relation to the pipeline, but said that he had raised it himself.

Stanley Tipiloura 676 Stanley Tipiloura is a member of the Wulirankuwu clan who lives in Wurrimuyanga on Bathurst Island. He is 38 year old. He describes his grandfather, Eustace Tipiloura as having been the "culture and law man for the whole of the Tiwi Islands". He said that today the culture and law men for the whole of the Tiwi Islands are Walter Kerinauia and Richard "Hadlee" Tungatalum. 677 Stanley Tipiloura said he was an elected member for the Tiwi Islands Regional Council and the deputy chairman of the Tiwi Land Council. He said that in that role he represented all Tiwi people. He said that he also had authority to speak for his clan. 678 Stanley Tipiloura said that he now works for Santos in a role related to the Barossa Project. He said that he was employed in that role because he is very knowledgeable on matters relating to Tiwi cultural heritage. He said that he presently works as a cultural advisor on a vessel named the Audacia. He explained that this role involved him working with a team that conducted surveys of the sea bed using a camera known as an ROV. He said (at [7]): … We travel 2km/hr and observe the seafloor below where it is proposed that Santos will lay a pipeline. My role is to observe any objects related to cultural heritage matters that show up on the ROV footage. 679 Stanley Tipiloura said that upholding and complying with Tiwi law was very important to him. He said that under Tiwi culture and the Tiwi kinship system, a person's clan group, land and last name came from the father's side, and the tribe name and disciplinary system from the mother's side. He said that women did not have a big role in cultural heritage or keeping song lines. 680 Stanley Tipiloura said that "not long ago" representatives of the EDO came to the Tiwi Islands and spoke with the Tiwi Land Council about the pipeline that Santos wanted to build. He said that the EDO representatives talked about the area of the pipeline previously being Tiwi land that was connected with the Australian mainland and Papua New Guinea. He continued (at [13]): They said that there was a big lake out there in the ocean before and they showed us a map to point these things out. They also said there could be burial grounds out there in the sea, there could be living areas and sacred sites. … 681 Stanley Tipiloura said that the EDO representatives were wrong and that the things they said were offensive to him. He said that he had never heard of any song lines, sacred sites or burial sites that went out into the ocean or near where Santos wants to build the pipeline. He said that there were no song lines or sacred sites along the pipeline route. He said that Tiwi creation stories talked about two islands only, not a big area of land. He said that the creator of the two islands is Mudungkala, who had three children to whom she gave different jobs and responsibilities: Purrukapali, she gave him the responsibility for the land. Purrukapali set the law of the way Tiwi people live today according to the kingship system. Purrukapali to me is like my god and with what the EDO is saying about the creation of the Tiwi Islands, it is like they are spitting on him. What the EDO is saying cannot be verified according to our Tiwi culture. 682 Stanley Tipiloura said that the EDO were talking about sensitive issues to Tiwi people and he was worried. He said they were being disrespectful of his beliefs when they talk over Purrukapali's story. 683 Stanley Tipiloura said that if there were burial sites in the ocean they had nothing to do with Tiwi people because their Dreaming started with two islands. He said that the EDO were using Tiwi culture and heritage to drive their own agenda. 684 Stanley Tipiloura said that he knew about the Crocodile Man song line. He said that the song about the Crocodile Man was created by his great-great-grandfather Jimalura, a Wurankuwu man who grew up around Cape Fourcroy. He said he believed that the Crocodile Man song line belongs to his family. He said that he did not have any concerns about the pipeline affecting the Crocodile Man story. He said that according to the song line, the Crocodile Man did not travel out to sea. 685 Stanley Tipiloura said that there was an Ampiji in Lake Mungatuwu. He said that Ampiji was a rainbow serpent and was Dreaming for some families. He said that he had heard stories from his grandfather about Ampiji living in the lake at Mungatuwu. He continued (at [21]): The pipeline will not make Ampiji angry. She will only get angry if Tiwi people don't call out to her and acknowledge her when Tiwi people have non-Tiwi visitors on the Tiwi Islands. Even though Ampiji stays in the freshwater lake, we must call out to her anywhere in our country when we have visitors to tell Ampiji the visitors are there. Then you will have a good day on country. 686 Stanley Tipiloura said that Yiminga was a sacred site. He said that there were Yiminga at sacred sites on the land at Rocky Point, Jikilaruwu and Shark Bay. He said that all of the Yiminga were on the land, far away from the pipeline, and would not be affected by it. 687 Stanley Tipiloura said that his concerns about the pipeline were environmental but not cultural. He said that he was aware of ships in the water leaking oil and fishing in a way he did not agree with, but he had no concerns about fishing out in the deep water. 688 Stanley Tipiloura said that he went on a boat trip around the Tiwi Islands with Tiwi Elders and Dr Corrigan. He recalled that, on the boat trip, the Elders told Dr Corrigan that there was no cultural heritage in the sea. He said that he had read Dr Corrigan's report published in September. He said that he and the Tiwi Elders had told the truth to Dr Corrigan and that he did not agree with criticisms of that report that had been made by another anthropologist. 689 Stanley Tipiloura said that good things could come from the project for Tiwi people to help them to protect their land and create jobs, and that the pipeline would not harm Tiwi cultural heritage.

Cross-examination of Stanley Tipiloura 690 In cross-examination, Stanley Tipiloura confirmed that he had signed his witness statement in the company of Santos's lawyers while at a hotel in Darwin. 691 He said that he commenced his employment with Santos at the end of October after being contacted by a consultant firm named Kode Blak. He said that he had previous experience and qualifications for working on a boat and was a qualified mariner. He said that he had been contacted because of his certifications and because Santos needed somebody quickly. He said that his job with Santos was for a three-month period and during that time it was his only job. He confirmed that, prior to starting the job with Santos, he was working as an elected counsellor and that he was the deputy chairman of the Tiwi Land Council, positions for which he received payment of $700 a fortnight and a $200 meeting fee for the Tiwi Land Council. He said that he was paid $1,200 per day by Santos. 692 Stanley Tipiloura said that he was initially against the pipeline, "But, you know, there's other pipelines going through - not going through, going past the islands into Darwin". He also referred to an optic fibre. 693 When asked when he first formed a view about the pipeline, he said that people from the EDO had come to the Regional Council (in December 2022). He recalled that the EDO showed him a map and said that it was "part of Tiwi" and that there must have been a big lake there that was a "living area". He continued: That's when I thought, yes … you know, there must have been a living area there. … But then when I went back and thought about it, thought about my creation story … where I was told in school about Yinjara Ratuwati, meaning two islands. Yinjara Ratuwati. And that's when Tiwis start the culture. … That's when Purrukapali … set the law, the system, the Tiwi system. And if we're going back to when it was all one … we weren't here. The Tiwi people weren't - we weren't - because our story started with two islands. That's when I thought, this is talking about different times here. 694 Stanley Tipiloura said that in about the middle of the year he came to think that the pipeline might be okay because there were other pipelines and an optic fibre going past Darwin. He denied anybody else has suggested those things to him. He denied that anybody else had suggested to him that he should rethink what the EDO had said about the Tiwi creation story. 695 Stanley Tipiloura confirmed that the only reason he was against the pipeline in December 2022 was because of what he had been told about Tiwi Islanders living in the area shown in the map. Stanley Tipiloura confirmed that he had heard the evidence given by Brian Tipungwuti about the things that were needed on the Tiwi Islands. He agreed that Tiwi people needed roads and were crying to go back to homeland. The cross-examination continued: Q: And if Santos can help you with that, then it might very well be worth the cost of the pipeline going down, mightn't it? A: Yes. Q: And it's fair enough that Tiwi people get to negotiate with Santos about that, isn't it? A: Yes. 696 The following line of questioning was about whether it was "fair enough" for Stanley Tipiloura to take a job with Santos after he formed his view about whether the pipeline was good for the Tiwi people. In response, Stanley Tipiloura emphasised that he took the job because Kode Blak thought he was the best person to do the job as a cultural advisor. He acknowledged that some Tiwi people thought that the pipeline would hurt their cultural heritage. There was then this exchange: Q: … There are some Tiwi people who think that the benefits of the pipeline, the roads, may be the dialysis machines on Tiwi country, that those benefits don't outweigh the cultural harm of the pipeline? A: Yes Q: ... And so there are different views. A: Different views, yes. 697 Stanley Tipiloura said that when you are talking about cultural heritage, "you need elders that actually sing those song lines". He said that the people you need to speak to about the song lines were Walter Kerinauia Jr and Richard Tungatalum. He said that Richard Tungatalum's grandfather was a chief of Jikilaruwu, who was carrying on the work of "Purrukapali", and that there were only a few people carrying on that work today. He said that Richard Tungatalum was a descendant of Aloysius Puantuiura, that he could speak on behalf of his mother, and that that was enough to make him Jikilaruwu. 698 Stanley Tipiloura said that Danny Munkara danced at ceremonies, but did not sing. He said that he had a lot of respect for Danny Munkara, but that he had never seen him perform or sing the Jikilaruwu song line, and that he had never spoken to him about them. 699 Stanley Tipiloura said that his step-grandfather was a Jikilaruwu man who was buried on Jikilaruwu country and that that would make him a Jikilaruwu man, too. He later explained: I am a Wurrumiyanga man, but my grandmother had a second relationship when my grandfather died, and my father was only five years old. … Five years old and old Paddy Sawmill Munkara grew my father up. 700 He said that he could dance the boat dance and follow his step-grandfather. The cross-examination continued: Q: When your lawyers asked you questions about your statement, did you ever say to them, 'I am Jikilaruwu'? A: No. We was - why I give evidence is because - I gave evidence because we talking about cultural heritage. Cultural heritage, all right? And you are talking beyond Purrukapali. Like I said, Purrukapali is the creator of the Tiwi system that we live today, and when you talk about cultural heritage out of the sea and the lake that has been there before his time, I find that real offensive. Q: Do you find that offensive as a Jikilaruwu man, Stanley? A: As a Tiwi man that lived and breathed the Purrukapali system. Q: But you are not Jikilaruwu, are you? A: It's really complex, your Honour. If I may. It's really complex. You won't understand. You don't understand. … You don't understand the system. 701 Stanley Tipiloura went on to say that he did not refer to his step-grandfather in his statement because he thought he was just talking about the creation story where the Tiwi system started. He said that he was only taught about two islands. He said that he was not taught about when the land was joined together. 702 Stanley Tipiloura said that the Yirrikapayi song line (also known as Jirakupai) belonged to his great-great-grandfather who, to his knowledge, was a Wurankuwu man. He questioned why the Jikilaruwu were claiming that song line was sacred to them. He said that members of his family put a spear under their arm and dance that song line. He said, "Don't go talking about other people's song line, because I - that's my song line too". He said that the song line was sacred, but that it was for his family and that it was their song. 703 Stanley Tipiloura said that the pipeline was in Commonwealth waters, so that Santos could "just go ahead". He said that his people are lucky that Santos are coming to them and talking to them and asking what they wanted. 704 Stanley Tipiloura took offence to a suggestion by Counsel that "Those Tiwi who are paid $1200 a week by Santos doing work for the - $1200 a day doing work for Santos on the pipeline are luckier than other Tiwis". He said: You are talking to me like they just picked me out of the - out of Tiwi and here. I'm on their on my merit. For your information, I'm on there because I am a qualified mariner and a cultural person as well. 705 Stanley Tipiloura said that he had not been given a copy of Wessex 1, did not know what it said, and that he was not interested to know what it said. He said, "Whatever is out there, you cannot verify it as a Tiwi culture". He said: … our story started with two islands, like I said. Everything is new. When you come with reports from our - there's a lake out there, there's a living area, that's all new to us. … Because if there was a sacred site out there, like I said, we had powerful old people with song lines that would have recorded it. They would have said , 'There was a lake out there 20,000 years ago. There's a sacred site there. We used to live there.' We've got our own creation story, and you are talking over that. This is my argument. You're just going over our system. 706 When asked whether he thought that Tiwi people should be able to read from science about their own country, Stanley Tipiloura said, "you are telling me scientists can tell us our culture?" 707 Stanley Tipiloura said that Tiwi country included "on the coast, in the bays" but not beyond that. He said that he had been told by his grandfather and his Elders what the boundaries of Tiwi country were, and that they were on the land, in the bays and in the sheltered waters. He said that is where they had been travelling with canoes, that they were not voyages, that they did not go looking for Islands "like the Polynesian mob". He said: We stay in one place. … In our history book, in our - we thought we were the only people. When we see other people, they - we call them devil. This mob over there. 708 Stanley Tipiloura said that he attended a boat trip with Dr Corrigan. He agreed that there were Elders there who were telling stories, but denied that the stories related to sea country. He said that they were only talking about the Imunga at Rocky Point and the Island in Shark Bay. He said that nobody was talking about an Ampiji that routinely traverses all of the sea in the vicinity of the islands and the route of the pipeline. He later said that they might have said it, but he did not recall. 709 Stanley Tipiloura agreed that he had heard of the idea of Tiwi Islanders calling out to Ampiji to let them know that the correct visitors were in the vicinity going about their business in the proper manner. He said that was mentioned on the boat trip and that those on the trip had called out to spirit people "along the coastline, Malawu, Wurankuwu, Jikilaruwu", as they went past the countries, to let them know that they had visitors on the boat. He agreed that was a very important thing. He said that he called out the Ampiji when he went past Mungatuwu. The cross-examination continued: Q: And were people calling out to Ampiji on the boat trip? A: No, not Ampiji. Q: They weren't? A: We were just calling out to people on the land, the elders. Q: Yes. So no one was calling out to Ampiji on the boat trip? A: No. 710 Stanley Tipiloura said he was sure of his responses and said that he was calling out to his great-grandmother from Ranku. 711 He then said that one family group who was there were calling out to Ampiji, letting her know they were passing. The cross-examination concluded with this exchange: Q: What I want to put to you, Stanley, is that there were people on the boat trip calling out to Ampiji in the sea. What do you say to that? A: Not in the sea. There's a lake on land, along the coast. Q: Yes? A: That's where she is, Ampiji. Q: Yes? A: In the water. Not in the salt water, on the land. There's a lake next to Rocky Point. That's where the Ampiji is. Q: And I want to put to you that the reason why people talk about calling out to Ampiji is because Ampiji travels in the sea. What do you say to that? A: No. Disagree. Q: And I need to put to you, Stanley, that the reason you disagree is because you are currently being paid $1200 a day by Santos? A: No. I'm here to verify cultural heritage which you are using against the pipeline. That's why I'm here.

Jonathon "Jono" Munkara 712 Jonathon "Jono" Munkara gave evidence together with John-Louis Munkara and Mario Munkara. 713 Jonathon Munkara is a member of the Jikilaruwu clan who has lived on the Tiwi Islands his whole life. He is 44 years old. He presently lives in Wurrumiyanga. His skin group is the mullet and the jabiru. He describes himself as a traditional owner of Jikilaruwu country. 714 Jonathon Munkara said that he was the cousin of the first applicant, Simon Munkara. He denied that Simon Munkara was an Elder of the community in the traditional way. He said that Simon Munkara was "a representative on the Tiwi Land Council but he is just another Traditional Owner for the Jikilaruwu clan, like a lot of us". 715 Jonathon Munkara said that he attended some of the consultation sessions run by centres in the Tiwi Islands. 716 He said that he had been told many stories by Elders in his community over the years. He said that he had never been taught anything about there being burial grounds out in the sea off the Tiwi Islands. He said that he had never been told of such things by Elders, including his Nanna who was a very respected Elder in his community. 717 Jonathon Munkara said that he knew the story of the Crocodile Man. He explained that the story he was told by his family involved people spearing a man who then changed into a crocodile. He said that he had never been told that the Crocodile Man travelled out into the deep water. He said that the Crocodile Man travelled around the coastline and lived near the barge landing, where the big white dome was. 718 Jonathon Munkara said that he knew the story of Ampiji, the rainbow serpent, for a long time. He said that there was only one Ampiji and that she lived in Lake Mungatuwu, where he went to hunt. He denied that there was an Ampiji or rainbow serpent that lived in the sea. He said that, as Santos wanted to build the pipeline out in the ocean, it would not go near where Ampiji lived. 719 Jonathon Munkara said that he had spoken to his Elders and believed that there were no other sacred sites in the sea. He said that he wanted the project to go ahead for the future of all Tiwi people.

Cross-examination of Jonathon "Jono" Munkara 720 In cross-examination, Jonathon Munkara confirmed that Simon Munkara is his "Cousin brother". He agreed that Danny and Molly Munkara, Marie Fraces Tipiloura, and Ancilla Kurrupuwu are all Elders and that each of them has cultural authority in the Jikilaruwu community. Jonathon Munkara confirmed that he is not an Elder. 721 Jonathon Munkara agreed that Simon Munkara should have spoken to the Jikilaruwu clan before commencing these proceedings, and that he was disappointed about that. 722 Jonathon Munkara said that he supported the Barossa Project. He said that he would like to see a better future for his community and referred to the need for roads on both islands. 723 Jonathon Munkara said that he had not heard of Wessex Archaeology and confirmed that he did not know of the content of Wessex 1. He said he was unaware that Wessex had been instructed not to consult with traditional owners about their work, and agreed that they should have. He said he was disappointed but that he still wanted the project to go on. In re-examination, the nature of the work of Wessex was explained in terms of "looking into relics and things from a long, long time ago". Jonathon Munkara confirmed that changed the way he felt about not being consulted by Wessex, and that he was less disappointed. 724 Jonathon Munkara said that Ampiji lived in the freshwater. He agreed that freshwater was important, and that he knew of a freshwater source on a beach that was sacred to Jikilaruwu people. He agreed that Ampiji was the caretaker of Jikilaruwu land and Jikilaruwu waters. He denied that there is an Ampiji who was caretaker of the sea to the west of Jikilaruwu country, and that there was an Ampiji that goes into the deep water to the west of Cape Fourcroy. 725 Jonathon Munkara said he had not previously seen the book titled "An Early Life". He did not know why he is a person who is thanked in it. 726 Jonathon Munkara recognised images of a display at the Patakijiyali Museum depicting the Crocodile Man story. He confirmed that the words in the display told the story as he knew it, including that after being speared, the Crocodile Man went out into the sea and surfaced for air far out in the deep water.

John-Louis "JL" Munkara 727 John-Louis Munkara is a 60-year-old "Traditional Owner of Jikilaruwu country". He is Jikilaruwu clan through his father and his grandfather. His totem is the Jabiru and he dances the boat dance in ceremonies. His skin tribe is the rock, through his mother's side. His said his brother is Mario Munkara. He said that he has been a member of the Tiwi Land Council for the past two years and is a board member of the Bathurst Island Housing Association. 728 John-Louis Munkara stated that within the Jikilaruwu clan there were two male Elders: himself and Danny Munkara, who was the father of the first applicant, Simon Munkara. He named Eulalie Munkara and Molly Munkara as among the female Elders of the Jikilaruwu clan. 729 John-Louis Munkara said that he had attended some of the consultation sessions about the Barossa Project run by Santos on the Tiwi Islands. He stated that Simon Munkara had commenced these proceedings to try to stop the pipeline without first discussing the decision with him. He stated that decisions of that kind would normally be discussed as a clan group. 730 John-Louis Munkara said that he was taught stories about Tiwi heritage by his grandparents, father and uncles. He said he was taught many stories by them until he was around 18 - 19 years old. He said that these stories included teaching about the location of sacred sites on the Tiwi Islands, including burial sites. He said that he had never heard anything from any of the stories that he had been told about burial sites situated in the ocean. 731 John-Louis Munkara said that his grandparents never mentioned a story about a Crocodile Man to him when he was growing up, and that he first heard the story about two weeks before giving his witness statement. He said that he was surprised that he had never heard the story about a crocodile being speared and changing into a human before. 732 John-Louis Munkara said that he had heard stories about the rainbow serpent, Ampiji. He said that Ampiji lived in a big inland lake on the Tiwi Islands and that he had never heard that Ampiji travelled out to sea. He did not know if there was more than one Ampiji. 733 John-Louis Munkara said that Yiminga was an aspect of Tiwi culture and meant a sacred site. He said that all the sacred sites were on the land, and that there were none out to sea that he knew of. He said that none of his grandparents had ever mentioned anything about sacred sites in the ocean. 734 John-Louis Munkara said he had never been taught about any Dreaming or sacred sites going as far out into the ocean as where the pipeline is to be. He said that the pipeline route does not go through Tiwi waters, but was far away from them. He said that he wanted Santos to lay the pipeline.

Cross-examination of John-Louis "JL" Munkara 735 In cross-examination, John-Louis Munkara confirmed that he is Mario's brother, and that Simon Munkara was his nephew in "white man way". He agreed that Danny and Molly Munkara, Marie Fraces Tipiloura, and Ancilla Kurrupuwu are all Elders and that each of them had cultural authority in the Jikilaruwu community. 736 John-Louis Munkara told the Court that he had only recently heard the Crocodile Man story. He later said he had "heard little bit story about it" but couldn't remember. He recognised images of a display at the Patakijiyali Museum depicting the Crocodile Man story. 737 He agreed that Simon Munkara should have spoken to the Jikilaruwu clan before commencing these proceedings and that that had concerned him. 738 He said that he made his statement in Darwin in the presence of Santos lawyers and Jonathon Munkara. 739 John-Louis Munkara said that he supported the Barossa Project. When asked whether he thought it would bring investment to the Tiwis, he agreed, and referred to the need for better roads, a freshwater bore, a renal unit and more houses as examples of potential benefits. He denied that he had spoken to Santos about investing in the community and that the whole clan would do that: Q: Some Jikilaruwu people think that this project is going to have impacts on your cultural heritage. Do you agree with that? … A: Well it might, but I don't think it will - might not happen. Q: But you said it might happen. A: It might happen. Q: It might? 740 John-Louis Munkara said that he had not heard of Wessex Archaeology and that he was not aware of the content of Wessex 1. He said that he attended a presentation by Santos about the pipeline and how it would be laid. He said that the presentation had not included any information about Wessex. 741 John-Louis Munkara said he was unaware that Wessex had been instructed not to consult with traditional owners about their work, and agreed that they should have. He said that he was learning about the work of Wessex for the first time while giving evidence and queried why Santos "didn't come and tell us they were going to get this other company to do a bit of study on the floor". He said he was disappointed and said, "it's part of my land". In re-examination, the nature of the work of Wessex was explained in terms of "looking into relics and things from a long, long time ago". John-Louis Munkara said, "Well, they should have let us know … to consult with those people". 742 John-Louis Munkara agreed that freshwater was important to Jikilaruwu people. He was aware of a freshwater source at a beach where the water ran out to the sea. He said that there was Yiminga at every stream where the water comes. 743 John-Louis Munkara agreed that Ampiji was the caretaker of Jikilaruwu land, and the caretaker of Jikilaruwu waters. When asked if there was an Ampiji that is a caretaker of the sea to the west of Jikilaruwu country, he said, "she doesn't travel much", and that she "goes out and comes back. … Just around the coast". When asked whether he believed that Ampiji goes out in the deep water, he said, "No, no". 744 John-Louis Munkara was shown one of the maps prepared by Dr O'Leary. He said he had not previously heard of Dr O'Leary. The cross-examination continued: Q: … And you agree that there's an Ampiji at the freshwater source at Lake Mungutuwu? A: On the land. Q: At Lake Mungutuwu, yes? A: Yes. Yes Q: And there's Imunga sites at … freshwater sites on Jikilaruwu country. A: Correct. Yes Q: So assuming this blue area on the map here was a freshwater lake 20,000 years or so, do you now agree that there is an Ampiji that travels around that area, that freshwater area? A: You mean in the … Q: On the map, that blue area. A: Yes. Okay. Growing up, when I was 13, 14 years old my two grandmothers and my pa dad and my uncles haven't even told me anything about that story about that - the water out in the - out in the west of Cape Fourcroy. Q: They never told you about it? A: They never - I mean, they never told me. 745 When the same line of questions was repeated, John-Louis Munkara denied that there was an Ampiji that travels out in the deep sea.

Mario Joseph Munkara 746 Mario Joseph Munkara was a "Traditional Owner" and member of the Jikilaruwu clan who has lived on the Tiwi Islands the whole of his life. His skin tribe is the rock. He is a 56 years old and he is an artist and collects ochre from Jikilaruwu country near Cape Fourcroy. He said that his brother is John-Louis Munkara. 747 Mario Munkara said that growing up on Jikilaruwu country he was taught many things by his father, grandfather and other Elders, including stories, Dreaming, culture, hunting and fishing. He said that he attended some of the consultation sessions run by Santos on the Tiwi Islands about the Barossa Project. 748 Mario Munkara said that the right way to make decisions for Jikilaruwu mob was to speak at clan meetings. He said that Simon Munkara had not spoken to other clan members in clan meetings before commencing this litigation. He said that at one clan meeting, some members had said that there were people buried out where the pipeline was supposed to go. He said that those members did not know that, and that no one could say whether anyone is buried out there. He said that he was never taught that and denied ever being taught any story lines that go far out into the ocean where the pipeline was to be. 749 Mario Munkara said that he was taught the Crocodile Man story for the first time when he was about five years old. He explained that the story involved a man going over to the wrong tribe, where he was not allowed, so the family decided to kill him. When the man started running for his life, the other tribe speared him. He jumped off the cliff at the end of Cape Fourcroy near where the lighthouse was and turned into a crocodile. Mario Munkara said that the Crocodile Man did not travel around. He said that the story related to the place where the Crocodile Man jumped off the cliff at the end of Cape Fourcroy and that it, therefore, would not be affected by the pipeline. 750 Mario Munkara said that Ampiji was a rainbow serpent at Lake Mungatuwu, a freshwater lake inland, and that the stories about Ampiji were around that one area. He continued: … She travels around the Tiwi Islands in our way. Like when should we see a rainbow in the sky, it is a rainbow serpent, the one from Mungatuwu. … The pipeline will cause no issues for Ampiji. Ampiji is inland in the lake, the pipeline won't affect this. But if you take something from the lake, like water lily, Ampiji can get angry and will cause rain. 751 Mario Munkara described Yiminga as "like someone leaves their spirit behind". He said that there were specific areas for Yiminga. He explained that if someone from Jikilaruwu passed away, their Yiminga would go to the Jikilaruwu sacred site at Lake Mungatuwu, and that it would stay on the land. He said that when he went to that area he called out to his ancestors. 752 Mario Munkara said that he did not think that the pipeline would cause any issues with his cultural song lines or Dreaming. He stated that he wanted the project to go ahead for the future of all Tiwi people.

Cross-examination of Mario Joseph Munkara 753 In cross-examination, Mario Munkara confirmed that he is John-Louis "JL" Munkara's brother. He agreed that Danny and Molly Munkara, Marie Fraces Tipiloura, and Ancilla Kurrupuwu were all Elders and that each of them had cultural authority in the Jikilaruwu community. He confirmed that he is not an Elder. 754 Mario Munkara said that he heard the Crocodile Man story when he was a child from his father, a Jikilaruwu Elder. He said that it was both a Jikilaruwu and Ranku story. He confirmed that it was possible that it was a story passed down in both clans and that the stories may be different. 755 Mario Munkara agreed that Simon Munkara should have spoken to the Jikilaruwu clan before commencing these proceedings. He said that he was concerned about that because he wanted the pipeline to go ahead. 756 Mario Munkara said that he supported the Barossa Project. He said that he had had one conversation with a person from Santos about investment in the Tiwi community, including roads and "Maybe vehicles". He later confirmed that the conversation took place when Santos came to do a presentation about the pipeline. 757 Mario Munkara did not agree that the pipeline might damage some song lines. He said: Because the song line will be always still there. … Always the song line will be still there, yes, and it won't do any harm, … 758 He went on to explain that he did not think ships would damage the pipeline because they had GPS and would stay a long way from it. 759 Mario Munkara denied that there were song lines that went into the deep sea. He said, "The song line stays around the coastline". He said that was where the Crocodile Man song line was and that it would still continue for the next generation. 760 Mario Munkara was shown a map prepared by Dr O'Leary depicting a freshwater source in blue, to the west of Cape Fourcroy. He was reminded of what he had said about the importance of freshwater sources. The cross-examination continued: Q: … now that you've said all those things, and assuming that that was a freshwater lake 20,000 years ago, do you think that there was an Ampiji or is an Ampiji that is in that area? A: No Q: No. … A: Only one at Mungutuwu. 761 Mario Munkara said that he had not heard of Wessex Archaeology and did not know of the content of Wessex 1. He said he was unaware that Wessex had been instructed not to consult with traditional owners about their work, and agreed that they should have been consulted. He said he was disappointed about that but still wanted to the project to go on. In re-examination, the nature of the work of Wessex was explained in terms of "looking into relics and things from a long, long time ago". Mario Munkara confirmed that that changed the way he felt about not being consulted by Wessex. 762 Mario Munkara said that there was Yiminga at the place where the freshwater came out at Lake Mungatuwu. He agreed that freshwater was sacred for Jikilaruwu people. He referred to a beach where freshwater could be found, and where it ran down to the sea. He said, "where the water comes out … that's where the [Yiminga] is". 763 Mario Munkara agreed that Ampiji was the caretaker of Jikilaruwu land and water. When asked whether there was an Ampiji that goes out to sea, he said, "No. It just swims around the coastline". He said that Ampiji returns to Lake Mungatuwu where she lives. 764 Mario Munkara referred to his older sister Marie Munkara. He said that she was the one that had printed and brought "the map" and that he and his brother were upset. He confirmed that the map he referred to was at page 3567 of the Court Book, which is included in O'Leary 1 and he repeated his belief that his sister had printed it. He said that he had not previously heard of Dr O'Leary. 765 Mario Munkara was shown a book titled "Murli la: Songs and Stories of the Tiwi Islands" (MFI-13), depicting a spear. He said that the spear was associated with the Crocodile Man story. He agreed that the book contained words of the Crocodile Man story he had learned: The sharp-pointed spear went through its back. … Crocodile goes out with the sea. He said that he had heard the old people singing the words. 766 Mario Munkara recognised images of a display at the Patakijiyali Museum depicting the Crocodile Man story. He confirmed that the words in the display told the story as he knew it, including that after being speared, the Crocodile Man went out into the sea and surfaced for air far out in the deep water. In re-examination, Mario Munkara confirmed that the people in the story were on the cliffs, watching the crocodile surface for air. When asked what that told him about where the Crocodile Man might have been he said, "Out in the water there". When asked how far out, he said "About maybe five ks out".

Richard "Hadlee" Hyacinth Tungatalum 767 Richard "Hadlee" Hyacinth Tungatalum is a Munupi man who lives in Wurrumiyanga on Bathurst Island. He is 54 years old. His skin is Pandanus, his totem is the sugarbag and he dances the honey dance. 768 Richard Tungatalum said that he was a senior Munupi man with authority to speak on issues related to his clan. He said he was a cultural advisor to the Tiwi Land Council, the chairman of the local authority of Wurrumiyanga, a director of the Tiwi Education Board and held other directorships within agencies on Bathurst Island. Richard Tungatalum's father was a founder of the first Tiwi Land Council in 1978 and his brother remained a member. He said his maternal grandfather was from the Jikilaruwu clan and was the first Jikilaruwu trustee of the Tiwi Land Council. 769 Richard Tungatalum said he grew up on Jikilaruwu country. He said that there were song lines throughout the Tiwi Islands that had been passed down from previous generations and were still sung and passed on today. He said (at [9]): To me, songlines are like history. They tell the story of what happened in the past. Where the Makassans sailed to the Tiwi Islands is a songlines. Where the British sailed to the Tiwi Islands is a songlines. We sing songs about the planes that fell into the water during World War II. 770 He continued: I don't think songlines will be impacted by the Santos pipeline. But for respect, Santos needs people from the Tiwi Islands to call out to songlines and that will make it ok. We just need to let the ocean know that Santos is laying the pipeline and then that is ok. You can do this by a cultural ceremony which would have dancing and singing or have someone from the Tiwi Islands on the Santos boat. 771 Richard Tungatalum said that he had heard the Crocodile Man song lines through his maternal grandfather. He said he had been told that the Crocodile Man was greedy and did not share land with the people so they speared him. The Crocodile Man went into the water and turned into a crocodile. He said that the area of the Crocodile Man was in the land and in the sea at the tip of Cape Fourcroy. He continued (at [12]): … He entered the sea right there. People say he is the watcher and the protector of the coastline. He goes up and down the coast keeping a lookout. There is nothing out in the deep ocean, in the area of the pipeline, for the Crocodile Man to look at. He just guards the coastline. If the Crocodile Man ever gets upset he might cause rough seas and clouds but not for too long. I don't have any concerns that the Crocodile Man will be upset about the pipeline. He stays by the coastline. 772 Richard Tungatalum said that he had not been told of any Tiwi burial sites in the ocean. 773 Richard Tungatalum said that there was one Ampiji on the Tiwi Islands, who guarded the islands from something suspicious and made sure Tiwi people did the right thing by the law. He said that sometimes Ampiji left the lake and travelled in the sea around the coastline of the islands. He said that Ampiji would not be disturbed by the pipeline. 774 Richard Tungatalum described Yiminga as meaning that "you belong to the totem and to your skin". He said that there were many sacred Yiminga sites across the Tiwi Islands and around the coastline, but that there were none in the deep ocean. He said that Yiminga could not be affected by the pipeline. 775 Richard Tungatalum said he attended two or three consultation sessions with Santos and shared information with Dr Corrigan. He stated that he was not worried about a pipeline that was on the ocean floor. 776 Richard Tungatalum said that he was aware of many big ships travelling around the Tiwi Islands and near the pipeline route, but he was not concerned by them. He said that he knew that there were a lot of commercial fishing and prawn trawlers with nets touching the ocean floor. He said that he was not concerned by them, provided that there was no littering from the ships. 777 Richard Tungatalum said (at [18]): I think the Barossa Project will be good for our future. It will be good for our young ones. This is about what is good for all Tiwi people. We are eight clans but we are one Tiwi people. This project will help the Tiwi people into the future.

Cross-examination of Richard "Hadlee" Hyacinth Tungatalum 778 In cross-examination Richard Tungatalum confirmed that his skin group was Pandanus. He confirmed that skin groups were part of Aboriginal kinship on the Tiwi Islands. He described himself as a leader for Munupi people and "for the whole Tiwi, upcoming". He said that all Tiwi people worked together. He agreed that someone from one clan could not say what the story of another clan is, but said there were cultural links creating connections between the clans. He agreed that if someone wanted to do something on another clan's land, they would need to ask for permission. He said that he was connected through his mother to Jikilaruwu country, that he grew up on Jikilaruwu country and that he was shown Jikilaruwu dances and heard Jikilaruwu stories and song lines: Q: But you are not Jikilaruwu? A: Well, yes, I'm not Jikilaruwu, but there were people sharing, that lived together in a place and told story, so these stories from thousands of years, it's not only from one particular group. They have been - a group came from each area. They had a big - big tribal ceremony, and they share, and they each one bring songs and they came up with this. So from that, it's passed on to our generation today. 779 Richard Tungatalum confirmed that Jikilaruwu Elders included Danny Munkara, Eulalie Munkara, Molly Munkara, Magdeline Kelantumama and Marie Frances Tipiloura. 780 He said that song lines were about spirituality and belief. He agreed that they were connected to the living world and the environment, and that animals and the things that lived in the environment were all connected with song lines. When asked whether bad things could happen if song lines were disturbed, Richard Tungatalum said, "Well, the law - you break the law. That's something will come. The law, the Tiwi law. Things happen". 781 Richard Tungatalum acknowledged that he had attended meetings with Dr Corrigan and Dr O'Leary. He said he thought it was important to attend to pass on knowledge about his culture. He agreed that he had been shown maps at the meeting with Dr O'Leary, and that it was the first time he had seen those things. 782 Richard Tungatalum was questioned about a number of statements he had made to Dr Corrigan or his team, recorded in notes taken of various meetings and an interview. He agreed that he had told Dr Corrigan: "The rainbow serpent, Ampiji, it covers the whole area" and "That Ampiji on the west, it goes in the ocean waters as well." He told the Court the Ampiji in the ocean "Goes out to the ocean water, but guarding the coastline". When asked whether he had said that a rainbow serpent looks after both islands, he said "through the coastal, coastal area. Not to the ocean". 783 Richard Tungatalum agreed that he had told Dr Corrigan at the March Corrigan meeting, "You can't disturb Ampiji, can you" and, "One of the things you can't do is that you can't throw honey in the sea, or you will disturb that Ampiji" and, "If in the dry season you see a rain starting, the old people will know that the serpent is getting up". He agreed that was an example of how, if you break the Ampiji song line, you change the environment. 784 Richard Tungatalum agreed that he had told Dr Corrigan "The serpent is guarding the island, including out in the ocean" and "Tiwi was more wider a long time ago in that Ice Age, the lower water time". He told the Court that when he referred to the ocean he referred to the place that could be seen through the eyes of his people, "not way, way, way out. It through where the eye can see". 785 Richard Tungatalum agreed that he had also told Dr Corrigan "People must have been leave things and burial and ceremony down underwater now" and "People call out to their old people underwater to keep it safe". 786 Richard Tungatalum agreed that he had participated in an interview with a person named Stephanie Rusden around 11 May 2023 for the purposes of Dr Corrigan's report. He agreed that he had expressed a concern in that interview about maritime life like turtles and that he had made a reference to impacts on ancestors. When asked what impact he was talking about, he said: Well, through our culture and law, can belong to the other clan or group, but in a way, in the ocean, we do have a reef closer to our land and that's where a lot of turtles moves and even the sand - even the beach, to lay their eggs. So that - talking about the effect but in our shoreline, near, but not further. 787 Richard Tungatalum agreed that he had referred in the interview to "Sacred burials that may now be underwater because of sea level change". He said that when he had said, "underwater", he was not referring to a place "way, way out in the ocean" but a place near the coast and inland and not in the ocean. 788 Richard Tungatalum agreed that he had referred in the interview to a rainbow serpent but denied saying that the serpent goes into the ocean. He said, "She is a keeper. She guards the coastline on both Tiwi, the surrounds of both islands". He denied that he had referred in the interview to Ampiji being a sea god who looked after the ocean. He said that he might have referred to the sea, but not the ocean. 789 Richard Tungatalum agreed that he had said in the interview "If you do something wrong, Ampiji will cause bad things to happen to the land and the sea" and "The pipeline will awaken our ancestors as it is not natural". The cross-examination continued: Q: And did you say those words to Stephanie? A: Well, I said it to Stephanie but, you know, if the pipeline is closer to our shore where and - but our people have been travelling to islands, not in the ocean, only close to the shore. Q: Is it true that the pipeline will awaken your ancestors because it is not natural? A: Well, in a way, it can awaken our ancestors who aren't Ampiji but if they're not where the pipeline is putting, it's way, way far from our spirits and our ancestors. It's way away, a long way. 790 Richard Tungatalum later said: … but saying this, our ancestors are our spiritual people. Our belief. So if the pipe is where our - my people travel, but I know my people didn't travel far, far, far away. They only travelled all along the coast to neighbouring island or inland, closer, but spirit, the pipeline is way, way out. It won't harm or affect my ancestors or my spiritual belief. 791 Richard Tungatalum agreed that he had used the words "awaken the sea" in the interview. When asked why he had said that, he said that he was not thinking slowly, nor concentrating while talking. 792 Richard Tungatalum was questioned about further statements he had made at the May Corrigan Meeting (on 31 May 2023) which many others attended. He agreed that at that meeting he said that he thought Tiwi people should have land rights or sea rights out in the deep water. He said that the Tiwi did not own the ocean water, that they owned an area from the inland to the sea of four kilometres "but not to the ocean". He said that ownership beyond that territory into Commonwealth waters had never been talked about since the Tiwi Land Council had been established. 793 Richard Tungatalum agreed that at the May Corrigan Meeting, Valentine Intalui pointed out that Tiwi culture did not stop at the end of NT waters. When asked whether it was his view that a Native Title claim should be made in relation to the deep ocean, he said that it should be looked at in the long term, but it never had been put by his people that the ocean belonged to them. He said, "Never. It's only that travel closer to the sea and back". He said it was for his people to look at and repeated that it had not previously been raised. 794 When asked about a Jikilaruwu song line covering everything under the sea, Richard Tungatalum said that his ancestors did not speak in terms of kilometres or miles, but instead said, "out in the sea where eyes could see". He agreed that he heard Valentine Intalui saying that "it even reaches the sunset", and added, "but where our eyes can see". 795 Richard Tungatalum agreed that he heard Therese Bourke tell Dr Corrigan that she had seen Ampiji coming out of the water. He stated that her cousin had told a story about Ampiji on the coast near Munupi country, but added that was "not way, way out" rather closer to named places on Munupi land. He also agreed that Molly Munkara had told Dr Corrigan about seeing the head of Ampiji coming up with ripples behind, adding that Ampiji is told in different ways and explained in different ways. 796 Richard Tungatalum was asked whether at the meeting with Dr Corrigan he had started a discussion about the sea level being lower and people using the area that was not covered by the sea. He responded: Well, you know, the thing is, we see fiction, and also things make you believe. That might be true or not. So there are things that we will look on the television. Well, television never come to our island until 1970 or 80s, so as grown up, you know, these things maybe are not - not right, not true, actually. 797 Richard Tungatalum was then asked whether he had said to Dr O'Leary, "They did totem ceremony and buried people. Show respect". His answer was non-responsive. He instead referred to the map he had been shown at the June O'Leary Workshop. He said, "The land was there, but our ancestors or our Tiwi great-great-grandparents, fathers, they never actually talk about it, and when I saw the piece of paper, it's like making me believe". 798 It was suggested to Richard Tungatalum that his prior statements to Dr Corrigan had been made at a meeting some three weeks before he had first met with Dr O'Leary. He responded: … what was that is my poison ought to know the real story because the pictures are showing. The pictures can be - you can believe or not believe because the law is passed on, and we still have - today we still believe, but that has never been talked about for a long time - for, I don't know, many thousands of years ago. 799 The cross-examination continued: Q: I want to suggest to you that these notes record a meeting some three weeks before you first met Mick O'Leary? A: What - well, in - what was that is my poison ought to know the really story because the pictures are showing. The pictures can be - you can believe or not believe because the law is passed on, and we still have - today we still believe, but that has never been talked about for a long time - for, I don't know, many thousands of years ago. Q: I want to suggest to you that you said the words I read to you because you were told them by the older people? A: What I am saying old people, saying they sit with you at the fire, telling you, you know, about the story, about our ancestors, our Tiwi greats saying that the water is there, but like, you are saying - the ocean does not belong. It's where they travel and back safely. That's what they believed. Q: That's what the old people told you, that that land that's now covered by the water is where the ancestors travelled? A: Well, where the tide goes out at the lower mark water. That's about it. Q: I suggest to you that what you meant was not just when the tide goes out but when there was an ice age and the sea was hundreds of metres or kilometres out? A: Well, like I said, you know, we see things, fiction with things. We believe that's true. True on my understanding is I don't believe it. 800 Richard Tungatalum agreed that he had heard Valentine Intalui say to Dr Corrigan that he believed a disaster would come. He said that according to Tiwi cultural law, when you did something that is not right, you're breaking the law, "that thing comes". 801 Richard Tungatalum also agreed that Valentine Intalui had said that "Ampiji is still with us". He said that he had gone through the cultural law with his grandfather. He said, "Ampiji maybe two, they say, but Ampiji was known that lives in Mungutuwu". 802 He agreed that Valentine Intalui was a Jikilaruwu man. He agreed that he had said at a meeting with Dr Corrigan that the right people go to country, and "you can't go to another man's country". He continued: … but in turn, in respect to the Jikilaruwu people, if you ask for the Jikilaruwu people if you are not from there, they welcome you, they invite you to say yes, permission are given and that has been stated in the law of all Tiwi. Because of cultural dancing and everything, Tiwi was together. 803 When asked whether he thought that the maps shown to him by Dr O'Leary were important to the Tiwi people, he agreed that they were, but said that no one from his knowledge "had never been taught about these things". When asked whether he thought they were important because they showed with "white fella science" what he already believed was out there under the sea, he said: I'm saying earlier fiction made me believe, you know, because we as Tiwi people work hard like our grandfathers and their grandfathers before them guarding our law, and like you said about the western way, that these things were never put to my people. 804 Richard Tungatalum agreed that at the June O'Leary Workshop he had said: Some people are saying oh, there's nothing you can find. In the mainland you've got history like Kakadu. We are underwater and our land is there. There is proof of where our people walked. 805 He said that although he had said that, his Elders before him did not pass on the knowledge that he knew today about the land. He said that he had been to the workshop, but his Elders, grandfathers "and father before them, they never pass on". He repeated again that his people, his ancestors, had not passed on information Dr O'Leary had talked about. 806 It was put to Richard Tungatalum that he had said to Dr O'Leary, "The old people used to say that place where our ancestors used to meet". He said: Well, I remember that, but I was - my mind wasn't thinking, because of that Kakadu 20,000 years ago. I was having my mind on Kakadu and stuff, but to this, I was saying that its really what - saying not really that I said. 807 When asked whether he had talked about ancestors meeting on land where the sea is now, he said that his ancestors used to walk the mainland of Australia. 808 Richard Tungatalum agreed that at the end of the June O'Leary Workshop he had said, "I think you need to come back and you need to present to everyone to understand. To others it was kept away". He said that "the white men came and brought this very new thing that not even my people knew about it. Never knew". He repeated that it was not a thing his forefathers had talked about. 809 Richard Tungatalum agreed that he had attended July Lewis Meeting (on 18 July 2023) with other Tiwi Islanders, Mr Lewis and lawyers from the EDO at which a map prepared by Dr O'Leary showing markings of a crocodile story and burial grounds was discussed. He said: Like I was saying earlier, fiction or not believe. Pictures which are shown, yes, I think they have been drawn or put there, but, like I'm saying, my forefathers, grandfathers, fathers, it has never been passed on, that knowledge that we understand today. 810 When asked whether he was saying that the markings on the map were a fiction, he said: Yes, they have been put there, but, like, saying this is about the crocodile and the lake out there, everything has been said, and I went back home and told about this, and it took me a few months to understand. This is never put, this was never taught to me, about all this. This just came when we came out of the sky, about the tracks. 811 It was put to Richard Tungatalum that he had not referred to the markings as being a fiction at the time that they were discussed in July 2023. He responded: Well, people can make you believe and make you to believe what they believe and yes, I've been, but I've been foolish. I've been tricked. I've been playing a game. That to my knowledge, my understanding that I was asked quickly, push - made me to come and to believe and what I believe that - what my understanding is, is it's not true. 812 It was put to Richard Tungatalum that the lawyer from the EDO had asked what the impact of the pipeline would be, and that he had responded that the ancestors would be awakened and disturbed, and that it would cause damage and waves that had never been seen, and "We still believe this. When we go to the ocean, we call out to the spirits, to the gods". He agreed that he had said those words. When asked if that was truth, he said: But, yes, when I say to the sea, like I said earlier, not to the ocean. It's where - where my eyes can see, and my grandfathers said. But disturbance is where - the law and where - how far the law is through our islands and the coast, but when saying that there were a lot of things was happening to our land and to our sea, not just in the Tiwi but other - elsewhere and this, the knowledge that I know that - and understand that disturbance is when you not respect our spiritual. Like saying someone was sitting down here, saying you got on the boat, but you need someone to call out to our people, spirits are with us. That's the law that is with Tiwi. You disrespect, things will come to you. 813 It was put to Richard Tungatalum that when he made his prior statement he had not been tricked, but was instead a proud Tiwi man telling the group what he believed the impact would be. He acknowledged again that he had attended the meetings and made the statements, but said that he looked back and looked into himself. He said he was "gathered around by the EDO and the Tiwi people" at the meetings. He said, "There is talk about that land out in the ocean from my people as well that will put me in the building". 814 Richard Tungatalum was reminded of a further statement that he had made to the effect that Dr Corrigan was working for Santos and was "on their side", and that the group needed Dr O'Leary to come, and that a map would "show them that there's something there". He said: Yes, I remember saying but after that, all that talking I did to the EDO and everyone, I sat back and looked back and said yes, but what I did, the thing that I said is - was fast, rushed, I wasn't thinking straight. My mind was not clear, but the thing is, after all that, during the past month, I understand - I realised that things I said that yes, already in my head, but out there in the ocean, whatever, it's never pass on by our ancestors and I realised because my grandfather, he passed away at 90 years old and he had very strong cultural knowledge of song lines and everything. So I went back and think that this is not - what I said, later that I understand that I was looking back to my grandfather and saying that he didn't pass on this knowledge about the sea, about the land and sea. So I'm afraid that, like, there is nothing. I know what white men can think and my people, making us to believe, and when I was in that meeting it's like I've been not guided by my spirit and my people. 815 Richard Tungatalum agreed that he had spoken to Dr Corrigan at a meeting in May 2023 about freshwater that came up in the sea, and said that that was true. He did not agree that there were lots of stories from older people about freshwater that came from out in the ocean. He said that it came from where he went hunting for turtle and dugong. He agreed that there was freshwater at a place near Cape Fourcroy, but said it flowed down to the beach. He said it was not in the ocean, but inland. 816 It was put to Richard Tungatalum that he had also said, "There's honey in the sea, the Ampiji". He said that was wrong, but it was otherwise unclear whether he admitted making the statement. 817 Richard Tungatalum agreed that he had made a prior statement about tunnels of freshwater. He said that the water in the tunnel came from Papua New Guinea, and that he had found that out many years ago. He said that that was something that white men said. He said it was not about old people talking. He later repeated that the old people talked about freshwater in the shallow or hunting ground, where he went hunting. He said that there was a specific place that was sacred where the water comes up. He said "That's Imunga. Imunga". 818 Richard Tungatalum agreed that he went to a meeting with Dr Corrigan on 23 August 2023, where he had referred to a map prepared by Dr O'Leary and asserted that Tiwi people had walked there and that "it's still our spirt there". He continued: But like I said earlier, said about white man story, white man belief, that's saying my knowledge and understanding of my people, my ancestors didn't pass on. So I had - myself and I think my - my people because of this - this belief of - which Mick O'Leary's seen, like, made me to believe. But my mind was thinking about my - my people, my ancestors. My forefathers, grandfather, my father. This thing didn't never pass on. … … white men make you believe, and that has been done to my people. They are made to believe, and going way, way back and to my people that have been done to my people. Misleading, mistreated. … 819 It was suggested to Richard Tungatalum that he had referred in the March Corrigan Meeting to people buried out at sea. It was suggested that he had been misleading by failing to include any reference to his prior statement about burials in his witness statement. He responded by acknowledging he had made statements of that kind, then said: But I realised that it's not true because I had people, with EDO and the others, saying that crocodile and all that went - passed through, so that's why it made me to understand that there is a burial site. But to add understanding that it's not true. 820 The cross-examination continued: Q: I want to suggest to you that it is rubbish that it was ever suggested to you by the EDO what your culture was? A: Well, I am saying people, white men - sorry, but European can - can make you - to make you to say things that you not saying is true. Just making you to rush. And what I said to the people, you know, it's forcing me - forcing me - but it's not. What I realised that after - after I went - after this, I knew, all my time after, that my people, my ancestors, they have never been buried. Never story told, never pass on from generation to generation from today. 821 Richard Tungatalum referred again to going to meetings where lawyers from the EDO and Tiwi people were "all pushing" and referring to the Crocodile Man story. He said that he looked back at what he had been told about creation Dreamings, including Mudungkala that had been passed on. He said: But this thing - like, my people to the EDO and the lawyers, they were their doing. But I put myself that - I said - what is taken is what is said in there, but after I realised that, they're not according to the law - customary law - of Tiwi. It's not true. 822 Richard Tungatalum was cross-examined on his desire to see more investment in the Tiwi Islands. He referred to people living in poverty and the lack of education. He referred to his people continuing to struggle. He described Tiwi people as going "through a hell, a lot of things". He said he had been arguing and arguing for services for his people but had not found an answer. He said: We need to find something, a solution, something good because I cry for my people. I cry. I'm - I'm nearly in my - my ending, but I want to leave this for my generation. 823 He went on to say that he had three grandchildren and did not want to worry about them. 824 Richard Tungatalum said that culture was very important, that it had been there for a long time, passed on through generations. He said that his grandfather had told him about the tide, the moon and the stars, but that he believed that the pipeline was "way out from where our spirit, our story is told" and is not going to be affected. He concluded: … but in cultural law, someone - the fella sitting here, he said he works on a boat and they had done some cultural - they call that - that's cultural thing. But, like saying, I know Santos or other, as I say, organisation or project out there, but the sea is our sea, but our spiritual there but when you've broken - if you broke the law, that will - that will come. 825 Counsel did not ask Richard Tungatalum to explain or elaborate on that final response.

SPIRITUAL CONNECTION TO SEA COUNTRY 826 When asking whether there has been a change to the environment, the focus must remain on "the environment" as framed by the applicants' case by reference solely to those "cultural features" upon which they rely. The first task is to identify what those cultural features are. The second is to identify whether there is a significant risk (having the requisite qualities) of a "change" (and therefore an impact) to that cultural feature. The risk must also be shown to be "new". 827 Three of the four risks relied upon by the applicants are framed in a way that asserts damage to the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of the "sea country" through which the pipeline will pass. That spiritual connection is said to be an "overriding cultural feature" in their written closing submissions. 828 The evidence shows that the concept of "sea country" in its relation to Aboriginal people is a well-established concept in Australian anthropological literature. The anthropologists agreed that detailed ethnographic work on sea country with the Tiwi Islanders has not been done, and so methods employing comparative materials became more important when discussing the topic. 829 There has been no determination under the NT Act that the Tiwi Islanders have native title rights and interests in any land or waters. That is not to say that native title rights or interests do not exist in fact (their existence incorporating recognition at common law). It is simply that their existence has not been determined on an application of a kind that may be made on a representative application under s 61 of the NT Act. These are not representative proceedings in that or any other legal sense. Rather, the applicants are each individual persons claiming to have standing to apply for the relief sought by virtue of their claimed interests, being interests they hold communally with others and fundamentally related to their Aboriginality. The communal aspect was reinforced by their respective claims that they have authority within their respective clan groups and the broader Tiwi community to describe what the "cultural features" are.

The nature of "sea country" 830 The early ethnography focuses on the use of sea resources, technology and navigability. It appears to be undisputed that the Tiwi Islanders have traditionally and continually drawn on the sea as a source of food and that they have used boats to travel around and between the islands. However, the ethnographic materials suggest that the Tiwi Islanders were not seafaring travellers, and that their use of the sea's resources was confined to the intertidal zone and inner coastal waters. That is supported by one Tiwi witness, Stanley Tipiloura: "We're not voyagers," he said. "We don't go looking for islands, you know, like the Polynesian mob". 831 In the 1980s the Tiwi Islanders collectively made an application to obtain a sea closure pursuant to s 12 of the Aboriginal Land Act 1978 (NT), relating to the Northern Territorial waters within 2km of the Tiwi Islands' coastlines (being the geographical reach of that law). In a report prepared in support of that application, anthropologist Stephen Davis described the extent of Tiwi sea country in the following terms (Davis S, A Report on the Bathurst and Melville Islands Sea Closure Application (1983), p 74): Tiwi consider that the width of their territorial seas extends from the land, across the littoral zone to the horizon, with that area beyond the horizon being 'for government'. 832 The author cautioned against western conceptions of a dividing line between land and sea (Davis S, p 110): The sharp distinction between land and sea drawn by Europeans is an ethnocentric distinction. Tiwi do not see their territories finishing at the low watermarks. Rather, as with other Aboriginal groups living along the north coasts of Australia, the seas, straits, estuaries and bays immediately adjacent to the shorelines are perceived as being contiguous with the land. One cannot talk on the one hand of the significance of the land and on the other of the significance of the sea. Both are inextricably related in the same concept. Dances, songs, myths and ceremonies focus on the sea as much as the land. Any search of the literature must therefore be careful to note that many references to land should, in fact, be read as land/sea. 833 The video recordings of songs and dances are a vivid demonstration of the focus of the relevant culture on the sea as an integral part of Tiwi cultural life. 834 The anthropologists agreed that the utilitarian focus on technology and navigability failed to systematically conceptualise or fully consider sea country or its extent. 835 Subject to some caveats, the anthropologists also agreed that sea country can be inferred to be clan specific based on their informants' statements, certain ethnographic material and comparisons with other island and coastal groups. As the Anthropology Joint Report explained: Sea country appears to be thought of as an extension of land-based country, so the country of land estates can be inferred to be an outward extension of the terrestrial estates of the adjacent coastlines … The vagaries of boundaries in sea country should not be over emphasised given that similar vagaries can apply to at least parts of the boundaries between various terrestrial estates. 836 The proposition that land estates can continue into and incorporate the adjacent sea finds further support in a 2008 anthropological report in which Mr Robert Graham described the waters of the southern Mantiyupwi clan extending around the Vernon Islands (then subject to a land claim). 837 In cross-examination, Dr Corrigan said that it was quite clear that the area of the sea adjacent to a clan's country would be considered to fall within the clan's estate. That observation did not extend to the wider oceans. 838 Against those broad observations, it is necessary to explain how the applicants framed their case alleging a risk of damage to their spiritual connection to the area of the sea through which the pipeline will pass.

"Sea country" and the asserted risks 839 The evidence makes it plain that the applicants' case is founded on an aspect of culture that has its origins in Aboriginal traditional laws and customs. It is only by the traditional laws and customs of the whole of the Tiwi Islands that one clan has sea country in contradistinction to that of another. The Court heard evidence of continuing customs, founded in tradition, which explain how clans interrelate and integrate at a societal level. The framing of the applicants' case over time reinforces its reliance on Aboriginal traditional laws and customs as being the source of the spiritual connection to the particular area of sea country through which the pipeline will pass. 840 In their amended originating application, the applicants alleged: 3. Following the acceptance of the Pipeline EP, it has been identified that the Activity will significantly impact, or, alternatively, that there is a significant risk that it will impact, submerged Tiwi cultural heritage, in particular, the underwater cultural heritage of the Jikilaruwu, Malawu and Munupi clans (the Clan Groups), including by: (a) damaging sea country of the Clan Groups; (b) causing spiritual injury and damage to dreaming tracks, songlines and areas of cultural significance to the Clan Groups; (c) physically and spiritually alienating or disconnecting areas of sea country and adjacent or spiritually connected areas of land from the Clan Groups; (d) interrupting the Clan Groups' ability to fulfil their spiritual and social responsibilities. 841 In their concise statement the applicants alleged that the Jikilaruwu, Munupi and Malawu people had "spiritual and cultural connections to Sea Country" which formed a part of their identify and beliefs. The connections were then more specifically described as relating to (among other things): (1) their ancestors and the land (now under the sea) where their ancestors lived, and where there are sacred burial sites (known as pukumani sites); (2) dreamings and ancestral spirits, including Ampiji, a creation spirit that lives in the freshwater and in the sea around the Tiwi Islands, and the Yimunga, being places of high spiritual significance and the heart of the system of Tiwi culture and life; (3) stories and songlines, including the Jikilaruwu songline Wiarprali, which is about Jirakupai, the Crocodile-Man; and (4) the marine life and animals, for which Tiwi people fish and hunt and which also have spiritual and cultural significance and totemic importance. 842 In their written opening submissions, the applicants framed their case in more detail. From the extract below, it can be seen that the case at that time did not include a discrete claim that the pipeline posed a risk of damage to the spiritual connection of the applicants to sea country, as a discrete aspect of risk independent of specified Dreamings and song lines. Rather, the claim was founded (among other things) on particular manifestations of a sea country connection arising from the Ampiji and Crocodile Man song lines and in the broader assertion that there was Yiminga on or in the area of the pipeline. 843 By the time of closing oral submissions, the case as originally framed appeared to have narrowed. On 21 December 2022 the Court requested that the applicants' Counsel expressly confirm what parts of the case as originally articulated in written opening submissions had been abandoned. This extract from the written opening submissions is now struck through to represent Counsel's response: 5. In essence, the Applicants will ask the Court to grant the relief sought based on any of the following risks, which should be found based on any of the following sets of findings of fact: (1) There is a 'real chance' that the Activity will have the notable consequence of disconnecting the Jikilaruwu, Munupi and Malawu clans from the Ampiji that is connected to and resident in the freshwater source to the west of the pipeline. (a) There is or may be an Ampiji that is connected to and resident in the freshwater source to the west of the pipeline. (b) The Activity will or may have the notable consequence of disconnecting the Jikilaruwu, Munupi and Malawu clans from that Ampiji. (2) There is a 'real chance' that the Activity will have the notable consequence of disturbing Yimunga in the sea country through which the pipeline will pass. (a) There is or may be an Ampiji that travels around the Tiwi Islands, including out to the deep water and thus to the area of the pipeline. (b) There is or may be Yimunga where the Ampiji travels. (c) The Activity will or may have the notable consequence of disturbing Yimunga in the sea country through which the pipeline will pass. (3) There is a 'real chance' that the Activity will have the notable consequences of: (i) disturbing Jirakupai in his home; or (ii) in his travels or of disrupting the Jirakupai songline: (a) The Jirakupai songline extends or may extend to the freshwater source to the west of the proposed site of the pipeline. (b) Further or alternatively to (a), Jirakupai travels or may travel in the water through which the pipeline will pass. (c) The Activity will or may have the notable consequence of disturbing Jirakupai in his home or in his travels. (d) The Activity will or may disrupt the Jirakupai songline. (4) There is a 'real chance' that the Activity will have the notable consequence of disturbing Yimunga. (a) Yimunga, which is of cultural significance to the Tiwi communities whom the Applicants represent, is or may be on or near the area of the pipeline. (b) The Activity will or may have the notable consequence of disturbing Yimunga. (5) There is a 'real chance' that the Activities will have the notable consequence of disturbing ancient burial grounds near the pipeline. (a) There are or may be ancient burial grounds of the ancestors of the Tiwi communities near the pipeline. (b) There is a 'real chance' that the preservation of ancient burial grounds of ancestors is of cultural significance to the Tiwi communities. (c) The Activity will or may have the notable consequence of disturbing ancient burial grounds near the pipeline. (6) There is a 'real chance' that the Activity will have the notable consequence of destroying, disturbing or exposing Aboriginal cultural heritage deposited along the pipeline. (a) There are or may be points of archaeological significance along the pipeline that are the remains of Aboriginal cultural heritage deposited during periods of lower sea level. (b) The Activity will or may have the notable consequence of destroying, disturbing or exposing those remains. (original emphasis, footnote omitted) 844 The case later articulated by the applicants was that summarised at [14] and [15] of their written closing submissions. At [14], the applicants submitted: At a high level, the 'cultural feature' of the 'area' of sea country through which the pipeline will pass, and the 'cultural feature' of the Jikilaruwu, Munupi or Malawu 'people', which enlivens Santos' statutory obligations under reg 8(1) and 17(6) to submit a revised environment plan can be understood simply. It is the cultural or spiritual connection of the Jikilaruwu, Munupi or Malawu people to areas of sea country through which the pipeline will pass. … 845 The applicants described that connection by reference to judicial statements made in native title cases about the connection of Aboriginal people to land and waters under their traditional laws and customs. The written submissions drew over and again from this passage from Ward (at [14]) explaining that concept in the context of native title law: As is now well recognised, the connection which Aboriginal peoples have with 'country' is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that: 'the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole'. It is a relationship which sometimes is spoken of as having to care for, and being able to 'speak for', country. 'Speaking for' country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a 'non-exclusive agricultural lease'' or a 'non-exclusive pastoral lease whether the native title rights and interests 'confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others'. 846 The written submissions (at [14]) drew on that passage and an amalgam of statements from other native title case law (including Northern Territory v Griffiths (2019) 269 CLR 1 and Love v The Commonwealth (2020) 270 CLR 152, which they alleged support the following propositions: … As the High Court has held, the connection of Australia's Indigenous people to land or waters is 'a cultural or spiritual aspect' of native title (with native title rights and interests being 'a physical or material aspect' of native title). It is now well-established that there is a 'connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia', that is 'spiritual'. That spiritual connection to country includes 'a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.' There is a considerable body of case law recognising that the law may recognise the cultural interests of Indigenous people even when they are not native title interests. Indeed, 'the common law accepts that members of an Aboriginal group may feel a sense of 'belonging' to the land in question and that others may perceive them to 'belong' to the land.' Though, as Keane J noted in Love v Commonwealth, at least for some purposes (and the Applicants accept that this is one of those purposes), the 'spiritual and cultural connection' that needs to be assessed is that which 'particular groups of Aboriginal persons have to particular lands and waters within the territory of the Commonwealth of Australia'. (footnotes omitted) 847 The written submissions went on to allege that the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the sea country through which the pipeline will pass (which constitutes the overriding "cultural feature" for the purposes of the limb (e) definition of "environment"), is evidenced and given "concrete expression" in each (and any) of four specific "cultural features", described as follows (at [15]): (a) First, the ancient songline of Jirakupai of the Jikilaruwu people: (i) The Jirakupai songline extends to at least the point on the pipeline that is closest to Cape Fourcroy, given that Jirakupai surfaced (upon being speared) close to, if not past, that 'area' in Jikilaruwu sea country. (ii) The Activities will or may have the notable consequence of disrupting the Jirakupai songline or disturbing Jirakupai in his travels, and thereby of damaging the spiritual connection of the Jikilaruwu people to the areas of the sea country through which the pipeline will pass. (b) Secondly, the ancient Ampiji dreaming of the Jikilaruwu, Munupi and Malawu people in which Ampiji travels out to the deep sea and is caretaker of the sea: (i) There is an Ampiji who travels around the Tiwi Islands and is caretaker of the sea for the Jikilaruwu, Munupi and Malawu people, including out to the deep water and thus to the area of the pipeline. (ii) The Activities will or may have the notable consequence of disturbing Ampiji and thereby of damaging the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of the sea country through which the pipeline will pass. (c) Thirdly, the Ampiji dreaming of the Jikilaruwu, Munupi and Malawu people in which Ampiji does not just (as long believed) travel out to the deep sea and act as caretaker of the sea but also (as perhaps only recently adapted) lives in the freshwater source under the sea and to the west of the pipeline: (i) On the potentially-adapted belief of the Jikilaruwu, Munupi and Malawu people (or any of those people), there is an Ampiji that is connected to and resident in the freshwater source to the west of the pipeline. (ii) The account of Ampiji living in the freshwater source is a 'cultural feature' because it is either or both of: (A) first, a natural adaption of the detailed framework of spiritual beliefs of the Jikilaruwu, Munupi and Malawu people about Ampiji; or (B) secondly, an ancient account that has been passed down by the Munupi people over millennia to at least Carol Puruntatameri; (iii) The Activities will or may have the notable consequence of disconnecting the Jikilaruwu, Munupi and Malawu clans from the Ampiji who lives in the freshwater source to the west of the pipeline; and thereby of damaging the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of the sea country through which the pipeline will pass. (d) Fourthly, the tangible Aboriginal cultural heritage deposited along the pipeline (including ancient burial grounds) that Wessex identified from a multi-month interdisciplinary investigation of the seabed into which the pipeline will be embedded and fixed: (i) There are or may be points of archaeological significance along the pipeline that are the remains of Aboriginal cultural heritage deposited during periods of lower sea level, including ancient burial grounds of the ancestors of the Tiwi communities near the pipeline. (ii) There is a 'real chance' that the preservation of ancient burial grounds of ancestors is of cultural significance to the Tiwi communities. (iii) The Activity will or may have the notable consequence of destroying, disturbing or exposing those remains. (emphasis added, footnote omitted) 848 The first three risks now incorporate an allegation of damage to a spiritual connection to areas of the sea country through which the pipeline will pass that was not previously articulated in that particular way. 849 I do not mean to criticise the applicants for articulating their case differently as the trial progressed. To some extent that can be expected in a case as fast moving and complex as the present. My intention is to correctly articulate and then address the case as finally framed. The amendments assist the Court to understand what is not intended to be pressed. But I am somewhat confused, in two respects. 850 As I understand the case as finally framed, the spiritual connection to sea country is advanced in connection with the first three risks as being a cultural feature that will be damaged by reason of the disconnection of people from their ancestral beings, or disturbance of song lines concerning those beings that are of spiritual and cultural significance to them. In other words, the damage to the "overriding" cultural feature of spiritual connection to the relevant sea country is framed as a consequence of damage to the more specific cultural features related to the song lines. 851 However, elsewhere in the written closing submissions, the spiritual connection to sea country appears to be relied upon as a cultural feature that may be damaged irrespective of the fate of the case founded on Ampiji (both traditional and adapted) and the Crocodile Man. 852 In addition, in its closing submissions, Santos asserted that the applicants had failed to establish that the area through which the pipeline will pass forms a part of the sea country of the Jikilaruwu, Munupi and Malawu clans. The applicants in reply submitted that Santos had fundamentally misrepresented and misunderstood their case. They submitted that they did not need to establish sea country, but only that they had a spiritual connection to areas of the sea country through which the pipeline will pass. 853 If Santos misunderstood the applicants' case on that issue, then so too did the Court. 854 A number of observations may be made. 855 The first is to recognise that the circumstance that an area is the country of an Aboriginal person in accordance with Aboriginal traditional laws and customs may readily be described as a cultural feature of an area. The circumstances that an area is the country of Aboriginal people in that traditional sense is a circumstance that creates an interest sufficient to make those people collectively "relevant persons" for the purposes of reg 11A of the Regulations. So much was confirmed in Santos. But that circumstance in and of itself is not sufficient to trigger the obligation in reg 17(6). 856 Next, the evidence of the three applicants themselves is plainly founded on an assertion that their clans have interests in "country" that forms a part of their respective estates, which itself forms the basis for their authority to speak for that country and the source of their responsibility to care for it. 857 In his witness statement, Simon Munkara (the first applicant) spoke of his connection to Jikilaruwu country through his father's side. He described his position as the chair of the Tiwi Land Council as a big responsibility requiring him to be a leader of his clan group "and also for the Tiwi community". He said that the Jikilaruwu have authority "for the Sea Country that surrounds our land". He said, "[t]hat is Jikilaruwu Sea Country that we speak for". The injunction was granted in part on an assertion that Simon Munkara was a "traditional owner". 858 Carol Puruntatameri (the second applicant) based her statement on her knowledge as an Elder, Senior woman and "traditional owner" of the Munupi clan. She described herself as having authority to speak for Munupi "from the west of Munupi land to Sea Country that is north of Munupi Country". She described herself as holding various roles within the broader Tiwi Island community, including on projects that aim to "bring back strong Tiwi culture to our young people". She described her connection to sea country in terms summarised at [372] and [373] above. 859 The third applicant, Maria Tipuamantumirri, said that her country was Malawu, and that she got her authority to speak for Malawu from her father's side. She described in detail the nature and sources of that authority and the activities she had engaged in over her life to acquire and share knowledge. She said "[o]ur spiritual power as Tiwi people is our culture. When we combine together to tell our stories, our culture is strong". She spoke not in terms of ownership, but in terms of "responsibility for our land and sea". Among other things, she said, "[h]aving the pipeline there, going through our sea country, is polluting". 860 As the Court understood it, the case throughout the trial was founded on the nature of Aboriginal relationships to land and waters derived from their belief system about the absolute integration of all living things, the inseparability of people from the land and non linear concepts of time. The applicants themselves describe a relationship to sea country as one that exists because it is their sea country. That is not of course an assertion of proprietary ownership, and nor need it be. But it could only be an assertion that, in accordance with their traditional laws and customs, areas through which the pipeline will pass are extensions of their respective land estates and, by virtue of that fact, are areas to which they have a connection incorporating a sense of care and responsibility. That is the case presented on the evidence and as readily understood in the arguments preceding written closing submissions. It extends into the body of the closing submissions themselves, including this statement (at [18]): To succeed in this proceeding, it is necessary for the Applicants to prove no more than that any of the Jikilaruwu, Munupi MalaMalawuwu [sic] and Munupi people have any of the 'cultural features' specified above in paragraphs 15(a) to 15(d); especially when evidence in respect of any of the particularised manifestations of the connection to sea country is read alongside the evidence concerning the deep and abiding spiritual connection of the Jikilaruwu, Munupi and Malawu people to their areas of sea country. (emphasis in original) 861 The argument in the reply submissions appears to be that there exists a spiritual connection of the relevant clans to areas of the sea that is not related to their assertion that it forms a part of their country, that is, a part of their traditional estates. The written submissions do not articulate what that connection is. Instead, there are repeated references to Ward (decided in a native title context), and the repeated assertion of a "spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of the sea country through which the pipeline will pass". 862 Even if the case were permitted to be amended now, it should fail for its ambiguity and for its incongruity with the evidence of the applicants themselves concerning the nature and source of their relationship with the relevant area. In the course of the trial the applicants' multiple Counsel did not object to the admission into evidence of significant testimony concerning the extent of each clan's land and sea country without objecting on the grounds that the issue was unnecessary to decide. The Court has been asked to accept that only the Jikilaruwu can speak "for Jikilaruwu country" and every Santos witness was cross-examined on the point. I am puzzled by the submission that the question of whether the area of sea does or does not form a part of a clan's country need not be decided. A case founded on a spiritual connection to waters not founded on an assertion that the waters formed a part of a clan's estate is an ambiguous shift in the applicants' claims. It should fail for that reason alone. 863 To the extent that the pipeline will pass through any part of the sea country of any one of the relevant clans, I would have no difficulty concluding that the people of those clans have a spiritual connection to that area by reason of the lay evidence adduced in these proceedings, as understood against the general statements of principle discussed in Ward and the anthropological evidence (both general and specific) adduced in the proceedings. 864 If the question were necessary to decide I would conclude that the evidence adduced in these proceedings was sufficient to prove to the requisite standard that the coastal waters closely adjacent to the Tiwi Islands form a part of the respective estates of the coastal clans and are waters to which the people of the respective clans and Tiwi Islanders generally have a spiritual connection. However, it does not follow that the estates (or the waters of the Tiwi Islanders as a whole) necessarily extend into the wider sea. 865 The case presented by the applicants was one that in many respects invited the Court to extrapolate from general statements about the sea into the wider ocean, and that sought to directly apply general statements in the academic literature about the nature of sea country to this case without an appropriate evidentiary foundation. 866 To my mind, the question of whether an area of the sea is the "sea country" of an Aboriginal group, is one that is closely related to "song lines" having territorial components. In native title jurisprudence, evidence of communally held beliefs in ancestral beings and their travels is routinely adduced as a means of explaining at least the general location of the "country" of a claimant group. The word "country" in that sense is a broad concept, encompassing land and waters to which the people have a connection. 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. The spiritual connection may in turn be manifested in the telling of stories about foundational creation myths explaining features of the landscape or particular species. In that area of jurisprudence, the concepts of "song lines" and "country" are English words that attempt to explain and differentiate between concepts in a way that may not accord with Aboriginal understanding. 867 Mr Lewis confirmed that the references in the evidence in this case to cultural authority mostly related to ownership of country and the right to speak for it, which is reflected in the Tiwi social organisational system. He said that at another level there may be cultural authority associated with song lines where there was "usually a territorial base", such that there may be territorially based ownership, responsibility and authority for part of a song line. There may in that sense be a shared responsibility for a song line that extends into another clan's country. He explained: … the song lines themselves serve to bring clans together and joint ownership of bigger picture stories. And so the individual elements of those stories come together, and the authority to speak for those is often something which, at the highest level, gets expressed in ceremony … 868 That expression of general principle accords with the Court's understanding of how the concepts of "song lines" and "country" can be difficult to disentangle. It leads me to conclude that the question of whether the applicants in this case have proven that they have a spiritual connection to sea country through which the pipeline will pass is so intricately connected with the question of the travel and residence of the ancestral beings in question that I should not consider one in isolation from the other. 869 I turn now to consider the evidence concerning traditional accounts of Ampiji and the Crocodile Man.

TRADITIONAL ACCOUNTS OF AMPIJI AND THE CROCODILE MAN 870 These aspects of the applicants' case are framed in [15(a)] and [15(b)] of their written closing submissions. In Part V of these reasons I deal separately with the adapted Ampiji account articulated in [15(c)], but it will be necessary to consider some of the evidence relating to the adapted account in resolving the present enquiry.

Common ground and controversy 871 The first observation that may be made of the Tiwi evidence in connection with the traditional accounts is that they reveal a considerable amount of common ground as well as a considerable amount of divergence or dissent. 872 It is important to emphasise that Santos readily accepted that Ampiji can be thought of as a foundational creation narrative for all Tiwi people. There were common responses in the Anthropology Joint Report on that issue. Santos also accepted that the evidence supports a finding that there is a creation story for an Ampiji that resides in Lake Mungatuwu on Bathurst Island. 873 Santos accepted that most witnesses gave evidence that Ampiji is caretaker of the land and the sea, and that she travels in the sea around the Tiwi Islands. 874 The anthropologists were asked to consider this extract from the work of John Morris titled, The Tiwi: From Isolation to Cultural Change: A History of Encounters Between an Island People and Outside Forces (NTU Press, 2001) (at page 15): The establishment of buffalo-shooting camps on Melville Island, especially Paru village, possibly made it easier for the Tiwi to accept the construction and presence of the new mission station. The Tiwi did not object to the newcomers clearing land for the station but when a well was dug by Gsell and the Manila-men, the Islanders feared that Ampiji, the Rainbow Serpent of the Tiwi, would be disturbed and attack them. When Gsell and his workers showed no fear of Ampiji and the latter did not appear from the well the reputation of Father Gsell among the Tiwi was ensured. To the Islanders he was the Angawa-rringani ('our father' or 'priest') or Tirnima ('Whiskers'). He still had to gain the confidence of the Islanders, however, and this would not come until the women and children freely visited the mission he was still slightly suspect. In the meantime, through the provision of food and tobacco, a steady, though casual, work force was established. (footnote omitted) 875 Mr Lewis said that the extract expressed the fear that if you disturbed a place associated with Ampiji there would be repercussions physically and possibly spiritually. 876 Dr Corrigan agreed that the extract broadly confirmed that Ampiji lived in freshwater on Bathurst Island and Melville Island and also that it confirmed that there was a view toward not disturbing freshwater places. He said that the place of the well might have been a "named" Ampiji place, but the extract was too lacking in detail to draw other conclusions. 877 There is also considerable common ground in relation to the Crocodile Man narrative. As Santos correctly submitted, the evidence is sufficient to support the existence of a belief among the Jikilaruwu people to establish a commonly held belief in a song line having the following content: (1) the Crocodile Man was the owner of land at Wiyapurali in the west of Bathurst Island near Cape Fourcroy; (2) he was a selfish man who would not share his land; (3) while he was making spears, members of the Jikilaruwu tribe speared him in his back; (4) he ran away to the closest water with the spears in his back creating the nodules and the tail of a crocodile; (5) he crawled along the beach crying out in pain and dived into the sea; (6) after diving into the sea, he then surfaced for air far out in the deep water; (7) then all the people came to watch him. "You are now a crocodile," they all shouted. "Your name will be crocodile," they said; and (8) the Jikilaruwu named him "Jirakupai", which is the Tiwi word for crocodile. 878 It is unnecessary to cross refer those propositions to my summaries of the Tiwi testimony or other sources of evidence, as they are not disputed. Dr Corrigin described the story of the Crocodile Man as "very well-known and routinely quoted". 879 As discussed in Part V of these reasons in connection with the adapted Ampiji account, there was some evidence contained in O'Leary 1 in the nature of an opinion that the Crocodile Man did not enter the sea at Wiyapurali but rather at a place in the now submerged ancient landscape far to the west of the modern day Tiwi coast and in the vicinity of the pipeline. I place no weight on O'Leary 1 for present purposes (or any purpose). 880 Tiwi accounts of the Crocodile Man story (whether given in testimony in these proceedings or recorded in accounts given to anthropologists) revealed three areas of difference. 881 The first relates to the place in the sea where the Crocodile Man surfaced for air. The second relates to the extent of his travels more generally. The third relates to the question of whether the Crocodile Man would be interrupted in his travels or otherwise disturbed by the pipeline. 882 The divergence in the witness accounts reflects what Dr Corrigan encountered in his field work. Dr Corrigan said that from what informants told him, particularly on boat trips, he understood that the Crocodile Man story occurred at Wiyapurali (the beach at or near Cape Fourcroy) where the Crocodile Man was speared. He said: … The Crocodile Man story, as to how deep, I thought it was interesting that people certainly all agree on deep water. I'm not sure how deep water needs to be before it is defined as deep or how far out from shore it needs to be, but I accept that the Crocodile Man might go all number of places. I imagine he could be quite mobile. People that I interviewed and that members of my team interviewed confirmed that people primarily talk about the travels being, you know, sort of somewhat in the near to shore area. I don't - I never - I didn't document any specific outward travel from the Cape to a hypothetical underwater lake. I just - nobody said that to me, until more recently where it has now become something that people are saying. … 883 An overarching area of controversy relates to the relevance, if any, of the fact of disagreement, dissent or contradiction in the accounts of different individuals, which incorporated arguments about how the Court should approach its fact finding task. The disagreement in this aspect of the case is whether Santos is correct in its submission that there was "nothing like consensus" for the narratives put forward by the witnesses about an Ampiji that travels in the wider oceans, being an Ampiji that would be disturbed by the pipeline. Santos submitted that Dr Corrigan's work (and implicitly the evidence in this case) did not record a "sufficiently cogent basis" to support the applicants' contentions about these "cultural features". Those submissions invite the question as to whether it is correct to search for a "consensus". 884 That topic was the subject of expert evidence from the anthropologists. Before turning to it, it is necessary to address the parties' more general submissions about the weight that should be afforded to their respective opinions.

The anthropologists 885 The nature and urgency of these proceedings and the context of the General Direction differed from usual contexts in which anthropologists engage with their informants and with this Court. Dr Corrigan, Mr Lewis and Dr Benton had engaged with Tiwi Islanders in 2023 for the purposes of the consultative process required under the General Direction. However, their participation as experts in the proceedings came about in circumstances of some urgency. For the most part, they have appropriately qualified their opinions by reference to limitations in their work arising out of the compressed timeframe. Unlike proceedings commenced under the NT Act or the Aboriginal Land Rights Act, the deadlines fixed in this action were very tight, not only for the preparation of supplementary reports following the lay evidence, but also for the conduct of pre-trial conclaves, the preparation of joint reports and the concurrent evidence sessions. The anthropologists were unable to undertake research to a level ordinarily preceding a land claim hearing. The Court is grateful for their efforts in narrowing the issues in dispute in the anthropology pre-trial conclave, carried out with the helpful assistance of the facilitator. 886 As the anthropologists correctly observed, the urgent nature of the proceedings and the long hearing days may also have created difficulties for lay witnesses that may not otherwise have arisen in a different legal context. Time did not permit evidence to be adduced on-country and the timeframes for the preparation of written witness statements were very short. 887 I have assessed all of the lay and expert evidence with those limitations and difficulties in mind. 888 There is less documented ethnography on Tiwi cultural life than there is for Indigenous groups of the Australian mainland. The ethnographic literature must be considered in its appropriate historical context. One limitation is that it largely comprised the observations of white male anthropologists who may not have recognised or documented women's cultural lives or cultural authority. Necessarily, it does not include material that was not elicited by past anthropologists because of other cultural restrictions. 889 All anthropologists agreed that the ethnographic records are nonetheless relevant and can assume some importance, but emphasised their limitations and the preference for reliance on accounts of present day Tiwi Islanders as to their present day culture and beliefs, usually acquired by on-country site visits and by way of interviews. The weight of the evidence in the present case is that women's "cultural authority" (particularly the authority to know and tell stories) is as pervasive as that of men and acquired in much the same way. No Tiwi Islander mentioned gender as a basis for restricting the sharing of information generally or in relation to a particular Dreaming story, belief or practice upon which these proceedings turn.

Methodology 890 In Part V of these reasons I record my conclusions about the lack of assistance I derived in the content of Kearney 1 and my preference for the content of McWilliam 1. I there record why I adopt the opinion of Dr McWilliam in concluding that the methodology underpinning Corrigan 1 is superior in several respects to the methodology underpinning Lewis 1. I will not repeat those observations here. 891 Also in Part V of these reasons, I identify a concern I have about the independence of Mr Lewis arising out of events occurring at the May Lewis Meeting. That particular concern is not so grave as to warrant the wholesale rejection of his opinions. It is one fact that has led me to reject the opinions stated in Lewis 1, when considered together with other matters. All of that is explained in Part V below.

Cultural protocol 892 Among the multiple factual disputes is a question about whether anthropologists interacting with Tiwi Islanders ought to have agreed to comply with a "Cultural Protocol". There is an issue about whether it truly represents the views of Tiwi Islanders, or whether it was drafted by the EDO in a litigious context for a limited number of its clients. To the extent that it has been suggested that any particular anthropologist failed to comply with its terms, the specific failure has not been clearly articulated and I am not satisfied that resolution of that debate will affect the outcome of these proceedings in any event. I place little weight on the issue, particularly in light of the evidence of Pirrawayingi Puruntatameri, a Tiwi Islander who was said to have been an author of the document (including in his own witness statement) but when shown the document in cross-examination appeared to be unfamiliar with it. 893 In addition, Dr Kearney's vehement criticism of Dr Corrigan for an alleged failure to agree to adhere to the protocol (expressed in Kearney 1) was not accompanied by examples as to whether that alleged failure had any practical implications for Tiwi Islanders and the manner in which they engaged with him, or any other anthropologist for that matter. For example, whilst adherence to gender restrictions is plainly important, not one Tiwi Islander suggested that as a reason for not sharing. To the extent that Dr Corrigan at times consulted separately between the genders (on boat trips for example) it has not been shown that his doing so has any real consequence for any one of the multitude of issues I need to decide. 894 Similarly, in relation to intellectual property rights (another theme of Kearney 1) it has not been suggested by any Tiwi Islander that they in any way expected that the stories that they shared with Dr Corrigan should not be conveyed to Santos or to NOPSEMA. To the contrary, it was plainly their intention that they should be. The evidence they gave in these proceedings shows that they were a sophisticated and generous people who were, in general, acutely aware of the consultative processes occurring throughout 2023 and the role of anthropologists in that process.

Reliance on anthropologists more generally 895 Dr Benton's participation in the Anthropology Joint Report and the concurrent evidence session was limited. She appropriately declined to participate in exchanges that were not within her field of expertise. Whilst there were challenges to her expertise to express opinions as a co author of Corrigan 1, I do not consider the resolution of that question makes any difference to the outcome. The applicants focused principally on the opinions of Dr Corrigan, attacking them and willingly adopting them in equal measure. 896 I have approached the evidence of Dr Kearney with some caution for two reasons. First, Dr Kearney was a co-author of the Knowing Sea Country Report that was sent to Santos and to NOPSEMA by the EDO on behalf of the applicants and others on 15 December 2022. That report contained express recommendations directed specifically to Santos and relating specifically to the pipeline. Dr Kearney's co authorship of that report is a factor relevant to my assessment of her independence. So too is her failure to clearly disclose to the Court her prior involvement in a report containing direct recommendations based on asserted harm to cultural heritage on the sea bed. In cross-examination, Dr Kearney sought to downplay her involvement in the Knowing Sea Country Report, stating that being named fifth in the list of authors indicated that her role in it was minimal. I was not impressed by that response. Given the content of the report and its direct application to the issues in dispute in these proceedings, involvement in its preparation ought to have been clearly disclosed. My concern about Dr Kearney's independence is heightened by the intemperate language of the opinions in Kearney 1, which I consider were expressed in ignorance of some matters about Dr Corrigan's approach. Her language implicitly (if not expressly) accused Dr Corrigan of professional misconduct, including because of her perception that he had disregarded intellectual property concerns of the Tiwi Islanders. There is nothing in the evidence before me to support a finding that he did any such thing. 897 Whilst I have rejected some of the opinions of Dr Kearney and Mr Lewis and expressed some concern about their independence, their participation in the concurrent evidence session was otherwise measured and helpful. I have adopted their opinions with respect to some matters explaining general anthropological principles and their application to Indigenous societies, particularly those that had the agreement of other anthropologists.

Cultural authority and the relevance of dissent 898 Both the applicants and Santos acknowledged that in determining the existence, content or meaning of a song line, preference should be given to those persons who have "cultural authority". However, in my view, the question of which persons have "cultural authority" cannot be asked in the abstract: the answer must depend on the purpose for which the question is being asked. As Mr Lewis said in the anthropology concurrent session: It's a pretty loose term which can mean a lot of things to a lot of different people … I guess it's about who has rights to speak on specific matters, and the specificity of the matters determines what the cultural authority is. It's as vague and as accurate as it possibly can be. 899 In their oral evidence, all of the anthropologists agreed that "cultural authority" is traditionally gerontocratic but also appears to be increasingly about "patterns of learning along with perceptions of social capital derived from life history and effort". They said that authority is based both on genealogical seniority and on the graduated acquisition of knowledge through revelation in ceremonial participation and other learning events. The gradual acquisition of social capital and knowledge was articulated in different ways by different witnesses, and is perhaps best illustrated by at least two members of a younger generation describing themselves as "up and coming" Elders or leaders. 900 One aspect of cultural authority referred to repeatedly in the evidence is the authority to speak for country. There does not appear to be any dispute that, generally speaking, the members of the clans that together form Tiwi society have the "right" to speak for the country of their clans, which may be understood to incorporate responsibilities for the care of that country. But that circumstance does not mean that the people of a particular clan do not form a part of a wider society of Aboriginal people, defined by a normative system of laws and customs, nor does it render the societal context irrelevant. Indeed, the evidence (interpreted through the anthropologists) shows that the question of who may speak for which part of the Tiwi Islands or surrounding waters is itself a subject about which the traditional laws and customs of all Tiwi Islanders have something to say. That normative system of shared laws and customs explains how different clan groups interrelate with each other. Customs and practices relating to totems and avoidance relationships also have something to say about the relationships between subgroups of people as members of the wider Tiwi society. 901 Against that background, the applicants employed the phrase "cultural authority" in at least two ways. First, it was used in an exclusionary sense that invited the Court to discount a view of any non-Jikilaruwu person with respect to the Crocodile Man story on the basis that such persons could not have authority to tell Jikilaruwu song lines. That approach extended (albeit to a lesser extent) to an assertion that in respect of the Ampiji story, the only authorised people were the people of the Jikilaruwu, Munupi and Malawu clans. 902 On the evidence before me, I can comfortably conclude that there is a Crocodile Man song line of significance to people who are members of the Jikilaruwu clan by virtue of patrilineal descent and perhaps by others who are connected with the Jikilaruwu clan by (for example) identifying with their mother's country. The evidence also shows that other clans may have song lines or beliefs relating to the crocodile species, and care must be taken so as not to equate those different accounts with the plainly established story to which most of the evidence before me related. That plainly established narrative concerns a shape-shifting being who entered the water at Cape Fourcroy as a man with spears in his back, and emerged in the sea transformed into a crocodile. I accept the applicants' submission that the focus is on that particular song line. Santos does not deny its existence. 903 It must also be borne in mind that the case alleged by the applicants with respect to that song line is one that alleges spiritual connection of the Jikilaruwu people to an area of the sea through which the pipeline will pass. Proof that people from other clans do not share that spiritual connection may of itself be irrelevant. However, it does not follow that non-Jikilaruwu cannot give relevant evidence with respect to some facts that bear on the outcome of that aspect of the case. 904 Having said all of that, a finding that a particular witness has "cultural authority" to tell a Jikilaruwu song line brings the enquiry to a point at which there are differing views among multiple people who have equivalent cultural proficiency or authority within the same clan. The approach of the applicants in response to that difficulty is to invite the Court to prefer the evidence of their witnesses to the evidence of the witnesses called by Santos on all questions relating to the Crocodile Man, whether it be the extent of his original path, or the wider area of his travels (if any). 905 That invitation skips a beat. It seems to me that the very existence of divergent views on an aspect of Jikilaruwu cultural life (and how they may be resolved) is itself a matter about which Tiwi people would have something to say, but the question simply was not addressed adequately or at all. The focus of the applicants' evidentiary case was to identify who had cultural authority and who did not. But it did little to assist the Court in determining how to resolve divergences of views within (for example) the same family.

Expert evidence concerning cultural authority 906 At least at the level of decision-making, the evidence is that contentious issues arising within a clan group are traditionally and customarily resolved collectively by the process of a clan meeting. But the evidence is otherwise scant as to the cultural laws or lore that may come into play at the level of the clan to resolve differences going to something as fundamental as the geographical reach of a song line, a question so closely connected with the clan's identification with and connection to country. 907 The opinions expressed in Lewis 1 did not deal with these themes because they are founded on an incorrect assumption that there were no dissenting views. 908 In Corrigan 1, Dr Corrigan and his co authors made it plain that there existed a wide divergence of views on critical topics relating to the pipeline, including the content of the two song lines in issue in these proceedings. Dr Corrigan said that many Tiwi persons sought to ground their expression of views in a way that reflected "understood and pre-existing expectations of compliance with traditional decision-making processes". In a passage that attracted strident criticism by the applicants, Dr Corrigan went on to say (at [101]): In my experience, various contemporary forms of decision making processes adopted around Australia, including the Tiwi Islands, are informed by observable forms derived from traditional structures, such as the operation of a jural public, the public and timely declaration of any issues to be considered and what procedures should apply to decisions required by any particular issue or proposal, respect for elders, the opportunity for all relevant persons to talk, consideration of highly esteemed individuals to bring weight to their views which may be more relevant to some sorts of issues than others, and so on. The conduct of meetings of Tiwi Islanders that I have attended as part of this research shows that these elements of decision-making processes are ubiquitous in this context. 909 The applicants submitted that Dr Corrigan had an unwarranted obsession with the need to find some form of consensus among Aboriginal people, an approach that was said to evidence (among other things) ignorance about the need to speak only to those persons who had cultural authority on a particular topic. It was said that Dr Corrigan had based his views on a strength by numbers analysis and that he had therefore wrongly attributed weight to the accounts of (for example) non-Jikilaruwu people on topics about which those people had no authority to speak. 910 I do not consider that to be a correct description of Dr Corrigan's methodology. In earlier parts of the report, it is plain that Dr Corrigan was acutely aware of the need to speak to persons having the relevant knowledge and authority. He made initial approaches to the Tiwi Land Council, not for the purpose of securing a majority vote from the board of that body, but for the purpose of making preliminary enquiries about who were the most appropriate people to speak to on the topics falling within his brief. He reported that as a consequence of that approach, he was referred to culturally appropriate people, who then, in turn, referred him to others. Whilst Dr Corrigan conducted meetings which included Tiwi Islanders from all of the clans, he also arranged for there to be separate meetings with members of separate clans, as well as procedures for there to be separately gendered sessions. 911 Furthermore, the phrase "jural public" as it appears in Corrigan 1 is to be read in its proper context. It does not indicate that Dr Corrigan took anything like a strength by numbers approach in the formation of his opinions. The conclusions contained in the report are conclusions that expressly recognised that there was a divergence of views, without Dr Corrigan selecting which of those views should be regarded as objectively correct. As elaborated upon in Dr Corrigan's oral evidence: The operation of the jural public is something that's emerged primarily out of native title claim research. It's about - it's contextual. It's multi-tiered. It's something that can be brought to bear on whether or not somebody is married correctly and whether or not a young person is doing what they should be doing in their lives or in their practices. It can be about, as Dr McWilliam has just mentioned, it can be about competition who has better ritual knowledge taken the other and things like that. The operation of the jural public is typically - will come together in a manner that might be necessary to treat with the particular issue at hand. If the issue at hand is, is the version of the dreaming narrative correct or otherwise, then that's much more the domain of persons with more developed ritual knowledge. So as to - that then can be contested, of course. You know, that person has more ritual knowledge than that person, and they might reject that and there might be discussions about that. So it's a sort of a moving feast. But I think it's the - I think it is an accurate understanding of how Aboriginal communities operate with regards to contextualised issues. 912 It is true that in many instances, the identity of Dr Corrigan's informants is not disclosed and that, accordingly, the question of whether they had cultural authority to speak on a topic is not apparent on the face of Corrigan 1 itself. Dr Corrigan is not to be criticised for that. He explained that he considered it appropriate to respect the anonymity of some informants given that the topic of the pipeline had become so contentious. This Court has before it all of the field notes recorded by Dr Corrigan and his team, and those notes are now employed by the applicants to assist their case, including by naming the informants concerned and asserting their authority to speak. 913 Some further evidence emerged from the anthropology concurrent session that is relevant to this issue. 914 Dr McWilliam expressed the view that he considered it troubling that accounts of a Dreaming story could differ among different family members. Whilst he agreed generally with Dr Kearney's description of reasons why information might be withheld (discussed below), he stated that in circumstances where there was a threat to the narrative, one would expect that the information would then be forthcoming. In addition, Dr McWilliam said: Thank you. Well, do I find that a little troubling, I must say, as I said before. I agree with Dr Kearney and her comments, that's how I would also understand the nature of shared knowledge and how it's differentiated within the group. My experience - one thing that I think is important when you talk about a song line is that it needs to, for me, in my experience in the Western Victoria River District it's always about a pathway, a pathway through space in which events occur along a line. And the point about singing the line is that you're naming country as you go. And so what troubled me about this case is that there are names for the song lines on the Tiwi Islands and the foreshore, but there's no names in the sea. And I just find that an odd - an odd kind of inconsistency when we talk about song lines. That's the only thing I would add. If you're looking for song lines you need to have names or you need to have events which are articulated in the line. 915 Dr Corrigan stated that he agreed with Mr Lewis' view (expressed in Lewis 2 at [3.2]) that "ultimately, the prevailing view would be that of those with authority within the Tiwi community". 916 For the purposes of preparing the Anthropology Joint Report in the facilitated pre-trial conclave, the anthropologists were asked how (if at all) anthropology could assist in understanding, resolving or reconciling different accounts of the Ampiji (whether single or plural), the Crocodile Man and any other aspect of Tiwi spirituality referred to in the evidence. They responded: Traditionally based knowledge systems mean that personally acquired communal knowledge is contingently transmitted directly to an individual usually by parents, grandparents and/or other significant kin. Such knowledge will be ego, family and clan specific but will also be mediated within the broader social context of society demanded by the skin system, inter-clan life mediated by ceremony and politics. Differences are an unsurprising and regular part of social life. Anthropology can assist by positing these differences with their socio-cultural (and even economic and political) contexts and identifying how rights and interests are usually articulated within the normative system of Tiwi society. Anthropology can identify and provide understandings of traditional systems of land ownership and decision making which ideally can be suggestive of respectful ways to engage with differences of view in an informed and respectful manner. Both experts have attempted to do this but arrived at different conclusions in relation to Ampiji (whether singular or plural), the Crocodile Man and other aspects of Tiwi spirituality referred to in the evidence. 917 The oral evidence in the anthropology concurrent session otherwise assisted the Court in its search for an appropriate framework for assessing the Tiwi testimony. In response to a question as to whether there could be an anthropological explanation for multiple accounts of song lines to emerge in one family from one clan, Dr Kearney said: Okay. Well, from an anthropological perspective, the first piece of information I would need to share is that Indigenous knowledge is not free. That's a cultural convention that is an accepted understanding across all of the Indigenous contexts in which I've done my research over the last 25 years, and because knowledge is not free, it gets transmitted across generations in accordance to a number of different conditions and determinations. So it could be on the basis of first and foremost a clan distinction, and most Indigenous groups across Australia will use either a clan-based system or a subsection or a skin-based system. So a clan distinction is where the first decision is made in terms of how knowledge around song lines might be shared, because clan groups will own particular song lines. Now, once you progress past the distinction of 'clan' which will determine matrilineal, patrilineal lines of descent, so you will have a certain relationship to your mother's country or your father's country, and at the grand parental level as well, once you move past that point of distinction around the way song lines and knowledge might be shared, it will be a number of other factors. So it could be gendered. I think one of the most paramount ones to factor in is the significance around the way men hold song lines and women hold song lines. Now this could vary from context to context, and therefore it requires attention given whichever cultural context you're focussing on. So once you move through gender as a distinction it will come back to something that Dr McWilliam mentioned around ritual proficiency and ritual experience, so to what extent an individual has transitioned through various forms of ceremony which will usually align with a clan group. So once you are then factoring in ritual proficiency and experience, you also need to factor in generational distinctions around how an individual may or may not be made privy to the details of song lines and various other forms of ancestral knowledge. So generation is quite key and it does go to the point how different members in one family may acknowledge differently. So once you then - you've got eight - you've got genders, you've got generational distinction, you've got ritual proficiency. Then it might come down to individual character types. Elders often proceed through the real politic of making decisions about how knowledge is shared. Elders will proceed to make determinations about who is a good person to hold certain levels of law, and I'm referring to Indigenous law and song lines and various forms of ceremony and ritual knowledge and ancestral narratives are considered forms of law. So a kind of - I guess a kind of judgment and decision-making process is often undertaken by Elders in accordance with the clan authority around who would be a suitable person to carry a particular song line. So I think it's really important first and foremost to appreciate that Indigenous knowledge is not freely shared. A whole range of factors go into the decision-making process, which is quite burdensome sometimes for Elders, around who can and cannot hold particular knowledge about song lines. And often the best way to dig into an understanding of what is operating around who has access and knowledge of song lines is to appreciate and understand the historical decision-making processes that have occurred within a communal Indigenous context around how those knowledges would be shared. 918 Most of those theoretical explanations may be excluded on the facts of the present case. It was not suggested that information discussed in the evidence was culturally sensitive whether by reference to gender or otherwise. Nor has it been suggested that any person has been compelled to share information with the Court in circumstances that would breach a custom. Nor was it suggested that either of the song lines directly in dispute were the subject of Elders exercising caution with respect to the transmission of knowledge to younger generations. The evidence showed that, at the level of the clan groups and wider society, the information was freely shared, including in ceremony where all dances were performed together.

The Court's task and the applicants' onus 919 In light of the evidence given by anthropologists about the societal context, attention must now be refocussed on the particular case the applicants must prove. The relevant inquiry, in the words of the applicants themselves, is whether (in connection with Ampiji) the evidence shows that the Jikilaruwu, Munupi and Malawu people believe that the activities of constructing and embedding a pipeline into the sea bed in the area of sea country in which Ampiji travels and of which she is a caretaker "will impact the spiritual connection - the 'one indissoluble whole' of that religious relationship - that they have to that country by way of Ampiji's travelling in and care for that country" (citing Ward). The case in connection with the Crocodile Man can be stated in a similar fashion. 920 On that formulation of the case, the test with respect to Ampiji is not whether the applicants should be believed in their attestations to the Court as to what they individually believe. The test is what the Jikilaruwu, Munupi and Malawu people believe about Ampiji and what the Jikilaruwu people believe about the Crocodile Man. For each belief to constitute a "cultural feature" within the meaning of reg 17(6) it must be a belief of those people as a people. The articulation of the applicants' case itself inherently asserts the existence of a communally held belief. 921 The applicants invite the Court to discount and reject the views of certain witnesses, so as to then identify a consistent body of evidence among those witnesses whose evidence should be accepted. Accepting that to be the case, it would then be necessary to determine whether the applicants have discharged their onus of proof in light of that accepted evidence, having regard to matters affecting its relevance, sufficiency and weight in informing the question to be decided. 922 The sufficiency of the evidence has both quantitative and qualitative aspects that necessarily interrelate. The applicants may succeed on their case by adducing cogent and reliable evidence from a small number of witnesses provided that it is established that those beliefs are broadly representative of the relevant group or groups of people of which they form a part. I accept that the word "consensus" does not capture the question to be decided, nor does it precisely describe the correct forensic approach. But the applicants cannot ignore the fact that the "cultural feature" upon which they rely has a communal aspect to it, necessitating proof that their individual beliefs are broadly representative of the beliefs of other members of the group. 923 The enquiry as to what is broadly representative must itself be undertaken in the proper cultural context, including by assessing which persons are generally accepted as having authority to speak on the particular topic, excluding those persons who are culturally irrelevant. However, in my view, the nature of the enquiry is such that evidence of dissenting views of reliable witnesses cannot be ignored, because they tend against a finding that the beliefs asserted by some witnesses have broad acceptance in the relevant clan or clans. 924 Proof that the beliefs of the applicants' witnesses are broadly representative of the relevant clans will be more difficult in the face of discord within those relevant groups, and even more so when the discord is among persons of equivalent authority and persons having the same lineage. 925 Before turning to the evidence, I should emphasise (in case it is not by now obvious) that the Court's task does not involve a factual enquiry as to where a shape shifting crocodile in fact surfaced in the sea or where he in fact travels or whether he in fact exists in reality. Nor does it form any part of the Court's task to determine whether there is an Ampiji or to define in a factual sense the extent of her travels. The case is one concerning states of mind, not objective facts of that kind.

Additional evidence concerning Ampiji 926 It is necessary to deal first with a submission of the applicants that permeated this topic. The submission was that Dr Corrigan had drawn a conclusion that precluded Santos from submitting that the Ampiji "cultural feature" did not include Ampiji as a being that travelled in the wider oceans and thus in the vicinity of the pipeline. The conclusion relied upon is recorded at [3] of Corrigan 1 and is extracted at [80] of these reasons. Dr Corrigan there concluded that a "consistent theme" had emerged among some informants that Ampiji routinely traverses all of the sea in the vicinity of the islands and the pipeline route, and that she may be disturbed by the laying of the pipeline and cause spiritual and physical harm to people. 927 That conclusion has too often been taken out of context by the applicants, ignoring that it referred to a consistent theme among some informants. Their submissions are to the effect that the evidence of Santos's witnesses in connection with Ampiji could and should be rejected if it is inconsistent with the conclusion. I will not reject the evidence of the Santos witnesses on that basis. The fact that the witnesses gave differing accounts simply means that they were not among the "some informants" to whom Dr Corrigan referred. 928 Dr Corrigan was not briefed to determine whether there exists a "cultural feature" as alleged in these proceedings. He did not seek to resolve the differing views told to him by the informants. Rather, he reported on their existence. The passage relied upon forms but one part of the whole of Corrigan 1, and it must be read in the context of other passages that report on a wide divergence of views. Below are some summaries of informant accounts contained in other parts of Corrigan 1. I have had regard to them, whilst emphasising that they are not conclusive. 110. Two locations which are the closest to the proposed GEP where Ampitji are said to reside on Bathurst Island are at Mangatuwu (a lake in the south west coastal strip and at Rocky Point in the north west section of the island). These references are made by Tiwi Islanders including senior members of all of the relevant clans on the Tiwi Islands, across genders. Notably, we passed these locations on the various boat trips organised for delegates to visit the vicinity of the proposed GEP at sea. On these occasions relevant Tiwi Islanders would call out to the country, spirits of ancestors and Ampitji to assure them that correct people were taking visitors to 'look around' in a proper manner. This, we were advised, is the correct way of taking people around and introducing them to the country and the spirits within it, so as to ensure the visitors physical and spiritual wellbeing. 111. As I have described above, 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 exists in the sea country surrounding the Tiwi Islands. … 128. The two separate beings who are understood to travel around in these waters to the west of Cape Fourcroy are Jikakupai (the Crocodile Man) and an Ampitji (Rainbow Serpent/spirit with a rainbow appearance), ordinarily resident at Mungatuwu (a well-known sacred lake on the south coast of Bathurst Island), this also includes an Ampitji who ordinarily resides at Rocky Point (in the northwest sector of Bathurst Island). Some say that the Ampitji known to inhabit Rocky Point and Mungatuwu are the same being, others say they are different and yet others say that Ampitji do not go in the seas. 129. In some variations of the stories of the travels of Ampitji in the waters in the vicinity of the proposed GEP that were put to me, it was stated that there are a plural number of Ampitji who traverse the waters in their role of 'guardians' and 'caretakers'. In other instances, Tiwi informants advised that they do not believe Ampitji go in the sea waters at all but rather restrict themselves to fresh water. It was emphasised by persons stating that Ampitji stay in freshwater that Lake Mungatuwu is a fresh water source - albeit one that seeps into the sea at a beach we visited as part of boat trip #3 (8 June 2023), with female delegates co-ordinated with the EDO and their clients. … 177(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 Tiwi's, 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) 929 Each of those passages is to be read in the context of the others and the oral evidence given by Dr Corrigan that puts them into context. The oral evidence about the boat trips included evidence that "calling out" was directed toward the Tiwi Islands from the boat as the land country of each clan was passed. 930 Moreover, whilst the accounts obtained by Dr Corrigan are relevant, the Court can determine for itself what those accounts say. Summaries of the material as contained in Corrigan 1 must be understood as just that. In addition, the field notes contain accounts of the concerns that individuals expressed. Dr Corrigan was not specifically briefed to find and identify persons who held no concerns at all about the effect of the pipeline on the travels of Ampiji. Nor are the field notes to be regarded as a poll on the issue in which participation was compulsory. Persons having no concern about the pipeline may not have considered it necessary to engage with Dr Corrigan at all. 931 To the extent that the field notes contain accounts of what a witness in these proceedings told Dr Corrigan, I have had regard to them, but generally place more weight on their direct testimony in the proceedings. I place less weight on the accounts of persons who were not called to give evidence. The field notes and views expressed in Corrigan 1 generally reflect the reality that there is a divergence of views. In addition, Dr Corrigan's reports do not discriminate between informants on the basis of cultural authority. Whilst he referred to the jural public features of Tiwi culture, he does not report that contentious questions had been resolved between Tiwi Islanders in accordance with any particular law or custom.

Tiwi evidence 932 The Tiwi testimony relied upon by the applicants (and now cross-referenced in these reasons) records Ampiji going or travelling: (1) into the deep water (Dennis Tipakalippa, [321]); (2) way out into the sea (Ancilla Kurrupuwu, [452]); (3) in the sea (Molly Munkara, [420]); (4) in the sea around the Tiwi Islands (Maria Tipuamantumirri, [398]); (5) out into the ocean from Lake Mungatuwu (Maria Tipuamantumirri, [476]); (6) around the coastal waters (Maria Tipuamantumirri, [493]); (7) in that sea country where the pipeline will go (Pirrawayingi Puruntatameri, [270]); (8) in Jikilaruwu water (Simon Munkara, [524]); and (9) far in the sea (Therese Bourke, [343]). 933 Valentine Intalui, when asked more than once to describe the waters in which Ampiji travelled, replied, "Jikilaruwu" without further explanation ([557]). Dr Corrigan also gave oral evidence about Valentine Intalui saying, whilst on the 9 June Boat trip, "Ampiji is listening at this moment. Probably in the sea right now watching". 934 The applicants relied on field notes recording prior statements of the witnesses, as well as accounts from informants not called to give evidence. They included this account attributed to Wendy Miller of the Wulirankuwu clan: Concerned the pipeline is too close. Could see island on boat & Coral. Rainbow serpent lives in this area - might hear drilling. 935 And this from Michael Woody of the Jikilaruwu clan: Rainbow serpent lives deep in seabed around the island. Pipeline may upset serpent and cause accidents to happen. Moves around the island. Bad things might happen to the workers who disturb seabed. 936 And this from Edward Puruntatameri of the Malawu clan (who was named in other evidence as a person having cultural authority within that clan): Dreaming area along the western coast - rainbow serpent. Will disturb serpent and impact Tiwi life 937 The applicants also relied on the explanation given by Pirrawayingi Puruntatameri of the rainbow serpent/Ampiji dance (in the video filed 3 December 2023) as involving actions that signified how Ampiji moved through the water. They submitted that evidence was consistent with accounts of an Ampiji travelling in the ocean in the vicinity of the pipeline. I do not accept that evidence supports a finding about where Ampiji travels. However, it does reinforce the uncontroversial fact that Ampiji is a foundational and important ancestral being to those performing the dance, as she is to the broader Tiwi community more generally, and that she moves in water. 938 The Tiwi testimony also included descriptions of the protective role of Ampiji, specifically her role in protecting the Tiwi Islanders and her role as the "caretaker of the sea". Evidence to that effect was given by John-Louis Munkara, [743]; Mario Munkara, [763]; Ancilla Kurrupuwu, [452]; Carol Puruntatameri, [370]; Dennis Tipakalippa, [321]; Maria Tipuamantumirri, [398]; Molly Munkara, [420]; and Simon Munkara, [505]. 939 Those witnesses who said that Ampiji travels in the vicinity of the pipeline also spoke of their belief that she would be disturbed or angered by the pipeline and may cause harm to them and/or to the workmen who were constructing the pipeline.

Yiminga 940 The assertion that there is a spiritual connection to areas of "Sea Country" through which the pipeline will pass (being "country" of a particular clan) needs to be understood against the abandonment of the standalone claim that there is Yiminga in the sea (originally asserted at [5(4)] of the applicants' written opening submissions and then expressly abandoned), the narrowing of the case to confine claims of Yiminga as being connected to Ampiji and the places of her travels (persisted with at oral closing submissions) and the absence of any reference to Yiminga at all in the finally articulated case (at [15] of the written closing submissions). 941 In its closing submissions, Santos understandably observed that it appeared that the applicants had abandoned their case regarding Yiminga. 942 In reply, the applicants protested. They referred to passages of the evidence extracted in their closing submissions in which the witnesses referred to their spiritual connection to the sea country through which the pipeline would pass, which they said was central to understanding the damage the pipeline would cause. As discussed earlier, the claim concerning intangible cultural heritage is not founded merely on a damage to a spiritual connection to sea country, but focuses rather on specific Dreamings or song lines, the disturbance of which would have the consequence of damaging the spiritual connection to country. 943 The weight of the evidence is that Yiminga resided in specific places, and not in the whole of a clan's country merely by virtue only of it being that clan's country. That is consistent with these observations in Corrigan 1 (confirmed in cross-examination): 121. Some contemporary informants have proposed that Imunka is a force which would be affected by the installation of the proposed GEP. To understand this better, I have enquired of informants how it would be that if Imunka permeated all things, rather than being defined by particular areas, how would it be (for example) possible to build houses in particular locations or build roads in particular corridors (on the Tiwi Islands). The answer was that such infrastructure is [and has been] built in places where there are no sacred sites and no burials. 122. In addition, some informants have sought to propose that the Imunka force is present in the sea and seabed in a manner that would be entirely inconsistent with building the proposed GEP. However, this proposition is entirely rejected by a wide range of other relevant informants including senior male and female members of a range of relevant clan groups. On balance, I accept the view that the Imunka force is not present in any specific way, at any particular place, within the GEP corridor, in the way the imunga sites are explained by Davies above. 944 In cross-examination, Dr Corrigan confirmed that the answer he reported at [121] of Corrigan 1 was given by Valentine Intalui (one of the applicants' witnesses). It is consistent with evidence that there is infrastructure on the land mass of the Tiwi Islands considerably more impactful than the pipeline, including roads, buildings and an operating port on the Melville Island coast. 945 On that basis, I conclude that Yiminga must be understood as a concept giving special meaning to places and things. It can obviously be a feature of a person's spiritual connection to an area, but it does not reside in all areas to which a person has a spiritual connection in the broader sense described in cases such as Ward. 946 The evidence does not support a conclusion that there is a belief capable of amounting to a "cultural feature" that the whole of sea country is sacred in the same sense encompassed by the word "Yiminga". That was the case abandoned at the time of oral closing submissions. Nor does the evidence rise so far as to establish that there is Yiminga in all places where Ampiji or the Crocodile Man travel. Evidence about spiritual connection to sea country per se is not sufficient to make that proposition good.

The evidence of Carol Puruntatameri 947 In a Part V of these reasons, I will discuss the applicants' alleged "adapted account" of a Mother Ampiji, based on the cultural mapping exercise undertaken by Dr O'Leary. The adapted account is one that places Ampiji in the Ancient Lake in the sea about 10km to the west of Bathurst Island on the other side of the pipeline route. 948 Separate and apart from that allegation, the applicants submitted that the evidence of Carol Puruntatameri supports a finding that it forms a part of the beliefs of the Munupi people that there is a Mother Ampiji residing in an underwater lake, and that that account is one that has been transmitted within the Munupi clan to Carol Puruntatameri by her late grandmother in accordance with Munupi oral tradition. 949 In her witness statement, Carol Puruntatameri referred to there being a Mother Ampji, but made no reference to knowledge she had received from her grandmother on that topic. The following evidence emerged in cross-examination: Q: So I say to you that you didn't tell Brendan Corrigan about the mother Ampiji in that underground lake that Mick O'Leary talks about because you didn't know about it then, did you? A: I did tell him and everybody that were there at the meeting, yes, I told them, there's the mother Ampiji. Q: If I told you that there is no record of you telling him, do you know that he didn't write anything down about that? There's no record of you mentioning it at all. The first time it comes up is when you're talking to Mick O'Leary. That's what the documents say. What do you say about that? A: Because I was talking to him and everybody that were there at the meeting. Q: So when you sat down with Mick O'Leary, he showed you what he says is an underground lake. Do you remember that? A: Yes. Q: But you didn't know about that, did you, until he showed you on the map about that underground lake? A: I said my grandmother, she told me about that lake before she pass away. Q: Did she say where it was? A: Yes, down there, right there. Q: How did she show that to you? Did she have a map? A: No, she drawed it on the sand - on the sand, where that - yes, before it went down underwater. 950 The applicants submitted that that evidence must be assessed in the context of academic literature concerning the capacity of Indigenous societies to transmit knowledge having its foundation in actual human memory of times when the sea levels were rising: Nunn PD and Reid NJ, Aboriginal Memories of Inundation of the Australian Coast Dating from More than 7000 Years Ago (2016) 47 Aust Geogr 11-47 (Nunn and Reid). The authors of the article opine that in non literate societies "it seems that" memories of events or people "stand the best chance of enduring across multiple generations" when three conditions are present. First, the particular society remains comparatively isolated and so not subject to repeated cultural intrusion. Second, the particular society places great importance on traditional knowledge and evolves culturally effective and embedded ways of transmitting the knowledge to each new generation. Third, there is a particularly strong attachment to place, that may be "amplified by the presence of a physical referent in the landscape". The authors state: It is therefore unsurprising that many Aboriginal traditions appear to have endured longer than the notional limited (500-800 years) for orally transmitted knowledge. 951 The authors describe their paper as focussing on "knowledge about coastal inundation that appears to recall the effects of postglacial sea-level rise more than 7000 years ago". The authors presented a map depicting information contained in a database of Aboriginal stories concerning coastal inundation. Among those stories are those relating to Bathurst Island and Melville Island. Citing the work of M Sims, they set out two accounts of Tiwi Islanders of the foundational Mudungkala story. 952 On the basis of that literature, the applicants submitted that the Mundunkala creation story (specifically referred to by the authors) should be regarded as an oral story of sea level rise that should be understood to have been passed down over multiple millennia. 953 As I understood the submission, the academic work was said to provide critical context in which Carol Puruntatameri's evidence of the knowledge passed to her by her grandmother should be understood. The applicants submitted that the evidence was sufficient to establish a discrete Munupi account which encompasses an Ampiji residing in a lake in the sea which they submitted was in the vicinity of the pipeline. They said that the account given by Carol Puruntatameri had not been contradicted by any other Munupi witness having cultural authority, including Richard Tungatalum, and so was sufficient in and of itself to establish the "cultural feature". They submitted (on the basis of Nunn and Reid's analysis) that it was neither impossible nor implausible for Carol Puruntatameri to have received knowledge of the ancient landscape from her grandmothers, transmitted over countless generations from an original human memory. 954 The notes of Dr Corrigan attributed the following words to Carol Puruntatameri, said on the 9 June Boat trip: Carol Purantatameri said pipeline will impact land now underwater. Ampiji gives warning about the pipeline. Ampiji is the carer of the sea. 955 This aspect of the applicants' case can be dealt with without reference to the evidence given by the witnesses called by Santos. 956 The applicants do not allege that the belief of a single person can constitute a "cultural feature" in and of itself. Rather, they submit that a "cultural feature" exists, in the form of a belief held by the Munupi people, arising from the transmission of knowledge to Carol Puruntatameri in accordance with their oral traditions. Understood in that way, the question arises as to whether the Court can base a finding as to the existence of that "cultural feature" solely upon what was said by Carol Puruntatameri in cross-examination, considered in the context of the evidence as a whole. 957 I have concluded that this aspect of the applicants' case should be rejected on the basis that the evidence relied upon is insufficient to discharge the applicants' onus. In my view, proof of a "cultural feature" of that kind may of course be assisted by evidence given by Carol Puruntatameri. However, the circumstance that the testimony was not contradicted by any other person from the Munupi clan does not mean that the Court must make a finding that accords with it. I consider that the evidence is both qualitatively and quantitatively inadequate. 958 Carol Puruntatameri made no mention of the knowledge transmitted from her grandmother in her witness statement. The form in which it emerged in cross-examination is vague as to detail. The Court is asked to infer that the lake drawn in the sand is a lake in the vicinity of the pipeline. I do not consider that the evidence can be taken that far. In addition, later in these reasons I explain why I have approached the evidence of some witnesses, including Carol Puruntatameri with considerable caution, not only with respect to the adapted Ampiji account but also in connection with statements made by them following the June O'Leary Workshop. The evidence given by Carol Puruntatameri in cross-examination falls within that category. Apart from that, I consider that proof of a present day belief among Munupi people requires more than the evidence of a single member of the group, irrespective of the cultural authority of that single member. That is especially so having regard to the subject matter of the account. 959 Moreover, I am not satisfied that Carol Puruntatameri made any prior consistent statement to the same effect as that given in her cross-examination. The applicants' attempts to find a prior consistent statement were unpersuasive because they relied upon disparate segments of prior statements rather than a coherent and consistent account. 960 Carol Puruntatameri is nonetheless one of the witnesses who has consistently said that there is an Ampiji that travels in the wider sea, which may be understood to incorporate the vicinity of the pipeline. Her evidence is to be considered among that of the other witnesses who gave evidence to similar effect, but it does not support the discrete aspect of the applicants' claims alleging a unique traditional Munupi account.

Diverging accounts 961 Santos submitted that there was consistency in the evidence, demonstrated (at least) by the testimony of the following witnesses, of a belief that Ampiji lived in Lake Mungatuwu, on Jikilaruwu country: Ancilla Kurrupuwu, [452]; Valentine Intalui, [543]; Carol Puruntatameri, [370] and [386]; Molly Munkara, [420] and [436]; Simon Munkara, [505] and [524]; Kaitline Kerinauia, [585]; Amy Munkara, [599]; Walter Kerinaiua [566] and [575]; John-Louis Munkara, [732]; Brian Tipungwuti, [652]; Stanley Tipiloura, [685]; Mario Munkara, [750]; and Jonathon Munkara, [718]. 962 However, the following witnesses gave evidence of a belief that Ampiji does not travel beyond the coastline: Wesley Kerinauia, [669]; Richard Tungatalum, [773] and [782]; Brian Tipungwuti, [637] and [654]; Stanley Tipiloura, [711]; Jonathon Munkara, [718] and [724]; John-Louis Munkara, [743] Mario Munkara, [763]; Eulalie Munkara, [621]; Molly Munkara, [436]; Ancilla Kurrupuwu [459]; and Marie Tipiloura, [480] and [482].

Additional evidence concerning the Crocodile Man 963 Much of the evidence with respect to beliefs about the Crocodile Man go to the uncontested aspects of the story identified at [877] above. As those aspects of the story are not controversial, I do not propose to set out in this part of my reasons all of the things said in evidence about them. As I have already identified, the disputed issues relate to beliefs about where in the sea Jirakupai first emerged after he changed into a crocodile, and whether he is an ancestral being that travels more generally in the sea and therefore in the vicinity of the pipeline. 964 This aspect of the case focussed (among other things) on the English words used to recite the story as contained in books and museum displays. Some of those accounts are extracted in Part 1 of these reasons and in my summary of the Tiwi testimony. The applicants invited the Court to infer that the phrase "far out in the deep water" indicates a place in the sea somewhere in the vicinity of the pipeline route. The applicants' witnesses variously included the words "deep water" or "deep sea" in their description of the place where the Crocodile Man first emerged as a crocodile. 965 The words "deep sea" or "far out in the deep sea" were employed in cross-examination of Santos's witnesses in an attempt to have them agree that they indicated such a place. Except as identified below, those attempts were unsuccessful. I gather below some features of the evidence on this topic (without being exhaustive). 966 Molly Munkara referred to a concern that the pipeline would "affect the Crocodile Dreaming, it will cut us off from the area where Jirakupai travelled to and that will affect our identity." 967 Simon Munkara described the home of Jirakupai as the "sea country from near Cape Fourcroy out into the deep water". In cross-examination he said: Q: In that where it says that he surfaced for air far out in the deep water, have you ever had a reason to know or want to know or has anyone ever told you more than that it was in the deep water? A: More in the deep water? Q: Has anyone helped you to understand more precisely where that was? A: Yes. Q: Who? A: My dad. … A: I understand, yes, you are referring to the water I'm talking about and the water where the pipeline is, that's still part of Wiyapurali. The Yirrikapayi man, that's his water too. Q: And where did you learn that from? A: From my dad and myself. … Q: I've misunderstood it. What did your father tell you about that? A: He told me about the Wiyapurali, the Crocodile Man. And we've got our - that country up Jikilaruwu and the water. And when I said - let me go back. My dad told me about the Wiyapurali, where he hangs around, and he can go further up, like what I said, when the sun goes down, you can see the water, that's how far the crocodile can go. Q: That's what your father told you about - - - A: Yes, and it's around our Jikilaruwu area, water. 968 The applicants submitted that that account should be given great weight because it demonstrates that Simon Munkara acquired his knowledge from a person who is largely accepted to have cultural authority. There is evidence before the Court that the Tiwi Islands are able to be seen from the place in the sea where the pipeline is at its closest point to Cape Fourcroy. 969 In relation to the disturbance of the Crocodile Man, Simon Munkara said that if the pipeline went down the Crocodile Man would "probably attack, probably either my family or kids when we go out hunting", and that he would get angry because the pipeline would be in his territory. He repeated: Like I said, if the pipeline goes down, the [Crocodile Man] will turn around and if me and my family go out hunting, [Crocodile Man] attacks the pipeline or whoever works on the big ship. So it probably comes back to us that we own the land. That's our country. He will probably, you know, he will attack my children or probably myself or the family". 970 Evidence to the effect that the pipeline would anger or disturb the Crocodile Man was also given by Valentine Intalui [541], Ancilla Kurrupuwu [457] and Molly Munkara [430]. 971 Among other things, Ancilla Kurrupuwu said that the Crocodile Man lived "in the freshwater source in Jikilaruwu country". 972 In his field notes of the 9 June Boat trip, Dr Corrigan recorded this information provided by Valentine Intalui: Valentine said at the point of the pipeline closest to Cape Fourcroy that this location is very important and if not, respected disaster will come. Said it is an underwater kingdom. Noted that the Dream time story related to the crocodile is not far from this location (point of pipeline closest to Cape Fourcroy). 973 The evidence also shows that Valentine Intalui made reference to the Crocodile Man story early in the May Lewis Meeting. 974 Mario Munkara gave evidence that the Crocodile Man "doesn't travel around". He maintained that position in cross-examination, confining his movements to the coastline and confirming his belief that the song line would not be harmed by the pipeline and could still continue for the next generation. However, there was then this exchange in re-examination: Q: Just a couple of things. You still have in front of you, I think, that Crocodile Man story. I would wonder if you could just allow me to read the next paragraph after the one that has been read by my friend. Then all the people came to watch him. "You are now a crocodile", they all shouted. "Your name will be crocodile", they said, so that's what we call him. When it says, "All the people came to watch him", do you have an understanding as to who that might have been? A: All the Jikilaruwu clans, they were watching. Q: Okay. And where were they watching him from? A: From the cliffs. Q: And what does that tell you about where he might have been? A: Out in the water there. Q Okay. How far out? A: About maybe five ks out. 975 The applicants invited the Court to infer that Jonathon Munkara would have given evidence equally unfavourable to Santos, had he been asked the same question. 976 The applicants relied on the accounts recorded in field notes which they said evidenced a belief that the pipeline would interrupt the song line. They are summarised at [215(j)] of the applicants' closing submissions as follows: (j) The following accounts from other Tiwi informants (who appear to have no association with either the Applicants or their witnesses) recorded in the fieldwork notes of Dr Corrigan, Dr Benton and Ms Rusden (the Fieldwork Notes) support the accounts of the Applicants and their witnesses (and the evidence of Mario Munkara called by Santos) that the pipeline is in a location that will have an impact on the Jirakupai story: (i) John Wilson (Yimpanari) is recorded as informing Dr Corrigan on 11 March 2023 (at p16 of the Corrigan Notes): 'This is a real Dreamtime Crocodile, till living. These right people can tell you'. (ii) Nathan Pilakui (Ranku) is recorded as informing Dr Corrigan on 12 March 2023: 'Reckon you should talk w/ Simon Munkara & Mario Munkara… Lots of sacred sites there, ceremony but not much in the water. Got the Rainbow serpent places, Ampiji & crocodile place'. This evidence is particularly relevant given that it appears to be an account of Mr Pilakui that was given even after Dr Corrigan had framed the inquiry of Mr Pilakui in terms of 'sacred sites' or 'places' of cultural heritage near the pipeline. (iii) In a conversation with Dr Corrigan on 12 March 2023, Richard Hadlee Tungatalum stated on p20 of the Bundle of Fieldwork Notes: 'sacred sites// once a man became a crocodile … another story about crocodile. He goes all around'. (iv) At a meeting on 28 April 2023, Dr Corrigan recorded an unidentified person as stating to him (p45 of the Bundle of Fieldwork Notes): 'Rocky Point @ Woolama (a creek): crocodile got up there, human spirit changed into a crocodile, my great grandfather had all that dance // Purlangampi: Crocodile name eratumayi // 2 songs // linked into that crocodile who goes out to sea there. (v) At a meeting on 2 May 2023 at the Wurri shops, Dr Corrigan records an unidentified person as stating to him: (p58 of the Fieldwork Notes): 'that Crocodile spirit is still there too. He was telling lots of people, dreamtime… Fourcroy is sacred, Rocky point is sacred, water all around is sacred'. (emphasis in original, footnotes omitted) 977 Other evidence relevant the disputed issue (and particularly relied upon by Santos) included: (1) The evidence of Brian Tipungwuti referred earlier in these reasons about an ordinary crocodile sometimes called Elvis. (2) The evidence of Stanley Tipiloura to the effect that he did not have any concerns about the pipeline affecting the Crocodile Man story and that, according to the song line, the Crocodile Man did not travel out to sea. (3) Eulalie Munkara's evidence to the effect that she had heard of the Crocodile Man story that involved a man who got speared and turned into a crocodile. She said that he did not "travel out into the deep ocean", but stayed close to the shore. (4) Amy Munkara's evidence that she knew about the Crocodile Man story. She said that the Crocodile Man lived at Cape Fourcroy, stayed near the shore in a cave and did not go out into the sea. Her knowledge was drawn from her mother Eulalie Munkara. (5) Wesley Kerinaiua's evidence that the pipeline would not affect the Crocodile Man song because he only travelled along the coast from Cape Fourcroy up to Rocky Point. (6) The evidence of Richard Tungatalum's, as follows: … He entered the sea right there. People say he is the watcher and the protector of the coastline. He goes up and down the coast keeping a lookout. There is nothing out in the deep ocean, in the area of the pipeline, for the Crocodile Man to look at. He just guards the coastline. If the Crocodile Man ever gets upset he might cause rough seas and clouds but not for too long. I don't have any concerns that the Crocodile Man will be upset about the pipeline. He stays by the coastline. (7) Jonathon Munkara's evidence-in-chief that he had never been told that the Crocodile Man travelled into the deep water, and his assertion that the Crocodile Man travelled "around the coast line and lives near the barge landing, where the big white dome is". (8) Jonathon Munkara's acceptance in cross-examination that the story as he knew it was as displayed in the Patakijiyali Museum, including its reference to "far out in the deep water". (9) Valentine Intalui's evidence about the Crocodile Man's generosity leaving food in the sea and oysters on the coastline for people to collect, together with evidence of Marie Tipiloura about oysters at Cape Fourcroy, and statements of Molly Munkara at the May Lewis Meeting that she collects oysters there too. Those witnesses expressed concern that the pipeline was a threat to the supply of that and other food.

Consideration of the competing testimony 978 A general observation of the evidence given by the witnesses called by Santos was that they all openly accepted the proposition that the pipeline might bring economic benefits to the Tiwi Islands. They spoke of specific infrastructure, assets and services that might flow if Santos invested in their community. The applicants submitted that that circumstance renders their evidence unreliable because it is affected by bias. They went so far as to submit that the Court could not accept as reliable anything said by Stanley Tipiloura because of the significant salary he was receiving as a consultant engaged by Santos specifically relating to the pipeline. I accept that a hope for economic benefits flowing to the Tiwi community may provide a motive for a witness to downplay the impact of the project on cultural features of the kind upon which the applicants rely, and that that may give rise to a form of subconscious bias. However, I do not accept that it is open to the applicants to say that the witnesses were being untruthful in their evidence because of that motive, without putting such an allegation squarely to each of them. With one or two exceptions, that was not done other than in the most oblique way. Moreover, a favourable attitude to the pipeline and its perceived economic benefits may well be a natural consequence of having no genuine concern that the project would impact upon either of the song lines as the witnesses genuinely understood them to be. I have assessed the evidence of these witnesses having regard to their freely volunteered views about the benefits of the pipeline, but in all the circumstances I do not consider that to be a sufficient basis for diminishing the weight of their testimony. 979 Next, it was submitted that there existed an incredulous pattern of uniformity and repetition in the witness statements, compared to the nuanced differences in expression that could be found in the statements of the applicants' witnesses. I do not consider the similarities or differences to be particularly striking. Moreover, as I said earlier in the reasons, I cannot be satisfied that the choices of words in the statements are those of the witnesses themselves, given my observations of their manner of speaking in the witness box. That is not to say that the evidence in the statements was misstated or contrived, it is simply that I am not minded to accept the applicants' submissions based on the choice of words used to convey the written evidence-in-chief of any witness. 980 Next, the applicants submitted that the accounts of some witnesses could not be accepted either because the witness was not a member of a relevant clan or because the person did not have the requisite cultural authority. I accept that factors of that kind are relevant, but they must also be applied to the applicants' witnesses. 981 Next the applicants submitted that the evidence of Santos's witnesses could not be accepted if it was inconsistent with any summary of accounts given by Dr Corrigan in Corrigan 1. I have already rejected a like submission in connection with the asserted "consistent theme" concerning Ampiji. 982 There were then submissions made in connection with individual witnesses. 983 It was submitted that the evidence of John-Louis Munkara should be rejected altogether because of the implausibility of his assertion that he had not heard of the Crocodile Man story until recently. I accept that that is a reason for approaching the evidence of John-Louis Munkara with some caution, given the weight of evidence to the effect that the story was generally well known among Jikilaruwu people. However, the lack of knowledge may also be a reflection of a relative lack of importance of the song line to some persons. The cross-examination of John-Louis Munkara did not rule out such matters. Little turns on this, given the common ground identified earlier in this part of my reasons. 984 The applicants submitted that the evidence of Amy Munkara and Eulalie Munkara should not be accepted because their accounts of the Ampiji Dreaming were lacking in detail, thus suggesting that they both lacked cultural knowledge. With respect to Eulalie Munkara, that submission extended to her assertion that Ampiji was a caretaker of the land but not the sea. To support those submissions the applicants resorted (again) to the alleged "consistent theme" identified in Corrigan 1, a submission that misstates Dr Corrigan's conclusion for reasons I have already identified. I accept the general proposition that if an account of a story lacks detail that may suggest that the person telling it lacks authority to tell it. The evidence of Amy Munkara will in any event be understood in the context of her own acknowledgment that she regarded other persons to have cultural knowledge and that she would defer to them. In addition to that, I add my own observation that, of all of the witnesses, I consider Amy Munkara appeared to be the most confused or bemused by the Court's processes. It was difficult to elicit coherent and consistent responses from her on a number of topics. That is not a reflection on her veracity, but it does cause me to place less weight on her oral evidence than that of other witnesses who did not present in the same way. 985 The applicants submitted that the Court had no need to consider the evidence of Brian Tipungwuti, Walter Kerinauia, Wesley Kerinaiua and Kaitline Kerinauia as they were from the Wurankuwu and Mantiyupwi clans whose song lines were not in issue in this case and because "the evidence clearly establishes that only members of the clan can authoritatively tell the songlines of those people". The difficulties with that submission are that the applicants have not established that the Ampiji Dreaming is a clan based song line exclusive to the Jikilaruwu, Munupi and Malawu clans and no others. A proposition of that order cannot be established by the mere assertion of one or two witnesses. In addition, there are instances in which the applicants drew on things said by witnesses from other clans with respect to both song lines, although only when it appeared to suit their case. They drew from the field notes of Dr Corrigan without any apparent regard to the clan memberships of the informants, including John Wilson (Yimpanari), Nathan Pilakui (Wurankuwu), Wendy Miller (Wulirankuwu) and Jeffrey Purantatamuri (Wurankuwu), and they drew on the "consistent theme" passage from Corrigan 1 whilst at the same time maintaining a vehement criticism that his methodology in selecting informants was culturally ignorant. 986 The exclusivity of song lines is contradicted by Valentine Intalui (one of the applicants' witnesses) who told Dr Corrigan at the 9 June Boat trip: "All our songs are open in Tiwi - We're all in isolation with one language". It is also difficult to reconcile with the deployment of people from various clans (including Munupi woman Carol Puruntatameri) to support the case concerning the Ancient Lake directly to the west of Bathurst Island, which on other aspects of the case (including the now abandoned adapted account of the Crocodile Man) was said to be in Jikilaruwu sea country. Thus, whilst the evidence contains repeated assertions as to the exclusive rights of a person of one clan to speak for the country or song lines of another, the evidence did not prove absolute adherence to that principle. 987 I give little weight to the non-Jikilaruwu Santos witnesses who gave evidence of their belief that the only crocodile they knew about was an ordinary crocodile having no special features (apart from a likeness to Elvis). Whilst I accept the accounts of their beliefs to be genuine, the fact that they hold them would not be a sufficient basis to reject the applicants' case concerning the Crocodile Man song line. 988 Particular attention was given to the credit of Richard Tungatalum and the prior inconsistent statements he had made to Dr Corrigan and his team. Some of those statements pre-dated the June O'Leary Workshop and I am not satisfied that they can be entirely explained away by his concern about having been "tricked" by the conduct of the EDO and Dr O'Leary. However, I do accept his evidence that when he made earlier statements, he was not thinking slowly enough, and that when he reflected more carefully on the issues he came to a different view. Given that conclusion, I do not think that his prior inconsistent statements can be employed to assist the applicants' case to any significant degree. 989 There are three features of the applicants' testimony that warrant specific mention. The first relates to my observations of Simon Munkara as a witness. I observed him to be proficient in English. He was conscious that other more senior members of the Jikilaruwu clan were disapproving of his conduct in commencing these proceedings without first consulting them or the whole of the clan in accordance with what he accepted is the proper custom. His apology for doing so appeared genuine. However, I have some difficulty accepting his explanation that he did not have time to even inform other members of the clan about the commencement of the action. His evidence must be considered in the context of his awareness that the pipeline is a divisive subject, even among Jikilaruwu people. The Jikilaruwu Elders who were not notified of the intention to commence the proceedings happened to be persons who hold the view that the pipeline is not harmful to Tiwi cultural heritage. Furthermore, Simon Munkara has been a client of the EDO from at least December 2022 and other evidence reveals that he has attended at least one meeting where the commencement of court proceedings was discussed as part of an overall strategy to stop the pipeline. Persons who were in favour of the pipeline were not in attendance at that meeting. The evidence as a whole reveals that a group of Tiwi Islanders opposed to the pipeline have conducted meetings in the absence of others known to be in favour of it. The weight of evidence as a whole is that Simon Munkara did not include persons known to have cultural authority in the preparation and commencement of these proceedings more generally. I do not accept his explanation that he did not consult with others because he was rushed. 990 Simon Munkara otherwise presented in large part as a guarded witness, both in his outward demeanour and in the content of his responses. I considered him to be non-responsive at times when the questions being put to him were straightforward and capable of clear answers. I did not consider the non-responsiveness could be explained by a lack of proficiency in English. The Court provided Simon Munkara with guidance on the importance of giving frank responses to questions that could readily be understood. The Court explained that he could take issue with a question or give a reason for not wanting to respond to it. Notwithstanding that guidance, he continued to convey the impression that his answers were given with an eye to the consequences that might flow for his overall case. 991 Simon Munkara was otherwise defensive at times, accusing Counsel of trying to trick him. That occurred with other witnesses too, but in the context of the cross-examination as a whole it has contributed to my view that he was focussed on a case that the applicants wished to present rather than on providing direct answers to simple questions. 992 These observations do not cause me to discount the whole of Simon Munkara's testimony. However, they do diminish the weight of his evidence relative to that given by others. They are one factor (among several others) affecting my consideration of the evidence as a whole. 993 Simon Munkara, among some other witnesses, did not describe himself as a leader. The applicants instead placed reliance on the circumstance that he received knowledge from his father Danny Munkara, who was considered (by all who were asked) to be a senior Elder with cultural authority in the Jikilaruwu clan. Danny Munkara's absence as a witness was explained due to his age and ill health, and I do not draw any inference of the kind discussed in Jones v Dunkel (1959) 101 CLR 298 in relation to him. However, it was not put to any of Santos' witnesses that their asserted knowledge was sourced from anybody other than their own Elders, going back in time. Accordingly Simon Munkara's asserted knowledge has its source in the same generation of Elders of all other witnesses. 994 Secondly, as will be explained later in these reasons, a number of the applicants' witnesses participated in one or both of the May Lewis Meeting and the June O'Leary Workshop. I have made findings about things said and done on those occasions in Part V of these reasons. They include a finding that things were said at the May Lewis Meeting that, considered as a whole, amounted to a form of subtle coaching of those in attendance to tell their cultural stories in a way that would extend them to the area of the pipeline. That is not a determinative feature of the evidence, but it is a circumstance that cannot be ignored. In addition, I have found that at the June O'Leary Workshop the attendees were prompted in a more blatant fashion to participate in a cultural mapping process of a kind that on another occasion had helped to stop a petroleum development. That process has undermined my confidence in accounts given by the participants at and following the Workshop. Their witness statements and oral evidence fall temporally into that category. It enhances the need to find evidence of statements they made prior to those events, referred to by the parties as "pre-dispute" statements. I do give some weight to prior consistent statements recorded by Dr Corrigan at times between then and May 2023. 995 The third specific feature of the evidence warranting mention is the cross-examination of Jikilaruwu women, Molly Munkara, Ancilla Kurrupuwu and Marie Tipiloura. Map 2, extracted at [460] of these reasons, records the marks made by Molly Munkara (in pink) and Ancilla Kurrupuwu (in blue), depicting their belief about the travel of Ampiji around the Tiwi Islands. Both marks were said by Marie Tipiloura to reflect her own belief. 996 On my interpretation, those markings support a finding that the witnesses believed the travels of Ampiji to be confined to the coastal waters surrounding the islands. 997 The applicants submitted that the evidence was so unreliable that no weight can be placed on it for several reasons. They submitted that the map that was provided to the witnesses did not depict sea country or any area of "deep" sea country and was, therefore, apt to mislead them. They submitted that the witnesses' answers demonstrated that they did not understand that they were being asked to mark up the area of the sea country through which Ampiji travels. They submitted that Counsel made no attempt to clarify what the witnesses were being asked to depict on the map by reference to the evidence they had given in their witness statements. 998 I do not accept that submission. The question put to the witnesses could not have been understood as being anything other than a request to indicate on the map their understanding of where Ampiji "goes". The witnesses drew marks hugging the coast of the islands and in the immediate area beyond that. All of the surrounding white on the map was there for the marking, but the marks of the witnesses do not go there. I consider that evidence to be significant because it was not pre-prepared. Rather, it was an unqualified and unguarded expression of the witnesses' states of mind at the time of their cross-examination. It cannot be reconciled with their evidence-in-chief and there is therefore an unexplained inconsistency. That is plainly a matter that may be taken into account in assessing the sufficiency of the evidence led in support of the applicants' case. It also affects the reliability of the three witnesses more generally. 999 The next complaint is to the effect that Santos's Counsel should have given the witnesses an opportunity to resolve any ambiguity in their accounts. That complaint is not warranted. An ambiguity or inconsistency in accounts is a matter that can be resolved in re-examination. None of the witnesses were re-examined to explain why they made the marks that they did, given the content of their witness statements. 1000 I make a final observation about the evidence of Mario Munkara. Unsurprisingly, the applicants rely heavily on the last sentence of his re-examination in which he answered a question about the distance of the Crocodile Man's pathway before his emergence as a crocodile: "about maybe five ks out". That, too, is an unguarded response (given in re-examination) that reflects his subjective estimate of the distance of metric terms. It cannot be ignored when assessing the remainder of his evidence. It puts the Crocodile Man in waters where in literal terms he could be neither seen nor heard, which does not accord with the rest of his evidence. It is but one incongruent feature of the evidence, that must be grappled with in the context of the evidence as a whole. On one analysis it renders Mario Munkara's evidence wholly unreliable so that he cannot be of any assistance to the case of either party. I reject the applicants' invitation to seize on the last answer given in re-examination in preference over all other accounts. He is either a reliable witness supporting the applicants' case or he is not. I consider this incongruity in Mario Munkara's evidence to affect the reliability of his evidence, in a similar way to that affecting the reliability of the evidence of the three senior Jikilaruwu women.

Conclusions in relation to Ampiji 1001 In light of all of the above observations it is necessary to assess the qualitative sufficiency of the applicants' case on the proposition they must prove. 1002 The case is not one in which the Court can simply discount the contradicting evidence of Santos's witnesses of relevant cultural authority within relevant cultural groups. The relevant enquiry is whether there is a belief of the Jikilaruwu, Munupi and Malawu people that Ampiji travels in the wider sea country in the vicinity of the pipeline and that the pipeline will disturb Ampiji in those travels. 1003 Considered as a whole, the evidence is insufficient to prove that the accounts given by the applicants' witnesses are broadly representative of a belief held by the Jikilaruwu, Munupi and Malawu people as a people. That conclusion is based not only on matters affecting the reliability of some of the applicants' witnesses, but also the existence of divergent opinions among relevant clan members that cannot be discredited or otherwise explained away. Conclusions in relation to the Crocodile Man 1004 I have found the focus on words such as "far out in the deep water" (as contained in the written accounts of the Crocodile Man) somewhat unhelpful. That is because they were utilised in the evidence in a way that removed them from their context. It is true that the written words record the crocodile as being "far out in deep water" when he surfaced for air. However, in accordance with the narrative considered as a whole, that place is also one in which he could be seen and in which the people on the shore could say things to him. That does not place the story line (if it involves a linear path at all) in the vicinity of the pipeline. Those witnesses who positioned the Crocodile Man either near the horizon or about five kilometres from the coastline (respectively Simon Munkara and Mario Munkara) did not explain their beliefs in a way that could be meaningfully reconciled with other components of the story or (in the case of Mario Munkara) with other aspects of their own evidence confining his path to the coastline. 1005 In addition, my impression of the evidence as a whole is that the place where the Crocodile Man surfaced was not described by the Jikilaruwu witnesses as having spiritual significance of the kind that attaches to the place where he entered the water. 1006 On all accounts the speared man entered the water at Wiyapurali, a specific place that could be pointed to with certainty. The sacredness of that place was established and recorded long before the dispute about the pipeline arose. The name, Wiarprali can be heard in the video song and dance evidence repeatedly and rhythmically. There is no name given for the place where the Crocodile Man surfaced nor to the pathway of his original travel. Even if one does not search for a particular place, there is vagueness in the story about the distance from the shore. 1007 As Dr Corrigan pointed out, a song line may be regarded as relating to places along a path, but this story was not described by the witnesses as having a path directed to any particular part of the water having special spiritual significance of the kind that the beach at Wiyapurali does. My impression of the whole of the evidence was that the story was not so much about areas other than the area near Cape Fourcroy. It is a story about sharing between people, and on some accounts it pointed to a location on the beach or in coastal waters where there was an abundance of food. That is not to ignore other evidence about the Crocodile Man travelling more extensively in the sea. But in respect of the story line as told in the pre-recorded narratives, the place where the Crocodile Man first surfaced in the water for air seemed to me to be a matter of lesser importance in the narrative as a whole. 1008 I place no weight on the evidence of Ancilla Kurrupuwu about the Crocodile Man residing in any freshwater lake under the sea. I consider that account to be affected by the cultural mapping exercise discussed and criticised in Part V of these reasons. The inclusion of that account in the witness statement of Ancilla Kurrupuwu causes me to approach her assertions about the interference with the story line with great care. I place little weight on those assertions, notwithstanding that she was the author of one of the written accounts predating the controversy about the pipeline. 1009 The field notes relied upon by the applicants are hardly compelling. They are brief and disjointed references to the Crocodile Man mostly relating to matters that are not controversial. I place no weight at all on the information provided by "unidentified" persons. Two of the other informants are not Jikilaruwu people, and yet the applicants have asked the Court to ignore accounts from anybody other than Jikilaruwu. 1010 The applicants have not put forward a sufficient basis for the Court to reject the evidence of Eulalie Munkara, which confines the path of the Crocodile Man to the inner coastal waters surrounding the Tiwi Islands. Their submission that Jonathon Munkara would have given a similar response to that given by Mario Munkara in re-examination is wholly speculative and I reject it. Jonathon Munkara's evidence involved some tension between his assertion in his witness statement that he had not heard of the Crocodile Man being in deep water, and his acceptance in cross-examination that the iteration of the story as it appears in the Patakijiyali Museum accorded with the story as he understood it. However, I also consider Jonathon Munkara is a witness (among several) who did not believe that the Crocodile Man would be disturbed in his travels. His acceptance that the Crocodile Man travelled in deep water did not necessarily involve a concession that the deep water was in the vicinity of the pipeline route. 1011 In light of all of the above I do not accept a submission of the applicants that there is near uniformity in the testimony about either the original path of the Crocodile Man or the extent of his travels. 1012 I emphasise again that it is not sufficient for the applicants to put forward some witnesses who together have a consistent view. Rather, they must demonstrate that the beliefs of those witnesses broadly represent the beliefs of the Jikilaruwu people as a people. If non-Jikilaruwu are not authorised to speak on the topic, then I should ignore all accounts from non- Jikilaruwu people on the topic including accounts upon which the applicants themselves rely. That reduces the body of evidence supporting the applicants' case and so affects its sufficiency. 1013 I have found that the reliability of some of the applicants' witnesses in connection with this issue is adversely affected by their participation in the cultural mapping exercise and, to a lesser extent, the May Lewis Meeting discussed in Part V. There is of course evidence of some statements made by those participants to Dr Corrigan prior to the meeting and later workshop, and I have had regard to them, particularly the prior statements of Valentine Intalui. 1014 I conclude that the evidence as a whole is insufficient to prove that the Jikilaruwu people, as a people, hold a belief that extends the Crocodile Man song line (or the extent of his wider travels, if any) into the vicinity of the pipeline route. It follows that this aspect of the case must also be rejected.

Prior non-disclosure 1015 In the above analysis I have not taken up an invitation by Santos to question why the accounts of the Ampiji Dreaming and the Crocodile Man were not raised by Elders of the Jikilaruwu, Munupi or Malawu people at a time when consultations for the preparation of the Pipeline EP took place, or before. If considered for that purpose, the allegation of non-disclosure at the consultation phase would have required Santos to establish, as part of its case, that the consultation processes were complied with, and that they thus provided an adequate opportunity for the cultural features to be raised prior to 9 March 2020. But I have not considered it necessary to make findings about that topic in the disposition of the issues discussed in this part of my reasons.

THE ADAPTED AMPIJI ACCOUNT AND BURIAL GROUNDS 1016 These aspects of the case are framed in [15(c)] and (in part) [15(d)] of the applicants closing submissions. It is convenient to deal with them together. They both depend heavily on the work and opinions of Dr O'Leary and to a lesser extent Mr Lewis. 1017 At the time of trial, the "adapted" accounts case included an alleged account of the Crocodile Man song line to the effect that the Crocodile Man travelled from Cape Fourcroy to the alleged Ancient Lake or Ancient Embayment and thus in a liner pathway that would be directly intersected by the pipeline. That part of the case is no longer pressed, but the evidence relating to it will be considered because it informs my assessment of the methodology employed by Dr O'Leary and the weight that can be given to his opinions on other subjects.

What is meant by "adapted" account? 1018 The terminology of an "adapted" or "potentially adapted" belief or account found no expression in the originating documents or the expert reports. It first emerged in the anthropology concurrent evidence session. In that session, Dr Kearney explained why she preferred to avoid labels such as "traditionally oriented" in connection with Indigenous people. Rather, she preferred to see things in terms of cultural proficiency as a work in progress. She continued: … culture by nature has to change. People interact with their cultural traditions in a whole range of ways that, across generations, may have different expressions. So for myself, I would not operate in a practice that determines people to be in lesser or greater acquisition of cultural tradition. I would rather instead be inclined to take on board what people explain to me as their cultural understanding, rather than framing it in terms of tradition. I don't think that is something that anthropologists can actually determine very easily because you have to be led by your cultural consultants, your Indigenous collaborators, in terms of appreciating what constitutes their culture at this moment in time. … 1019 That evidence prompted a series of questions about culture having the capacity to change in response to changing conditions. As Dr Kearney put it: A: I think the baseline, number one understanding of an anthropologist is that culture, by nature, has to change in order to survive. That is no less so for Indigenous cultural contexts than it is for a non-Indigenous context where culture is a highly responsive work in progress that is relative to the life world and the context in which people are living their cultural lives. We're many years post-contact in a settler colonial context, so what constitutes tradition at this moment in time cannot be determined without factoring in all elements of change and elements of intrusion and accommodation that have distinguished Indigenous people's lives up to this point. So I - yes, that's - I really think it's quite important to appreciate that culture is a work in progress, even for Indigenous Australian people because their life world changes as does our own. … A: Well, it's actually highly responsive, and this is where the political finesse and the sort of legal finesse of Indigenous lore is best observed, and I have written on this extensively and with Indigenous co-authors to document the fact that Indigenous lore and Indigenous knowledge, whether it's knowledge of ancestral beings or knowledge of the environment or knowledge of other cultural groups is something that is capable of responding to context. So as situations change, knowledge is negotiated and is adapted in order to best thrive relative to the context of the moment. 1020 In response to the question, "to what extent is it valid to understand cultural heritage as only that heritage that has been passed down over generations?" Dr Kearney said: So we're not saying that cultural heritage is a fixed aspect of, whether it's physical or an intangible reality, that must remain exactly the same through generational transmission but, rather, the process of transmission is what is imperative. And I will say that oral tradition and orality have incredible fidelity as a linguistic and language-based practice for transmitting knowledge. So there is a baseline of fidelity in the way lore can be transmitted orally in an oral tradition, but the fact is that people will make modifications to what is transmitted relative to circumstances, which is a very human response, in my view, as an anthropologist. … 1021 The expression "adaptive account" then emerged in this exchange with Mr Lewis specifically relating to Ampiji: Q: Can you explain why that's relevant to your assessment of the coherency of, if I can describe it, as a new account of the Rainbow Serpent? A: Again, I don't see it as new. I think it's just adaptive extensions of the same thing, like I said. It's a means of explaining and understanding interchanging the world around people. Q: So sorry, I shouldn't have used the words 'new account' then. To be more accurate, should I be using the words the adaptive account? A: Make more sense to me, because it's an old - it's an ancient tradition which is being - having elements added to it all the time. 1022 Dr Corrigan largely agreed with the general proposition that the Ampiji account of Tiwi Islanders is the kind of account that could adapt to new knowledge that they acquire about their environment. However, he questioned whether that had in fact occurred. He said he was not certain as to whether that had been established in some sort of detailed way. He added that it would be a matter for the Tiwi people to determine that, rather than for him to offer some form of conjecture on it. 1023 Dr McWilliam was asked whether the Ampiji account of Tiwi Islanders was of a kind that could "coherently adapt to new knowledge that the Tiwi acquire about their environment", by reference to portions of transcript from the lay evidence about the Ancient Lake. He responded: So my answer would be it may be because I'm agreeing that traditions are adapt [sic], but what I see in this case is that it's not a consensus position, clearly. This page shows you that there's a diametrically opposed view. And so I think we might say it's in the process of being adaptive, but it's not actually been confirmed. 1024 Adopting language from the applicants' submissions, the particular adapted account is one said to involve a "reinterpretation" of traditional cultural beliefs "through a Western scientific lens". The methodology involved a "cultural mapping" exercise involving Dr O'Leary, lawyers from the EDO and some members of the Tiwi Islands community at and around the June O'Leary Workshop that occurred on 19 June 2023. The outcome is a narrative that: there exists a Mother Ampiji in the Ancient Lake (referred in material prepared by EDO Lawyers as "the sacred freshwater source") about 10km from the west coast of Bathurst Island; the pipeline would separate the Jikilaruwu, Munupi and Malawu people from that Mother Ampiji; Mother Ampiji will be disturbed by the pipeline; and the spiritual connection of the Jikilaruwu, Munupi and Malawu people with the sea country through which the pipeline will pass will therefore be damaged. 1025 For Santos it was submitted that the cultural mapping exercise and the opinions of Dr O'Leary in respect of it were scientifically flawed, lacking in precision, "a form of cultural hubris, thinly described as science", and otherwise founded in naivety and ignorance on Dr O'Leary's part. Santos also submitted that the exercise created confusion in the Tiwi Islanders who participated in it, and that it amounted to a "confection" or "construction" by EDO Lawyers assisted by Dr O'Leary. They are serious allegations and I am mindful of the need for them to be clearly established on the evidence. 1026 I have accepted the anthropologists' evidence that the cultural features of Aboriginal societies (like all societies) can change in response to ever-evolving circumstances. 1027 I have concluded that the cultural mapping exercise and the related opinions expressed about it are so lacking in integrity that no weight can be placed on them. I am satisfied that this aspect of the case does indeed involve "confection" or "construction", at least in part, and that it cannot be an adapted account of the kind discussed by the anthropologists. I have also concluded that the exercise created a situation in which the evidence of those Tiwi Islanders who participated in it should now be treated with considerable caution not only with respect to the adaptive Ampiji account, but more generally. 1028 To explain those conclusions it is necessary to first give a summary of the various expert reports on the topic.

O'Leary 1 1029 At the commencement of O'Leary 1, Dr O'Leary described his training and work experience as being "in the area of multidisciplinary marine geoscience" and said that his research interests include the field of submerged landscape and archaeology to address gaps in deep history such as early human migrations and "the role of climate in the peopling of Australia". He said that he had been engaged by the EDO on 14 June 2023 in relation to the assessment that was then being carried out by Santos under the General Direction. He stated that he was "further engaged" by letter dated 30 June 2023 to address four questions relating to "underwater cultural heritage places" along the pipeline route. 1030 Dr O'Leary was instructed to provide a description of the physical landscape alone and in the vicinity of the pipeline route and any other physical landscape surrounding the Tiwi Islands that he considered relevant to his report. 1031 His response was to state that to the west of Bathurst Island is a river valley that was partially flooded during a significant period of occupation, 50,000 to 30,000 years ago, forming a "deep 170km long embayment which provided a direct connection to the open ocean and who's headwaters were located approximately 12 km west of Cape Fourcroy". 1032 He then stated (without qualification) that the embayment would have transitioned into a permanent freshwater deep lake, 25km long, 3km wide and 120m deep during the LGM. He said that the lake marked a region of permanent water availability during even the most severe droughts. He said that summer monsoon events "likely saw the development of an extensive waterfall system along the head of the embayment". He produced a computer generated image of a stunning waterfall in a luscious green landscape to depict visually what the area would have looked like in ancient times. 1033 Dr O'Leary was asked to respond to three further questions as follows: Q2 Please map any IUCH places along and/or in the vicinity of the GEP route to which people, in accordance with Indigenous tradition, may have spiritual or cultural connections. 3. Please map the pipeline route by reference to the IUCH places along and/or in the vicinity of the GEP route to which people may have spiritual or cultural connections. 4. Please describe how the proposed pipeline may intersect or otherwise be relevant to cultural heritage places, to which people, in accordance with Indigenous tradition, may have spiritual or cultural connections along and/or in the vicinity of the pipeline. 1034 Dr O'Leary stated that his report took two "independent approaches" for the cultural mapping of Tiwi Country, the first being "Indigenous lead [sic]" and the second being "Researcher led". 1035 He stated that to facilitate the "Indigenous led mapping" very large A0 maps were printed at a range of spatial scales. The pipeline route was not depicted on the maps. Dr O'Leary said that the maps shown to the Tiwi Islanders were enhanced to depict a "hillshade model" (which I understand to represent heights of features in the landscape relative to each other), as well as by "selecting a colour ramp that appeared most natural and representative of the pre-inundation landscape". 1036 Dr O'Leary went on to state that the maps were presented to "Tiwi Elders" who were then provided with a brief explanation about how to read the topographical features. He said that "lead [sic] to spontaneous discussion and debate among the Elders of the various landforms and environments of their Sea Country". He recorded that they were then invited to draw, sketch and annotate these maps with insights drawn from their oral traditions. 1037 Dr O'Leary referred to material contained in his brief (some of which is discussed below) which he said had been "reinterpreted through a Western scientific lens and mapped within a GIS environment" based on oral descriptions of Tiwi people. He said that the Indigenous and western interpreted sea country maps were then "cross referenced to provide a combined epistemology of Tiwi Sea Country". 1038 To understand the opinions that follow it is necessary to summarise the material provided to Dr O'Leary by the EDO with the two letters of instruction.

Synthesised narratives 1039 At Tab H of the brief there was a document titled "TIWI CULTURAL STORIES SUMMARY". By that document, the EDO informed Dr O'Leary of "three foundational Tiwi Dreamtime stories". It formed a baseline of factual instructions provided to Dr O'Leary. The narratives were said to have been collected at two meetings defined earlier in these reasons as the May Lewis Meeting (held on 30 May 2023) and the June O'Leary Workshop (conducted on 19 June 2023). 1040 Both meetings were said to have been attended by members of the Jikilaruwu, Malawu, Munupi and Wurankuwu clans. Annexure D states that "Tiwi people determined who the appropriate people were to participate in each of these meetings, in line with community and cultural protocol". 1041 The annexure stated that the EDO attended at the meeting "to record notes". The annexure states, "[t]hose notes have been synthesised into the narratives set out below". 1042 It was then said that some information had also been collected from meetings conducted by Dr Corrigan in May and June 2023, as well as boat trips on 8 and 9 June 2023. The instructions continue: 9. The three stories contained in this document are primarily confined to a particular geographic area in the vicinity of Cape Fourcroy (known in Tiwi as 'Tangiyaw') that is relevant to the area the subject of NOPSEMA's General Direction 1898. That area is demarcated by Cape Fourcroy on the western side and a submerged sacred water source (which at various times in history has been a fresh-water lake and at other times an embayment to the ocean), approximately 10 kilometres to the east of Cape Fourcroy. Tiwi people are in the course of determining a name to be given to this submerged sacred water source, which was immediately recognised as being of significant cultural and spiritual value to Tiwi people and connected to songlines and Dreamtime stories. 10. Tiwi people advised that the following stories have been handed down from their ancestors since the time of creation, and have been passed from generation to generation. As one Jikalaruwu man stated, 'our ancestors who lived all across the land knew that the water would rise. They knew that Tiwi people would be reborn. They le [sic] the stories so we would know about the past and the land they lived on. The stories came alive when the water rose. Our stories connect us to those ancestors.' (footnote omitted) 1043 The presentation of the instructions to that point conveyed the impression that the narratives contained in the document were sourced in materials and events that include the Workshop with Dr O'Leary himself, the meeting with Mr Lewis, meetings with Dr Corrigan, evidence adduced in prior proceedings, as well as oral tradition involving stories handed down from ancestors since the time of creation. The narratives that followed included references in footnotes to numbered video recordings taken at the June O'Leary Workshop. 1044 There followed three iterations of the narratives of Ampiji, Jirakupai the Crocodile Man and the blind woman ancestor referred to as "Mudungkala/ Sun Woman - Wuripingala". 1045 As to Ampiji, the instructions stated: 12. When A/Pro O'Leary presented Tiwi Elders with mapping of submerged landscapes surrounding the Tiwi Islands, Tiwi Elders immediately identified the importance of the permanent water source to the west of Cape Fourcroy. 13. Upon seeing this area on the map of submerged landscape, Tiwi Elders from across the clans said that the 'Mother Ampiji' or the 'Source Ampiji' lives at this sacred water source - she is the mother and the source of all of the other Ampiji located around the Tiwi Islands. She is the original Ampiji. According to some, the Mother Ampiji bred her children from this place and calls out to them from there. 14. The mother Ampiji travelled around the Tiwi Islands creating all the other Ampiji that live in various locations, including an important Ampiji connected to Lake Mungutuwu, a fresh-water lake located on the south-west of the Tiwi Islands. (footnotes omitted) 1046 Those passages are cross-referenced to three videos taken at the June O'Leary Workshop. 1047 The instructions went on to state that there were sacred sites all along the coastline that were "connected to the Mother Ampiji that originated in the sacred water site and continues to be present in that area", that Ampiji travels around, protecting her area and patrolling the sea. The EDO stated that "[w]hen people pass these sacred sites, they call out and sing to Ampiji, who can smell them, and let Ampiji know of their presence and when others are coming". The instructions continue, "Tiwi people ask her to keep them safe. If they don't call out to her, the ancestors get very angry and something bad happens". 1048 The instructions went on to refer to the Crocodile Man story. On that topic they stated (at [21]): When presented with A/Professor O'Leary's landscape mapping, Jikilaruwu clan members immediately identified the water that the Crocodile Man went into as the sacred water source to the west of Cape Fourcroy. 1049 No source of that assertion was referenced. The instructions went on (at [22]): The Crocodile Man songline runs from Cape Fourcroy on land and into the sea. Jikilaruwu elders traced that songline on the mapped landscape to run from Cape Fourcroy to the sacred water source. Tiwi people said that Jirakupai is still present at that submerged area today because that is where he entered the sea during the Dreaming. The songline is sung and danced by Jikilaruwu clan members. They sing it out to that place where Jirakupai went into the sea. (footnotes omitted) 1050 The instructions then refer to the Mudungkala, beginning with a rendition of that foundational creation story that accords with other materials before the Court. The instructions state that "Mudungkala started her journey from the sacred water source near Cape Fourcroy and went all around the Islands and then disappeared into the sea north of Imalu Point". 1051 Narratives relating to Mudungkala, the Crocodile Man and Ampiji, as "synthesised" by the EDO (EDO Synthesised Narratives), were set out in O'Leary 1 as Narratives 1, 2 and 3, respectively. The Mudungkala synthesised narrative stated that after creating the Tiwi Islands and "mak[ing] them habitable", Mudungkala vanished, and that nobody knew where she came from or to where she disappeared. 1052 The Crocodile Man synthesised narrative asserted that Jikilaruwu Elders traced the Crocodile Man song line on the mapped landscape to run from Tangiyaw (a place on the coast of the Tiwi Islands as they exist today) "to the sacred water source in the west" (being a reference to the Ancient Lake). The narrative stated that the Crocodile Man still lives in the water today "and swims from the sacred water source around the sea", and that he was very territorial and protective of his waters. The Ampiji synthesised narrative stated that "Tiwi Elders from across the clans said that the 'Mother Ampiji' or the 'Source Ampiji' lives at [the] sacred water source located to the west of Bathurst Island". The narrative stated: Ampiji travels through bodies of water, like billabongs, circumnavigating the Tiwi Islands and connecting all the sacred sites/Yimingu. Ampiji is the Protector; if Tiwi people take care of her, she takes care of them. Because Tiwi people properly respect her and the environment, she protects them from disaster. There are sacred sites (Yimingu) all along the coastline that are connected to the Mother Ampiji that originated in the sacred water site and continues to be present in that area.

Literature Review 1053 Annexure E to Dr O'Leary's brief is a document titled, "A review of Literature on Tiwi Land & Sea Country: a preliminary report to the EDO on the potential cultural impacts of the Barossa Gas Export Pipeline" authored by Mr Patrick Horton and referred to at trial as the Horton Literature Review. It contains an academic review of a body of literature relevant to the cultural geography of the Tiwi Islands. Mr Horton refers in his first paragraph to the "Barossa Gas Export Pipeline" and it may be inferred that he was engaged to produce the report for purposes related to it. He states that he has carried out a review of anthropological, linguistic, paleo-archaeological, government and other interdisciplinary material relevant to the area of study, including sources recommended by the EDO. 1054 Mr Horton described information contained in his report as "compelling given the proximity of the proposed pipeline to the Fourcroy coast. In more general terms, Sea Country is of primary significance to Tiwi people who are by all accounts a culturally distinct, sea-oriented and Island-bound society". 1055 Mr Horton referred to the "autoethnographic Masters thesis" of Marie Munkara (2017) concerning the origins of Tiwi people. He recorded her assertion that Tiwi people "came to the Islands from somewhere to the west" and that: … somewhere beneath those shallow seas today the ancient sites of our occupation, places where the women foraged for shellfish and yams, where our kids played and the men knapped stone knives and scrapers. Beneath those seas are the places of birthing and healing and our graves. But those places belong to the sea now (2017: 68). 1056 He observed that Marie Munkara's "cultural knowledge about her people arriving at the Tiwi Islands from the sea" is partially supported by another account that "ancestral beings entered the land through the sea". 1057 Mr Horton's review contained extracts from ethnographic material recording narratives he considered might be relevant to the area. They included iterations of the story recorded by Mountford and others. 1058 The Horton Literature Review summarises several other narratives, beliefs and totemic sites. They include Mudungkala, three eucalyptus tree women (Pungula, Aragoutourina and Matingalia), the woman of the bushfires (Puruliangkala), the sandfly woman, the white cockatoo woman, the Sun Woman (Wuriupranala or Wuriupi) and other spirit entities which live on the land and in the sea. There is no reference in the Horton Literature Review to any Ampiji, whether associated with Lake Mungatuwu or with any "mother area" associated with an area in the sea west of Cape Fourcroy. Mr Horton urged that there be further enquiries of or involving Tiwi informants to obtain a better understanding of the cultural significance of the study area to Tiwi people. He qualified his review of the ethnographic literature with the observation that the historical ethnographic record must be understood in the context in which it was gathered. He noted, for example, that some of the material was gathered in the second half of the previous century. He said "given the constantly changing cultural landscape of any society, it may no longer be empirically relevant to the present matter".

2023 Marie Munkara Narratives 1059 Annexure F to O'Leary 1 is titled "MARIE MUNKARA SEA COUNTRY NARRATIVES" and contains a document in Tab I of Dr O'Leary's instructions titled "MARIE MUNKARA - REPORT TO ENVIRONMENTAL DEFENDERS OFFICE". Whilst described as a "report" the document is more in the nature of a statement containing factual assertions about information and knowledge the author professes to have. I will refer to it as the 2023 Marie Munkara Narratives. Its author was not called to give evidence. Her absence was not explained. 1060 In that document, Marie Munkara referred to her brothers Danny Munkara (acknowledged by other witnesses as an Elder with cultural authority) and John-Louis Munkara, a witness in these proceedings (also acknowledged as a person having cultural authority). 1061 Marie Munkara stated that in September 1996 she had camped at a beach with her mother and three named aunties. She said that the aunties referred to were Munkaras, before they married into another family, or were otherwise "close family for Munkara's". She states that at that time she learned for the first time about sea level rise. She stated that on this occasion her brothers were there but not in the company of her aunties. She recounted an aunty pointing to the place where the sun was setting and saying "we came from that way". She said that the others explained that there was land there once, but slowly the water had risen until "it stopped where it is now", that the landscape now under the sea "still belongs to us even though it's now submerged". The document continued: There is a big river flowing under the sea where the horizon is. They explained that this is the river that flows northwest out of Darwin harbour until it reaches Tangiyaw and then it turns north. This big river slow winds like a snake until its rests for a bit, and then finally heads west towards where the sun sets. This is where it finds the sea. … 1062 The document went on to state that there were other rivers under the sea before continuing: My aunties said that the cliffs along our coastline get washed away now because they are soft and made of ochre but the land under the sea that our ancestors lived on is made of stone. My mum said the country under that sea is like Kuwarrdewarrde, the sandstone escarpment country in Arnhemland where she was born. A place of cliffs, caves and waterfalls. They said there was a big waterfall now far from and to the left of where we were sitting. 1063 The document referred to a freshwater spring at Yuwalinga where she had camped. She said: … I was told that this spring kept heading on out to sea and flowed to the Big River on the horizon. I was told that this spring is connected to Ampiji the freshwater lake. Ampiji has a big hole in the centre like a volcanic vent and my brother John Louis Munkara said as a boy he was told that Ampiji lived there in that hole. 1064 Marie Munkara went on to refer to freshwater sources that the author claimed to know of on Bathurst Island. She stated that she had been told that those sources all "connect to the Big River away to the west". She went on to say: They spoke of a big lake under the sea. This lake flows northwards and at its northwest side is where the salt water from the ocean breached the freshwater when the seas rose. There is an opening in the cliffs where the salt water came through. If you are facing the setting sun towards the Big River under the sea, in the landward country this side (to the east) of the Big River there are burial grounds. From the beauty leaf tree and the springs to the south, if you are facing the setting sun the burial grounds are on the right hand side of the water source that flowed from Yuwalinga. The old burial ground is in the direction of the evening star Venus. These burial grounds are where our Tiwi spirits go when a person dies. When someone dies we call them across Bathurst Island to that burial ground. We drive along that road and stop periodically and get out of the vehicle and call the spirit or shoot a rifle and make a noise so they can hear us. We do this to make sure that the spirit is following us to Fourcroy so they can join our ancestors out in that burial ground. 1065 She went on to refer to the practice of burying people separately from each other "and so the area where the old burial grounds under the sea would be spread out and not contained to one place". 1066 Marie Munkara concluded with an assertion that before the sea level rose there were huge wetlands, "like the wetlands of Majinbardi billabong near Ubirr but on a much bigger scale".

Dr O'Leary's answers to questions 2 to 4 1067 In the body of his report, Dr O'Leary referred to "cultural narratives" that were variously drawn from the materials contained in his brief relevantly concerning the Mudungkala creation story, the Crocodile Man, Ampiji and the location of burial grounds. With respect to burial grounds, Dr O'Leary accepted in cross-examination that the source of his information was exclusively that provided to him by Marie Munkara. He then set out further narratives that he drew from the 2023 Marie Munkara Narratives, numbered Narrative 6 to Narrative 10, which fairly reflect the extracts set out above. There was nothing in O'Leary 1 to indicate that Dr O'Leary understood those particular narratives to have been sourced from any other Tiwi person, let alone a person having knowledge of them and authority to tell them. 1068 Dr O'Leary went on to give an opinion based on his geological expertise as to what the now-submerged landscape to the west of the Tiwi Islands would have looked like before its inundation, describing the embayment, the freshwater lake, and a spectacular waterfall at the headwaters of the embayment, said to show the "palaeo Elizabeth River" draining into it. He included maps depicting the now-submerged landscape over six phases encompassing 65,000 years, culminating in the present day. 1069 Part 6 of O'Leary 1 is titled "CULTURAL MAPPING OF SEA COUNTRY". Dr O'Leary presented two photographs together identified as Figure 7. The caption to Figure 7 reads "Figure 7 Sea Country map annotated by Senior Tiwi Knowledge Holders". 1070 The first image appears below. In these reasons I will refer to it as Map 4: 1071 The handwritten notations on that image read "Crocodile Man (Magdeline)", "Ampiji", "Sun Woman", "Sister Mother" and "All Imunga are connected to Ampiji". 1072 There appears in the image two horizontal lines, one commencing at Rocky Point in the north and continuing to the Ancient Lake. The other commences at or around Cape Fourcroy and ends at the southern end of the Ancient Lake where the Ancient Embayment is said to be. Dr O'Leary explained those markings as showing where the Crocodile Man was located. He said: The Crocodile man Ancestral Being story is located at Tangiyaw with the songline directed to the west ending at the edge of the embayment with another Elder directing the songline to the northwest but also ending at the edge of the embayment. 1073 With respect to Ampiji, Dr O'Leary stated: Several Elders drew circles around the area of the headwaters of the embayment to signify the area where the Mother Ampiji resides. The term sister/mother was also used in reference to this location. A reference was also made to Imunga which described the spirit and heartbeat of the Tiwi and how that is connected to the Mother Ampiji. A line has been drawn from Rocky Point to the waters of the embayment and this is in reference to a Malawu Ampiji which lives at Rocky Point and this Ampiji is connected to the Mother Ampiji through a songline, the connection between these two Ampiji spirits is represented in the horizontal line drawn from Rocky Point. 1074 Dr O'Leary went on to state that the Sun Woman creation narrative was located at an area west of Bathurst Island, that she comes from the east and "travels underground to the East, which may be represented by the line drawn that travels east along the Clarence Strait", presumably a reference to the hand-drawn line in the bottom right of the image. 1075 This is the second image in Figure 7. In these reasons I will refer to it as Map 5: 1076 As can be seen, this image is annotated with black and orange markings. The black handwriting reads "Croc Man Songline" above a black rectangle. The orange writing reads "Burial" and "Wetlands". Dr O'Leary stated that this image "shows the location of the burial ground to the NW of Tangiyaw". He stated, "This location is situated on some higher ground between the embayment and inshore areas just to the west of Tiwi. An area of Wetlands is also located to the West of Tangiyaw". In cross-examination, Dr O'Leary stated that he believed the markings in orange were made by Marie Munkara. He confirmed that she was the only source of his information about the existence and location of the burial grounds. 1077 Dr O'Leary then presented Figure 8, which he described as a "Western interpretive cultural map of Tiwi Sea Country to the west of Bathurst Island as inferred from the Tiwi Oral narratives". It is reproduced below and will be referred to as Map 6: 1078 With respect to the Crocodile Man, Dr O'Leary went on to acknowledge that in the ancient era depicted in his maps, the coast of the present day Tiwi Islands did not exist. His conclusion that the pipeline will intersect the song line was based on the following reasoning: 6.2.1 Crocodile Man Ancestral Spirit Being Narrative The Crocodile Man narrative has two key elements that provide clues to its place and path through Sea Country, the first being the location where the Narrative originates, which is Tangiyaw, and the second is that Crocodile Man 'ran' into the sea to escape. If the entomology of the narrative originated from more recent Holocene time, when the Tiwi lands were surrounded by oceans, then the derivation of this narrative could potentially have an origin around any part of the Tiwi coastline (Figure 4 sea level Phase 6). However, the Tiwi attest the antiquity of this particular narrative which spans Deep Time. To assume a Pleistocene origin to this narrative then during this interval of time sea levels were at a minimum 50 m and up to 130 m lower than present and theoretically the ancient coasts far too distant (many 10's of km) for someone to simply 'run' into the sea, that is except for area west of Tangiyaw (Figure 4 sea level Phases 1 to 4). Analysis of bathymetric data to the west of the Tiwi Islands as revealed a very long and narrow embayment which, during the Pleistocene, stretched for over 100 km south from the open sea with its head waters immediately to the west of Tangiyaw. The depth of the embayment (over 200 m in places) meant it remained connected to the ocean except during the peak of the LGM when sea levels fell to almost 130 m. Thus, this narrative happens to be geographically situated at the only place on the Tiwi Islands where proximal access to the ocean (<10 km) was sustained for almost the entire period of occupation. So, it would be reasonable to assume that Tangiyaw or a now submerged location immediately to the west of Tangiyaw marks the starting point of the Crocodile Man songline and this songline extends out in a northwesterly direction (most direct route) to the shores of the now submerged embayment. It should be noted that the proposed Barossa Pipeline would pass though this songline. 1079 In cross-examination, Dr O'Leary confirmed that in that passage he intended to say that the Crocodile Man story was one that did not commence where Wiyapurali and Cape Fourcroy exist today, but rather at a place at the ancient, more distant shoreline that is now submerged. 1080 With respect to Mudungkala, Dr O'Leary correctly described the narrative as relating to the formation of the Tiwi Islands. However, he said that it "may have a more recent connotation" explaining the formation of the islands as a result of rising sea levels. He continued: … or alternately this creation story describes a more ancient landscape, when the Tiwi Islands formed part of the Sahul continental landmass and was surrounded by deep elongated waterholes that formed along the Clarence, Dundas and Aspley Straits. Importantly Mudungkala is understood to have started her journey at a sacred water source near Tangiyaw, which is likely in reference to the headwaters of the deep embayment located in this area. 1081 Dr O'Leary's discussion of Ampiji stated that the Mother Ampiji lives at the Ancient Lake. He stated: The fact that the Tiwi strongly identify with the Sea Country to the west of Bathurst Island as being highly culturally significant (the place belonging to the Source of Mother Ampiji) makes sense if seen in the context of the evolving palaeogreography [sic] of the area. … 1082 Dr O'Leary went on to provide this explanation for how the Mother Ampiji could have travelled around the Tiwi Islands in ancient times when the islands did not exist as islands but rather formed a part of the mainland: … The antiquity of this sea or water serpent creation narrative suggests that water was a constant within the Tiwi landscape and across deep time. Palaeogeographic reconstructions of the Tiwi islands spanning the period of Human occupation show that across the late Pleistocene period of occupation (65,000 to 20,000 years BP) the Tiwi Islands were a hinterland environment and anywhere from 25 to 140 km away from the coast (Figure 4). While this particular geography may not accord with a sea-based Rainbow Serpent creation myth there is an area to the immediate west of Bathurst Island were a large-deep embayment provided a direct connection to the ocean for almost the entire period of occupation, and for the brief period during the LGM, this landform transformed into a large 25 km long, up to 3 km wide and up to 120 m deep permanent lake. The location of the headwaters of this embayment/lake west of Tangiyaw is the same location given by the Tiwi as the resting/origin place of the Mother Ampiji. 1083 Dr O'Leary went on to state that the question of how this ancestral being could travel around the rest of the Tiwi Islands during periods of lower sea levels was answered by "the fact that there would have been large permanent water bodies located along what is now the Clarence, Dundas and Aspley Straits" which "could" be seen as the means for Ampiji to travel around the "Islands" during times of low sea levels. He referred also to "Dreaming stories" about an "underground water system that connects the freshwater and salt water" which he said provided a means for her travels. He did not cite a specific source of that latter statement. 1084 As to the burial grounds, Dr O'Leary stated, "Jikilaruwu Elders have articulated their knowledge (through the narratives of Marie Munkara) of ancient burial grounds, now submerged and forming part of their Sea Country". He stated that an inference about the location of the burial grounds could be inferred from direction and submerged landform associations. He repeated the described location of the burial grounds, as drawn from the 2023 Marie Munkara Narratives. He then said that several ridge like landforms could be identified in that vicinity, which he described as follows (O'Leary 1, [6.2.4]): … The first is located approximately 3 km to the northwest of Wyapurali, is 4 km long, orientated in an N-S direction, with the ridge line situated in water depths of 30 to 35 m bmsl. Two other smaller ridges are also identified approximately 9 and 11 km NW of Tangiyaw. Both ridges are orientated in a NW-SE direction, both are approximately 2 km long with their ridgelines situated at about 35 m bmsl. These landforms would have formed part of the Tiwi cultural landscape spanning 50,000 years, only becoming inundated during post glacial sea level rise. The presence of these particular landforms NW of Tangiyaw complements the Tiwi belief that this area in the NW is the location of ancestral burial grounds. The Barossa pipeline passes directly though this spiritually sacred area. .. 1085 Dr O'Leary went on to describe the 2023 Marie Munkara Narratives as evidencing a deep time memory of landscapes handed down over generations and explained how those memories are consistent with the landforms depicted on his maps. 1086 Map 6 is a digital markup of a map which Dr O'Leary said in cross-examination involved his artistic licence in representing the narratives. 1087 Dr O'Leary set out his summary and conclusions in Part 8 of his report. He commenced with a statement that the recently recorded narratives and oral traditions presented with his report accorded with the "findings" in the Horton Literature Review and that the cultural mapping exercise "takes the body of recorded narratives a step further, in that it attempts to reconnect narratives of Sea Country that Tiwi People hold to identifiable places (ie geomorphic features) on the seabed, and then to establish the locational context of these Indigenous underwater cultural heritage sites with the proposed Barossa pipeline route.".

Lewis 1 1088 Mr Lewis was engaged by the EDO by letters dated 25 May 2023 and 6 July 2023. He produced Lewis 1 on 21 July 2023 in response to those instructions. 1089 The materials provided to Mr Lewis under cover of the letter dated 25 May 2023 included the Horton Literature Review, the Knowing Sea Country Report and Marie Munkara's 2017 thesis titled "A Living Landscape". 1090 Supplementary materials provided to Mr Lewis on 6 July 2023 included the EDO Synthesised Narratives, a copy of the 2023 Marie Munkara Narratives, video recordings and notes taken during the June O'Leary Workshop and a copy of O'Leary 1. The supplementary materials were not in Mr Lewis's possession when he met with Tiwi Islanders on 30 and 31 May 2023. 1091 Mr Lewis was again engaged by the EDO by letter dated 27 September 2023 for the purposes of responding to the opinions set out in Corrigan 1. He produced Lewis 2 on 24 October 2023 in response to those instructions. 1092 Mr Lewis referred to Dr O'Leary's opinion about the existence of the Ancient Lake. He opined that it was only logical that the formations evident in Dr O'Leary's analysis "would have figured in the cultural geographies of the occupying societies of the time". He continued (Lewis 1 [2.15]): In making these comments it is important to consider, as Horton (2023: 1) does, that the possibility that this submerged landscape may not have been incorporated into a social and/or language group that is now recognised and articulated as Tiwi. The ethnographic materials note that many unique aspects of contemporary Tiwi society reflect their relative isolation from mainland groups, an isolation that would not have been the case during previous eras when sea levels were lower and the enlarged landscapes would have been occupied by Aboriginal groups which may have been distinctive from what is contemporary Tiwi society, or at least would have been occupied by Tiwi ancestors who logically would have been less physically and socially culturally isolated than the present and recorded past. In my opinion these considerations do not preclude or devalue in any way the connections asserted by contemporary Tiwi with their modern offshore estates and sea country or their beliefs about past occupation with, significance of, and inherited responsibility for such areas. (footnote omitted) 1093 Mr Lewis was provided with videos recording "senior Tiwi informants" engaging with maps produced by Dr O'Leary which he understood had underpinned O'Leary 1. He described the maps shown by Dr O'Leary to the informants as "a unique visual aid which enabled Tiwi informants to engage with and align to their traditional knowledge". He described the interaction in the videos as "highly informative with the mapping supporting and enriching Tiwi narratives and traditions". Mr Lewis said that the conclusion in O'Leary 1 enhanced his opinion that there were cultural heritage places along and/or in the pipeline route to which Tiwi people had spiritual and cultural connection in accordance with Aboriginal tradition. 1094 In response to a question asking him to describe the underwater cultural heritage places, Mr Lewis said that there were a variety of Tiwi cultural heritage places in the vicinity of the pipeline route "comprised by areas of ocean which are sea country extending from and connecting with the mainland, along with intangible and potentially more tangible places that may exist beneath the sea". 1095 Mr Lewis referred to two aspects of that cultural heritage. At one level, he said, "the entirety of the seas and oceans off the Tiwi Islands" are of immense spiritual and cultural value, as evidenced foundational creation narratives he set out earlier in his report. Those narratives, he said, connected Tiwi people "to the entirety of their land and sea country as a socially constructed universe or 'place' which is owned, used, cared for and managed by Tiwi people past and present". 1096 In addition, he said that there were specific areas of the ocean which were considered to be Dreaming tracks, song lines and sacred areas, some of which were associated with creation myths Mudungkala and Purrukapali, Ampiji the rainbow serpent and the Crocodile Man. He said, "[t]hese areas and places are of immense value and concern to Tiwi people". 1097 Mr Lewis continued (Lewis 1, [34]): There are also other offshore areas which Tiwi informants have described in recent consultations as including burial and occupation sites, and most likely other sacred and ceremonial sites, that they associate with country that was occupied by their forebears in ancient times when it was part of the mainland, which is now underwater. These views predate but are reinforced by the recent work of O'Leary. 1098 Mr Lewis went on to draw from the 2023 Marie Munkara Narratives about the existence of the "Big River", which he described as "collective histories of precontact events and ancient prehistoric environmental landscape change" that were not uncommon in his experience. 1099 He went on to extract information provided to him by Tiwi informants and otherwise provided to him by the EDO in his brief or as set out in O'Leary 1. In a section of his report concerning Ampiji, Mr Lewis largely repeated or paraphrased Tiwi accounts referred to in O'Leary 1 or taken from the EDO Synthesised Narratives. He stated that in his own engagements, "Tiwi informants have associated the Embayment area with all freshwater sources on the Tiwi Islands connected by underground tunnels" but does not state which engagements he referred to or when they occurred. 1100 In a section of his report relating to the Crocodile Man, Mr Lewis extracted an account of the story from the 1958 work of Mountford (which does not situate the Crocodile Man as being in deep water or far out to sea). He then extracted an account of the story given to him by Molly Munkara on 31 May 2023 (before the June O'Leary Workshop) in which she described Jirakupai as turning into a crocodile "close to where we collect our oysters at Cape Fourcroy" but made no reference to the more distant sea. He then extracts an account from his interview with Valentine Intalui. That account referred to a man turning into crocodile "when he goes into the sea" but does not include any reference to deeper or more distant waters. 1101 Mr Lewis stated that Jikilaruwu clan members had particular responsibilities for this Dreaming/song line and its associated sites, but did not state what those responsibilities were nor the places to which they related. He stated, without footnoting a reference, that "Jikalaruwu clan members, and others, consider that Jirakupai travels widely and far offshore to … include areas of sea country in the vicinity of the proposed pipeline and the Embayment area detailed in O'Leary's 2023 mapping work". 1102 On the topic of burials and mortuary beliefs, Mr Lewis noted that burial sites on the Tiwi Islands were consistently registered as sacred sites. He drew from anthropological literature to the effect that the Tiwi Islanders believed that the deceased left the islands and walked out to sea to the spirit world through three "doors" near Solider Point on Melville Island, and Rocky Point and Cape Fourcroy on Bathurst Island, which he noted were closest to the proposed pipeline. He described the "doors" connecting Tiwi Islanders to the spiritual domain as foundational, but did not attribute any information about the practice to the informants with whom he had engaged. He went on to say that it was a "logical step for Tiwi informant [sic] to attach spiritual significance to the seas and the submerged landscape west of Bathurst Island as a place associated with both the spirits of the dead and the past burial of ancestors". He did not there state which informant or informants had conveyed such thinking to him. He said that the "depth of his logic" was demonstrated in the 2023 Marie Munkara Narratives (particularly that extracted at [1061]- [1065] of these reasons). 1103 In Part 7 of his report, Mr Lewis described his prior experience in examining and reporting on the nature and severity of the impacts upon Indigenous Australians arising from the loss and destruction of their cultural heritage (particularly in the context of contested mining projects), including "enduring loss, personalised injury and social imbalance or rupture". He went on to give accounts of how the Tiwi Islanders had enunciated issues of risk, impact and loss. He extracted passages from his field notes of interviews done on 29 May, 31 May, 18 July and 19 July 2023 with Richard Puruntatameri, Valentine Intalui, Pirrawayingi Puruntatameri, Molly Munkara, Theresa Bourke and Pauline Puruntatameri as follows (Lewis 1, 7.2.2): 'We don't own open water [under European law] but it belongs to us. Our ancestors walked on that land before the water came in. They buried people and did their ceremonies Kurlama and Pukumani. Our stories and our ceremonies go back to them.' (Richard Puruntatameri, Gareth Lewis Fieldnotes 31st May 2023) 'Songlines connect the land to the sea and give life to people.' (Valentine Intalui, Gareth Lewis Fieldnotes 29th May 2023) 'We can't be pushed, our story is not from books, we have to go through our elders and respect their authority. There will be serious spiritual repercussions. When they drill, they drill our body, disturbing our ancestors who watch over us. The recent earthquake was a warning. It will be terrible and disastrous for us.' (Pirrawayingi Marius Purantatameri, Gareth Lewis Fieldnotes 29th May 2023) 'We believe in special things under the water - it will affect our God, our spiritual beliefs. I believe that disaster will come. Ampiji sent the cylcones [sic] away before, we have never had cyclones or floods hit us because we have looked after our country and sites, …We are worried too much.' (Valentine Intalui, Gareth Lewis Fieldnotes 31st May 2023) 'Rainbow comes if someone does the wrong thing, seas will rise up and winds will come. The water will change, the water is the spirit.' (Richard Puruntatameri, Gareth Lewis Fieldnotes 31st May 2023) 'Rainbow is watching you. When we are on the boat it hears our language and knows its us. We call out and wet our heads.' (Molly Munkara, Gareth Lewis Fieldnotes 31st May 2023) 'Our people are buried out there and there are artefacts and things that they left behind.' (Theresa Bourke, Gareth Lewis Fieldnotes 29th May 2023) 'It [the proposed pipeline route] is where our Pukumani and Moapaditi traditions are. It will anger the spirits. If the pipeline happens the rainbow serpent will collapse and our community will be shamed. Our stories were there before, it's our foundation.' (Valentine Intalui, Gareth Lewis Fieldnotes 29th May 2023) 'Right now [Jikilaruwu country and sea country] it's a good book for us to read. If the pipeline goes through it will cut that book in half, we will be in danger. Jikalaruwu will be blamed by other clans this area is our front door [to the Tiwi Islands].' (Valentine Intalui, Gareth Lewis Fieldnotes 19th July 2023) 'Ampiji is the mother of all water on the Tiwi Islands, she is the key to the system which lets us carry on our lives our culture and our happiness. If it goes ahead [if the pipeline in constructed along its proposed route] Mother Ampiji will stop listening to us, the system will turn off, everything will stop spiritually - the stars and sky will change. Jirakupai will be affected and all of our food resources and sea life will disappear.' (Valentine Intalui, Gareth Lewis Fieldnotes 19th July 2023) 1104 In cross-examination, Mr Lewis accepted that the Horton Literature Review did not supply an answer to the question of whether the pipeline would impact upon Tiwi culture or cultural heritage. He said that the question was informed by the literature but of paramount importance was what the Tiwi people themselves had to say about the issue. 1105 Mr Lewis said that since their 1983 application for sea closure under the Aboriginal Land Act, Tiwi people had been actively seeking to manage and control their coastal and offshore marine areas from culturally ignorant trespass. He did not there state the extent of those marine areas. He referred to specific areas of ocean which were considered Dreaming tracks, song lines or sacred areas and were associated with Dreamings Mudungkala and Purrukapali, Ampiji and the Crocodile Man. He stated, "These areas and places are of immense value and concern to Tiwi people" but did not in that paragraph give further specifics as to where those areas and places were. 1106 Mr Lewis went on to say that there were other offshore areas which Tiwi informants had described in recent consultations as including "burial and occupational sites, and most likely other sacred and ceremonial sites, that they associate with country that was occupied by their forebears in ancient times when it was part of the mainland, which is now underwater". He said that those views predated but were reinforced by the recent work of Dr O'Leary. In support of his view that the associations predated the work of Dr O'Leary, Mr Lewis drew on the 2023 Marie Munkara Narratives, as follows (Lewis 1): 3.5 Marie Munkara's 2023 report supplied to me by the EDO as part of my brief provides her account of narratives told to her in 1996 by her aunties. These narratives referred to a 'Big River' to the west of Bathurst Island: 'Then the others explained that there was land there once but slowly, slowly the water rose until it stopped where it is now. They described a landscape out there under the sea and said that land still belongs to us even though it's now submerged. There is a big river flowing under the sea where the horizon is. They explained that this is the river that flows northwest out of Darwin harbour until it reaches Tangiyaw [Cape Fourcroy] and then it turns north'. 3.6 In my experience such collective histories of precontact events and ancient prehistoric environmental and landscape change are not uncommon. Much of the Aboriginal cosmology I am familiar with, particularly in western Arnhem land and Kakadu, engages with the ancient past, attributing landscape formation and change inclusive of changes in sea levels, to the actions of creation ancestors. (footnotes omitted) 1107 Mr Lewis set out in Lewis 1 the iterations of the Ampiji in the words taken from his letter of instruction from the EDO. He said that Lake Mungatuwu and Rocky Point were the closest freshwater Ampiji sites to the pipeline route, but said that the interconnected and travelling nature of the various Ampiji "make such distinctions almost obsolete". He said that whilst Ampiji clearly had focal land locations, as a collective, Ampiji was present around the entirety of the Tiwi Islands mainland and its coastline, "including the proposed pipeline area at an area described below which informants consider to be the resting and/or origin of the Mother Ampiji". What he then described were the sites identified in O'Leary 1 which he said had generated "detailed responses" from the Tiwi informants about Ampiji occupying what Dr O'Leary had identified as a 160km long drowned river valley or "embayment" with headwaters situated 12km offshore to the west of Cape Fourcroy. Mr Lewis stated that the headwater location was associated by the informants with the Mudungkala tradition, but did not give details as to how that association arose. 1108 After extracting descriptions of the Crocodile Man song line, Mr Lewis said (Lewis 1, [4.2.4]): … Jikalaruwu clan members have particular responsibilities for this dreaming/songline and its associated sites. Jikalaruwu clan members, and others, consider that Jirakupai travels widely and far offshore to the include areas of sea country in the vicinity of the proposed pipeline and the Embayment area detailed in O'Leary's 2023 mapping work. 1109 Mr Lewis concluded with the following unqualified opinions (Lewis 1, [8.1.2]): 8.1.2 In my opinion, the pipeline if constructed in its proposed location: • will damage sea country which comprises the traditional estates of relevant Tiwi people in a manner that is unacceptable to the traditional owners of those estates; • will cause spiritual injury and damage to dreaming tracks, songlines and areas of cultural significance which are contained within and are constitutive of these traditional estates; • will physically as well as spiritually alienate or disconnect areas of sea country and adjacent or spiritually connected areas of land from relevant Tiwi people, deterring their access to the range of physical and spiritual sustenance which they constantly draw upon for their economic, health, social, cultural, psychological and educational benefit; • will interrupt relevant Tiwi peoples' ability to fulfil their spiritual and social responsibilities to look after their estates and associated dreamings and songlines and their ability to perform related ceremonies and rituals, potentially further impacting on their ability to reproduce cultural knowledge by interfering with the cultural education of their children; and • has already caused and will further cause significant spiritual and emotional distress which has been and will further be internalised by the Tiwi Aboriginal community as stress, anxiety, fear, anger and powerlessness (all of which are likely to be attributed by the Tiwi community to various forms of natural disasters, negative social behaviours, illnesses and even deaths regardless of causality). 1110 Some of those opinions relate to both the adapted accounts and the original accounts upon which the applicants relied at the time of their closing submissions. The reasoning in the report contained little or no distinction between the two.

Posamentier 2 1111 The opinions of Dr Posamentier will be discussed in more detail later in these reasons. 1112 In Posamentier 2, Dr Posamentier discussed the observations and interpretations of the palaeolandscape made within Wessex 1. He contended that additional data was required to definitively identify and interpret landforms. He maintained an opinion (from Posamentier 1) that the modern sea bed has been modified from the LGM period due to processes of sedimentation and erosion. As a result, Dr Posamentier believed that any archaeological objects present on the palaeolandscape 18,000 years ago would not have been preserved in the ocean setting due to erosion from tidal currents and wave energy during transgression.

O'Leary 3 1113 In O'Leary 3, Dr O'Leary responded to statements made by Dr Corrigan in Corrigan 1 that refer to the conflicting findings between Wessex 1 and Posamentier 1 and Posamentier 2. Dr O'Leary noted that Dr Corrigan had concluded the improbability of underwater cultural heritage sites being located along the pipeline route. Dr O'Leary expressed his surprise that Dr Corrigan did not acknowledge the underwater cultural heritage sites discovered on the European continental shelf, the North American continental shelf, or Australia's northwest shelf as demonstrating potential for similar archaeological finds in the pipeline development footprint. He suggested that even in the absence of Dr Corrigan's expertise in geoscientific principles, sedimentary and hydrodynamic processes it would have been appropriate for him to show caution with his findings.

O'Leary 4 1114 In O'Leary 4, Dr O'Leary noted that the publishing of Wessex 1, Posamentier 1 and Posamentier 2 by Santos on their website had allowed him the opportunity to read the reports. He did not provide a review of the reports but offered further criticism of Dr Corrigan's "false sense of certainty" that there would be an absence of underwater cultural heritage along the pipeline route. Focusing on one statement made in Corrigan 1 (in which Dr Corrigan noted that neither Wessex 1 nor Posamentier 1 nor Posmantier 2 concluded a likelihood of archaeological material being found in situ along the pipeline route). Dr O'Leary observed that Dr Corrigan had generally preferred the findings of Dr Posamentier over Wessex. He expressed his confusion that Dr Corrigan did not observe a contradiction between the findings of Dr Posamentier and Wessex. He suggested that it was unclear how an anthropologist such as Dr Corrigan who had, in Dr O'Leary's opinion, limited relevant subject matter expertise could prefer the findings of Dr Posamentier over Wessex.

Further reports 1115 Dr O'Leary and Dr Posamentier provided further supplementary reports and a joint report following a pre-trial conclave: O'Leary 5, Posamentier 3, 4, 5, 6, 7, Geoscience Joint Report. Their content is considered or subsumed in the discussions that follow.

Flaws in the cultural mapping process 1116 My rejection of the adapted account aspect of the applicants' case is founded on the following factors.

May Lewis Meeting 1117 Minutes of the May Lewis Meeting are in evidence. They were accepted by Mr Lewis as an accurate record of what occurred there. In attendance were Mr Lewis, two lawyers from the EDO, two persons from the Environment Centre of the Northern Territory and 18 Tiwi Islanders, nine of whom include the applicants or their witnesses. 1118 The minutes are titled "Clan group meeting re Drilling and Underwater Cultural Heritage Assessment - Malawu, Manupi and Jikalarruwu (30 May 2023)". As the title suggests, the meeting canvassed two topics and it is important to consider them in that context. One aspect of the meeting concerned actions then being taken by Santos in response to the Court's judgment in Tipakalippa No 2 and Santos. Discussion at the meeting about the outcome and ramifications of that case then merged with discussions about the pipeline and the purpose for Mr Lewis' presence and activities on the islands. The legal context was that NOPSEMA's prior acceptance of an environment plan for Santos' drilling activities had at that time been set aside because Santos had not undertaken consultation with the "relevant persons", being Tiwi Islanders. 1119 It is to be recalled that the Pipeline EP had been accepted by NOPSEMA on 9 March 2020, some two and a half years prior to the judgment in Tipakalippa No 2 relating to the Drilling EP. No challenge had been made to the validity of the Pipeline EP. However, at the time of the May Lewis Meeting, NOPSEMA had issued the General Direction to Santos, which explained why Santos was at that time undertaking consultations with Tiwi Islanders in relation to the pipeline, principally through Dr Corrigan and his team. 1120 The meeting commenced with a discussion about the outcome of Tipakalippa No 2 and Santos and the alleged shortcomings in Santos's approaching Tiwi Islanders through the Tiwi Land Council. Mr Lewis told the meeting: This is unusual because it is an offshore program so the [Tiwi Land Council] is limited in what it can do. Big powerful company coming to talk to people without checks and balances in that process. No technical or mining experts coming to help you. Interesting they have jumped the gun. 1121 An EDO lawyer told the meeting that the Court in Tipakalippa No 2 and Santos had "heard about Ampiji and turtle dreaming and all the important stories in sea country" and that that was the "strongest part of why [the] court was worried". She said that after the present consultation, NOPSEMA may yet determine that the risk to culture was acceptable. She said, "If NOPSEMA says yes, then we can maybe go to court and say NOPSEMA made another mistake because the risk to culture is unacceptable". Mr Lewis then added, "I think it would be better to have NOPSEMA say no before that." The EDO lawyer responded, "Yes, but the court is plan B". That exchange may be understood as referring to the future assessment of the environment plan relating to the drilling activities, being the environment plan considered in Tipakalippa No 2. 1122 The EDO lawyer later said again that "the court is plan B" before adding, "Tiwi people have so much power. Tiwi people stopped the drilling last year. There is an oil rig sitting out there now that is not being used, because of the court case". The EDO lawyer described that as "Part 1". She said "Part 2 is about the Pipeline". She said that the pipeline would come within 7km from the land. Molly Munkara said that was 7km from where she collected oysters, and that when she went out on the boat, she could see the shoreline and a turtle came up. 1123 The EDO lawyer said that Dr Corrigan was there because of a letter the EDO had written to NOPSEMA. She said that Dr Corrigan "wants to hear about the stories, especially crocodile man story. It's really important he understands those stories. Because if you say putting the pipeline here will break the song lines or anger the ancestors, that may convince NOPSEMA to stop the pipeline. That's why we brought Gareth here too, to have our own anthropologist". 1124 The EDO lawyer said that it was the cultural stories that were "stopping this multi billion dollar project", and that "this whole last 18 months this is what has stopped the whole project". To that, Mr Lewis added: When Balanda want to dig up country, it's often country that's important to Aboriginal people. The unusual thing here is that it's offshore. The law that protects your interests doesn't work so well here. 1125 Mr Lewis then pointed to a drawing of Cape Fourcroy and said: The pipeline will come to 7km of this area. I'm trying to understand how big that dreaming story is about crocodile man. How big is the site and his influence? 1126 The EDO lawyer said that she wanted to discuss underwater cultural heritage "and also about climate change and how this project is connected with climate change and the risks". Pirrawayingi Puruntatameri said that "this mob" had gone to a climate change meeting but it would be good to have more information. 1127 Mr Lewis then referred to the Horton Literature Review. He said: … There was not much found for top of Munupi country, but there may be stuff we don't know yet. Most of the information came from white anthropologist called Charles Mountford who would have worked with your grandparents or great grandparents. There are a number of sites that we can go through together that will maybe get your brains ticking for when you meet with Corrigan. 1128 Later in the meeting the EDO lawyer said: That's why this discussion about how we can block it with spears is so important. … Giving these stories or explaining that this pipeline cannot go in because it would be culturally damaging, however you do that, it is really important because then hopefully NOPSEMA will block the pipeline from going ahead or give us another spear to go to court. 1129 Shortly after that, Mr Lewis said: No matter what Santos hears, they will make argument to NOPSEMA that there is no substantial risk because of all these reasons. But they cannot speak for you, only you can speak about the risks to you. The job is to tell NOPSEMA that the risk is not acceptable to you. And if NOPSEMA doesn't listen, then you go to court. And the more united you are, the better. 1130 Mr Lewis acknowledged that nobody at the meeting made any reference to there being a Mother Ampiji or an Ancient Lake in the sea. Mr Lewis said: The information they were giving me at this meeting was more about the generic sense of song lines off - off Cape Fourcroy out into the deep water. They didn't talk about a freshwater lake. But they did talk about those Dreamings.. 1131 In cross-examination, Mr Lewis said he was provided with general information about the Ampiji and Crocodile Man Dreamings "being far offshore" during a break in the meeting, but not in the meeting itself. 1132 I have two broad concerns based on the minutes of the May Lewis Meeting. 1133 The first arises from the discussion about the strategies that could be adopted by Tiwi Islanders, including their involvement with Dr Corrigan, NOPSEMA and the Court. Legal proceedings were plainly in contemplation. There is nothing wrong with conducting a strategy meeting per se. However, the discussion is one that referred to the use of cultural heritage stories as a weapon in the strategy and Mr Lewis actively participated in that discussion, including by urging the Tiwi Islanders to present a united front, and by making predictions about what Santos would do. These statements were made in the first part of his first meeting with the Tiwi Islanders who were to become his informants. He had not met the informants before then and his brief at that time did not include their narratives. He prompted the attendees first by telling them that he was interested in how "big" the site relating to the Crocodile Man story was, and then by suggesting there were a number of sites that might get their "brains ticking" for when they met with Dr Corrigan. 1134 The participation of Mr Lewis in the discussion in that particular way raises a concern in my mind about his independence. There was a prospect of court proceedings and it must have been within his contemplation that his expert opinions based on his field work may be used in an expert report. It is not the role of an expert witness to barrack for the interests of a party to legal proceedings. The statements cause me to approach his opinions with some caution because they suggest that he may have proceeded to draft his report with a view to achieving the Tiwi informants' objective of stopping the pipeline. He acknowledged that at that time he was aware that those in attendance at the meeting had the objective of stopping the pipeline and he knew that was also the objective of the EDO. I do not criticise him for having that knowledge. However, an anthropologist in Mr Lewis's position is a conduit of information provided by informants, and the information he elicited from informants was to be included in an independent expert report. The statements of Mr Lewis undermine my confidence in his approach because they give rise to a concern that he went about his task by eliciting information that would stop the pipeline, rather than as an anthropological enquiry carried out with a neutral attitude in the ultimate outcome. 1135 My second broad concern is that the words of Mr Lewis and the EDO lawyer considered together constituted a form of subtle coaching. There was nothing at all wrong with encouraging those in attendance to tell their stories; but the cumulative effect was to urge those present to tell their stories in a way that propelled their traditions into the sea and into the vicinity of the pipeline. In and of themselves the statements are not sufficient to defeat the applicants' case. However, when considered in conjunction with what follows they undermine my confidence in the reliability of the evidence later given by the Tiwi Islanders who attended.

Conclusions on Lewis 1 and Lewis 2 1136 Mr Lewis confirmed that he had no input into the identity of the Tiwi people who attended the meeting and that he had no discussion with the EDO about the appropriate methodology for selecting them. He said that he understood they had been selected as representatives of the Jikilaruwu, Malawu and Munupi clans but his report contains no statement that he had independently satisfied himself that that was so. In light of that evidence I find it difficult to accept the methodological criticisms that Mr Lewis levelled at Dr Corrigan. The opinions expressed by Mr Lewis are in unqualified terms and make no reference to the existence of different views or dissent among senior members of the same clan group, because he did not investigate whether there were any. Nor did he test the assertion in his instructions that his own informants had been selected in a culturally appropriate way. He simply assumed its truth. On the evidence before me, I am not satisfied that assumption can be sustained. 1137 In addition, I consider that Mr Lewis' opinions are based on a wholesale acceptance of the truth and reliability of the EDO Synthesized Narratives unaccompanied by independent anthropological analysis as to how those narratives came into existence. His conclusions about burial sites could only have been based on an unquestioning acceptance that the 2023 Marie Munkara Narratives were reliable. He had not met Marie Munkara and knew nothing about her cultural authority or her participation (if any) in the cultural mapping process. His opinions are not expressed to be based on an assumption as to the reliability of the material provided to him by the EDO. I consider they ought to have been. My finding (below) that those materials are unreliable severely undermines the foundations of Lewis 1. 1138 Mr Lewis expressed his concluding opinions in stark and unqualified language. I am not satisfied that the limited field work he conducted, and the circumstances in which he conducted it, can reasonably support such strongly worded opinions expressed in such an unqualified way. In addition, the opinions are not supported by detailed accounts to assist the Court to understand the basis for them. 1139 The role of an expert in this Court is not to advocate an arguable or defensible answer to a question, but to assist the Court to arrive at the correct answer. I regretfully consider that the opinions in Lewis 1 and Lewis 2 fall within the former category. With respect to anthropology more generally, I derive limited assistance from reports that do little more than repeat information provided by a limited sample of informants without investigating and grappling with the existence of differing views among the relevant group of people. At the very least, such a report should explain whether differing views are anthropologically significant and, if significant, how (if at all) anthropology may assist to resolve them.

Dr O'Leary's maps 1140 The maps used in the cultural mapping processes are problematic in several respects. 1141 Critically, they cannot on any reasonable measure be said to correctly represent the pre-inundation landscape in the period to which they relate. At the times to which the maps relate, the Tiwi Islands did not exist as islands at all. Rather, the now-submerged landscape and the land that is now the modern Tiwi Islands formed part of mainland Australia. The Clarence Strait did not exist. Nor did the Aspley Strait. 1142 The maps prepared by Dr O'Leary use colours in two ways that are relevant. I use Map 4 as an example. The map depicts the modern day Tiwi Islands coloured in saturated green. It does not indicate a landscape in which that land mass formed part of a wider landscape incorporating the mainland. Second, the "embayment area" and lake feature described by Dr O'Leary are coloured in a bright cobalt blue, surrounded by a light desaturated brown, so drawing the eye to the Ancient Lake as a standout feature, particularly in comparison to the sea water adjacent to where the far off shoreline at that time would have been. On a true depiction of the ancient landscape, there would be no Tiwi Islands, there would be a singular mainland with a coastline far north of where it is today. I am satisfied that none of that was explained to the Tiwi Islanders. So much is apparent from the video evidence discussed below.

Events at the June O'Leary Workshop 1143 The evidence demonstrates that Dr O'Leary was engaged to assist the EDO's clients and that he appreciated that those clients were Tiwi Islanders who wanted to stop the pipeline. 1144 Minutes were taken of a meeting at the commencement of the June O'Leary Workshop. The minutes show that eight Tiwi Islanders attended, three of whom are witnesses in these proceedings. Two lawyers from the EDO were in attendance, including the same EDO lawyer referred to earlier in these reasons. 1145 At the beginning of the meeting, Dr O'Leary told the attendees about work that he had done in the Dampier region in connection with land proposed for development by Woodside Petroleum. He said that he had a map of the sea bed with "really beautiful imagery of the seafloor" which showed two depressions, like holes, in the sea bed. He referred to a 92 year old Aboriginal Elder, Timmy Douglas, and went on: I showed the picture of the two depressions that look just like waterholes, the size of swimming pools, all of the sudden Timmy Douglas started speaking in traditional English [sic]. I thought I offended him. Everyone else was talking intently about the picture. He was pointing at a photo on the wall of a kangaroo, they were saying half and half and were pointing at photo of kangaroo on the wall. Afterwards, one of the World Heritage people who is Aboriginal, I asked her to explain what happened. She said Timmy recognized the holes from the kangaroo songline. Because it was description of song-line was so detailed and the map was so detailed, he was able to match the songline to the place. … With the map, I could say the kangaroo songline was part of the map and I could say this is important and Woodside can't touch it. 1146 In response, a Tiwi Islander attendee said "Well we gotta do this". 1147 The minutes then record Dr O'Leary referring to a map. The following exchange occurred: Dr O'Leary: Brought out closer map. This is very deep, during ice age. This place was like huge, think of Apsley Strait and it was just fresh water. It kind of comes up like a tongue that forms just like that, it continues all the way out. Pointing at freshwater lake going to ocean. But this was at ice age. If you go further out in time, it goes further. It was big big lake. This map was before the ice age. You can see the lake comes out like this like a big tongue. EDO Lawyer: When Mick was saying like tongue, I was thinking like Ampiji. 1148 In an afternoon session of the meeting, Dr O'Leary again told the story of Timmy Douglas. He referred to Timmy Douglas who "instantly recognized" a now submerged waterhole on a map from his memory and connecting it with a kangaroo song line. 1149 Dr O'Leary described the Ancient Lake off Cape Fourcroy as "massive". He said: This one here, is like 8km long 2km wide 100m deep. This at the ice age, there would have been fresh water here under the worst drought. There always would have bene [sic] fresh water here. All year round. For thousands of years, even under the worst drought, always water there. 1150 In cross-examination Dr O'Leary admitted that the words he had used at the morning session of the meeting about using the kangaroo Dreaming story and the map shown to Timmy Douglas to stop Woodside were not true. He said it had nothing to do with stopping Woodside. He said that he now regretted saying the words because they were incorrect. He admitted that the waterholes on the map shown to Timmy Douglas were not anywhere near a development contemplated by Woodside. The cross-examination continued: Q: And do you recall that the mood of the meeting was that once you described what you had done for the people with the kangaroo song line and Woodside, that they were keen or wanted you to do the same for them so they could stop Barossa? A: Sorry, I may have given the impression that the kangaroo song line had something to do with the Scarborough pipeline or Woodside. The truth is there is nothing to do - no relationship between the Scarborough development and these water holes or the kangaroo song line. Completely different things. Q: Is your evidence, irrespective of what is the true position, that what you told the meeting that the kangaroo song line would stop Woodside? A: I said that, but that is incorrect. Q: What I'm asking you is did you understand - after you told the meeting that the kangaroo song line had been used to stop Woodside, did you understand that the meeting were keen for you to help them, with your mapping, stop Barossa? A: Yes. So two things. The - I said could stop Woodside, again, which was an incorrect statement. And I get the - I get your assertion that, yes, it would have given that impression, and I regret saying that at the meeting. 1151 That is a startling admission. Not only is it damaging to Dr O'Leary's credit, it causes me to doubt his understanding of the obligations of an expert to remain impartial. 1152 It may reasonably be inferred that the statement about Timmy Douglas and the untrue statement at the earlier mapping exercise which had been used to stop an earlier petroleum development could only have been deployed at the beginning of the June O'Leary Workshop to coach the attendees about what they might say in response to the maps of the submerged landscapes, so as to achieve their objective of stopping the pipeline. No other reasonable inference is available. None was offered by Dr O'Leary and he was not re-examined on the topic. Whether the EDO lawyers in attendance were aware of the untruthfulness of the statement is unknown to the Court and I make no finding about them in that respect. 1153 Dr O'Leary's admission was freely volunteered, such that he did not lie to the Court. But he did lie to the Tiwi Islanders, and I find that he did so because he wanted his "cultural mapping" exercise to be used in a way that would stop the pipeline. It is conduct far flung from proper scientific method, and falls short of an expert's obligation to this Court.

Video evidence 1154 It is apparent that the video recordings of events occurring at the June O'Leary Workshop are not a complete video record of everything that occurred there. Not all speakers in the videos are shown visually, and those who are shown are not named in the videos themselves. Some of them are recognisable as among the applicants or as witnesses for the applicants. The names of some of the participants can be found in footnotes to documents provided to Mr Lewis and Dr O'Leary, discussed earlier. 1155 There are two aspects of the video evidence giving rise to further concerns about the integrity of the cultural mapping process. I have considered them as a whole and summarise some of them below. 1156 My overall observation is that they confirm that the Tiwi Islanders engaged with the map depicting their islands as they exist today. They repeatedly pointed to places on the land and on the coast that were of significance to them and to the area around the islands as though it were the sea in the present day. In Video 8, Dr O'Leary is heard to say that the map depicts a time 50,000 to 30,000 years ago. But the Tiwi informants plainly did not appreciate that when interacting with it. That is hardly surprising given that the Tiwi Islands in today's form are shown on the map in bright green on the dull-coloured background. 1157 In Video 15, Dr O'Leary indicates the large area in which his freshwater lake is depicted, referring to it being "around the island". That of itself is misleading, given that the islands did not exist as islands when the lake existed as a lake (if indeed it did exist). The informant then indicates broadly around the islands and says that there is Yiminga there "and they all have song lines". Dr O'Leary responds, "It's amazing to me that what you describe from your memory is like what's on the maps you know, .. you speak this story and I can see the story on the map, you know, this is amazing". 1158 Also in Video 15, an informant refers to a sacred site at Rocky Point, which Dr O'Leary marks on the map. The informant refers to Wiyapurali and refers to the Crocodile Man song line being there. Dr O'Leary writes "Crocodile Man song line" on the map and draws a mark off the coast. He then refers to the Ancient Lake, circling it with his pencil, and says "this is the fork tongue here?", forking his fingers over the lake. The marks made in this video are those depicted in the second image of Figure 7 reproduced in O'Leary 1 and extracted at [1075] of these reasons (Map 5). 1159 In Video 12 an informant indicates to the Ancient Lake and refers to Mother Ampiji being there as the caretaker of the sea. She then refers to a cave at Cape Fourcroy and a crocodile, indicating him going into the sea from that point. The informant is not told that Cape Fourcroy did not exist at the time depicted in the map. 1160 In Video 11 an informant points to Rocky Point and says that an Ampiji lives there. She confirms that the Ampiji lives "in the land" and "in the fresh water". She says "fresh water, fresh water, Ampiji". 1161 In Video 26 an informant tells the story of a being that created the islands, indicating the Aspley Strait. She describes that being as living in Lake Mungatuwu, but traveling around the islands. She refers to that being as the caretaker of the sea. The informant is not told that in the time depicted in the map, the Tiwi Islands did not exist as islands. Video 34 has similar content. 1162 Video 39 depicts the EDO lawyer interacting with an informant over a map. The informant says "in the sea". The lawyer says "comes out from Rocky point, and goes to the sea". As she speaks, the lawyer draws a line westward from a point on the northwest coast of Bathurst Island, ending the line in the Ancient Lake. The informant says nothing to the lawyer about where that line should begin or (critically) where it should end. The lawyer says "to the sea, so that's where the sea started". The lawyer then reinforces the line with her pen, and asks, "What's the song line? What is that? What's that story?" The line drawn by the EDO lawyer is the upper horizontal line shown in the first image in Figure 7 of O'Leary 1, extracted at [1070] of these reasons (Map 4). 1163 In Video 41 an informant points out Lake Mungatuwu to the EDO lawyer. The informant says "so I think that is the mother", pointing to both the Ancient Lake and Lake Mungatuwu. A person outside of the frame says "it is all connected around". The EDO lawyer says "yeah, because that fresh water is coming all the way around", indicating a circle around the island, starting at the Ancient Lake. Dr O'Leary is present for that exchange but says nothing about the existence of a freshwater source that encircles the whole of the islands as they exist today. He says nothing about the Tiwi Islands not existing at all at the time that the Ancient Lake existed. The opinions in O'Leary 1 contain no conclusion that there exists a freshwater channel or other system encircling the area where the Tiwi Islands are today. 1164 In other videos, an informant indicates the Ancient Lake on the map and refers to a Mother Ampiji being there. There are references that the Mother Ampiji "maybe" connected with a "main Ampiji" at Lake Mungatuwu: Video 13. There are numerous references or gestures indicating the Mother Ampiji living in the Ancient Lake and travelling around the "waters" surrounding the "islands" depicted in the map. 1165 In many of the videos, the speaker is a person I recognise to be Carol Puruntatameri. She is the only informant in five of the videos, and also appears in a further 25. 1166 Considered in the context of the things said at the earlier meeting, the video evidence does not satisfy me that the cultural mapping exercise was "indigenous led". 1167 In addition, Dr O'Leary is shown in some instances to encourage and hint at the informants, indicating a fork with his fingers and expressing excitement at what he referred to as "memories" as though "memories" were being prompted by the exercise. Whether intended or not, the forked fingers on an objective measure are suggestive of a snake and reinforced the EDO lawyer's statement at the workshop that the forked tongue brought Ampiji to her mind. That was the first mention of Ampiji at the workshop. Whether careless or deliberate, the association of the geological forked tongue and Ampiji was plainly suggested. 1168 Most concerningly, I consider that Video 39 depicts what could only be described as the EDO lawyer drawing on the map in a way that could not on any reasonable view truthfully reflect what the Tiwi informant had said. In addition, the EDO lawyer stated, "that's where the sea starts". That is a curious statement, given that the map is intended to reflect a territorial landscape within which there was a freshwater lake. At the time that the sea "started there" it could not be a freshwater source. The informant said "into the sea" which could only be understood as something going into the sea from the island coast. The EDO lawyer created her own marking on the map and then reinforced it, ending the line in what is then referred to in a document drafted by the EDO as the "sacred freshwater source". That line now appears in the so-called cultural map and is presented to this Court as evidence in Dr O'Leary's Figure 7A (Map 4) above. 1169 The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court via an expert report, and I so find. 1170 The EDO lawyer was not called to give evidence. That does not preclude the Court from acting on the evidence before it, given that the applicants' onus includes an onus to persuade the Court that the cultural mapping exercise is scientifically sound and otherwise reliable. The content of Video 39 alone is sufficient to reduce the integrity and hence the reliability of the cultural mapping exercise to nought.

2023 Marie Munkara Narratives 1171 The evidence shows that Marie Munkara is the sister of John-Louis Munkara and Mario Munkara. She was not called to give evidence. The things said by her in the 2023 Marie Munkara Narratives are untested and the objective facts unverified. 1172 In cross-examination, Dr O'Leary confirmed that the orange markings that can now be seen in Map 5 were made by Marie Munkara. He confirmed that his conclusions concerning the location of burial grounds were founded entirely upon what Marie Munkara had said. 1173 Marie Munkara did not attend the June O'Leary Workshop. The time, place and circumstances in which she added the orange marks to the map are unexplained in the evidence. It may nonetheless be inferred that she had access to the same map that had been marked by Dr O'Leary with his reference to the Crocodile Man. Dr O'Leary made his marks on that map on 19 June 2023, as depicted in one of the videos. Marie Munkara's markings do not appear on that map in the video. It follows that she must have had access to that same map sometime after 19 June 2023. In the absence of additional evidence, the Court cannot be satisfied about the integrity of any process by which Marie Munkara came to put her own marks there. 1174 In addition, there was not a single Tiwi witness who claimed that Marie Munkara was a person whom they considered had cultural authority to speak of the matters recorded in the 2023 Marie Munkara Narratives. Her brother, Mario Munkara, said that he was angry at her for what she had done: Marie Munkara is our big sister … and she's the one - she's the one - she brought the map. She's the one. And me and my big brother, we were upset about her. 1175 In cross-examination, Mr Lewis confirmed that the 2017 thesis previously published by Marie Munkara did not contain the information later recorded in the 2023 Marie Munkara Narratives. 1176 In Corrigan 1, Dr Corrigan expressed scepticism that narratives containing the degree of detail set out in the document could conceivably be transmitted over 600 generations. I share that scepticism. I would go further. My concern is that it is implausible that an ancient oral tradition could yield such detailed information, apparently held exclusively by a single Tiwi Islander (Marie Munkara) and not possessed by the 23 Tiwi Islanders who gave evidence. That is surprising, given not only the detail of the knowledge but the directness of its relevance to the area now so fiercely in contention. As discussed earlier in these reasons there may be a number of explanations for why knowledge within an Indigenous community may not be freely shared. Whether those general statements of principle are applicable to the information contained in the 2023 Marie Munkara Narratives is not an academic one, but a peculiarly factual one. The applicants have adduced no evidence to support a conclusion that Marie Munkara should be understood to be a person selected by her ancestors to be the exclusive holder of the knowledge. Marie Munkara's references to her brothers indicates an awareness that her account would be contested by them. 1177 In the absence of explanatory evidence, the 2023 Marie Munkara Narratives are capable of supporting an inference that Marie Munkara was acutely aware of the objective of stopping the pipeline and, in addition, that she had had regard to the maps created by Dr O'Leary at the time that she prepared her narratives so as to match the narratives to the submerged landscape. But it is not necessary to go so far. I am not satisfied that the 2023 Marie Munkara Narratives can be regarded as reliable evidence capable of proving the truth of the contemporary factual matters she asserts within them, including any fact relating to her subjective beliefs or state of mind. Whilst they are admissible under s 72 of the NT Act, I give them no weight.

Synthesised narratives 1178 A number of observations may be made about the narratives contained in this document created by the EDO. 1179 First, my conclusions about the conduct of the EDO lawyer who attended the June O'Leary Workshop cause me to approach this document with extreme caution. Ordinarily the Court may proceed on an assumption that documents of this kind are prepared by legal practitioners who fairly understand the importance of ensuring the accuracy of documents created for the purposes of legal proceedings, including documents prepared for the purposes of briefing independent experts. Regrettably, in light of my earlier findings, that assumption cannot be made in connection with this document. The synthesised narratives include a rendition of an Ampiji that resides at Rocky Point that has connections with the so-called sacred freshwater source, that Ampiji in turn having connections with the Mother Ampiji residing in the same source. A part of that narrative appears to be based on the EDO lawyer's own horizontal line drawn on the map, distorting and misrepresenting what the indigenous informant had said. 1180 Second, the manner in which the document was prepared is not the subject of discrete evidence. The document does not contain detailed annotations or cross-references to the specific source material upon which the components of each narrative are based. I am concerned that each narrative is no more than a mosaic formed from snippets of sentences said by separate informants, arranged together so as to be presented as a coherent singular narrative shared collectively by Tiwi Islanders or at least a sub-community of more than one of them. The video evidence of the cultural mapping exercise does not assuage that concern. The concern is reinforced by the Ampiji narrative which appears to draw on things said to Dr Corrigan about calling out to Ampiji. That information is then connected to "Mother Ampiji" residing in the so-called sacred freshwater source. Nothing of the kind was said to Dr Corrigan at a time predating the narratives. 1181 Additional evidence is needed to satisfy me that the document is accurate and reliable. Absent that evidence, I conclude that the flaws in the cultural mapping exercise identified above are flaws that contaminate this document and so render it forensically useless. 1182 Several of the narratives appear to be based solely on the material contained in the 2023 Marie Munkara Narratives and its reliability must be questioned for the same reasons given in relation to that document. 1183 In addition, on the lay evidence adduced in this proceeding, I am not satisfied that there was any real effort to ensure that the June O'Leary Workshop was attended by a range of persons having cultural authority from the Jikilaruwu, Munupi and Malawu clans irrespective of any view they might have had about the pipeline. The synthesised narratives do not disclose even the existence of different and dissenting views held by other persons having cultural authority within the same clans with respect to the same underlying song lines, and yet they are put forward as communal beliefs of those clans.

Opinions beyond expertise 1184 In addition to the findings I have made about the flaws in the cultural mapping exercise, I consider there to be additional reasons for rejecting the opinions expressed in Dr O'Leary's reports. 1185 Dr O'Leary wrongly stated in O'Leary 1 that the marks depicted in Map 4 were annotated by Tiwi Islanders. The evidence demonstrates that they were not. That mis-statement is of a kind that would not ordinarily assume significance, but in the context of this case it discloses a degree of carelessness on Dr O'Leary's part, especially when some of the marks were in fact personally made by him. 1186 Dr O'Leary's opinions about the Crocodile Man are especially troublesome. In one respect, he opines that the Crocodile Man had a travelling path from Cape Fourcroy to the Ancient Lake or the Ancient Embayment, which path is said to be directly intersected by the pipeline. That was an adapted account persisted with until oral closing submissions. 1187 In O'Leary 1, Dr O'Leary attempts to grapple with the problem that at the time that the Ancient Lake existed, Cape Fourcroy did not. His solution is to say the Crocodile Man story is a "deep time" narrative, which must have taken place at a time when the shoreline was a good deal further to the west, in or around the vicinity of the proposed pipeline route. He recognises that the difficulty with that scenario is that at that time the Tiwi Islands did not exist, and that his theory cannot therefore be reconciled with the fundamental Mudgkala creation story in which an ancestral being brings the Tiwi Islands and their associated surrounds of seawater into existence. Dr O'Leary's answer is that the Crocodile Man narrative pre-dates the creation narrative in deep time. 1188 In the course of the trial, the Court expressed some confusion about which of the two apparently different Crocodile Man narratives represented the opinion of Dr O'Leary. 1189 In cross-examination, Dr O'Leary confirmed it was the latter of the two. His opinion that the Crocodile Man must have entered the sea at a place far west of where the Tiwi Islands are situated today is wholly inconsistent with the sacredness of Cape Fourcroy and the content of the story itself. I cannot identify any evidence, instructions, or assumptions upon which Dr O'Leary could conceivably have acted in expressing that opinion. 1190 Furthermore, the opinion only serves to emphasise the fundamental difficulty with the whole of the cultural mapping exercise utilising maps that showed the Tiwi Islands in the terrestrial form in which they exist today. The presentation of the maps in that form was a source of considerable illogicality and confusion. Whilst no adapted account of the Crocodile Man was ultimately pressed, my conclusions on this topic are relevant to my consideration of the adapted account of Ampiji. They reinforce my concern that Dr O'Leary is not sufficiently independent so as to qualify as an expert witness in these proceedings. The acrobatics concerning the Crocodile Man story are suggestive of an expert who is seeking to present a case that he perceives might assist the applicants to succeed in stopping the pipeline, rather than to present a case founded in scientific truth and careful analysis. The postulations as to whether the Crocodile Man story exists in deeper time than the foundational myths explaining the creation of the Tiwi Islands are obviously outside of Dr O'Leary's expertise. One witness described the process as offensive because it contradicted foundational stories about how the Tiwi Islands came to exist as islands. The offence taken is understandable in light of all of the above.

The alleged Ancient Lake and burial grounds as landforms 1191 Dr O'Leary has expertise in the field of geoscience and is qualified to express opinions about features of the present day sea bed, and to draw inferences about whether those features might have been landforms in the ancient terrestrial landscape prior to its inundation. His opinions about the existence of the Ancient Lake and the specific location of burial sites is disputed by Dr Posamentier. Contrary to the applicants' submissions, there is nothing in Wessex 1 directly concerning those alleged landforms.

The Ancient Lake 1192 In the Geoscience Joint Report, Dr Posamentier said this about the depression on the sea bed: Q19 Whereas I agree that there is a current-day depression present there, it is unclear to what extent this depression was present at LGM time (i.e., form a lake) in light of the potential for significant post-LGM tidal current erosion that could have scoured deeply through the constriction formed by highland areas immediately to the east and west of this depression. The depth of erosion associated with this enhanced tidal scour at that time is very difficult to ascertain. Consequently, it remains unclear whether this modern-day depression was a lake during LGM time, or a fluvial channel system during LGM time that was subsequently deeply scoured during post LGM time forming the modern-day depression. 1193 The applicants submitted that Dr Posamentier subsequently changed that view and ultimately conceded that the depression was indeed a lake, such that the Court cannot reliably act on his opinions. That is an oversimplification of the evidence. 1194 In the Geoscience Joint Report, Dr Posamentier agreed that it was likely that a lake or river existed westwards of Bathurst Island in the LGM period. However, he opined that if it had been such, it had been created by a pre-LGM feature of the landscape being subjected to ocean flooding which had left a body of stranded seawater after sea level fall. Additionally, and notably, he contended that any significant depth of the feature was likely the result of tidal current scouring post-LGM. Dr Posamentier did not at any time wholly accept the proposition that the depression now observable on the sea bed was once a freshwater lake. 1195 The effect of his evidence was that the data did not support a conclusion that the depression was a deep freshwater lake. 1196 The opinions set out in O'Leary 1 do not include any reasoning as to why the lake was, in ancient times, "massive", nor why it contained freshwater rather than salt water. In cross-examination, Dr O'Leary maintained that a channel to the sea could transition into a lake of isolated water. He accepted that the lake asserted by him would have formed in that way. He then suggested that over tens of thousands of years, the isolated salt water would eventually become diluted and so as to transform into a freshwater source. There was insufficient information provided in that answer to support an unqualified conclusion of the kind expressed by Dr O'Leary in O'Leary 1. 1197 Even assuming that the dilution process occurred over a long period of time, the reasoning does not support the unqualified conclusion contained in O'Leary 1 and communicated to Tiwi Islanders that there once existed a massive Ancient Lake within the time frames to which his maps relate. In addition, Dr O'Leary's opinion about the likely size of the lake in ancient times does not include a rigorous analysis of the likely impacts of erosional forces over tens of thousands of years as sea levels rose, fell and rose again. He has assumed that the size of the depression now existing on the sea bed equates to the size of the lake before sea levels rose. I am not satisfied that that assumption is correct, given the body of evidence (further discussed below) about the erosional forces and associated sedimentation and deposition impacting the sea bed. 1198 Quite apart from those observations, my concerns about Dr O'Leary's independence and credibility are such that I would not accept his evidence as sufficient to establish any scientific proposition at all, even if his evidence had gone unchallenged and even if he possessed the appropriate skills, qualification and experience to express them. My conclusions about Dr O'Leary's lack of regard for the truth, lack of independence and lack of scientific rigor are sufficient to discount or dismiss all of his reports for all purposes.

Burial sites 1199 My concerns about Dr O'Leary's lack of independence are reinforced by the lack of scientific rigor attending his opinion that landforms on the sea bed are, or are associated with, burial sites. 1200 His methodology in that respect was to obtain directions from the 2023 Marie Munkara Narratives so as to place where the burial sites were likely to be. He acknowledged in cross-examination that that was the sole source of his information about their existence and likely location. Next, he identified ridges on the sea bed in the general direction pointed to in the 2023 Marie Munkara Narratives, and depicted them digitally on one of his maps with ovals (see Map 6, extracted at [1077] above). 1201 Dr Posamentier said this of the features identified by Dr O'Leary (Posamentier 3, [34]): The burial grounds to which O'Leary refers are inferred from the presence of subtle ridges observed on the bathymetric maps of the modern seafloor. This interpretation appears to be based on two assumptions: 1) that the bathymetric maps are of sufficient resolution to allow for precise recognition and subsequent interpretation of these features, and 2) that the features on the modern seafloor are features that existed at LGM time and are not the product of processes that were active at post-LGM time - i.e., that these features are not the product of such processes as tidal currents and storm-driven currents. In my opinion these assumptions are not able to be justified. O'Leary repeatedly alludes to the poor quality of the bathymetric data while also not taking into account post-LGM processes that could well have been responsible for the formation of these features. 1202 Dr Posamentier went on to examine one of the features Dr O'Leary had identified as burial grounds using higher resolution imaging. He described the feature as a northwest / south east trending ridge and observed that sand waves and sediment trails indicated the presence of "strong post-LGM shelf currents". He said that the origin of the ridge was unclear, and that whilst he could not rule out a burial ground origin, the sharp almost knife-edge crest of the feature suggested otherwise "inasmuch as a burial mound likely would be characterised by a smooth or rounded top". 1203 In cross-examination, Dr Posamentier was challenged on the basis that he had no expertise to express a view about what shape a burial mound might be expected to have. The same criticism can be levelled at Dr O'Leary. 1204 The likely appearance and composition of a burial ground is essentially a factual matter. It seems to me that it was necessary for Dr O'Leary to ground his scientific inferences in a reliable source of fact and to disclose the factual assumptions underpinning this part of his analysis. The unspoken assumption that a burial ground could survive on the sea bed withstanding tidal currents over at least 10,000 years and exist today in the form of a series of ridges 2-3km long has no factual or scientific unpinning whatsoever. 1205 Moreover, the evidence before this Court includes the following observation of Dr Corrigan, citing the observations of Major Campbell in 1834 (Corrigan 1, at [71]): It appears to be the custom of the natives to bury their dead, their burial-places being in retired spots near their most frequented encamping ground. The burial place is circular, probably ten or twelve feet in diameter; it is surrounded by upright poles, many of which are formed at top like lances and halberts, fourteen or fifteen foot high; and in between these the spears and waddies (probably of the deceased) are stuck upright in the ground. 1206 Dr O'Leary extracted the similar ethnographic material in O'Leary 1. It provided no factual support for his conclusion that ridges of some 2 to 3km in length could reasonably be identified as burial grounds in the places where he marked them on Map 6. 1207 Dr O'Leary himself recognised the limitations of the low-resolution bathymetric imagery upon which his maps and opinions were based. Other evidence before the Court confirms the limitations of the publicly available low-resolution datasets upon which he relied. 1208 Dr O'Leary also agreed with the proposition that the original Pleistocene land surface would have been modified to some degree following post glacial sea level rise as a result of a number of erosional forces. However, the opinion in O'Leary 1 contains no analysis as to how those forces would have impacted upon a feature such as a human burial ground situated in the particular localities where he asserted they now remain. In that locality, Dr Posamentier identified landforms associated with tidal currents that were active throughout the post-LGM period such as sandwaves, tidal channels and sediment trails. Dr O'Leary did not identify those post-LGM features. He did not factor them into his analysis so as to properly justify his opinion. 1209 The circumstance that Dr Posamentier "could not rule out" the preservation of human remains in the sea environment does little to assist the applicants in the discharge of their burden of proof. A significant risk will not be proven merely by stating that something cannot be ruled out. 1210 It is concerning that Dr O'Leary expressed his opinion about the existence of burial grounds in the vicinity of the pipeline with such certainty given the significant limitations in his data. It is equally concerning that Mr Lewis expressed such strong opinions about the existence of burial grounds in the vicinity of the pipeline in such strident and unqualified terms, taking the asserted location of Marie Munkara at face value without any apparent anthropological scrutiny. 1211 I have not overlooked that a number of Tiwi witnesses asserted that there were burial grounds either generally in the submerged landscape or more specifically in the vicinity of the pipeline, including Valentine Intalui, Simon Munkara, Molly Munkara and Carol Puruntatameri. The effect of their evidence was that they believed that the inundated landscape was once occupied by their ancestors who would have been buried there. Nor have I overlooked testimony to the effect that the preservation of the burial grounds of ancestors is a matter of significant cultural concern to those witnesses and, I may comfortably conclude, Tiwi Islanders generally: Ancilla Kurrupuwu, Carol Puruntatameri, Valentine Intalui, Molly Munkara, Therese Bourke and Pirrawayingi Puruntatameri. But that of itself is insufficient to establish a significant new risk that the pipeline would impact upon them as tangible cultural heritage. 1212 To the extent that the evidence was in the form of a mere assertion, I cannot be satisfied that the beliefs about the existence of burial grounds in the vicinity of the pipeline have not been recently engendered or influenced by the flawed processes described in this part of my reasons. The potential for contamination of the minds of witnesses arising from the processes and the resulting reports was made most apparent in the evidence of Pirrawayingi Puruntatameri. He was firm in his belief that there existed burial grounds on the sea bed. It is concerning that such beliefs are now the foundation of anxiety or distress on the part of Tiwi Islanders referable to specific burial grounds in specific places that may be affected by the pipeline. When explored further with Pirrawayingi Puruntatameri it transpired that his belief was founded upon him having seen what he believed to be a ceremonial burial pole depicted on a map of the sea bed. He confirmed that he had seen that feature in the map above at [1077] (Map 6). That does not make Pirrawayingi Puruntatameri an unreliable witness. To the contrary, I consider Pirrawayingi Puruntatameri to be an honest witness whose concerns about the impact of the pipeline were genuinely held and emotively expressed. There is a real risk that the concerns (and accompanying anxiety of some Tiwi Islanders on this topic) are based on a sea scape and prior landscape that I consider has been wrongly presented to them as constituting a form of objective truth. The whole of it must be rejected.

SUBMERGED TANGIBLE CULTURAL HERITAGE 1213 The applicants allege that the sea country through which the pipeline will pass has a cultural feature described as "tangible Aboriginal cultural heritage deposited along the pipeline (including ancient burial grounds) that Wessex identified from a multi-month interdisciplinary investigation of the seabed into which the pipeline will be embedded and fixed": applicants closing submissions [15(d)]. 1214 The case referring to specific ancient burial grounds referred to in O'Leary 1 has been rejected for reasons given earlier. This portion of my reasons deals with tangible cultural heritage more generally, which I accept is a topic that can encapsulate preserved human remains. 1215 The applicants allege that the activity of constructing the pipeline may have the "notable consequence" of destroying, disturbing or exposing the submerged cultural heritage. 1216 This aspect of the case is based principally on the environment plan considered in conjunction with geoscience expert evidence, especially that contained in Wessex 1, Wessex 2 and Wessex 3. 1217 As explained earlier in these reasons, Wessex was originally instructed by Santos to prepare a report to assist it to comply with the General Direction issued by NOPSEMA. The conclusion in Wessex 1 is expressed as follows (Wessex 1, [8.4]): Palaeographical features 8.4.1 Using the terrestrial predictive model in Section 6, the assessment of geophysical data within the study area resulted in a total of 163 features of paleogeographic interest and archaeological potential. These are summarised as follows: • a total of 60 features assigned a P1 archaeological rating; • a total of 103 features were assigned an P2 archaeological rating. 1218 It will be necessary to make findings about what some words and phrases in that quoted passage mean.

Admission into evidence of Wessex Reports and related testimony 1219 At case management hearings prior to the trial, Santos informed the Court that it had no intention of adducing any report prepared by Wessex as part of its own case. The applicants informed the Court that it would call certain authors of Wessex 1 and Wessex 2 to give evidence in the proceedings. They made an application for leave to issue subpoenas to six individuals located in Australia and the United Kingdom. In the course of argument about whether subpoenas should issue, Santos informed the Court that it would not object to the tender of Wessex 1 into evidence by the applicants. It did not submit that the admission of the report into evidence should be subject to any ruling limiting its use. Prior to giving oral evidence the three Wessex authors served with subpoenas jointly prepared Wessex 3. Wessex 1, Wessex 2 and Wessex 3 were admitted in evidence without objection at the trial. 1220 In its written closing submissions, Santos contended that, in light of the evidence adduced at the trial, Wessex 1 is inadmissible or, alternatively, no weight should be given to it. Santos submitted that the use of the evidence to support the findings of fact contended for by the applicants would be unfairly prejudicial to it. Santos correctly submitted that the Wessex Reports are all joint reports. It observed that Wessex 1 identifies 10 authors from Wessex and seven authors from Extent Heritage, together with an additional person from Australian National University as contributors. It observed that Wessex 1 contained a statement that (Wessex 1, Executive Summary): Complex archaeological research, such as that on submerged palaeolandscapes, is inherently interdisciplinary, and this is reflected in the number and range of specialists involved in the production of this report. No one specialist has made decisions or stated opinions without consultation and collaboration with members of the wider team. 1221 Santos observed that there was no explanation as to why members of the Wessex multidisciplinary team had not given evidence, other than the three authors served with subpoenas. It correctly observed that the authors who were called had adopted some, but not all, of the work and opinions of others as their own. A table depicting the extent to which the opinions of some persons had been adopted by others is contained in Wessex 1, and I have had regard to it. 1222 Santos submitted that it is unfairly prejudiced by the admission into evidence of the reports, as well as the opinions of the three authors who gave evidence, arising from the multidisciplinary approach. In its written closing submissions Santos complained that there was no or insufficient evidence to show how it was that the experts who gave oral evidence could have adopted the opinions of others as their own and, in addition, that it was unclear how it was that certain authors had any involvement in work streams about which they gave evidence. Santos added that the witnesses had attempted to opine on underlying data even though they had not reviewed that data themselves, which reduced their evidence to conjecture. 1223 In addition, Santos observed that the analysis set out in Wessex 1 had been based on a "predictive model" prepared by Extent Heritage as a third-party consultant. It submitted that the model prepared by Extent Heritage founded the entire analysis of the 163 alleged features of potential archaeological significance. 1224 On the applicants' application, the Court had earlier granted leave for the issue of subpoenas to three individuals from Extent Heritage. However, also on the applicants' application, those subpoenas were recalled and no expert from Extent Heritage was called to give evidence as a part of the applicants' case. 1225 In its closing submissions, Santos said that there was no evidence about how the model was prepared, who prepared it and how it could or should be used. It submitted that it was not clear which of the Extent Heritage authors prepared or contributed to each of the sections it is said to have authored. Santos further submitted that it was not clear the extent to which Extent Heritage had collaborated with Wessex on the rest of Wessex 1. It submitted that the underlying data used by Extent Heritage to prepare the predictive model had not been provided, nor had it been explained. 1226 Santos submitted that the predictive model had then been applied in section 8 of Wessex 1, which itself had been authored by a person who had not been called to give evidence. It submitted that the conclusions as a whole were based on the predictive model. 1227 I accept Santos's submission that the critical conclusion extracted at [1217] above is one that is founded on the predictive model. So much is apparent from the very descriptions of the P1 and P2 classifications referred to in [8.4.1] of Wessex 1. Elsewhere in Wessex 1, those classifications use the criteria of "… archaeological potential, either because of its palaeogeography or likelihood for producing paleoenvironmental material". As such, the sections of Wessex 1 authored by personnel from Extent Heritage are critical to the Wessex analysis and to the ultimate conclusions in each of the Wessex Reports. 1228 Santos submitted that its inability to test many of those matters in this action caused significant prejudice, including because "it is simply impossible to discern whose opinion is whose". 1229 Santos submitted that an expert report prepared by multiple authors is not admissible unless all authors are called: see Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223 at [38], BrisConnections Finance Pty Ltd v Arup Pty Ltd (2017) 252 FCR 450 at [29], Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 at [29] - [32]. In accordance with the principles stated in the authorities just cited, Santos submitted that the evidence of the three experts who were called to give evidence was inadmissible, as was Wessex 1. I understand that submission to extend equally to Wessex 2 and Wessex 3. In the alternative, it was submitted that the Court should limit the use of that evidence so that it cannot be used by the applicants to prove the underlying assertions about the existence (or likelihood thereof) of any tangible cultural heritage. 1230 The difficulty with these submissions is that they do not grapple with the consequences of now ruling inadmissible a document that Santos expressly stated could be tendered by the applicants as part of their case and that was in fact received into evidence without objection. If the Court were now to entertain Santos's submissions and conclude that the evidence was inadmissible in accordance with the relevant legal principles, in my view that would give rise to procedural unfairness because of the manner in which the applicants have prepared and presented their case. The applicants were entitled to prepare that case in reliance upon the express assurance of Santos that it would not oppose the admission into evidence of Wessex 1. It did not need to cull any expert witness to prove the report. The representation made by Santos that it would not object to the tender of the report was made in a context in which Santos was querying why any author of the report should be served with a subpoena at all. It did not state that its position with respect to the admission of the report into evidence would be subject to the condition that every author who contributed to the report be made available for cross-examination in the proceedings so that their opinions and conclusions could then be tested. 1231 The time for Santos to complain about prejudice flowing from the multidisciplinary character of Wessex 1 was the time at which the report was admitted into evidence. That ultimately occurred in the concluding two days of the trial, all parties proceeding on the understanding that the admission into evidence of documents could be deferred whilst there was an intense focus on receiving oral testimony over long hearing days in the lead up to Christmas. 1232 The multidisciplinary character of Wessex 1 was plainly known to Santos at critical times in these proceedings. At the very least, submissions about the admissibility of oral evidence given by the three authors called, ought to have been made before or at the time that those witnesses appeared. The report has in fact been received into evidence as an admissible document and it follows that the complaint now made by Santos involves an invitation to the Court to reverse its previous ruling. 1233 The Court of course has the discretion to reopen argument and to reverse the ruling if persuaded by the submissions as to admissibility. I decline to do so, for three reasons. 1234 First, to the extent that Santos complained of disadvantage, the relevant disadvantage is one flowing from its decision not only to expressly state that no objection would be taken to the tender of the relevant document(s), but also not to make any objection at an earlier time than now. To the extent that Santos is disadvantaged, that disadvantage is not to be equated with "unfair prejudice" in the circumstances I have described. 1235 Second, in exercising my discretion as to whether to reopen argument and reverse the ruling, I take into account the likely consequence that if the document were now to be ruled inadmissible, that would provide a justifiable foundation for the applicants to reopen their evidentiary case so as to prepare and adduce evidence of the kind they might otherwise have done, had the representation by Santos about the admission into evidence of Wessex 1 not been made. 1236 Third, for reasons that I will now explain, I consider that the applicants' case founded on tangible cultural heritage should fail on a number of discrete bases, even if the Court were to base its factual findings on the opinions expressed in the Wessex Reports. In all of the circumstances of this complex and urgent matter, it is not in the interests of justice to permit Santos to depart from the position it adopted at trial with respect to the tender of any one of the reports or associated oral testimony. 1237 It is now convenient to set out some underlying and uncontroversial principles, including by repeating a little of what I said elsewhere in these reasons about sea levels over vast periods of time.

General geological principles 1238 Geophysicists draw on various data sources of differing quality for the purposes of identifying features of the present day sea bed, both on and below its surface. The data may be used as the basis for inferences about the nature and origin of a feature and, more specifically, whether it might have been a landform in the environment at times when the sea bed was subaerially exposed. The data considered by Wessex and Dr Posamentier included both Geophysical Data and Geotechnical Data. 1239 The Geophysical Data included: (1) data provided by Santos including geophysical survey datasets, survey reports, and heritage relating to the proposed pipeline route; (2) publicly available datasets including Geographical Information System (GIS) resources, peer reviewed academic literature, and published maps and charts; (3) open-source digital elevation models containing bathymetry datasets for the Northern Territory from the AusSeabed Marine Data Portal on the Geoscience Australia Portal; and (4) geophysic data such as sub-bottom profiler, sidescan sonar, multibeam echosounder (MBES) and bathymetry data sets. 1240 The Geotechnical Data used to generate the Wessex and Posamentier reports included 77 provisional logs provided by Santos and acquired by Geoquip MarineOperations AG with resultant analysis by Arup Pty Ltd of: (1) vibrocore and Core Penetration Test logs drilled to a maximum depth of 4.52m below the seabed; (2) piston core logs; and (3) a single borehole log drilled to a maximum depth of 31.56mbsb in the continental inner shelf. 1241 A core is a 10cm cylinder filled with sediment that has been extracted from the subsurface through the drilling of a hollow pipe. 1242 The current geological period is the Quaternary Period which began approximately 2.6 million years ago. Within the Quaternary Period exist the Late Pleistocene (approximately 129,000 to 11,000 years ago) and Holocene (< 11,700 years ago) epochs. Migration of early humans from Africa began in the Late Pleistocene. This epoch also produced the archaeological evidence of the earliest human activity within Australia (approximately 60,000 to 50,000 years ago). The Holocene began after the last glacial period and is the current warm period (interglacial). 1243 The relevant period of investigation for the preservation of the submerged palaeolandscape is a span of post-glacial sea level rise approximately 18,000 to 8,000 years ago. There has been minimal change to the shoreline from approximately 8,000 years ago and the sea surface temperature has been constant, at approximately 26 degrees Celsius from approximately 15,000 years ago. 1244 Global sea levels have changed over the Quaternary Period due to cyclic climate changes between glacial (cold) and interglacial (warm) periods. As such there was potentially human habitation in areas in which shallow seas currently exist which were previously subaerially exposed. Sea level data from the Northern Territory has shown present day sea levels to have existed from approximately 7,500 years ago. The sea level was at its lowest approximately 18,000 to 20,000 years ago. 1245 There was rapid sea level rise in the pipeline area from approximately 18,000 to 8,000 years ago. Subaerial exposure of the pipeline route at depths of approximately 125m existed approximately 18,000 to 22,000 years ago. 1246 Migration of the shoreline can either be landward (transgression) or seaward (regression). Marine transgression occurs where there is a rise in sea level or, in the event of a stable sea level, coastal erosion. 1247 The processes of transgression, regression and submersion impact on the exposed and submerged landscape by way of erosion on the one hand and deposition or sedimentation on the other. Deposition refers to a process by which sediments are deposited. The word "sedimentation" simply alludes to the fact that sediments are involved. Erosion and deposition can occur by at least four processes relevant to these proceedings: (1) breaking of waves on a shoreline, which can create erosion or deposition; (2) wave energy, where the oscillatory motion of waves in the middle of the seaway can propagate down to approximately 150m below sea level at diminishing degrees; (3) tidal currents, which occur after transgression or flooding of a shelf and can have a severity of force in some areas; and (4) tsunamis, which can occur after an earthquake causes shifts in the sea bed and can cause significant erosion to a shore environment. 1248 The experts agree that the degree of erosion caused by breaking waves on the shoreline depends upon the rate of sea level change. Put simply, the slower the rate of sea level rise, the more time those forces will have to impact on the landscape. That is especially so with respect to the first mentioned impact. 1249 There was common ground on other principles including: (1) there is not an expectation that pristine conditions will be encountered with archaeological remains and palaeolandscape features intact; (2) all archaeological sites (both on land and submerged beneath water) and Quaternary geomorphology examined in the present day are the result of formation processes, including erosive processes; (3) the preservation potential of palaeolandscape features and archaeological resources are subject to many factors including type of sediment and post-depositional processes that encourage resistance to erosion of Quaternary sediments and landforms; (4) the remaining preservation of past landscape features is the result of all depositional and erosional processes impacting on them since their formation; and (5) the archaeological records of these relict features at or near the surface may have been impacted by erosion.

Wessex 1: Methodology and Conclusions 1250 Wessex 1 contains a palaeogeographic assessment of the offshore study area (a 2km buffer surrounding the proposed pipeline route) through analysis of the Geophysical Data (to identify palaeogeographic features) and the Geotechnical Data (to undertake a geoarchaeological assessment). The analysis is contextualised by: (1) an ethnohistorical review of Aboriginal communities in the terrestrial study area (next to the pipeline route); (2) an archaeological analysis of established terrestrial sites inside the terrestrial study area; and (3) the building of a terrestrial predictive model of archaeological sensitivity and analysis. 1251 The resulting terrestrial analogue predictive model was then used to inform the archaeological assessment of the sea bed. In that assessment, Wessex identified features that were said to represent landforms where human occupation may have been concentrated (particularly where reliable freshwater and associated food resources were plentiful), and landforms that provided good environments for the preservation of archaeological material (for example, stable dunes). 1252 Wessex then employed a classification to discriminate between the palaeogeographic features it had identified, namely features having probable archaeological potential (P1) or possible archaeological potential (P2). Those classifications were based on the likelihood of a feature having and preserving data that could reveal how humans had lived within the area, relative to other areas. 1253 By that process, Wessex assigned 163 palaeogeographic features with varying potential for archaeological significance along the pipeline route: 60 features with a P1 rating and 103 features with a P2 rating. 1254 In cross-examination one of the Wessex 1 authors, Dr Hanna Steyne, stated that a P1 designation does not mean that it is more likely than not that archaeological material would be present in that area of designation. Rather, it means there was a higher likelihood that archaeological material will be discovered in that area relative to an area with a lower classification.

Dr Henry Posamentier 1255 In Posamentier 1, Dr Posamentier concluded that the rapid shoreline transgression that occurred 12,000 to 10,000 years ago resulted in a landward shift of the shoreline by approximately 150 to 200km. He said that any previously exposed landforms, including river channels and flood plains, would have then been covered with sea water and the new sea bed would have been subject to multiple erosive processes such as wave energy and strong tidal currents. Dr Posamentier opined that between 5 to 10m of sediment would have been potentially removed from the sea bed and redeposited seaward of the shoreline. The forces of erosion and sedimentation would likely have modified the topography of the sea bed so that any artefacts previously present during subaerial exposure would now be removed from the surface and buried amongst the post-flooding sedimentation. 1256 In Posamentier 2, Dr Posamentier provided his opinion on the interpretation of the palaeogeographic features identified in Wessex 1 based on the Geophysical Data and Geotechnical Data. He concluded that the majority of those features were formed after the land was submerged, which could mean that they came into existence after the LGM and hence after humans inhabited the surface. He maintained his original position that it was unlikely that objects of tangible cultural heritage left on the surface at the LGM would have been preserved given the strong tidal currents and storm activity (regular cyclones) with any such objects buried by the erosional and depositional processes. 1257 Dr Posamentier said that additional data was required to definitively identify and interpret landforms. He maintained his position from Posamentier 1 that the modern sea bed has been modified from the LGM period due to processes of sedimentation and erosion. As a result, Dr Posamentier stated that any archaeological objects present on the palaeolandscape 18,000 years ago would not have been preserved in the ocean setting due to erosion from tidal currents and wave energy during transgression.

Wessex 2 1258 Wessex 2 is a Recommendations Report, in essence a companion to Wessex 1. In Appendix 1 the authors identify 51 features (26 P1s and 25 P2s) as being of the kind where the asserted archaeological potential related to shallower depths of the sea bed (being less than 0.7m). However, that analysis does not change the meaning of the P1 ascription and so does not increase the degree of chance that objects of archaeological value may be situated in those places. It is a report more specifically related to the depth of physical impact of the pipeline and associated infrastructure.

Wessex 3 1259 In Wessex 3, the authors stated their disagreement with the findings of Dr Posamentier in Posamentier 1 and Posamentier 2. They contended that Dr Posamentier's position that the archaeological record is a sum of artefacts upon the palaeolandscape that are subject to erosional forces affecting the upper elements of that landscape is a false assertion. The authors disagreed that the models of erosion discussed by Dr Posamentier in his findings are consistent with the presentation of archaeological records now encountered on the palaeolandscapes within the offshore study area or in general. They further stated their disagreement with Dr Posamentier that Wessex 1 and Wessex 2 do not consider erosional and other processes in the formation and preservation of palaeolandscapes. 1260 Further reports were submitted by Dr Posamentier (Posamentier 4, Posamentier 5 and Posamentier 7) that expressed his opinions on the Wessex analysis and responded to their conclusions on his analysis. The content of these reports is discussed or subsumed in the discussion below.

Dr Posamentier's instructions and expertise 1261 It should be emphasised at the outset that Dr Posamentier is not an archaeologist. As such, his opinions about objects in terrestrial or submerged landscapes are opinions that are agnostic about the value of an object or landform considered in human terms. He referred to all objects as "clasts", a term that I understand to incorporate an object that could evidence historical human existence, occupation and activity as well as an object having no relevance to those things. Criticisms that Dr Posamentier went beyond his expertise in that respect were unfounded. I consider that he was appropriately qualified to answer questions that were relevant to the current enquiry, although not determinative of it. 1262 Dr Posamentier's reasoning had a particular focus on inferences that could or could not be drawn about ancient landscapes on the basis of the available data. The essence of his opinion is that inferences cannot be drawn about the landforms of an ancient terrestrial landscape without having regard to the erosional and depositional forces that have impacted that landscape at and following its inundation over tens of thousands of years. Accordingly, he said, a conclusion that might be drawn about whether a present day feature of the sea bed was previously a hill would require an analysis of whether the feature had some other post-inundation origin or explanation. If identified as a former terrestrial hill, in many cases, no reliable inference could be drawn about the size of the hill before it was submerged because the degree of erosional and depositional impact could not be measured with certainty. Similar consideration must affect the analysis of depressions on the modern day sea bed. 1263 Dr Posamentier referred to features in the landscape being "beheaded" by erosional forces to varying degrees depending on the nature and intensity of those forces and the nature of the original topography. His statement of those general principles was not subject to effective challenge and I accept them. 1264 A limitation in the opinions expressed in Posamentier 1 is inherent in the scope of Dr Posamentier's original instructions. He was commissioned to provide a depositional and erosional analysis of the pipeline corridor in relation to the evolution of the sea bed from 18,000 years ago to the present. On the basis of the opinions contained in Wessex 1 and the oral evidence given in the geoscience concurrent session, I conclude that at the earliest time referred to in those instructions, there already existed in the terrestrial landscape an "archaeological record" that was not necessarily in situ on the surface of the land, but that had already been subject to erosional and depositional forces not only during the time when it was subaerially exposed but also at times when the land may have been previously inundated in the other epochs referred to above. Dr Posamentier did not purport to opine about the existence, nature or depth of that archaeological record with respect to any period of time insofar as that topic involved any value judgment about whether a "clast" might have archaeological value.

General Areas of Disagreement 1265 Much of the disagreement turned upon whether features identified by Wessex as indicating an ancient terrestrial landform of a particular kind could be so identified. That was a matter obviously within Dr Posamentier's expertise. 1266 There were many areas of interpretative disagreement between Wessex and Dr Posamentier regarding the 163 palaeogeographic features classified as P1 or P2 by Wessex. The disagreement relates to about 132 of the features. I set out below some examples of disagreement that typify that subject matter in respect of which there is dispute and the nature of that dispute, and then explain why I prefer the approach and opinion of Dr Posamentier in relation to them.

Fluvial channels 1267 A fluvial channel is a feature that has associations with river systems. 1268 Dr Posamentier commented that Wessex had not made an attempt to differentiate between channels that the bathymetry data revealed to have seismic facies (reflection), and were therefore originally rivers, and those that did not. He said that the latter would not be fluvial in origin but more likely the result of erosional scour caused by tidal currents. 1269 Dr Emery, a Wessex author, contended that this was a simplified analysis. He suggested that a channel could have multiple events that contributed to its origin. He said that those events could include both fluvial and estuarine sedimentation over the period of channel formation, specifically by the sea flooding a fluvial channel to transition it to an estuarine channel. 1270 Dr Emery may be correct in that general statement. However, I am unable to discern the reasoning process employed in Wessex 1 that would displace Dr Posamentier's opinion that a specific feature was not fluvial at all. 1271 Dr Posamentier's evidence with respect to that example should be accepted. It suggests that he has identified flaws in the examination of the data by the person within Wessex who performed the analysis contained in the report. His view was not effectively countered in the oral evidence.

Anabranching channels 1272 Anabranching channels are dendritic drainage patterns commonly found in fluvial (river) systems. They present as channels that separate and then rejoin, often surrounding an island within a channel. They are identified by the presence of single threaded meandering channels. Dr Emery interpreted a large number of features within a field of the offshore study area as evidence of meandering rivers that had been "abandoned". However, Dr Posamentier contended that anabranching was synonymous with featureless and relatively broad floodplains, not the highly bumpy or "rugose" surface of the offshore study area. 1273 I consider this to be a further example of Dr Posamentier proffering an opinion supported by reasoning that is not adequately addressed by the Wessex witnesses or otherwise apparent on the face of Wessex 1. It demonstrates that Dr Posamentier has adopted an approach that more succinctly identifies the preferable of two inferences by reference to more information apparently taken into account in the Wessex analysis (at least as far as the analysis is revealed on the face of Wessex 1 and explained in oral evidence). I prefer Dr Posamentier's opinion with respect to that example. It provides a further basis for preferring his opinions more generally.

Sand dunes 1274 Dr Posamentier contended that it was unlikely that dunes said by the Wessex authors to be former terrestrial or parabolic dunes were in fact so. He suggested that it was more likely that tidal currents had created the identified dune formations. Dr Posamentier believed that the Wessex authors had made an error in the use of an "analogue" to reach their conclusion. An analogue is a landscape considered by geoscientists to have sufficient analogous features to enable conclusions about it to be applied to an area subject to their inquiry. The analogue used by Wessex pertained to the northwest shelf of Australia that Dr Posamentier said had a markedly different wave climate to the offshore study area within the Arafura Sea. He suggested that the benign wave energy of the Arafura Sea would be unlikely to create the thick sand deposits needed to create a substantial wind blown dune on the shoreline. That opinion was not persuasively rebutted in the concurrent evidence session. 1275 Again, I consider this example indicates a more rigorous degree of analysis by Dr Posamentier than that employed in Wessex 1, at least on the evidence before me.

Tidal currents 1276 Dr Posamentier said that there was a lack of discussion regarding tidal currents in Wessex 1 and described that as a "glaring omission" of the Wessex authors. In cross-examination, Dr Posamentier illustrated the point by reference to features 7016 (complex channel, P1) and 7017 (cut and fill, P2) from Appendix 2 of Wessex 1. He agreed under cross-examination that the features were channels but disagreed that they were fluvial in origin. 1277 In Wessex 1 the authors described feature 7016 as a: Possible complex channel identified below a veneer of sediment, cutting into the interpreted Unit 1. Feature appears to have multiple phases of acoustically chaotic fill, with a faint basal reflector which shows several troughs. Possible remnant fluvial feature. … 1278 Dr Posamentier, in Posamentier 2, provided the following opinion on feature 7016: The veneer of sediment referred to here (as well as in other areas) suggest active sedimentation during post-LGM transgressive time over a broad area. This is consistent with the inference of active bottom currents during this time. … The fill of these scours/channels is reflection free ... Likely the fill is either mud-rich estuarine deposits or mud-rich infill associated with open marine (i.e., open ocean water setting in contrast with restricted bay) transgressive infill. Channel fills that are exclusively mud rich are far more common in marine tidal current channels than in fluvial channels. Therefore, where such mud-rich channels are observed, a marine origin (i.e., post- LGM) can be inferred. 1279 Feature 7017 was described by the authors in Wessex 1 as: A small cut and fill identified BSB/below veneer of seabed sediment. Feature has a distinct basal reflector and acoustically quiet fill. Possible infilled depression of the remnants of a relict fluvial feature. 1280 In Posamentier 2, Dr Posamentier made the following observation of that feature: This feature has no seafloor expression as observed on the MBES data. The buried channels observed here seem to have filled completely so that the seafloor has been healed. The reflection-free fill suggests uniform lithology, likely mud-rich. 1281 He then provided his opinion on the likely preservation potential of archaeological objects in the current locations of features 7016 and 7017: … The implication of a LGM fluvial interpretation vs. a post-LGM tidal-current interpretation is that with a post-LGM interpretation, archaeological objects likely would either not have been present within these channels or in the least would have been buried by sedimentation during post-LGM flooding. In addition, tidal channels would not commonly be associated with floodplains where habitations could be found. Consequently, the likelihood of archaeological objects preserved here is low. 1282 In oral evidence he added: I interpret [features 7016 and 7017] as the products of erosive tidal currents and, by extension, the fact they were excavating here, that excavated material has to go somewhere and that is ultimately deposited elsewhere on top of whatever is on the sea floor. … my focus was to look at the sea floor and make a judgment call as to whether that is the LGM surface. And in places it has been eroded and covered and the modern sea floor is not a one-for-one representation of the paleo landscape at LGM time. 1283 In my view, the opinions in Wessex 1 do suffer from the omission that a reasoning process such as that employed by Dr Posamentier is simply not exposed on the face of the report. It may well be that the relevant author(s) considered a range of relevant matters in support of the P1 or P2 classification as the case may be, but the applicants have not shown that the reasoning process is discernible. In oral evidence, a Wessex author said that erosional forces inform everything that was done in the underlying analysis. That may be so, but how erosional forces factored in the reasoning is not apparent. 1284 I accept Dr Posamentier's opinion that the omission may also indicate that there was a failure to have proper regard to the nuances of each feature that may well be suggestive of it having post inundation origins, rather than fluvial origins. 1285 Moreover, Dr Posamentier took the Court to imagery showing the pattern of sediments that were consistent with fluvial systems and those patterns that were not. It has not been shown that the Wessex authors had regard to the patterning he observed in the data.

A parallel river 1286 In Wessex 1, the authors identify three features (all P1s) as channels. They described feature 7115 as a "possible channel identified below a thin unit of sediment", feature 7116 as a "channel segment with tributaries" and feature 7117 as a "palaeochannel, possibly becoming estuarine". In Posamentier 4 (where Dr Posamentier provided analysis on each of the 163 features identified by Wessex), Dr Posamentier agreed that feature 7115 had "buried channel-like features" but that the features were "of uncertain origin - i.e., tidal currents vs. fluvial processes - and age". He disagreed that features 7116 and 7117 were channels. He said that if they were they "would have been completely infilled during post-LGM time". 1287 In cross-examination, Dr Posamentier explained his position further: A: If this were a beach ridge, then it would not be that likely that a river system would be parallel to that beach. Rivers tend to be orthogonal or at right angles. They hit the shoreline usually at right angles. Not always. There are local exceptions. But here you're looking at [an] interpretation of a major river channel that's essentially paralleling their inferred beach ridge deposits. Q: And you would say that's just wrong? … A: I don't know if it's wrong but it sure isn't reasonable. 1288 The Court asked one of the Wessex authors, Dr Bicket, for a response to Dr Posamentier's conclusion that their analysis was unreasonable. He responded: [Looking] at that as - if you're assuming that those things are sort of coeval or one happens after the other and you know the timing of one relative to the other, if that dune system, the higher ground … had already formed and then, millennia later, a river channel crosses a very flat landscape, rivers and drainage basins, you know, they flow relative to existing topography. Those features don't need to be the same age or one - there could be millennia between the two things. There's no information to be able to say one is - it just doesn't work like that. There's not enough information to say that. That river may be well later than that dune feature. 1289 The difficulty with that response is that it does not reveal the actual reasoning of the Wessex contributors who described and classified the feature. It is a statement of a possible explanation but more is required to satisfy me that the reasoning and inferences concerning these features are sustainable.

The significance of beheading 1290 The Wessex authors and Dr Posamentier held different opinions about the significance of landforms that had been truncated, or "beheaded", by erosional forces or transgression. 1291 Dr Posamentier contended that observation or analysis of the surface of a palaeolandscape must consider the presence of beheaded landforms from erosional forces, and that the degree of beheading is impossible to determine. That consideration is relevant, in his opinion, to assess whether the sea bed in its current state is that which existed in the LGM period; that is, whether the sea bed as it now exists was the same surface that people walked upon 18,000 years ago. 1292 Dr Posamentier re-stated his belief that tidal currents and beheading had changed the palaeolandscape in the offshore study area from its LGM state to its current presentation. However, he did accept under cross-examination that he could not correlate those factors with archaeological potential: My expertise does not extend to archaeology and anthropology, so I can't comment on the value of a surface that has been beheaded that may have a concentration of objects of interest, and then covered. My mandate was to look at the sea floor and assess whether that is the LGM surface and, in my opinion, in many instances (a) the LGM surface has been eroded and beheaded to a certain degree and (b) it has been layered over by sediments that were eroded by tidal currents, shore face erosion, tsunamis, wave energy. Now, there's a lot going on here. … … when we're considering the modern sea floor, we can't just consider that period when the shoreline was moving rapidly landward because that stopped around 10 or 11 thousand years ago, nine - somewhere around that time. But since that time, other geologic processes were having their way with the sea floor by erosion, tidal currents, by sedimentation of the material that has been eroded. So a lot has happened. 1293 Dr Steyne, a Wessex author, placed little if any significance on beheading. She stated that beheading had little impact on the archaeological potential of a palaeolandscape because archaeological sites had invariably been subject to numerous erosional processes "since deposition". Dr Steyne suggested that, in relation to the offshore study area within the Bonaparte Basin, evidence of mangrove remains from surrounding areas meant that the landscape was likely accumulating sediment that had sealed over and preserved archaeological material. As such, removal or beheading of surface levels from erosion or transgression would be irrelevant because material culture would still be in situ within the sediments of the channels. Dr Steyne noted that the LGM was approximately 18,000 years ago, at which time there had already been 40,000 years of habitation on the landscape with the depositing and burial of material culture across tens of thousands of years. Consequently, regardless of whether the surface was intact or had been subject to marine inundation and erosion, deeper archaeological material would be buried and preserved. 1294 The difference between the opinions relates in part to the depths at which objects having archaeological potential may be found. The archaeological opinion is that at the time that sea levels rose, there already existed an archaeological record below the earth's surface, and that record would not be impacted by erosional and depositional forces on the surface of the sea bed. I accept that to be the case. However, proof that the enquiry is not limited to the surface of the sea bed is not sufficient, in and of itself, to establish other aspects of the case with respect to the existence of a significant risk of impact. In Wessex 2, 51 features were identified as relevant to the pipeline activity having regard to the depth of impact of the pipeline activities. Only four of those are features having Dr Posamentier's agreement as to their nature and origin. They are features 7003, 7118, 7129 and 7144 (at KP87, KP209, KP224 and KP246 respectively). However, he does not agree that any artefacts in those features would have withstood the forces of transgression.

Other issues affecting weight of the evidence 1295 The applicants put forward a number of reasons why they say the opinion of Dr Posamentier should not be preferred. They submitted, for example, that there were academic articles that were relevant to the enquiry that Dr Posamentier should have considered. Even accepting the articles to be relevant, it has not been shown that the articles were such that, if considered, they would have had any particular bearing on the particular issues, by reference to any particular sample feature or class of features. 1296 It was next submitted that Wessex 1 should be assumed to be a more comprehensive and detailed analysis because it was the product of multiple authors and produced over a much longer period of time, including time taken to review the available data. The difficulty with that submission is that the sample of issues traversed in the oral evidence session showed that the additional expenditure of time and personnel could not form the basis for safely concluding that the Wessex methodology was superior, or the opinions more reliable. It was also submitted that Dr Posamentier was not a reliable expert because he had changed his opinions over time with respect to some issues, particularly concerning the alleged Ancient Lake. I do not consider Dr Posamentier to have changed his view in a way that should justify a conclusion that his opinions concerning the Wessex material cannot be relied upon. The bald assertion that he changed his evidence on the topic of the Ancient Lake fails to appreciate the nuances in his evidence on that topic, and the superiority of his analysis to that undertaken by Dr O'Leary. 1297 In my view the most relevant evidence informing the question of weight was the degree of analysis employed and explained by Dr Posamentier in the examples that he gave. I prefer his evidence overall and act on his opinions in the areas of his expertise.

The alleged significant risk arising from the activity 1298 As explained earlier in these reasons, on the proper construction of reg 17(6) the assessment of the significance of a risk is an evaluative task, requiring the consideration of the degree of chance that an adverse event might occur, and the nature and magnitude of that adverse consequence. 1299 I accept the applicants' submissions that the actual presence of artefacts having cultural heritage value to them need not be established on the balance of probabilities. What must be established on the balance of probabilities is a new and significant risk of environmental impact within the meaning of reg 17(6), properly construed. However, that does not mean that any degree of chance will suffice to prove their case. 1300 As a consequence of preferring the opinion of Dr Posamentier, I am not satisfied that I should adopt the opinions in the Wessex Reports with respect to those features where there exists disagreement. It remains however that there exists a limited area of agreement. The remainder of my findings relates to that area of agreement. However, I consider that even if the opinions in the Wessex Reports were to be wholly accepted, the outcome would be no different. 1301 In assessing the degree of chance of the feared adverse consequence it is informative to ask what consequences would follow from the adoption of the Wessex opinions, as a matter of factual reality. The word "probable" in the classification of the P1 features is apt to mislead in that respect. It does not mean that the degree of chance of damage to an artefact of archaeological significance can be expressed in terms of "more likely than not". The ascription of a P1 or P2 classification to a feature means nothing more than a conclusion about the possibility of the feature being a certain kind of landform. The conclusion that a landform might previously have been a river in the subaerially exposed ancient landscape says something, in archaeological terms, about what human activity might have occurred in or around that place in comparison to the human activity that might have occurred in other places. That is it. The P1 classification does no more than to assist in a very preliminary narrowing process of an archaeological enquiry. It says nothing at all about the degree of chance that an artefact may be found at or around that place, and supplies no information about where on a horizontal or vertical plane any such artefacts might be situated. In my view, when properly understood, the fact that Wessex gave a P1 classification to a feature cannot support a conclusion that there exists anything other than a negligible chance that an artefact of archaeological relevance or value could be found at or near that feature in the present day if a search were undertaken for one. 1302 The evidence does not otherwise support a conclusion that the degree of chance of an artefact of archaeological relevance being situated on or near the pipeline route is anything other than negligible. Relevant to that enquiry is the wider factual context about the former terrestrial landscape and the features said to be identified by Wessex within it, considered as a whole. To say there was once a river in a place that intersects the modern day pipeline route does little more than to identify a very small area in which the two things intersect. Any consideration of the degree of chance that there may be an object of significance in that area of intersection must have regard to the scale of the whole of the feature. Matters of scale are relevant on both the horizontal and vertical plains. 1303 On the horizontal plane, the evidence before me is that the footprint of the completed pipeline is less than 30ha. Much of that footprint is comprised of the pipeline itself, which has a diameter of less than 1m. The concrete mattresses may in places be up to 7m wide. In considering the forensic significance of the conclusions in Wessex 1, it is appropriate to have regard to the size of that footprint relative to the whole of the former terrestrial landscape that may have been formerly occupied by humans. Put simply, the larger the area of impact, the greater the chance that an object of archaeological value will fall within it, and vice versa. In addition, whilst there are assumptions in Wessex 1 about human populations being more concentrated around certain features, the applicants did not take me to parts of the report that would assist me to understand what those concentrations were. The conclusion that a feature might once "possibly" have been a river says nothing about the nature and degree of concentration of any archaeological record that may exist below the surface there. 1304 The vertical plane must also be considered, so drawing attention to both the likely depth of embedment of the pipeline and the depth of the impact of the works for its installation. Whilst in Wessex 2, 51 features were identified as being of the kind where the asserted archaeological potential related to shallower depths of the sea bed, that analysis does not change the meaning of the P1 ascription. It does not increase the degree of chance that objects of archaeological value may be situated in those places. Dr Posamentier agrees with the description and origin of only four of those places in any event. 1305 That is not to conclude that there could be no "archaeological record" preserved in the vast area of previously exposed landscape that is now submerged. Rather, it has not been established that there is anything more than a negligible chance that any part of that archaeological record exists in the particular areas where the P1 features approach and intersect with the pipeline route. 1306 As to the nature of the feared adverse consequence, I accept that the preservation of objects having cultural significance to Aboriginal people is a matter of genuine concern not only to those people but to the Australian nation as a whole. The cultural heritage of Aboriginal people forms part of the cultural heritage of the whole of Australia and may indeed have international significance in terms of the study of human evolution and movement. However, as I have mentioned, the evidence before me is insufficient to show anything other than a negligible chance that there exists one or more objects of archaeological value along the pipeline route and situated at a depth at which it might be at risk of damage, destruction or loss. 1307 I have had regard to the statement of principle referenced in the objects to the Regulations which emphasises an intent that there be steps taken to avoid serious environmental damage even if the risks of such damage cannot be measured with scientific certainty. The Court is not searching for scientific certainty. It is performing an evaluative task as to the significance of the asserted risk. I do not consider that statement of principle to require that a risk be classified as "significant" even in circumstances where it has not been shown to be other than negligible. 1308 Much of the applicants' submissions on this topic focused on aspects of the activity that was said to be the most disruptive to the sea bed. One area of contention was whether that activity would include a construction process known as "mass flow excavation". In my view, the impact of that construction process is not such as to change the conclusions I have drawn about the negligible chance that there exists in the area any object of archaeological value. Given that I am not satisfied that that chance has been shown to be anything more than negligible, it is not necessary to separately assess the chance of whether the activity would impact on the asserted cultural heritage in any way. Nor is it necessary to address an alternative submission advanced by Santos that the "activity" will not in actual fact include that process by virtue of it having NOPSEMA's consent to undertake construction of the pipeline without it. Nor is it necessary to deal with submissions of Santos concerning the degree of impactful activities that are already impacting and continue to impact upon the sea bed (such as commercial fishing and trawling). 1309 It follows that in my evaluation the asserted risk is not "significant" within the meaning of reg 17(6). 1310 This aspect of the applicants' case should be rejected on the additional basis that the asserted risk is not "new", a topic to which I now turn.

THE RISKS ARE NOT NEW 1311 Apart from the conclusions already reached, I would deny the applicants' sought relief on the basis that it has not been established that any one of the asserted risks meets the description "new", as construed earlier in these reasons. 1312 That is because it has not been shown that the facts or circumstances giving rise to the asserted risks are facts and circumstances coming into existence since the approval of the Pipeline EP. A possible exception is that part of the case founded on the adapted account of Ampiji, but my rejection of that part of the case on the facts as I have found them makes it unnecessary to consider that topic any further. 1313 The applicants made no submissions as to how the risks could be "new" other than to present their factual case on an assumption that their preferred construction of the word was correct. On that construction, each risk "occurred" when it was first brought to the attention of Santos and each risk is "new" because it is not provided for in the Pipeline EP. 1314 The failure to present an alternative legal or factual case means that the claim must fail on the alternative basis that there has been no occurrence of a new risk.

OTHER MATTERS 1315 The applicants positively asserted throughout their submissions that Santos did not comply with its obligation under reg 11A to consult with them in a way that related to the risks to the "cultural features" now in issue. The purpose for them positively agitating the point is unclear to me. On the applicants' preferred construction, the question of whether or not the titleholder discharged its obligation under reg 11A is irrelevant: on their construction all that must be shown is that the information about the risk be brought to the titleholder's attention after approval of the Pipeline EP. On that construction, the information could be brought to the titleholder's attention long after it was known to persons who might be affected by it, whether or not they were consulted. The titleholder would commit an offence under reg 8 immediately upon a stakeholder revealing for the first time information it had known about throughout the consultative process but not divulged. 1316 It may be that there is an alternative construction of reg 17(6) on which the question of compliance or non-compliance with reg 11A is a necessary element in determining whether the obligation has been triggered. But neither party put forward any such alternative construction. As a consequence, I consider it unnecessary to resolve a detailed factual controversy in the submissions as to whether or not the obligation under reg 11A was discharged. To my mind, an allegation that the obligation under reg 11A was not discharged is a matter that ought to be argued as a ground of judicial review of NOPSEMA's decision to accept the environment plan, as was done in Tipakalippa No 2, and such proceedings should be commenced promptly. Had I upheld any part of the applicants' case on its factual merits, and had I accepted the applicants' preferred construction of the word "new", I would have withheld the grant of relief in my discretion unless satisfied that the applicants had moved promptly after first forming the view that the consultation processes were defective. 1317 Other features of the submissions should be mentioned before concluding. 1318 The applicants submitted that the Court should make findings that the consultation processes that occurred throughout 2023 would not constitute sufficient consultation for the purposes of the preparation of a revised environment plan. I would have declined to entertain that question even if I had upheld any part of the applicants' case. 1319 The parties have invited the Court to draw several inferences in accordance with the principle stated in Jones v Dunkel. I have drawn such an inference with respect to Marie Munkara. However, I have not considered it necessary to expressly resolve each and every submission of that kind, including a submission by Santos relating to Danny Munkara. I am satisfied that drawing the inferences sought in the submissions would not have affected the outcome. 1320 Finally, the applicants' reply submissions respond comprehensively to a perceived argument that the EDO was the principal actor in this action, pursuing its own agenda and perhaps not genuinely acting on instructions of their Tiwi clients. I have not understood the submissions of Santos to go so far. I understood Santos to allege that the EDO was an actor in the factual landscape because of the conduct of the EDO lawyer at the May Lewis Meeting and the June O'Leary Workshop. Santos was correct in that respect. My findings with respect to those questions are contained in Part V of these reasons and need not be repeated. But I make it clear that I have not entertained any submission that EDO Lawyers was the principal proponent of this action pursuing an ideological agenda. The substantive issues have been determined without reference to any such allegation.

ORDERS 1321 There will be orders dismissing the Amended Originating Application and discharging the injunction that would otherwise have remained in force until 5.00pm today. 1322 The parties will be heard as to costs. I certify that the preceding one thousand three hundred and twenty-two (1322) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.