"Functions, interests or activities"
51 In our opinion, the phrase "functions, interests or activities" in reg 11A should be broadly construed, because this approach best promotes the object of the Regulations. The object of the Regulations, which is set out in reg 3, is to ensure that any offshore petroleum or greenhouse gas storage activity is carried out in a manner:
that is consistent with the principles of ecologically sustainable development set out in s 3A of the EPBC Act;
by which the environmental impacts and risks of the activity will be reduced as low as reasonably practicable; and
by which the environmental impacts and risks of the activity will be of an acceptable level.
52 Santos and NOPSEMA argued for a narrow construction of the phrase "functions, interests or activities", but such a construction would not promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. These five principles include: that "decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations" (emphasis added); the principle of inter-generational equity; and that "the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making". That is, whether and to what extent offshore petroleum or greenhouse storage activity is to be permitted depends, amongst other things, on the potential effect of the activity on people and communities, on equitable concerns (including the principle of inter-generational equity) as well as on the natural world. Santos and NOPSEMA proposed a construction of the phrase "functions, interests or activities" that fails to promote the principles of ecologically sustainable development as set out in s 3A of the EPBC Act. Their construction would also undermine the achievement of the other two objects of the Regulations. This is because, by confining the concept of a "relevant person" as it would, Santos (and other titleholders in its position) would not be required to consult with "a person or organisation" who might self-evidently be affected by its proposed offshore activity, nor would it be obliged to take or propose any measure to address their situation.
53 We note, furthermore, that the definition of "environment" in reg 4 of the Regulations is consistent with the principles of ecologically sustainable development set forth in s 3A of the EPBC Act. Thus, "environment" is defined in reg 4 to be:
(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).
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.
56 Viewed in this way, the consultation required by reg 11A has, in our view, more than one purpose. Plainly enough, by this consultation, it is intended that the titleholder provide "sufficient information to allow" the affected authorities, organisations and individuals "to make an informed assessment of the possible consequences" of the proposed activity on their "functions, interests or activities": see reg 11A(2). It is also intended that the consultation be genuine, in that the affected authorities, organisations and individuals are required to be given a "reasonable period" for the consultation, that is, a reasonable time to identify the effect of the proposed activity on their functions, interests or activities and to respond to Santos with their concerns.
57 The consultation under reg 11A is also designed to ensure that the titleholder adopts appropriate measures in response to the concerns conveyed to the titleholder by the affected authorities, organisations and individuals: see reg 10A(g)(ii). Equally importantly, the titleholder is obliged to inform NOPSEMA of the identity of the affected authorities, organisations and individuals, the nature of the titleholder's consultations with them, and the measures that the titleholder has adopted or proposes to adopt to meet the concerns notified to the titleholder in the consultations: reg 10A(g). Construed in this way, the Regulations are directed to fulfilling their objects, consistently with the EPBC Act.
58 In light of this, we reject the submission made by Santos and supported by NOPSEMA that "activities" in reg 11A(1)(d) are to be construed in conformity with the definition of "activities" in reg 4. Regulation 4 provides that:
unless the contrary intention appears:
...
activity means a petroleum activity or a greenhouse gas activity.
(Original emphasis.)
So construed, the requirement in reg 11A(1)(d) to consult a person or organisation "whose ... activities" may be affected would be limited to other operators like Santos also engaged in an offshore petroleum or greenhouse gas activity.
59 We are of the clear view that to construe "activities" in the expression "functions, interests or activities" in this way would defeat the evident object of reg 11A and, more broadly, the objects of the Regulations. Even if the definition of "activity" would otherwise apply to the word "activities" in reg 11A, we conclude that a contrary intention is clearly expressed in reg 11A itself, having regard to its purpose and the relevant statutory and regulatory context to which we have just referred.
60 We would accept that the word "functions" in reg 11A(1)(d) refers to a power or duty to do something: see Chief Executive Centrelink v Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153; 248 FCR 236 at [69]; Noy v Tapgnuk (1997) 138 FLR 205 at 209-210. It may be accepted that, as Santos and NOPSEMA submitted, the TLC was a relevant person because it was an organisation whose functions under s 23(1)(b) of the Land Rights Act may be affected by the activities proposed to be carried out under the Drilling EP. It does not follow from this, however, that Mr Tipakalippa and the Munupi clan do not have functions as traditional owners of the Tiwi Islands with spiritual and cultural connections to sea country capable of falling within reg 11A(1)(d). It is, however, unnecessary to determine this point because we are of the clear view that they have "interests" that may be affected by the activities to be carried out by Santos under the Drilling EP.
61 The concept of an "interest" (or "interests") that "may be affected" is well understood in various areas of Australian law, including the law with respect to standing and with respect to procedural fairness. It is also a concept that is well understood in many statutory contexts, including in the ADJR Act. In this context, a "person aggrieved by a decision" may apply under the ADJR Act for judicial review of the decision, where a person aggrieved includes a person "whose interests are adversely affected by the decision": ADJR Act, s 3(4). We observe that neither Santos nor NOPSEMA took issue with Mr Tipakalippa's standing to seek judicial review of NOPSEMA's decision under the ADJR Act. It seems to us, however, that the interests that were adversely affected by NOPSEMA's decision and which the other parties accepted gave Mr Tipakalippa standing under the ADJR Act to challenge the decision are intimately connected with the interests that he maintains required him and the Munupi clan to be consulted by Santos under reg 11A.
62 As we have already explained, we reject the submission that the word "activities" should be narrowly construed and, on this account, so too should the other words in the phrase "functions, interests or activities" in reg 11A(1)(d). Further, for the reasons set out below we would not, as Santos urged, confine "interests" to "legal interests" and reject the proposition that the connection of traditional owners with sea country cannot be an interest for the purposes of reg 11A(1)(d).
63 Under the ADJR Act and the law of standing and procedural fairness the concept of interest is a broad one. In the context of procedural fairness, an 'interest' includes "any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation": Kioa v West [1985] HCA 81; 159 CLR 550 at 619 (Brennan J). Brennan J explained at 616-617:
There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.
64 This passage is apposite, it seems to us, when considering whether reg 11A(1) should be construed so as to require Santos to consult Mr Tipakalippa and the Munupi clan as traditional owners of the Tiwi Islands when it appears that their cultural and spiritual connections as traditional owners may be affected by the activity that Santos is proposing to undertake.
65 As Brennan J said in Kioa v West at 619, what is important in identifying whether there is an interest that attracts procedural fairness is how the individual interest is affected, rather than the nature of that interest. Although, as we indicate below, some care must be taken in drawing on every aspect of the procedural fairness cases, this statement is clearly apposite in considering the meaning of "interests" in reg 11A(1)(d). Furthermore, it is generally accepted that an interest that attracts procedural fairness may be equated with the interest that gives standing at common law to seek a public law remedy: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [66]-[68]; Kioa v West at 621; see also Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [121]. Having regard to the text, context and purpose of reg 11A(1)(d), we consider that "interests" in reg 11A(1)(d) is to be given a meaning that conforms to the accepted concept of 'interest' in other areas of public administrative law.
66 As Brennan J said in McHattan v Collector of Customs (1977) 18 ALR 154 at 157 in the context of procedural fairness:
Across the pool of sundry interests, the ripples of affection may widely extend. The problem ... is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote …
67 This observation is also applicable to this case, because, ultimately, so it seems to us, the resolution of the principal issue in this case - whether Mr Tipakalippa and the Munupi clan have interests that required Santos to consult them - is also a matter of fact and degree. The passages set out at [39] and [40] above make it clear beyond doubt that, as we have said, the material that Santos has in its possession and put before the decision-maker showed that they had a traditional connection to at least part of the sea in the EMBA and to its marine resources; and that there was a real potential for Santos' proposed drilling activity to have a potentially significant adverse effect on the marine resources closer to the Tiwi Islands, which were a fundamental part of the traditional culture and customs of the Tiwi Islanders.
68 Mr Tipakalippa's and the Munupi clan's interests in the EMBA and the marine resources closer to the Tiwi Islands are immediate and direct. Furthermore, they are interests of a kind well known to contemporary Australian law. Thus, interests of this kind, which arise from traditional cultural connection with the sea, without any proprietary overlay, are acknowledged in federal legislation, such as, for example, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and have been considered by the courts.
69 It is instructive in this connection to consider the Heritage Protection Act, and in particular s 4, which provides as follows:
The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
70 Protection under the scheme is given to "significant Aboriginal areas", by Ministerial declaration. Section 3 of the Heritage Protection Act provides the following definition:
significant Aboriginal area means:
(a) an area of land in Australia or in or beneath Australian waters;
(b) an area of water in Australia; or
(c) an area of Australian waters;
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.
(Original emphasis.)
71 "Australian waters" is in turn defined in the following way:
Australian waters means:
(a) the territorial sea of Australia and any sea on the landward side of that territorial sea;
(b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or
(c) the sea over the continental shelf of Australia;
(Original emphasis.)
72 In other words, the Heritage Protection Act recognises the capacity for sea country, and its marine resources, to be "of particular significance to Aboriginals in accordance with Aboriginal tradition".
73 "Aboriginal tradition" is defined in s 3 as:
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
(Original emphasis.)
74 By these references to the Heritage Protection Act, we are not intending to suggest that the Heritage Protection Act was applicable to Santos' proposed drilling activities. Rather, we refer to that Act to make it clear that the law recognises the kind of interests that Mr Tipakalippa contends required Santos to consult with him and the Munupi clan. Reference to the Heritage Protection Act demonstrates that by this Act the federal Parliament has expressly contemplated the protection of areas of the sea from activities harmful to the preservation of Aboriginal tradition. The Parliament has done so without requiring the existence of particular proprietary interests; rather requiring only the existence of a connection by Aboriginal tradition.
75 Indeed, this is how the Full Court in Tickner v Bropho [1993] FCA 208; 40 FCR 183 approached consideration of the "Aboriginal tradition" in issue in that case, which dealt with a challenge by Mr Bropho to the redevelopment of the Swan Brewery site in Perth, Western Australia. At 227 [36], French J had no difficulty in describing the relevant tradition without reference to any proprietary language:
According to the evidence of that tradition which Mr Bropho presented to the Minister, the Swan River and associated landscape features are part of a complex of myths centred upon an ancestral being called the Waugyl which created the river and its tributaries during epic journeys in the Dreamtime. The Waugyl is one of a number of ancestral beings responsible for physical creation. It is akin to the great Rainbow Serpent which figures in Aboriginal legends throughout Australia. There are creative and punitive aspects of the Rainbow Serpent. According to Aboriginal mythology, the Waugyl commenced its journey to the sea at the sources of the Swan River. Along the way there were particular sites at which it rested or engaged in activities. These are regarded as sacred places of special power which may be beneficial or harmful according to the behaviour of those who approach them. Many such sites were well-established points where Aboriginal people traditionally met to trade and where inter-group meetings took place. Such sites might be used for the settlement of disagreements, the establishment of alliances and the teaching of initiates in the responsibilities of manhood. The teaching included the transmission of the mythology associated with particular places and the rituals necessary to pay due respect to the Waugyl. The medium for the transmission of the mythology was song.
76 French J in Bropho at 223 [30] also described the purpose of the Heritage Protection Act as being:
enacted for the benefit of the whole community to preserve what remains of a beautiful and intricate culture and mythology.
See also Onus v Minister for the Environment [2020] FCA 1807; 246 LGERA 340 at [75], where Griffiths J endorsed the description of French J in Bropho.
77 The Regulations at issue in this case have similar purposes of preservation and protection, but extending more broadly to the environment as a whole, insofar as it may be affected by a titleholder's activity. As a substitute decision-making process under the EPBC Act, the Regulations provide the mechanism for the assessment of environmental impacts and risks from the titleholder's proposed activity, where the concept of environment embraces people and communities and their social, economic and cultural features. In our opinion, the sea country material discloses the same kind of traditional connection to the sea country of the EMBA and the marine resources within it, as well as to the marine environment around the Tiwi Islands as that might be called in the language of the EPBC Act.
78 It follows from the foregoing that we consider that Santos was required by reg 11A(1)(d) to consult Mr Tipakalippa and the Munupi clan because they had interests that may be affected by Santos' proposed activities under the Drilling EP.
79 We accept that the identification of the kinds of traditional connections to the sea, and its marine resources in this case, is not as precise or detailed as the extract from Bropho indicates was present in that case. Santos did not address these matters in the Drilling EP as we consider they should have been because of the mistaken approach adopted by Santos and NOPSEMA to the concept of "interests" in reg 11A(1)(d). More detail and precision will come from consultations with the First Nation groups; thereafter Santos can address what if any measures need to be taken to mitigate environmental risks and impacts, which, as we have indicated, should be presented to NOPSEMA for its consideration in further decision-making.
80 In this case, we consider it clear that Mr Tipakalippa and the Munupi clan had interests within the meaning of reg 11A(1)(d) that required them to be consulted. Within this regulatory framework, "interests" includes cultural and spiritual interests of the kind described in the sea country material in the Drilling EP and attachments.
81 There remain, however, two related arguments that we have not addressed, which were said to weigh heavily against this conclusion. The first is derived from an aspect of the law relating to procedural fairness. The second is the 'unworkability argument'. We reject these arguments for the following reasons.