The Failure to Consider Flaw
173 It is not strictly necessary for me to address the basis for ground 1 as initially put by Mr Tipakalippa. However, in case I am wrong on that aspect of ground 1 just determined, I will return to Mr Tipakalippa's initial basis for ground 1. The initial basis overlaps with the basis just determined but has a narrower target because it only seeks to establish error in relation to specific persons not listed in the Drilling EP as relevant persons. The categorisation of those specific persons shifted from, initially, the Munupi clan to, later, the traditional owners of the Tiwi Islands. As the evidence relied upon for this basis was directed generally to all of the traditional owners of the Tiwi Islands rather than just those in the Munupi clan, the latter category became the specific persons in relation to which the contention was put. In any event, whether the argument is put in relation to the narrower or broader grouping is of no significance.
174 It may fairly be said that Mr Tipakalippa's case shifted in many other respects as well. Not inappropriately, the designation 'a moving feast' comes to mind.
175 The proceeding was commenced on an originating application and a supporting affidavit but was not, otherwise conducted on formal pleadings. Concise Statements were exchanged followed by opening written submissions and then closing written submissions filed and exchanged to accompany closing oral submissions.
176 It is perhaps also necessary to acknowledge, in briefly discussing the shifting nature of Mr Tipakalippa's case, that describing legal error and in particular jurisdictional error by reference to some rigid taxonomy of error is not always free of difficulty for many reasons including because there will often be several ways of describing the error. There is, as Aronson et al state, a live debate as to whether a flaw in a decision-maker's lawful satisfaction where that satisfaction is a prerequisite to the exercise of statutory power, also referred to as a "subjective jurisdictional fact", should be labelled a jurisdictional error at all: see Aronson et al (2022) at [5.500] pp 259-260.
177 In large part, the approach initially taken by Mr Tipakalippa to his case was to refer to the error of NOPSEMA under the broad banner of a "lack of reasonable satisfaction" rather than by reference to identifiable categories of jurisdictional error. That is, it was contended that NOPSEMA "could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by Division 2.2A of the [Regulations] was carried out". However, the case was broadly recognisable, as put initially, as largely akin to a legal unreasonableness claim based upon the central assertion that NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that consultation of Mr Tipakalippa and other traditional owners of the Tiwi Islands had been carried out by Santos.
178 In Mr Tipakalippa's opening written submission he summarised his case as follows:
In this proceeding, the Applicant claims that he, and the Munupi clan, are Tiwi people whose functions, interests or activities may be affected by the activities that are the subject of the Drilling EP, that Santos did not consult with him or other members of the Munupi clan in the course of preparing the Drilling EP, and that the Drilling EP does not demonstrate that any such consultation was carried out. As a result of that failure, the Applicant claims that:
a. NOPSEMA could not have been reasonably satisfied that the consultations with members of the Munupi clan required by the Regulations in relation to the Drilling EP were undertaken by Santos; and/or
b. the consultations required by the Regulations had not been undertaken by Santos.
On either ground, the Applicant claims that NOPSEMA's decision is invalid and should be set aside. He also seeks that NOPSEMA and Santos be prohibited or restrained for [sic] doing any act or thing pursuant to the Drilling EP.
179 The totality of the material that Mr Tipakalippa sought to rely upon for that case raised an unusual approach to the evidence on a judicial review proceeding. I will say more as to why the unusual approach taken to the evidence that should be considered on such an application was misconceived, but for the moment it is necessary to understand that ground 1 was initially a case run by reference to not only the material before the delegate but extensive additional evidence said to be relevant to both that ground and also to ground 2.
180 For the purposes of that case made under ground 1 as initially pursued, Mr Tipakalippa sought by way of evidence not before the delegate (additional evidence) to establish as a fact that:
(i) he and the other persons in the Munupi clan had particular "functions, interests or activities" and that they were each a "relevant person" within the description in reg 11A(1)(d);
(ii) that those persons were not directly consulted by Santos in relation to the Drilling EP; and
(iii) that those persons were not indirectly consulted by Santos by reason of Santos having contacted the TLC, including because the TLC was not their representative in relation to their sea country functions, interests or activities and that, furthermore, Santos knew that the TLC was not actually performing a representative role in relation to those functions, interests or activities because of what Santos had been told in respect of another related environment plan that was being pursued at the time.
181 The third category of evidence just referred to was, as I understand it, sought to be relied upon responsively to the anticipated contention of Santos that consultation with the traditional owners of the Tiwi Islands had been carried out by Santos through contact made with the TLC, a contention in relation to which Santos also sought to establish by evidence the objective fact that such consultation had occurred with the TLC in its capacity as a representative of the traditional owners of the Tiwi Islands.
182 Insofar as any substantiation was sought to be given as to why Mr Tipakalippa sought to establish the above facts by evidence additional to the material before the delegate, Mr Tipakalippa asserted by his opening written submissions that the finding by NOPSEMA that the consultation required by the Regulations had occurred was a material mistake of fact constituting an actual or constructive failure to exercise jurisdiction and an improper exercise of the power to accept the Drilling EP. That suggested that the characterisation of this ground in terms of legal unreasonableness alone may have been insufficient.
183 Having said all that, it remains necessary to appreciate that (without really identifying why) by his written opening submissions Mr Tipakalippa also contended that his case succeeded on the material in the Drilling EP alone. In that respect, he contended that the Drilling EP itself, despite identifying that the EMBA includes significant sea country for traditional owners does not identify traditional owners as relevant persons with whom consultation was undertaken and does not say that consultation was undertaken with Mr Tipakalippa or the Munupi clan. It was contended that there was therefore no evidence or material in the Drilling EP before NOPSEMA that those persons were consulted, despite traditional owners being identified as persons who had an interest in the EMBA and NOPSEMA being on notice that their interests were affected. That was supplemented with the submission that the information in the Drilling EP was sufficient to negative any claim that there was a proper basis for a finding that NOPSEMA was "reasonably satisfied" that the required consultation had occurred because the Drilling EP, on its face, identified that the EMBA includes significant sea country for traditional owners but the Drilling EP did not demonstrate that they were consulted.
184 Mr Tipakalippa's intended reliance upon the additional evidence was the subject of an objection from Santos first made in its opening written submissions. Santos there suggested that the evidence be only received on a provisional basis subject to its objection. Santos recognised that much of the evidence that it sought to rely on would also fall away if its objection was upheld. At the Court's initiative, a case management hearing was convened on 18 August 2022 to canvass whether a more appropriate means for dealing with the evidentiary objections was available. Ultimately and with the benefit of hindsight perhaps unwisely, the need for an expedited hearing mandated that the approach suggested by Santos to dealing with the evidentiary objections was the most convenient approach.
185 Nevertheless, it seems that the debate about the admissibility of the additional evidence which included my own expressions about the doubt I harboured as to its relevance, at the least, caused Mr Tipakalippa to refocus his case under ground 1 which was then characterised in closing submissions as falling into two parts. Firstly, "the narrow case" and secondly, "the broader case".
186 By the time of his closing submission, with some minor exceptions to which I will come, it was only in respect of the broader case that Mr Tipakalippa sought to rely upon the additional evidence in respect of ground 1. At that point, the relevance of that evidence to ground 1 was not pressed on the basis of a contention that there had been a mistake of fact but instead, Mr Tipakalippa sought to rely on a new ground of review based on a contention that NOPSEMA "failed to make an obvious inquiry of Santos about a fact critical in the assessment of the Drilling EP, the failure of which was easily ascertained, being whether the traditional owners of the Tiwi Islands were relevant persons within the meaning of reg 11A(1)(d)". Mr Tipakalippa sought leave to amend his Amended Originating Application to include that contention as a new ground with the intention, as his closing written submissions reveal, of relying upon it under both grounds 1 and 2 of his application. Leave was opposed by Santos on the basis that it would suffer prejudice. The application for leave was refused for reasons I later give at [277] to [280].
187 The refusal of leave effectively disposed of the broader case under ground 1. Although there were three parts to the broader case and the leave sought was only required in relation to the first part, the second and third parts are replicated in what Mr Tipakalippa characterised as his narrow case.
188 There are three parts to the narrow case. The second and third parts were put in the alternative to the first. They were expressed in Mr Tipakalippa's closing submission as:
NOPSEMA could not have been reasonably satisfied that relevant persons were consulted, because the Drilling EP did not demonstrate that consultation with either the TLC or the NLC constituted [consultation] with affected Traditional Owners of the Tiwi Islands (the TLC/NLC Representative basis);
NOPSEMA could not have been reasonably satisfied that relevant persons were consulted, because the…Drilling EP did not demonstrate that the consultation with the TLC satisfied the requirements of the Regulations (the Inadequate Consultation basis).
189 The first part of the narrow case was labelled by Mr Tipakalippa's closing written submissions as "the relevant person basis" expressed as follows:
NOPSEMA could not have been reasonably satisfied on the material before the decision maker that relevant persons were consulted, because it was on notice that Traditional Owners of the Tiwi Islands may be relevant persons, and the Drilling EP did not demonstrate that they were consulted.
190 In support of this contention, Mr Tipakalippa pointed to a wide range of what I will call "sea country material" contained in the Drilling EP (which I will shortly set out) that he contended showed that the functions, interests or activities of the traditional owners of the Tiwi Islands may be affected by the Activity. He then essentially contended that NOPSEMA failed to properly consider the sea country material in determining whether the Drilling EP demonstrated that each relevant person had been identified and consulted. In particular, Mr Tipakalippa contended that NOPSEMA should have, but had not, engaged with the critical task of comparing the list of relevant persons in the Drilling EP against other information in the Drilling EP about relevant persons, by which he obviously meant the references made to the traditional owners of the Tiwi Islands in the sea country material.
191 This was the first time that, by reference to the material in the Drilling EP alone, Mr Tipakalippa's submissions explained a basis for a finding of error. Read in context, the error was characterised as giving rise to something that a reasonable decision-maker should have done but was not done by NOPSEMA. There are two further failures to engage with particular information identified in the closing submissions under the heading "The Relevant Persons basis", neither of which are necessary to here consider, before the rest of the submission turns to Mr Tipakalippa's responsive or alternative case.
192 What it appears to me was here raised in terms of Mr Tipakalippa's positive case, was an assertion of error recognisable in the taxonomy of jurisdictional error as a 'failure to consider' error. Read fairly and in context, the content of the paragraph which raised it does not assert that the existence of the sea country material in the Drilling EP was not appreciated at all by NOPSEMA but that on what I have called the universe of relevant persons inquiry, NOPSEMA failed to properly engage with that material as it was bound to do. Thus, what was raised for the first time is a failure to consider error, put as a basis for Mr Tipakalippa's case that NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by the Regulations had been undertaken by Santos.
193 That kind of error was not particularised in the Amended Originating Application. Without necessarily seeking to suggest that leave was required, it was pursued by Mr Tipakalippa without any application for leave to amend the Amended Originating Application but without objection from Santos. Santos had an opportunity to respond to that argument by its written and oral closing submissions.
194 I am of the view that I should deal with and determine the asserted 'failure to consider' error, despite harbouring some reservations. I am concerned that, despite raising no objection, Santos may have been unfairly taken by surprise by reason of the lateness and manner in which the argument was both raised and pursued. My concern is confirmed by my view that, by its closing submissions, Santos does not appear to have directly responded to the argument. That may have been because of a strategic choice made by Santos or it may have been because of the limited time available for the Court to receive closing submissions, a fact that may also explain the failure by Mr Tipakalippa's counsel to further develop the argument in closing oral submissions.
195 Being primarily concerned that I have not, in the end, been as assisted by the submissions of the parties as I might have been, I have considered whether I should reconvene the hearing in order to rectify that problem. I have determined not to do that. In so doing I have been influenced by the fact that there is great urgency in the delivery of my judgment, that to reconvene may substantially delay the delivery of that judgment and furthermore that the determination of this basis for ground 1 is not strictly necessary to be done in order for the Court to grant the relief which I have determined to grant. It seems then that, if the determination of this argument will make a difference, it will only do so on an appeal and where the basis upon which I have already determined that Mr Tipakalippa should obtain relief is shown to be wrong.
196 In that context, if I have erred in determining this argument including because my approach denies a party a proper opportunity to be heard or simply because of the lack of assistance provided to me by the parties, that can be rectified on appeal and done so with the benefit of my reasons.
197 I will turn to deal with the 'failure to consider' error first. Before further detailing that case it is convenient that I set out, in summary, the three contentions made by Santos.
198 Santos relied upon three distinct contentions, the third in the alternative to the second. I note here that the second contention was not raised in the Concise Statement in Response of Santos, was only raised in passing in the opening written submissions of Santos and was then developed in closing submissions. That all occurred without objection. I consider that it was a contention in play and that I should deal with it.
199 Turning to the first contention, by its written closing submissions Santos contended that there was nothing in the material upon which Mr Tipakalippa relied that would have led NOPSEMA to draw the conclusion that all Munupi (or the traditional owners of the Tiwi Islands) were relevant persons. However, by its oral closing submissions, I did not understand Santos to be entirely denying that there was material before the decision-maker which alluded to the traditional owners of the Tiwi Islands being traditional owners of sea country within the EMBA. Santos sought, however, to emphasise two matters in order to say that the reliance placed by Mr Tipakalippa on that material was overstated. First, that some of the sea country material relied upon by Mr Tipakalippa emanates from Appendix C of the Drilling EP which, as stated in its introduction, is dealing with the environment that may be affected by various petroleum activities associated with the Barossa Project and not just the activities the subject of the Drilling EP. Appendix C is based on an EMBA more extensive than the EMBA for the Drilling EP extending to the northern coastline of the Tiwi Islands. Second, the references to sea country made by the material were said to be clearly not confined to sea country that could have been regarded as connected to the traditional owners of the Tiwi Islands.
200 In the end, this response was directed to show that the sea country material relied upon by Mr Tipakalippa was insufficient to have induced in NOPSEMA's mind the idea that the traditional owners of the Tiwi Islands should have been identified by the Drilling EP as relevant persons.
201 The second contention provided by Santos took a different approach to the way the material could have been construed by NOPSEMA. It was a contention which, at least initially, was directed at Mr Tipakalippa's broad case understood by Santos to be trying to establish that the traditional owners of the Tiwi Islands were relevant persons as a matter of objective fact. However, Santos contended that the interests of traditional owners in the sea country within the EMBA to which the Drilling EP referred would have been understood by NOPSEMA as having been treated by the Drilling EP as "communal interests" and not the individual interest of any particular traditional owner. On that basis, it was contended that the Drilling EP would have demonstrated to NOPSEMA that the non-identification of traditional owners of the Tiwi Islands as relevant persons was justified because they individually held no interest that may be affected and that any consultation that may have been required with traditional owners who shared communal interests was effectively done at the right level through a body like the TLC "as a community group which corresponds to the community of interest". Santos contended that the delegate was not required to have expressed findings or to explain the understanding held.
202 Santos accepted that the above reasoning is not articulated in the Drilling EP as a reason for why consultation was not carried out with individual traditional owners. Nevertheless, it contended that this was an important step in the reasoning and was discernible from the Drilling EP and that it was open for NOPSEMA to have so concluded including because traditional owners are not treated by the Drilling EP as "relevant persons individually" for the purposes of consultation.
203 Santos' third contention was put in the alternative to what it characterised as its primary answer being the first contention stated above at [199]. The third contention was essentially that the Drilling EP demonstrated that, to the extent that the traditional owners of the Tiwi Islands were relevant persons, they were consulted because the TLC was consulted as the body with the function of representing the traditional owners of the Tiwi Islands. On this contention, Santos argued that the consultation with the TLC would have been "understood" by NOPSEMA to have constituted consultation in respect of the individual interest of the traditional owners.
204 My consideration of the competing contentions commences with a description of the material in the Drilling EP that Mr Tipakalippa contends was not considered or properly engaged with by NOPSEMA. The description is largely taken from the extracts from the Drilling EP set out in Mr Tipakalippa's written submissions but to some extent those extracts have been enlarged or combined in order to put the extracts in their proper context.
205 The material was collected under two categories, the first category being material which directly refers to traditional owners or their traditional activities or culture and suggests that they may have a "function, interest or activity" which may be affected by the Activity:
(i) Section 3.2.1 of the Drilling EP describing the "[p]hysical environment" says the following: "The key physical characteristics of the [North Marine Region] and [North-west Marine Region] relevant to the EMBA" include "significant sea country for Traditional Owners" (at page 34).
(ii) Within Table 3-10 headed "Socio-economic-related activities that occur or may occur in the operational area and/or environment that may be affected", the entry for "cultural heritage" notes "[u]se of marine resources by Aboriginal and Torres Strait Islander peoples is generally restricted to coastal waters and therefore not expected within the offshore deeper waters of the operational area" (at page 71).
(iii) References are also made to impacts and risks for "traditional" fishers within Table 4-2 which provides the "Relevant person consultation summary" (at page 97, 103 and 109).
(iv) In the summary of the issues raised by the "Environment Centre - NT" (ECNT), Table 4-2 notes that the ECNT raised concerns over "potential environmental impacts and risks of the activities" on "Tiwi Islands Sea Country" and "other areas of marine or terrestrial Aboriginal Cultural significance and/or heritage" (at page 112).
(v) "Vessels may also need to enter marine parks and other areas utilised for tourism, commercial and recreational fishing, and traditional purposes" (at page 220).
(vi) In Table 7-15 titled "Physical and chemical pathways for hydrocarbon exposure and potential impacts to receptors" the entry for the socio-economic receptor "[c]ommercial, recreational and traditional fisheries" says: "[h]ydrocarbons in the water column can have toxic effects on fish…potentially reducing catch rates and rendering fish unsafe for human consumption. Impacts on spawning fish can also result in impacts to commercial fisheries" (at page 276).
(vii) Later within the same part of Table 7-15 the following is noted: "The same negative impacts could also occur to important traditional Indonesian and recreational fish target species (particularly around the banks and shoals of the region, and Ashmore Reef)" (at page 277).
(viii) In Table 7-15 for the receptor of "Indigenous users" the following is noted: "[m]arine resource use by Indigenous people is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. While the MEVA [moderate exposure value area discussed in chapter 7, see eg Figure 7-5] is largely offshore, the potential visible presence of surface oil within the EMBA would be of concern to Indigenous people" (at page 278).
(ix) Table 7-15 notes that the consequences of an oil spill for "indigenous users" would be "similar to the [impacts] discussed" in relation to fish (at pages 267 to 271).
(x) In Table 7-20 titled "Impact, likelihoods and consequence ranking - loss of well control" the entry for "socio-economic receptors" says: "[t]here is potential for temporary disrupt [sic] to fishing activities (traditional, recreational and commercial) due to surface, dissolved or entrained oil. Although only expected in the medium term, the consequence is considered to be Moderate (III) due to the potential significant loss of value to local fishing industries" (at page 294).
(xi) In a section of Appendix C to the Drilling EP discussing Australian Marine parks and specifically the Arafura Marine Park, the following is said: "The sea country of the [Arafura] marine park is part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans. Sea country is valued for Indigenous cultural identity and Indigenous people have been sustainably using and managing their sea country, including that within the Arafura Marine Park, for tens of thousands of years" (on page 111).
(xii) In Appendix C when discussing tourism in the context of the social, economic and cultural features of the environment that may be affected by the Barossa Project the following is said: "Tourism on the mainland of the Tiwi Islands is focussed on fishing, local arts and crafts, and Indigenous cultural tours" (at Appendix C to the Drilling EP on page 119).
(xiii) Appendix C also addresses "Indigenous heritage" in the context of the social, economic and cultural features of the environment that may be affected by the Barossa Project at section 14.5.1 and states (emphasis added):
Aboriginal and Torres Strait Islander peoples have a strong ongoing association with the area that extends from the beginning of human settlement in Australia some 50,000 years ago. The close, long-standing relationship between Aboriginal and Torres Strait Islander peoples and the coastal and marine environments of the area is evident in indigenous culture today. The Aboriginal and Torres Strait Islander peoples of the northwest continue to rely on coastal and marine environments and resources for their cultural identity, health and wellbeing, as well as their domestic and commercial economies (DEWHA, 2008a). Within the EMBA, the Tiwi Islands have a long history of occupancy by Aboriginal and Torres Strait Islander peoples and the marine areas, particularly the Arafura Marine Park, are significant sea country for Aboriginal and Torres Strait Islander peoples.
Marine resource use by Aboriginal and Torres Strait Islander peoples is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. However, while direct use by Aboriginal and Torres Strait Islander peoples [of] deeper offshore waters is limited, many groups continue to have a direct cultural interest in decisions affecting the management of these waters. The cultural connections Aboriginal and Torres Strait Islander peoples maintain with the sea may be affected, for example, by offshore fisheries and industries. In addition, some Indigenous people are involved in commercial activities such as fishing and marine tourism, so have an interest in how these industries are managed in offshore waters with respect to their cultural heritage and commercial interests (DEWHA, 2008a).
A mapping exercise has been undertaken with the Tiwi Island Land Council to identify environmental and socioeconomic values along the Tiwi Islands coastline (ConocoPhillips, 2019). The mapping exercise focused 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 datasets. 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 permit area.
A search of registered Indigenous heritage sites did not identify any specific sites within the Western Australian portion of the EMBA. However, in the Northern Territory portion of the EMBA there are a number of sacred and significant sites located on the Tiwi Islands. There are currently four registered sacred sites on the Tiwi Islands (Aboriginal Areas Protection Authority, 2016). Another 56 sites of significance to Tiwi Islanders have been recorded, including two sites on the NT mainland (Tiwi Land Council, 2003). The Tiwi Islands sites hold importance as they have high spiritual and cultural history value (Tiwi Land Council, 2003).
206 The second category of material was said by Mr Tipakalippa to be material that showed that the Tiwi Islands may be affected by the Activity and from which it could be inferred that the functions, interests and activities of the traditional owners of the Tiwi Islands may be affected:
(i) The distance of the Operational Area from the Tiwi Islands (see eg page 34).
(ii) The TLC being listed as a relevant person in Table 4-1 with the explanation that "[t]heir function is to represent indigenous residents of the Tiwi Islands. They are the nearest Australian mainland island to the operational area" (at page 94).
(iii) The following statements at Appendix C to the Drilling EP on pages 36 and 37:
Tiwi Islands are Aboriginal freehold land owned by the Tiwi Aboriginal Land Trust...The Tiwi Islands, and the small islands nearby, support important nesting sites for marine turtles, internationally significant seabird rookeries, and some major aggregations of migratory shorebirds (DLRM, 2009). The sandy beaches on the Tiwi Islands, specifically the west coast of Bathurst Island and the north coast of Melville Island, are particularly important for marine turtle nesting. Nesting is dominated by flatback and olive ridley turtles (Chatto & Baker, 2008). However, green and hawksbill turtles also nest on the Tiwi Islands. Significant numbers of olive ridley turtles are known to nest on the beaches of Seagull Island and the north-west coast of Melville Island… Five seabird breeding colonies have been reported on small offshore islands surrounding Melville and Bathurst islands (Chatto, 2001) that range in size from two to more than 30,000 birds (Chatto 2001). The colony on Seagull Island, off the north-west tip of Melville Island, supports a breeding BIA of about 60,000 crested terns (Woinarski et al., 2003)… The north coast of the Tiwi Islands is recognised as a key site for the conservation of dugongs (PWSNT, 2003).
(iv) Section 6.2.4 of the Drilling EP the "Environmental impact assessment" notes: "The closest land from which seabirds may fledge is around 138 km (Tiwi Islands), which do not support breeding colonies of wedge-tailed shearwaters, the species most vulnerable to impacts to artificial light" (at page 165).
(v) Figure 3-11 indicating that flatback turtles travel between the Tiwi Islands and the EMBA, reproduced below:
207 Some of the sea country material in the Drilling EP upon which Mr Tipakalippa relied is referred to in chapter 3 and is directed to satisfying the requirement in reg 13(2) and (3) that the Drilling EP include details of relevant values and sensitivities of the environment that may be affected by the Activity and also some from chapter 7 directed at evaluating the impacts and risks appropriate to the nature and scale of each impact and risk arising from the Activity under reg 13(5) and (6). The values and sensitivities with which the material deals are those of or associated with what may broadly be categorised as the sea country of people who are variously referred as "Indigenous" people, "Aboriginal and Torres Strait Islander peoples", "Traditional Owners", "Tiwi Islanders", the "Yuwurrumu members of the Mandilarri-Ilduji, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr clans" (in relation to the Arafura Marine Park).
208 Although it was not characterised as a 'failure to consider' error and essentially dealt with by Mr Tipakalippa' submissions as a basis for a legal unreasonableness error, the essential principle Mr Tipakalippa relies upon is expressed at [109] of One Key and extracted at [67] above, that where a statute vests a power in an administrative decision-maker to do something upon reaching a state of satisfaction and matters the statute requires the decision-maker to take into account are not considered, as a matter of law the requisite state of satisfaction is not reached. Other relevant principles which assist in determining whether or not a matter has been properly considered are sufficiently collected in the observations made in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) and a consideration of those observations in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [45]-[54] (Bromberg, Jackson and Feutrill JJ). I need not set out in full the passages in question, I will, however, refer to those authorities and their summation of the principles as the need arises.
209 My consideration of whether NOPSEMA failed to consider the sea country material is made on the basis that such a conclusion "will not lightly be made", the onus lies on Mr Tipakalippa to establish on the balance of probabilities that the material was not considered: KXXH at [47].
210 The first step in the analysis is whether NOPSEMA was required or bound to consider or engage with the sea country material. The answer to that turns on whether the Regulations so require. As was stated in Plaintiff M1/2021 at [25] "what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content" of the material in question, the "requisite level of engagement - the degree of effort needed by the decision-maker - will vary, amongst other things, according to the length, clarity and degree of relevance of [the material]."
211 There can be little doubt that in relation to a regulatory requirement that NOPSEMA consider whether it is "reasonably satisfied" that an environment plan meets the criteria specified by the Regulations, including relevantly whether the plan "demonstrates" that particular conduct has been carried out, that NOPSEMA is bound to consider the content of the environment plan. Regulation 9A(4) emphasises that requirement by expressly providing that NOPSEMA "must have regard to" information that it has requested from a titleholder and which must be included in a resubmitted plan. However, that does not necessarily entail a requirement that the totality of the material in the environment plan must be considered and engaged with when NOPSEMA assesses the environment plan against each and every particular criteria. The relevant question here is whether NOPSEMA was bound to consider the sea country material in carrying out the universe of relevant persons inquiry.
212 In performing that task, NOPSEMA obviously need not have considered each and every piece of information in the Drilling EP. However, in considering whether the Drilling EP demonstrated that each and every relevant person had been consulted, NOPSEMA was bound to consider material in the Drilling EP which was probative of that consideration. The "requisite level of engagement" with that probative material would then, as was said in Plaintiff M1/2021 at [25] depend, amongst other things, on the "length, clarity and degree of relevance" of the material.
213 The next question is whether the sea country material was probative material on the issue of whether or not the Drilling EP demonstrated that each and every relevant person was consulted. The more probative that it was, the more relevant it was and thus the higher the "requisite level of engagement" would be (Plaintiff M1/2021 at [25]). To my mind the sea country material was probative and relevant for the following reasons.
214 First, by way of a general observation it seems to me that material which is required to be included in an environment plan addressing the values and sensitivities of the environment that may be affected by the activity to be conducted under the plan, is likely to be probative of whether all persons who fall within the description in reg 11A(1)(d) have been properly recognised by the environment plan as relevant persons. That is because material of that kind will likely be revealing of the "functions, interests or activities" of those persons that may be affected by the activity under the environment plan and thus identify those persons as relevant persons.
215 From that observation it may be said that the information required to be provided in an environment plan in order that all values and sensitivities be identified, not only may facilitate but may well have been intended to facilitate NOPSEMA's capacity to properly carry out the universe of relevant persons inquiry.
216 Second, and moving from the general to the particular, the sea country material is probative of whether the Drilling EP demonstrated that each and every relevant person was consulted. For that material to be sufficiently probative does not require that it be sufficient to establish that traditional owners (or some of them) were relevant persons. The sea country material is sufficiently probative because it is of relevance to a fact in issue in the universe of relevant persons inquiry. The material sufficiently suggests the existence of values or sensitivities which may be "functions, interests or activities" of traditional owners that may be affected by the Activity, including the "functions, interests or activities" of the traditional owners of the Tiwi Islands.
217 Its relevance to the universe of relevant persons inquiry goes to the first necessary aspect of that task, which is a consideration of whether the Drilling EP demonstrates that each relevant person who must be consulted was identified or captured by the identification process conducted by Santos. In the context of the list of relevant persons provided by the Drilling EP not including any traditional owners as relevant persons, the sea country material supports the suggestion that the identification process utilised by Santos was inadequate. In particular, because it may have failed to capture traditional owners in respect of their sea country "functions, interests or activities" which may be affected by the Activity, which the sea country material suggests exist.
218 That is the probative nature of the sea country material and it was relevant to the universe of relevant persons inquiry that NOPSEMA was bound to make, at the least to that extent. It follows that NOPSEMA was bound to consider the sea country material at least to the extent of having evaluated and understood the material sufficiently to appreciate its relevance to the inquiry NOPSEMA was bound to undertake. The assessment of the sea country material in terms of what it showed as to whether the Drilling EP demonstrated that each relevant person had been identified and consulted was a matter for NOPSEMA. It is of course possible that NOPSEMA, having appreciated the relevance of the sea country material, came to the view that despite that material, what the Drilling EP had to demonstrate was demonstrated. That assessment was for NOPSEMA to make. The point here is that it had to appreciate the relevance of the sea country material.
219 At this point it is necessary to turn to explain my consideration of the submissions made by Santos. I will commence with the first contention of Santos about the sea country material. As earlier stated I am not sure that the contentions made were properly directed to the 'failure to consider' error. However, I have proceeded on the basis that they are and where necessary, adjusted their focus so as to best capture the response that can be made by Santos to whether the sea country material was actually considered by NOPSEMA on the universe of relevant persons inquiry.
220 I do not consider, as stated above, that Santos ultimately contended that the sea country material had to be capable of leading NOPSEMA to conclude that the traditional owners were relevant persons. If that contention was pressed, it would be wrong for the reasons just stated. The sea country material had to be probative. It did not need to be conclusive to warrant consideration of it by NOPSEMA. I accept the contention of Santos that not all of the sea country material could be construed as relating to the traditional owners of the Tiwi Islands. However, I consider that the material is open to be construed and may fairly be construed as relating to traditional owners including those of the Tiwi Islands, given the express and inferential references made to the Tiwi Islands or their people. Notably, and in relation to the probative nature of the sea country material, Santos itself submitted that:
The Drilling EP therefore both acknowledged and assumed that there was sea country in the EMBA. It acknowledged that indigenous cultural heritage values in sea country could be affected by unplanned activities, being a hydrocarbon release resulting from loss of well control or a marine diesel oil spill from a vessel collision.
221 The second contention made by Santos is also relevant, at least in part. That contention is capable of being understood as saying that, the sea country material would have been understood by NOPSEMA, as only identifying communal and not individual interests of traditional owners in sea country and thus did not sufficiently suggest the existence of a "function, interest or activity" to have made the material probative on the universe of relevant persons inquiry.
222 That contention relies upon a meaning of "function, interest or activity" which is decidedly unattractive. If it had been necessary for me to have rejected it I would have, including because I can see no basis for imposing a limitation on the plain meaning of those words because, something which is a function, interest or activity (within the ordinary meaning of those words), is shared with others, or done collectively, or held in common. Is an interest in land not an "interest" because it is held in common or as a joint tenant? Would an activity (even if "activity" only means a "petroleum activity" or a "greenhouse gas activity" as defined by reg 4 and as Santos contended) not be an "activity" because it was being conducted as a joint venture? Nor was there anything suggested by Santos, peculiar to the sea country functions, interests or activities of Aboriginal or Torres Strait Islander peoples that would suggest some basis for any such limitation.
223 In any event, the question here is not whether the sea country material proved the existence of "functions, interests or activities" within the proper meaning of those terms, but whether the material was probative of a fact relevant to demonstrating that such a "function, interest or activity" existed. The sea country material met that requirement.
224 Given my satisfaction that in conducting the universe of relevant persons inquiry NOPSEMA was bound to consider the sea country material, the next issue is whether it was considered at all and to the extent NOPSEMA was bound to consider it as set out above. In that respect, it is necessary to say something more about what is required to consider material to which a decision-maker is bound to have regard. In Plaintiff M1/2021 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) said:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.
225 As earlier stated, their Honours went on to say that the level of such engagement or the degree of effort required of the decision-maker will vary including by reference to the extent of the relevance of the material to the issue that the decision-maker is to bound to consider.
226 Mr Tipakalippa's contention was premised on NOPSEMA being "on notice" of the sea country material. It is not clear what was meant by that and whether that entails any concession as to the extent to which NOPSEMA had regard to the sea country material in the universe of relevant persons inquiry. If it does, read in context, what is clearly not conceded is that NOPSEMA had an appreciation of the relevance of the sea country material to the inquiry in which it had to be considered. The material to which I will refer, is open to be understood as demonstrating that the delegate had no regard at all to the sea country material in addressing the universe of relevant persons inquiry. However, I have proceeded on the basis that Mr Tipakalippa should fail on this ground unless, at the least, he satisfies me that, in conducting the universe of relevant persons inquiry, NOPSEMA failed to engage with the sea country material sufficiently to have appreciated its relevance to that inquiry.
227 So far as the Reasons, the findings in the Assessment Findings document and the Request for Information outlined above at [123] are addressing that inquiry, they only do so by reference to the content of section 4 of the Drilling EP, if not entirely, then mainly by reference to section 4.2 of the Drilling EP. As the earlier discussion of that material shows (see [127]-[172] above) the question in the universe of relevant persons inquiry, as to whether the Drilling EP demonstrated that each person that should have been identified as a person with whom Santos must consult, was not there considered or answered by looking at circumstances which may be relevant to any particular person or category of persons. NOPSEMA considered and answered that question globally by reference to an acceptance by it that the process or method adopted by Santos to identify relevant persons was "reasonable" or appropriate. Thus, the substantiation in the Reasons at [45] for the finding that relevant persons were identified in the Drilling EP was given on the basis that the Drilling EP "includes a method for identification…consistent with the definition of relevant persons provided by regulation 11A". A conclusion which, given the context, was likely based or substantially based upon the finding discussed at [121] above that:
Section 4.2 details the stakeholder identification process. While the EP still states that the list was refined based on [the] operational area the EP also states that the relevance of the stakeholder according to Regulation 11A of the [Regulations] was also considered during the identification process. The relevant persons consulted appears reasonable and consistent with previous EPs.
228 All of the concerns relevant to that identification process expressed by the assessment team in the findings made by them (which must be taken to have been known to the delegate) are based on global considerations going to the identification process, rather than particular circumstances dealing with particular persons or categories of persons which the Drilling EP may suggest warrant a closer assessment as to whether the process utilised by Santos successfully captured each relevant person.
229 There are two matters then that support the conclusion that, in conducting the universe of relevant persons inquiry, the sea country material was not sufficiently understood and evaluated by NOPSEMA. First, the global and process-focused manner in which the inquiry was conducted suggests that the only information relevantly evaluated was the information in chapter 4 of the Drilling EP and not any information beyond that chapter dealing with circumstances particular or peculiar to a person or category of persons such as that addressed in the sea country material. Second, no reference is made in either the Reasons or the material from which the reasoning process of the delegate may be discerned, that sea country material was evaluated, or considered at all, for the universe of relevant persons inquiry.
230 I accept, as Santos submitted that NOPSEMA was not required to have expressed its findings or to explain the understanding it had about every aspect of its task. It is plainly not necessary for a decision-maker to refer to every piece of evidence and every contention made in its written reasons: KXXH at [52]. Nor does the fact that the decision-maker has not mentioned particular information necessarily mean that it was not considered because the fact that it is not mentioned may simply suggest that the decision-maker considered the information not to be material: KXXH at [54]. However, an inference of that kind need not be made because of the manner in which the statement of reasons is drawn and its surrounding context, for example, because the material is so obviously relevant that it is unthinkable that the decision-maker would not have referred to it if it had actually been considered: KXXH at [54]. Whether the decision-maker has given active consideration to a matter will frequently be a matter of impression reached in the light of all the circumstances of the case: KXXH at [48].
231 The second contention of Santos about NOPSEMA's asserted understanding as to the communal and not individual interests of traditional owners raised by the sea country material and its third contention, put in the alternative, of NOPSEMA's understanding that if any consultation with the traditional owners of the Tiwi Islands was required it was carried out through the email contact with the TLC were, I think, primarily relied upon as understandings that were open for NOPSEMA to have formed on the material before it. However, as a response to a failure to consider error, it is the understanding that it may be inferred NOPSEMA actually held, rather than those it could have held, which matter. Put another way, the lawfulness of NOPSEMA's state of satisfaction must be found in what NOPSEMA, did not that which it could have but did not do.
232 Accordingly, the second and third contentions made by Santos should be relevantly understood as seeking to demonstrate that the absence of any reference to the sea country material in the Reasons and/or the reasoning process of NOPSEMA does not show a failure to evaluate or engage with that material, but is explained by an inference that should be drawn that the sea country material was not regarded by NOPSEMA as of sufficient significance to the universe of relevant persons inquiry. Either because:
(i) the sea country material did not demonstrate the existence of anything that constituted a "function, interest or activity" of any person not included in the Drilling EP as a relevant person because the only suggestion made by the information is of communally held interests and not individual interests; or alternatively
(ii) if the sea country material did allude to a "function, interest or activity" of a traditional owner or owners of the Tiwi Islands it was of no moment because it would not suggest that the Drilling EP did not demonstrate that all relevant persons were not consulted, because the Drilling EP demonstrated that through the contact Santos made with the TLC, the traditional owners of the Tiwi Islands were consulted.
233 To address the second scenario above which refers to the TLC, it is necessary to recall that Table 4-1 in section 4.2 of the Drilling EP identified the TLC as a relevant person, stating that Santos had considered the TLC to be a relevant person under reg 11A(1)(d) and then, in the third column headed "Reason for engagement", stating:
Their function is to represent indigenous residents of the Tiwi Islands. They are the nearest Australian mainland island to the operational area.
234 Additionally, in Table 4-2 headed "Relevant persons consultation summary" the following extract from that table sets out the information provided in relation to the TLC:
Santos contacted TLC via email on 11 June 2021 to offer a briefing on the Barossa Project, including Barossa Development Drilling and Completions EP.
TLC was provided the Barossa Development Drilling and Completions Stakeholder Consultation package via email on 11 June 2021 inviting comment.
TLC was provided a follow-up email on 2 July 2021 inviting comment. Further contact attempts were made via phone. No response raising issues or concerns has been received to date.
TLC receives the Barossa Development Quarterly Consultation Update. The Q2 2021 Update was distributed on 11 June 2021.
Santos considers the level of consultation to be adequate and will address any comments from this stakeholder should they arise in the future.
235 I am not persuaded that I should infer that NOPSEMA proceeded on either of the alternative scenarios described above at [232]. Both scenarios call for speculation rather than the drawing of an available inference.
236 The first scenario is based on NOPSEMA having not just read the sea country material but that NOPSEMA considered it and the issues there raised by it thoroughly and at a relatively high level of sophistication. It is unlikely, in my view, that if NOPSEMA had read the sea country material it would have dismissed the relevance of it and regarded it as of insufficient significance because it only suggested the existence of communal and not individual interests. I am of this view for several reasons. First, the construction of reg 11A(1)(d) upon which this contention relies is novel. It strikes me as more likely based on the ingenuity of counsel in this case than that of NOPSEMA. If it were a construction applied by the delegate, that would likely have only occurred because NOPSEMA had developed a policy and probably done so by reference to legal advice. If there was such a policy it would have, like the evidence shows other constructional approaches to reg 11A(1)(d) adopted by NOPSEMA (see Findings B and the observations made about "NOPSEMA Bulletin #2 Clarifying Statutory Requirement and Good Practice Consultation"), found its way into one of the 13 "Environment plan assessment policies, guidelines and guidance" documents prepared by NOPSEMA and provided to assist the delegate. I do not think it likely that the delegate was aware of the construction in question let alone that the delegate applied it. Second, even if the ingenuity originated with the delegate or the assessment team, it is unlikely that it would have been pursued without comment in the Assessment Findings document; without NOPSEMA having considered information about the nature in which Aboriginal and Torres Strait Islander rights and interests in sea country are held such as might be obtained from an anthropologist (noting that such information is not identified in the section of the Reasons which sets out the key materials considered in making the decision and are not produced as part of the material before the delegate); without a call for further information from Santos; and/or without NOPSEMA seeking legal advice. Third, the approach involves a high level of attention being given to an issue on the consultation criteria not apparent in relation to other issues on the subject of that criteria. Fourth and for the reasons already stated, this approach is inconsistent with the global process-focused approach that the Reasons and the reasoning process shows was taken by NOPSEMA in its performance of the universe of relevant persons inquiry.
237 The second scenario is also premised upon NOPSEMA having appreciated the relevance of the sea country material to the universe of relevant persons inquiry but that NOPSEMA resolved any concern raised by concluding that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands had been consulted. That assumes a significant level of attention having been given to the issue. That assumption is also inconsistent with the global purpose-focussed approach taken by NOPSEMA and inconsistent with what tends to be suggested by the content of the Assessment Findings document which suggests that where concerns were identified they were recorded.
238 Further, the second scenario and the third contention made by Santos to which it relates, fails to notice that if the sea country material had raised with NOPSEMA a concern as to whether the traditional owners of the Tiwi Islands had been consulted, it would likewise have raised a concern about other traditional owners which the material also suggested may not have been consulted.
239 As Santos sought to emphasise for other purposes, the sea country material is not confined in its application to sea country likely to be associated with the traditional owners of the Tiwi Islands. For example, it makes reference to the sea country in the Arafura Marine Park as being part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (see 205 above).
240 There are other references in the Drilling EP beyond those relied upon by Mr Tipakalippa, to sea country of cultural significance to traditional owners being located in the Ashmore Reef Marine Park, Cartier Island Marine Park and Oceanic Shoals. In relation to that, the Drilling EP states that "it is assumed waters of these parks contain significant sea country for Traditional Owners". Maps and other material in the Drilling EP identify that the Arafura Marine Park is to the north of the NT and that each of Ashmore Reef, Cartier Island and Oceanic Shoals are to the north of the Western Australian coast.
241 On the premise upon which this scenario is based, it is likely that NOPSEMA would have had a far wider concern extending not only to traditional owners in the NT but also into Western Australia. Yet that concern was not recorded, no further information was sought by NOPSEMA in relation to it and Santos does not say how it is that the wider concern was able to be resolved in the mind of NOPSEMA on the information contained in the Drilling EP. I appreciate that Santos might say that the references to the Northern Land Council (NLC) in Tables 4-1 and 4-2 (which are relevantly the same as those set out above at [233] and [234] in relation to the TLC, save that the NLC is described as having the function of representing "indigenous people in the Northern Territory") would have been regarded by NOPSEMA as a representative of traditional owners of the NT and that NOPSEMA would likely have regarded the NLC's inclusion as a relevant person as demonstrating that the traditional owners in the NT were consulted. However, the acceptance of that proposition has at least the same difficulties as those confronted by the same argument made in relation to the TLC which I address below. Tellingly, however, it can say nothing about how the issue raised by the sea country material about traditional owners in Western Australia was resolved by NOPSEMA. There is nothing in the material before me which suggests a basis for postulating how NOPSEMA resolved the position of traditional owners outside of the NT.
242 Even if I were to put that problem to one side, the difficulties that remain for the drawing of the inference which Santos asks me to draw are substantial. Beyond those mentioned already there are other reasons why it is unlikely that, in the context of conflicting indications in the Drilling EP and without seeking further information on the issue, NOPSEMA would have resolved the issue raised by the sea country material in relation to the traditional owners of the Tiwi Islands in favour of the conclusion that the Drilling EP demonstrated that those persons were consulted.
243 Before setting out the indications which tend against NOPSEMA having arrived at that conclusion, I should set out the indicator which supports that possibility. I accept that the words in the "Reason for engagement" column in Table 4-1 that say of the TLC that "[t]heir function is to represent indigenous residents of the Tiwi Islands", suggests that the TLC represents traditional owners of the Tiwi Islands in respect of the kind of functions, interests or activities dealt with by reg 11A(1)(d).
244 A large amount of evidence, not before the delegate, was put before me about the functions and activities of the TLC by both Mr Tipakalippa and Santos. Most of that evidence is inadmissible for the reasons I later give. I have presumed without deciding, again for the reasons I later give, that some of that evidence, being environment plans held by NOPSEMA which are closely related to the Drilling EP (related EPs), is admissible. I have not had to determine the admissibility of that material because, in any event, I have not found it to be sufficiently probative of whether or not NOPSEMA came to the conclusion that the traditional owners of the Tiwi Islands were consulted through the contact made by Santos with the TLC. The material would have been probative if I were satisfied that it was likely known and its relevance appreciated by the delegate in respect of this issue. It is again important to appreciate that I am here involved in trying to discern what the delegate actually did not what the delegate should have done.
245 I have also taken into account statutory material relied upon by Mr Tipakalippa which I did not understand to be the subject of any objection, but again, I have not found that material to be particularly helpful.
246 To exemplify my approach, Mr Tipakalippa relied on a Commonwealth Government Gazette dated 4 August 1978 which he asserted made it clear that the statutory remit of the TLC is limited to the boundary within the distance of 5.56 km of the mean low water line of Melville Island and therefore does not intersect with the EMBA or extend to the significant sea country for the traditional owners of the Tiwi Islands. By reference to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and in particular s 23(1)(a) and (c), Mr Tipakalippa contended that the TLC's statutory role is not to act as an agent for the traditional owners of the Tiwi Islands or to make decisions on their behalf.
247 Accepting, without deciding, that those assertions about the law are correct, I am simply not satisfied that they were likely to have been sufficiently known and appreciated by the delegate. I do not consider that, in this context, constructive rather than actual knowledge will suffice.
248 The related EPs contain some information as to whether, as a matter of fact rather than statutory remit, the TLC has provided assistance to the traditional owners of the Tiwi Islands in relation to those of their interests that may be affected by the activities of Santos in the Timor Sea. Those indications tend to go both ways, but ultimately I am not satisfied that they were likely to be sufficiently known and relevantly appreciated by the delegate on this issue, if the delegate did in fact ever address this issue.
249 I consider therefore that, whether or not I can be satisfied that the suggestion raised by the reference to the function of the TLC in the Drilling EP led NOPSEMA to the conclusion propounded by the second scenario, should be determined by the indications provided by the Drilling EP itself. I have done that taking into account but not giving much significance to the fact that there is some material in Appendix C of the Drilling EP which indicates the involvement of the TLC and traditional owners in a mapping exercise conducted for an earlier but related environment plan. The lack of much significance given is again based upon my view that the material was not likely to have been relevantly appreciated by the delegate in conducting the exercise which is here being presumed.
250 The indications to the contrary in the Drilling EP are numerous.
251 First, NOPSEMA is likely, at least prima facie, to have construed the Drilling EP as only intending to say that a person was consulted where the person was named as a relevant person in the Drilling EP. After all, the list in Table 4-1 would likely have been recognised as having the function of expressly listing those persons who were consulted and, by omission, indicating those persons that Santos did not consult.
252 Second, it is also likely that NOPSEMA would have regarded the express identification of a person as a relevant person was done in Table 4-1 because Santos considered that person had to be consulted by reference to that person's own "function, interest or activity" rather than someone else's. In relation to the listing of the TLC in Table 4-1, the word "function" may have been seen as confirmatory of the TLC having been consulted in its own right and by virtue of the function it was seen to have which may be affected by the Activity. So much may have been confirmed by the fact that there are other organisations listed as relevant persons (one of many examples being the Commonwealth Fisheries Association) who may also be presumed to represent others such as their members, but where those members were separately and individually named as relevant persons.
253 Third, there is nothing in the consultation summary in Table 4-2 dealing with the TLC that mentions the traditional owners of the Tiwi Islands, including any contact made by the TLC of anyone else at all in relation to the emails received from Santos. Fourth, the reference made to Santos' satisfaction that the consultation was adequate is naturally to be read as referring to consultation with the TLC and not with others. Fifth, the information there contained to the effect that the TLC was entirely unresponsive despite being contacted on at least three occasions, may also have raised a doubt or concern as to whether the invitation to engage in consultation had actually reached a person who was likely to have regarded the invitation as of relevance to any representative or other function that that person may have.
254 Sixth, the absence of an express representation in the Drilling EP that the traditional owners of the Tiwi Islands were consulted, in the context of NOPSEMA's other recorded concerns in the Assessment Findings document about Table 4-1 of the Drilling EP (Revision 1) not properly identifying relevant persons, is likely in my view to have raised an equivalent concern for NOPSEMA. However, no such concern is recorded. Such a concern would, in my view, have likely been enlarged or confirmed by the other contra-indicators mentioned above.
255 Seventh, I think it unlikely that in the face of that ambiguity, NOPSEMA would not have at the least made a simple inquiry of Santos asking whether the reference made to the TLC in the Drilling EP intended to suggest or demonstrate that Santos had consulted with the traditional owners of the Tiwi Islands.
256 I am not satisfied that, in the absence of such an inquiry of Santos, NOPSEMA would have been satisfied that it had sufficient information to conclude that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands had been consulted by reason of the consultation asserted to have taken place with the TLC. The extensive power NOPSEMA has to seek further information (reg 9A) as well as its capacity to not accept but not reject an environment plan pending the receipt of information necessary to form the satisfaction that the Regulations require (reg 10(4)), as well as NOPSEMA's preparedness to use that power where in relation to the Drilling EP it came to a view that the information provided was insufficient, strongly support that view.
257 In conclusion, neither of the two scenarios just considered assist to explain away the absence of any record which either demonstrates or even suggests that the relevance of the sea country material was appreciated by NOPSEMA on the universe of relevant persons inquiry it was bound to conduct. The absence of any such record, together with the evidence of the global, process-focussed approach taken to that inquiry, sufficiently satisfies me that the sea country material that NOPSEMA was bound to consider was not considered. That conclusion has not been lightly made. To some extent, it is based on impression but fundamentally, the conclusion is based on an orthodox analysis as to what the correct inference to be drawn is regarding what NOPSEMA did or failed to do.
258 As was stated by a majority of the High Court in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) a misconception as to what the exercise of statutory power entails is a jurisdictional error (see further One Key at [110]). Here, NOPSEMA's statutory task was to conduct the universe of relevant persons inquiry by reference to all the material in the Drilling EP which was probative to that inquiry. The above analysis does not merely demonstrate that NOPSEMA missed a piece or two of probative information in circumstances where NOPSEMA well understood that in the performance of that task it was required to consider information of that kind. It tends to demonstrate a misconception by NOPSEMA of what that task required. Accordingly, if it had been necessary to decide this aspect of ground 1, I would have decided it in Mr Tipakalippa's favour.
259 I should add two things. First, insofar as Santos contended that because the Drilling EP demonstrated that the TLC was consulted, the delegate must be taken to have been satisfied that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands were consulted, that contention must also be based upon NOPSEMA having concluded that the TLC was an appropriate person to consult with in order to consult with the traditional owners of the TLC. I reject that proposition for the same reasons I have just rejected the basis for it.
260 Second, it has not been necessary for me to decide the "TCL/NLC representative basis" nor the "inadequate consultation basis" of Mr Tipakalippa's narrow case. Each was only pressed in the alternative to that part of the narrow case on which Mr Tipakalippa succeeds.
261 I should say very briefly in relation to the "inadequate consultation basis" that the manner in which Mr Tipakalippa put his case on that issue, precluded a proper consideration of it. The genesis of Mr Tipakalippa's complaint was that NOPSEMA could not have been reasonably satisfied that the information in standard form in the "consultation package" provided to the TLC (see Annexure 2 to these reasons) could constitute consultation with the TLC and the traditional owners of the Tiwi Islands. That was said to be so because there was not sufficient information there provided to enable the TLC to make an informed assessment of the possible consequences of the Activity on the functions, interests or activities of the Tiwi people.
262 That complaint was based on the information not including a map of the EMBA. It was further said that the information did not include any reference to the fact that the drilling activities were to be undertaken in "significant sea country" for traditional owners and Aboriginal and Torres Strait Islander peoples, nor that it provided any information about the nature of what sea-bed drilling involves, the impact of that drilling on sea country, the impact on sea country of a potential spill, or the potential effect on the traditional owners of the Tiwi Islands.
263 However, in order to make an assessment of whether NOPSEMA could not have been reasonably satisfied that the information was sufficiently informative in accordance with reg 11A(2), it would be necessary to know on this alternative case, specifically what it is that I should presume as to what NOPSEMA knew of the nature and extent of the functions, interests or activities of the traditional owners of the Tiwi Islands and how those interests may be affected. If, for instance, NOPSEMA should be presumed to know that the drilling activities "were to be undertaken in significant sea country" of the traditional owners of the Tiwi Islands, as Mr Tipakalippa's submissions seems to suggest, NOPSEMA may have reasonably concluded that it was sufficient for the information to have identified the area of the sea in which the drilling was to take place, making the inclusion of a map of the EMBA unnecessary for the purpose of informing those traditional owners that their interests or activities may be affected.