The legal net zero swamp that is sucking ING and Citigroup down under

An ugly scandal down under is increasingly becoming a legal headache for some of the biggest names in finance, as they are tied to an oil and gas giant in a controversial gas project, thereby pitching them directly against Australia's indigenous community, environmentalists, a range of politicians and policymakers and, perhaps most striking, many of their own shareholders.

The reason: the much-talked about Barossa project, worth an estimated $6.2bn.

Analysts, investors and other finance players look on in disbelief how banking giants like Citigroup, ING, Westpac and RBC are rapidly dragged into an increasingly hard-to-explain environmental human rights scandal that feels very much like the 1980s.

Moreover, some of decisions by the finance houses in recent months seem to be in direct conflict with their own green policies and, perhaps even more importantly, the overall direction and strategy their shareholders like to see.

The latest Barossa twist

Earlier this week, traditional indigenous owners from Australia’s Tiwi Islands and Larrakia country, the country's far north, filed legal complaints against 23 banks over their support for Barossa, a new multi-billion-dollar gas project by oil and gas giant Santos, citing a threat to their environment and beliefs.

The banks that have now been sucked into this legal saga, which is increasingly becoming a PR disaster to many, are some of the biggest names out there.

Financial institutions that are involved include Citigroup, ING, Royal Bank of Canada (RBC), the Australia and New Zealand Banking Group (ANZ), Westpac, National Australia Bank (NAB), DNB, DBS Bank, Mitsubishi UFJ Financial Group (MUFG), Sumitomo Mitsui Banking Corporation (SMBC) and Mizuho.

$1bn loan

In August of last year, Tiwi traditional owners urged the Federal Court of Australia to share their view there had been a lack of appropriate consultation from Santos. 

As a result, in September, the firm was compelled to halt drilling after the environmental approval by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) for the permit was deemed invalid.

But while Australian indigenous owners were battling in court, banks across Europe, Asia and North America were quick to size up a $1bn syndicate loan to Santos and its project, which eyes up to eight wells off the Northern Territory, in the Timor Sea.

“Days later, the loan was finalised,” Vidhya Karnamadakala, associate at Equity Generation Lawyers, explained. “The banks had shown an abject lack of respect and disregarded their own policies."

Responses from the finance space

Complainants demand that banks pull out of the loan and rule out any new ones, whether for the Barossa project or the 20-year extension of Santos-operated Darwin LNG (liquefied natural gas) plant.

“Although Santos is indeed a client of ING, we are not directly involved in financing the projects mentioned,” Daan Wentholt, press officer for the Dutch banking group, told Net Zero Investor.

“ING respects and upholds the international human rights described in the Universal Declaration on Human Rights.”

Wentholt argued that the position of Indigenous people was explicitly included in the firm’s due diligence process, which shows that ING assesses the environmental and social risks (ESR) related to specific transactions.

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As such, the company is generally alerted by the lack of social dialogue or corporate community consent policy, by projects taking place on territories with unresolved land claims or where national laws do not protect the rights of Indigenous people.

The Dutch banking giant plans to respond to the complainants by May 16, Wentholt revealed.

Further east, a spokesperson for ANZ wrote to Net Zero Investor that the Australian multinational “will consider the matter in line with the processes under our Human Rights Grievance Mechanism." 

He explained this was introduced in 2021 to encourage responsible business conduct in a bid to resolve, among others, complaints by affected communities about adverse human rights impacts.

In Australia, a NAB spokesperson confirmed the bank had received the complaint and was “working through its contents.”

When approached by Net Zero Investor, Citigroup and Mizuho declined to comment. Other banks were not immediately available to respond.

A number of export credit agencies, including Export-Import Bank of Korea (KEXIM), Korea Trade Insurance Corporation (K-SURE) and Japan Bank for International Cooperation (JBIC), have also been urged to cease acting as a joint venture partner in Barossa.

Higher costs, higher risks

The protection of Indigenous heritage started making headlines in earnest in 2020, when Anglo-Australian mining giant Rio Tinto legally blasted two 46,000-year-old rock shelters at Juukan Gorge to access higher grade iron ore, on the land of the Puutu Kunti Kurrama and Pinikura people in Western Australia’s Pilbara region, sparking regional and global outrage.

For the Institute for Energy Economics and Financial Analysis (IEEFA), the banks financing the Barossa project are facing increasing financial risks.

“Barossa is currently without a licence to drill for gas,” IEEFA claimed, as Santos’ appeal to resume drilling on arguments that Tiwi Islanders did not need to be consulted were dismissed in December.

Moreover, a gas and mining strategist at the Environment Centre Northern Territory (NT), Naish Gawen, called the project “a polluting carbon bomb." 

“With the world transitioning away from fossil fuels, Barossa just doesn’t make sense financially.”

Emissions targets

As Australia recently pledged to cut emissions to 43% below 2005 levels by the end of the decade, the Barossa and carbon capture and storage (CCS) plans will have to start at the same time, the IEEFA added, which implies higher costs. 

“The CCS project is unlikely to be viable as it is too far from the gas field and too emissions intensive,” it explained. “Barossa is a deeply distressed project.”

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Santos is now revising its environment plan (EP) for submission to NOPSEMA, Australia's federal offshore regulator, which could take between five and 18 months, the IEEFA said in a report last year, citing Credit Suisse.

The institute also reminded that the Barossa project, which the Australian company is developing jointly with Korean LNG group SK E&S and Japan’s energy firm JERA, had previously planned to produce LNG years prior to starting its CCS project at the Bayu-Undan gas field.

“It will now have to turn its business case on its head.”

Legal swamp

As underlined by the Australian Federal Court last year, watchdog NOPSEMA should have ensured that Santos had consulted with all relevant parties before accepting the project proposal in 2018.

The oil and gas giant stressed in a statement in December it had consulted with traditional owners and their representative bodies since 2016 “and will continue to do so, taking into account the guidance provided by the court.”

In the same way, international banks cannot fund Barossa without the consent of the traditional owners and the Tiwi communities, Karnamadakala noted. 

“In using the banks’ grievance mechanisms to raise this complaint, our clients are asking the banks to fulfil their human rights commitments and listen to the Tiwi people. Otherwise, their human rights policies are just window dressing.”

“Banks, investors and gas corporations are all facing a reckoning with the fact that you can’t just rush ahead with fossil fuel projects,” Gawen flagged.

This case could open the door to a new standard for players looking to develop offshore oil and gas projects on indigenous lands, with more appeals against accepted plans from owners and clans that were not properly consulted beforehand.

For example, the case may impact other projects that are currently in development, such as Woodside Energy’s $12bn Scarborough gas field development and its linked Pluto LNG plant expansion plans, off the coast of Western Australia.

It is likely they could be slowed down despite a planned 2026 target for its first LNG cargo.

Santos, however, explained in December it did not see any material cost or impact on its schedule from the court decision; the first gas should be exported from 2025 to customers in Japan and South Korea, two of Australia’s largest trading partners for gas.

Meanwhile, Pirrawayingi Puruntatameri, mayor of the Tiwi Islands and Munupi clan senior elder to conclude: “It’s all come together. It’s having a domino effect. It affects everything including climate change.”

His firm warning was carried all over Australian media and was undoubtedly seen in many bank board rooms around the world. “If we do not love the world, there will be consequences. Earthquakes, volcanoes, tsunamis.”

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