The EDO has been ordered to pay Santos’ $9m legal bill

The federal court has ordered a green group to pay a small fortune for delaying construction of a gas pipeline. Read what happened.

The Environmental Defenders Office has been ordered to pay gas and petroleum company Santos more than $9m for its part in disrupting the Barossa gas project development.

The Federal Court on Thursday ordered the EDO pay Santos $9,042,093.05 which is 100 per cent of the company’s legal costs defending Barossa through the courts.

Legal delays undertaken by the EDO in conjunction with Tiwi Island traditional owners and University of WA academic Dr Mick O’Leary delayed the project by 12-months and, according to Santos chief executive Kevin Gallagher, increased costs by about $1bn.

The order came after the EDO volunteered to pay Santos’ costs for the proceedings.

Santos did not seek damages from the Aboriginal and Tiwi Islander applicants including elder Simon Munkara, involved in the legal push to stop construction of the 262km sub-sea pipeline which ran about 7km past the Tiwi Islands coast.

Santos chief executive Kevin Gallagher. Picture - Supplied

Instead, Santos sought information relating to the funding of the proceedings from the EDO and other third parties opposed to the Barossa.

Santos released a statement on Thursday detailing how the EDO’s legal action came unstuck.

It said proceedings commenced on October 30, 2023, two days before pipeline construction was due to start and three-and-a-half years after the pipeline plan had been approved and made public by NOPSEMA, the offshore petroleum regulator.

“It was alleged that the pipeline would disturb the travels of a rainbow serpent known as Ampiji and an ancestral being known as the Crocodile Man,” Santos said.

“It was also alleged that the sea floor, where the pipeline was to be laid, may contain evidence of human occupation, including burial sites, from tens of thousands of years ago when the seabed was subaerially exposed, before sea levels rose.

“The Applicants relied on evidence from several experts who were engaged by the EDO, including Dr Mick O’Leary, Associate Professor in Climate Geoscience at the University of Western Australia.”

UWA Marine Geoscientist Mick O'Leary

Santos said before proceedings began Dr O’Leary and the EDO were involved in a “cultural mapping” exercise that led to an adapted account which was said to involve a “reinterpretation” of traditional cultural beliefs “through a western scientific lens”.

“The outcome was a narrative that the pipeline would separate Tiwi Islanders from Ampiji, that Ampiji would be disturbed by the pipeline and that the spiritual connection of Tiwi Islanders with sea country through which the pipeline passed would therefore be damaged,” the company said.

The federal court found Antonia Burke liaised with Dr Mick O’Leary.

In January, federal court judge Natalie Charlesworth excoriated Dr O’Leary’s evidence saying

“I have concluded that the cultural mapping exercise and the related opinions expressed about it are so lacking in integrity that no weight can be placed on them,” Justice Charlesworth said.

“ … my concerns about Dr O’Leary’s independence and credibility are such that I would not accept his evidence as sufficient to establish any scientific proposition at all, even if his evidence had gone unchallenged and even if he possessed the appropriate skills, qualification and experience to express them.

“My conclusions about Dr O’Leary’s lack of regard for the truth, lack of independence and lack of scientific rigor are sufficient to discount or dismiss all of his reports for all purposes.”

In its statement Santos said Dr O’Leary collaborated with Stop Barossa Campaign activist Antonia Burke in the cultural mapping exercise and that Ms Burke was engaged by the EDO as a paid consultant in the action against Santos.

“The clear, advertised objective of the Stop Barossa Gas campaign was to disrupt, delay and potentially shut down the Barossa Gas Project, thereby causing economic harm to the Barossa joint venture partners and to participants in the Darwin LNG joint venture.”

Comment has been sought from the EDO.