By Nick Toscano
Australia’s biggest climate-focused legal service will pay more than $9 million to oil and gas giant Santos after a court rejected its attempt to block an offshore pipeline near the Tiwi Islands and found it had coached Indigenous witnesses.
The Environmental Defenders Office (EDO) took ASX-listed Santos to court last year on behalf of a group of Tiwi Island traditional owners, winning an emergency injunction that forced the company to suspend imminent plans to lay a 262-kilometre pipeline.
Santos has suggested delays to the Barossa project could cost $456 million.
EDO lawyers had argued that the pipeline’s proposed route risked damaging Tiwi Islanders’ underwater cultural heritage and interfering with the travels of two creatures of their Dreaming stories – the rainbow serpent Ampiji and the Crocodile Man.
However, Federal Court judge Natalie Charlesworth lifted the injunction in January, and issued a scathing ruling finding some evidence presented by the EDO had involved “confection”. She found that the organisation had subtly coached Indigenous witnesses who were providing evidence about the pipeline’s potential impacts.
In one instance, the judgment criticised evidence based on a “cultural mapping” exercise as “so lacking in integrity that no weight can be placed” on it.
The court’s ruling on Thursday for the EDO to pay all of Santos’ legal costs in the failed case – $9,042,093 – on an indemnity basis and without any discount will come as a significant financial blow to the group, which is jointly funded by philanthropists and state and federal governments.
Opposition Leader Peter Dutton has vowed to strip the organisation of federal funding if he wins the next election.
The judgment comes amid rising concerns in the oil and gas sector that consultation requirements for offshore energy projects are open to exploitation by environmental lawyers intent on halting the production of fossil fuels that generate heat-trapping greenhouse gas emissions.
Ambiguity in legislation regarding consultation had previously forced temporary suspension orders for Santos at Barossa, and at Woodside’s Scarborough gas project off the coast of Western Australia.
The national oil and gas industry association on Thursday said it was now “beyond any doubt” that the EDO was more interested in legal activism than representing the interests of traditional owners.
“It is unacceptable that the EDO continues to receive $2 million a year in taxpayer funds from the federal government to disrupt and delay critical energy projects and put Australia’s economic and energy security at risk,” Australian Energy Producers chief executive Samantha McCulloch said.
In a statement on Thursday, EDO chief executive David Morris said the organisation had agreed to resolve the claim following talks with its insurer and consideration of the best interests of its clients and staff.
“Throughout this matter, EDO has diligently adhered to client instructions,” he said. “We have also treated the court’s findings with the utmost seriousness.”
The EDO had been providing crucial public-interest legal services for nearly 40 years, with a “formidable” track record of success, Morris added.
“We look forward to continuing to provide public interest legal support to communities fighting to keep the climate safe, defend cultural heritage and protect the species and places they love,” he said.
“Our role has never been more critical.”
In her judgment in January, Justice Charlesworth criticised some of the EDO’s key expert witnesses, including University of Western Australia marine geoscientist Michael O’Leary, who had conducted what she described as the “problematic” cultural mapping exercise with a group of Tiwi Islander traditional owners.
O’Leary had wanted his mapping exercise to be “used in a way that would stop the pipeline”, she found. “It is conduct far-flung from proper scientific method, and falls short of an expert’s obligation to the court,” she said.
“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.”
Documents released by the court in October this year outline a range of conversations between O’Leary, the EDO and some of the people involved in the anti-Santos campaign.
Emails show O’Leary sent the EDO his preliminary report in December 2022, saying “I hope it meets your expectations”.
“Feel free to comment or edit if you have the time,” he wrote.
Following the cultural mapping workshop, he also exchanged text messages with one of the leaders of the “Stop Barossa Gas” group about how best to present an Ice Age map of the region.
In a statement on Thursday, Santos said it had not sought costs from the Aboriginal and Tiwi Islander applicants in the proceedings.
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