Environmental Defender’s Office expert must hand over emails with EDO after failed Santos case

The Federal Court has ordered the Environmental Defender’s Office to hand over communications with its discredited academic witness, in another blow in the ongoing fallout from its failed litigation against the Barossa pipeline.

Protesters gathered at the front of the Federal Court Of Australia in November 2022 in Melbourne Picture: Getty Images

The Environmental Defender’s Office has suffered another blow in the ongoing fallout from its failed litigation against Santos’ 262km Barossa pipeline, after the Federal Court ordered it to hand over communications with its discredited academic witness, Michael O’Leary.

Federal Court judge Natalie Charlesworth also ruled the EDO must hand over some communications it had with climate activist groups including Sunrise Movement, Jubilee Australia and the Environmental Centre Northern Territory as Santos pursues damages for the months-long delays caused to its $5.7bn gas pipeline.

But it was possible some of the communications would be shielded by legal professional privilege.

After Justice Charlesworth savaged the EDO’s case to stop plans to develop the pipeline near the Tiwi Islands over allegations it would cause irreparable damage to First Nations people and their sites, the gas giant asked the court to allow it to issue subpoenas to the environmental groups and Dr O’Leary in a bid to recover costs.

Following a request from Santos to obtain some of the EDO’s correspondence with Dr O’Leary in June, Justice Charlesworth on Thursday again ruled in favour of the gas giant.

Michael Coombes a member of the Munupi clan from the Tiwi Islands. Picture: Getty Images.

In its pursuit of costs, Santos claimed the EDO was “itself an activist organisation and not merely the lawyer for the applicants in the proceeding”, Justice Charlesworth said. “The outcome sought by the applicants in the proceeding aligned with its own political or ideological objectives.”

Rejecting the EDO’s arguments against Santos’s bid to issue the subpoenas, the judge said the evidence was not “merely that EDO lawyers happened to hold a publicly stated opinion that the pipeline was undesirable”.

“The evidence indicates … (the) EDO was acting both in a lawyer-client relationship with the applicants whilst in the same period engaging in activities in its own name and right as a campaigner to stop the pipeline,” she said.

“The argument to be advanced by Santos on the costs application (as I presently understand it) is that the litigation was conducted by (the) EDO as part of its own strategy to achieve the objectives of that campaign, funded in part by it for that reason and conducted unreasonably in order to achieve that objective.”

That allegation was “pitched tentatively” by Santos, Justice Charlesworth said.

Separately, Justice Charlesworth said, in fresh material before her it appeared Dr O’Leary might have helped prepare “sea country narratives” used as evidence.

“It remains that (the) EDO and Dr O’Leary himself represented those narratives as being in the nature of factual assumptions upon which he relied,” she said.

“There is some basis for a concern … that Dr O’Leary, with the knowledge of EDO lawyers, had a hand in the creation of the very assumptions about traditional stories that he found remarkably coincided with features on his submerged sea floor maps.”

The Barossa underwater pipeline.

The EDO represented traditional owner Simon Munkara in its original case, launched late last year. The blockbuster matter was brought on with great urgency by the EDO in October, and it won an initial court order to suspend work on the pipeline in the Timor Sea while the case played out.

Traditional owners alleged they were not consulted properly about plans to build the pipeline, and alleged its work would damage sacred underwater sites.

In her original judgment in favour of Santos in January, Justice Charlesworth heavily criticised the EDO’s evidence.

“I have drawn conclusions about the lack of integrity in some aspects of the cultural mapping exercise, which undermined my confidence in the whole of it,” she said.

She also said the EDO’s actions amounted to coaching of Indigenous witnesses and “confection”.

Justice Charlesworth slammed the evidence of Dr O’Leary, a University of Western Australia associate professor. “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,” she said.

Santos declined to comment.