Judgment day for activist lawyers

By rejecting a bid to stop a $5.3bn export LNG project on the basis of trumped-up cultural heritage objections, Federal Court judge Natalie Charlesworth has done the nation a significant service. Her judgment lays bare the corruption of the scientific process to exploit Indigenous landholders for ideological ends, all on the taxpayer dime. In a stinging judgment on Monday, Justice Charlesworth let the world know Australian courts are still interested in facts and evidence over confected mischief served up as Dreamtime heritage.

The case against Santos was mischievous, slowed down the offshore Barossa LNG project and risked making investors think twice about putting their money into Australian resource projects. It seems that for activists, who may still appeal the decision, the argument was always more about stopping fossil fuels than protecting the tranquillity of a mythical crocodile man and rainbow serpent.

The brevity of the challenge to Santos raises important questions, not least of which is why are activist groups allowed to double-dip on the public purse to prosecute their frustrations. The Environmental Defenders Office is running actions against more than $16bn worth of projects in pending litigation. The EDO is now in receipt of $10m a year in taxpayer funding after the Albanese government overturned a decision by the Abbott government to turn off the money tap in 2013. High-profile cases being run by the EDO inevitably are being taken by big environment groups including the Australian Conservation Foundation and Greenpeace, which are already entitled to collect tax-deductible donations to run any cases is they wish.

The ACF has used the EDO to bring a case against Woodside in a bid to stop the $16.5bn Scarborough offshore gas field on the basis the project will emit 1.37 billion tonnes of greenhouse gas emissions over 25 years, which would negatively impact the Great Barrier Reef and result in coral bleaching. The Scarborough field is located 350km off the West Australian coast on the opposite side of the continent to the GBR. The action is the latest in a string of claims against projects based on future emissions that have so far been unsuccessful. This is why the environment movement is pushing hard to have a climate trigger inserted into a redrawn Environmental Protection and Biodiversity Act. The EDO is also representing Greenpeace in a matter alleging Woodside misled consumers about the climate harm of its gas and oil projects, and is representing the Australasian Centre for Corporate Responsibility in a case accusing Santos of greenwashing.

Former Labor MP Joel Fitzgibbon is right to call on the EDO to make public its list of donors and for the federal government to strip its funding for the EDO on the basis that legal aid for activists was “hurting” the Australian economy. But it is also fair to argue that everyone is entitled to their day in court and Justice Charlesworth has shown the judiciary is up to the task of rejecting spurious claims. The biggest question from the Santos judgment is for academia. The judgment was scathing of the involvement of academic research calculated to frustrate the fossil fuel project. It said academic Mick O’Leary had lied to Tiwi Islanders because he wanted his “cultural mapping” exercise to be used in a way that would stop the pipeline. Dr O’Leary is an associate professor at the School of Earth Sciences at the University of Western Australia’s Oceans Institute. He holds a PhD in Marine Sciences (James Cook University). His evidence was rejected by Justice Charlesworth as “conduct far flung from the proper scientific method, and falls short of an expert’s obligation to this court”.

“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,” Justice Charlesworth said. “My conclusions about Dr O’Leary’s lack of regard for the truth, lack of independence and lack of scientific rigour are sufficient to discount or dismiss all of his reports for all purposes.” Scientist Peter Ridd says the judgment is further evidence for why scientific claims should be put through a more rigorous appraisal than happens at present.

Justice Charlesworth is certain the Santos pipeline will not stir the spirits of the crocodile man or rainbow serpent in the waters off the Tiwi Islands. But her judgment must bring to action a much-needed challenge to the hogwash being deployed in the name of science to further the ideological aims of activists against the economic best interests of the nation.