Santos affidavit exposes ‘expert’ talks used in attempted block of $5.7bn Barossa LNG project

An affidavit presented by Santos offers a glimpse into what it found in the communications by the Environmental Defenders Office which attempted to block the Barossa LNG development.

The Environmental Defenders Office held discussions with what became its independent expert on its failed bid to block Santos’s $5.7bn Barossa LNG project months ahead of lodging the claim with the Federal Court, the oil and gas company revealed in an affidavit.

The revelations are the first indications of Santos’s discoveries as it works through the communications of the EDO, a case that has captured widespread attention amid efforts by the energy giant to reveal the financial backers of the failed blocking bid.

The EDO was the legal counsel for Tiwi Islander Simon Munkara, who had sought an injunction against the gas giant’s plan to develop a 262km pipeline for new LNG wells in waters off the Northern Territory, arguing it would ­irreparably damage cultural associations with the sea.

Santos in November 2023 was temporarily blocked from pipeline works, although the affidavit lodged by Santos showed the EDO had talks with Dr Michael O’Leary in 2022.

The claim relied heavily on evidence of indigenous cultural heritage and beliefs, and the EDO used Dr O’Leary, who was eventually heavily criticised by Federal Court Justice Natalie Charlesworth when she rejected the application.

The court heard how lawyers drew a horizontal line on a map, the purpose of which was to show where Ampiji – an ancestral “rainbow serpent” – entered the sea and travelled a path traversed by the proposed pipeline route. By drawing the line, the risk of harm to the Tiwi Islanders was inflated, the court eventually ruled.

Justice Charlesworth said the practice amounted to “distorting and misrepresenting what the Indigenous informant had said”, and the affidavit cast further light on the practice of Dr O’Leary.

In one exchange, Dr O’Leary accepts he was struggling to find supporting evidence and had begun using Google Scholar.

“The challenge I am having is finding the appropriate references to support my responses, Google Scholar is my friend,” Dr O’Leary wrote.

Dr O’Leary was contacted for comment on Tuesday.

The revelations are the first details presented by Santos although it appears the company is still searching for clues about who funded the EDO.

The Environmental Defenders Office has handed over tens of thousands of pieces of communication after Santos secured a court order, but it has yet to reveal who it deems financially liable for the failed case.

A spokeswoman for Santos declined to comment, while a representative for the EDO was also not immediately available.

Interest has been heightened after the EDO offered to pay Santos’s costs. As legal counsel, the EDO would not typically be held financially responsible, a signal to some observers that the legal group is looking to close the case and prevent the identities of financial backers coming to light.

A hearing last week determined the EDO would pay Santos’ cost on an indemnity basis. During arguments, lawyers for Santos said its legal fees for the case were about $7m. Santos have pushed for nearly all of legal costs to be repaid, arguing the conduct of the EDO means it deserves no discount.

Typically, costs are paid in the range of 60 per cent, and should the court rule that the EDO is liable for approximately $7m then that would raise concerns about the viability of the legal group.

The matter will return to court later this month but it is not clear when Justice Charlesworth will rule on how much the EDO must pay.

Still, Santos’s aggressive pushback appears to have altered the legal landscape.

Earlier this year, in an unrelated case, the Australian Conservation Foundation dropped its legal bid to block Woodside’s $16.5bn Scarborough LNG project in Western Australia. In 2022, the ACF asked the Federal Court to order a suspension of work on the project until an assessment was made about its potential effect on the Great Barrier Reef.

Originally published as Santos affidavit exposes ‘expert’ talks used in attempted block of $5.7bn Barossa LNG project