A Federal Court judge has raised concerns about the Environmental Defenders Office in an almost 300-page judgement over the $U4.7 billion Barossa gas project pipeline.
A Federal Court judge has raised concerns about the Environmental Defenders Office in an almost 300-page judgement over the $U4.7 billion Barossa gas project pipeline.
The Federal Court today lifted the injunction over Santos’s Barossa gas project pipeline works, which includes 262 kilometres of pipe to be constructed in the Timor Sea.
The decision was a blow to the applicant, Tiwi Islander Simon Munkara, who alleged the pipeline would impact the Tiwi Islands’ cultural heritage and connection with the area.
Mr Munkara was represented by the Environmental Defenders Office, an organisation that has represented other Indigenous groups in legal actions to stop major oil and gas projects.
In her 294-page judgment delivered today, Federal Court judge Natalie Charlesworth had concerns on the actions of the EDO lawyers but fell short of accusing the organisation of pursuing its own agenda and not genuinely acting for its clients.
“I understood Santos to allege that the EDO was an actor in the factual landscape because of the conduct of the EDO lawyer at the [meeting] and the June [workshop]. Santos was correct in that respect,” she said.
“But I make it clear that I have not entertained any submission that EDO lawyers were the principal proponent of this action pursuing an ideological agenda.”
Justice Charlesworth made reference to the cultural mapping process held through meetings between EDO lawyers, Tiwi traditional owners, and experts including School of Earth Sciences associate professor Mick O'Leary.
“There are two aspects of the video evidence giving rise to further concerns about the integrity of the cultural mapping process,” she said in her judgment.
“Most concerningly, I consider that video thirty-nine depicts what could only be described as the EDO lawyer drawing on the map in a way that could not on any reasonable view truthfully reflect what the Tiwi informant had said.
“The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this court via an expert report, and I so find."
Experts
In her judgment, Justice Charlesworth said she had concerns on the independence of experts who assisted EDO during the cultural mapping process after watching the videotaped meetings between Tiwi Islanders and Dr O’Leary.
According to the judgment, a Tiwi Islander became more engaged to do the cultural mapping process after Dr O'Leary told an anecdote of his previous work on Woodside's Scarborough project map that prompted an Aboriginal elder to recognise a kangaroo Dreaming story.
However, the judgment said Dr O’Leary had since admitted his words were not true and regretted that the anecdote about his previous work implied the cultural map helped stop work on Woodside's project.
Justice Charlesworth said the untrue statement could only have been used to coach the Tiwi Islanders about what to say, to stop the Barossa pipeline.
“That is a startling admission. Not only is it damaging to Dr O’Leary’s credit, it causes me to doubt his understanding of the obligations of an expert to remain impartial,” she said in her judgment.
“No other reasonable inference is available.
“Dr O’Leary’s admission was freely volunteered, such that he did not lie to the court. But he did lie to the Tiwi Islanders, and I find that he did so because he wanted his 'cultural mapping' exercise to be used in a way that would stop the pipeline.
“It is conduct far flung from proper scientific method, and falls short of an expert’s obligation to this court.”
Justice Charlesworth described, in her judgment, the statements made by the Tiwi Islanders as EDO synthesised narratives.
“I am concerned that each narrative is no more than a mosaic formed from snippets of sentences said by separate informants, arranged together so as to be presented as a coherent singular narrative shared collectively by Tiwi Islanders or at least a sub-community of more than one of them,” she said.
“The video evidence of the cultural mapping exercise does assuage that concern.
“A part of that narrative appears to be based on the EDO lawyer’s own horizontal line drawn on the map, distorting and misrepresenting what the Indigenous informant had said.”
A non-government organisation, the EDO is the recipient of funding from government departments in the ACT, Western Australia, NSW, Queensland and the Northern Territory, and recently had federal government funding reinstated after a 10-year hiatus.
As well as its ongoing involvement in the case against Santos's approvals on cultural heritage grounds, EDO was recently involved in legal action against seismic testing by Woodside, after which the Federal Court overturned a conditional regulatory approval granted to the LNG producer for seismic testing at its Scarborough project.
Santos boss Kevin Gallagher warned on 'legal activism' at the company's investor day late last year, while Premier Roger Cook spoke out on environmental activists "splitting Aboriginal groups" to progress their own agendas: commentary deemed by some media to be a swipe at organisations including the EDO.
