The not-for-profit group that has led legal challenges to resource projects has suffered a crushing blow after it was ordered to pay $9 million in legal costs to Santos.
The not-for-profit group that has led legal challenges to resource projects has suffered a crushing blow after it was ordered to pay $9 million in legal costs to Santos.
The Federal Court of Australia has ordered the Environmental Defenders Office to pay 100 per cent of the costs incurred by Santos in fighting a challenge to its Barossa gas project.
The EDO acted as lawyers for three Tiwi Islanders who were challenging Santos’ plan to instal a 262 km underwater pipeline to the gas field, off Australia’s northern coast.
The Federal Court was scathing of the case against Santos and made an order for the applicants to pay Santos’ costs.
The case stirred controversy over so-called ‘lawfare’ by environmental groups and prompted calls for the federal government to withdraw its funding to the EDO.
The EDO also acted for the Australian Conservation Foundation in a short-lived action against Woodside Energy’s Scarborough gas project.
The federal government agreed in 2022 to pay $8.3 million to the EDO over four years.
The EDO’s 2023 annual report shows it had total income of $13.3 million and net assets at June 30 of $4.8 million.
Its chief executive David Morris said the EDO had agreed to resolve the costs claim after consulting with its insurer.
He remained positive about its role.
“EDO has been providing crucial public interest legal services for nearly 40 years, with a formidable track record of success for clients,” he said.
“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.
“Our role has never been more critical.”
In a statement today, Santos noted it did not pursue the Aboriginal and Tiwi Islander applicants but pursued the EDO and other third parties it believed were opposed to the project and involved in the ‘Stop Barossa Gas’ campaign.
It sought information from the Environment Centre NT and Jubilee Australia Research Centre Ltd as members of the ‘Stop Barossa Gas’ campaign and the Sunrise Project Australia Ltd (Sunrise) as an apparent supporter of the ‘Stop Barossa Gas’ campaign.
This information has not been made public by the Court.
The Federal Court proceedings commenced on 30 October 2023, two days before construction of the pipeline was due to start and some three and a half years after the environment plan for construction of the pipeline had been approved and made publicly available by the regulator, NOPSEMA.
It was alleged the pipeline would disturb the travels of a rainbow serpent known as Ampiji and an ancestral being known as the Crocodile Man.
It was also alleged the sea floor may contain evidence of human occupation, including burial sites, from tens of thousands of years ago when the seabed was exposed, before sea levels rose.
A key witness in the case was Dr Mick O’Leary, associate professor in Climate Geoscience at the University of Western Australia.
He led a ‘cultural mapping’ exercise prior to the case commencing.
The Court found that Indigenous instructions had been distorted and manipulated before being presented and that part of the applicants’ case had been confected or constructed.
Justice Charlesworth concluded that “the cultural mapping exercise and the related opinions expressed about it are so lacking in integrity that no weight can be placed on them”.
“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 added.
“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.”
