In a stunning legal defeat that has sent ripples through the environmental law community, the Environmental Defenders Office (EDO) has been ordered to pay a jaw-dropping $9 million in costs to energy giant Santos. The hefty bill comes after the EDO’s failed court challenge to Santos’ controversial Barossa gas project off the coast of the Northern Territory.
Tiwi Islanders’ Legal Battle Against Santos Ends in Costly Defeat
The high-stakes legal showdown began in late 2023 when the EDO, representing three traditional owners from the Tiwi Islands, launched a last-ditch effort to halt construction of an export pipeline from the Barossa field to an existing pipeline connecting to Darwin. The Tiwi plaintiffs, led by Simon Munkara of the Jikilaruwu clan, argued that Santos had failed to properly assess the project’s impact on submerged cultural heritage sites.
However, in a scathing January judgment, Justice Natalie Charlesworth not only dismissed the case but made damning findings against the EDO. The judge accused an EDO lawyer and a cultural heritage consultant of engaging in “subtle coaching” of the Tiwi witnesses. She also found that evidence from one expert witness amounted to “confection”.
Court Finds Tiwi Witnesses’ Claims Not Representative
A key issue was the Tiwi applicants’ assertion that the pipeline threatened intangible cultural heritage, including songlines associated with a creation being known as Crocodile Man and an area sacred to the rainbow serpent Ampiji. But Justice Charlesworth determined these concerns were not broadly shared by other affected Tiwi people.
The cultural mapping exercise undertaken by an expert witness for the applicants and the related opinions expressed about it are so lacking in integrity that no weight can be placed on them.
Justice Natalie Charlesworth
Santos Accuses EDO of Participating in “Stop Barossa Gas” Campaign
In the aftermath of the bruising court defeat, Santos went on the offensive, alleging the EDO was an active participant in a wider “Stop Barossa Gas” campaign. According to Santos, this campaign’s “clear, advertised objective” was to “disrupt, delay and potentially shut down” the $4.7 billion gas project.
“The EDO’s involvement in this campaign raises serious questions about its perceived impartiality,” a Santos spokesperson claimed. “It appears they crossed the line from legal advocacy to political activism in this case.”
EDO Chief Vows to Continue “Crucial” Legal Work Despite Setback
EDO chief executive David Morris, while acknowledging the gravity of the court’s findings, remained defiant. “EDO has been providing crucial public interest legal services for nearly 40 years, with a formidable track-record of success,” he said in a statement.
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.
David Morris, EDO Chief Executive
The failed challenge and resulting $9 million costs order represent a stinging rebuke for the EDO and a cautionary tale about the risks of taking on powerful fossil fuel interests in court. With the Barossa project now proceeding full steam ahead, environmental advocates have been left to lick their wounds and reflect on lessons learned from this costly legal misfire.
Federal Review Clears EDO Funding After Damaging Court Judgment
The case prompted the federal government to scrutinize the EDO’s funding arrangements earlier this year. However, an independent review ultimately found the legal center had not breached any conditions attached to its $8.2 million in federal funding, providing some reprieve.
As the dust settles on this extraordinary legal saga, all eyes will be on the EDO to see how it rebounds from this reputational hit. Meanwhile, Santos is riding high as it races to bring the lucrative Barossa gas field online, unshackled from a pesky court challenge that threatened to derail its ambitious project.
