The federal court has ordered the Environmental Defenders Office to pay $9m in costs to Santos after a failed legal challenge to the company’s Barossa offshore gas project.
The case, brought by the EDO on behalf of three Tiwi Island traditional owners, was dismissed in January when Justice Natalie Charlesworth delivered a scathing judgment that made adverse findings against the legal firm.
On Thursday the court ordered the EDO to pay $9,042,093.05 to Santos on an indemnity basis, after lengthy costs proceedings throughout the year.
Santos said the EDO had volunteered to pay the sum, which represented 100% of the legal costs it had incurred throughout the proceedings.
The company said it had not sought costs from the Aboriginal and Tiwi Islander applicants but had sought information relating to the funding of the proceedings from the EDO and other third parties opposed to project, some of whom were involved in the “Stop Barossa Gas” campaign.
The EDO’s chief executive, David Morris, said: “After careful consultation with our insurer and with deep consideration of the best interests of our clients, staff, and the organisation, EDO has agreed to resolve the claim.
“Throughout this matter, EDO has diligently adhered to client instructions. We have also treated the court’s findings with the utmost seriousness.”
The traditional owners, led by Simon Munkara, a member of the Jikilaruwu clan, challenged the construction of an export pipeline from the Barossa field off the Northern Territory to the existing Bayu-Undan pipeline, which connects to Darwin.
The proceedings were launched in late October 2023, shortly before Santos planned to start work on the pipeline.
The case argued Santos had not properly assessed submerged cultural heritage and sought an injunction on the pipeline works until the company submitted a new environmental plan and it was assessed by the National Offshore Petroleum Safety and Environmental Management Authority.
In a judgment in January, Charlesworth made adverse findings against the EDO, ruling that one of its lawyers and a cultural heritage consultant had engaged in a form of “subtle coaching” in a meeting with Tiwi islanders. She also found that evidence from one expert witness involved “confection”.
Charlesworth found that evidence from witnesses for the three applicants asserting that the pipeline posed a risk to intangible underwater heritage, including Crocodile Man songlines and an area of significance for the rainbow serpent Ampiji, was not “broadly representative” of the beliefs of Tiwi people who would be affected by the pipeline.
The judge dismissed evidence provided in an expert report about potential impacts to underwater archaeological sites, finding there was a “negligible chance” of a significant impact to tangible cultural heritage.
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In her judgment, Charlesworth found a 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”.
Santos said on Thursday that the cultural mapping exercise had led to “an adapted account” which was said to involve a “reinterpretation” of traditional cultural beliefs “through a Western scientific lens”.
The company said the judgment had also found the EDO “was an active participant in the ‘Stop Barossa Gas’ campaign”.
“The clear, advertised objective of the ‘Stop Barossa Gas’ campaign was to disrupt, delay and potentially shut down the Barossa gas project, thereby causing economic harm to the Barossa [joint venture] partners and to participants in the Darwin LNG JV,” it said.
Morris said the EDO “has been providing crucial public interest legal services for nearly 40 years, with a formidable track-record of success for clients”.
“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,” he said. “Our role has never been more critical.”
The federal government sought a review of the EDO’s funding arrangements this year after the court judgment in January.
The review found the EDO had not breached the conditions of its $8.2m in federal funding.
