22 May 2024

Federal Review clears Environmental Defenders Office over Santos court case

| James Day
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An ocean oil rig flaring natural gas at sunset.

Santos’ pipeline project in the Barossa gas field starts near the Tiwi Islands, 200 km off the Northern Territory coast, and ends in Darwin. Photo: Dazman.

According to a federal review, the Environmental Defenders Office (EDO) did not violate its funding agreement with the Commonwealth during a court case over a Santos gas project near the Tiwi Islands.

Elders from the Tiwi Islands brought a federal court challenge to the Australian oil and gas company, which called on the government to suspend its plans for an undersea gas pipeline between the Barossa gas field and Darwin. Represented by EDO lawyers, the elders argued this project would harm underwater sacred sites and cultural songlines.

In January, the elders lost to Santos after Justice Natalie Charlesworth found there was disagreement among Tiwi Islanders over their claims.

Her honour included criticism of the EDO lawyers and the expert witness they engaged, Mr Lewis, for engaging in a “form of subtle witness coaching”.

Justice Charlesworth found the material supported her conclusion that Indigenous instructions had been “distorted and manipulated [by the EDO’s lawyers]” before they were presented to the court via an expert report.

She also observed that a “synthesized narrative” prepared by EDO lawyers that claimed to be a record of meeting with Tiwi informants was unreliable, and Mr Lewis’ reliance on this tale undermined the foundation of his evidence.

Following the judgement, Federal Environment Minister Tanya Plibersek requested the Department of Climate Change, Energy, the Environment and Water (DCCEEW) review whether the EDO’s conduct was in accordance with the terms of an existing grant agreement.

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The Commonwealth committed $8.2 million to the EDO between 2022 and 2026 in the October 2022-23 Budget. It was implemented to fulfil the Federal Government’s election promise of improving access to justice and legal assistance for Australians wanting to uphold environmental laws.

Justice Charlesworth’s judgement put this agreement into question.

The Coalition said it would cancel federal funding if elected, while Northern Territory Environment Minister Kate Worden said its $100,000 annual funding of the EDO was under review.

However following DCCEEW’s consideration of the matter “it is satisfied that the EDO’s conduct described in the judgement, and the EDO’s conduct referenced in further material tabled in Senate Estimates on 12 February 2024, were not in breach of the grant agreement”.

A map of the offshore natural gas fields near the Tiwi islands that Santos plans to extract from.

The Santos’ project is expected to have a 25-year life span transporting dry gas from the Barossa field to Darwin for liquefaction and export. Photo: NOPSEMA.

The DCCEEW obtained independent legal advice from Norton Rose Fulbright, which came to the same conclusion. It also commissioned the Business Grant Hub (BGH), which administers the grant agreement in the Department of Industry, Science and Resources, to assess whether any possible fraud had occurred.

“The BGH concluded that there was no evidence indicating possible fraud,” according to the review. “The BGH also advised it would appear the EDO has been compliant with the grant conditions to date.”

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Although EDO has been cleared of any breaches, DCCEEW Secretary David Fredericks did provide recommendations to ensure the grant agreements’ integrity.

Mr Fredericks said DCCEEW is working with BGH to:

  • Implement additional assurances in relation to the EDO grant agreement, including in respect of milestone reporting;
  • Negotiate variations to the grant agreement to expressly clarify the standards expected by the Commonwealth of the EDO.

On behalf of Minister Plibersek, the Secretary welcomed the EDO’s decision to conduct its own independent review and requested they report its outcome along with any actions taken in response.

Mr Fredericks has also brought the judgement to the attention of the Law Society Northern Territory.

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