Environmental Advocacy Firm Ordered to Pay $9 Million in Damages Following Court Case Loss

The Australian Federal Court has instructed the Environmental Defenders Office (EDO) to cover all legal costs accrued by energy giant Santos following the loss of a claim on behalf of an Indigenous community.

This ruling is expected to prompt further inquiries into its continued viability and reinforce the determination of Coalition and Liberal state governments to terminate its public funding.

It is highly uncommon for the legal representatives of the losing party—rather than the party themselves—to be obligated to cover the legal expenses of the prevailing side, and it is also unusual for a costs award to accurately reflect the genuine costs incurred.

Nevertheless, in this particular case, the judge concluded that the EDO had engaged in “a form of subtle coaching” of its Indigenous clients’ testimony, and that the expert reports presented as evidence had been tampered with and were deemed unreliable.

This effectively positioned the EDO as a party to the case and as an active participant in a broader “Stop Barossa Gas” campaign, rendering it responsible for covering the opposing party’s costs.

All parties settled on a sum of $9,042,093.05.

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EDO Chief Executive David Morris stated in a release that the organization made the decision to settle the claim as it was deemed to be in the best interests of its clients, staff, and the organization.

“Throughout this matter, EDO has diligently followed client instructions. We have also treated the court’s findings with the utmost seriousness,” he remarked.

Tiwi Islanders Claimed Impact on Cultural Sites

The case originated when Santos declared its intention to construct a 262-kilometre pipeline from its new Barossa gas field in the Timor Sea to a processing plant in Darwin.

Tiwi Islanders opposed this, asserting that the pipeline would affect culturally significant sites representing the “Ampiji rainbow serpent” and “Crocodile Man.”

However, Justice Natalie Charlesworth ruled against the claimants in January, stating that the EDO had fabricated evidence during the trial and that one of the firm’s former lawyers—who assisted in preparing Tiwi Islander witnesses for the trial—had misrepresented their perspectives.

One instance highlighted in the judgment criticized evidence based on a “cultural mapping” exercise as being “lacking in integrity that no weight can be placed” on it.

Project to Go Ahead

The federal Department of Climate Change, Energy, the Environment, and Water has granted formal approval for the project, which is valid until January 2056. Although the Australia Institute labeled it as “the dirtiest gas project in Australia” and argued that “it should not proceed on climate grounds alone.

“Any government serious about climate, Traditional Owner consultation, relations with the Pacific, and basic integrity would not have greenlit this project.”

On the other hand, the Northern Territory Government welcomed the costs order.

“We will not permit activists and economic vandals to manipulate their way into obstructing or delaying crucial Territory projects with misinformation and deceit,” expressed Minister for Lands, Planning and Environment Joshua Burgoyne.

“This ruling calls out environmental ‘lawfare,’ where environmental organizations attempt to impede and halt developers from progressing with projects. We have robust, contemporary environmental legislation in the NT that facilitates economic advancement,” he asserted.

The government estimates that the Territory stands to gain $2.5 billion in wages and contracts over the lifespan of the $6.2 billion project.

Public Funding for EDO Now in Jeopardy

Burgoyne reaffirmed that the recently elected Country Liberal Party would terminate the Territory’s grant to the Environmental Defenders Office, and other Liberal-led state governments are likely to follow suit.

The federal Coalition has pledged to defund the EDO at a national level, jeopardizing its annual funding of over $2 million.

Following the Federal Court’s ruling, Shadow Minister for Indigenous Australians Jacinta Nampijinpa Price claimed that the Labor government’s support of the EDO was effectively endorsing the exploitative behavior towards the most marginalized Indigenous Australians.

Even without the $9 million bill for costs, this would have potentially put the EDO’s future in doubt, considering its most recent annual report—up to July 2023—showed revenue of approximately $13 million and a loss of nearly $900,000, with less than $9 million in cash and equivalent assets.