Environmental Activist Law Firm Ordered to Pay $9 Million After Losing Suit

Protesters gather at the front of the Federal Court of Australia in Melbourne, Australia on Nov. 15, 2022. This case involves Santos Ltd., and the major Barossa Gas project, located near the Tiwi Islands off the northern coast of Australia. Tamati Smith/Getty Images

The Australian Federal Court has ordered the Environmental Defenders Office (EDO) to pay all the legal costs incurred by energy giant Santos after it lost a claim on behalf of an Indigenous community.

The ruling will likely raise further questions about its ongoing viability, and strengthen the resolve of Coalition and Liberal state governments to end its public funding.

It’s extremely rare for lawyers for the losing party—rather than the party themselves—to be required to pay the winning side’s costs, and also rare for a costs award to reflect the real costs incurred.

But in this instance the judge ruled 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 manipulated and were not reliable.

That effectively made the EDO a party to the case and an active participant in a broader “Stop Barossa Gas” campaign, and thus liable to pay the other side’s costs.

All the parties agreed to a sum of $9,042,093.05.

EDO Chief Executive David Morris said in a statement that the organisation decided that resolving the claim now was in the best interests of its clients, staff and the organisation.

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

Tiwi Islanders Claimed Impact on Cultural Sites

The case arose when Santos announced it was going to build a 262-kilometre pipeline from its new Barossa gas field in the Timor Sea to a processing plant in Darwin.

Tiwi Islanders objected, claiming the the pipeline would impact culturally significant sites that represented the “Ampiji rainbow serpent” and “Crocodile Man.”

But in January, Justice Natalie Charlesworth ruled against the claimants, saying the EDO had confected evidence during the trial and that one of the firm’s former lawyers—who helped prepare Tiwi Islander witnesses for the trial—had misrepresented their views.

In one instance, the judgment criticised evidence based on a “cultural mapping” exercise as “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 given the project formal approval, which remains in effect until January of 2056, the Australia Institute called it “the dirtiest gas project in Australia” and said, “it should not proceed on climate grounds alone.

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

But the Northern Territory Government heralded the costs order.

“We won’t allow activists and economic vandals to manipulate their way into halting or delaying key Territory projects with mistruths and false information,” said Minister for Lands, Planning and Environment Joshua Burgoyne.

“This decision calls out environmental ‘lawfare,’ where environmental groups seek to stall and stop proponents from continuing developments. We have strong, contemporary environmental legislation in the NT that facilitates economic development,” he said.

The government estimates the Territory will benefit from $2.5 billion worth of wages and contracts during the life of the $6.2 billion project.

Public Funding for EDO Now in Jeopardy

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

The federal Coalition has vowed to defund the EDO at a national level, meaning it could lose more than $2 million of annual funding.

In the wake of the Federal Court decision, Shadow Minister for Indigenous Australians Jacinta Nampijinpa Price said the Labor government’s ongoing support of the EDO was “effectively supporting this exploitive behaviour of our most marginalised Indigenous Australians.”

Even without a bill for $9 million in costs, that would have been enough to put a question mark over the EDO’s future, since its most recent annual report—up to July 2023—showed revenue of about $13 million and a loss of nearly $900,000. It had less than $9 million in cash and equivalent assets.

However, CEO Morris vowed Australia’s biggest climate-focused legal service would continue its work, saying it had a “formidable track record of success for its clients” over its nearly 40-year existence.

“Our role has never been more critical [and] 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.

The EDO is presently representing other clients, who are arguing Santos misled investors when it said it had a plan to achieve net zero emissions by 2040.