Funding Could End for Environmental Activists Found to Have ‘Confected’ Indigenous Evidence

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

Government funding for the Environmental Defenders Office (EDO)—a community legal service that says it runs “groundbreaking litigation and leading law reform advocacy”—is under review after Federal Court Justice Natalie Charlesworth issued a ruling that was highly critical of the organisation’s methods and behaviour.

As reported by The Epoch Times earlier in January, the EDO represented Tiwi Islanders in a case against plans by energy giant Santos to develop a $5.8 billion (US$3.8 billion) Barossa gas export pipeline. The plaintiffs lost, with the judge making several findings condemning the actions of the EDO and some of its witnesses.

She reserved her harshest criticism for an EDO expert witness, marine geoscientist Mick O’Leary, who conducted a cultural mapping exercise as part of the legal challenge, calling the resultant evidence “so lacking in integrity that no weight can be placed [on it].”

Untrue Statements Made to Plaintiffs

Under cross-examination, Mr. O’Leary had admitted that he had made what amounted to untrue statements to the plaintiffs during a workshop on the Tiwi Islands.

The judge noted that, although his admission in court meant Mr. O’Leary had not committed perjury, “he did lie to the Tiwi Islanders, and I find that he did so because he wanted his ‘cultural mapping’ exercise to be used in a way that would stop the pipeline.”

Justice Charlesworth also observed that there was considerable divergence in the written and oral testimony of the Islanders themselves, and said the EDO had been involved in the “confection” of evidence and the coaching of Indigenous witnesses.

One witness, when shown his own witness statement, “appeared to be unfamiliar with it,” she said.

“In the present case, I cannot accept that the witness statements contain words actually spoken by the witnesses and recorded verbatim,” she concluded.

‘Distorted and Manipulated’: Judge

“The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court via an expert report, and I so find,” Justice Charlesworth said in the judgement.

Another EDO anthropologist, Amanda Kearney, had, the judge said, “[failed] to clearly disclose to the Court her prior involvement in [an earlier] report containing direct recommendations based on asserted harm to cultural heritage on the sea bed.”

Under cross-examination, Ms. Kearney sought to downplay her involvement in that report, with the judge noting she “was not impressed by that response.”

Ms. Kearney also appeared to lack the independence required of an expert witness because she had used “intemperate language” about the conflicting opinions of another anthropologist called by lawyers acting for Santos.

The justice was also disapproving of the actions of a third EDO anthropologist, Gareth Lewis, noting he attended a meeting where the focus was to use “cultural heritage stories as a weapon in the strategy” and that actively participating in that “raises a concern in my mind about his independence ... It is not the role of an expert witness to barrack for the interests of a party to legal proceedings.”

Federal Funding Will Be Cut Under Coalition

As a result of the findings, the Northern Territory government says its $100,000 in annual funding of the EDO is under review, and Opposition Leader Peter Dutton has said the Coalition will end the organisation’s federal funding if it wins the next election.

“The Environmental Defenders Office has been given millions of dollars of ongoing funding by the Albanese government to wage lawfare. They’re a proxy for the government’s true intent in relation to addressing projects which have already had valid approvals,” Mr. Dutton said during a speech at a resources industry meeting in Perth.

“The same activists are seeking to use the courts to thwart Woodside’s $16.5 billion (US$10.9 billion) Scarborough offshore gas project here in WA,” he noted.

In 2013, Prime Minister Tony Abbott cut $10 million in funding to a host of environmental legal groups, including the EDO. That was reinstated by the Albanese government last year, agreeing to provide the organisation with $8.2 million (US$5.4 million) over four years.

Northern Territory Chief Minister Eva Lawler said her government was reviewing its ongoing support.

“We fund the Environmental Defenders Office and I’ve already spoken to Kate Worden, the Environment Minister, to say we need to have a look at that contract. We fund them $100,000 a year and I’ve asked Kate to have a look at the contract, the details around that,” she said.

“I think there does need to be some consequences for anybody who’s lied, particularly around something that’s so important to the Territory economy.”

The Barossa project is expected to support the Northern Territory’s economy for the next 20 years.

‘Disappointed,’ Says EDO

EDO chief executive David Morris said he was “disappointed” by the Coalition’s announcement, and that the organisation had not been contacted by the NT government regarding a review of funding.

“But we are always happy to discuss with government the important public-interest work we do and the environmental policy analysis we provide.

“As an accredited community legal centre, our public interest environmental lawyers have served people and communities across Australia for nearly 40 years. We provide a vital community service,” he said.

“Our clients are grandparents concerned for younger generations, environmental charities acting for nature, community groups defending their local patch, and First Nations people. Without our services, these people would be denied access to the legal system and to environmental justice.”