The Federal Court of Australia has dismissed an Indigenous challenge against a major gas pipeline to the Timor Sea with Justice Natalie Charlesworth criticising the quality of evidence presented by witnesses and environmentalists.
Justice Charlesworth said the evidence presented by the Environmental Defenders Office (EDO) involved “confection” and the coaching of Indigenous witnesses.
“In the present case, I cannot accept that the witness statements contain words actually spoken by the witnesses and recorded verbatim,” she said.
She referred, as an example, to the evidence of Pirrawayingi Puruntatameri, a Tiwi Islander “who was said to have been an author of the document (including in his own witness statement) but when shown the document in cross-examination, appeared to be unfamiliar with it.”
The EDO describes itself as “the largest environmental legal centre in the Australia-Pacific, dedicated to protecting our climate, communities and shared environment by providing access to justice, running groundbreaking litigation and leading law reform advocacy.”
It is an accredited community legal service funded by public donations and bequests, grants from “various state and territory governments” and fees from clients “often at a highly reduced rate.” Federal funding was cut in 2013, but the Albanese Labor government has pledged to restore it.
What’s Happened So Far?
Jikilaruwu traditional owner Simon Munkara lodged proceedings in the Federal Court in October against the company, saying that cultural heritage would be placed at risk by its construction.Justice Charlesworth granted an emergency interim injunction, stopping work from beginning, just hours before it was due to start in early November.
After a further hearing in that month, the judge granted a partial interim injunction to restrict work to an area from about 75 kilometres north of the Tiwi Islands.
Pipeline Would Interrupt Rainbow Serpent’s Journey: Applicants
They claimed the pipeline would disturb the travels of an ancestral being important in their culture, a rainbow serpent called Ampiji, and that it would disrupt the Jirakupai (Crocodile Man) songline, which they told the Court runs from Cape Fourcroy on the westernmost point of Bathurst Island into the sea close to the pipeline route.The new information they relied upon was based on a report from an EDO geoscientist who engaged in a cultural mapping exercise with Tiwi Islanders.
However, Justice Charlesworth’s judgment dismissed that evidence as “so lacking in integrity that no weight can be placed” on it and said there was “a significant degree of divergence” amongst the evidence given by the Tiwi Islanders themselves.
She attributed this in part to an EDO lawyer and expert witness engaging in “a form of subtle coaching” of some Tiwi witnesses, urging them to “tell their stories in a way that propelled their traditions into the sea and into the vicinity of the pipeline.”
Further, she found the “Crocodile Man” could not have entered the sea at Cape Fourcroy at the supposed time, saying the Tiwi Islands did not exist because the sea level was 120 meters lower than today.
“I have drawn conclusions about the lack of integrity in some aspects of the cultural mapping exercise,” the judge said, “which undermined my confidence in the whole of it.”
“As a consequence of that conclusion, I am not satisfied that there is any risk of environmental impact of the kind asserted by the applicants in this part of the case, and it has therefore been unnecessary to consider whether any such risk should be characterised as ’significant‘ or ’new.'”
She also said she was not satisfied that the presented Tiwi Islander beliefs were broadly held by Indigenous people in the area, but were instead just “personal beliefs.”
Justice Charlesworth also noted in her judgement that, “I have nonetheless formed some impressions of some [Tiwi] witnesses that have led me to treat some aspects of their evidence with caution, when considered in conjunction with other factors.”
Noting that the applicants had changed the basis of their objection as the case progressed, the judge concluded that this was an example of the “incongruity with the evidence of the applicants themselves concerning the nature and source of their relationship with the relevant area.”
Anthropologists’ Evidence Also Found Wanting
Several anthropologists were employed by both parties to the case and, as might be expected, reached different conclusions. Justice Charlesworth was just as critical.She concluded that Dr. Amanda Kearney, called upon by EDO, who “[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, Dr. Kearney sought to downplay her involvement in that report, with the judge noting she “was not impressed by that response,” adding that “my concern about Dr. Kearney’s independence is heightened by the intemperate language of the opinions in [submissions], which I consider were expressed in ignorance of some matters about Dr. Corrigan’s [Dr. Brendan Corrigan, another anthropologist] approach.
“Her language implicitly (if not expressly) accused Dr. Corrigan of professional misconduct, including because of her perception that he had disregarded intellectual property concerns of the Tiwi Islanders. There is nothing in the evidence before me to support a finding that he did any such thing,” the judge said.
She was also critical of a workshop conducted by Dr. Mick O'Leary where “the attendees were prompted in a more blatant fashion to participate in a cultural mapping process of a kind that on another occasion had helped to stop a petroleum development,” the judge said.
The justice was also disapproving of the actions of fellow 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 “Mr. Lewis actively participated in that discussion ... [which] 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.”
Tiwi Clan Disappointed With Result
Mr. Munkara said his Jikilaruwu clan was very disappointed with the outcome.“We brought this case to protect our Sea Country. I am a true believer for my Country. We are hurting and need some time to think,” he told reporters.
The judge awarded costs to Santos, which has spent $15.7 million ($US10 million) a month on a drilling rig that has sat idle since the initial injunction.
The company mobilised the rig within hours of the decision and is expected to start drilling shortly, according to an email sent from CEO Kevin Gallagher to staff.
When completed, the pipeline will be used to transport gas to Darwin before it is shipped as LNG to buyers in South Korea and Japan.
Calls to Remove ‘Vague’ Regulation Around Energy Projects
Cases such as this one, and current litigation against Woodside’s $16.5 billion Scarborough gas project in Western Australia, have led to calls from across the resources sector for reform to approval processes for major projects.Australian Energy Producers CEO Samantha McCulloch said “Australia’s oil and gas industry has always sought better regulation, not less regulation. Comprehensive and effective consultation with traditional owners has been an important part of the work of our sector for decades and we are committed to it.
“However, vague and ambiguous regulations cannot be allowed to continue holding up important energy projects, postponing new supply that is needed to deliver energy security, emissions reduction, and substantial economic returns for Australians.”
In response, Resources Minister Madeleine King commenced consultation on changes last week, saying she wanted “clear and unambiguous rules that give communities and stakeholders a real say, and are also workable for industry participants.”
