Lawyers to review EDO practices after Santos bungle

Neve Brissenden |

The fallout from a court ruling in favour of a Santos project off the Top End continues for the EDO.
The fallout from a court ruling in favour of a Santos project off the Top End continues for the EDO.

Australia’s primary environmental legal group will be probed by an external group of legal experts after a judge found it confected evidence in a case against an energy giant.

Chair of the Environmental Defenders Office Bronwyn Darlington has appointed former Northern Territory Treaty Commissioner and barrister Tony McAvoy to conduct the review.

“The review is a proactive step by the EDO Board to ensure continuous improvement and strengthening of EDO’s practice and service delivery,” Dr Darlington said in a statement.

“The review will examine and make recommendations on best practice when working with First Nations clients and communities, including in Court processes involving cultural heritage.”

The EDO took Santos to court on behalf of Tiwi Islands traditional owners in 2023, claiming the controversial pipeline on the $5.8 billion Barossa project north of Darwin interfered with Indigenous cultural heritage. 

Justice Charlesworth dismissed the case in January and accused the legal group’s lawyers of confecting evidence and coaching witnesses during the hearings.

The review will not “traverse the particular circumstances of that case or the findings of the court”.

“We take this decision seriously, as we would any decision that includes judicial comment about our lawyers,” Dr Darlington said.

Last month, federal Environment Minister Tanya Plibersek told her department to examine whether the taxpayer-funded legal unit was meeting an agreement over federal grant money.

In her judgement, Justice Charlesworth slammed the EDO evidence of Indigenous heritage as “so lacking in integrity that no weight can be placed” on it and said there was “a significant degree of divergence” in the evidence given by Tiwi Islanders.

She said an EDO lawyer and an expert witness had engaged in “a form of subtle coaching” of some Tiwi people, getting them to tell “their stories in a way that propelled their traditions into the sea and into the vicinity of the pipeline”.

The EDO is budgeted to receive $8.2 million in federal funding over four years.

Federal Opposition Leader Peter Dutton has vowed to defund the group, if the coalition wins government, joining the industry group Australian Energy Producers in accusing it of manipulating court systems to stall major projects.

The window for Tiwi traditional owners who challenged Santos to appeal the Federal Court ruling has passed.

The EDO would not comment further on the court proceedings, with costs yet to be awarded in the case.