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Court rules activist groups not directly involved in Tiwi Islands lawsuit must hand documents over to Santos

Dechlan Brennan -

A federal court judge has allowed Santos to subpoena paperwork held by three activist groups not directly involved in a lawsuit against the company, which may pursue the organisations for costs.

The lawsuit, carried out by the Environmental Defenders Office (EDO) on behalf of Tiwi Island Traditional Owners, was defeated in January, with Justice Natalie Charlesworth making adverse findings against the EDO — including observing one of its lawyers and a cultural heritage consultant engaged in subtle coaching of Tiwi Islanders when they met with them. 

On Wednesday, Justice Charlesworth ruled Santos could pursue the financial records and communications between the EDO and three activist groups - Sunrise, Jubilee Australia, and the NT Environment Centre - in order for the oil company to determine if they wanted to enforce the costs order against the organisations. 

A fourth group, Market Forces, successfully argued it should be exempt from the subpoena owing to not having made public comments on the case. 

Documentation includes financial undertakings and communications between the groups about the legal proceedings. 

The four groups were not directly involved in the lawsuit, which called on Santos to pause construction of its 263 km pipeline near the Tiwi Islands until the company had revised its environment management plan to include the potential risks: underwater cultural heritage sites and sacred dreaming places along the pipeline's route.

The Traditional Owners called on Santos to submit a new environmental plan to be assessed by the regulator, National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).

Guardian Australia reported Australian Energy Producers, the oil and gas industry association, responded to Justice Charlesworth’s decision by urging a cessation of the EDO’s funding. 

After the decision in January, opposition leader Peter Dutton vowed to cut the organisation's funding if his party was elected. 

Santos is now pursuing the EDO for costs, whilst they may also seek a non-party costs order against other groups involved - directly or indirectly - in the case. 

Guardian Australia reported Santos’ lawyers claimed statements by the different campaign groups suggested there was a possibility they may have been “intimately involved” in the case, rather than simply reaffirming “solidarity.” 

“We have done all we can to try and find out from the EDO how it was that the EDO was able to conduct these proceedings with a very large legal team and so far, we have turned up only limited information,” they said.

“We think the kinds of communications between the EDO and the organisations which had a keen interest in the outcome of the proceedings as an aspect of the ongoing campaign to stop this Santos project may shed light on that matter.”

In response to the federal court’s decision Australia’s peak environment groups expressed their alarm and “profound opposition.”

Conservation Council of WA executive director Jess Beckerling said these "Strategic Lawsuit Against Public Participation" (SLAPP) suits were “designed to deter public participation and they are profoundly anti-democratic".

“This is a staggering decision that the public should be very concerned by,” she said. 

Nature Conservation Council NSW director Jacqui Mumford labelled the decision “chilling,” and one which could have a detrimental impact on campaigning and public interest litigation across the country.”

“This is a staggering decision. None of these groups were parties to, funded or conducted the litigation,” Ms Mumford said. 

“The judge has found that their common interest in wanting to stop the Barossa project may be grounds for a non-party costs order against them.”

In issuing the subpoenas, Justice Charlesworth found the organisations could be subject to cost orders even if they didn’t provide financial benefit to the case, rejecting claims Santos was on a “fishing expedition.” 

“It is at least arguable that a non-party’s support of litigation to pursue a political or ideological objective of the non-party’s own could, in an appropriate case, weigh in favour of a costs order,” Justice Charlesworth said. 

She said she paid attention to comments made by the groups in their annual reports, as well as public comments. 

Many of the comments pre-dated the case, often referring to a separate federal court Decision between Tiwi Traditional Owner Dennis Tipakalippa and NOPSEMA, and Santos, over consultation rights surrounding offshore petroleum regulations, which was dismissed on appeal in 2022.  

 

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