Academic, legal and activist figures in the failed Environmental Defenders Office bid to scuttle a $5.8bn gas field near the Tiwi Islands concocted a rainbow serpent and crocodile man songline map based on guesswork and minimal consultation with Indigenous leaders, according to court documents.
Federal Court documents obtained by The Australian reveal academic and cultural experts exchanged emails and text messages coaching each other on how to use the Ampiji (mother serpent) and Jirakupai (crocodile man) to block gas company Santos’s Barossa project in the Timor Sea.
The new details emerged ahead of Federal Court judge Natalie Charlesworth finalising the matter next Tuesday and amid expectations the EDO will be ordered to pay full costs.
Justice Charlesworth in January handed down a scathing ruling after rejecting the EDO case brought on behalf of a group of Tiwi Islanders led by Simon Munkara.
Santos, whose legal costs are estimated to be close to $9m, asked the Federal Court in April to force four environmental groups to disclose communications with the EDO, amid industry fears that cashed-up environmentalists were co-ordinating finance to undermine resources projects.
The Federal Court documents reveal:
• University of Western Australia marine geoscientist Michael O’Leary sent his expert report to EDO lawyers for edits to ensure it “meets your expectations”;
• Dr O’Leary, who described himself as “just a white fella”, was open to moving the rainbow serpent “where it seems most culturally appropriate”;
• The EDO was invoiced by Indigenous consultant Antonia Burke, campaign head of Stop Barossa Gas campaign and a Tiwi Islander;
• Ms Burke used her campaign budget to pay traditional owners to engage with their research project;
• Ms Burke worked with Greens senator Dorinda Cox to draft a private senators bill called Protecting the Spirit of Sea Country;
• The EDO agreed to fund flights and accommodation for Dr O’Leary’s travel to the Tiwi -Islands and offered to pay the academic for his time; and
• Professor Amanda Kearney signed Dr O’Leary’s open letter in support of Tiwi Islanders before being engaged by the EDO to act as an expert witness during legal proceedings
An affidavit and exhibits detailing correspondence between key players in the EDO case reveal Dr O’Leary, a UWA associate professor, and Ms Burke collaborated to devise a “sea country map” identifying assumed sacred locations of Mother Ampiji and the Crocodile Man Songline.
The pair, who worked together to prepare a cultural heritage report underpinning the EDO case, exchanged emails and texts about reproducing images of a serpent and crocodile based on Tiwi art.
The mapping work and cultural report, which was sent in draft form to EDO lawyers for -editing, was developed ahead of meetings with Tiwi Islanders.
Text exchanges between Dr O’Leary and Ms Burke show they also endorsed “payment for traditional owners where they provide their time and knowledge as part of a research project”.
Ms Burke told Dr O’Leary that the Ampiji in his map needed to “look more like the actual -serpent” and sent through suggested images.
“If the ampiji is round … do you think it could be interpreted that it’s only in that space within the circle? Whereas if it was in the water stretched out it would look like it’s a part of the whole lake?” Ms Burke wrote in one email contained in the court documents.
On July 9 last year, Dr O’Leary told Ms Burke that he was open to moving the location of the “resting place/home of the Mother Ampiji”.
“Maybe I am being too scientific about this and I should just move the location of Ampiji to the area of the lake,” he wrote in an email.
“Ultimately, I am just a white fella and the location of the resting place/home of the Mother Ampiji will be made by the Tiwi Elders and happy to move where it seems most culturally appropriate.”
In another email he told Ms Burke that he should “try and reproduce an authentic looking Crocodile from a Tiwi Artist … to represent the path of the Crocodile man Songline”.
On December 11, 2022, Dr O’Leary had also sought input from EDO lawyers Alina Leikin and Jordina Rust on his preliminary report.
“I hope it meets your expectations … feel free to comment or edit if you have the time and let me know you are happy and I will add the additional maps at the end,” he wrote.
The following day, Dr O’Leary sent the EDO lawyers his preliminary heritage report and confirmed he had “made the changes” recommended and added two maps.
The EDO on Tuesday would not comment due to the matter being before the Federal Court but The Australian understands the accepted changes related to grammatical and formatting alterations.
In response to questions from The Australian, Ms Burke’s solicitor Stewart O’Connell said his client was an “Indigenous woman and a human rights advocate and consultant”.
“She was engaged as a consultant by the Tiwi Traditional Owners (TTO) to assist in the Santos Barossa matter,” Mr O’Connell said.
“Part of her role was to ensure Indigenous people were compensated for time they spent attending information sessions, which was standard industry practice. Santos does the same thing.”
Mr O’Connell provided a September 25 response from Santos to a Senate inquiry, which said standard payments for attendance fees for consultation with Tiwi Islanders were $100 per person.
Dr O’Leary did not respond to The Australian but a UWA spokeswoman said the university would not comment “on this inquiry as we understand this case remains before the court and we cannot confirm the source, authenticity or contextual significance of the information on which it is based”.
Text messages included in court documents show Ms Burke telling Dr O’Leary: “Confidential: I have been working with Greens (Dorinda Cox) on drafting a private senators (sic) bill which will be listed in parliament either next sitting or August. We called it Protecting the Spirit of Sea Country.”
Mr O’Connell confirmed that the TTO, through Ms Burke, “gave advice to the Greens about a bill that related to the right to consultation”.
Opposition resources spokeswoman Susan McDonald, who as a federal parliamentarian applied for and received access to the court documents, said the revelations “confirmed the murky and dishonest world of activist lawfare enveloping the university sector”.
Senator McDonald ramped up pressure on the EDO to “reveal the extent of its foreign backers and funding trail” and said the Albanese government should commission an audit and immediately cease providing grants to the environmental legal centre.
“These documents are like an X-ray. They reveal the dark and murky world of how extreme green activism is dishonestly using and abusing Indigenous Australians and their heritage; and how complacent the university sector is allowing themselves to be used for that purpose,” Senator McDonald said.
“This is not about identifying and respecting cultural heritage; it is now about inventing cultural heritage to achieve a political outcome, and to stymie economic development and jobs in Australia’s resources sector.
“Nothing could be more disrespectful to Indigenous Australians than taking them for a ride and fabricating and misrepresenting their cultural history.”
The Barossa case was the first in a series of high-profile recent matters involving the citing of cultural songlines in the blocking of major projects.
Months after the initial injunction halting work on the Santos project, Woodside Energy was forced to stop seismic work at its $16.5bn Scarborough gas project off the West Australian coast after Indigenous activist group Save Our Songlines successfully secured an injunction from the Federal Court.
The group had argued that the seismic blasting could interfere with songlines connected to whales and turtles in the area.
But that injunction proved short-lived, with Woodside securing fresh approvals allowing it to go ahead with the work just two months later.
More recently, Regis Resources’ plans to develop the $1bn McPhillamys goldmine near Blayney in central NSW were thrown into turmoil after Environment Minister Tanya Plibersek blocked plans for a tailings dam.
Her decision came after a breakaway Indigenous group argued that the dam could interfere with the songlines of the blue-banded bee. The Orange Land Council – the main body representing traditional owners of the region – has disputed the validity of that claim.
Regis is now appealing against the minister’s decision in the Federal Court.
The Australian understands that a significant cost order against the EDO by Justice Charlesworth next week could be financially crippling for the organisation.
The EDO’s most recent annual report showed the group had just over $8.5m in cash and cash equivalents and just over $1m in financial assets on its balance sheet at the end of the 2023 financial year. After liabilities, its net assets were less than $4.9m.
The EDO collected $13.3m in revenue in 2023, including $3.7m in grants from overseas, more than $5.8m in grants from within Australia, and just over $3m in donations and bequests. State and territory government grants contributed almost $1.2m to the organisation.
After winning the 2022 election, the Albanese government reversed a 2013 decision by former Liberal prime minister Tony Abbott to defund the EDO and allocated the green lawfare outfit $8.2m over four years.
Following Justice Charlesworth’s scathing ruling against the EDO in January, Peter Dutton committed to defunding the non-government legal organisation should the Coalition win next year’s election.
The Australian in March revealed that UWA continued to support Dr O’Leary’s “right to share his research and teaching expertise and does not intend to take any further action”, after Justice Charlesworth described the academic’s conduct as being “far-flung from the proper scientific method” and falling “short of an expert’s obligation to this court”.
The Federal Court in January rejected arguments made by the EDO that the Barossa Santos project’s 262km pipeline would cause irreparable damage to First Nations people and their sacred sites. Santos produced its own study, led by anthropologist Brendan Corrigan and involving interviews with about 170 Tiwi Islanders, which concluded the pipeline would not significantly impact cultural heritage sites.
In her ruling, Justice Charlesworth said: “I have drawn conclusions about the lack of integrity in some aspects of the cultural mapping exercise, which undermined my confidence in the whole of it.”
Following the decision, Santos chief executive Kevin Gallagher sent an internal memo to employees declaring the drilling rig had been mobilised and drilling activities would commence shortly.
“This decision is not only good for Santos, but it will be of benefit to the whole industry, to the (National Offshore Petroleum Safety and Environmental Management Authority) and to government lawmakers,” Mr Gallagher said in the memo.
“In addition, it is excellent news for Northern Territory jobs and business opportunities, the NT economy, federal government revenue, export income and trade and investment relationships in Asia.”
In September, The Australian reported that the EDO had offered to pay Santos’s costs over its failed bid to block the Barossa LNG development, which if accepted would have absolved the legal environment group from providing communications it had with possible backers of the court action.
