An EDO solicitor, who was not named, came under fire for “subtly coaching” Tiwi Islanders into telling their stories “in a way that propelled their traditions into the sea and into the vicinity of the pipeline”.

Appearing in the Federal Court on Wednesday (12 June), Santos has asked the court to grant subpoenas issued to the EDO for all communications between it and the expert witnesses.

Santos said this material could reveal the extent to which EDO was aware of the fabricated evidence and could assist the court in determining what costs order it could be hit with.

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Appearing for Santos, counsel Vanessa Whittaker SC said the “very flawed” process of gathering expert evidence “was found to have affected the lay evidence in these proceedings”.

“The conduct was so far on the wrong side of the line that there should be cost consequences to the EDO,” Whittaker said.

Whittaker went on to say that the expert evidence lacked qualification and independence, was reliant on “forensically useless assumptions”, and was “incomprehensibly incomplete”.

“Santos has seen the tip of the iceberg with respect to EDO’s conduct in these proceedings, [and] we are entitled to see the balance of that iceberg,” Whittaker said.

In reply, EDO’s counsel Matthew Brady KC said the iceberg submission was an acceptance that Santos does not know what lies below, “and this is nothing more than a fishing exercise to endeavour to try and find a case beyond the case that was articulated”.

“Santos cannot say, ‘this is what we think our case is, but we don’t know for certain, and we effectively want to go on an exploratory investigation of everything EDO did’,” Brady said.

“This is a mammoth area of investigation and … it is to put the cart before the horse to say we want to investigate all of these things and then we will tell you if we can find a case against EDO.”

Brady argued the subpoenas are “unconstrained as to time and purpose”, meaning any order could capture communications between the EDO and expert witnesses years before the proceedings started.

Jubilee Australia Research Centre, Sunrise Project, and Environment Centre for the Northern Territory also received subpoenas.

Their counsel, Zelie Heger, objected to this, but Whittaker argued they should still be covered by any court order because all are part of the EDO’s “Stop Barossa Gas” campaign.

Justice Charlesworth has reserved her decision.

Controversial meetings behind ‘flawed’ evidence

Submerged landscape and archaeology expert Dr Mick O’Leary gave incorrect information to Tiwi Islanders during a “cultural mapping” exercise in a way to “coach the attendees about what they might say … so as to achieve their objective of stopping the pipeline”.

Justice Charlesworth said his conduct was “far flung from the proper scientific method” and fell short of his obligations to the court.

“My conclusions about Dr O’Leary’s lack of regard for the truth, lack of independence and lack of scientific rigour are sufficient to discount or dismiss all of his reports for all purposes,” she said.

During the same cultural mapping meeting, the EDO lawyer drew a line on a map in a way that “could not on any reasonable view truthfully reflect what a Tiwi informant” had told her.

It was presented to the Tiwi Islanders as a present-day representation of the affected area, but it had, in fact, shown what the area was like 30,000 to 50,000 years ago, the court found.

The map, along with the line, was presented as evidence.

Justice Charlesworth said the material supported the inference that instructions from the Tiwi Islanders were “distorted and manipulated before being presented to this court via an expert report”.

In another controversial meeting, Gareth Lewis, a cultural heritage expert, convened a meeting with 18 Tiwi Islanders, two EDO lawyers, and two Northern Territory environmentalists to elicit “information that would stop the pipeline” and engaged in “subtle coaching”.

One of the EDO lawyers told attendees that their cultural stories were “stopping this multimillion-dollar project”.

“There was nothing at all wrong with encouraging those in attendance to tell their stories, but the cumulative effect was to urge those present to tell their stories in a way that propelled their traditions into the sea and into the vicinity of the pipeline,” Justice Charlesworth said.

In a May report, the Department of Climate Change, Energy and Environment and Water found the EDO did not breach its terms of a $8.2 million federal government grant during the Santos case.

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