by REX WIDERSTROM – ALREADY struggling to pay a $9m costs order after losing a high-profile case against energy giant Santos, the Environmental Defenders Office may be about to lose its charitable status.
The federal opposition, which has said it will end the group’s $8.3m in government funding if elected, has referred it to the Charities Commission for investigation.
- Green lawyers engaged in “a form of subtle coaching” of Tiwi Island witnesses.
- Evidence was “so lacking in integrity that no weight can be placed on it”.
- There’s no place for charities to use “fake culture” to try and stop mining and jobs.
If the EDO were no longer classified as a charity, donations to it would no longer be tax-exempt.
Coalition resources spokeswoman Susan McDonald confirmed she had referred the “radical” group for investigation after it was severely chastised by a judge who heard its bid to block a gas export pipeline north of Darwin.
PREVENT
In the Federal Court case against Santos Energy, the EDO represented the Indigenous Tiwi Islanders in a bid to prevent the oil and gas company from developing its $5.8b gas export pipeline.
It argues that the development could disturb “Jirakupai” or the “Crocodile Man songline,” which runs from Cape Fourcroy on the westernmost point of Bathurst Island into the deep sea near the pipeline route.
They were also concerned about the potential impact on an ancestral being of fundamental importance in their culture called Ampiji, a rainbow serpent.
But Justice Natalie Charlesworth said the evidence involved “confection” and the coaching of witnesses to such an extent that “I cannot accept that the witness statements contain words actually spoken by the witnesses and recorded verbatim”.
She referred to one witness, who had supposedly prepared a document presented to the court, including his own witness statement, “but who, when shown it in cross-examination, appeared to be unfamiliar with it”.
The judge dismissed that evidence from a “cultural mapping exercise” 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 Island witnesses.
Senator McDonald said there was no place in Australia for charities to use “fake culture” to try and stop mining and gas revenue and jobs, and that the EDO’s “delays and dishonesty” had severely undermined investor confidence in gas exploration and production.
SANCTION
“For a nation that takes our Indigenous cultural heritage seriously, we need to be equally serious about how we sanction those who confect and construct it,” she said.
EDO’s chief executive David Morris said it was an “essential service for people who want a world where nature can thrive and cultural heritage is respected and protected,” and had been doing that job for almost 40 years.
He told AAP it was Senator McDonald’s prerogative to make any referrals she deems fit, but insisted the Office is a politically non-aligned community legal service that provided access to justice that was usually only available to the rich and powerful.
“In a climate and extinction crisis, people need the free legal support we provide more than ever,” Mr Morris said.
The EDO’s financial accounts, filed with the commission on January 31, revealed an $8.6m loss for the financial year because the costs awarded against it over the failed action against Santos.
The costs awarded to Santos have been paid in full through the use of reserves, insurance and the securing of a $6.5m interest-free, working capital facility.
Following the adverse finding in the Santos case, the organisation’s board appointed Indigenous barrister Tony McAvoy to conduct a review.
The review was tasked with finding “ways to strengthen its legal practice and would examine and make recommendations on best practice when working with First Nations clients and communities, including in court processes involving cultural heritage,” its chairperson, Bronwyn Darlington, said in a statement in March last year.
“EDO has had an exemplary record over the past 40 years in jurisdictions across Australia,” she said.
“Without EDO, many of our clients would not have access to justice and would see the places or values they are intent on protecting harmed, in some cases beyond repair.”PC
