At last! A barely noticed Federal Court order in April means there is now a real prospect that the cloak of secrecy over the booming multi-million dollar eco-warrior conspiracies to undermine the Australian economy (by prematurely killing off all fossil fuels, including pollution-reducing natural gas, while simultaneously banning nuclear power) will be torn aside. The sort of ‘lawfare’ deals that have been costing resource developments multi-millions of dollars in delays – and discouraging the progressing of billions of dollars of planned projects – will now be open to scrutiny. The Court has dismissed applications to set aside subpoenas from Santos Ltd which seek information relevant to recovering its costs arising from Justice Charlesworth’s January finding in its favour. This outstanding judgment was a forensic demolition of the Environmental Defenders Office’s (EDO) blatantly dishonest case against Santos’ $5.4 billion economically essential Barossa gas development off the Northern Territory coast. In finding emphatically for Santos, Charlesworth dismissed EDO evidence as ‘confected’ and ‘lacking integrity’, describing it as ‘distorting and misrepresenting’ Tiwi Islanders’ views, on whose behalf the EDO was supposedly acting; in reality Santos had overwhelming local indigenous support for the project.

So now three environmental activist organisations, Jubilee Australia, the Sunrise Project Australia and Environment Centre (NT) that publicly boasted of their earlier ‘lawfare’ successes in delaying the Barossa project, at a cost to Santos of many millions of dollars, are compelled to reveal their real involvement in this cynical exercise of misusing native title legal protection in their anti-fossil-fuel crusade. At issue is the nature of their involvement; there is no doubt about their being involved. This is evidenced, as the Judge said, by their own statements. Environment Centre (NT) claimed in its annual report it was ‘leading the charge’ against Barossa. In describing itself as a co-founder, Jubilee Australia’s annual report claimed that at the beginning of 2021, Jubilee Australia, the Environment Centre (NT) and Tiwi Island Traditional Owners formed the nucleus of what would become the ‘Stop Barossa Gas Coalition’.

In a similar self-congratulatory 2022 annual report, the Sunshine Project stated, ‘Working with our network of partners, we have won a legal challenge by Tiwi Islands Traditional Owners that resulted in cancellation of the proposed $5.5 billion offshore Barossa Gas Project.’ But after Sunrise was served with its subpoena, this (what may become a costly) boast disappeared from the filed record.

This triumvirate of eco-saboteurs must now produce, ‘All documents recording or evidencing any communication with the EDO or the Applicants in relation to the Proceeding’. And along with the fourth conspirator, Market Forces Ltd (a branch of the multi-million-dollar Friends of the Earth) which was excluded from the subpoena’s broad requirement of ‘any communication’, the subpoena compels them to produce, ‘All documents recording or evidencing any payment or indemnity to the Applicants or the Environmental Defenders Office (EDO), and any underlying agreement of the same, in connection with, including prior to, the Proceeding.’

But while, as the Judge noted, Santos’ issuing of a subpoena was aimed specifically at assisting it ‘to decide whether there exist grounds for a non-party costs order against any one of them, in addition to the EDO’ (but not the few Tiwi Islanders involved), the consequences are far wider. The huge recent growth in the funding, from generally secret sources (self-interested foreign nationals? Investors in competitive energy?) of environmentalist economic saboteurs dedicated to killing fossil fuels at whatever the cost, raises national interest concerns.

Whether the awarding of costs against a financial ‘maintainer’ of another party’s litigation would damage the current style of wolf pack attacks on resource projects is yet to be seen. Environmental activism is now a multi-million dollar activity, as evidenced by Sunrise Project Australia with its net assets of $19 million having more than doubled in 2022 after a 40 per cent rise in revenue to a whopping $74 million. Its funding of ‘Stop Barossa’ (one of 200 grants totalling $44 million in Australia and worldwide) was in line with its mission ‘to support grant proposals that aim to drive the shift to renewable energy and/or keep fossil fuels in the ground’.

Market Forces is part of the Friends of the Earth activist complex, with its Australian offshoot’s recently filed annual return for 2021-22 showing net assets of $3.59 million and revenue of $4.26 million. The EDO has net assets of almost $5 million after revenue of $13.3 million last year of which $1.2 million came from the government. But there is also a legion of small environmental tax- deductible charities like Jubilee whose negative net equity, despite raising $654,908, would not be helpful in contributing to Santos’ costs. And the Environment Centre (NT) with net assets of $590,811 could contribute a bit

The EDO’s Barossa disgrace and the subsequent court-endorsed subpoenas at least provide an opportunity to fix what has become an economic running sore. Evidence suggesting that the real purpose of the Barossa legal action was environmental rather than the protection of indigenous rights, had prompted Justice Charlesworth to give the assurance that the outcome of the case was not affected by ‘the perceived argument that the EDO was the principal actor in this action, pursuing its own agenda and perhaps not genuinely acting on instructions of their Tiwi clients’.

The restoration to $9.8 million over four years in last year’s Albanese Labor budget of EDO’s federal funding that had been cancelled a decade ago by the Abbott coalition government, has again become a political issue, with opposition leader Peter Dutton undertaking to remove it again on winning government and Environment Minister Tanya Plibersek seeking departmental advice on whether the EDO’s Baross blunders breached its funding agreement. She also wrote to EDO’s CEO David Morris making clear her expectation that it act ethically and professionally.

At least the board of the EDO, has recognised the need for reputational restorative action after such unfavourable ‘judicial comment about our lawyers’. It has ‘appointed a team of external legal experts to recommend process reforms to enhance provision of EDO’s legal services… when working with First Nations clients and communities, including in Court processes involving cultural heritage’.

The severely scarred EDO is nevertheless continuing to run major legal actions on behalf of three environmental heavyweights, two of them against Woodside involving its $16.5 billion Scarborough offshore gas field on behalf of the Australian Conservation Foundation and another, on behalf of Greenpeace, alleging the misleading of consumers on the climate impact of its emissions. It is also representing the Australasian Centre for Corporate Responsibility in a case accusing Santos of greenwashing.

So the well-funded war against fossil fuels progresses in Australia despite increasing overseas recognition that they, and particularly natural gas, will be needed to play a major role in any orderly transition to renewable energy. And that will require the new investment that Santos’ Barossa enemies will do their utmost to prevent.