How Santos targets climate activists with ‘lawfare’
A legal victory has led oil and gas company Santos to seek retribution against environment groups, in actions that could crush future efforts to hold fossil fuel companies to account.
This piece was previously published in The Saturday Paper on 26 October 2024.
Major Australian oil and gas company Santos is deploying “scorched earth” tactics in contentious legal proceedings that could silence future opposition to the fossil fuel industry’s expansion plans in Australia.
The proceedings are the aftermath of Munkara v Santos, an unsuccessful attempt by a group of Tiwi Islanders to protect areas of claimed cultural significance for First Nations people from a new gas pipeline being constructed by Santos.
After winning the case earlier this year, Santos is now using the “world’s most-feared law firm” to pursue lawyers from the Environmental Defenders Office (EDO) and several Australian environment groups in a bid to recover its substantial legal costs. Santos’s legal actions could also expose the inner workings of Australia’s climate movement, putting activists personally at risk of retribution.
If successful, future efforts to hold fossil fuel companies accountable through the courts could be incapacitated. The ramifications include the potential to force any “third-party supporter” of unsuccessful climate litigation – such as donors, campaigners or environment groups that provide logistical or funding support – to pay the legal bills of fossil fuel defendants.
In January, Santos successfully defended a challenge to the Barossa Gas Export Pipeline that will transport gas from the Barossa gas field in the Timor Sea to a gas processing and export terminal at Middle Arm near Darwin.
The pipeline is critical to Santos’s plan for a $5.7 billion gas extraction project in the Timor Sea. Once fully operational, it is expected to produce 3.7 million tonnes of LNG annually – along with 15.2 million tonnes of greenhouse gas emissions. The Australasian Centre for Corporate Responsibility has described the project as a “carbon bomb”.
The challenge – led by Simon Munkara, Carol Puruntatameri and Maria Tipuamantumirri from the Tiwi Islands – stated the construction of the pipeline, and its presence on the seabed, would have a negative impact on First Nations cultural heritage.
Evidence presented to the Federal Court suggested the site of the pipeline was an area with significant value and history for First Nations communities, and construction would disturb cultural songlines and the ancestral beings Ampiji (rainbow serpent) and Jirakupai (Crocodile Man).
Represented by the EDO, the group aimed to halt construction until the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) reviewed the licences issued to Santos and considered the potential cultural heritage impacts.
Despite initially winning a temporary injunction, the Tiwi Islander group was ultimately unsuccessful and the construction of the pipeline is proceeding.
In a damaging judgement for the EDO delivered in January, Justice Natalie Charlesworth determined that some evidence relating to the location of the sites the group declared culturally significant had been “confected”, and that members of the Tiwi Islands community had been “coached” to tell “their cultural stories in a way that would extend them to the area of the pipeline”.
They are serious findings by the court and they reflect poorly on the EDO. Following the judgement, the office’s board commissioned a review of its processes to be conducted by Tony McAvoy, SC. In a letter to Environment Minister Tanya Plibersek in March, EDO chief executive David Morris wrote, “We take this decision seriously, as we would any decision that includes judicial comment about our lawyers” and that “the review will examine and make recommendations on best practice when working with First Nations clients and communities, including in Court processes involving cultural heritage”.
Seeing an opportunity to financially punish the EDO and “unmask” the climate movement, Santos has engaged the American law firm Quinn Emanuel, which openly boasts about its status as the “most feared law firm in the world” and has a reputation for its aggressive approach.
Santos is engaged in a form of “lawfare” that seeks to scare off future challenges to its oil and gas expansion plans. It has turned the Munkara case into what can be characterised as a strategic lawsuit against public participation, or “SLAPP”.
In response to the Munkara case, Santos is seeking retribution against the EDO – and four environment groups that Santos alleges may have worked with the EDO – using tactics designed to silence future opposition to the fossil fuel industry’s expansion plans, including the threat of cost orders.
It is an established principle in litigation proceedings that “costs follow the event”, meaning the losing side pays the legal costs of the winning side. This is always a risk for those commencing litigation. In rare cases, a court may order legal costs be paid by the lawyers representing the losing side. This may occur in cases where a court determines that the conduct of the lawyers contributed to their side incurring unnecessary costs, including through poor conduct during the trial.
In even rarer cases, a court may order that the winner’s legal costs be paid by a third party not directly involved in the legal proceedings, but which the court decides should be responsible for the winner’s legal costs because they supported or funded the unsuccessful side.
In the aftermath of the Munkara case, Santos is seeking to have its legal costs paid by the EDO directly. Santos argued the EDO had gone beyond acting as a firm in a traditional lawyer-client relationship and had begun the litigation as an “environmental activist organisation”.
Justice Charlesworth has sided with Santos throughout the bulk of the litigation and the EDO has effectively conceded it will be required to pay “indemnity costs”, meaning the office would pay almost every cent of Santos’s legal fees – a bill that could be upwards of $8 million.
The court also ruled that Santos could subpoena internal documents from the EDO, including its correspondence with the Tiwi Islander plaintiffs and representatives of four environment groups that supported campaigns to stop the Barossa pipeline: the Sunrise Project, the Environment Centre NT, Jubilee Australia Research Centre and advocacy group Market Forces.
In an effort to accumulate evidence to justify its claims against the environment groups, Santos also sought subpoenas that would compel the environment groups to hand over documents detailing their correspondence with the EDO and any financial support they may have provided towards the Munkara case. Santos could use the information in the documents to argue that any or all of these groups should also be held responsible for its legal costs.
The correspondence would likely detail the relationships between the EDO and the environment groups, exposing the work of the broader Australian climate activist movement – fodder for detractors beyond the fossil fuel lobby. The release of documents sought by the Santos subpoenas would potentially allow individual climate campaigners to be identified and scrutinised, enabling personal attacks.
Fossil fuel lobby group Australian Energy Producers is already using the findings of the Munkara case to demand the EDO be stripped of government funding. Opposition Leader Peter Dutton has promised to do so, if elected.
Greenpeace Australia Pacific’s general counsel, Katrina Bullock, says Santos’s efforts could scare off future legal challenges to fossil fuel projects. “It has aggressively targeted the Tiwi Islanders’ legal team, relentlessly seeking costs against them. These actions risk discouraging communities from using legal avenues to hold fossil fuel companies accountable for their harmful practices.”
Principal solicitor from the Justice and Equity Centre, Ellen Tilbury, says the case could have significant consequences for broader public interest litigation.
“Community legal centres attract smart, passionate lawyers but operate with limited resources. We are often challenging government or big corporations, who have large legal teams with deep pockets,” Tilbury told The Saturday Paper.
“The decision we saw in the Santos case could act to silence individuals and organisations who support a cause, significantly undermining effective public campaigning. And it could scare off potential allies who would otherwise offer practical and moral support to small legal organisations that are fighting in the public interest.”
It is not the first time a fossil fuel company has deployed such heavy-handed tactics in Australia. Queensland environmental campaigner Ben Pennings is still battling Adani in the state’s Supreme Court. Adani had initially sought $600 million in compensation, alleging Pennings unlawfully disrupted operations at its Carmichael coalmine. As part of the litigation, Adani sought to have Pennings’ home raided and hired a private investigator to stalk members of his family. The campaigner has described Adani’s efforts as an abuse of process.
The use of SLAPP tactics is indicative of an industry that is becoming increasingly desperate to protect its own business models and interests in the face of mounting evidence of the emerging impacts of climate change and the increasing urgency of the need to phase out oil, gas and coal.
The EDO and Santos declined to provide comment for this story.