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Environmental Defenders Office to review its handling of major case
Following critical judicial comments, the Environmental Defenders Office has appointed an external team to review how it handled a major case involving First Nations clients and communities.
Naomi Neilson and Grace Robbie
Image credit: Environmental Defender's Office
A team of external practitioners, led by Dr Tony McAvoy SC, will review and make recommendations to improve the legal services offered by the Environmental Defender’s Office (EDO) after a lawyer with the organisation was criticised by Justice Natalie Charlesworth.
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The unnamed lawyer had been working with Tiwi Islanders for the Munkara v Santos case, which sought to prevent Santos from commencing its 262-kilometre pipeline project in the Timor Sea.
A temporary injunction was placed on Santos, but Justice Charlesworth scrapped this in January this year, having found EDO’s expert reports did not sufficiently support its arguments.
In the lengthy judgment, Justice Charlesworth said the conduct of the EDO lawyer and experts had the effect of reducing the “integrity” and the reliability of parts of the organisation’s evidence.
In one meeting, Dr Mick O’Leary, an expert in submerged landscape and archaeology, gave Tiwi Islanders incorrect information.
During the same meeting, the EDO lawyer drew a line on a map but did so in a way that “could not on any reasonable view truthfully reflect what the Tiwi informant” had told her.
The map with the line was presented as evidence.
“The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this court via an expert report, and so I find,” Justice Charlesworth said.
In another meeting, expert Dr Gareth Lewis urged the Tiwi Islanders to “present a united front” in circumstances where he had not met the informants before and was expected to provide a report to the court.
The EDO lawyer told the attendees it was their cultural stories that were “stopping this multimillion-dollar project”.
Dr Lewis’ participation “raised a concern in my mind about his independence”, Justice Charlesworth said in the judgment.
“My second broad concern is the words of Dr Lewis and the EDO lawyer considered together constituted a form of subtle coaching.
“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 determined.
In a statement announcing the external review, EDO said review members were all “leaders in this field of legal practice”.
Chalk & Behrendt and Gilbert + Tobin will assist McAvoy.
