The map, songline and pipeline. How legal experts misused Indigenous culture

On a mid-November afternoon last year, big news arrived for the activists and Tiwi Islander traditional owners who had been fighting to stop a giant new gas project in the Timor Sea.

“OMG, we win again!!!” one campaigner wrote in a text message. “Thanks to the O’Leary Map.”

More than 3000 kilometres away, the Federal Court in Melbourne had upheld emergency orders sought by Tiwi traditional owner Simon Munkara, preventing gas company Santos from starting work on a section of its 262-kilometre pipeline in light of new risks to Indigenous heritage and songlines.

The O’Leary Map, as it had come to be known, had been the clincher.

A lecturer in marine geoscience at the University of Western Australia, Dr Michael O’Leary was a central expert witness appointed by the Environmental Defenders Office (EDO), a leading non-profit legal centre, in a last-minute challenge against Santos’ $5.8 billion Barossa liquefied gas venture.

His map, the court heard, was produced following a cultural-mapping workshop he had led months earlier with eight Tiwi Islanders and two EDO lawyers. It depicted satellite imagery of Bathurst Island – the land mass nearest to the proposed pipeline – and topographical features of a seabed to the west.

Most importantly, it identified an oval-shaped area, two kilometres from the pipeline route, that was said to be the resting place of the rainbow serpent Ampiji, a creature of the Tiwi people’s Dreaming stories that connect them to the land and sea.

There were other notable markings too: a green broken line said to relate to a song line about a Crocodile Man, and another area where one traditional owner had said there may be ancient burial grounds. These may also be threatened by the proposed pipeline, the court was told.

The court’s rejection of Santos’ bid to lift the injunction delivered a major blow for the ASX-listed energy giant – the delays were said to cost it more than $1 million a day. But it notched up a stunning win for the EDO, Munkara and two other traditional owners who had joined the case.

“Santos’ crews were hours away from beginning work on this pipeline which poses significant risks and impacts to our client’s Sea Country,” an EDO lawyer said in November. “We are very relieved.”

In the end, their relief was short-lived. Within two months, the injunction was overturned, Santos was cleared to proceed, and the EDO found itself under attack like never before.

This past year has been bruising for the EDO, Australia’s largest environmental legal centre, which is jointly funded by donations and state and federal governments. In the fallout from the failed pipeline case, it has faced several reviews into its conduct, outrage from both sides of politics, calls for it to be stripped of Commonwealth funding, and an aggressive legal push by Santos to unmask its private-sector donors. Last week, it was hit with a bill for more than $9 million for legal costs that it must hand over to the oil and gas giant.

The saga has also added fuel to larger and longer-held concerns in the resources sector that some green groups, their legal advocates and the supposedly independent cultural experts they work with, are misusing Indigenous legal issues to pursue anti-fossil-fuel agendas.

Both in Australia and around the world, activist efforts to impede fossil fuel projects have been rising amid intensifying warnings about the need to slash emissions and avert catastrophic climate change. Barossa has been a particular target for campaigners, who describe it as a “carbon bomb” due to the field’s high concentration of carbon dioxide.

“I support people having the ability to use the court system appropriately to protect their rights and interests,” says Resources Minister Madeleine King.

But there is a point where it “crosses the line into activism”, she says. “We have seen heritage and culture manipulated to pursue other ideological ends,” King says.

In the most damning sections of Justice Natalie Charlesworth’s decision to lift the injunction in January, the EDO and O’Leary were found to have coached Tiwi attendees at the cultural-mapping workshop over what they might say, so as to “achieve their objective of stopping the pipeline”. The entire exercise, Charlesworth said, had been “so lacking in integrity that no weight can be placed” on it.

Large maps presented at the meeting, showing the area as it was 30,000 to 50,000 years ago, had included colouring to identify contemporary coastal areas, which would have formed part of the mainland because water levels were lower, Charlesworth said. In one instance, an attendee identified a songline on Cape Fourcroy, which did not exist at the time depicted in the map.

The O’Leary Map’s songlines and other locations were pointed out by islanders who wanted to stop the pipeline, she concluded, and did not match views of other Tiwi Islanders, including those canvassed by Santos’ anthropologist, who conducted surveys over many months. This left nothing more than a “negligible chance” of objects of archaeological value along the pipeline route, she said.

“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.”

‘We are trying to be proactive in giving everyone the answer – the Commonwealth and oil and gas companies – but they are not listening.’

Gareth Ogilvie, executive officer of the Bardi and Jawi Niimidiman Aboriginal Corporation

O’Leary and the University of Western Australia declined to comment for this article.

Ben Wyatt, a former treasurer of Western Australia who has made history as the first Indigenous director of an ASX200 company with board seats at both Rio Tinto and Woodside, says he has long been concerned about what he sees as the increasing appropriation and misrepresentation of Aboriginal cultural heritage by those “simply seeking to disrupt development, primarily, but not exclusively, of resource projects”.

“This is politics and activism at its most deceitful – the co-opting of Aboriginal people by green groups who seek to oppose developments creates unnecessary divisions in communities, which are often struggling to overcome other pressing social and economic challenges,” Wyatt says.

“The wrongful assertion of something so significant to Aboriginal people by those who have no real interest in the proper assertion of those rights has led to increasing public scepticism of legitimate claims and concerns of Aboriginal Australians.”

EDO chief executive David Morris says the organisation has treated the court’s findings with the “utmost seriousness”, but insists it diligently followed its clients’ instructions in the Munkara case at all times.

In the EDO’s 40 years, he adds, “this is the first time there has been a finding of this nature”.

“First Nations peoples are entitled to be consulted about projects that impact their Country and culture – too often the consultation that occurs is inadequate or tokenistic,” he says.

“EDO empowers communities to use the law to protect Country and cultural heritage and Australia’s threatened environments.”

Mardudhunera woman Raelene Cooper, a former chair of the Murujuga Aboriginal Corporation in WA’s Pilbara, challenged Woodside last year over the $16 billion Scarborough project and its potential risks to her songlines, including on whales and turtles, which are of high cultural importance. Her claim was brought with the assistance of the EDO and succeeded in forcing a brief suspension of seismic testing.

In her experience, the EDO have always acted professionally, “know their craft”, and adhere to clients’ instructions.

“We use the likes of the EDO to help us with legal processes that a lot of us don’t understand,” she says.

“They are our only lifeline when it comes to fighting the likes of industry and government.”

To others, however, the Barossa case exposes how the organisation and other environmental groups are using green and red tape to chalk up a growing number of stunning legal wins – tactics they refer to as “lawfare”, designed to secure last-minute injunctions over mining and energy projects that had already gained approval.

Such claims are often procedural, says MST Marquee energy analyst Saul Kavonic, and are intended to force costly delays and cause heightened uncertainty over the approvals process to deter further investment and choke the growth of future oil and gas production.

“This is the problem when a group sees ending fossil fuels as an ideological absolute,” Kavonic says. “They believe their ideological end justifies their means.”

The government and the gas industry say the Barossa case underlines the need to reform the Commonwealth assessment regime for offshore projects and to specify exactly who a company must consult, such as a traditional owner with a connection to Sea Country.

The EDO, in 2022, successfully represented another Tiwi traditional owner, Dennis Tipakalippa, whose clan had not been considered “relevant persons” for consultation over the Barossa project. The judgment forced drilling to be suspended and reverberated across the industry, triggering other challenges.

“What has happened, historically, is that the consultation process has never been challenged – until recently,” says Adam Beeson, general counsel at the Australian Conservation Foundation. “It became clear in the Tipakalippa case that it wasn’t being done correctly by the gas companies.”

The Albanese government wants to introduce reforms aimed at specifying exactly who a company must consult at the start of the consultation process, to avoid ambiguity and eleventh-hour legal challenges.

The details, however, remain up in the air after it shelved the legislation under a deal with the Greens to secure the passage of a different bill earlier this year. The environmental lobby took issue with part of the reforms that they feared could have enabled the resources minister to change offshore permitting regulations to “suit the gas companies” without needing approval from the environment minister.

Conservationists say the existing regime is clear, and reject the claim that ambiguity is causing excessive project delays.

“In terms of the Santos-Munkara case, it was only two months between the interim injunction and the final decision which saw the injunction lifted,” Beeson says.

Consultation and public participation are foundational concepts in environmental approval processes, he adds. “It is really up to our elected representatives to resist that, and not to cave into hyperbole from the gas lobby.”

Gareth Ogilvie, executive officer of the Bardi and Jawi Niimidiman Aboriginal Corporation, says recent rulings have revealed regulatory shortcomings at a time of intensifying pressure on Sea Country from new energy projects. In a February submission, Ogilvie outlined proposals for reforms to bolster consultation protections for traditional owners and ensure they are given the same rights over Sea Country as they have on land, “but nothing has been provided back to us, almost 10 months later”.

“We are trying to be proactive in giving everyone the answer – the Commonwealth, and oil and gas companies – but they are not listening,” he says.

As for the EDO, “they need to do some soul-searching”, Ogilvie says.

“They should focus on the green environmental-type policies, and not mix it with black heritage concepts,” he says. “They don’t have the cultural authority to do that.”

King, the federal resources minister, says she is committed to reforming the system and improving arrangements so that “First Nations peoples and others do not need organisations like the EDO or other lawyers to have their voices heard”.

“Some would prefer an ongoing lawyers’ picnic,” she says. “I want to get a better, more respectful system of consultation that works for everybody.”

The Market Recap newsletter is a wrap of the day’s trading. Get it each weekday afternoon.