Newly released videos show the "confection" the Environmental Defenders Office (EDO) used in its failed attempt to block Santos' Barossa gas project. 

The videos—released by the federal courts and reproduced courtesy of the ABC—were submitted by the EDO as evidence. They show a series of conversations with Tiwi Islanders explaining areas of cultural significance.  

As reported in ENB, in January 2024, the case collapsed when the presiding judge dismissed the evidence produced and ordered the legal charity to pay Santos more than $9 million in legal costs. 

Justice Charlesworth was scathing in her criticism of the EDO and the consultants it had employed, accusing them of a "subtle form of coaching" of Tiwi Islands witnesses.  

She also said the cultural mapping sessions involved "confection or construction" and found them "so lacking in integrity that no weight can be placed on them." 

What the videos show 

In one of the videos, a Tiwi woman points to a lake on the map, saying it is where Mother Ampiji, caretaker of the sea, resides.  

She identifies an area as Cape Fourcroy and a Crocodile Man, indicating that he is going into the sea from that point.  

During the case, Justice Charlesworth noted in her judgment that Cape Fourcroy did not exist 30,000 years ago, as depicted on the map. 

In a second video, marine science academic Mick O'Leary from the University of Western Australia points to the area where the freshwater lake is depicted, referring to it as "around the island."  

During the case, Justice Charlesworth noted in her judgment that this was "misleading, as the islands did not exist as islands when the lake existed as a lake (if indeed it did exist)."  

Justice Charlesworth said O'Leary appeared to "to encourage and hint at the informants … as though 'memories' were being prompted by the exercise."  

The video also shows a Tiwi woman saying ancestral beings resided around the islands and "they all have songlines." O'Leary responds, "It's amazing to me that what you describe from your memory is like how it is on the map, you know?" 

In another video, an EDO lawyer annotates the map with a pencil after a Tiwi informant says, "To the sea. " She adds, "It comes out from Rocky Point and goes to the sea," as she draws a line westward from a point on the north-west coast of Bathurst Island, ending the line in the ancient lake.  

"Yeah, it changes," the informant replies.  

"To the sea, so that's where the sea started?" the lawyer says. 

"Yep, yeah," the informant replies.  

During the case, Justice Charlesworth noted in her judgment that "the informant says nothing to the lawyer about where that line should begin or (critically) where it should end". 

"Most concerningly, I consider [the video] depicts what could only be described as the EDO lawyer drawing on the map in a way that could not, on any reasonable view, truthfully reflect what the Tiwi informant had said."  

In a statement, EDO chief executive David Morris said the legal charity had since established a First Nations specialist team and advisory committee in response to the court's ruling.  

"We have also fully reviewed our operations, reconfigured our legal teams, and established a committee for reviewing complex litigation," he said. 

He added the EDO would "not shy away from the challenges of working in this area".  

"Legal practice in the cultural heritage protection space is complex and challenging for many reasons," he said.  

"The work occurs at the crossroads of Western and First Nations' legal systems, and First Nations communities frequently lack the resources to engage in complex legal processes."