Lay Witness Evidence “Distorted and Manipulated” by Lawyer and Expert

In the June 2023 issue of Hearsay I wrote on the topic of “Witness Training – Ethical Preparation or Unethical Coaching?”. There I referred to r 68 of the Barristers Rule 2011 (Qld), under which there was proscribed a barrister proceeding to “advise or suggest to a witness that false or misleading evidence should be given [or] condone another person doing so” or to “coach a witness by advising what answers the witness should give to questions which might be asked”. So much is part and parcel of a barrister’s obligation under rule 12(b) proscribing “conduct which is … prejudicial to the administration of justice”. Similar obligations obtain in respect of solicitors in Queensland. Such rules are longstanding and are universal across the states and territories. In Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 (15 January 2024), Charlesworth J expressed that the solicitor for one of the parties had engaged in conduct which, at the least, operated to distort or manipulate the lay evidence relied upon to found the expert evidence adduced by that party at trial. In addition, her Honour found that party’s expert did “lie” to lay witnesses in conference in formulation of their evidence, leading to such expert’s impartiality not being accepted, and lay witnesses being misguided and their evidence not accepted (in part). The case exemplifies the need for a high degree of care to be exercised by lawyers and experts in order to maintain the integrity of evidence sought to be adduced at trial in their client’s case.

Her Honour wrote:

[1]  The applicants, Simon Munkara, Carol Puruntatameri and Maria Purtaninga Tipuamantumirri are Aboriginal people from the Tiwi Islands. They assert that they have cultural and spiritual connections to the sea forming part of their clan country.

[2]  The Tiwi Islands are located about 80km north of Darwin in the Timor and Arafura Seas. Parts of those waters are offshore areas within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Act establishes a regulatory framework for petroleum exploration and recovery in offshore areas extending seaward to the outer limits of the continental shelf.

[3]  The respondent, Santos NA Barossa Pty Ltd ACN 109 974 932 is the proponent of a project for the extraction and export of gas from the Bonaparte Basin in the Timor Sea, known as the Barossa Project. It is the holder of a number of licences issued under the Act authorising certain activities for the construction of infrastructure for the extraction and conveyance of gas in offshore areas. One of those activities involves the construction of a 262km gas export pipeline (referred to at times as the GEP), commencing in the Barossa Field and joining the existing Bayu-Undan pipeline in the south. The pipeline route passes to the west of the Tiwi Islands, past Cape Helvetius and within 7km of Cape Fourcroy. When completed, the pipeline will be used to supply gas to a liquified natural gas processing plant in Darwin.

[4]  The applicants alleged that there is a risk that the construction of the pipeline, and its existence on the sea bed, will significantly impact their cultural heritage.

[5]  The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (2023 Regulations) came into force on 10 January 2024, less than a week before the publication of these reasons. They repealed and substituted the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to which the parties referred throughout the proceedings. The provisions of the now repealed Regulations have been re-numbered or organised differently in the 2023 Regulations, but in substance they are left unchanged. An explanatory memorandum to the 2023 Regulations confirms that changes in language are not intended to alter the meaning of the law as previously in force. In these reasons I will refer to the Regulations as numbered and in force when this action commenced, as they are relevantly unchanged by the 2023 Regulations. Neither party has suggested that the outcome would differ under the law now in force and I am independently satisfied that is so.

[6]  The Regulations establish a regime for the preparation by a titleholder of an environment plan for an “activity”, and acceptance of the environment plan by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). On 9 March 2020 NOPSEMA accepted an environment plan relating to the construction of the pipeline, titled “Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020)” (Pipeline EP). That is the environment plan that is “in force for the activity” for the purposes of reg 17(6) of the Regulations. It provides:

New or increased environmental impact or risk

(6) A titleholder must submit a proposed revision of the environment plan for an activity before, or as soon as practicable after:

(a) the occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the environment plan in force for the activity; or

(b) the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of:

(i) a significant new environmental impact or risk; or

(ii) a significant increase in an existing environmental impact or risk;

that is not provided for in the environment plan in force for the activity.

[7]  Regulation 8 provides that a titleholder commits an offence if the titleholder undertakes an activity after the occurrence of (relevantly) any significant new environmental impact or risk arising from the activity which is not provided for in the environment plan in force for the activity.

[8]  Multiple questions of construction arise, including the intended meaning of the words “occurrence”, “significant”, “new” and “risk”, which are not defined in the Regulations. As will be explained later in these reasons, the word “environment” is broadly defined in the Regulations to include (among other things) “cultural features” of places, locations, areas and ecosystems. The phrase “cultural features” is not defined.

The applicants’ case

[9]  The first applicant, Simon Munkara, commenced this action on 30 October 2023, two days before works for the construction of the pipeline were then scheduled to commence. Carol Puruntatameri and Maria Tipuamantumirri were later joined as the second and third applicants. The applicants are respectively members of the Jikilaruwu, Munupi and Malawu clan groups.

[10]  The applicants alleged that Santos presently has an obligation under reg 17(6) to submit a revised environment plan, that obligation having been triggered by an “occurrence”. They alleged that the construction of the pipeline gives rise to a significant new environmental impact or risk, or a significant increase in an existing environmental impact or risk, that is not provided for in the Pipeline EP, within the meaning of reg 17(6). They alleged that commencement of the works for the construction of the pipeline would constitute an offence under reg 8.

[11]  Numerous risks were relied upon, referred to at trial as relating to both “intangible cultural heritage” and “tangible cultural heritage”.

[12]  The case concerning intangible cultural heritage was based in part on two Dreaming stories said to form a part of the applicants’ cultural life relating to two ancestral or spiritual beings: a rainbow serpent or serpents known as Ampiji, and the Crocodile Man, known as Jirakupai.

[13]  There are two aspects to the intangible cultural heritage case.

[14]  The first aspect is one founded on ancient oral tradition, involving song lines told by certain clans of the Tiwi Islanders both in words and in their songs, dances and ceremonies over many generations. Reduced to its briefest expression, the allegation is that:

(1) There are one or more rainbow serpents named Ampiji, one of which resides in Lake Mungatuwu, a freshwater lake in the south west of Bathurst Island. Ampiji is a caretaker of the land and the sea. She patrols the coastline around the Tiwi Islands and also travels into the deep sea and thus into the vicinity of the pipeline. The risk arising from the activity was alleged to include a fear that the construction and presence of the pipeline would disturb Ampiji and that she may cause calamities, such as cyclones or illness that would harm (at least) the people of certain clans. The applicants allege that the pipeline will thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to areas of sea country through which the pipeline will pass.

(2) The Crocodile Man song line is connected with a place in the sea in the vicinity of the pipeline. The applicants allege there is a risk that the activity will disturb the Crocodile Man in his travels and thereby damage the spiritual connection of the Jikilaruwu people to areas of sea country through which the pipeline will pass.

[15]  The second aspect of the intangible cultural heritage case relied upon what was referred to in closing submissions (but not before then) as “potentially adapted beliefs”. It involves an account of Ampiji said by the applicants to have been recently adapted in response to new information Tiwi Islanders have obtained about their sea country, presented to them by a geoscientist in June 2023. The new information, on the applicants’ case, is that in ancient times when the land now forming the sea bed was subaerially exposed, there existed a very large and deep freshwater lake in the area situated about 10km from what is now the western most point of Bathurst Island at or around Cape Fourcroy. At the mouth of the lake, the applicants allege, was an embayment (a recess in the landscape). Whether those features ever existed is an issue in dispute. I will refer them as the Ancient Lake and the Ancient Embayment without suggesting any finding that they ever existed in fact.

[16]  The pipeline route lies between Cape Fourcroy and the place where the Ancient Lake and the Ancient Embayment are allegedly situated. The Ancient Lake is referred to in some materials as a “sacred freshwater source”.

[17]  The “potentially adapted beliefs” proceed from the premise that culture is ever changing, that matters of traditional cultural significance may evolve and adapt to new situations and circumstances, including new information and knowledge. The alleged adapted belief is that there exists a Mother Ampiji who lives in the Ancient Lake. The Mother Ampiji travels around the sea, including around the Tiwi Islands. The applicants assert a spiritual belief that the pipeline will pass between the Ancient Lake and the Tiwi Islands, that it will “disconnect” the Jikilaruwu, Munupi and Malawu clans from the Ampiji who lives in the Ancient Lake and thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of their sea country through which the pipeline will pass.

[18]  The claims relating to Mother Ampiji and the Ancient Lake are also alleged to form a part of ancient Tiwi traditional knowledge and belief passed to Carol Puruntatameri by older generations.

[19]  The case founded on tangible cultural heritage alleged that there may be an archaeological record on and under the sea bed in the area to be affected by the activity, specifically objects and artefacts evidencing human occupation and activity from tens of thousands of years ago when the sea bed was subaerially exposed. The applicants alleged that there is a risk that the activity of constructing the pipeline and its embedment into the sea bed will cause the loss, destruction or relocation of some of that archaeological record and so presents a risk to Aboriginal cultural heritage having significance to the Jikilaruwu, Munupi and Malawu people. In addition, the applicants allege that the activity creates a risk of disturbance or destruction of a series of burial grounds that are said to be located between the pipeline route and the west coast of Bathurst Island.

[20]  Each of the alleged risks were described as involving a “real chance” of there being “notable” consequences, language that reflected the applicants’ preferred construction of reg 17(6).

[21]  The applicants allege that, for the purposes of reg 17(6), the risks asserted by them are “new” because they were not previously assessed by NOPSEMA and that they are not provided for in the Pipeline EP that is presently in force. They alleged that there was an “occurrence” of the risks within the meaning of the provision when the risks were first brought to Santos’ attention in late 2022 and throughout 2023, including by the commencement of these proceedings. They submitted that the conditions to trigger the obligation in reg 17(6) exist, and that Santos is therefore obliged to submit a revised environment plan to NOPSEMA for assessment. Upon the submission of such a plan, it would be for NOPSEMA to determine whether or not it should be accepted in accordance with conditions on its powers identified elsewhere in these reasons.

[22]  The above paragraphs give only a crude summary of the applicants’ case. They are intended to provide a sketch of broad issues so that the lengthy summaries of evidence that are soon to follow can be read with some framework of the allegations in mind. The case as finally articulated in closing submissions is detailed at [847] below.

The relief sought

[23]  The relief sought on the amended originating application filed 22 November 2023 included a declaration under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) that:

1A.… the Respondent must submit a proposed revision to the Pipeline EP that provides for the risk posed by the Activity to submerged Tiwi cultural heritage, in accordance with reg 17(6) of the Environment Regulations.

[24]  In addition, the applicants sought a permanent injunction restraining Santos from undertaking the activity of laying the pipeline until it submits a proposed revision of the Pipeline EP in accordance with reg 17(6) and that revision is accepted by NOPSEMA.

The role of the Court

[25]  This not an application for judicial review of any prior decision of NOPSEMA, and NOPSEMA is not joined as a party. The case articulated by the applicants was confined to an allegation that Santos has a present obligation to submit a revised environment plan. Even if that allegation were to be proven to the requisite standard, it would form no part of the Court’s function to decide what consultation must then take place between Santos and any person. Nor would it form any part of the Court’s function to determine what the content of any revised environment plan should be, nor to determine whether such a plan could or should be accepted by NOPSEMA.

Summary of outcome

[26]  For the reasons that follow the evidence does not establish that the obligation under reg 17(6) (properly construed) has been triggered. It follows that the amended originating application must be dismissed.

THE TRIAL AND EVIDENCE

[27]  This action was commenced by originating application filed on 30 October 2023, accompanied by an interlocutory application seeking urgent injunctive relief. Simon Munkara was at that time the sole applicant. Argument on his application for interim relief extended into the evening of 1 November 2023. On the following day, the Court granted a short term injunction to restrain all work on the pipeline until 13 November 2023. Orders were made setting the matter down for more detailed argument on the question of whether there should be an ongoing injunction pending final judgment in the case. Oral reasons were given and written reasons followed: Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348 (Munkara No 1).

[28]  In Munkara No 1, I explained why I was satisfied that the Court had jurisdiction to grant the relief then sought by Simon Munkara, and why I was satisfied at that time that he was a person who had standing to apply for it (at [39]–[55]).

[29]  The interim injunction remained in force until 15 November 2023. On that day, the Court granted an interlocutory injunction of a more limited kind. The order had the effect of restraining Santos from undertaking works on all but the northernmost 86km of the pipeline route and was expressed to remain in force until 15 January 2024, or such later date as the trial judge may determine: Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421 (Munkara No 2). At the time of those orders, the final relief sought on the originating application was confined to an injunction. The claim for declaratory relief was later added by amendment.

[30]  In Munkara No 2, I addressed again the questions of jurisdiction and standing, including by rejecting a new argument raised by Santos on those questions. Questions of jurisdiction and standing have not been re-agitated and I remain of the views expressed in Munkara No 1 and Munkara No 2 on those interrelated topics.

[31]  An important feature of these proceedings is that the application for the interlocutory injunction was unsupported by any undertaking as to damages given by Simon Munkara or any person on his behalf. I concluded that it was in the interests of justice to proceed expeditiously to trial and judgment. That is principally because of conclusions I had previously drawn as to where the balance of convenience lay with respect to the injunctive relief, considered in light of the absence of the usual undertaking, and having regard to an earlier indication from Simon Munkara’s Counsel that he and other likely applicants were ready to proceed to trial. In addition, contractual terms relating to the pipeline’s construction were such that Santos’s losses were likely to significantly increase if the restraint were to remain in force for a longer period of time.

[32]  In the circumstances just described, the Court’s practice and procedure provisions have been applied in a way to best achieve the objective of making final orders on or before 15 January 2024, being the earliest date on which the Court could conceivably deliver judgment, having regard to the number and nature of issues in dispute. The matter was made ready for trial within a tight timeframe given its factual and legal complexity. The trial proceeded over 10 days in tranches between 4 and 22 December 2023, including oral closing submissions. The Court then received written closing submissions on 4, 5 and 7 January 2024.

[33]  The matter proceeded by way of a concise statement and a concise response in lieu of formal pleadings, although as will be seen, over the course of the proceedings the applicants reframed some aspects of their case and abandoned others.

Lay evidence

[34]  The Court received written and oral evidence from 23 Aboriginal witnesses from the Tiwi Islands (in roughly even numbers from both sides of the dispute). The focus of the applicants’ case is on the people of three clan groups having land and sea country on and to the west of the Tiwi Islands, namely the Jikilaruwu, Munupi and Malawu clans. The 23 witnesses were from six clans, namely the Jikilaruwu (Simon Munkara, Ancilla Warlapikimayuwu Kurrupuwu, Molly Munkara, Valentine Intalui, Magdalen Kelantumama, Marie Frances Tipiloura, Eulalie Munkara, John-Louis Munkara, Jonathon Munkara, Mario Munkara and Theresa Munkara) the Munupi clan (Dennis Murphy Tipakalippa, Pirrawayingi Puruntatameri, Richard Tungatalum and Carol Puruntatameri), the Malawu clan (Therese Wokai Bourke and Marie Tipuamantumirri), the Wurankuwu clan (Tony Majirliyanga Pilakui and Brian Dixon Tipungwuti), the Mantiyupwi clan (Kaitline Kerinauia, Wesley Kerinaiua and Walter Kerinauia) and the Wulirankuwu clan (Stanley Tipiloura).

[35]  Given the common surnames, I will refer to the Tiwi witnesses by their full names throughout these reasons.

[36]  The first tranche of the trial was conducted in Darwin over four days, it being the most proximate place to the Tiwi Islands, the place of residence of nearly all of the lay witnesses. The applicants’ early suggestions for an on-country sitting were rejected as unrealistic.

[37]  The Court made orders for lay evidence-in-chief to be adduced by way of affidavit or by adoption of written witness statements. The parties had liberty to apply to adduce evidence-in-chief viva voce. However, that liberty was not exercised, other than the applicants making an application to give song and dance evidence by way of demonstration under s 136 of the Evidence Act 1995 (Cth). That application was disallowed principally because the time available for the sitting in Darwin was already too compressed, but also because there would be an insufficient opportunity for Santos to obtain advice and give instructions to enable the applicants’ witnesses to be cross-examined in respect of some disputed matters that were expected to arise from it. The applicants ultimately tendered video recordings of the songs and dances. The Court made a ruling limiting their use, to avoid unfairness arising from their late provision.

Expert evidence

[38]  The Court has before it 26 expert reports prepared by multiple experts, many of them responsive or counter-responsive. It is convenient at this juncture to name the experts and to give shorthand descriptions for their reports. The shorthand descriptions will be used throughout these reasons without referring again to the report titles. Some of the earlier reports were commissioned and produced before the proceedings were commenced and for purposes relating to a General Direction issued by NOPSEMA, discussed below. Consequently, some of the instructions put to the experts do not align entirely with the subject matter of the litigation. Each report is to be understood in the context in which it was sought and prepared. For the most part the experts themselves have acknowledged that limitation.

[39]  For convenience I will use the title “Dr” in connection with most experts, meaning no disrespect to those with higher titles.

…

Dr Mick O’Leary

[48]  Dr Mick O’Leary is an Associate Professor at the School of Earth Sciences and the University of Western Australia Oceans Institute. He holds a PhD in Marine Sciences (James Cook University). Dr O’Leary has consulted on resource project assessments and conducts research with a focus on geomorphology and archaeology. Dr O’Leary provided five reports:

(1)“Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated July 2023 (O’Leary 1);

(2)“Supplementary report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated 11 September 2023 (O’Leary 2);

(3)“Further supplementary report responding to matters arising from a report authored by Dr Brendan Corrigan titled Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia”, dated 7 October 2023 (O’Leary 3);

(4)“Supplementary Report #3 Assessing uncertainty arising from findings in the Wessex and Posamentier underwater cultural heritage (UCH) assessments”, dated 27 October 2023 (O’Leary 4); and

(5)“Supplementary report #4 responding to matters arising from a report authored by Prof Henry Posamentier titled Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report”, dated 30 November 2023 (O’Leary 5).

…

Video evidence

[52]  The Court has before it video evidence falling within two categories. There are 10 video recordings of traditional dances performed by the applicants and other Tiwi Islanders evidencing their traditional connection to the sea and their song lines. There are a further 41 video recordings of some events that occurred at a workshop on 19 June 2023 with Dr O’Leary (June O’Leary Workshop).

…

[989]  There are three features of the applicants’ testimony that warrant specific mention. The first relates to my observations of Simon Munkara as a witness. I observed him to be proficient in English. He was conscious that other more senior members of the Jikilaruwu clan were disapproving of his conduct in commencing these proceedings without first consulting them or the whole of the clan in accordance with what he accepted is the proper custom. His apology for doing so appeared genuine. However, I have some difficulty accepting his explanation that he did not have time to even inform other members of the clan about the commencement of the action. His evidence must be considered in the context of his awareness that the pipeline is a divisive subject, even among Jikilaruwu people. The Jikilaruwu Elders who were not notified of the intention to commence the proceedings happened to be persons who hold the view that the pipeline is not harmful to Tiwi cultural heritage. Furthermore, Simon Munkara has been a client of the EDO from at least December 2022 and other evidence reveals that he has attended at least one meeting where the commencement of court proceedings was discussed as part of an overall strategy to stop the pipeline. Persons who were in favour of the pipeline were not in attendance at that meeting. The evidence as a whole reveals that a group of Tiwi Islanders opposed to the pipeline have conducted meetings in the absence of others known to be against it. The weight of evidence as a whole is that Simon Munkara did not include persons known to have cultural authority in the preparation and commencement of these proceedings more generally. I do not accept his explanation that he did not consult with others because he was rushed.

[990]  Simon Munkara otherwise presented in large part as a guarded witnesses, both in his outward demeanour and in the content of his responses. I considered him to be non-responsive at times when the questions being put to him were straightforward and capable of clear answers. I did not consider the non-responsiveness could be explained by a lack of proficiency in English. The Court provided Simon Munkara with guidance on the importance of giving frank responses to questions that could readily be understood. The Court explained that he could take issue with a question or give a reason for not wanting to respond to it. Notwithstanding that guidance, he continued to convey the impression that his answers were given with an eye to the consequences that might flow for his overall case.

[991]  Simon Munkara was otherwise defensive at times, accusing Counsel of trying to trick him. That occurred with other witnesses too, but in the context of the cross-examination as a whole it has contributed to my view that he was focussed on a case that the applicants wished to present rather than on providing direct answers to simple questions.

[992]  These observations do not cause me to discount the whole of Simon Munkara’s testimony. However, they do diminish the weight of his evidence relative to that given by others. They are one factor (among several others) affecting my consideration of the evidence as a whole.

[993]  Simon Munkara, among some other witnesses, did not describe himself as a leader. The applicants instead placed reliance on the circumstance that he received knowledge from his father Danny Munkara, who was considered (by all who were asked) to be a senior Elder with cultural authority in the Jikilaruwu clan. Danny Munkara’s absence as a witness was explained due to his age and ill health, and I do not draw any inference of the kind discussed in Jones v Dunkel (1959) 101 CLR 298 in relation to him. However, it was not put to any of Santos’ witnesses that their asserted knowledge was sourced from anybody other than their own Elders, going back in time. Accordingly Simon Munkara’s asserted knowledge has its source in the same generation of Elders of all other witnesses.

[994]  Secondly, as will be explained later in these reasons, a number of the applicants’ witnesses participated in one or both of the May Corrigan Meeting and the June O’Leary Workshop. I have made findings about things said and done on those occasions in Part V of these reasons. They include a finding that things were said at the May Corrigan Meeting that, considered as a whole, amounted to a form of subtle coaching of those in attendance to tell their cultural stories in a way that would extend them to the area of the pipeline. That is not a determinative feature of the evidence, but it is a circumstance that cannot be ignored. In addition, I have found that at the June O’Leary Workshop the attendees were prompted in a more blatant fashion to participate in a cultural mapping process of a kind that on another occasion had helped to stop a petroleum development. That process has undermined my confidence in accounts given by the participants at and following the Workshop. Their witness statements and oral evidence fall temporally into that category. It enhances the need to find evidence of statements they made prior to those events, referred to by the parties as “pre-dispute” statements. I do give some weight to prior consistent statements recorded by Dr Corrigan at times between then and May 2023.

…

Events at the June O’Leary Workshop

[1143]  The evidence demonstrates that Dr O’Leary was engaged to assist the EDO’s clients and that he appreciated that those clients were Tiwi Islanders who wanted to stop the pipeline.

[1144]  Minutes were taken of a meeting at the commencement of the June O’Leary Workshop. The minutes show that eight Tiwi Islanders attended, three of whom are witnesses in these proceedings. Two lawyers from the EDO were in attendance, including the same EDO Lawyer referred to earlier in these reasons.

[1145]  At the beginning of the meeting, Dr O’Leary told the attendees about work that he had done in Arnhem Land in connection with land proposed for development by Woodside Petroleum. He said that he had a map of the sea bed with “really beautiful imagery of the seafloor” which showed two depressions, like holes, in the sea bed. He referred to a 92 year old Aboriginal Elder, Timmy Douglas, and went on:

I showed the picture of the two depressions that look just like waterholes, the size of swimming pools, all of the sudden Timmy Douglas started speaking in traditional English [sic]. I thought I offended him. Everyone else was talking intently about the picture. He was pointing at a photo on the wall of a kangaroo, they were saying half and half and were pointing at photo of kangaroo on the wall. Afterwards, one of the World Heritage people who is Aboriginal, I asked her to explain what happened. She said Timmy recognized the holes from the kangaroo songline. Because it was description of song-line was so detailed and the map was so detailed, he was able to match the songline to the place.

…

With the map, I could say the kangaroo songline was part of the map and I could say this is important and Woodside can’t touch it.

[1146]  In response, a Tiwi Islander attendee said “Well we gotta do this”.

[1147]  The minutes then record Dr O’Leary referring to a map. The following exchange occurred:

Dr O’Leary: Brought out closer map. This is very deep, during ice age. This place was like huge, think of Apsley Strait and it was just fresh water. It kind of comes up like a tongue that forms just like that, it continues all the way out. Pointing at freshwater lake going to ocean. But this was at ice age. If you go further out in time, it goes further. It was big big lake. This map was before the ice age. You can see the lake comes out like this like a big tongue.

EDO Lawyer: When Mick was saying like tongue, I was thinking like Ampiji.

[1148]  In an afternoon session of the meeting, Dr O’Leary again told the story of Timmy Douglas. He referred to Timmy Douglas who “instantly recognized” a now submerged waterhole on a map from his memory and connecting it with a kangaroo song line.

[1149]  Dr O’Leary described the Ancient Lake off Cape Fourcroy as “massive”. He said:

This one here, is like 8km long 2km wide 100m deep. This at the ice age, there would have been fresh water here under the worst drought. There always would have bene [sic] fresh water here. All year round. For thousands of years, even under the worst drought, always water there.

[1150]  In cross-examination Dr O’Leary admitted that the words he had used at the morning session of the meeting about using the kangaroo Dreaming story and the map shown to Timmy Douglas to stop Woodside were not true. He said it had nothing to do with stopping Woodside. He said that he now regretted saying the words because they were incorrect. He admitted that the waterholes on the map shown to Timmy Douglas were not anywhere near a development contemplated by Woodside. The cross-examination continued:

Q: And do you recall that the mood of the meeting was that once you described what you had done for the people with the kangaroo song line and Woodside, that they were keen or wanted you to do the same for them so they could stop Barossa?

A: Sorry, I may have given the impression that the kangaroo song line had something to do with the Scarborough pipeline or Woodside. The truth is there is nothing to do — no relationship between the Scarborough development and these water holes or the kangaroo song line. Completely different things.

Q: Is your evidence, irrespective of what is the true position, that what you told the meeting that the kangaroo song line would stop Woodside?

A: I said that, but that is incorrect.

Q: What I’m asking you is did you understand — after you told the meeting that the kangaroo song line had been used to stop Woodside, did you understand that the meeting were keen for you to help them, with your mapping, stop Barossa?

A: Yes. So two things. The — I said could stop Woodside, again, which was an incorrect statement. And I get the — I get your assertion that, yes, it would have given that impression, and I regret saying that at the meeting.

[1151]  That is a startling admission. Not only is it damaging to Dr O’Leary’s credit, it causes me to doubt his understanding of the obligations of an expert to remain impartial.

[1152]  It may reasonably be inferred that the statement about Timmy Douglas and the untrue statement at the earlier mapping exercise which had been used to stop an earlier petroleum development could only have been deployed at the beginning of the June O’Leary Workshop to coach the attendees about what they might say in response to the maps of the submerged landscapes, so as to achieve their objective of stopping the pipeline. No other reasonable inference is available. None was offered by Dr O’Leary and he was not re-examined on the topic. Whether the EDO lawyers in attendance were aware of the untruthfulness of the statement is unknown to the Court and I make no finding about them in that respect.

[1153]  Dr O’Leary’s admission was freely volunteered, such that he did not lie to the Court. But he did lie to the Tiwi Islanders, and I find that he did so because he wanted his “cultural mapping” exercise to be used in a way that would stop the pipeline. It is conduct far flung from proper scientific method, and falls short of an expert’s obligation to this Court.

Video evidence

[1154]  It is apparent that the video recordings of events occurring at the June O’Leary Workshop are not a complete video record of everything that occurred there. Not all speakers in the videos are shown visually, and those who are shown are not named in the videos themselves. Some of them are recognisable as among the applicants or as witnesses for the applicants. The names of some of the participants can be found in footnotes to documents provided to Mr Lewis and Dr O’Leary, discussed earlier.

[1155]  There are two aspects of the video evidence giving rise to further concerns about the integrity of the cultural mapping process. I have considered them as a whole and summarise some of them below.

[1156]  My overall observation is that they confirm that the Tiwi Islanders engaged with the map depicting their islands as they exist today. They repeatedly pointed to places on the land and on the coast that were of significance to them and to the area around the islands as though it were the sea in the present day. In Video 8, Dr O’Leary is heard to say that the map depicts a time 50,000 to 30,000 years ago. But the Tiwi informants plainly did not appreciate that when interacting with it. That is hardly surprising given that the Tiwi Islands in today’s form are shown on the map in bright green on the dull-coloured background.

[1157]  In Video 15, Dr O’Leary indicates the large area in which his freshwater lake is depicted, referring to it being “around the island”. That of itself is misleading, given that the islands did not exist as islands when the lake existed as a lake (if indeed it did exist). The informant then indicates broadly around the islands and says that there is Yiminga there “and they all have song lines”. Dr O’Leary responds, “It’s amazing to me that what you describe from your memory is like what’s on the maps you know, .. you speak this story and I can see the story on the map, you know, this is amazing”.

[1158]  Also in Video 15, an informant refers to a sacred site at Rocky Point, which Dr O’Leary marks on the map. The informant refers to Wiyapurali and refers to the Crocodile Man song line being there. Dr O’Leary writes “Crocodile Man song line” on the map and draws a mark off the coast. He then refers to the Ancient Lake, circling it with his pencil, and says “this is the fork tongue here?”, forking his fingers over the lake. The marks made in this video are those depicted in the second image of Figure 7 reproduced in O’Leary 1 and extracted at [1075] of these reasons (Map 5).

[1159]  In Video 12 an informant indicates to the Ancient Lake and refers to Mother Ampiji being there as the caretaker of the sea. She then refers to a cave at Cape Fourcroy and a crocodile, indicating him going into the sea from that point. The informant is not told that Cape Fourcroy did not exist at the time depicted in the map.

[1160]  In Video 11 an informant points to Rocky Point and says that an Ampiji lives there. She confirms that the Ampiji lives “in the land” and “in the fresh water”. She says “fresh water, fresh water, Ampiji”.

[1161]  In Video 26 an informant tells the story of a being that created the islands, indicating the Aspley Strait. She describes that being as living in Lake Mungatuwu, but traveling around the islands. She refers to that being as the caretaker of the sea. The informant is not told that in the time depicted in the map, the Tiwi Islands did not exist as islands. Video 34 has similar content.

[1162]  Video 39 depicts the EDO lawyer interacting with an informant over a map. The informant says “in the sea”. The lawyer says “comes out from Rocky point, and goes to the sea”. As she speaks, the lawyer draws a line westward from a point on the north west coast of Bathurst Island, ending the line in the Ancient Lake. The informant says nothing to the lawyer about where that line should begin or (critically) where it should end. The lawyer says “to the sea, so that’s where the sea started”. The lawyer then reinforces the line with her pen, and asks, “What’s the song line? What is that? What’s that story?” The line drawn by the EDO lawyer is the upper horizontal line shown in the first image in Figure 7 of O’Leary 1, extracted at [1070] of these reasons (Map 4).

[1163]  In Video 41 an informant points out Lake Mungatuwu to the EDO lawyer. The informant says “so I think that is the mother”, pointing to both the Ancient Lake and Lake Mungatuwu. A person outside of the frame says “it is all connected around”. The EDO lawyer says “yeah, because that fresh water is coming all the way around”, indicating a circle around the island, starting at the Ancient Lake. Dr O’Leary is present for that exchange but says nothing about the existence of a freshwater source that encircles the whole of the islands as they exist today. He says nothing about the Tiwi Islands not existing at all at the time that the Ancient Lake existed. The opinions in O’Leary 1 contain no conclusion that there exists a freshwater channel or other system encircling the area where the Tiwi Islands are today.

[1164]  In other videos, an informant indicates the Ancient Lake on the map and refers to a Mother Ampiji being there. There are references that the Mother Ampiji “maybe” connected with a “main Ampiji” at Lake Mungatuwu: Video 13. There are numerous references or gestures indicating the Mother Ampiji living in the Ancient Lake and travelling around the “waters” surrounding the “islands” depicted in the map.

[1165]  In many of the videos, the speaker is a person I recognise to be Carol Puruntatameri. She is the only informant in five of the videos, and also appears in a further 25.

[1166]  Considered in the context of the things said at the earlier meeting, the video evidence does not satisfy me that the cultural mapping exercise was “indigenous led”.

[1167]  In addition, Dr O’Leary is shown in some instances to encourage and hint at the informants, indicating a fork with his fingers and expressing excitement at what he referred to as “memories” as though “memories” were being prompted by the exercise. Whether intended or not, the forked fingers on an objective measure are suggestive of a snake and reinforced the EDO lawyer’s statement at the workshop that the forked tongue brought Ampiji to her mind. That was the first mention of Ampiji at the workshop. Whether careless or deliberate, the association of the geological forked tongue and Ampiji was plainly suggested.

[1168]  Most concerningly, I consider that Video 39 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 addition, the EDO lawyer stated, “that’s where the sea starts”. That is a curious statement, given that the map is intended to reflect a territorial landscape within which there was a freshwater lake. At the time that the sea “started there” it could not be a freshwater source. The informant said “into the sea” which could only be understood as something going into the sea from the island coast. The EDO lawyer created her own marking on the map and then reinforced it, ending the line in what is then referred to in a document drafted by the EDO as the “sacred freshwater source”. That line now appears in the so-called cultural map and is presented to this Court as evidence in Dr O’Leary’s Figure 7A (Map 4) above.

[1169]  The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court via an expert report, and I so find.

[1170]  The EDO lawyer was not called to give evidence. That does not preclude the Court from acting on the evidence before it, given that the applicants’ onus includes an onus to persuade the Court that the cultural mapping exercise is scientifically sound and otherwise reliable. The content of Video 39 alone is sufficient to reduce the integrity and hence the reliability of the cultural mapping exercise to nought.

…

Synthesised narratives

[1178]  A number of observations may be made about the narratives contained in this document created by the EDO.

[1179]  First, my conclusions about the conduct of the EDO lawyer who attended the June O’Leary Workshop cause me to approach this document with extreme caution. Ordinarily the Court may proceed on an assumption that documents of this kind are prepared by legal practitioners who fairly understand the importance of ensuring the accuracy of documents created for the purposes of legal proceedings, including documents prepared for the purposes of briefing independent experts. Regrettably, in light of my earlier findings, that assumption cannot be made in connection with this document. The Synthesised Narratives include a rendition of an Ampiji that resides at Rocky Point that has connections with the so-called sacred freshwater source, that Ampiji in turn having connections with the Mother Ampiji residing in the same source. A part of that narrative appears to be based on the EDO lawyer’s own horizontal line drawn on the map, distorting and misrepresenting what the indigenous informant had said.

[1180]  Second, the manner in which the document was prepared is not the subject of discrete evidence. The document does not contain detailed annotations or cross-references to the specific source material upon which the components of each narrative are based. I am concerned that each narrative is no more than a mosaic formed from snippets of sentences said by separate informants, arranged together so as to be presented as a coherent singular narrative shared collectively by Tiwi Islanders or at least a sub-community of more than one of them. The video evidence of the cultural mapping exercise does assuage that concern. The concern is reinforced by the Ampiji narrative which appears to draw on things said to Dr Corrigan about calling out to Ampiji. That information is then connected to “Mother Ampiji” residing in the so-called sacred freshwater source. Nothing of the kind was said to Dr Corrigan at a time predating the narratives.

[1181]  Additional evidence is needed to satisfy me that the document is accurate and reliable. Absent that evidence, I conclude that the flaws in the cultural mapping exercise identified above are flaws that contaminate this document and so render it forensically useless.

[1182]  Several of the narratives appear to be based solely on the material contained in the 2023 Marie Munkara Narratives and its reliability must be questioned for the same reasons given in relation to that document.

[1183]  In addition, on the lay evidence adduced in this proceeding, I am not satisfied that there was any real effort to ensure that the June O’Leary Workshop was attended by a range of persons having cultural authority from the Jikilaruwu, Munupi and Malawu clans irrespective of any view they might have had about the pipeline. The synthesised narratives do not disclose even the existence of different and dissenting views held by other persons having cultural authority within the same clans with respect to the same underlying song lines, and yet they are put forward as communal beliefs of those clans.

…

(emphasis added)

The media reported on 14 March 2024, that the solicitors for the Applicants in the above proceeding – the Environmental Defenders Organisation – had commissioned senior counsel and solicitors to engage in and report on a review of their processes for marshalling evidence in the conduct of like cases.  With respect, the EDO is to be commended for taking such course given her Honour’s above findings.