Barossa Case: The Crocodile Man’s Comeuppance

The latest battle to stop Australia’s offshore gas development projects has ended in defeat and disgrace for the activists. Their lies and manipulation in weaponizing Tiwi Island culture have been exposed and denounced by the Federal Court of Australia.The case Munkara v Santos NA Barossa Pty Ltd (No 3) was heard by Justice Natalie Charlesworth in the Federal Court in December 2023, with the judgment handed down in favour of Santos on 15 January 2024. Justice Charlesworth was highly critical of the legal and scientific advisers to the Tiwi applicants, stating with regard to principal adviser Dr Mick O’Leary that

his independence and credibility are such that I would not accept his evidence as sufficient to establish any scientific proposition at all … Dr O’Leary’s lack of regard for the truth, lack of independence and lack of scientific rigor are sufficient to discount or dismiss all of his reports for all purposes. (emphasis added)

The judgment, which can be read in full here, has significant implications for the exploration and development projects, for groups seeking to exploit Aboriginal culture to oppose these projects, and for the broader Australian public.

The case involved a legal challenge by several Tiwi Islanders to the acceptance by the Australian National Offshore Petroleum Safety & Environmental Management Authority (NOPSEMA) of Santos’s Environmental Plan (EP) for an offshore gas pipeline from the Barossa Gasfield to Darwin. NOPSEMA had accepted — effectively, approved — the EP for the pipeline, which was to pass about 7km west of the Tiwi Islands. This followed the Tiwi community telling Santos they had no culture-based objections. Subsequently, however, a small group of Tiwi Islanders claimed that new and significant submarine cultural heritage had been “discovered” and, therefore, a new EP was required. This is how the system is gamed. An ‘approved’ EP is a legal requirement for all aspects of a development project, such as the Barossa gasfield. Recruiting indigenous complainants on “cultural grounds” is a common activist strategy, the hope being that the resulting expense and delays will see such projects eventually abandoned. The ABC reported the Barossa delays were burdening Santos with bills of $500,000 per day, the cost of an offshore drilling rig obliged to stand idle while the court case awaited resolution

The Tiwi Islands (Bathurst and Melville) are located about 80km north of Darwin in the Arafura Sea, some 150km south of the Barossa gasfield, which was discovered in 2005 by US company ConocoPhillips and its partners, Santos and Korean conglomerate SK E&S. Barossa contains about five trillion cubic feet of natural gas and 15 million barrels of condensate. The natural gas will be delivered to the Darwin liquified natural gas (LNG) processing facility by a 260-km pipeline that passes near the Tiwi Islands. Santos became project operator in October 2019 after purchasing ConocoPhillips’ interests and now holds a 50 per cent interest.

The Barossa field contains about 16 per cent of carbon dioxide, leading to special condemnation by environmental and climate activist groups. However, the carbon dioxide will be extracted at the Darwin plant and sent through an existing pipeline to the depleted Bayu Undan Gasfield, where it will be permanently stored in deep and secure sandstone reservoirs.

The background to this dispute has been summarised in Weaponising Modern Aboriginal Myths and Legends (Quadrant Online, November 22, 2023) and Dreaming, Scheming and the Barossa Gasfield (Quadrant Online, December 7, 2023). It is not my intent here to detail the legal issues or arguments, but to summarise the manipulation by the Tiwi applicants’ advisers and the Federal Court’s damning appraisal of them and their tactics in Justice Charlesworth’s landmark ruling. In this and other rulings, the cynical exploitation of Aboriginal people and culture to serve activists’ agendas has been laid bare.

The challenge to the Barossa pipeline EP began in 2022 when the Environmental Defenders Office (EDO) commissioned a report ‘Knowing Sea Country: submerged archaeological potential along the Santos Barossa pipeline route’ from the University of Western Australia’s Dr Mick O’Leary and several other academics. The EDO is an activist legal group funded by private individuals as well as the Federal government and several state governments. They had been scheming against the Barossa development for some time and, earlier in 2022, acting on behalf of Tiwi Islander Dennis Tipakalippa, had challenged the validity of Santos’ EP for the development drilling on the gasfield. Santos was ordered to prepare a new EP after the EDO successfully argued before the Federal Court that Santos had not adequately consulted Tipakalippa regarding the threat posed by the drilling to his spiritual connection to his Sea Country.

In December 2022, after meeting with Tiwi Islanders opposing Barossa, EDO sent the report on their behalf to NOPSEMA and Santos, along with correspondence protesting the lack of adequate consultation about the pipeline’s potential damage to ‘significant areas of submerged Tiwi cultural heritage’, including sacred sites, multiple burial sites along the west coast, and potential sites and songlines in deeper water.

Acutely aware of the recent overturning of their ‘approval’ of the Barossa drilling EP, NOPSEMA immediately issued a General Direction requiring that Santos ‘undertake an assessment to identify any underwater cultural heritage places along the Barossa pipeline route’.  Santos and the EDO then retained experts to investigate features of anthropological or archaeological cultural importance in the area traversed by the pipeline.  After several month’s work, including interviews with Tiwi cultural knowledge holders and a model-based investigation of possible submarine landforms of potential archaeological interest, the Santos’s advisers, acting on their own data and with due consideration of reports by EDO’s advisers, concluded that the pipeline posed no threat to cultural heritage sites, contemporary or archaeological. On that basis, Santos had no cause to revise the EP and began to mobilise equipment and personnel to Darwin for the pipe-laying program.

Having learnt of this, and with the pipe-laying vessel en route to the Barossa site, the EDO applied to the Federal Court on October 30, 2023, on behalf of Simon Munkara, a traditional custodian of the Jikilaruwu clan, for an injunction to stop all work on the pipeline.  Justice Charlesworth granted a temporary injunction against any work until November 15, on which date the injunction was extended for the area of the pipeline near the Tiwi Islands, effectively stopping all work.  At that hearing, two other Tiwi islanders, Marie Tipuamantumirri (Malawu clan) and Carol Puruntatameri (Munupi clan) joined the application.

In the full case hearing, which commenced before Justice Charlesworth on 4 December 2023, the applicants claimed that the pipeline posed risks to their cultural heritage, both intangible and tangible.   The intangible cultural heritage risk referred to the pipeline’s impact on two Dreamtime mythic beings, a rainbow serpent known as Ampiji, and Crocodile Man, known as Jirakupai. The impact had two aspects: one, linked to traditional mythology and the other, to so-called ‘adapted mythology’.

According to traditional mythology, Ampiji is a rainbow serpent who resides in the freshwater Lake Mungatuwu in southwest Bathurst Island and patrols the coastal waters and the deep sea.  The pipeline would disturb Ampiji, who could cause calamities, such as cyclones or illness, even death, for certain people.  Crocodile Man’s songline extends west from the islands and will be ‘cut’ by the pipeline, potentially disturbing him.

The ‘adapted’ myths are ‘new’ versions of this traditional mythology that incorporate information given to the Tiwi Islanders in 2023 by Dr O’Leary about subaerial exposure of the sea floor in ancient times, and a large freshwater lake west of Bathurst Island. (As one anthropologist explained it, when situations change, the mythology ‘is adapted in order to best thrive relative to the context of the moment. In pub talk, that translates to ‘you change it to suit your purposes’.) In the ‘adapted’ mythology, Mother Ampiji is now said to live in this ‘sacred’ freshwater lake and Crocodile Man’s westward travels were taking him there. The pipeline’s route between the sacred ancient lake and the Tiwi Islands, it was asserted, will ‘disconnect’ the Jikilaruwu, Munupi and Malawu clans spiritually from their sea country.

The applicants’ claims of new tangible cultural heritage were based on their freshly acquired knowledge, also learnt from Dr O’Leary, that the seabed was once exposed land (notably during the Last Glacial Maximum (LGM) about 20,000 years ago) and had been the traditional land of their ancestors for thousands of years. Construction of the pipeline might locally destroy the archaeological record of that ancestral human occupation and thereby pose a risk to their cultural heritage.  Specific reference was made to the risk of disturbance or destruction of burial grounds said to be located near the pipeline route.

These heritage elements were defined as ‘new’ because they did not form part of the cultural heritage assessed by the Santos EP and accepted by NOPSEMA. Accordingly, the applicants sought an order that Santos must prepare and submit a new EP which properly assessed and provided for the risks allegedly posed to them. The new EP would obviously require extensive and predictably difficult consultations with the applicants and their supporters, and would almost certainly involve considerable delays and substantial costs.

The Court received written and oral evidence from 23 Aboriginal witnesses, with roughly even numbers from either side of the dispute. The Court also received reports from 26 expert witnesses, with the main experts giving evidence and being cross-examined. Principal among those were Dr O’Leary and Gareth Lewis for the applicants, and Dr Brendan Corrigan and Dr Henry Posamentier for Santos. The court also had tape and video recordings of meetings of the applicants and their supporters with Mr Lewis and Dr O’Leary.

The Tiwi Islanders’ evidence before the court revealed clearly that many were still relatively tradition-oriented, with ingrained beliefs in the spirits of the Dreamtime. This applied to people on both sides of the issue.  Much discussion was given to who had the cultural right to speak for a particular area, with some very firm on clan boundaries and others holding a more universal perspective. The degree of acculturation varied from one who saw the pipeline as the latest form of colonisation to those who could ‘see’ millennia-old ceremonial mortuary poles in shapes on the bathymetric maps of the sea floor.  Some adopted the freshwater lake as part of their mythology, even claiming it had been spoken of by the old people. Others dismissed it as unrelated to Tiwi myth and denied the claims of ancient lakes and burial sites at sea.  Certainly, many spoke with great sincerity about the threats they felt from the pipeline, though many comments also revealed O’Leary’s influence.

Reports and expert evidence by O’Leary and Lewis were key elements – though ultimately fatal in their impact in Federal Court –  of the Tiwi applicants’ case and are discussed in relative detail below. Dr O’Leary has a PhD in Marine Science and is Associate Professor in Climate Geoscience at the University of Western Australia, with research interests in submerged landscape archaeology and Aboriginal underwater cultural heritage. Gareth Lewis is a consultant anthropologist with extensive experience working on Aboriginal land claims and site-mapping and whose current clients include the EDO and the Northern Land Council.

In May 2023, Mr Lewis was introduced by the EDO to 18 Tiwi Islanders opposed to the pipeline, nine of whom would become applicants or supporting witnesses in the case. Minutes of the meeting, as well as tape recordings, were available to the court. They revealed in damning detail the leading roles played by Lewis and EDO lawyer Alina Leikin. Early in the meeting, Leikin described the challenge to the drilling EP as Part 2 of the plan to stop the Barossa project, Part 1 having been the successful challenge to the drilling EP. She coached the Tiwi to say that the pipeline ‘will break the song lines or anger the ancestors (and) may convince NOPSEMA to stop the pipeline’.  It’s these cultural stories, she said, that are ‘stopping this multi-billion dollar project’, going on to discuss how the Barossa project was another driver of climate change.

Lewis, who referred to ‘white’ Australians as balanda, told the Tiwi group that there wasn’t much documentation of Tiwi sites, so ‘get your brains ticking’ and figure out ‘how big that dreaming story is about Crocodile Man’. Worth noting is that, at this stage, the story of the ancient lake and landscape had not been introduced by O’Leary.  Justice Charlesworth criticised this ‘subtle coaching’ of the Tiwi Islanders by Lewis and Leikin, not only for their unprofessionalism but because it raised questions about the reliability of the evidence given by Tiwi people who had attended the meeting.

Based on discussions with the Tiwi Islanders, Lewis stated emphatically in his expert’s report that the pipeline posed an existential threat to the Tiwi people and their culture. Specifically, he concluded, in what Justice Charlesworth called ‘stark and unqualified language’, that the pipeline

…will damage sea country… cause spiritual injury and damage to dreaming tracks, songlines and areas of cultural significance …  physically as well as spiritually alienate or disconnect areas from relevant Tiwi people … interrupt relevant Tiwi peoples’ ability to fulfil their spiritual and social responsibilities… and will cause significant spiritual and emotional distress … internalised by the Tiwi Aboriginal community as stress, anxiety, fear, anger and powerlessness.

Justice Charlesworth was highly critical of Lewis’ discussing the ‘use of cultural heritage stories as a weapon in the strategy’, causing her to question his independence. ‘It is not the role of an expert witness to barrack for the interests of a party to legal proceedings’, she chided, and expressed concern that he had done precisely that: firstly, eliciting information that would stop the pipeline and then drafting his report with a view to achieving that objective.

It was, however, the June 2023 meeting, when Dr O’Leary and EDO’s Alina Leikin met with Tiwi Islanders opposing the pipeline, that most influenced the development of this case and which drew the most scathing criticism from Justice Charlesworth.

O’Leary took to this meeting large (AO size) bathymetric maps of the region west of Bathurst Island, shaded to give a 3D perspective and coloured to resemble a modern natural landscape. He explained to the Tiwi that the maps showed the land surface during the last ice age (LGM) when sea level was about 120 metres lower than at present and suggested that this was the land of their ancestors.

A key feature of the ‘landscape’ was an extensive north-south-trending submarine valley about 12km west of Bathurst Island, which Dr O’Leary had emphasised on the maps with deep blue colour. He described the deepest part of this valley as a vast freshwater lake during the Ice Age, with an extensive waterfall system rimming its southern end. He illustrated this with a computer-generated image of ‘a stunning waterfall in a luscious green landscape’ – the Tiwi’s ancestral Eden, as it were —  and invited those present to annotate the maps with ‘insights drawn from their oral traditions’. O’Leary offered the additional motivation that similar maps he had made showing depressions in the seafloor offshore Arnhem Land, had prompted an Elder to ‘recognize’ features from an ancient songline, causing Woodside to stop working there.  

In the discussions that followed, the lake was quickly ‘adapted’ by the Tiwi into their Dreamtime stories and held to have significant cultural and spiritual value. It was ‘remembered’ specifically as the home of the Mother Ampiji spirit, where all her children were born before she distributed them around the Tiwi Islands. It was also realised that it was here, to this lake, that Crocodile Man Mudungkla was travelling on his western songline. Even the creation myth was integrated, with now said to have emerged from this sacred lake to begin her journey of creation around what now the modern, post-Ice Age Tiwi islands.

Justice Charlesworth considered the use of colours on the maps, used to emphasise the modern islands and the interpreted deep lake of millennia ago, did not correctly represent the landscape at last glacial maximum (LGM) time and had misled the Tiwi people. This was evidenced by claims that Crocodile Man had entered the sea at Cape Fourcroy on the modern Bathurst Island and swum to the lake.  Modern time and LGM-time were being muddled: at the time the lake was said to exist, Cape Fourcroy did not: it was dry land. A further confusion surrounded the Mudungkala myth, which tells of the creation of the Tiwi Islands and the surrounding seas precisely as they are today. Challenged on this contradiction, Dr O’Leary suggested that the lake and Crocodile Man’s travels must have occurred in deep-time before the creation era – a proposition one Tiwi witness considered offensive to Tiwi cultural beliefs and which Justice Charlesworth found incomprehensible.

O’Leary’s report noted that, as the Tiwi informants ‘recovered’ these ancient memories, they annotated the Dreamtime paths and features on the maps. During the hearing, however, it emerged that many of the annotations were not made by the Tiwi people at the meeting. Videos of the mapping workshop showed EDO lawyer Leikin not only drawing a songline on the map but a songline inconsistent with what she had been told by one of the Tiwi women. O’Leary then admitted to the court that he had used ‘artistic licence’ to draw some lines himself, and that the purported submarine burial sites near the lake was added later by another pipeline opponent, Marie Munkara.

In her 2023 ‘report’, known to the court as the Marie Munkara Sea Country Narratives, Ms Munkara claimed to have been told of the location of these burial sites in 1996 by her grandmother, who also told her their ancestors had come from land around a freshwater lake. This was described as ‘ancient knowledge’ passed down from ‘deep-time’. Unfortunately, for Ms Munkara’s credibility, this information was not in her 2017 book about her life and was considered by the court to be a relatively recent fabrication. Justice Charlesworth dismissed her evidence as unreliable and motivated by her opposition to the pipeline.

Under cross-examination, O’Leary also admitted that his claim about the offshore Arnhem Land map was false. The seafloor depressions were nowhere near the proposed Woodside project and played no role in Woodside’s change of plans. This ‘startling admission’ was damaging to Dr O’Leary’s credibility, Justice Charlesworth said, causing her ‘to doubt his understanding of the obligations of an expert to remain impartial’.  He had misinformed Tiwi Islanders 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’.

In their submission, Santos had argued bluntly that the cultural mapping exercise and Dr O’Leary’s opinions were scientifically flawed, lacking in precision,

…a form of cultural hubris, thinly described as science and otherwise founded in naivety and ignorance.

Santos also submitted that the synthesis by the EDO’s Anita Leiken amounted to a “confection” or “construction”. Justice Charlesworth agreed, and had good reason to, concluding that

the cultural mapping exercise and the related opinions expressed about it are so lacking in integrity that no weight can be placed on them’ … the evidence of those Tiwi Islanders who participated in it should now be treated with considerable caution.

Justice Charlesworth sharply rebuked Ms Leikin for the synthesising of the Tiwi Islanders’ comments from various meetings and sources into a narrative, the so-called ‘Tiwi Cultural Stories Summary’. While presented as, at least in part, ‘deep-time’ tribal memories, it was more akin to a cut-and-paste compilation. Justice Charlesworth admonished, 

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 …  that assumption cannot be made in connection with this document’.

As to the cultural mapping exercise, the judge observed its flaws ‘contaminate this document and so render it forensically useless’.

In contrast to these damning criticisms, Justice Charlesworth was overall complimentary in her references to the work and reports by Dr Corrigan and geologist Dr Henry Posamentier.  Corrigan holds degrees in both anthropology and archaeology and has worked for decades with Aboriginal communities in northern Australia. His interviewing of over 170 people from all Tiwi clans and without prejudice to their views about the Barossa project, provided a balanced view of Tiwi beliefs and opinions on which the court could better rely – as opposed to Dr O’Leary’s and Mr Lewis’s meetings almost exclusively with people opposed to the project.

Justice Charlesworth also expressed appreciation of the expertise and considered judgement that Dr Henry Posamentier brought to the hearing.  A renowned American geologist and stratigrapher who pioneered the modern approach to sequence stratigraphy, Dr Posamentier’s brief was to examine the structure and stratigraphy of the modern sea floor and determine its deposition history and relationship to the sea floor at LGM time. His findings largely discredited claims of cultural heritage sites on the ancient and now submerged LGM landscape, not only the burial sites indicated by Dr O’Leary but also the potential sites mapped by Wessex Archaeology in the study commissioned by Santos.

Wessex Archaeology Ltd, the UK’s leading provider of archaeological and heritage services and its Australian subcontractor, Extent Heritage, had developed a predictive model of archaeological sensitivity for various ‘landforms’ on the seafloor based on their similarity to landforms associated with Aboriginal sites in a large onshore study area. Wessex identified 163 features of possible archaeological interest, with 60 classified as having ‘probable’ potential and 103 classified as ‘possible’ potential. None of these localities were archaeological sites per se; merely physiographical features which resemble features associated with an archaeological site in the model, though this distinction was not always clear to Tiwi witnesses.

Dr Posamentier noted that sea level had risen for about 10,000 years after the LGM, with the shoreline advancing southward at rates estimated to be up to 18 m/year. By analogy to other well-studied ancient and modern coastal environments, storm-driven and shoreface waves, as well as tidal currents along the ever-advancing shoreline, caused substantial erosion, estimated at between five and ten metres of the old LGM land surface.  Subsequent redeposition of the eroded sediments and deposition of river-sourced sediments buried the eroded surface. Extensive carbonate banks of corals and sponges formed over vast areas, further burying any remnants of the old landscape.

Based on his more extensive experience with marine sedimentation, Dr Posamentier recognised that the majority of features on the seafloor being interpreted as buried subaerial landforms by Dr O’Leary, Wessex Archaeology and others were actually submarine depositional features. Long sinuous channels on the seafloor were not relics of ancient river valleys but modern surge channels cutting through the carbonate banks. Specifically, the prominent bathymetric depression interpreted by O’Leary as a buried lake system from the LGM time was shown to be a complex tidal channel.  It might have originated as a river system during the LGM time, but the recognition on sonar data of mounded sediments within it, known as ‘tidal bars’, demonstrates clearly that its modern form has been shaped by tidal currents. Specifically, the dune-shaped features mistakenly interpreted as burial ‘mounds’ by Dr O’Leary were shown on sonar and bathymetric imagery to be sand waves amassed by tidal currents. Posamentier’s findings totally discredited the claims of cultural heritage sites on an ancient, now submerged, LGM landscape.

In short, there is no submerged LGM landscape: it was eroded away millennia ago and then buried under redeposited sediments, river outwash and carbonate banks.

There is much more noteworthy in Justice Charlesworth’s judgment. The meaning of ‘new’ is one example. If a person withholds information about a cultural heritage issue related to a particular area or activity, and remains silent despite the opportunity to reveal it, then it cannot reasonably be said to be ‘new’ when raised in a later claim. Elsewhere is the observation that ‘environment’ includes ‘culture’ which can include ‘spiritual connection’ to landforms or features, but that the connection must be established by the laws and customs of ‘a people’. Whatever debate there might be about the definition of ‘a people’, the term does not apply to an individual or even a small group of people who hold views counter to the accepted customs and beliefs of the ‘people’ to which they belong. There is much more.

Overall, the case offers a lesson for other companies that it is possible to challenge opposition to projects arising from on Aboriginal cultural rights with balanced, informed and respectful experts and evidence. Given the increasing evidence that many challenges, as here, are manipulated by environmental activists, such challenges are not only in the company’s interests but in the national interest.

Prior to this hearing it was clear that the case for stopping the Barossa pipeline on the basis of heritage claims by the EDO’s Tiwi clients failed the pub test. It is reassuring that it has also failed that of the Federal Court.