Alex McBride interviews Greg Phelps, the dogged lawyer who took on the titanic might of an oil corporation – and won
On 19 March this year an Australian federal court found that PTTEP Australasia, an oil company indirectly owned by the King of Thailand, breached the duty of care they owed Daniel Sanda, a Rotinese (West Timor) seaweed farmer. The judgement comes ten years almost to the hour since Greg Phelps, a determined, plain-speaking lawyer, first discovered the hidden story in the case that he was working on. PTTEP’s Montara wellhead blowout caused the biggest oil spill in Australian history. For 72 days their well spewed hundreds of thousands of barrels of oil into the Timor Sea, causing an environmental catastrophe. Sanda was just one of over 15,000 claimants whose lives and livelihoods this spill would destroy.
Wind the clock back to 2011 and Phelps was sitting in his new office, empty save for a single file, contemplating his first full day as a fully qualified lawyer. As is traditional for new solicitors in Australia, Phelps spent the previous day getting drunk and was now suffering from a terrible hangover. Nor was he your usual start-of-career lawyer. He wasn’t in his twenties or 30s, but 52. When hangovers bite hard. He could have let the morning drift, or sloped off for a second breakfast, or a snooze. But there was this file. Dropped off at the new boy’s office, it had all the hallmarks of the case no one else wants. Phelps opened it and started to read and, as he puts it, he just happened “to stumble on this beautiful class action that everybody would dream about getting as a lawyer”.
There was an irony in Phelps stumbling upon a lawyer’s dream case because he’d never had an ambition to become one. “I always wanted to be a jet pilot in the Australian Air Force, that was my ambition as a boy,” he says. It was “anticipated”, as he puts it, that the eldest boy would be the farmer and take on the family farm. Phelps, one of nine and the second son, was in the clear until his big brother ran off to university and the family anticipation fell to him: a twist of fate that didn’t seem to faze him. He built irrigation ditches and dams. Then he moved on to running other people’s farms. “Everything I’ve done in my life, I’ve loved it.” After a stint managing cotton farms, he became a cotton trader and then started a business in aquaculture in Darwin, Australia’s northern tropical city. When that came to an end he found himself at 49 with a wife and four kids wondering what to do next – and decided it was time to get a degree. Phelps jokes that Charles Darwin, as a small university, didn’t offer brain surgery so he picked law instead. He graduated with first class honours, but struggled to get a job because of his age. Finally he secured a traineeship at Ward Keller, which is how he came to be sitting in that empty office with a file no one else wanted.
Indonesian fishermen often have their boats impounded or destroyed. It wasn’t fish that the Australian navy were protecting, it was Australia’s rights to the seabed
Phelps recalls, “It concerned Sahring, an Indonesian fisherman, from Kupang (in West Timor). He had been travelling towards Australian waters and was apprehended on the Indonesian side of the border by the Australian authorities, who claimed he had been fishing for teripang (a valuable sea cucumber, big in China).” The navy arrested him, destroyed his boat because “it was too frail to tow,” and threw him in jail for five months. This, Phelps tells me, is not uncommon. Indonesian fishermen often have their boats impounded or destroyed. It wasn’t fish that the Australian navy were protecting, it was Australia’s rights to the seabed. The whole thing baffles Phelps. “Sahring didn’t catch teripang, he was a licenced Indonesian fisherman, he was fishing for Indonesian fish in Indonesian water and we nabbed him. Now why do we want to get fishing boats out of the area? Because we just like our freedom to put bloody gas and oil wells into it.” The sea cucumbers were neither here nor there, it was oil and gas that mattered.
After five months in prison, Phelps says the authorities “realised that Sahring hadn’t committed an offence so he was released without any further conversation or compensation.” The issue in the file was whether it was possible for Sahring to win compensation in court for his loss. The clock was ticking on the statute of limitations so Phelps had to move fast. “I rang the Australian government solicitor in Canberra and said, you don’t really want me to get on the airplane and go and see Sahring, do you? I gave him an offer to settle the thing. He declined and I got on the plane.” Had he accepted, there would have been no class action and the worst oil spill in Australia’s history would have gone unnoticed and unpunished. Phelps is still dazzled by the crazy luck of it. “A lot of the stuff that happened here was just happenstance. There was no grand design how things panned out for me…But it’s funny how the stars just aligned…which meant we could bring it all together.”
With a day and a half of legal aid funding secured, Phelps flew to Kupang in West Timor to track down Sahring, take his statement and sign him up for a compensation claim. In East Nusa Tenggara, fishermen live in dozens of small villages dotted around on the islands that make up the region. When Phelps reached Sahring’s village he wasn’t there – but he came across another fisherman who had also lost a boat at the hands of the Australian navy. As Phelps was signing him up, the man asked what he was doing about the oil. Phelps said, “I don’t know what you are talking about, what oil?” The oil that killed all the fish, replied the fisherman. When he interrogated other fishermen, they all asked the same question: “What about the oil?”
Word got round that a bule (a white person in Indonesian) was asking questions. “The next thing I know, an Indonesian bloke with an Australian accent… storms into my hotel room lighting up a cigarette and starts telling me, mate, what are you going to do about this oil spill?” That’s when the penny dropped. Ferdi Tanoni, a longtime champion for the people who rely on the Timor Sea for their existence, was referring to the August 2009 Montara oil spill. Phelps remembered it well. Communities along the Western Australia and Northern Territories coast braced themselves but the oil never arrived. It fell off the news bulletins and was forgotten. “If this oil had flowed into Kimberley,” says Phelps, “if it had destroyed something of Australia’s natural beauty – there would have been an outcry.” But fortunately for the oil company, it went north and crossed the Indonesian border. Phelps says, “No investigation was conducted in Indonesian waters at all. And people breathed a sigh of relief and hoped they’d never have to hear about it again. They were entirely relying on the poverty of the people and the disregard the Australian government and Indonesian government had for them, to keep their heads in the sand and hope that it would blow over.”
Oil flowing out of the Montara platform in September 2009
Taking statements from the fishermen, Phelps quickly built up a picture of what had happened when the oil had hit. First they noticed a smell of diesel, then a brown sheen to the water with the unmistakable rainbow effect of oil. A yellow foam formed on top of the water, which was filled with dead fish, sea turtles and teripang. PTTEP had sprayed chemical dispersant on the oil to break it up, which made things even worse. “The oil,” says Phelps, “becomes multiple times more toxic once it has the dispersant on it.” The effect was to kill the whole marine ecosystem.
East Nusa Tenggara is only 700km from Darwin, but it’s remote and poor with little in the way of communications on its islands. Phelps assumed the oilcompany was simply unaware of the effects of the spill. He was sure it would be straightforward to get compensation and a clean-up. All they had to do was ask. “I said to Ferdi, look mate, they just don’t know, I’ll get the oil company to come and have a look, I’ll get the Australian government. I’ll do something about it… just in a personal capacity, I mean I’d been a qualified lawyer for just six months. I didn’t even think about opening a file.”
Back in Darwin, Phelps told the government solicitor in Canberra that he had added more people to Sahring’s claim. “It cost them a hell of a lot more because I came back with six fishermen,” he says dryly. As promised to Tanoni, he also started to make calls. He wrote to the president of PTTEP Australia and to the government but just got stonewalled. “They bullshitted me,” says Phelps. He and the partners at his law firm decided to open a file and make things formal. Dr Robert Speirs, who had done impact studies following the Exxon Valdez and Deep Water Horizon disaster, did an environmental report on the devastation which confirmed it was oil from the Montara wellhead. Phelps asked PTTEP to fund a study to evaluate the impact of their oil spill in East Nusa Tenggara. He got no response.
Without funding, Phelps had hit a dead end but he wasn’t giving up. “I joined up with the Australian Lawyers Alliance, knowing that they had an interest in pursuing issues of human rights and basic fundamental rights and I got them agitated about Montara.” A few years later they made Phelps president of the Alliance, which, as he puts it, “elevated my role”. Phelps went on the conference circuit and publicised the environmental disaster PTTEP’s oil spill had perpetrated on East Nusa Tenggara. At a conference in Dili, East Timor, Peter Cashman heard Phelps speak. “Cashman is the king of class actions in Australia and my absolute hero. He literally wrote the textbook,” says Phelps. Cashman was outraged at what he had heard and he thought he could get Phelps the funding. Two weeks later Cashman called to say Harbour Litigation Funding would put up the money. Harbour were not doing this out of the goodness of their hearts. This was a business decision but Cashman’s name and reputation had opened the door. The case was on.
Phelps’ job was to find the claimants and assess their losses. “I’ve not been a conventional lawyer,” he says. “Going over there was more like running a project.” He sees himself as someone who “seizes opportunities”. The original file came to him through happenstance, but Phelps was a serendipitous lawyer for this kind of class action. Unlike a twenty-something novice, he had decades of experience running companies and organising things so that they worked. Projects was what he did. The same applies to Ferdi Tanoni. “Dogged, obstinate, bloody-minded, artful and well-connected,” Tanoni brought his knowledge of the people, the culture and the politics. Together they made a formidable team.
A seaweed worker carries around 50 kg of wet seaweed having waded barefoot 400 metres across the jagged seabed
Sep 2016: Seaweed farmers in Daiama meet with the legal team to join as group members of the Montara class action suit
Graduates from local universities joined the legal team to gather evidence and data
Another stroke of happenstance was timing. If the oil spill had happened ten years earlier, PTTEP would have had little to fear. In common law, negligence is impossible to claim for the loss of uncaught wild fish. The fishermen, Phelps says, had no “viable claim” but at the turn of the 21st century the local East Nusa Tenggara economy had begun to change. Fishermen started growing seaweed as a cash crop. It’s widely used in cosmetics, snack foods and as an emulsifier. “Every time you eat ice cream it’s got seaweed in it,” Phelps explains. Seaweed transformed everything.
Phelps uses Daniel Sanda, the lead claimant, as an illustration. “Daniel’s father was killed by the Indonesian army when he was seven; [Daniel had] three years of education, but his whole life is about being a decent man.” For years, Sanda’s life revolved around fishing and the sum total of his wealth was one pig; he could feed his family, but little more. As Phelps says, “He led a bartering lifestyle where he might have had A$200 pass through his hands in a year.” Then, through hard work and perseverance his fortunes changed. Sanda grew seaweed on long, handmade ropes, slowly building up his business to where “the year before the oil arrived he was turning over A$26,000 per annum (around £14,000), with a very high profit.” The family’s life possibilities were transformed. Sanda sent his children to university, gave money to his extended family and contributed to his community. One son is a theology professor and another runs a hotel in Bali. But when the oil arrived the seaweed turned white and died. Sanda and the other seaweed farmers, the cornerstone of the local economy, lost everything.
Unlike uncaught wild fish, you can sue someone for the loss of seaweed production. But to do so, you need to measure and quantify it. Phelps’ role, with Ferdi Tanoni’s help, was to find the people who had lost their livelihoods and, through detailed, uncontradictable research, put a figure on it. This was a huge task. Phelps would spend 37 weeks of one year in East Nusa Tenggara going from village to village, and person to person. Furthermore, the seaweed farmers were scattered across dozens of small islands. There was no Internet. The fancy Apple laptops they were given didn’t work because there was no reception to upload claimants’ details onto the specially created cloud. Phelps, characteristically undaunted, bought cheap tablets and, describing himself as “a bit of whizz with macro”, created Excel spreadsheets to log the information.
The inevitable culture differences made things difficult. “You have a meeting set for ten o’clock and they don’t think it makes any difference whether they’re there at ten or one o’clock.” To make matters worse, no one had written anything down, which made calculating losses extremely hard and slow. What was clear, however, was the damage the oil had done. It shocked Phelps how these people, who became his friends, had their lives ruined. “The people were amazing. Their generous spirit, their respect for you, their love of their families and each other.” By the end, he and his team had signed up 81 villages and over 15,000 claimants.
Daniel Sanda with his wife Viktoria on the front porch of their family home in Oenggaut with their grandson
Big class actions are slow. It took Sahring eight years to get compensation for just one boat. PTTEP has dragged its feet at every step of the way. Time is an enemy and it has robbed a lot of people a chance of justice. “A lot of kids lost their education. They don’t get justice,” says Phelps, “Some are dying. My very good friend Gabriel Mboeik gave wonderful evidence and then went home and died. It breaks my heart that Gabriel, who I spent so much time with in his village, will never know the outcome of what happened in the court.”
The thing that really gets Phelps is PTTEP’s cynicism and inaction. “PTTEP maintained the position all the way along that no oil ever reached the coast of Indonesia. Their environmental officer wrote to his manager that he anticipated that oil would be on the Indonesian coastline in the next few days…and no warning [was] issued.” Phelps says the oil company was totally aware the islands’ inhabitants lived “with absolute attachment” to the ocean for their food and for everything they did, and yet “no warning was given. Now how disgusting is that?” As he angrily continues, the reasoning was: “They are so poor we can… swamp them with this shit and get away with it. If they were white people living in modern cities there would have been every type of warning from every type of agency.”
The federal court’s judgment in Daniel Sanda’s favour is not the end of things. Phelps doesn’t know when the case will be finished but he’s hopeful. “It’s hard to say. We’re on the front foot now. We could be another three years, or we could be over in the next three months.” But he’s determined that PTTEP will be forced, finally, to do the right thing. “They’ll have to pay. We don’t sit around worrying about them not paying…because we have a court order for Daniel on aggregate damages (which includes interest).” With the principle established, the other 15,000 claimants are entitled to compensation on the figures determined by Phelps and his team. “I’ve got the best figures on [seaweed] production of every single one of them. Once aggregate compensation is determined, we know how it should be distributed. The day that I say it’s finished is the day I retrace my steps around 81 villages and give them all a key card with an amount of money on it. I’ve got every one of them here on my computer. Every one of their faces has been recorded.” For Phelps, the case has long been personal. “I know who they are,” he explains.
Phelps is disheartened by the global obsession with fossil fuels and offended by the shabby way it has made Australia treat its nearest neighbour. His godfather was a commando there during WWII, so Phelps knows well how the Timorese helped the Australians fight by feeding and hiding them. They did so at enormous cost, with tens of thousands losing their lives. Phelps believes that sort of friendship should be heeded and respected. He’s embarrassed that instead of cross-cultural exchange and partnership, all the Timorese got from Australia was an oil spill and a brush-off. The Daniel Sanda case redresses things at least a little.
Alex McBride is a writer and criminal barrister. He is the author of “Defending the Guilty”, and co-creator of the BBC2 comedy of the same name. He also writes for BBC1’s crime drama “The Mallorca Files”