One of three federal court judges oversee an appeal on a Native Title Tribunal determination that could prove decisive for the future of Santos' Narrabri gas project, has removed herself from the case after her connections to the Adelaide gas firm were revealed.

Justice Natalie Charlesworth, who has been presiding over the appeal process by the Gomeroi people against a May ruling that overturned their application and removed a significant obstacle to Santos' plans, stepped aside on Thursday, throwing the timetable for the hearing into disarray.

"I am satisfied…that I should recuse myself on the basis of the facts disclosed by me…For the reasons given, it is my view that I should be disqualified," she said.

The judge's decision was prompted by revelations that Daniel Calderisi, described as an associate of hers, had previously been seconded to work with Santos "assisting the principal litigator of Santos in general case summaries and file progressions," including working on the appeal Charlesworth had been presiding over.

Subsequently, it emerged Charlesworth has a personal friendship with Nick Malbon, a Santos employee who worked on the financial details of the Narrabri gas project. 

Following the move by the judge to recuse herself, a two day hearing due to be held this week has been cancelled with no new dates set.

What adds to the significance of these possible conflicts is that Charlesworth was the judge who ruled in favour of Santos in its appeal against the ultimately unsuccessful case against its Barossa project brought by Tiwi Islander Simon Munkara and the Environmental Defenders Office (EDO), which ended with the legal firm owing millions in legal fees. It also emerged that Calderisi worked on this matter while on his secondment to Santos.

"Surprise"

Suellyn Tighe, a Gomeroi community elder who has been involved in the Native Title application and the subsequent appeal, said she was surprised it had taken so long for Charlesworth's connections to come to light and that she had allowed herself to be involved in the matter at all.

"It appears to me there's a continuing circle of influence, and it's blurring the lines of separation between politics and big business, such as fossil fuel companies like Santos and the law, and that line of demarcation has been eroded."

Revelations

On September 25 Charlesworth's executive assistant wrote to lawyers for both the Gomeroi people and Santos to declare Calderisi's connections with both the case and Santos.

On October 13 lawyers for the Traditional Owners responded to say "the Appellant [the Gomeroi people] does hold concerns regarding the involvement of Justice Charlesworth's Associate" and requested he "should not be engaged in any capacity in the present proceedings."

Charlesworth agreed to that and confirmed it in writing earlier this month.

However, her executive assistant also wrote to the parties to highlight the judge's friendship with Malbon.

In exchanges with the appellant's legal team, Charlesworth confirmed she had made no secret of the friendship and had declared it in open court while presiding over the previous appeal hearing with between Santos and the EDO.

She also confirmed she had contacted Malbon to inform him she was on the appeal board relating to the Narrabri gas project and would be declaring the friendship.

During the Barossa appeal Charlesworth took time to declare: "I have a very close friend who is an employee in the Adelaide office of Santos…Given the nature of my relationship with him, I thought it was appropriate that I do that," to which the lawyers for the appellants had no objection.

In details of two phone calls with Malbon held on October 27, Malbon confirmed he had worked on the Narrabri project and Charlesworth asked Malbon not to disclose any further information to her relating to the Narrabri Project.

Judgement

While none of the parties involved in the case applied for the judge to be stood down, Charlesworth opted to recuse herself.

In her reasons she said: "The test for apprehended bias…the "double might test"…is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial mind to the resolution of questions arising in a proceeding."

When contacted by ENB, the EDO declined to comment, as did the Federal Courts.