Recent decisions highlight traditional owner consultation requirements for Australian offshore projects

In July, Australian offshore regulator the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) granted Woodside Energy (Woodside) approval (999KB/49-page PDF) for an environmental plan to conduct seismic surveys for its Scarborough gas project in Western Australia (the project).

NOPSEMA’s decision indicated that while it was unable to be satisfied that reg 10A(g) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (the regulations) was met in relation to consultation with traditional custodians, it would be appropriate to approve the environment plan subject to conditions addressing these concerns. Accordingly, it imposed a condition of approval requiring Woodside to consult with “registered native title bodies corporate, representative Aboriginal/Torres Strait Islander bodies and other persons or organisations identified as a relevant person…”.

Raelene Cooper, a Mardudhunera lore woman, elder and a traditional custodian of Murujuga, commenced proceedings on 17 August 2023 seeking judicial review of NOPSEMA’s decision to approve Woodside’s seismic surveys. She also sought a permanent injunction restraining Woodside from undertaking the surveys.

Cooper argued that the surveys could have detrimental impacts on sea country and song lines, including on whales and turtles, which are of significant cultural importance. She challenged the validity of NOPSEMA’s decision on two grounds:

• NOPSEMA did not have statutory power to make the decision to approve the environment plan for the proposed seismic survey in circumstances where inadequate consultation has occurred; or
• Woodside had not complied with the conditions requiring the company to consult with her and other traditional custodians of the land.

The Federal Court ruling

On 28 September, the Federal Court of Australia found that NOPSEMA had invalidly approved the environment plan for the proposed seismic survey as the regulations required NOPSEMA to be satisfied that consultation with each person whose interests may be affected by the activities to be carried out under the environmental plan had in fact been carried out prior to approving that plan.

The court noted that “the effectiveness of the regulatory oversight for NOPSEMA to accept any environment plan …depends materially upon NOPSEMA having before it, at the time of its deliberation as to whether to accept the plan, the outcome of the consultation that the titleholder is required to undertake.”

The court found that ensuring full consultation has occurred is integral as it allows NOPSEMA to use the necessary “evaluative judgment” required at the time of approving the environment plan.

The court followed the decision in the case between Santos NA Barossa Pty Ltd (Santos) and Tipakalippa in 2022. In that case, Santos had similarly submitted an environmental plan to NOPSEMA to permit it to conduct certain drilling activities for an offshore gas project in the Timor Sea. Dennis Tipakalippa, an Elder, senior lawman and traditional owner of the Munupi Clan on the Tiwi Islands, challenged NOPSEMA's decision on the premise that his clan and relevant traditional owners had a connection to country in the project area and should have been consulted under the regulations.

The court found in the Tipakalippa case that the purpose of consultation is to ensure that the property owner has “ascertained, understood and addressed all the environmental impacts and risks that may arise from its proposed activities”. Consultation contributes to this outcome because it gives the owner the opportunity to obtain information from others affected by its proposed activities that it might not otherwise have. Consultation allows the property owner to better understand how these environmental impacts and risks are perceived by others who have an objective interest in the environment in which their proposed activity takes place.

The court ultimately granted an interim injunction against Santos following an application made Simon Munkara, a Tiwi Island traditional owner, who successfully argued that works on the project should be paused until Santos assessed new evidence showing the cultural heritage risks posed by the gas pipeline and submitted a new environmental plan. The interim injunction will remain in place until 13 November, when the court will decide whether to grant a full injunction.

NOPSEMA guidelines

Following the Tipakalippa decision, NOPSEMA released new guidelines (6-page / 350KB PDF) setting out how to identify relevant individuals to consult, and general principles for effective consultation. 

As a starting point, the guidelines state that consultation should incorporate the principles of communication, transparency, collaboration, inclusiveness and integrity.

Key takeaways

The offshore gas regulatory provisions have provided the blueprint for the development of the offshore wind regime. While further regulations are still being prepared on the approval of environmental plans under the offshore wind regime, it is likely that they will continue to reflect the offshore gas regime.

Accordingly, the Cooper and Tipakalippa decisions, alongside the Munkara interim injunction, provide for offshore wind project proponents on the level of upfront consultation required as they continue or enter their engagement and consultation phase with key stakeholders including First Nations peoples.

Consultation should be genuine, rather than a ‘tick the box’ exercise. It should allow stakeholders to identify the effect of the proposed activity on their functions, interests or activities; and include a reasonable period of time within which stakeholders can appropriately respond to project proponents with their concerns.

Proponents need to be prepared to demonstrate how they have taken into account the feedback received from stakeholders in finalising the works and mitigation measures proposed in the environmental plan.

Co-written by Niren Menon of Pinsent Masons.