Legal Decision on Consultation Requirement in Environmental Planning
Joint meeting of Climate Change
and Catastrophic Events and
Dispute Resolution Working Parties
10
th
AIDA Europe Meeting- Athens May 31
st
2024
Chris Rodd – Chair Dispute Resolution WP
•
Cooper v National Offshore Petroleum Safety and
Environmental Management Authority ( no 2)
[2023] FCA
1158
•
Facts – As part of Woodside Energy’s Scarborough undersea
Gas project, it undertook a seismic survey , in the impacted
area , but in so doing failed to consult with traditional
interested owners. Despite this omission ,NOPESMA (
National Offshore Petroleum Safety and Environmental
Management Authority ) granted approval for the
environmental plan.
•
Proceedings were commenced in the Federal Court against
NOPSEMA , by a member of the traditional owner group with
responsibility for the Burrup Peninsula which included the coastal
waters where the seismic survey was to take place.
•
The Applicant claimed that insufficient consultation had taken place
and that and that NOPSEMA could not grant approval on the basis
that consultation could take place subsequently ie it had to occur
prior to the Environmental Plan being submitted to NOPSEMA .
•
the Applicant argued that
Offshore Petroleum and Greenhouse Gas
Storage ( Environment ) Regulations 2009
( Cth) required prior
consultation.
Decision and Reasons
•
The Federal Court agreed with the Applicant .NOPSEMA did not have
the statutory power to make the decision where it was not
reasonably satisfied that the seismic survey environmental plan
demonstrated the consultation required pursuant to the regulations
under the
Offshore Petroleum and Greenhouse Gas Storage (
Environmental ) Regulations 2009
•
The Court also held that NOPSEMA had no discretionary power to
grant
Woodside
approval in the absence of the consultation with
traditional owners.
Reasons
•
The Court noted that “ Environmental Impacts and Risks “not only
embraced ecologically sustainable development , but also included “
social and cultural features of eco systems and locations places and
areas and also included heritage values and their cultural features.
•
“ The requirement as to consultation is extensive . It must include
each person or organization who may be affected by the activities to
be carried out under the environmental plan and any other person or
organization that the titleholder considers relevant” ( per Justice
Colvin)
•
Munkara v Santos NA Barossa Pty Ltd (no 3)
[2024] FCA9
•
Facts - Santos proposed to construct an offshore gas pipeline (the
Barossa Project ) that passed within 7 kilometres west of the Tiwi
Islands . Again , as in
Cooper
,the regulator NOPSEMA accepted an
environmental plan in respect of Santos’ proposed construction of the
pipeline , on March 2020 .
•
The Applicants sought an urgent interim injunction to prevent
construction of the pipeline on the basis that it would significantly
impact both “ intangible and tangible cultural heritage sites” and that
this was not provided for in approved environmental plan .
Facts
•
Evidence was lead concerning archaeological sites that “may” be
located beneath the seabed….. Including dreamtime stories involving
rainbow serpents , The Ampiji and The Crocodile Man !
•
The Applicants alleged that the cultural impacts were “ new” within
the meaning of r17(6) of the OP and GGS Act and Regs , because they
were not included in the approved environmental plan and had not
been previously assessed by NOPSEMA . On the“
•
‘ On the “Occurrence” of being made aware of the risk, it was
asserted that Santos should have submitted a revised plan to
NOPSEMA .
Decision and Reasons
•
The Court did not accept that under r17(6) that the allegations
concerning Ampiji and the Crocodile Man amounted to “new" risks .
•
Contrary to the Applicants submissions, a “new” risk is not new
merely because NOPSEMA had not previously considered it .Rather a
risk is new on the occurrence of an event that creates the risk . It
connotes an objective event rather than a title holders subjective
knowledge or state of mind.
•
Credibility and consistency of witness accounts was a significant issue
, with coaching of witnesses an issue of concern.
•
Justice Charlesworth dismissed the Applicants claim.
Relevance of Decision
•
Two similar cases but with different outcomes .
•
The
Munkara
judgement has set the standard of proof required to
support an assertion, that a particular project is likely to cause
significant risk to Aboriginal cultural heritage.
•
Footnote – The decision stands ,as the time for the Applicants to
appeal lapsed in late January this year.
The Federal Court ruled against NOPSEMA in a case involving consultation requirements for environmental planning related to a seismic survey project. The Court held that consultation with traditional owners was essential and NOPSEMA lacked statutory power to approve without proper consultation, emphasizing the broad scope of consultation encompassing social, cultural, and heritage aspects.
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Presentation Transcript
Joint meeting of Climate Change and Catastrophic Events and Dispute Resolution Working Parties 10thAIDA Europe Meeting- Athens May 31st2024 Chris Rodd Chair Dispute Resolution WP
Cooper v National Offshore Petroleum Safety and Environmental Management Authority ( no 2) [2023] FCA 1158 Facts As part of Woodside Energy s Scarborough undersea Gas project, it undertook a seismic survey , in the impacted area , but in so doing failed to consult with traditional interested owners. Despite this omission ,NOPESMA ( National Offshore Petroleum Safety and Environmental Management Authority ) granted approval for the environmental plan.
Proceedings were commenced in the Federal Court against NOPSEMA , by a member of the traditional owner group with responsibility for the Burrup Peninsula which included the coastal waters where the seismic survey was to take place. The Applicant claimed that insufficient consultation had taken place and that and that NOPSEMA could not grant approval on the basis that consultation could take place subsequently ie it had to occur prior to the Environmental Plan being submitted to NOPSEMA . the Applicant argued that Offshore Petroleum and Greenhouse Gas Storage ( Environment ) Regulations 2009( Cth) required prior consultation.
Decision and Reasons The Federal Court agreed with the Applicant .NOPSEMA did not have the statutory power to make the decision where it was not reasonably satisfied that the seismic survey environmental plan demonstrated the consultation required pursuant to the regulations under the Offshore Petroleum and Greenhouse Gas Storage ( Environmental ) Regulations 2009 The Court also held that NOPSEMA had no discretionary power to grant Woodside approval in the absence of the consultation with traditional owners.
Reasons The Court noted that Environmental Impacts and Risks not only embraced ecologically sustainable development , but also included social and cultural features of eco systems and locations places and areas and also included heritage values and their cultural features. The requirement as to consultation is extensive . It must include each person or organization who may be affected by the activities to be carried out under the environmental plan and any other person or organization that the titleholder considers relevant ( per Justice Colvin)
Munkara v Santos NA Barossa Pty Ltd (no 3) [2024] FCA9 Facts - Santos proposed to construct an offshore gas pipeline (the Barossa Project ) that passed within 7 kilometres west of the Tiwi Islands . Again , as in Cooper ,the regulator NOPSEMA accepted an environmental plan in respect of Santos proposed construction of the pipeline , on March 2020 . The Applicants sought an urgent interim injunction to prevent construction of the pipeline on the basis that it would significantly impact both intangible and tangible cultural heritage sites and that this was not provided for in approved environmental plan .
Facts Evidence was lead concerning archaeological sites that may be located beneath the seabed .. Including dreamtime stories involving rainbow serpents , The Ampiji and The Crocodile Man ! The Applicants alleged that the cultural impacts were new within the meaning of r17(6) of the OP and GGS Act and Regs , because they were not included in the approved environmental plan and had not been previously assessed by NOPSEMA . On the On the Occurrence of being made aware of the risk, it was asserted that Santos should have submitted a revised plan to NOPSEMA .
Decision and Reasons The Court did not accept that under r17(6) that the allegations concerning Ampiji and the Crocodile Man amounted to new" risks . Contrary to the Applicants submissions, a new risk is not new merely because NOPSEMA had not previously considered it .Rather a risk is new on the occurrence of an event that creates the risk . It connotes an objective event rather than a title holders subjective knowledge or state of mind. Credibility and consistency of witness accounts was a significant issue , with coaching of witnesses an issue of concern. Justice Charlesworth dismissed the Applicants claim.
Relevance of Decision Two similar cases but with different outcomes . The Munkara judgement has set the standard of proof required to support an assertion, that a particular project is likely to cause significant risk to Aboriginal cultural heritage. Footnote The decision stands ,as the time for the Applicants to appeal lapsed in late January this year.
