In March 2024, EDO made submissions on three inter-related reviews regarding the offshore oil and gas management framework.
Consultation Requirements Review
The Government is currently undertaking a review of the offshore environmental management regime. This includes obligations on the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and titleholders under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth). As part of this review, the Department of Industry, Science and Resources sought feedback on a consultation paper relating to the consultation requirements for offshore petroleum and greenhouse gas storage regulatory approvals (Consultation Requirements Review).
This Consultation Requirements Review deals with titleholders’ obligation to undertake consultation with people and organisations whose functions, interests or activities may be impacted by proposed offshore resources activities. This is an essential feature of Australia’s existing offshore environmental management framework, and allows people who are impacted by offshore gas activities the subject of environment plans to have their say, as well as be properly informed of the scope and impact of the proposed activities.
The importance of the consultation process is particularly pertinent for First Nations communities, who have cared for and relied on Country for millennia. It is critical that First Nations communities are adequately and genuinely consulted in relation to offshore resources projects that may impact their Countries, their cultural and spiritual connections to their Countries, homes, cultures and ways of life. This is in line with Australia’s international human rights obligations, and long-standing principles of environmental law.
As provided to the Consultation Requirements Review, EDO’s position is that the consultation requirements in the offshore regulatory scheme are sufficiently clear and enforceable. However, the Review provides an opportunity to confirm and strengthen requirements for all relevant persons, but specifically affected First Nations communities.
Protecting the Spirit of Sea Country Bill 2023
The Protecting the Spirit of Sea Country Bill 2023 aims to strengthen consultation requirements for Australia’s offshore oil and gas approvals regime for First Nations communities. The Bill was introduced as a response to the decision in Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 (Tipakalippa).
The Full Federal Court’s decision in Tipakalippa confirmed that First Nations peoples’ spiritual and cultural connections to sea Country requires them to be consulted under the offshore resources scheme. It also provided authoritative guidance on the nature of consultation requirements incumbent on titleholders for offshore projects. The Protecting the Spirit of Sea Country Bill aims to codify these outcomes, and is intended to remedy perceived flaws in the current legislative regime revealed by the case.
EDO supports the Protecting the Spirit of Sea Country Bill, and our submission to the Senate Environment Committee identifies additional ways the consultation scheme can be strengthened.
Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024
The Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 was introduced in February and sent to a rapid Senate Inquiry. Amongst worker safety measures for offshore activities, an amendment in this Bill relates to the accreditation of NOPSEMA under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Bill seeks to maintain the validity of the existing accreditation of NOPSEMA approvals to cover future changes to the offshore regulatory scheme, including the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023.
EDO’s submission sets out concerns about the timing and context of this Bill, including the short timeframe for the Senate Inquiry, as well as the introduction of the Bill ahead of critical reforms to the EPBC Act and ‘nature positive’ law reforms.
EDO also distributed a legal memo setting out concerns relating to the provisions dealing with EPBC Act accreditation of the offshore regulatory framework. EDO is concerned that this Bill pre-empts the development of a robust accreditation process undertaken by an independent national Environment Protection Australia (EPA) according to national environment standards – as committed to in the Nature Positive Plan for new national nature positive laws.
