Australia: Consulting On Consultation: Clarifying The Offshore Environmental Management Framework

Snapshot

• The Department of Industry, Science and Resources (DISR) has launched a review of the entire offshore environmental management framework to ensure it is fit for purpose, which will be completed in stages over three years (Review).
• The Federal Government will expedite initial changes to offshore consultation requirements to seek to address uncertainty and ambiguity, and is expected to make subsequent changes as the broader review progresses and to align with new national environmental laws anticipated to be introduced to Parliament in 2024.
• To facilitate initial changes to the offshore consultation requirements, DISR is seeking public comment to its consultation paper until 23 February 2024 via their consultation hub, and will undergo targeted consultation with relevant stakeholders. DISR will then consider the feedback and assess whether any amendments are required.

Current obligations

Under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (Environment Regulations), an environment plan (EP) accepted by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) is required for all offshore petroleum activities. NOPSEMA may only accept an EP where it is reasonably satisfied that the criteria in regulation 34 have been met.

One of the relevant criteria relates to consultation with 'relevant persons'. Under regulation 25, during the preparation of an EP, a titleholder must consult with all relevant persons, which includes any individual, organisation or group whose functions, interests or activities may be affected by the proposed offshore activity.

Review

As part of the Federal Government's Review, DISR has launched a review of the entire offshore environmental management framework, which has not been subject to an overall review since 2013. The broader Review proposes to potentially update the framework to ensure that it reflects best practice in the context of a decarbonising economy, and is consistent with the Federal Government's national and international environmental obligations and its Nature Positive Plan.

While the Review will be completed in stages over three years, the Federal Government intends to expedite initial changes to address uncertainty and ambiguity in consultation requirements under the Environment Regulations after recent court decisions, notably including Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 (Tipakalippa).

The basis of the Court's findings in Tipakalippa have had implications for stakeholder consultation in respect of all offshore petroleum activities, as well as NOPSEMA's requirements for EPs in this regard. In response to the Tipakalippa decision, NOPSEMA published the guideline 'Consultation in the course of preparing an environment plan' (Guideline), which seeks to interpret the Tipakalippa decision and identify the matters that should be considered in designing and implementing consultation processes to be consistent with the Environment Regulations.

Further legal challenges have been raised against NOPSEMA's decision to accept EPs for multiple offshore projects following Tipakalippa, such as in Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158.

Despite the Guideline and judicial consideration in Tipakalippa, significant uncertainty on the specific legal requirements for consultation under the Environment Regulations has remained.

Consultation Paper

On 12 January 2024, DISR published a consultation paper titled 'Clarifying consultation requirements for offshore petroleum and greenhouse gas storage regulatory approvals' (Consultation Paper). The Consultation Paper is seeking feedback from a range of people, organisations, local communities, Traditional Owners and First Nations communities, and offshore resources companies on the consultation process under the Environment Regulations. The Consultation Paper is also seeking feedback on how the consultation process can be clarified to improve outcomes.

The Consultation Paper is structured around answering two overarching questions:

1. How can the Environment Regulations ensure targeted, effective, meaningful, and genuine consultation occurs, including culturally appropriate consultation with Traditional Owners and First Nations communities?
2. How should titleholders best identify who is a relevant person or organisation for the purposes of consulting on a proposed offshore resources activity?

The public has been asked to comment on 22 sub-questions under the topics of:

• improving engagement with relevant persons;
• presenting consultation outcomes in an EP;
• providing a reasonable time for consultation;
• culturally appropriate First Nations consultation;
• coordination;
• identifying relevant persons; and
• clarification of 'may be affected'.

Next Steps

DISR is seeking written submissions on the Consultation Paper from 12 January 2024 until 23 February 2024 via its consultation hub. DISR will also be undertaking targeted stakeholder engagement during and following the public consultation period. Further opportunities for feedback will be provided over the course of the broader Review.

The Consultation Paper can be viewed here. The public has also been invited to email EnvironmentalReview@industry.gov.au to register for online information sessions or to register for more information on the Review.

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