Native Title Year in Review 2023-2024

What you need to know

• Following the Full Court's 2022 Tipakalippa decision, 2023 saw two further proceedings commenced in relation to offshore gas projects and their impact on First Nations sea country interests.
• In Cooper v NOPSEMA (No 2) [2023] FCA 1158, the Federal Court decided that NOPSEMA did not have the power to approve an environment plan subject to conditions requiring further First Nations consultation. Accordingly, all consultation must be complete before the submission of an environment plan to NOSPEMA.
• In Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9, the Federal Court was asked to consider what new information about risks and impacts to sea country would constitute a significant new environmental risk requiring a revised environment plan and fresh consultation.

What you need to do

• If you are currently consulting on an environment plan under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth), you will be aware of the NOPSEMA Guidelines, Consultation in the course of preparing an environment plan. Genuine consultation of the type required needs thoughtful planning and careful execution. Do not defer this, NOPSEMA does not have the power to accept an environment plan unless it is satisfied consultation is complete.
• If you currently hold an in-force environment plan, the decision in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 provides increased certainty that it can be relied upon for environmental risks and impacts that existed up until the date of approval. Revision of the plan and further consultation will only be required due to new facts and circumstances arising after approval.

Reminder of the Tipakalippa decision

In Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 the Full Federal Court upheld a decision to overturn NOPSEMA's acceptance of Santos' environment plan for the drilling and completion activities as part of its Barossa Project. This was on the basis that it had not consulted with all relevant persons whose "functions, interests or activities may be affected" by the activities (regulation 11A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (OPGGS(E) Regulations 2009), as then in force). 

The Court held that Santos did not consult the "relevant person" being Dennis Tipakalippa, an elder, senior lawman and traditional owner of the Munupi Clan on the Tiwi Islands. We wrote about that decision in our Native Title Year in Review 2022-2023 article "Full Court Tipakalippa decision – stakeholder consultation grows teeth".

Following Tipakalippa, there have been two further challenges to approvals for offshore gas projects by traditional owners heard and decided by the Federal Court:

• Cooper v NOPSEMA (No 2) [2023] FCA 1158;
• Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9.

Cooper v NOPSEMA

What were the Cooper proceedings about?

Cooper concerned an application by Ms Raelene Cooper, a Murdudhunera lore woman, for judicial review of a decision by NOPSEMA to accept an environment plan. The plan was for a seismic survey associated with Woodside's Scarborough Project, located in offshore waters off the coast of the Pilbara region of Western Australia. Woodside was the second respondent to the proceeding.
NOPSEMA had accepted the Environment Plan subject to conditions, one of which required Woodside to further consult with representatives of Aboriginal and Torres Strait Islander bodies prior to the commencement of the seismic survey.

Ms Cooper commenced proceedings on 17 August 2023, primarily on the basis that NOPSEMA did not have the statutory power to make the decision to approve the environment plan. In particular whether NOPSEMA could approve the plan when it was not reasonably satisfied that consultation requirements under the OPGGS(E) Regulations 2009 had been carried out. Alternatively, Ms Cooper claimed Woodside had not complied with conditions requiring Woodside to consult with her and Woodside should be permanently restrained from undertaking the seismic survey.

Ms Cooper sought an urgent injunction shortly after the commencement of the proceedings, which was granted. Following this, an expedited hearing occurred to determine the preliminary issue of whether NOPSEMA had power to make its decision. 

Did NOPSEMA have power to make the decision?

In finding that NOPSEMA did not have the statutory power to make its decision, Justice Colvin considered several requirements and powers under the OPGGS(E) Regulations 2009.

The Court observed that NOPSEMA can only accept an environment plan if it is reasonably satisfied criteria in the regulations are met, which relevantly includes that the necessary consultation has been carried out.

NOPSEMA can accept an environment plan subject to "any limitation or condition applying to operations for the activity". 

The Court referred to Tipakalippa as highlighting that NOPSEMA is materially depending on the consultation undertaken by a titleholder to identify impacts and risks, and that the regulatory scheme contemplates that consultation will be completed before the plan is submitted to NOPSEMA for acceptance.

This position is not affected by the regulations also containing provisions requiring consultation after an environment plan has been accepted. This is because those aspects of the scheme are a mechanism to deal with future developments as they unfold, rather than indication that NOPSEMA has power to defer the assessment of the consultation requirements.

The Court decided that NOPSEMA's power to include conditions on the acceptance of a plan could not include conditions to undertake further consultation, as the consultation does not form part of the "operations for the activity". The Court further held that such a condition would impermissibly delegate part of NOPSEMA's statutory task (the evaluation of whether environmental impacts and risks have been reduced as low as reasonably practicable and to an acceptable level) to Woodside. 

Munkara v Santos

What were the Munkara proceedings about?

Munkara concerned an injunction application brought by Mr Simon Munkara regarding Santos' Barossa Project Gas Export Pipeline. Unlike Tipakalippa and Cooper, both of which were judicial review applications of recently accepted environment plans, Munkara related to an environment plan originally approved in November 2021. The basis for the application was to seek an injunction for an anticipated breach of regulation 17(6) of the OPGGS(E) Regulations 2009 (as then in force) due to Santos' alleged failure to revise its environment plan following the occurrence of a significant new or increased environmental impact or risk. 

Mr Munkara alleged that information provided to Santos and NOPSEMA before the proceedings about Tiwi Islander cultural heritage and sea country in the vicinity of the pipeline constituted a significant new risk or impact that was not accounted for in the approved environment plan. Two other Tiwi Islanders joined as applicants after the commencement of the proceedings.

The injunction sought would have restrained Santos from installing its pipeline until its environment plan had been revised and submitted to NOPSEMA. A consequence of such an injunction would also be that Santos would be required to carry out new consultation before NOPSEMA could accept the revised EP.

When are cultural beliefs considered part of the environment?

The OPGGS(E) Regulations 2009 define environment as meaning (among other things) the "cultural features" of "ecosystems and their constituent parts, including people and communities" and "the heritage values of places". The Applicants argued this definition included a crocodile man songline, and a rainbow serpent (the Mother Ampiji) said to reside offshore where a lake existed 20,000 years ago.

When considering the meaning of "environment" and the extent to which it could include cultural beliefs, Justice Charlesworth found that it was necessary to show that any beliefs were broadly representative of the beliefs held by the relevant clans "as a people". Cultural features are part of the ecosystem, and the focus should not be on an individual devoid of the context of the ecosystem. If a belief held by an individual or some individuals does not broadly represent those beliefs, they are not a cultural feature within the definition of environment.

The parties' evidence

Both the Applicants and Santos had a number of Tiwi Islander lay witnesses, and each had their own experts that prepared reports and gave oral evidence during the proceeding.

Twenty three Tiwi Islanders gave evidence, twelve for the applicants and eleven for Santos. This constituted a roughly even split of those saying that the pipeline would harm the cultural features and beliefs of the Tiwi Islanders, and those that said there would be no cultural impacts or impediments as a result of the pipeline being installed along the sea floor.

The Applicants' experts had prepared a number of anthropological, geomorphological and archaeological reports. Most of this evidence was prepared in the months prior to the commencement of proceedings and was a product of workshops held with Tiwi Islanders to undertake a cultural mapping exercise. The primary output of those meetings was a map which purportedly showed the Santos pipeline intersecting the crocodile man songline and being located between the Tiwi Islands and the location of a Mother Ampiji (Ampiji being the rainbow serpent caretaker of the Tiwi Islands).

Santos' expert evidence consisted of anthropological, archaeological and geological evidence, which was largely prepared in response to a general direction from NOPSEMA issued in January 2023 that required Santos to undertake an assessment of underwater cultural heritage along the pipeline route.

Justice Charlesworth was not satisfied there was any risk of environmental impact of the kind asserted by the Applicants. In reaching this conclusion, Her Honour described the cultural mapping exercise and the opinions expressed about it as "so lacking in integrity that no weight can be placed on them". 

Throughout Her Honour's decision, the judgment was critical of the conduct of the Applicants' independent experts. Including that the conduct of one expert suggested that they sought to present a case that they perceived might assist the Applicants, and therefore not behaving as an independent expert whose principal obligation is to assist the Court.

Justice Charlesworth was also critical of one of the Applicants' solicitors, commenting that the conduct of that solicitor during one of the workshops with the Tiwi Islanders was sufficient to reduce the integrity and reliability of the cultural mapping exercise to naught.

The Court also rejected the Applicants' evidence of possible impacts on tangible cultural heritage such as alleged burial sites. Justice Charlesworth found there was no factual or scientific underpinning that those alleged sites would survive 10,000 years of tidal currents, and further rejected the Applicants' expert evidence on this issue.

What constitutes the occurrence of a "new" environmental risk?

Notwithstanding the Court's findings on the basis of the evidence, Justice Charlesworth made further findings that the risks identified by the Applicants were not "new" within the meaning of regulation 17(6).

The Applicants asserted that a risk "occurred" when it was brought to Santos' attention, and was "new" because it was not provided for in the environment plan. The Court disagreed, finding that a new risk only occurs when the facts or circumstances giving rise to the asserted risk are facts and circumstances coming into existence after the approval of an environment plan.

While not stated by the Court, this construction would appear to make it very difficult for the existence of indigenous cultural heritage to be a new environmental risk requiring a revision of an in-force environment plan.

What did the Court decide?

For the reasons outlined above, the Court dismissed the application, allowing Santos to proceed with installing its pipeline. 

Regulatory updates

On 10 January 2024, the OPGGS(E) Regulations 2009 was repealed and replaced by the OPGGS(E) Regulations 2023. The OPGGS(E) Regulations 2023 largely remake and renumber the OPGGS(E) Regulations 2009, without any substantial amendments, as a result of the sunsetting of the 2009 regulations. 

The consultation requirements have been re-enacted unchanged.

On 12 January 2024, the Department of Industry, Science and Resources released a consultation paper to clarify the consultation requirements for offshore oil and gas regulatory approvals. The two themes of the consultation follow some of the issues ventilated in the Tipakalippa and Cooper proceedings, namely:

• how to clarify the process for identifying who may be affected by offshore resources activities, the roles of representative bodies in consultations, and whether relevant persons should be able to self identify and in what time frame; and
• how to determine when the consultation process can be considered complete.

The consultation closed on 8 March 2024 (extended from its original closing date of 23 February 2024).

The review has yet to reply to the responses received to the consultation paper, but there will be a further opportunity to comment on any proposed changes.

Consultation under the Offshore Electricity Infrastructure Regime

The government is currently working on draft amendment regulations under the Offshore Electricity Infrastructure Act 2021 (Cth), which would introduce consultation requirements for the approval of management plans to carry out certain offshore electricity infrastructure activities, such as the construction and operation of offshore wind farms.

The consultation requirements with respect to First Nations people are expressed in different terms from those in the OPGGS(E) Regulations, providing that a licence holder must consult with (among others):

Aboriginal or Torres Strait Islander communities or groups that the licence holder reasonably considers may have:

- native title rights and interests (within the meaning of the Native Title Act 1993) in relation to the licence area; or

- sea country in the licence area.

There is a number of notable differences between this requirement and the "relevant person" consultation requirement in the OPGGS(E) Regulations 2023, including:

• A licence holder is only required to consult with First Nations communities or groups, not an individual relevant person;
• there are express references to sea country (but no clear method for determining its existence or extent); and
• the existence of First Nations rights and interests is now subject to the reasonable opinion the licence holder has about the existence of those rights and interests, compared to the functions, interests or activities of a relevant person under the OPGGS(E) Regulations 2023, which can exist as an objective fact regardless of the knowledge and opinions of a titleholder (as was the case in Tipakalippa).

The proposed regulations may change during the course of the consultation. It will be interesting to see if there is some degree of uniformity with the OPGGS(E) Regulations 2023 once both consultation and review processes are complete.

Authors: Ian Harris, Senior Associate and Sophie Westland, Senior Associate.