Learning the lessons of the Barossa Federal Court decision
The Federal Court decision dismissing an application to block construction of a 262km pipeline for Santos’s Barossa project had helped to clarify some issues, but was not a silver bullet, the regulator NOPSEMA told the Energy Club’s March dinner.
In a panel discussing the decision and implications for offshore energy projects, National Offshore Petroleum Safety and Environmental Management Authority, Chief Executive Officer, Sue McCarrey said the agency had been able to update some of its guidelines because of the case.
The Traditional Owner applicants in the case had said there was a risk that construction of the pipeline and its existence on the seabed would significantly impact their cultural heritage.
They had already won an urgent injunction to stop the project on that basis that it would impact tangible and intangible cultural heritage and that the risk to the cultural heritage was not provided for in the original approved EP.
Justice Natalie Charlesworth ultimately dismissed the application and lifted the earlier injunction which cleared the way for the construction of the pipeline to proceed.
“Any case like this does remind us of the importance of consulting with First Nations people,”
Ms McCarrey said. “It reveals that First Nations people want to be consulted, and consulted in the right way, in relation to the projects that may impact on their particular culture in their environment.”
Roanna Edwards, Director WA, PwC Indigenous Consulting, said while not speaking for the Traditional Owners involved in the case, it was difficult for their heritage
“to be picked over”.
“There are learnings from this that are really important and I'm really passionate about ensuring that we move the dial on First Nations engagement, and we get to a better place,” she said.
Ms Edwards said there had been “systemic and procedural ambiguity, combined with external influences and external agendas that have probably created a setback for understanding of and respect of cultural heritage”.
“There were so many issues that were conflated… and I can imagine the anger and the confusion and the frustration that comes with that, and the confusion comes from a Western system that likes to separate issues; that fundamentally opposes the Aboriginal values of interconnectedness.”
Ms Edwards said robust Aboriginal engagement frameworks were key to better outcomes and needed to be co-designed with Traditional Owners. It was not useful to have a single Aboriginal engagement framework when companies are working across different Traditional Owners, with different customs and practices. It was important to build the framework before seeking agreement or consultation.
“… spend time to determine the guiding principles. What are the expectations that both parties have with each other? If you can sit down and design what that engagement framework is going to look like with Traditional Owners… it will set you up for success in so many ways,” she said.
“Yes, others potentially will have different views. We're not a homogenous people. There will always be different views from different people. Those views can be aligned to environmental values. They can be cultural, heritage driven, there can be all sorts of factors.
“But if you take that time as a proponent to spend time on country with Traditional Owners to understand what their expectations of what good consultation looks like, that's going to set you up for success.
“Fundamental to that is that you are building a relationship that whole time; we are relational people, we are not transactional people.
“If you start that conversation as teach me to the extent that you're willing to and respectfully about this country and about this place; talk to me about the biodiversity that matters around here, about the cultural heritage to the extent that you can and teach me about those things. As we go on this journey of setting some principles and some guidelines then that will set you up far better than perhaps many other proponents have found themselves in across many sectors.”
Ms McCarrey, the NOPSEMA CEO for the past 12 months, said the agency had been intent on having one-on-one discussions with stakeholders, including proponents and Traditional Owner groups.
The Barossa case was substantive and had resulted in Traditional Owners suddenly facing a barrage of requests from proponents.
NOPSEMA had been explaining the agency’s role, the regulations and the reasons for the increase in consultation.
She said some proponents wanted NOPSEMA to provide an engagement check list to be completed as a way to have environment plans accepted.
“It just doesn't work like that and good, effective engagement with any stakeholders doesn't work that way,” Ms McCarrey said.
“It is about working with First Nations people and actually having a conversation about how they want to be engaged; how would like they like to be consulted,” she said.
“This is not about just sending stuff out to get feedback. It's actually not what the regulations require. And certainly, the court cases have confirmed that it is about establishing relationships.”
Thank you to our March Dinner Event Sponsor Gilbert + Tobin.
Santos Barossa pipeline: judicial guidance on cultural heritage.