2022-2023

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

PROTECTING THE SPIRIT OF SEA COUNTRY BILL 2023

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Cox)

 

PROTECTING THE SPIRIT OF SEA COUNTRY BILL 2023

 

OUTLINE

 

The core purpose of this bill is to legislate the principles of Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 and the appeal heard by the Full Court of the Federal Court ( Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193).

 

These are:

1. Including Traditional Owners and knowledge holders in First Nations communities in the definition of ‘Relevant Person’;
2. The requirement for standards of consultation to be created; and
3. Ensuring that underwater and intangible cultural heritage is identified in offshore project proposals and environment plans, alongside an evaluation of the impacts and risks that this project might pose and any potential alternative options.

 

These are three flaws of the current legislative framework that this case exposed and this bill seeks to remedy.

 

First Nations people have cared for this country, land and sea, for tens of thousands of years. It is unconscionable that fossil fuel companies can submit offshore project proposals and environment plans for offshore projects without consulting Traditional Owners.

 

In this case, the proposed Barossa project and pipeline go straight through sea country that is significant to the Traditional Owners and they were not consulted about this. There are 8 clan groups in the Tiwi Islands. Santos sent 2 emails and 1 unanswered phone call to 1 of the 8 groups and deemed that ‘consultation’. Santos argued in court that they were not legally required to consult with the Traditional Owners as they do not fit the definition of ‘relevant person’.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           This Bill is to commence the day after it receives Royal Assent.

Clause 3: Schedules

3.           This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments

Part 1 - Minimum requirements for consultation with traditional owners and knowledge holders

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 1 - Subsection 782(2)

4.                   This item repeals subsection 782(2) and replaces it with new subsections 782(2) to (6) to provide for the requirement for what constitutes consultation with relevant persons in preparing an environment plan to be prescribed in regulation. This must include free, prior and informed consent from traditional owners and the Minister must consult with traditional owners and knowledge holders from First Nations communities about these regulations.

Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011

Item 2 - Regulation 11B.01 (After table 20)

5.                   This item is a consequential amendment that clarifies that ‘environment plan’ in subsection 782(5), as inserted by item 1, is the document submitted to NOPSEMA under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 .

Part 2 - Meaning of relevant person

Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009

Item 3 - After subregulation 11A(1)

6.         This item inserts a subregulation to provide that, to avoid any doubt, traditional owners and knowledge holders from First Nations communities are included in the meaning of ‘relevant person’ in subregulation 11A(1).

Part 3 - Protection of Cultural Heritage

Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009

Item 4 - Regulation 4 (after the definition of in force )

7.         This item inserts a definition of ‘intangible cultural heritage’ into the regulations which is based on the definition contained within the UNESCO International Convention for the Safeguarding of the Intangible Cultural Heritage .

Item 5 - Regulation 4 (after the definition of titleholder )

8.         This item inserts a definition of ‘underwater cultural heritage’, the full definition is contained in item 6.

Item 6 - After regulation 4

9.         This item inserts regulation 4A which contains the definition of ‘underwater cultural heritage’ referred to in item 5. This definition is based on the definition of ‘underwater cultural heritage’ contained in the Underwater Cultural Heritage Act 2018 but has been amended slightly to include specific references to First Nations underwater cultural heritage.

Item 7 - After paragraph 5A(5)(c)

10.       This item inserts the requirement for any underwater cultural heritage to be described in an environment plan.

Item 8 - Subregulation 5A(5) (note)

11.       This item adds a reference to ‘an area containing underwater cultural heritage’ in the note to subregulation 5A(5). This note signposts that a proposal will not be suitable for publication or capable of being accepted if an activity or part of an activity will be undertaken in any part of a declared World Heritage property or an area containing underwater cultural heritage.

Item 9 - At the end of subregulation 5A

12.       This item adds two additional subregulations that require the offshore project proposals to include details of cultural heritage and intangible cultural heritage that may be impacted by the project, an evaluation of the impacts and risks to the heritage and alternative options to ensure preservation and avoid destruction of the cultural heritage.

Item 10 - After paragraph 5C(2)(c)

13.       This item inserts paragraph 5C(2)(ca) which provides for an additional criteria that must be met before a proposal is submitted for publication which is that the proposal ‘does not involve an activity or part of an activity being undertaken in an area containing underwater cultural heritage’.

Item 11 - At the end of subregulation 5D(6)

14.       This item adds a new paragraph 5D(6)(f) which requires NOPSEMA to refuse to accept a proposal unless NOPSEMA are reasonably satisfied that the project does not involve an activity or part of an activity being undertaken in an area containing underwater cultural heritage.

Item 12 - After paragraph 10A(f)

15.       This item inserts a new paragraph 10A(fa) which sets out that NOPSEMA cannot accept an environment plan unless it demonstrates that the activity or any part of the activity is not being undertaken in an area that contains underwater cultural heritage.

Item 13 - Subregulation 13(1) (note)

16.       This item is a consequential amendment similar to the amendment contained in item 8, which adds a reference to ‘an area containing underwater cultural heritage’ in the note to subregulation 13(1).

Item 14 - After paragraph 13(2)(a)

17.       This item inserts paragraph 13(2)(aa) which requires that the environment plan must describe any underwater cultural heritage that may be affected by the proposed activity.

Item 15 - After subregulation 13(6)

18.       Similar to item 9, this item inserts two additional subregulations that require the environment plan to include details of cultural heritage and intangible cultural heritage that may be impacted by the project, an evaluation of the impacts and risks to the heritage and alternative options to ensure preservation and avoid destruction of the cultural heritage.

Item 16 - Application of amendments

19.       This item provides that the amendments made by Part 3 to apply to offshore project proposals and environment plans submitted or revised on or after commencement.

Part 4 - Transitional arrangements

Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009

Item 17 - In the appropriate position in Part 5

20.       This item inserts a transitional arrangement in Part 5 of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 to provide for the amendments made by Parts 2 and 3 to apply to offshore project proposals and environment plans submitted or revised on or after commencement.

Part 5 - Affirmative resolution

Item 18 - Affirmative resolution

21.       This item provides that any changes to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 which would amend, repeal or alter the effect of operation of the amendments made by Parts 2, 3 or 4 of this Bill would not come into effect until approved by a resolution of both Houses of Parliament.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Protecting the Spirit of Sea Country Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This bill seeks to legislate the principles of Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 and the appeal heard by the Full Court of the Federal Court ( Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193).

 

Most notably the fact that Traditional Owners are not considered in the definition of ‘relevant person’ and the requirement for minimum standards of consultation to be created.

 

As the above explanatory memorandum states, ‘First Nations people have cared for this country, land and sea, for tens of thousands of years. It is unconscionable that fossil fuel companies can submit Environmental Plans for offshore projects without consulting Traditional Owners.’

 

Human rights implications

This bill centres around the principle of free, prior and informed consent that is contained in article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) . This is a human right that to date, this and successive Governments have not upheld or even sought to legislate in any form.

 

Article 11 of UNDRIP contains the right for First Peoples to practice their cultural traditions and customs. Article 12 of UNDRIP contains the right for First Peoples to protect their cultural sites. If Traditional Owners are not consulted with or there is no requirement to provide their free, prior and informed consent, the cultural sites, traditions and customs of can be impacted without the proponent or regulator knowing that there was a culturally significant site or cultural traditions that may be placed at risk. This bill seeks to provide First Peoples with mechanisms in which they can protect their cultural sites, practices and traditions.

 

This bill positively engages this right and advances the rights of Traditional Owners to be consulted with, and provide their free, prior and informed consent with regards to activities that are proposed to occur on their country. This ultimately respects the Sovereignty of the First Peoples of this country and assists Traditional Owners in maintaining their right to protect their cultural heritage, which can include sites, practices and traditions.

 

Conclusion

The Bill is compatible with human rights because it upholds and seeks to legislate a number of the rights of First Nations people as contained in the United Nations Declaration on the Rights of Indigenous Peoples .

 

Senator Cox