Federal Court of Australia

Cooper v National Offshore Petroleum Safety and Environmental Management Authority [2023] FCA 1112

CONSENT ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the second respondent and third respondent (collectively, the Titleholders) be restrained from undertaking any activity as described in the Environment Plan (Scarborough 4D B1 Marine Seismic Survey Environment Plan, Revision 7, June 2023) (Seismic Survey EP) until 5.00 pm AWST on 28 September 2023.

2.    The costs of the applicant's interlocutory application for injunctive relief dated 7 September 2023 be reserved.

3.    The following issues be heard on an expedited basis (adopting the terms defined in the Amended Originating Application filed 8 August 2023 (Amended Originating Application)):

(a)    whether the first respondent had statutory power to make the Decision where the first respondent was not reasonably satisfied that the Seismic Survey EP demonstrated that the consultation required by reg 11A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) had been carried out, and so was not reasonably satisfied of the criteria in reg 10A(g)(i) and reg 10A(g)(ii) (Ground 1); and

(b)    whether, if Ground 1 is established, it would be open, as a matter of law, to refuse the relief sought on any discretionary basis identified by the second and third respondents;

(c)    whether the applicant has standing to seek relief in relation to Ground 2 of the Amended Originating Application.

(Preliminary Issues)

4.    By 4.00 pm AWST on 19 September 2023, the applicant file and serve any submissions on the Preliminary Issues and a list of authorities.

5.    By 4.00 pm AWST on 21 September 2023, the second and third respondents file and serve any submissions on the Preliminary Issues and a list of authorities.

6.    By 4.00 pm AWST on 22 September 2023, the first respondent file and serve any submissions on the Preliminary Issues and a list of authorities.

7.    The parties confer and, on or before 12.00 pm AWST on 25 September 2023, the first respondent file a joint bundle of authorities in accordance with the list of authorities and Citations Practice Note (GPN-AUTH).

8.    The matter be listed for hearing of the Preliminary Issues on 26 September 2023 at 12.00 pm AWST.

9.    Liberty to apply.

10.    Any submissions filed in accordance with these orders shall be no more than 20 pages.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Petroleum exploration and recovery in waters within the outer limits of Australia's continental shelf is closely regulated. Amongst other things, the relevant legislation confers functions in relation to environmental management upon a regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). Its functions include those conferred by the legislation in relation to 'the prevention, management, mitigation or remediation of the environmental impacts of regulated operations that relate to … exploration for petroleum or [its recovery, processing, storage, offloading or piped conveyance]'. Under the terms of relevant legislation, 'environment' encompasses, amongst other things, the social and cultural features of ecosystems and of locations, places and areas. It also includes the heritage value of places and their cultural features.

2    Woodside Energy Group Ltd is an Australian oil and gas company. Two of its subsidiaries (Woodside) wish to undertake a seismic survey in an offshore area adjacent to the coast of the Pilbara region in Western Australia. To do so, they must have obtained approval from NOPSEMA of an environment plan. On 31 July 2023, they obtained an approval for a plan subject to conditions.

3    Relevantly, the conditions required Woodside to consult with representatives of Aboriginal and Torres Strait Islander bodies prior to commencement of the seismic survey to confirm whether (a) they are aware of any people who may have traditional and cultural connections to the environment that may be affected by the activity; and (b) there is information those people wish to provide on cultural features or heritage values.

4    The conditions also specified the way in which consultation with any Aboriginal and Torres Strait Islander bodies was to occur and steps that may be required to be taken by Woodside depending upon what became known to Woodside through the consultation process. For example, the conditions included a requirement that if new cultural features or heritage values of places within the environment that may be affected by the activity are identified, Woodside must ensure that (a) 'the environmental impacts and risks of the activity continue to be managed to as low as reasonably practicable and an acceptable level'; and (b) that NOPSEMA is notified of those cultural features or heritage values of places and the potential environmental impacts and risks.

5    A question has been raised as to whether requiring such consultation to be undertaken as a condition of the approval (rather than as part of a consultation process undertaken before the approval) conformed with the requirements of the law. It will be necessary, in due course, to refer to the legislative requirements as to consultation and to NOPSEMA's reasons for taking the course that it did. It is sufficient at this point to identify, in broad terms, that an issue has been raised as to whether NOPSEMA exceeded its authority in approving the activity of the seismic survey on conditions as to further consultation.

6    A further question has been raised as whether, if valid, the conditions of the approval concerning consultation have been satisfied or whether Woodside is in breach of those conditions.

Application for interlocutory injunction

7    Ms Raelene Cooper is a Mardudhunera lore woman, elder and a traditional custodian of Murujuga. She has commenced proceedings in this Court seeking judicial review on the basis that NOPSEMA did not have statutory power to make the decision to approve the environment plan for the proposed seismic survey (Ground 1). In the alternative, Ms Cooper claims that Woodside has not complied with the approval and that she has standing to seek a permanent injunction restraining Woodside from undertaking the seismic survey (Ground 2).

8    In aid of her application, Ms Cooper sought an interlocutory injunction restraining Woodside from undertaking any activity as described in the environment plan until a hearing of her substantive claim which has been listed for urgent final hearing on 23 and 24 October 2023. I heard the application for an interlocutory injunction on 14 September 2023.

9    The application for an interlocutory injunction was supported by affidavit evidence given on information and belief by a solicitor who acts on behalf of both Ms Cooper and Ms Josie Alec. Ms Alec is a Kuruma Mardudhunera lore woman and a traditional custodian of Murujuga. The evidence is to the effect that Ms Cooper and Ms Alec have important cultural responsibilities and obligations relating to places that include Murujuga. It is said that Murujuga is also known as Burrup Peninsula. The proposed seismic survey is to take place in coastal waters near the land of the Burrup Peninsula. The evidence explains the cultural significance of the whales, turtles and dugongs in the sea at that place and of songlines, including the whale Dreaming.

10    At the conclusion of the hearing, I determined that an injunction until 5.00 pm on 28 September 2023 should be granted on the basis that there should be a more expedited hearing of certain legal issues raised by the applications. The question whether there should be any further extension of the injunction could then be determined having regard to the determination of those issues. These are my reasons for making those orders.

Relevant principles and the issues in the present case

11    The principles to be applied where a party seeks an interlocutory injunction are well established. They were set out by Jackson J in Frigger v Trenfield [2019] FCA 1746 at [6]. I gratefully adopt his Honour's summary. Ms Cooper must demonstrate that (a) there is a serious question to be tried as to her entitlement to relief; (b) she is likely to suffer injury for which damages will not be an adequate remedy; and (c) the balance of convenience favours the granting of an interlocutory injunction. Some prefer to see (b) as a matter to be considered as part of (c). That was the way in which matters were approached by the parties in the present case. Having regard to the competing contentions of the parties, three aspects assumed particular significance.

12    First, Woodside accepted that there is a serious question to be tried as to Ground 1. As to Ground 2, it contended that Ms Cooper has no standing to seek injunctive relief on the basis of her alternative claim to the effect that the conditions have not been met and also maintained, in any event, that on the evidence the relevant condition has been satisfied. It advanced brief oral submissions to the effect that Ms Cooper did not have standing because any issue as to whether there had been compliance with the conditions was a matter for NOPSEMA as regulator and Ms Cooper had no right or claim of a kind that could support her application for a permanent injunction. However, Woodside did not otherwise advance any submissions as to the merits of the alternative claim. It did so on the basis that it accepted that there was a serious question to be tried as to Ground 1. Woodside also advanced no submission to the effect that damages would be an adequate remedy for the harm that Ms Cooper would suffer if the injunction was refused. Accordingly, Woodside's submissions in opposition to the interlocutory application focussed upon the balance of convenience.

13    Second, as was stated in Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ): 'The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance'. An assessment of the strength of the case as part of considering the balance of convenience arises because the Court is considering the relative injustice of two possibilities, namely:

(1)    the injunction is refused and the relevant activity is undertaken in circumstances where ultimately at final hearing it is concluded that the applicant's claim should be upheld; and

(2)    the injunction is granted and the relevant activity is restrained in circumstances where ultimately at final hearing it is concluded that the respondent's claim should be upheld.

14    In effect, the Court looks forward to the likely future consequences of granting or refusing an interlocutory injunction and determines the alternative in which the greater prejudice or injustice would be likely to arise. Part of that assessment requires the Court to form a view as to the likelihood of the applicant's claim being upheld at a final hearing. As to that aspect, the submissions for Ms Cooper characterised her case as strong.

15    Third, Woodside's position as to the nature and extent of the protection of the matters of cultural and spiritual concern relied upon by Ms Cooper to support her application placed emphasis upon the nature and purpose of the requirement for consultation as expressed in the legislation and the extent to which there had been consultation as deposed to in affidavits filed for Woodside. It contended that the consultation that the legislation requires a party like Woodside to undertake is for the purpose of reducing 'the environmental risks and impacts [of the relevant activity - in this case the seismic survey] to a level that is as low as reasonably practicable (ALARP) and acceptable'. It submitted that the measures that are required to be undertaken by the approved environment plan for the proposed seismic survey already meet those requirements and it is not suggested that there are any other control measures that may be adopted. By its written submissions, Woodside emphasised its contention that Ms Cooper cannot by the interlocutory application, nor by the proceedings, obtain greater protection than that afforded by the regulatory scheme. In effect, it contended that by the proposed interlocutory injunction Ms Cooper was seeking to stop the seismic survey when the legislation was said to be concerned with ensuring there were appropriate arrangements in place as to the manner in which the activity was to be undertaken.

16    Orally, the above submission was not pressed as absolutely. Rather, submissions were advanced to the effect that there would be no practical effect in the circumstances of the present case if NOPSEMA was required to reconsider whether to accept the application. In that regard, Woodside pointed to aspects of the environment plan as approved that require it to continue to consult, to communicate new cultural values or information it learns of to NOPSEMA and to report any new controls it has introduced. It pointed to evidence which it said showed that since the acceptance of the environment plan by NOPSEMA those steps had been taken and contended that NOPSEMA had been satisfied as to what had been done. It also pointed to the fact, not in dispute, that there was ongoing consultation in any event. On that basis, Woodside contended that there was no actual detriment to Ms Cooper because, at its highest, she was claiming to have a right to be consulted and, on the evidence, that had occurred as required by the conditions, and was ongoing by reason of the terms of the environment plan itself. Ms Cooper disputed whether the consultation that had been undertaken met the requirements of the conditions.

17    Woodside foreshadowed a submission to be advanced at the final hearing to the effect that, even if Ground 1 succeeded, the Court had a discretion to refuse relief and it should do so in circumstances where there had been consultation with Ms Cooper. It intimated that there had been delays by Ms Cooper who, it was contended, had unnecessarily extended the consultation process. Woodside also submitted, in effect, that the likely outcome of any reconsideration by NOPSEMA would be that the environment plan would be accepted. It maintained these were significant matters that counted against the grant of interlocutory relief. Alternatively, Woodside submitted that any injunction should be on terms that required Ms Cooper to participate in consultation with due expedition.

18    As to the balance of convenience, speaking broadly, Ms Cooper relied upon evidence as to the effect that the proposed seismic survey will have on Aboriginal cultural heritage, particularly spiritually important songlines used for migration, breeding and feeding of culturally significant animal and bird life, including whales, turtles and dugongs. In response, Woodside relied upon evidence to the effect that it will suffer significant costs and be exposed to significant operational delays and risks. The costs, delays and risks were said to arise from (a) the need to carry out the seismic survey in order to advance the development of the Scarborough gas field; and (b) the need to obtain a new approval if the seismic survey was not completed by 31 December 2023. It also said that there would be consequences for the contractor that it has engaged to undertake the seismic survey because the crew and vessels have been mobilised and are ready to undertake the survey.

19    The parties also raised issues as to whether there has been relevant delay and whether Ms Cooper should be required to provide an undertaking as to damages.

20    In the above circumstances, the issues for determination on the application for an interlocutory injunction were as follows:

(1)    What was the nature of the decision made by NOPSEMA?

(2)    What is the nature of the regulatory scheme, particularly the protection afforded by the requirement for consultation?

(3)    Would the relief sought by Ms Cooper afford greater protection than the regulatory scheme?

(4)    Does the balance of convenience favour the grant of injunctive relief?

(5)    Has there been delay that is relevant to whether the Court should grant an interlocutory injunction?

(6)    Having regard to the answers to (1) to (5), should the Court exercise its discretion to grant the interlocutory injunction sought by Ms Cooper?

(7)    Should any relief be conditioned upon a requirement that Ms Cooper provide an undertaking as to damages?

(8)    Should any relief be conditioned upon a requirement that Ms Cooper undertake to participate in consultation with Woodside with due expedition?

Issue (1): What was the nature of the decision made by NOPSEMA?

21    NOPSEMA did not accept the environment plan as originally submitted by Woodside. As explained below, where an environment plan is not accepted, the regulatory scheme contemplates NOPSEMA allowing Woodside an opportunity to submit a revised version of the plan. It did so. Relevantly for present purposes, it submitted revision 6 of its environment plan dated June 2023.

22    On 31 July 2023, NOPSEMA informed Woodside that it accepted revision 6 of its environment plan subject to conditions. In a letter of that date, NOPSEMA provided its response concerning revision 6 of the environment plan. It said that its assessment had included two detailed topics. It referred to the reasons for decision under two topic headings, namely 'Consultation with First Nations groups and people' and 'Control measures for blue whales'. It is the first of those two topics that is relevant for present purposes.

23    As to that first topic, the letter said that the reasons for the decision were as follows (stated in three numbered paragraphs):

Consultation with relevant persons, including Buurabalayji Thalanyji Aboriginal Corporation (BTAC), Yinggarda Aboriginal Corporation and Save Our Songlines is ongoing, and therefore consultation under reg 11A has not been completed.

The EP [environment plan] does not appear to have adopted appropriate measures from the consultation with BTAC for the purposes of identifying, managing and protecting the Thalanyji people's environmental values of sea country.

It is not clear from the EP that the consultation process provided for broad capture of First Nations relevant persons such that all First Nations relevant persons whose functions, interests or activities may be affected by the activity were afforded a reasonable opportunity to participate in the consultation in a manner consistent with the NOPSEMA Guideline on Consultation in the Course of Preparing an Environment Plan (GL2086).

24    In detailed reasons published on its website, NOPSEMA's environment manager said:

I remain concerned that [Woodside] had not carried out all consultation required by [the Regulations]. I considered that there was uncertainty in the Environment Plan as to whether all First Nations persons who may have cultural interests that may be affected by the activities have been identified, whether a reasonable period has been afforded to consult with them on the consequences of the [proposed seismic survey], and whether appropriate measures have been adopted as a result of the consultation.

25    The reasons went on to refer to the following matters:

(1)    an uncertainty arising from the heavy reliance by Woodside upon consultation with native title bodies (that may not represent all traditional custodians) as to whether all traditional custodians were represented by the bodies that had been consulted when NOPSEMA's guideline describes that a connection of traditional owners with sea country may constitute an interest for the purpose of establishing who should be consulted;

(2)    a lack of records to show that the native title bodies were asked to identify other traditional custodian individuals or groups known to hold cultural interests that intersect with the area where the proposed seismic survey was to be undertaken;

(3)    a finding that advertising for the consultation process had not been expressed in clear, simple and direct terms;

(4)    a finding that the consultation process was limited by particular aspects that were not supported by the terms of the relevant regulation; and

(5)    consultation records showed that Save our Songlines had requested a second meeting and this had not taken place before the environment plan was resubmitted.

26    The reasons also referred to further consultation with Save our Songlines that had occurred after the environment plan was resubmitted and Woodside's position that the consultation has been completed. The information about the further consultation was said to indicate that 'there is uncertainty as to whether there is additional information held by First Nations people on the cultural features of the environment, including spiritual and cultural connections to the environment that may be affected by the activity'.

27    Reference was then made in the reasons to the conditions to be imposed which were to require additional consultation. The conditions were said to be justified in circumstances where there had been 'comprehensive' consultation with native title bodies which had been 'assessed and implemented where relevant'. The conditions were expressed in the following terms:

1)    Prior to commencement of the activity, the titleholders must consult with registered native title bodies corporate, representative Aboriginal / Torres Strait Islander bodies and other persons or organisations identified as a relevant person in relation to First Nations cultural heritage in Tables 5-3 and 5-4 of the EP to confirm whether:

a)    They are aware of any people, who in accordance with Indigenous tradition, may have spiritual and cultural connections to the environment that may be affected by the activity that have not yet been afforded the opportunity to provide information that may inform the management of the activity.

b)    There is any information they wish to provide on cultural features and/or heritage values.

2)    The purpose of the consultation outlined in Condition 1 is to be communicated, and relevant persons are provided with a copy of the NOPSEMA Consultation on offshore environment plans Brochure as part of consultation.

3)    The method of consultation is informed by the relevant persons being consulted.

4)    If at any time, as a result of compliance with Condition 1, relevant persons are identified, they must be consulted in accordance with the NOPSEMA Guideline on Consultation in the course of preparing an environment plan (GL2086).

5)    At any time, prior to or during the activity, if new cultural features and/or heritage values of places within the environment that may be affected by the activity are identified that are not described in the EP, the titleholders must:

a)    Ensure the environmental impacts and risks of the activity continue to be managed to as low as reasonably practicable and an acceptable level.

b)    Notify NOPSEMA in writing within 7 days of these cultural features and/or heritage values of places and the potential environmental impacts and risks.

6)    The titleholders must submit a report to NOPSEMA no later than 14 days after the notification in Condition 5 which confirms the following:

a)    The control measures that have been adopted to ensure that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and an acceptable level.

b)    The consultation undertaken with any relevant persons to develop these control measures, including:

i)    the control measures that those persons considered reasonably necessary to manage impacts on the cultural features and/or heritage values in accordance with Indigenous tradition; and

ii)    the views of the relevant persons in relation to the control measures.

7)    Adopt appropriate measures in response to the claim from the Buurabalayji Thalanyji Aboriginal Corporation as to the need for collaboration with BTAC on the identification, management and protection of the Thalanyji people's cultural features of the environment that may be affected by the activity.

28    Woodside provided evidence which it contended showed that in the period after 31 July 2023 there was engagement between Woodside and NOPSEMA about Woodside's compliance with the above conditions. It said that, after a period of engagement by Woodside with NOPSEMA concerning compliance with the conditions, on 5 September 2023 Woodside formed the view that it complied with the conditions of acceptance of the environment plan and could commence the seismic survey. It said that, 'therefore' on that date it provided Ms Cooper with 48 hours' notice of Woodside's intention to commence the seismic survey.

29    It can be seen that the acceptance of the environment plan was on the express basis that the required consultation had not been carried out and the conditions were designed to require further consultation and for Woodside to be required to change the environment plan if the consultation identified new cultural features or heritage values of places. Woodside was to notify those matters to NOPSEMA. The conditions did not concern the operations for the proposed seismic activity though they may have resulted in steps being taken that altered the terms of the environment plan as to the manner in which those operations would be undertaken.

Issue (2): What is the nature of the regulatory scheme, particularly the protection afforded by the requirement for consultation?

30    NOPSEMA is established by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The object of the Act is to provide an effective regulatory framework for (a) petroleum exploration and recovery; and (b) the injection and storage of greenhouse gas substances, in offshore areas: s 3. It has detailed provisions pursuant to which various permits, leases and licences (titles) may be granted that permit the holder to carry out petroleum exploration and recovery. It also establishes a regime for maintaining a register of those titles and deals with the circumstances in which there may be dealings in such titles and when they may be cancelled. It regulates the commencement of works or operations by titleholders. It does so on the basis that each titleholder must, at all times while the title is in force, maintain financial assurance to meet costs, expenses and liabilities arising in connection with, or as a result of, such activities.

31    As has been mentioned, NOPSEMA is given regulatory functions under the legislation which includes functions in relation to environmental management (s 646(gg)). NOPSEMA and its inspectors also have the powers and functions given by Schedule 2A of the Act in relation to 'environmental management laws'. The Act also confers power to make regulations which encompasses the making of regulations that make provision for regulating, controlling or restricting the exploration for petroleum and the carrying on of operations, and the execution of works, for that purpose.

32    The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) have been made pursuant to the regulation making power. The express object of the Regulations is as follows:

… to ensure that any petroleum activity or greenhouse gas activity carried out in an offshore area is:

(a)    carried out in a manner consistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act; and

(b)    carried out in a manner by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

(c)    carried out in a manner by which the environmental impacts and risks of the activity will be of an acceptable level.

33    Of some significance for present purposes given the contentions advanced by Woodside are the references to petroleum activities being carried out in a manner by which environmental impacts and risks 'will be reduced to as low as reasonably practicable' (referred to by the acronym ALARP) and 'will be of an acceptable level'. Therefore, the stated objects of the Regulations are threefold - consistency with the principles of ecologically sustainable development, environmental impacts and risks reduced to ALARP and environmental impacts and risks to be of an acceptable level. Aspects of this terminology are carried through into a number of the provisions in the Regulations concerning what must be included in an environment plan.

34    The reference to the EPBC Act, is to the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The principles of ecologically sustainable development as set out in s 3A of the EPBC Act are as follows:

(a)    decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b)    if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)    the principle of inter-generational equity - that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d)    the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e)    improved valuation, pricing and incentive mechanisms should be promoted.

35    It appears that the express objects of the Regulations may contemplate the possibility of instances where consistency with the ecologically sustainable development principles or ensuring that environmental impacts and risks are within an acceptable level, or both, will mean that an activity will not be able to be carried out. In other words, it is not the case that the Regulations are focussed upon reducing impacts and risks to ALARP or to that which is acceptable whilst allowing the proposed activity to be undertaken. At the stage of the application for an interlocutory injunction, it was not necessary to decide whether that was so.

36    The Regulations require the submission of an environment plan before commencing operations or works in an offshore area in exercising rights or discharging obligations under the legislation (reg 9). NOPSEMA must then decide provisionally whether a plan includes material apparently addressing relevant provisions as to the contents of an environment plan within five days after the plan is submitted. It may request further information. In responding to the request, the party must resubmit an environment plan that incorporates the information.

37    In the course of preparing an environment plan, the party must consult, amongst others, 'a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan' (reg 11A(1)(d)). Sufficient information must be provided as part of the consultation and a reasonable period must be provided for the consultation (reg 11A(2) and (3)). No issue was raised on the hearing of the application for an interlocutory injunction as to whether Ms Cooper and Save Our Songlines were parties who ought to be consulted. The approach of NOPSEMA has been that they are persons who must be consulted.

38    There are criteria set out in the Regulations for acceptance of an environment plan (reg 10A). They include that the party demonstrates that it has carried out the required consultations and the measures that it has adopted or proposes to adopt because of the consultations are appropriate (reg 10A(g)). If NOPSEMA is not satisfied that an environment plan meets the criteria and requires the party to resubmit an environment plan and a modified plan is resubmitted, then if NOPSEMA 'is still not satisfied that the plan meets the criteria' then it must do one of three things, namely:

(i)    give the titleholder a further notice under subregulation (2); or

(ii)    refuse to accept the plan; or

(iii)    act under subregulation (6).

The above provisions are contained in reg 10(4)(b). There are similar provisions concerning NOPSEMA's power if the party does not resubmit by the required date (reg 10(5)).

39    Regulation 10(6) provides:

For subparagraph (4)(b)(iii) and paragraph (5)(b), the Regulator may do either or both of the following:

(a)    accept the plan in part for a particular stage of the activity;

(b)    accept the plan subject to limitations or conditions applying to operations for the activity.

40    NOPSEMA must give the titleholder notice in writing of a decision to (a) accept the plan; (b) refuse to accept the plan; or (c) accept the plan in part for a particular stage of the activity, or subject to limitations or conditions (reg 11(1)). The notice must set out the terms of the decision and the reasons for it and 'any limitations or conditions that are to apply to operations for the activity' (reg 11(2)). NOPSEMA has power to withdraw the acceptance of an environment plan if the titleholder has not complied with certain matters, including aspects of the Regulations (reg 23). Those matters do not include the consultation required by reg 11A.

41    The question which Woodside accepted gave rise to a serious question for trial was whether, having regard to its context, the express power to accept an environment plan subject to limitations or conditions should be read as being concerned with conditions as to how the plan is to be carried out not with conditions as to the completion of the process of conferral that the Regulations require a party to undertake before NOPSEMA decides whether to accept the plan. That is, whether the power conferred by reg 10(6) assumes that there has been prior compliance with reg 11A as to consultation. This is the Ground 1 claim. As to that claim, Ms Cooper contends that there is significance in the language of reg 10A(g) which refers to the titleholder having 'carried out the consultation'. The use of the past tense is said to be significant.

42    NOPSEMA did not make any submission as to whether the interlocutory injunction should be granted. However, short oral submissions were advanced to the effect that it was significant that the power to approve on conditions arose if NOPSEMA was not satisfied that the plan meets the criteria and the criteria included the requirement as to consultation. It contended that the case advanced for Ms Cooper was to the effect that NOPSEMA lacked any statutory authority to approve a plan if consultation had not been completed and that a case of that kind did not complain about the content or appropriateness of the conditions. NOPSEMA pointed out that Ms Cooper's case had to confront the statutory language which referred to NOPSEMA accepting a plan subject to conditions if it was still not satisfied that the plan did not meet the criteria.

43    In that regard, it must be noted that the power to impose conditions is expressed in terms of 'conditions applying to operations for the activity'.

44    Woodside did not develop any submissions as to why it was contended that Ms Cooper's case should be rejected. As I have indicated, it proceeded on the basis that there was a triable issue. It disputed the claim by Ms Cooper that her case under Ground 1 was a strong case but otherwise did not develop any submissions on that point.

Issue (3): Would the relief sought by Ms Cooper afford greater protection than the regulatory scheme?

45    It is first necessary to explain the nature of the harm that was advanced by Ms Cooper as supporting her application. It was expressed in terms of cultural and spiritual harm. Although there is reference in Ms Cooper's concise statement to potential impacts on marine species and natural environment, the submissions as to those aspects were said to be founded in the evidence of the cultural beliefs and understanding of Ms Cooper and Ms Alec as to the consequences that may arise from the proposed seismic survey.

46    Woodside's written submissions appeared to be to the effect that the regulatory scheme does not confer upon any party who must be consulted the ability to prevent an activity from occurring and that the relief sought by Ms Cooper would be to that effect. It sought to rely upon the extent of the measures provided for in its environment plan and the fact that those measures have been accepted by NOPSEMA as appropriate. However, as has been noted, in oral submissions Woodside's position was to the effect that it had not been shown that any practical purpose would be served by granting the injunctive relief sought by Ms Cooper.

47    It may be accepted that Ms Cooper did not identify any particular respects in which the cultural matters to which she refers might require a particular change to the environment plan. Instead, she maintained that the consultation which she contends is required before NOPSEMA can lawfully accept any environment plan should be undertaken. Indeed, Ms Cooper made clear that her object was to secure the consultation which she maintained was required by the Regulations and that she did not claim to have any right to stop the proposed seismic survey irrespective of the outcome of that consultation. Of course, the activity cannot proceed unless an environment plan is accepted by NOPSEMA and the authority to determine whether to accept the plan is entrusted to NOPSEMA. All that Ms Cooper can do is seek to advance her concerns as part of the required consultation. She accepted as much.

48    The scheme of the Regulations means that the required consultations have considerable significance. In effect, they entrust to the titleholder seeking to undertake an activity the responsibility to undertake a consultation that is comprehensive (to use the terminology of NOPSEMA in its reasons) and which allows a reasonable period for each relevant person. Further, it then requires the titleholder to demonstrate to NOPSEMA that those consultations have been carried out and that the measures that have been adopted or are proposed to be adopted as stated in the environment plan are both 'appropriate' and comply with the legislation.

49    Therefore, the effectiveness of the whole scheme depends upon the consultation as the means of bringing to the attention of NOPSEMA the issues to be addressed. Interested parties do not make submissions in response to an invitation from the regulator. Rather, the Regulations impose upon the titleholder an obligation to seek out those who may be impacted, to consult with them, to prepare the environment plan taking into account all matters raised and then presenting all those matters to NOPSEMA for acceptance.

50    In that regard, it may be noted that in Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193; (2022) 296 FCR 124, Mortimer J (as the Chief Justice then was) and Kenny J reasoned as follows concerning the nature of reg 11A (at [56]-[57]):

Viewed in this way, the consultation required by reg 11A has, in our view, more than one purpose. Plainly enough, by this consultation, it is intended that the titleholder provide 'sufficient information to allow' the affected authorities, organisations and individuals 'to make an informed assessment of the possible consequences' of the proposed activity on their 'functions, interests or activities': see reg 11A(2). It is also intended that the consultation be genuine, in that the affected authorities, organisations and individuals are required to be given a 'reasonable period' for the consultation, that is, a reasonable time to identify the effect of the proposed activity on their functions, interests or activities and to respond to Santos with their concerns.

The consultation under reg 11A is also designed to ensure that the titleholder adopts appropriate measures in response to the concerns conveyed to the titleholder by the affected authorities, organisations and individuals: see reg 10A(g)(ii). Equally importantly, the titleholder is obliged to inform NOPSEMA of the identity of the affected authorities, organisations and individuals, the nature of the titleholder's consultations with them, and the measures that the titleholder has adopted or proposes to adopt to meet the concerns notified to the titleholder in the consultations: reg 10A(g). Construed in this way, the Regulations are directed to fulfilling their objects, consistently with the EPBC Act.

51    The application for an interlocutory injunction did no more than seek relief to preserve the position on the basis of the allegedly strong merit in Ms Cooper's claim, particularly as to Ground 1 which was to the effect that the proposed seismic survey was unlawful and therefore could not be commenced. It did not assert a right to permanently stop the seismic survey as a foundation for that relief. Rather, it sought to stop the commencement of the activity until the claim that it was unlawful to proceed with the activity was determined. The relief sought, if granted, would require Woodside to seek acceptance of an environment plan on the basis that the required consultation had been completed and to demonstrate to NOPSEMA that appropriate measures had been adopted by Woodside, alternatively, orders requiring further consultation on the basis that it is required in order to comply with the conditions that have been imposed. Ms Cooper's position was that if there was no injunction restraining Woodside from proceeding with the seismic survey in the meantime then the subject matter of her claims would be overtaken by events. She sought only to preserve the position on the basis of claims that are sufficient to justify that course. Her standing as to Ground 1 was not in issue.

52    For those reasons, I did not accept that the interlocutory relief sought lacked a proper foundation in the nature of the substantive claim or somehow sought greater protection than the legislation affords to a person in the position of Ms Cooper. It was directed towards ensuring the preservation of the status quo in aid of relief which, if granted, would mean that Woodside was unable to proceed with the proposed seismic survey until NOPSEMA has accepted an environment plan based upon completed consultation.

Issue (4): Does the balance of convenience favour the grant of injunctive relief?

53    The matters advanced to support the application were: (a) the alleged strength of the claim; (b) the necessary legal consequence if Ms Cooper's claim was to be upheld, namely that undertaking the proposed seismic survey would be unlawful; (c) the loss of the benefit of the performance of the alleged statutory obligation or duty to consult and adopt appropriate measures as to the impacts upon and risks for cultural features of the places and areas where the proposed survey was to be undertaken according to the beliefs and understanding of Ms Cooper, Ms Alec, their families and their community; and (d) the public law nature of the relief being sought which meant that there was a public interest involved in ensuring that NOPSEMA conformed to the limits of its authority.

54    The matters advanced in opposition were: (a) the extent of the daily financial consequences for Woodside in delaying the commencement of the proposed seismic survey which vessels and crew were standing by to undertake; (b) the real risk that, for various reasons, a delay until the scheduled expedited hearing at the end of October would mean that the seismic survey could not be completed in a manner that would allow Woodside to proceed with other scheduled activities to be undertaken to commence its proposed development of the Scarborough gas field; (c) the fact that Woodside would not be protected by an undertaking as to damages; and (d) by reason of the conditions and the terms of the environment plan, Ms Cooper would still be consulted and any matters raised would be addressed in accordance with the plan.

55    It may be accepted that both the conditions as imposed and the terms of the environment plan contemplate further and ongoing consultation by Woodside with Ms Cooper and Save Our Songlines. There is an issue between the parties as to whether that has occurred.

56    Plainly, it is a matter for NOPSEMA to determine whether in the particular circumstances the requirement for consultation has been met. The fact that it has concluded that there has not been adequate consultation with Ms Cooper and others at the time that it decided to accept the plan is a very significant matter if, as Ms Cooper claims, it had no lawful authority to accept the environment plan unless and until it was satisfied that the criteria as to consultation had been met. It is also significant because it means that NOPSEMA did not have before it the details of what would arise from the consultation when considering whether other criteria would be met.

57    Amongst other things, those criteria required NOPSEMA, not Woodside, to determine whether the environmental impacts and risks of the seismic survey will be of an acceptable level, having regard to the effect upon other measures provided for by the environment plan or whether those measures were appropriate, having regard to cultural features of the location explained by Ms Cooper. It also required NOPSEMA, not Woodside, to evaluate whether the environment plan met other criteria in the regulations.

58    In saying those things, I recognise that Woodside itself has assumed an obligation under the environment plan to carry out and continue consultation. However, at the point of deciding whether to accept the plan, arguably the effect of the conditions was to entrust that assessment to Woodside on the basis of subsequent consultation (subject to ongoing oversight to be conducted by NOPSEMA). If that is so, there may be a material difference between requiring consultation before an acceptance and the approach of imposing a condition of acceptance that required future consultation.

59    It follows that if the claim by Ms Cooper as to Ground 1 is shown to be correct, Woodside (if allowed to proceed) will be demonstrated to have been acting unlawfully assuming, as it has indicated, that it commences the survey in the meantime. It will have done so on the basis that its obligation is to comply with the environment plan as presently expressed and in circumstances where, as I have explained, there is the possibility that the outcome of further consultation (since the decision to accept the environment plan on conditions) may affect NOPSEMA's view as to the manner in which the proposed seismic survey ought to be undertaken. It will be doing so in circumstances where Ms Cooper has not been properly consulted and in circumstances where NOPSEMA did not have available to it the outcome of that consultation in deciding whether to accept the environment plan without change.

60    In my present assessment there are reasonable prospects of Ms Cooper succeeding in her claim as to Ground 1. I make that assessment recognising that I have yet to hear full argument and that here are countervailing arguments which may ultimately carry the day. I remain open to be persuaded to the correctness of the position that the conditions were properly imposed. Nevertheless, in the present case in order to determine where the balance of convenience lies, it is necessary for me to make a preliminary assessment of the merits of the claim.

61    On the other hand, Woodside has demonstrated that there will be considerable consequences for its business if it is unable to proceed to undertake the seismic survey. In the short term, they are principally financial and involve considerable sums of money. In the longer term, and by that I mean if this matter remains undetermined until the scheduled urgent final hearing, those consequences are more serious if the injunction is granted. They will be more serious because there is the prospect that Woodside will not be able to undertake the works in the remaining time permitted under the environment plan and also, on the evidence, Woodside's contractor may not be willing to standby for an extended period pending any final determination.

62    Also, there may be consequences for the project programme pursuant to which Woodside has planned to undertake the development of the relevant gas field. Although Ms Cooper submits that the schedule is one which Woodside has, in effect, set for itself and are dependent upon future uncertainties, they are, nevertheless, part of the characteristics of undertaking a substantial development and delays in steps along the way in accordance with a programme of that kind can have substantial commercial consequences.

63    The failure to consult has real consequences for Ms Cooper, her family and other members of her community on the evidence that is before the Court. They extend to concerns about consequences for their personal health if they do not speak up about cultural matters. Those consequences are not amenable to financial measure, but they are important. Ms Cooper says that they are matters that she wishes to raise in a culturally appropriate way and has not yet been able to do so. As to whether there has been an opportunity afforded to raise them since the acceptance of the environment plan by NOPSEMA, that is a matter in issue between the parties.

64    Woodside submitted that if I was to look forward and consider the possibility, contrary to its case, that the acceptance of the environment plan on conditions was beyond power, I may conclude for the purposes of determining where the balance of convenience lies that in view of what has occurred since that acceptance, that it is likely that, on any reconsideration, that NOPSEMA would approve the environment plan. As I have mentioned, it also said that consultation of the kind required has occurred since the acceptance of the environment plan, or at least that will be the position by the time of any hearing. Therefore, so it submitted, it could not be said that there is any real consequence for Ms Cooper, Ms Alec, their families and their community if the proposed seismic survey was allowed to proceed. As has been mentioned, in effect, these submissions were to the effect that no practical purpose would be served by an injunction.

65    In my view, the submission invited this Court to travel down a pathway that would usurp the statutory authority entrusted to NOPSEMA. The regulations entrust to NOPSEMA the relevant statutory task. If that task is as Ms Cooper contends then it is entirely a matter for NOPSEMA to determine whether to accept the environment plan and, importantly, what should be included in the plan, having regard to the impacts and risks to the cultural characteristics of the locations where the seismic survey is to be undertaken and having received the information about cultural matters from the consultation.

66    For that reason, I did not accept that aspect of the submission advanced by Woodside as a basis for evaluation as to whether the balance of convenience lies against the grant of the interlocutory injunction. Rather, it seemed to me that the appropriate course was to take account of the strength of the claim that the decision to accept the plan exceeds the authority of NOPSEMA, namely that the claim was reasonably arguable. That was especially the case when the jurisdiction invoked by Ground 1 is a public law jurisdiction which ensures that those entrusted with statutory authority remain within the limits of that authority. It is not for this Court in exercising that jurisdiction to take over the evaluative task entrusted to NOPSEMA.

67    In all those circumstances, I determined that the prospect of the failure to consult prior to NOPSEMA accepting the environment plan, meaning that it would be unlawful for Woodside to undertake the seismic survey by reason of the failure to adequately consult, outweighed the consequences for Woodside of an injunction of short duration. I concluded that the relative impact on the parties must be assessed having regard to the fact that the interests of Ms Cooper about which she was not consulted are matters which she has advanced as being of deep cultural significance. On the other hand, the essentially commercial consequences to Woodside must be measured having regard to its standing as an enterprise with very substantial financial resources undertaking an activity which is closely regulated and therefore always subject to the need to adhere to the lawful requirements of that regulation.

68    As to Ms Cooper's alternative claim that Woodside has not complied with the conditions that required consultation, Woodside submitted that it is a matter for NOPSEMA as the regulator to consider whether there has been compliance with the conditions and that Ms Cooper has no standing to raise that complaint. I observed that a hearing confined to Ground 1 and the standing point as to Ground 2 will be confined to matters of law. It could be convened and determined more quickly than the issue whether there has been compliance with the condition concerning consultation. The Court was available to hear and determine those issues on 26 or 27 September 2023.

69    Further, it appeared likely that a hearing confined to those issues would determine the dispute one way or the other. There was the possibility that Ground 1 would be determined against Ms Cooper and that Ground 2 would be determined in her favour, in which case there would need to be a determination as to whether the conditions as to consultation have been met. In that event, an issue would arise as to whether the injunction should be extended until the dates in late October 2023 presently set down for final hearing. That was a matter that could be considered if and when it arises.

70    Woodside submitted that it would contend that the evidence as to whether there has been consultation since the acceptance of the environment plan would bear upon whether there should be relief as a matter of discretion, even if Ground 1 was upheld. There are two aspects to this submission. First, there is a legal aspect. It is concerned with whether a point of that kind, if established, would be a sufficient basis to refuse the relief sought if Ground 1 succeeded. The second aspect is factual. It concerns what has occurred in relation to consultation. It seemed to me that the first, but not the second aspect, should form part of the hearing that I proposed would take place on 26 or 27 September 2023.

Issue (5): Has there been delay that is relevant to whether the Court should grant an interlocutory injunction?

71    The issues in relation to delay really concerned who was responsible for the matter being brought on at short notice and who had been responsible for the fact that consultations were ongoing and had not been concluded at an earlier point in time. Those are matters that the Court will be required to consider as part the alternative claim that the required consultation has not been undertaken. I was not persuaded that it was appropriate in the context of the application for an interlocutory injunction to form any view about those matters, especially when I did not regard them of being of particular significance when it came to determining whether to grant relief.

Issue (6): Having regard to the answers to (1) to (5), should the Court exercise its discretion to grant the interlocutory injunction sought by Ms Cooper?

72    For the reasons given above, subject to the question of an undertaking as to damages, I was satisfied that the Court should exercise its discretion to grant the interlocutory injunction sought for a period of short duration (until 5.00 pm on 28 September 2023) so as to allow the Court to conduct a hearing confined in the manner indicated. Any question of continuation of the interlocutory injunction could then be considered having regard to the determination of those legal issues.

Issue (7): Should any relief be conditioned upon a requirement that Ms Cooper provide an undertaking as to damages?

73    In Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944 at [81]-[83], I dealt with the authorities concerned with when it may be appropriate for the Court to grant injunction in a public law context without an undertaking as to damages being provided by the applicant. Ms Cooper is not in a financial position to provide an undertaking. A requirement to that effect would have meant, in effect, that the application was refused.

74    The absence of an undertaking may have assumed much greater significance if the injunction was to be granted until late October 2023 when the consequences for Woodside become much greater. However, given the course of granting relief only for a short period to enable the legal issues to be determined, I was satisfied that the absence of an undertaking was not a reason that affected the balance of convenience in a way that would result in the interlocutory injunction being refused.

Issue (8): Should any relief be conditioned on a requirement that Ms Cooper undertake to participate in consultation with Woodside with due expedition?

75    Woodside submitted that any order should be made on the basis that it will only take effect if an undertaking is given by Ms Cooper to consult expeditiously, going forward. Ms Cooper contended that she had been so participating and accepts that she must do so. In those circumstances, I was not persuaded that the orders should be conditioned in that way.

76    In any event, the parties can apply if there is some development concerning participation in consultation. The significance of that issue was made plain in the submissions advanced for Woodside.

Conclusion and orders

77    Woodside proffered an undertaking to enable the parties to confer as to appropriate orders. The following day orders were made by consent for an injunction and for the legal issues to be determined at an urgent hearing on 26 September 2023.

Associate:

Dated:    19 September 2023