Greens bill shifts burden to companies to ensure Traditional Owners are consulted on underwater cultural heritage


Greens Senator Dorinda Cox is introducing a Private Senator’s Bill that requires standards of consultation with Traditional Owners to be developed, ensures they are included as ‘relevant people’ in the consultation process and ensures that underwater cultural heritage is identified and protected under the environment plan and the offshore project proposals.

The Offshore Petroleum and Greenhouse Gas Amendment (Protecting the Spirit of Sea
Country) Bill 2023 is designed to ensure that Traditional Owners and knowledge holders are included in the definition of ‘relevant people’ who must be consulted with.

The Bill’s main objectives:

  • Including Traditional Owners and knowledge holders in First Nations communities in the definition of ‘Relevant Person’
  • The requirement for standards of consultation to be created
  • 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.

The core purpose of this bill is to confirm in legislation the requirements upon oil and gas companies to consult with each affected person or organisation, in line with the September 2022 decision of Justice Bromberg of the Federal Court in Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 and which were largely confirmed by the decision of Justices Kenny, Mortimer and Lee of the Full Court of the Federal Court (Santos NA Barossa Pty Ltd v Tipakalippa 2022] FCAFC 193).

Comments attributable to Greens spokesperson for First Nations, Resources, Trade, Tourism and Sport, and Yamatji Noongar woman, Senator Dorinda Cox:

“It is unacceptable that fossil fuel companies can submit Environmental Plans for offshore projects without consulting Traditional Owners and it is time to change that in favour of genuine and meaningful consultation.

“The Barossa case centred on Santos’ proposed Barossa Gas Project, off the coast of the Tiwi Islands which was, and continues to be, opposed by the Traditional Owners of the Tiwi Islands.

“Santos’ so-called consultation with the Tiwi Land Council consisted of just a few emails and one unanswered phone call and that is simply unacceptable.

“The ‘Protecting the Spirit of Sea Country’ Bill is a fair and necessary amendment that takes the burden off Traditional Owners to challenge court decisions after they are made, and instead shifts the responsibility to cash heavy companies who must make sure they run thorough and proper consultations before they act, rather than tokenistic or disingenuous consultations.

“Court challenges are time consuming and extremely expensive and it’s simply not a level playing field for Traditional Owners taking on big companies in the legal system.

“The Traditional Owners in the Tiwi Islands have taken on Santos and won, twice and those cases have set an important precedent and put fossil fuel companies on notice that they must do far better with consultations.”

Quotes attributable to Greens spokesperson for healthy oceans, Senator Peter Whish-Wilson:

“Sea Country does not belong to the Albanese Government, to sell to the highest bidder. There must be a requirement for First Nations people to provide free, prior and informed consent to CCS projects, and offshore gas projects, as outlined in this Bill.

“For thousands of years First Nations people nurtured Australia’s marine habitats and wildlife in a way the Albanese Government should be grateful for today. If Labor truly understands this it will embrace this Bill and listen to Traditional Owners fighting for the survival of their communities, culture and country.

“If the Albanese Government is serious about listening to Traditional Owners who are fighting for the survival of their communities, culture and country, then it will prioritise this Bill ahead of its own disastrous Sea Dumping Bill which appears to be written by the fossil fuel industry, for the fossil fuel industry.”