4.1
The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) governs offshore petroleum activities in 'Commonwealth waters', including exploration for, and recovery of, oil and gas resources.
4.2
The OPGGS Act also establishes the independent regulator for offshore petroleum activities in Commonwealth waters—the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).
4.3
NOPSEMA administers the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the OPGGS Regulations), which set out the requirements for environmental assessments and approvals for offshore petroleum activities.
4.4
The objective of the OPGGS Regulations is to ensure that any petroleum activity 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 Environment Protection and Biodiversity Conservation Act 1999 (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.
4.5
Since 2014, the environmental assessments and approvals process for offshore petroleum activities has been streamlined: NOPSEMA administers not only the OPGGS Regulations but is also responsible for ensuring that proposed activities do not have unacceptable impacts on matters of national environmental significance (MNES) that are protected under Part 3 of the EPBC Act.
4.6
On account of this streamlining, NOPSEMA—and petroleum titleholders who are responsible for environmental impact assessment (EIA) (see Chapter 5)—must have regard to all relevant EPBC Act requirements, including, for example, recovery plans, marine bioregional plans and Australian Marine Park Management Plans.
4.7
This chapter discusses submitters' and witnesses' concerns relating to the regulatory framework for offshore seismic activities, with a focus on areas released for offshore petroleum titles and the content of environment plans (EPs).
Key regulatory requirements
4.8
The Department of Industry, Science, Energy and Resources (DISER) submitted that Australia's regulatory framework is effective and robust, and supports the exploration and development of offshore petroleum resources while ensuring stringent environmental protections.
4.9
However, other submitters and witnesses disputed the level of protection afforded to the environment when petroleum titleholders explore offshore for oil and gas resources. Greenpeace Australia Pacific submitted, for example:
The growing body of research on the environmental effects of seismic surveying demonstrates that the current seismic testing regulation and approvals regime is inadequate.
Offshore petroleum titles
4.10
Submitters and witnesses expressed concern about the first of two key requirements for proponents of offshore petroleum activities in Commonwealth waters: a proponent must obtain an offshore petroleum title from the National Offshore Petroleum Titles Administrator (NOPTA) or Joint Authority. These titles enable a titleholder to apply for other regulatory approvals, such as an EP.
4.11
Offshore petroleum titles are awarded on a successive basis, beginning with a petroleum exploration permit (PEP) which is awarded through an annual Offshore Petroleum Exploration Acreage Release. 'Acreage' refers to vacant offshore areas in Commonwealth waters for which exploration and production companies can place a competitive work program bid (Figure 4.1).
4.12
As shown in Figure 4.1, the majority of acreage release for petroleum exploration purposes is located offshore Western Australia and the Northern Territory. The committee notes that acreage release for these and other offshore areas—such as the Otway Basin, the Sydney Basin and the Great Australian Bight—concerned some submitters and witnesses.
4.13
Ms Katherine Winchester from the Northern Territory Seafood Council, for example, expressed concern about the significant overlap between fisheries and acreage release offshore Northern Territory:
Our whole livelihoods depend on a healthy marine environment, and, in the Northern Territory fishing industry, about 50 per cent of our fishing grounds are covered by prospective oil and gas fishing grounds.
4.14
Ms Marilyn Shea from the Western Australian Fishing Industry Council similarly said:
… we have at least 90 per cent of [Australia's] offshore oil, gas and seismic activity between Exmouth Gulf and through to the eastern side of the Northern Territory, and that doesn't include the 2020 proposals for the acreage release that NOPTA advertised some months ago.
4.15
Offshore New South Wales, community representatives raised concerns about the granting of a petroleum exploration permit (PEP) to Asset Energy Pty Ltd (Asset Energy) that enabled the company to apply for environmental approval for a 2D marine seismic survey in the Sydney Basin (Figure 4.2).
4.16
In December 2019, Asset Energy applied for a suspension, extension and variation of its petroleum title (PEP 11), which subsequently expired on 12 February 2021, to enable drilling of its drill target. That application is currently with the Joint Authority awaiting a decision.
4.17
Community representatives did not support Asset Energy's continued interest in the Sydney Basin and called for PEP 11 to not be renewed. Ms Eleanor Lawless from the Protect Our Coast Alliance expressed dissatisfaction with the community's input into this process:
At the moment, with the PEP 11 being before the joint authority for a decision, we've found that process very frustrating, because the community's voice is just not heard … Whenever I've called NOPTA they've said that they can't tell me if that lease is up for an exemption, an extension or a variation. They've said that that's classified information … The minister on the joint authority representing the state where the activity's happening actually [should] have veto rights over the federal minister. We think that would be a better process in representing communities' voice in that matter.
4.18
Mrs Julianne Arnold, Mayor of King Island Council, remarked that acreage release can significantly affect local economies and communities, even if a titleholder does not proceed with a seismic survey. Mrs Arnold identified poor consultation and the absence of environmental assessment at this regulatory stage as the main concerns for the Council:
The … concern we have with areas being released is the lack of consultation with the people who are already fishing those areas and the communities which abut those areas... Even though those areas may not become actual oil and gas exploration areas, the fact that they are released—because the oil industry would like them to be released—immediately impacts tourism, and the fact that environmental assessments are not made prior to them being released means that we then get to the process of seismic testing with no agreed decision on the impact of that seismic testing.
4.19
Mayor Arnold suggested that there should be stronger consultation requirements in the annual acreage release process:
It shouldn't be that I happen to come across something on the internet when I'm researching something else. If they are looking at opening another five areas that are impacting King Island that are over and above what's already there, another five areas that will impact the Otway coast, it shouldn't be up to us to find those. They know who uses those fisheries—there are licences and all sorts of information. They should have to, as part of the process, send a letter to every one of those people. They should have to send a communication to every council or community that abuts those fisheries and tell them what is planned, prior to looking to release areas.
Australian Marine Parks
4.20
Several submitters and witnesses noted that some acreage release is located close to a number of Australian Marine Parks (AMPs), which are in the 'Commonwealth marine area', an area protected as a MNES under the EPBC Act.
4.21
These submitters and witnesses objected to seismic surveying taking place close to AMPs, as well as State Marine Parks (such as the Port Stephens‑Great Lakes Marine Park (NSW)). For example, the Australian Marine Conservation Society and Save Our Marine Life submitted:
There is an increasing body of evidence … that seismic surveys harm marine life. Further, there are many knowledge gaps on the impacts of seismic noise. Allowing seismic surveys within or adjacent to marine parks is a failure to recognise the important values of these protected areas and undermines their purpose, which is to conserve biodiversity, and [diminishes] the many benefits that marine parks bring for tourism, fish stocks, climate change resilience and regional economies.
4.22
Mr Patrick Gardner from The Wilderness Society WA argued that the 2020 Offshore Petroleum Exploration Acreage Release had generated strong opposition from individuals and organisations, who did not support further expansion of the fossil fuel sector into pristine marine environments, including AMPs such as the Ningaloo Marine Park, Shark Bay Marine Park and the Eighty Mile Beach Marine Park:
During the most recent offshore acreage release the entire length of that in‑scope marine area was chequered with Australian marine parks, many of which are listed, with recognition by the International Union for Conservation and Nature. Many of these protected areas have been recognised to ensure biodiversity outcomes and the protection of existing species, many of which are threatened. The risks associated with potential petroleum exploration and methods undertaken to do so are in complete contradiction of the initial purpose of many of these protected areas.
4.23
Mr Peter Owen representing The Wilderness Society SA and the Great Australian Bight Alliance similarly referred to the Great Australian Bight Marine Park offshore South Australia:
The Great Australian Bight is recognised as one of the most significant whale nurseries on earth and is covered in state and Commonwealth marine protected areas. Marine seismic testing is not at all appropriate in the Great Australian Bight.
4.24
The International Fund for Animal Welfare (IFAW) expressed concern also about the 'considerable overlap with [Biologically Important Areas (BIAs)] over numerous years', particularly in respect of whales listed as threatened under the EPBC Act. In its view, there should be no further titles or acreage release enabling petroleum exploration in areas which overlap with BIAs for these species.
4.25
The Director of National Parks (Director) noted that seismic surveying as part of 'mining operations' is permitted only in a park's Multiple Use Zones (Category V) and Special Purpose Zones (Category VI), which are based on principles set out by the International Union for Conservation of Nature (IUCN), and subject to the Director's authorisation.
4.26
The Director confirmed that other countries permit seismic surveying in their marine parks in accordance with IUCN requirements: 'countries set their own rules about mining in protected areas or a specific marine park under national legislation in areas which should be assigned as IUCN Category V or VI'.
4.27
DISER advised that, in recognition of the multi-use nature of the marine environment, the department undertakes a six-week public consultation regarding potential areas for inclusion in an acreage release. This period is used to identify specific concerns that inform the acreage release, including the need for any specific conditions.
4.28
Ms Marie Illman from the department clarified that the public consultation is conducted through an online hub:
We promote it through newsletters and we advertise it. The minister from time to time refers to it in media statements. What we provide to support stakeholders in engaging with that process includes maps, descriptions of the areas, coordinates, block listings and the description, like the basin and the offshore area that it's in. Our email list also has a range of stakeholders who are interested in any sort of activities in the offshore, so they are informed when consultation starts and receive regular prompts to engage through the consultation hub while it's live. This year, we kept that consultation page live for longer to accommodate COVID and working-from-home arrangements, but generally we're out for six to eight weeks of public consultation.
4.29
NOPSEMA observed that it has no role in government policy decisions about whether fossil fuels should be extracted, the selection or release of areas for petroleum exploration and development, or the granting of petroleum titles:
Once these decisions have been made, NOPSEMA plays an important role as an independent regulatory authority in assessing and making decisions about individual activity proposals to ensure that impacts and risks are reduced to [ALARP] and that environmental impacts and risks are acceptable.
4.30
NOPSEMA noted the high level of seismic activities on the north-west shelf of Western Australia where there has been significant acreage release, but which the regulator submitted has not affected the commercial fishing industry or regional whale populations:
… a healthy, sustainable fishing industry in the North West has been maintained, as well as the recovery of the western humpback whale population to pre-whaling exploitation levels. Since 2013, there has been an increase in the observation of Killer Whale predation events on humpback whale calves … and more recently blue whales, indicating the increasing health of Australian whale populations … Recent research based on acoustic data collected between 2004 and 2017 indicates that both the Antarctic and pygmy blue whale populations within Australian waters continue to increase … indicating the health of the marine ecosystem.
4.31
Nonetheless, the regulator noted its support for better informing acreage release and suggested consideration of a strategic marine spatial planning process that considers potential conflicts with other marine users:
[The current process] does consider environmental sensitivities but only to the degree that titles are not overlaid with areas where oil and gas activities are not permitted. A marine spatial planning process that considers all marine users and environmental sensitivities could assist with early identification of environmental management challenges and the setting of conditions or other requirements on titles to ensure they are effectively managed and conflict is minimised.
Committee view
4.32
The committee heard that acreage is being released in close proximity to environmentally protected areas and without sufficient consultation. The committee notes also that there are concerns about the unknown impacts from spatially proximate cumulative surveys (see Chapter 2).
4.33
The committee acknowledges that DISER attempts to identify specific concerns about proposed acreage release but notes advice from NOPSEMA that the investigation of environmental considerations is limited.
4.34
The committee considers that the pre-release consultation period should be improved by a more comprehensive planning process that considers all marine users and all environmental sensitivities (not just proximity to protected areas).
4.35
In the committee's view, this would enhance the management of environmental risks and impacts by allowing for more fully informed decision‑making and more equitable consideration of the interest of all marine users.
4.36
The committee recommends that, for areas proposed for inclusion in an annual acreage release, the Department of Industry, Science, Energy and Resources:
improve the current public consultation process to include all relevant stakeholders; and
implement mechanisms to enable greater consideration of environmental risks and impacts.
4.37
The committee heard that there are widespread community concerns about the release of acreage close to or overlapping with AMPs with zoning that allows for 'mining operations'. Although the approach to seismic surveying in marine parks might be consistent with international approaches, the committee observes that Australia is home to a high proportion of endemic marine fauna and flora. The committee is therefore of the view that Australia has a special obligation to properly manage offshore petroleum activities that might harm the country's natural and unique environment in areas in and around AMPs.
4.38
The committee recommends that the Australian Government introduce legislation:
to create exclusion zones for seismic activities in or around Australian Marine Parks in 'Commonwealth marine areas', as defined in the Environment Protection and Biodiversity Conservation Act 1999; and
to prohibit acreage release and acceptance of environment plans that propose seismic activities in Biologically Important Areas,
to comply with environmental protection legislation and international obligations.
Environment plans
4.39
The second key regulatory requirement for offshore petroleum activities (such as seismic surveying) is that a petroleum titleholder must have an EP in force for the proposed activity.
4.40
Since becoming the sole regulator in 2014, NOPSEMA has assessed 133 EPs proposing seismic activities, however:
There is not a one to one relationship between the number of environment plans and the number of seismic surveys — in some cases no survey will actually be conducted even with an accepted EP and in other cases one EP may cover multiple seismic surveys.
4.41
Mr Cameron Grebe from NOPSEMA also pointed out that over 90 per cent of EPs are modified before being accepted:
… over 94 per cent of all applications are refused or aren't accepted on the first assessment process … More than 80 per cent required two iterations by a proponent. Our experience in all of those was that substantial changes were required to be made through our independent assessment of the environmental impact assessment and the proposed management arrangements.
4.42
NOPSEMA later clarified that, since 2012, only four EPs proposing offshore seismic activities have been rejected as they 'did not meet the acceptance criteria outlined in the Regulations'.
Content requirements
4.43
The OPGGS Regulations prescribe the content that a petroleum titleholder must address in an EP, covering: environmental assessment; implementation strategy; details of the titleholder and liaison person; and other information.
4.44
The first of these criteria—environmental assessment—requires a description of the existing environment that might be affected by a proposed activity, and details of the relevant values and sensitivities of that environment. These values and sensitivities may include any of the following:
(a) the world heritage values of a declared World Heritage property within the meaning of the EPBC Act;
(b) the national heritage values of a National Heritage place within the meaning of that Act;
(c) the ecological character of a declared Ramsar wetland within the meaning of that Act;
(d) the presence of a listed threatened species or listed threatened ecological community within the meaning of that Act;
(e) the presence of a listed migratory species within the meaning of that Act;
(f) any values and sensitivities that exist in, or in relation to, part or all of:
(i) a Commonwealth marine area within the meaning of that Act; or
(ii) Commonwealth land within the meaning of that Act.
Control measures for mitigation of potential impacts
4.45
As noted above, many submitters and witnesses raised concerns about how much protection the regulatory regime provides to the environment. In particular, they noted that the environmental assessment component of an EP must include 'details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level'.
4.46
NOPSEMA identified three types of control measures that are commonly applied in Australia and internationally:
Using temporal and spatial limitations in the survey design to avoid overlap with important areas at biologically sensitive time periods;
Applying engineering controls by changing the survey configuration or array size to reduce the levels of sound being produced;
Applying administrative controls such as adaptive management/mitigation procedures e.g. powering down to a lower level, shutting down the seismic source completely when marine fauna are observed within close proximity of the seismic vessel where impacts could occur, or moving to a different part of a survey area if high numbers of marine fauna are encountered.
4.47
However, some submitters and witnesses expressed reservations about the efficacy of these control measures. For example, IFAW submitted:
… the level of risk reduction, if any, is not known for the current mitigation measures in place and attempts to quantify the effectiveness of such mitigation strategies have been lacking … Quantified assessment is necessary to determine whether a certain mitigation measure will reduce overall risk to an acceptable level in each seismic survey scenario.
EPBC Act Policy Statement 2.1—Interaction between offshore seismic exploration and whales: Industry Guidelines
4.48
NOPSEMA submitted that, under the EPBC Act and its Environment Protection and Biodiversity Conservation Regulations 2000, petroleum titleholders are also required to describe the legislative and other requirements that apply to a proposed activity and then demonstrate how they will be met:
For seismic surveys this includes (among other considerations) the key requirement in the Australian jurisdiction for managing impacts of underwater acoustic emissions which is the EPBC Act Policy Statement 2.1—Interaction between offshore seismic exploration and whales: Industry Guidelines [Policy Statement 2.1].
4.49
Policy Statement 2.1, which was released in 2008, relates specifically to cetaceans and aims to provide:
practical standards to minimise the risk of acoustic injury to whales in the vicinity of seismic survey operations;
a framework that minimises the risk of biological consequences from acoustic disturbance from seismic survey sources to whales in biologically important habitat areas or during critical behaviours [BIAs]; and
guidance to both proponents of seismic surveys and operators conducting seismic surveys about their legal responsibilities under the EPBC Act.
4.50
The Australian Petroleum Production and Exploration Association described Policy Statement 2.1 as a 'valuable reference for the specific interaction of seismic surveys with whales'.
4.51
However, Ms Jody Williams representing The Wilderness Society said that the statement is 'outdated and far from best practice'. Similarly, NOPSEMA advised that it considers more contemporary science and up-to-date thresholds for hearing and technology advancements in whale detection during the assessment process.
Marine Mammal Observers
4.52
Policy Statement 2.1 applies standard management procedures to all seismic vessels conducting surveys in Australian waters irrespective of location and time of year. These procedures require the recording and subsequent reporting of prescribed information to the Department of Agriculture, Water and the Environment (DAWE), including:
the name, qualifications and experience of any Marine Mammal Observers (MMO) (or research scientists) involved in the survey;
the location and time of any start-up delays, power downs or stop work procedures instigated as a result of whale sightings; and
the location, time and distance of any whale sighting, including species where possible.
4.53
The Norwood Resource noted that not all jurisdictions have collated and analysed MMO data to gain a better understanding of the behaviour of marine mammals close to seismic surveys.
4.54
New Zealand, which has similar reporting requirements in relation to MMO data, has however conducted an independent analysis of the data collected from 2013 to 2015 and found:
Overall, this project … represented a useful preliminary investigation of the monitoring of cetaceans and fur seals from seismic surveys, including the mitigation of the impacts of seismic on them.
4.55
The committee notes that New Zealand's (NZ) approach to managing seismic sound in the marine environment is set out in its 2012 voluntary Code of Conduct for Minimising Acoustic Disturbance to Marine Mammals from Seismic Survey Operations (Code). This Code aims to provide effective, practical mitigation measures for minimising acoustic disturbance of marine mammals during seismic surveys.
4.56
On implementation, the NZ Department of Conservation (DOC) committed to a review of the Code after three years and invited ongoing feedback from stakeholders from 2012 to 2015. In 2015, nine technical working groups— including the Sound Propagation and Cumulative Exposure Models Technical Working Group—were established to respond to this feedback, to inform the DOC's review. Each report containing the technical working groups' discussions and expertise are published online.
4.57
In relation to the publication of data, the committee also notes that Australia's National Marine Mammal Database, hosted by the Australian Marine Mammal Centre, does not publish all MMO data acquired in accordance with Policy Statement 2.1.
4.58
In response, NOPSEMA submitted that marine seismic surveys must be conducted in a manner that will not result in unacceptable impacts. The regulator reiterated its obligation to take into consideration all matters encompassed by the EPBC Act, including Policy Statement 2.1.
4.59
NOPSEMA supported reviewing the more than 10-year old Policy Statement 2.1:
While it provides an adequate level of protection for marine mammals as a minimum standard used in partnership with more stringent controls as required by NOPSEMA, it would benefit from an update using more contemporary science and incorporation of measures to reduce behavioural impacts.
4.60
The regulator noted that, while Policy Statement 2.1 is specific to whales and large odontocetes (toothed whales), and does not address all protected matters, the regulator frequently adapts the controls to apply to other marine animals, such as sharks and turtles.
4.61
The committee notes that a similar approach is used in New Zealand, where the Department of Conservation's Code of Conduct for Minimising Acoustic Disturbance to Marine Mammals from Seismic Survey Operations is expected to apply to all potentially impacted key species and key habitats.
4.62
The committee notes also that the New Zealand Code requires the use of qualified MMOs (not crew) and the use of Passive Acoustic Monitoring by trained operators during night-time hours (between sunset and sunrise).
4.63
In relation to EPs for AMPs, NOPSEMA expressly observed that, in Australia, 'mining (including seismic surveys) is not allowed in Sanctuary, National Park, Recreational Use, Habitat Protection and Special Purpose (Mining exclusion) zones or the Coral Sea Marine Park'.
4.64
Ms Kim Farrant, Assistant Secretary of the Marine Parks Branch of Parks Australia, advised that through regulatory consultation (see Chapter 5), the Director raises any concerns with activity proponents for inclusion in the environmental assessment and approvals process:
To the extent we consider that there might be risks to marine park values, we would raise those in the consultation that is undertaken with the Director … and the feedback would be then provided through to NOPSEMA in [its] assessment.
4.65
Parks Australia representative Mr Stephen Weber added:
NOPSEMA will then take on board any feedback that we have given. If the proponent hasn't addressed our concerns prior to the submission of the environment plan, NOPSEMA will not accept the environment plan.
4.66
NOPSEMA added that there must be 'a clear and well-founded case for why the activity will not be inconsistent with a management plan for an Australian Marine Park'. Further:
… when assessing the potential impacts of [seismic] operations on the values of the marine park, proponents are required to do so in the context of the noise emissions that may extend further than the boundaries of the activity itself.
Committee view
4.67
The committee acknowledges concerns that the current regulatory framework for offshore seismic activities is providing insufficient protection for environmental risks and impacts (also see Chapter 5).
4.68
Specifically in relation to EPs, submitters and witnesses commented on the environmental assessment and approval criteria. The committee heard that there are concerns with commonly used control measures and that a key measure (Policy Statement 2.1) is too narrow in scope and must be regularly adapted for application to a broader range of marine species and to reflect the current evidence base.
4.69
The committee also notes that, unlike some countries, Policy Statement 2.1 does not require trained or experienced MMOs (see Figure 6.3). Instead, Australia's key control measure only requires visual observations be undertaken by trained crew during daylight hours.
4.70
Given these concerns, in the committee's view, Policy Statement 2.1 is clearly outdated and should be urgently revised. In so doing, and consistent with its views on the need for collaborative and multidisciplinary efforts toward mitigating the impacts of seismic testing, the committee suggests that the Department of Agriculture, Water and the Environment (DAWE) establish technical working groups to inform the review. In this regard, the committee highlights especially the evidence received from the Commonwealth Scientific and Industrial Research Organisation (see paragraph 2.12) that there is a need for continual ocean sound monitoring in order to understand sound in the marine environment.
4.71
The committee recommends that the Department of Agriculture, Water and the Environment urgently revise EPBC Act Policy Statement 2.1—Interaction between offshore seismic exploration and whales: Industry Guidelines:
to encompass all marine animals;
to incorporate contemporary scientific research findings;
to require the use of independent, trained Marine Mammal Observers; and
to require the use of passive acoustic monitoring at night-time by trained operators.
In particular, the department should conduct the review using stakeholder feedback and establish independent working groups to advise the department on technical aspects arising from that feedback, similar to the review process used by the New Zealand Department of Conservation in its 2015 review of the Code of Conduct for Minimising Acoustic Disturbance to Marine Mammals from Seismic Survey Operations.
4.72
The committee notes that, under Policy Statement 2.1, MMO data is collected and reported to DAWE. It is not clear what use is then made of this data. However, the committee considers that an independent review of the data would provide greater clarity on the efficacy of the key control measure (as it relates to certain marine animals) and better inform environmental policy and decision-making.
4.73
In addition to Recommendation 13, the committee recommends that the Department of Agriculture, Water and the Environment commission an independent review of the Marine Mammal Observation data collected over a five year period in accordance with the EPBC Act Policy Statement 2.1—Interaction between offshore seismic exploration and whales: Industry Guidelines, to obtain a better understanding of the efficacy of that policy.