Indigenous Land Owner Wins Case to Halt Seismic Blasting Activity for Major Project

An undated handout photo shows Woodside's Cossack Pioneer oil production facility off the northwest coast of Australia. AFP via Getty Images

Industry groups say a legal decision not to approve seismic blasting for a major energy project will have a chilling effect on future developments.

On Sept. 28, Indigenous Mardudhunera woman Raelene Cooper successfully challenged Woodside Energy’s plan to conduct the activity off the coast of northern Western Australia as part of the company’s Scarborough Gas Project.

The $19 billion Scarborough Gas Project is reported to be the biggest new oil and gas project in Australia, with the majority of its potential future gas production destined for Asia.

“More obstacles are being put in the way of critical energy developments, risking the new supply needed to deliver domestic energy security, emissions reductions, and substantial economic returns for Australians,” said Australian Energy Producers Chief Executive Samantha McCulloch in a statement.

Ms. Cooper had argued that the regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), had not adequately consulted Indigenous stakeholders when it approved the energy company’s plan for the seismic survey.

Federal Court Justice Craig Colvin, on Sept. 28, granted an interlocutory injunction to stop Woodside from carrying out the blasting work.

NOPSEMA had on July 31 approved Woodside’s seismic survey, despite finding Woodside’s legally required consultation with stakeholders to be inadequate. The regulator did, however, attach a condition that further consultation needed to be carried out before the survey began.

Justice Colvin found the regulator had erred because the consultation should have been carried out before the approval was granted. The judge subsequently set aside NOPSEMA’s decision.

Impacts of the Seismic Survey or Blasting

According to Ms. Cooper’s representative, the Environmental Defender’s Office (EDO), the regulator should not have accepted Woodside’s plan for the seismic survey.

“The court previously heard about the serious harm that seismic testing would inflict on Ms. Cooper’s Songlines and culture. This is a significant burden for a Traditional Custodian who has a duty to protect these Songlines for future generations,” EDO Managing Lawyer Brendan Dobbie said in a statement.

A seismic survey involves blasting air at the sea floor, penetrating underlying rock layers, with the recorded sound patterns then used to build a picture of geological layers and potential oil and gas reserves beneath the seabed.

Mr. Dobbie said that the impact of seismic blasting on marine animals such as whales could damage their hearing and ability to communicate and cause stress, displacement from the habitat, physical injuries, and death.

Additionally, the Scarborough Gas Project is located in northwest Australia in an area called “Murujuga,” which is currently nominated for a UNESCO World Heritage listing as it contains the largest collection of Aboriginal rock art in the world.

Ms. Cooper claimed that Woodside “just came and told us what was happening.”

“They (Woodside) never bothered to sit down and listen to Murujuga traditional custodians about the full impacts of their Burrup Hub operations on our culture and our sacred Songlines,” she said.

“I want my mob back home to be empowered by this day today. This is bigger than me it’s about my people and our history.”

In a statement, NOPSEMA said it acknowledged the Federal Court ruling and is reviewing the ruling to ensure future regulatory actions are in accordance with the decision.

“NOPSEMA recognises the important role that First Nations people have in giving input to, and participating in, the protection of the environment and cultural heritage.

“NOPSEMA was not reasonably satisfied that all environmental risks and impacts had been identified and therefore the Scarborough seismic environment plan could not be accepted without applying conditions.

“The Authority took a decision to seek advice to support the delegate proceeding to make a decision given potential ambiguity in the reading of the environment regulations.

“NOPSEMA provided procedural fairness to Woodside by enabling a review of the draft conditions prior to the decision being issued. This was in accordance with administrative law requirements. Woodside did not seek a review of the grounds of acceptance with conditions.”

‘Significant, Irrecoverable’ Economic Loss

According to a submission (pdf), the injunction would result in “immediate, significant, and irrecoverable economic loss” for Woodside.

“In the period between now and the final hearing in these proceedings (Oct. 23 and 24, 2023), Woodside will continue to incur significant costs on a daily basis.

“Part of the gas from the Scarborough Development is intended to be reserved and made available for Western Australian consumers, with the majority of the gas otherwise being processed into LNG and exported to international markets.”

Opposition resources spokeswoman Susan McDonald said the Albanese government failed to fix the “broken” approvals process, harming domestic supply and energy security for international partners in the process.

“The government has sat on its hands and done nothing to resolve a known issue which has ground approvals for offshore development to a halt,” Ms. McDonald said.

“The government claims it continues to support the gas industry, yet the millions it has spent on the Environmental Defenders Office will lead to more environmental legal activism, destabilising the industry, and increasing Australia’s sovereign risk.”

In response to the ruling, Woodside said it would continue to work with NOPSEMA and stakeholders to have an accepted environmental plan in place before starting the seismic survey.

“The decision did not in any way criticise any action by Woodside,” a spokesperson told AAP.

“We have consulted extensively on our environment plans, dedicating time and effort so our approach to environmental management and environmental plan consultation meets our current understanding of regulatory requirements and standards.”

The judge has awarded costs to Ms. Cooper.