Offshore Wind Declared Areas

Introduction

The National Oceans Office South-East Regional Marine Plan, Sea Country an Indigenous Perspective (the Plan), notes the connectedness of land and sea for Traditional Owners impacted by the proposed Southern Ocean region.

“Together they form people’s "Country" – a country of significant cultural sites and "Dreaming Tracks" of the creation ancestors. As a result, coastal environments are an integrated cultural landscape/seascape that is conceptually very different from the broader Australian view of land and sea.”

The impact of offshore infrastructure is therefore much broader, relating to both tangible and intangible Cultural Heritage. Citing archaeological records, the Plan identifies the extraordinary amount of time for which today’s Traditional Owners’ families have had responsibility for caring for this multi-faceted Country.

“Aboriginal people occupied, used and managed coastal land and sea environments within the Region for many thousands of years before the current sea level stabilised about 5000 years ago. Aboriginal people’s cultural and economic relationship with the Region begins before the current coastal ecosystems were established. This relationship includes knowledge and use of lands that now lie beneath the ocean all around the coast, and between mainland Australia and Tasmania.”

Injudiciously considered offshore infrastructure poses a significant threat to Traditional Owner rights to live their cultural connections to this Country. Potential impacts are far more diverse than damage to submerged physical sites, they also include the visual interference on the cultural landscape and affect on cultural species.  

Legislative and Regulatory Environment

The establishment and operation of offshore renewable energy infrastructure is regulated under the Offshore Electricity Infrastructure Act 2021 (Cth) (the Act) and the regulations made under that Act, the Offshore Electricity Infrastructure Regulations 2022 (Cth.) (the Regulations). The process of offshore use for renewable energy projects, under regime established within this framework, involves three key steps:

Declaration of a Commonwealth offshore area as a Declared Area under s 17 of the Act. A declaration of this kind is made by the Minister for Climate Change and Energy (Minister). The Commonwealth is currently considering declaring several new Areas. Several others have already been declared.

Once an Area is declared a proponent can apply for (and be granted) a licence (of various types) under Part 3 of the Act and the Regulations. The grant of a licence is made by the Minister with the advice of the Registrar of the Act. Several licence application are currently under consideration.

The management and operation of a Licence Area under Part 4 of the Act. Notably the regulations relevant to the management and operation of licence areas are still in the process of development.

Sections 17 – 20 of the Act set out the matters the Minster shall have regard to in making a declaration of an Area under s 17 and determining whether to impose any conditions upon that declaration. In areas currently under consideration, any licence granted in the area should be subject to a condition that Traditional Owners consent to the proposal.

A declaration of a Declared Area is made pursuant to s 17(1). Pursuant to s 17(3)(d), a declaration under s 17(1) should only be made if “the Minister is satisfied the area is suitable…”.  

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Conditions

The power to impose conditions under the Act is with respect to the grant of a licence. When determining whether to exercise the power to impose a condition, it is therefore not sufficient to assume that all relevant matters can be addressed in conditions imposed under the relevant Management Plans (per s 114 and s 115). Such an approach would deny s 20 (and per ss (s 35(3) and s 42(1)(g)), any “work to do” and would defeat the parliament’s clear intent.

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Criteria

Section 19 sets out the matters the Minister must have regard to in determining whether to make a declaration of a Declared Area. Relevant to the purposes of this submissions are the matters specified in subsection 19(1), (a), (b), (d) and (2). Combined, these require the Minister to consider:

• the potential impacts of offshore energy infrastructure activities on “the marine users and interests”,

• matters raised in submissions received in relation to the proposed declaration,

• “Australia’s international obligation in relation to the area.” Relevantly, these obligations would include the obligations of Australia as a signatory to the Convention on Biological Diversity (CBD) and the United Nations Declaration of the Rights on Indigenous Peoples (UNDRIP), and

• any other matters the Minister considers relevant.

There are two clearly relevant considerations in this regard. First, is the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) and the Commonwealth Government’s stated commitment to respecting the principles of Self-Determination and Free Prior and Informed Consent (FPIC) as set out in UNDRIP.

Conclusion

The criteria which should be taken into account in making a declaration relevantly includes consideration of the legally recognised Traditional Owner cultural and activity-based interests within the proposed declaration.

They also included regard to the principles of self-determination and FPIC as described (but not exclusively referred to) in UNDRIP. Existing judicial authority and administrative materials suggest that these interests may be adversely affected by offshore renewable energy projects. As may be the environment of Commonwealth marine areas, through a negative impact on the cultural aspects of that environment.

Any declaration should be made subject to condition. Such condition would be pursuant to s 20, that the grant of any licence within the Declared Area should by subject to a requirement that it will have no significant impact upon the interests of affected Traditional Owners without the consent of the Traditional Owners to the grant of that licence.

If any declaration is made without imposing the suggested consideration pursuant to s 20 of the Act would constitute a reviewable error which it would be desirable to afford. In addition, to impose such a condition would accord with Government’s international obligations stated policy and broader legislative objective.

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