Effective consultation and opposing views
Article published in the Regulator | Issue 4: 2015
Consultation with relevant persons whose interests, functions, and activities may be affected by petroleum activities is fundamental to environmental management. While good consultation practices involve building relationships that may last months or years, NOPSEMA must determine the appropriateness of a consultation process at the point in time when an environment plan is submitted. This is made more challenging when titleholders and relevant persons hold opposing views on an aspect of the activity or the way it is intended to be managed.
A recent decision of the New South Wales Supreme Court in the Australian oil and gas industry (Metgasco Limited v Minister for Resources and Energy  NSWSC 453) highlights the challenges involved in regulating consultation on environmental management where parties continue to hold opposing views. In the Northern Rivers region of NSW, gas exploration company Metgasco was suspended from operations by the NSW Resources and Energy Minister, due to community opposition. The court found that the focus of ‘effective consultation’ should be the quality of the process of consultation, rather than the persuasive effect on those being consulted.
NOPSEMA’s recognises that in some circumstances titleholders and relevant persons may be unable to reach agreement on an activity proceeding as proposed. In these situations, consultation should be complete to the point that the relevant person knows how any unresolved issues will be presented in the consultation report submitted as part of an environment plan to NOPSEMA. NOPSEMA guidance on the regulatory requirements requires that consultation would have been carried out:
iteratively to seek resolution to persistent objections or claims
in such a way that explored all available options for resolving or lessening an affected person’s objection or claim, particularly through control measures
to the extent that an affected person is aware of how the titleholder is proposing to address their objections or claims
to the extent that an affected person is aware of how the consultation and their objections or claims are going to be represented to NOPSEMA.
NOPSEMA has expressed the above view in its proposed consultation guidance, which has recently been the subject of public review. Following analysis of stakeholder feedback provided through this process, NOPSEMA intends to publish a ‘Consultation requirements under the OPGGS Environment Regulations 2009’ guideline on 1 January 2016. This will communicate NOPSEMA’s interpretation that appropriate consultation comprises the implementation of an effective consultation process.