Cooper v National Offshore Petroleum Safety and Environmental Management Authority & ors

Two subsidiaries of Woodside Energy Group Ltd sought to conduct a marine seismic survey off the coast of the Pilbara region in Western Australia, intended to map subsea geological formations for potential oil and gas reserves. Under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and associated regulations, they were required to obtain approval from the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) for an environment plan. On July 31, 2023, NOPSEMA approved Woodside’s plan subject to conditions, including the requirement that Woodside undertake further consultation with Aboriginal and Torres Strait Islander representatives before commencing the survey. Raelene Cooper, a Mardudhunera elder and traditional custodian of Murujuga, was one of the persons entitled to be consulted. On Sept. 8, 2023, she filed proceedings in the Federal Court seeking judicial review on two grounds: first, that NOPSEMA had no statutory power to accept the environment plan unless it was reasonably satisfied that the required consultation under regulation 11A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) had already been completed (Ground 1); and second, that Woodside had failed to comply with the consultation requirements, giving her standing to seek an injunction against the survey (Ground 2). On Sept. 15, 2023, the Court granted an interlocutory injunction restraining Woodside from undertaking the survey pending urgent resolution of preliminary questions. A hearing took place on Sept. 26, 2023. On Sept. 28, 2023, Justice Colvin delivered judgment. The Court held that NOPSEMA lacked statutory authority to approve the plan subject to consultation conditions in circumstances where it was not reasonably satisfied that the required consultation had occurred. The Court emphasized that consultation under regulation 11A was designed to inform the contents of the environment plan and provide the evidentiary foundation for NOPSEMA’s evaluative judgment. By conditioning approval on future consultation, NOPSEMA effectively delegated part of its statutory function to Woodside, which was inconsistent with the regulatory scheme. Woodside argued that discretionary factors should prevent relief, particularly alleging delays by Ms Cooper in providing information relevant to the consultation. The Court rejected these arguments, finding no valid discretionary basis to deny relief. As a result, Justice Colvin declared NOPSEMA’s July 31, 2023 decision invalid, set it aside, and awarded costs to Ms Cooper against Woodside. Because Ground 1 succeeded, it was unnecessary to decide whether Ms Cooper had standing under Ground 2.