s008-submission-wa-seafood-exporters-wafic.docx web viewin the absence of available baseline data...

28 February 2013

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL INC.

Petroleum Industry Consultation with and in Regard to the Western Australian Fishing Industry, Pursuant to the Offshore Petroleum And Greenhouse Gas Storage (Environment) Regulation 2009 (OPGGSR)

Submission to the Department of Resource, Energy and Tourism on the;

Review of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulation 2009

Emailed to [email protected]

mailto:[email protected]

About this submission

WAFIC IS WA'S PREMIER VOICE FOR THE PROFESSIONAL FISHING INDUSTRY.

This submission forms a description of the concerns, and the position of WAFIC regarding the current Offshore Petroleum and Greenhouse Gas Storage (environment) Regulations 2009 for consideration of the Commonwealth Department of Resources, Energy and Tourism in its review of this regulation.

The Western Australian Fishing Industry Council (WAFIC) is the peak industry body representing the commercial fishing, pearling and aquaculture industries.

The commercial fishing industry, including the catching, processing, exporting and retailing sectors is the State's third most important primary industry, after mining and agriculture.

Western Australia’s professional fishermen harvest and supply seafood to the 80% of the community who buy the majority of their seafood, to the hospitality sector and to service a profitable export market.

The industry works under strict regulation and in partnership with government to ensure the sustainability of our fisheries.

Information on the industry in Western Australia from its value, its management arrangements and environmental practices through to recipes to enhance your enjoyment of seafood can be found at our website www.WAFIC.org.au.

For more information please contact;

http://www.WAFIC.org.au/

WAFIC CEO Mark Tucek at [email protected], or Senior Policy Officer Chad Lunow at [email protected].



Table of contents

About this submission.................................................................................................................................. iTable of contents......................................................................................................................................... iiAcronyms used........................................................................................................................................... iiiToR 1. The appropriateness of the current objects(s).................................................................................1

ACCEPTABLE TO WHOM?.................................................................................................................... 1POTENTIAL CUMULATIVE, CHRONIC AND LONG-TERM IMPACTS.......................................................1IDENTIFIED OPTIONS........................................................................................................................... 1

ToR 2. Best practice & continual improvement through objective based legislation..................................3INNOVATION AND IMPROVEMENT?....................................................................................................3ACCEPTABLE TO WHOM?.................................................................................................................... 3NOPSEMA’S USE OF INCENTIVES / DISINCENTIVES..............................................................................4IDENTIFIED OPTIONS........................................................................................................................... 4

ToR 3. Effectiveness of the consultation......................................................................................................5DEFINITIONS CONSULTATION, ACCEPTABLE AND APPROPRIATE........................................................5FAILURE TO MAINTAIN CONTACT........................................................................................................5INEFFECTIVE COMMUNICATION..........................................................................................................5APPROPRIATE TIME FOR CONSULTATION...........................................................................................6SUPPLY OF APPROPRIATE CONSULTATION MATERIALS AND INFORMATION......................................7REASONABLE EFFORT TO CONSULT.....................................................................................................8IDENTIFIED OPTIONS........................................................................................................................... 8

ToR 4............................................................................................................................................................9ToR 5. Scope of representation...................................................................................................................9

IDENTIFIED OPTIONS........................................................................................................................... 9ToR 6............................................................................................................................................................9TOR 7.Transparency.................................................................................................................................... 9

IDENTIFIED OPTIONS......................................................................................................................... 10ToR 8..........................................................................................................................................................10ToR 9. Terminology and Definitions.......................................................................................................... 11

DEFINE CONSULTATION IN CONTEXT................................................................................................11ACCEPTABLE TO WHOM?.................................................................................................................. 13DEFINITION OF APPROPRIATE FOR REGULATION 11 (1) (F)...............................................................13COST RECOVERY................................................................................................................................ 13IDENTIFIED OPTIONS......................................................................................................................... 14

ToR 10 Effectiveness and completeness of monitoring provisions............................................................15IDENTIFIED OPTIONS......................................................................................................................... 15

ToR 11........................................................................................................................................................15ToR 12........................................................................................................................................................15

IDENTIFIED OPTIONS......................................................................................................................... 16ToR 13........................................................................................................................................................16ToR 14. Other Matters...............................................................................................................................17

TRANSPARENCY OF PROCESS............................................................................................................ 17LACK OF APPEALS PROCESS...............................................................................................................18ONUS ON THE REGULATOR TO DISPROVE POTENTIAL IMPACTS.......................................................18EXCLUSION OF THE TRANSPORT AND TRAFFIC CONCERNS FROM THE ASSESSMENT.......................20COMPENSATION................................................................................................................................20PROTECTED AND NO GO AREAS........................................................................................................21

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OTHER CONCERNS.............................................................................................................................21

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Acronyms used

APPEA Australian Petroleum Production and Exploration AssociationDSEWPaC Department of Sustainability, Environment, Water, Population and Communities.DRET Department of Resources, Energy and TourismEP Environment PlanEPBC Environment Protection and Biodiversity Conservation Act 1999FRMA Fish Resources Management Act 1994MSS Marine Seismic SurveyNOPSEMA National Offshore Petroleum, Safety and Environmental Management AuthorityOPGGSR Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulation 2009ToR Terms of ReferenceWA Western AustraliaWAFIC Western Australian Fishing Industry Council Inc.WCDSF West Coast Demersal Scalefish FisheryWRLC Western Rock Lobster Council

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Western Australian Fishing Industry Council Inc. Submission to the DRET on the review of the OPGGSR

ToR 1. The appropriateness of the current objects(s).o ACCEPTABLE TO WHOM?o POTENTIAL CUMULATIVE, CHRONIC AND LONG-TERM IMPACTS

ACCEPTABLE TO WHOM?See discussion under this title in ToR 2.

POTENTIAL CUMULATIVE, CHRONIC AND LONG-TERM IMPACTSIt appears (from consultation material supplied) there is a lack of appreciation of the need to address potential cumulative, chronic or long-term impacts of activities of the existing or approved petroleum industry activities in the context of impacts with the potential to act in additive or synergistic ways with the impacts of the activity in the EP application. For example see the extract below from Attachment 1.

“WAFIC may wish to consider discussing any concerns relating to cumulative or supply chain impacts with state or commonwealth government. As mentioned previously, it is beyond the scope of the approvals process for a seismic survey to consider the impacts of the entire oil and gas industry on the entire fishing industry, the regional environment and associated supply chain economics “

The additional environmental impacts and risks of the surrounding existing and approved activities should be addressed in the context of the description of the receiving environment under Regulation 13(2) and should therefore include the additional environmental impacts and risks such as cumulative, chronic or long-term impacts.

Under Regulation 11A(2) this information regarding potential cumulative, chronic or long-term impacts should also be provided to the potentially affected parties to be consulted to allow an informed consultation.

In the absence of available baseline data for determining the potential for cumulative, chronic or long-term impacts, data should be made available from existing previous environmental surveys and assessments state wide and mapped accordingly to determine potential communities, environments and bioregions. Geology provides significant assistance in this definition, as was identified through its application in defining zones within the Representative Area Program (RAP) run by the Great Barrier Reef Marine Park Authority (GBRMPA) prior to the bioregions being introduced over Queensland’s GBR in 2003.

Naturally this can only be achieved to the resolution of the available data. This resolution can be improved through time through the collection of regular monitoring data at the area of activity, through out the area of impact (larger area if the activity affects water moving in a current, uses sound etc.) and additional sites in the wider proximity of an activity and / or between a number of activities under taken in relatively close proximity as appropriately defined through a robust scientifically designed research monitoring assessment methodology.

NOPSEMA may act as the repository for the data and standardization of methodology across the State (following established monitoring guidelines and methodology where appropriate), with analysis of the data, funded by the operators, at regular intervals.

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IDENTIFIED OPTIONSOption 1.1

SupportedOption 1.2

Supported

Option 1.3 Supported

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ToR 2. Best practice & continual improvement through objective based legislation.

o INNOVATION AND IMPROVEMENT?o ACCEPTABLE TO WHOM?o NOPSEMA’S USE OF INCENTIVES / DISINCENTIVES

INNOVATION AND IMPROVEMENT?Currently, the objectives based legislation is in place to encourage operators to innovate and improve standards over time, however, there is no Regulation requiring innovations to be shared across the industry to the benefit of all Australians.

To remove the associated risk with operators not understanding what is required of them in these regards, NOPSEMA, who assesses all EP applications, could keep a master list in a public location of;

all identified risks; all identified mitigation techniques; and the level/s of success achieved for each mitigation technique.

This list could be categorized by activity type such that all operators can see what has been achieved to date and the public can see the improvements that have been achieved through the innovations that have come forth using the objective based approach. This would also serve as a measure of the success and appropriateness of the objective based approach to legislating this industry. And this could be done without interfering with implementation of Option 2.1 - 2.3.

ACCEPTABLE TO WHOM?11(1) (c) of the Regulations identifies the requirement to demonstrate “environmental impacts and risk of the activity will be of an acceptable level” but fails to identify to whom.

Given potential impacts of petroleum industry activities are to be reduced to ALARP, and to an acceptable level, in the absence of nationally accepted guidelines, it would appear necessary to identify to whom that level would be acceptable, before NOPSEMA make judgment on whether that level has actually been reached. Given environmental impacts are raised through the consultation process, WAFIC suggest the operator seek advice from of an independent expert in the field of work being raised, and include the party raising the concern in discussions to determine the acceptable level. The process for defining ‘acceptable’ must be open and transparent and based on defined criteria where the application of those criteria can be critiqued.

A definition of “acceptable”, based on the terms of inclusion of the potentially affected parties and appropriate independent expertise, should be written into the Regulation.

Example 1: Fishers are highly attuned to the environment they hunt in. If a fisher was noticing reduced catches he believes is associated with the proximity to an oncoming seismic survey vessel, the operator should assess the validity of the concern raised, determine how to mitigate the potential impacts and determine to what level would be acceptable in consultation with the fisher concerned or his representatives. It would be likely in this case that an independent expert/s might also be required to assist the consultation in determining that acceptable level in each case, such as a stock assessment officer and a scientist with expertise in impacts of seismic surveys on the marine environment and fish in particular.

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Example 2: If a member of the public believes the presence of oils rigs is increasing water toxicity to marine animals, and has some anecdotal evidence (or otherwise) but is not a biologist, toxicologist, chemist or have other relevant experience or qualifications, then an independent water quality expert may be able to assess the concerns raised in consultation with the operators and the person raising the concern.

NOPSEMA’S USE OF INCENTIVES / DISINCENTIVESWhere potential exists for a bias representation of a scientific case to NOPSEMA (such as the impacts of MSS on fish and the fishing industry), there equally needs to be transparency of NOPSEMA’s review process to allow critiquing the scientific rigor applied to the arguments supporting an EP’s approval (also see ToR 14 and ToR 9). Where unbalanced views are presented or unbalanced decisions made, an appropriate disincentive (or other mechanism) should be applicable.

Example 1: A case study is provided in the confidential Attachments at Attachment 2, which could have been solved with greater transparency. Concerns remain around this activity.

IDENTIFIED OPTIONS

Option 2.1Supported

Option 2.2 Supported and see “Acceptable to whom?” in this section (above).

Option 2.3 Supported, no preference for sub-options.






Option 2.9 No comment

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ToR 3. Effectiveness of the consultationo DEFINITIONS CONSULTATION, ACCEPTABLE AND APPROPRIATEo FAILURE TO MAINTAIN CONTACTo INEFFECTIVE COMMUNICATIONo APPROPRIATE TIME FOR CONSULTATION

DEFINITIONS CONSULTATION, ACCEPTABLE AND APPROPRIATEAs outlined in ToR 9, the definitions of Appropriate (Regulation 11(1)(f)), Consultation and Acceptable must be defined in context as the operators and Regulator don’t appear able to satisfy all aspects of these words for all potentially affected parties. This is creating division between the industries and results in the failure to protect the environment through failed consultation.

FAILURE TO MAINTAIN CONTACTIn the response letter from WAFIC to petroleum industry operators following notification of activities (Attachment 3), WAFIC highlights the need to provide the appropriate information to potentially affected parties and identifies that it would like to be kept informed of;

the state fisheries license holders that are contacted, notified or consulted; sent the consultation material once developed; and any concerns that are raised.

This request is often met with good intention and an attempt to provide a list of contacted parties, however, replies (if received);

usually do not include state managed fishing license holders requested and suggested (however Chevron has done an excellent job of this);

rarely do operators continue to keep WAFIC informed of their progress; there is never any improvement in the information provided to the fishing industry to provide

suitable initial notification to elicit the desired consultation; and information regarding concerns raised by state managed fisheries license holders are rarely

shared with WAFIC by the operator.

This appears to be a failure to communicate despite the potentially affected parties best efforts to raise concerns with no resources to do so.

INEFFECTIVE COMMUNICATIONBelow are three examples of communication between the petroleum industry and the fishing industry that have not resulted in a functional outcome or increase in understanding between industries.

1. Development of a statewide approach to communication: Conscientious operators, aware of the need to maintain rapport with the fishing industry, often discuss concerns that have been raised with the individuals who raised them. These discussions often lead to the affected fisher/s to work with the operator and often the consultant develops effective individual ways to communicate operational concerns (e.g. to avoid at-sea disruptions to each other’s businesses). This approach is usually successful and results in the affected fishers becoming more willing to operate differently to their normal operations, but does not help either industry to develop more streamlined ways to communicate or interact with each other.

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2. WAFIC has raised, with several operators, that there is variation in the scientific literature on impacts of sound that indicates it may not be as benign as once thought. For example, a review was recently completed by the United Nations Environment Program titled "Scientific synthesis on the impacts of underwater noise on marine and coastal biodiversity and habitats". This reports specifically on behavioral changes, including dispersion of fish, which have been observed in a number of species exposed to a number of sound profiles (including air-gun arrays used for seismic surveys). For one species, a 52% decrease in catch was reported after exposure to a single air gun array.

This information comes from overseas and the research does not exist to determine if this is the case in WA or not. However, the operators do not choose to discussed these scientific examples in the information provided to potentially affected parties, despite WAFIC raising the concern the lack of effective communication would suggest those operators appear to have failed to meet the requirement under Regulation 11A(2) to provide

“…each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity…”.

3. Evidence of another failure to communicate effectively, can be seen below where an operator has suggested the information provided meets their requirements under the Regulations despite WAFIC suggesting it does not.

“the notification / consultation materials supplied to the parties consulted..., which includes the location, timing and nature of the proposed activities, and contact details should stakeholders wish to seek further information. It is …(the operator’s)… view that the information provided in this letter satisfies the requirement, under Regulation 11A(2)” (Attachment 4 20/02/13).

This highlights the imposition and difficulty the petroleum industry is placing on the fishing industry and individual fishers. To expect all potentially affected parties to understand what is the activity the operator is doing, what impact it has on the environment and fish and to be able to access and critically review scientific information as if they were environmental scientists is not appropriate and a clear failure to meet Regulation 11A(2).

The three examples above would appear to be at the hands of the operator and judgment of NOPSEMA. The operator should include such communication in their EP, as they would be required to under Regulation 16(b), but due to the lack of transparency, WAFIC is unable to determine if NOPSEMA had the opportunity to make this judgment.

APPROPRIATE TIME FOR CONSULTATION Pursuant to Regulation 11A(3) operators must allow a reasonable period for the consultation. A reasonable time frame for consultation for the fishing industry would need to be an extended one due to the industry;

almost exclusively operating in remote areas, operating at varying hours of the day and night; not being of homogenous literacy skills; being difficult to contact even when the contact information is available and correct; do not all use electronic media; only the Department of Fisheries has a register of the license holders;

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and that contact details on that register are not updated regularly; and only postal addresses are available;

fishers are often at sea for an extended period/s and therefore unavailable; and in those cases this puts substantial social and financial pressures on their time when they are on

land. This makes consultation a difficult and concerning issue to prioritise.

Noting the Minister for Fisheries requirement to consult over two months on Management Plan amendments pursuant to section 118 (2) of the Fish Resources Management Act 1994 (FRMA), WAFIC recommends it would be an appropriate to use the same time frame. Importantly, this time frame would start from the time of notification to receipt of any submission to start the consultation process for a petroleum operator. Alternatively, operators could provide suitable information for consultation purposes, instead of notification, and hold consultations with the potentially affected parties (if the operator has made a reasonable attempt to contact all potentially affected parties to make them aware of the meeting) such that they may be able to make final submission or decision within the two month period.

Following NOPSEMA’s assessment of the operators EP application, if approved, a suitable amount of time is required before the activity can begin to allow for the Appeals process to take place (see Tor 14).

SUPPLY OF APPROPRIATE CONSULTATION MATERIALS AND INFORMATION

Pursuant to Regulation 11A(2), the information that should be provided to each fisher, license holder and other potentially affected party in the fishing industry must provide;

“sufficient information to … make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person”

Despite the statement below being attached to every response letter from WAFIC (see Attachment 3), to date WAFIC is not aware of this Regulation actually being met. In fact, several replies from the operators have indicated they believe the notification covering the basic description on THEIR proposed activity is in some way providing ““sufficient information to … make an informed assessment”.

Information to provide fishersPlease note that it is not sufficient for operators to provide notification fact sheets to WAFIC, with the expectation that this action constitutes “industry consultation”. WAFIC does not have the resources to act as a conduit to convey information on your proposed activity to fishery license holders. The obligation to do this remains with the operator.

In order to fulfill your obligations for consultation under section 11A(2) of OPGGSR 2009, the information that should be provided to each fisher, license holder and other affected parties in the fishing industry must provide;

“sufficient information to … make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person.”

In the case of the fishing industry this would specifically state the effect of the intended activity on the existing fishing activity.

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WAFIC emphasises, sufficient information regarding the effect of the proposed activity on fishing activities and the marine environment (and its functions) that the businesses depend upon, is critical to allow fishers to make an informed assessment. This includes consideration of cumulative impacts on fishing businesses and the environment and flow on effects up and down supply chain for seafood and fishing industry support industries, especially where business viability is compromised.

In some cases (see INEFFECTIVE COMMUNICATION) the comment operator provide similar replies to that below which indicates the lack of understanding of the fishing industry by the operator.;

“the notification / consultation materials supplied to the parties consulted..., which includes the location, timing and nature of the proposed activities, and contact details should stakeholders wish to seek further information”.

The fishing industry is aware of scientific literature identifying potential adverse impacts of anthropogenic noise on fish stocks in some cases. We strongly recommend that consultation materials reference a balanced argument to justify assertions of the effect of the intended oil and gas activity on existing fishing activities. Such balanced argument is currently completely lacking in consultation materials made available to the fishing industry. All consultation materials would need to be in plain English that would allow the fisher to know the effect of the activities on fishing outcomes.

REASONABLE EFFORT TO CONSULTWithin WAFICs own consultation role, we adhere to policies such as,

“… (WAFIC) must make a reasonable effort to contact all potentially concerned (parties)” (SLA procedures manual).

In such cases there is a process for determining if a reasonable effort has been made. Typically a letter is sent to the address provided by the Department of Fisheries down to the individual fishers licence holder level. If there is no reply after a certain time, effort is made to try and reach the person via other means, this may be email if it is available, or a phone call or fax if available. These contact details need to be actively sort out and found using available resources and common sense (yellow pages, searches on Google, or social media (Facebook, Linked-in etc.), contacting their known associates, business companies, fishing association or friends). Typically this is successful. However, all attempts are recorded and in the event someone is unreachable for an extended period, and a paper trail can be shown that there were reasonable attempts to contact them.

This process should be adopted by the petroleum operators and some, like Chevron, have started this process with success. This process could be put in the Regulations as “operators must make reasonable attempts to contact all potentially affected parties identified and records kept” but in the NOPSEMA Guides note on Environmental Plan Preparation in more prescriptive detail (as outlined above).


As with Option 7.1 under that section, WAFIC supports the principle of increased transparency of operations and activities, including the provision of the information suggested in both option 3.1, 7.1 and those items identified by WAFIC under Option 7.1. These details may be updated at times, but should be available publically via the NOPSEMA website at least two months prior to the survey date. Future potential projects, up to two years in advance, should also be included in this table on the

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NOPSEMA website, even if only the title numbers, potential activity type, company name and contact details are available at that time.

WAFIC rejects the comment in the Issues Paper that,

“correspondence receive after the proposed 10 day comment period has closed, does not need to be addressed in subsequent submissions”.

A reasonable period of time must be provided for consultation and as stated above this would be around two months for the fishing industry. As such, the information under Option 3.1 should be provided but 60 days in advance not 10 days. Information of webpage should be updated as soon as information is available and that should also be communicated further to potentially affected parties.


Option 3.3 Strongly supported



ToR 4. No comment

ToR 5. Scope of representationIDENTIFIED OPTIONSOption 5.1

Supported

ToR 6. No comment

TOR 7.Transparency See “Conflict of interest and transparency of process” under ToR 14 below.

PLEASE NOTE while the Issues Paper focuses on transparency of the operators EP and process, there is also no transparency for the operations of NOPSEMA, other than that accessible at some cost to resources through the Freedom of Information Act 1982.

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WAFIC recommend that the reasons for decisions, the decision and assessment process for each EP assessed by the Regulator is also publically available, and that there are publically available regular reviews, by an independent compliance company, on NOPSEMA’s decision making process.


Supported for Regulation 11 (8) (a) but with the addition of

the assessment by the operator of the validity and value of raised concerns, for public scrutiny of their evaluation (but prefer to have concern parties involved in assessment);

a copy of the ERA assessment including the operators process and reasons for decisions; exclusion of irrelevant items from the ERA “Key Control and Mitigation Measures” column such

that the claims of the operator to mitigate concerns are shown accurately; a copy of the final draft submitted on the description of the environment and impacts of the

survey activity on the environment. Early drafts of this should be supplied to all potentially affected parties as part of the initial notification / consultation letter;

shows the difference for each environmental risk, with and without the mitigation measures; and identifies what is “acceptable” and who/whom nominated or agreed to that limit.


Option 7.3 Supported, but with inclusion of how NOPSEMA have assessed this also.



Option 7.6 Supported noting NOPSEMA include annual summary reports as part of annual reporting.


ToR 8. No comment

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ToR 9. Terminology and Definitionso DEFINE CONSULTATION IN CONTEXTo ACCEPTABLE TO WHOMo DEFINITION OF APPROPRIATE FOR REGULATION 11 (1) (F)o COST RECOVERYo IDENTIFIED OPTIONS

Although ToR 9 refers to alignment between and within legislation and subordinate legislation it also identifies clarification of key definitions within the Regulations.

DEFINE CONSULTATION IN CONTEXTOne key definition missing from the document is that of Consultation. More specifically the word is not defined in context. Despite the attempts to improve the situation through regulatory amendments taking force from the 1 January 2012, consultation appears to have been taken to mean “seeking advice from an expert party such as a medical practitioner, a judge of lawyer”.

Perhaps this interpretation has occurred due to the recent exposure to consultation processes in the industry and community, and its changing application in recent times. However, in this context the intent of the word should be clearly spelt out in the definitions section of the Regulation (or in the governing Act).

The interpretation of the word consultation, in practice covers seeking advice, comment, input, and participation from the public, or potentially affected parties, in the making of a decision of some description that affects them.

The Oxford dictionary identifies both applications of the word (below) as does the MacMillan Dictionary;

Noun [mass noun]• the action or process of formally consulting or discussing: they improved standards in

consultation with consumer representatives [count noun]:consultations between all sections of the party

• [count noun] a meeting with an expert, such as a medical doctor, in order to seek advice: a consultation with a homeopathic doctor.

A background document on public consultation from the Organisation for Economic Co-operations and Development (OECD) code (OECD 2006), to which Australia is a member, clearly identifies three aspects to consultation being; notification, consultation and participation, in relation to making decisions regarding new Regulation or review of existing Regulation. An extract is provided below.

“What is Public Consultation?1. Public consultation is one of the key regulatory tools employed to improve

transparency, efficiency and effectiveness of Regulation besides other tools such as Regulatory Impact Analysis (RIA), regulatory alternatives and improved accountability arrangements. There are three related forms of interaction with interested members of the public. In practice, these three forms of interaction are often mingled with public consultation programmes, complementing and overlapping each other:

Notification. It involves the communication of information on regulatory decisions to

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the public, and it is a key building block of the rule of law. It is a one-way process of communication in which the public plays a passive consumer role of government information. Notification does not, itself, constitute consultation, but can be a first step. In this view, prior notification allows stakeholders the time to prepare themselves for upcoming consultations.

Consultation. It involves actively seeking the opinions of interested and affected groups. It is a two-way flow of information, which may occur at any stage of regulatory development, from problem identification to evaluation of existing Regulation. It may be a one-stage process or, as it is increasingly the case, a continuing dialogue. Consultation is increasingly concerned with the objective of gathering information to facilitate the drafting of higher quality Regulation.

Participation. It is the active involvement of interest groups in the formulation of regulatory objectives, policies and approaches, or in the drafting of regulatory texts. Participation is usually meant to facilitate implementation and improve compliance, consensus, and political support. Governments are likely to offer stakeholders a role in regulatory development, implementation and/or enforcement in circumstances in which they wish to increase the sense of “ownership” of, or commitment to, the Regulations beyond what is likely to be achieved via a purely consultative approach.”

In addition, Commissioner Smith’s statement in Melbourne, 12 March 1991 re: Civil Aviation Authority Award ODN C No. 20086 or 1990 stated;

“In relation to the concept of consultation I wish to make it clear that his involves more than a mere exchange of information. For consultation to be effective the participants must be contributing to the decision–making process not only in appearance, but in fact.”

All the definitions above would imply that those parties to be consulted under Regulation 11A(1)(d) would be far more involved in the processes and decision than is currently being promoted, identified or undertaken in most cases.

Specifically, these definitions would imply that those parties to be consulted under Regulation 11A(1)(d) that,

“a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan”,

should be at least invited to be involved or already have the right to be involved, either in person or by a representative;

to a greater extent than being provided with a letter or pamphlet of notification of an activity containing information relevant to the petroleum industry but not relevant to the considerations of the party being consulted (refer to ToR 3, and Regulation 11A (2);

in the decision making process regarding the determination of the value and merit of the concern raised (section 16(b)(ii) of the Regulation); and

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in assessing and determining the Environmental Risk Assessment (ERA) outcomes, while the operator is attempting to demonstrate in their Environmental Plan (EP) that risks identified through the process under Regulation 13(2)(a) and (b) meet the process outlined in AS/NZS ISO 31000:2009 and Handbook 203:2006 Environmental risk management – Principles and process.

In addition, clarity of Regulation definitions may be required to identify each and every potentially affected party must be consulted such that an operator cannot notify a representative body and assume they have then consulted all parties. To up-hold the principles on Natural Justice, each potentially affected party must have the opportunity to make comment. Criteria around achieving Natural Justice in consultation and the assessment of meeting those criteria by NOPSEMA should be Regulated. Again, the assessment process and should be transparent and made available to the public for scrutiny.

ACCEPTABLE TO WHOM?11(1) (c) of the Regulations identifies the requirement to demonstrate “environmental impacts and risk of the activity will be of an acceptable level” but fails to identify to whom.

As mentioned in ToR 1 and 2, the definition of what is “acceptable” is a concern. Given potential impacts of petroleum industry activities are to be reduced to ALARP, and to an acceptable level, in the absence of nationally accepted guidelines, it would appear necessary to identify to whom that level would be acceptable, before NOPSEMA make judgment on whether that level has actually been reached.

Given environmental impacts are raised through the consultation process, WAFIC would suggest the party raising the concern would also be involved in determining it’s acceptable level and be guided either by their own developed understanding of the impacts of issue being raised or with the advice of an expert in the field of work being raised as a concern. A definition of “acceptable”, based on the terms of inclusion of the potentially affected parties and appropriate independent expertise, should be written into the Regulation.

DEFINITION OF APPROPRIATE FOR REGULATION 11 (1) (F)In addition to the definition of Acceptable (above) and Consultation (above) there is also a need to provide a definition for the word “Appropriate” as used in Regulation 11(1)(f). This refers to NOPSEMA’s requirement to judge appropriateness of the operators proposed adopted measure to address concerns raised through consultation (if any). This would serve to provide transparency on NOPSEMA’s process and decision making during assessment.

NOPSEMA’s assessment would also be made publically available at the point of EP acceptance (or before) with a statutory amount of time identified between the approval being decided and the activity beginning to allow for review of the approval process undertaken by NOPSEMA, and to allow for appeals (if any).

COST RECOVERYRegulation amendments, which came into force 1 January 2012, included the requirement for greater consultation with potentially affected parties. This is supported by WAFIC, however, coupled with the increasing exploratory and extractive activities of the petroleum industry in WA, has seen WAFIC, the Department of Fisheries, fishing associations, companies and individual fishers inundated with “notifications” of activities.

Notifications typically come for one company at a time, for each activity type at a time, and with an invitation for potentially affected parties to request more information if required, thus requiring a further step to be taken before consultation can even begin. This is a poorly coordinated system and drains the resources of those affected and has led to “consultation fatigue”.

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With no additional resources to address notifications, little background work can be completed on the potential effects of these activities on the fishing industry, which the operators are required to do themselves under Regulation 11A (2). This results in further delays getting responses back to the operators by potentially affected parties and would certainly fall outside of the time the operator allow for consultation, which can be as little as a few days (Attachment 6).

WAFIC would suggest a system be set up to recoup the costs of the time spent assessing notification and undertaking consultation for lost time and resources. This would be payable by the company undertaking the activity but coordinated through a body such as NOPSEMA. APPEA would not be an appropriate body for this process as not all companies would fall under the APPEA umbrella (e.g. Geoscience Australia, International companies etc.)

Streamlining the process initially would reduce cost to the operators and the suggestion directly above would provide a financial incentive to cooperate with other operators / companies in that undertaking. WAFIC suggest having regional meetings (break the state into several smaller bioregional sections such as South Coast, South West Coast, Central West coast, and Pilbara/Kimberly). These regional meetings could be held regularly (once every 3 months for example). Agenda’s with the appropriate amount of information would be circulated well prior to the meeting, and all operators could, in turn, address the concerns raised by potentially affected persons at the meeting. This would be run such that no commercial in confidence information would be shared in the forum from either side of the activity. That is, confidential information about the location of a fishers fishing spots would not be divulged nor would any petroleum industry information confidential to their industry. This regular regional meeting approach would not be undertaken in lieu of consulting all potentially affected parties and each licence holder would still need to be consulted and invited to participate.

Regular regional meetings would be coordinated by NOPSEMA staff, and would include projected activities up to 12 months or more in advance. Apache have taken this approach to their notifications and have a quarterly report on their operations for up to 12 months in advance. If this were coordinated across all operators, activities and at a regional level, this would reduce the amount of consultation required, its regularity and its cost. As an additional benefit, the oil and gas industry would get a clearer cumulative view of the impact all their activities are having to the local community and environment when they see all their own companies’ activities on one map overlaid with the areas being used by other stakeholders.

Streamlining consultation would reduce consultation fatigue through seeking more efficient, regional based, cross industry

notification/ consultation / communication mechanisms; should include invitation to all potentially affected parties in the first instance in a suitable way

for the specific audience; is only possible if there is assurance the appropriate information is provided to the fishing

industry to allow them to understand and make an informed decision during notification, including highlighting the lack of information available on the impacts of the activities on the marine environment and its inhabitants in WA. Noting also that information is available for overseas and discuss this accurately in the consultation information; and

operators must consider an appropriate time frame for consultation, noting the Minister for Fisheries requirement to consult over two months on Management Plan amendments pursuant to section 118 (2) of the FRMA.

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I

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DENTIFIED OPTIONSOption 9.1

Supported



ToR 10 Effectiveness and completeness of monitoring provisionsIDENTIFIED OPTIONSOption 10.1

Supported

WAFIC note that failure to address potential impacts by operators in their submitted EPs, such as the impacts of seismic surveys on demersal fin fish species, is restricting ongoing research into demonstrating if the potential affects are found in WA. As such, the completeness and effectiveness of current monitoring is insufficient. It is not clear whether this is due to the onus of proof being put on the Regulator as explained in ToR 14 (below), or from operators selectively presenting available scientific information on the topic in the EP. This should be investigated, addressed and further research undertaken.

Research should at least address immediate impacts on behavior and physiology and therefore impact on fishing industry as well as medium and chronic or cumulative impacts of petroleum activities.




ToR 11. No comment

ToR 12

WAFIC also suggests review of the provisions around “compliance with the provision of accurate information”(see ToR 2, NOPSEMA’s use of incentives and disincentives).

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IDENTIFIED OPTIONS

Option 12.1Supported


ToR 13. No comment

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ToR 14. Other Matterso Transparency of processo Lack of appeals processo Onus on the regulator to disprove potential impactso Exclusion of the transport and traffic concerns from the assessmento Development of a standard compensation scheme

TRANSPARENCY OF PROCESSIt is appropriate that the operator wanting to undertake an activity be the party who completes the work for an EP application. However, as the operator is thus responsible for

assessing the value and validity of environmental concerns raised by consulted parties;o wording from DoF guidelines and find section in legislatio9n

then, for those risks identified as “valid” by the operator, it is the operator that must undertake and provide an Environmental Risk Assessment (ERA); and

for each EP submitted by an operator, it is the operators own responsibility to define what mitigation is applied to minimise the potential impact to “as–low-as-reasonably-practical” (ALARP) is and what is the “acceptable” limits that are included for the EP assessment by NOPSEMA.

Although the Issues Paper suggests it may define “acceptable” in the regulation to assist operators to have a greater understanding of the intension under this requirement, it is still in the operators best interest to “play down” concerns identified and/or to raise and represent those concerns in the best possible way to allow the EP to be approved and at the least cost to the operator. Without transparency in the process (also identified in the Issues Paper) and clear identification of criteria for assessing the value and validity of raised concerns by the operator for inclusion and assessment in the ERA, and also criteria for the ERA, it is not possible for any external party to determine what level of scientific rigor has been applied to the assessment of concerns raised. There is also no transparency in the assessment criteria and decision-making process of NOPSEMA in assessing the ERA in the EP assessment process. WAFIC recommends this potential conflict of interest be minimised through open and transparent process, with clear criteria and assessment, with reasons for the decisions made by both the operator and NOPSEMA being publically available for scrutiny on line at the NOPSEMA website.

Currently, having this process occur insulated from influence external to the operator, until after the EP is already assessed, with only a summary of the EP publically available, and only 10 days after its approval, is neither open nor transparent.

Of significant concern under the current process is that under Regulation 11(1), NOPSEMA is obliged to accept the EP application, unless NOPSEMA can show evidence the application has not met at least one of several criteria, hence the onus of proof in on NOPSEMA. In the absence of information or national guidelines on every possible concern raised (risks), NOPSEMA cannot control the approval of an application that may affect the environment negatively beyond both ‘acceptable’ limits and ‘ALARP’. This is a failure to apply the Precautionary Principle.

In making the above processes open and transparent, consideration should be given to proving an opportunity for the concerned parties to discuss the operators assessment of the value or validity of the issues they raised through consultation, and involvement in the development or outcomes of the ERA, and in terms of what is “ALARP” or “acceptable”.

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This means, for example, if a fisher suggests the activity may impact on his business because in his years of experience, seismic survey tends to affect fish behavior, such as causing dispersion of fish from key fishing aggregations or habitat, then the operator can dismiss the concern (risk) stating, in their EP “We don’t believe this is a risk based on the available science” or “the effect is not long term and is not expected to affect the biology of the species”. In this case the operators have addressed the risk and it would appear NOPSEMA is obliged to confirm the EP addresses the risk concerns raised and thus, may provide them with an approval for the activity. An example of this in practice is at Attachment 2 (case study), which received approval under exactly these circumstances.

WAFIC agrees with the Issue Paper that these conflicts of interest and lack of transparency of process is unacceptable. The Regulation should be amended to allow the full EP, barring information that is of a commercial in confidence nature, to be available publically while NOPSEMA is assessing the application. NOPSEMA should then also make the assessment publically available (such that the reasons for each decision are recorded in a publically available document associated with the EP) at the time the EP is being assessed. Importantly, evidence should be provided of all claims made by the operator in the EP. This more transparent process should also be reviewed regularly for quality assurance, assessment, and streamlining purposes by an independent party.

LACK OF APPEALS PROCESSCRITICALLY, Regulation is required for an Appeals process to NOPSEMA, and then to the State Administrative Tribunal (SAT) if resolution cannot be reached. This is similar to other legislation including that process undertaken for fisheries consultation under the FRMA.

ONUS ON THE REGULATOR TO DISPROVE POTENTIAL IMPACTSRegulation 11(1) places the onus of proof on the regulating body, NOPSEMA, to be satisfied the sub-regulations (a) to (g) have not been met, rather than place that onus on the operator. Effectively this implies, in the absence of further information, that NOPSEMA should approve any and all application unless there is evidence of a concern that fits within sub-Regulations (a) to (g).

This is in opposition to application of the Precautionary Principle;

“that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage”.

This approach has resulted in the undertaking of activities and practices, suspected of causing environmental impacts, without forcing those undertaking the activity to address concerns raised, unknowns identified in the assessment of activities, or putting the onus on those parties to prove they are not causing harm to the environment.

As such very limited research has been undertaken in Western Australian waters on the potential impacts of Marine Seismic Survey (MSS), drilling or other activities on behavior, physiology, biologically significant behaviors or events (such as feeding success, predator avoidance, hearing, communication, aggregations for spawning or feeding, or migrations) of fish important to the environment, ecosystem function or to the operation and economics of the commercial or recreational fishing industries of WA and Australia.

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This should be reversed to allow a greater focus on determining the identified unknowns, addressing concerns raised by potentially affected parties or interested parties and to raise a greater knowledge base of the potential impacts of petroleum industry activities on the environment.

Suggested amendment to Regulation 11(1) to read;

“(1) For the Regulator to accept an environmental plan, the operator must show reasonable grounds for believing that the plan:…”

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EXCLUSION OF THE TRANSPORT AND TRAFFIC CONCERNS FROM THE ASSESSMENTAlthough transport and traffic at sea are issues covered under other legislation and Regulation, there is significant interaction between the petroleum industry and other parties that would be listed under the definition of “environment” in the Regulation being reviewed here. These concerns are also covered under Regulation 13 (2) (a) and therefore should be included in the EP.

For the fishing industry these concerns have repeatedly included;

access to facilities and services in port; increased cost of access to facilities and services in port due to competition; increased traffic at sea while fishing, either disturbing / interrupting normal fishing practices or

the fish themselves; increasing noise pollution of the sea; clear advice on who has right of way in each circumstance and why; interactions with fishing gear (traffic often driving over fishing gear and damaging the gear and

losing the catch); increased environmental risk with increased toxic cargo being shipped close to shore (i.e. sunken

barges full of diesel or adrift in storms); lack of communication to make potentially affected parties aware of surveys being undertaken,

causes conflict between the industries; resulting translocation of fishing vessels and fish effort to other areas away from the activity and

increased traffic; increased cost of operating at sea if a fisher needs to go around or move away from an activity or

vessel; (recently a fishing vessel was asked to move away from a MSS vessel to a distance (9 miles) that would put them in a position illegal for them to be in, and could have led to the fisher being prosecuted (i.e. outside of the legal fishing boundaries);

demanding and / or rude communication between survey or survey support vessels and the fishing industry vessel instead of a more educational or explanatory approach; and

failure to report the location of “well” that can lead to trawl gear getting caught and damaged and become both a safety concern for the boat and crew and a time consuming, expensive situation.

COMPENSATIONAs more of the impacts of the petroleum industry are becoming apparent to affected parties, more claims for compensation are surfacing. These are currently handled in separate processes, and WAFIC recommend NOPSEMA be empowered to regulate and coordinate or supervise a fair and transparent process under the Regulation for compensation claims.

Example 1. Chevron’s Wheatstone project at Onslow using an independent advisory group to apply principles of the Fisheries Adjustment Schemes Act 1987 and an independent financial advisor, with the final decision being made by Chevron itself. This process has recently paused while methods for determining the cost to the fishing industry are explored.

Example 2. The operators of the company in the case study at Attachment 2, recently suggested to concerned WCDSF operators to wait until after the MSS to determine what the loss in income was, and then apply to the company for loss of earnings. It was explained to the company this process would not be suitable (see Attachment 7). WAFIC recommends post-event approaches should be eliminated from consideration in Regulation of compensation mechanisms, in favor of the use of catch history information.

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PROTECTED AND NO GO AREASSome areas of the ocean are more critical than others to the viability of fishing businesses. Fishers rely on a keen knowledge of such information from decades of experience, to maintain businesses viability and they may rely more heavily on those areas when times are lean.

Concern has been raised that NOPSEMA have approved an activity that allows a seismic survey to go ahead over one of these locations despite the protests raised. In this case there are also longer term impact considerations as at least one of the key target fish species may be particularly venerable to pressure waves, sounds waves and disturbance. This is also occurring at the end of the peak spawning time when recruitment can be expected to be at its peak, potentially affecting both spawning success and recruitment success that could affect several generations to come.

Areas such as this should be broadly identified (as specific information would expose commercial in confidence type information) and given protection from the potential impacts of petroleum activities such as MSS and drilling. This protection should stay in place until a time where these activities can be shown to have negligible impacts on fishing business economics, biological and physiological impacts on the fish species the industry relies on, and the wider environment. This would be appropriate application of the precautionary principle.

A process for the exclusion of petroleum industry activity from such areas would be appropriate in the Regulation under review and the fisheries management legislation does not control activity in of the petroleum industry.

OTHER CONCERNS1. Information on a fisherman’s location of catch is key to the success of his business and a

commercial in confidence consideration that is ignored in the consultation process. Operators expect that potentially affected parties will reveal all the information about what stocks are where, and when, so the operator can account for those factors and make decision on how they may or may not deal with the inconvenience of any interactions. This is usually at the fisher’s expense.

2. Fishers in general, like other primary producers, depend on the whim of the weather, season changes, markets, availability of skilled crew, and much more to remain viable. All factors that influence the fishing business make this business viability difficult, complex and usually part of a long-term investment plan in order to make a living. These factors should be respected when dealing with the fishing industry and determining potential impacts, along with the variation in the industries age, communication limitations and literacy capabilities when determining not only impacts, but consultation.

3. The principles of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC), under section 3A, refer to longer-term serious or irreversible concerns such as inerter- generational equity and threats of serious or irreversible environmental damage, or impacts on biological diversity and ecological integrity. However, they do not include all potential impacts caused by all petroleum industry activities and are not necessarily of the right time frame or magnitude to detect the type of impact that could have an significant economic impact on potentially affected parties, and should not be used as such.

For example, in the notification of an activity of drilling or a Marine Seismic Survey (MSS), operator should not assume receiving a permit or approval for an activity from the Department of Sustainability, Environment, Water, Populations and Communities (DSEWPaC) means the activity is certain to go ahead or that the operator has a cart blanch approval on all environmental impacts, or can negate the need to address concerns raised through consultation.

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4. Recently, one operator received an exemption from the WA Department of Fisheries to interfere with fishing gear (normally illegal under the FRMA s 118 with a $25, 000 penalty or 12 months imprisonment). Allegedly the Department of Fisheries approved an Exemption as fishers consulted were agreeable to the application. However, no other parties involved in the consultation up until that point were made aware (WRLC, WAFIC, WCDSF) and the operator had only contacted a portion of the potentially affected people to discuss that option and seek support for it. As would be expected, fishers are now contacting WAFIC asking how this is possible and again this is creating division between both the petroleum sector and the fishing industry.

As you are aware EFFECTIVE CONSULTATION IS A MUST.

WAFIC believes operators are not all consulting appropriately and effectively. WAFIC suggest the regulation be used to define best practice consultation. This will allow operators to know how to achieve effective consultation without dividing the industries, and know how they will be assessed by NOPSEMA.

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