Many Traditional Owner groups around Australia are contemplating new offshore wind and renewable energy developments being proposed for 'sea country'.
Recent court case recognises ‘rights holders of the sea’
The recent (2022) decision of the Federal Court of Australia in Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) involved review of a decision of a delegate in the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGSA) to accept an environment plan which did not set out relevant information regarding consultations with Traditional Owners required for that plan.
A Tiwi Island Traditional Owner asserted that he and other Traditional Owners have sea country in the area relevant to the environment plan and were not consulted in the manner required for preparation and acceptance of an environment plan under the OPGGSA.
Asserted rights to that sea country were based upon long standing spiritual connections, as well as traditional hunting and gathering activities in which they and their ancestors had engaged.
The Court held that NOPSEMA failed, in accordance with the OPGGSA Regulations, to assess whether the environment plan demonstrated that the company concerned had consulted with each person that it was required to consult with under those regulations.
There are other laws that apply to Commonwealth areas, States and Territories as well as activities undertaken by people in Australia that may be relevant to protecting, managing and enhancing Traditional Owner rights and interests (including traditional knowledge) in, and cultural values relating to, sea country.
Our new paper summarises key legislation relating to Aboriginal and Torres Strait Islander peoples’ rights and interests in ‘sea country’ - that is, in offshore areas or Commonwealth waters.
It reviews a number of Commonwealth Acts including the Offshore Electricity Infrastructure Act 2021, the Native Title Act 1993, Environment Protection and Biodiversity Conservation Act 1999, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and the Underwater Cultural Heritage Act 2018.