Native title year in review 2024-2025

What you need to know

• Proactive engagement with First Nations peoples about offshore projects is increasingly the focus of policy and legislative reform at both the Commonwealth and State/Territory level.
• New regulations in the offshore wind sector, and updated guidance in the offshore oil and gas space, highlight the importance of appropriate consultation with First Nations peoples.

What you need to do

• Ensure that consultation with First Nations people and groups is carried out in accordance with the latest regulations and applicable guidance documents.
• Be open to looking at approaches in other offshore industries if there are gaps.
• Actively identify First Nations peoples who will be affected by your project and undertake consultation that is genuine, transparent and fit for purpose.

First Nations consultation requirements for offshore projects

Proactive engagement with First Nations peoples is increasingly the focus of policy and legislative reform at both the Commonwealth and State/Territory level, including in the offshore projects space. In the last 18 months:

• May 2024 - NOPSEMA, Australia's offshore regulator for oil and gas projects, updated its Consultation Guidelines following a number of Federal Court proceedings which considered consultation with First Nations peoples in the context of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (OPGGS Regulations)).
• August 2024 - DCCEEW released draft Technical Guidelines on the Archaeological Assessment of First Nations Underwater Cultural Heritage in Commonwealth Waters, which identify methods for finding and assessing First Nations underwater cultural heritage (Draft First Nations UCH Guidelines).
• December 2024 - Amendments to the Offshore Electricity Infrastructure Regulations 2022 (Cth) (OEI Regulations) commenced, requiring offshore wind project proponents to make reasonable efforts to identify and consult with First Nations peoples or groups with interests in, or management functions related to, the proponent's relevant licence area or an area adjacent to a licence area.
• Early 2025 - Offshore Infrastructure Regulator, Australia's regulator for the offshore wind development, published its Guidance Note: Consultation and engagement for OEI management plans (Offshore Wind Consultation Guidance Note)

The regulatory regimes have some notable differences, including in respect of consultation requirements in the OEI Regulations and the OPGGS Regulations. However, they are generally moving in the direction of broader, more meaningful consultation and a requirement that risks to underwater cultural heritage are well understood as part of any project assessment. It seems that the OEI Regulations, with its more prescriptive approach, have sought to take some of the guesswork out of the consultation requirements following the Federal Court's 2023 examination of the OPGGS Regulations (see below).

Consultation under the OEI Regulations for offshore wind projects

As explained in our 9 April 2025 alert, "Consultation requirements in Australia's offshore wind space", a proponent who has obtained a licence under the OEI Regulations for an offshore wind project must obtain approval of a management plan prior to undertaking any licence activities. For management plan requirements see our 19 February 2025 alert, "Australia finalises new regulations for offshore wind projects". In the process of preparing the management plan, proponents must "make reasonable efforts to identify and consult" with persons, communities and groups that may be affected by the activities covered by the management plan (reg. 64). This gives rise to the question of who to consult with and how.

The OEI Regulations address the "who" question with some particularity, by including specific categories of Aboriginal and Torres Strait Islander people or groups (reg. 64):

• Aboriginal or Torres Strait Islander peoples or groups that the licence holder reasonably considers may have native title rights and interests in the licence area, or areas of land or water that are adjacent to the licence area.
• Aboriginal or Torres Strait Islander organisations established under a law of the Commonwealth/State/Territory that the licence holder reasonably considers to have functions related to managing, for the benefit of Aboriginal or Torres Strait Islander people, land or water in the licence area, or that are adjacent to the licence area. This may include land councils established under Commonwealth and State laws.
• Aboriginal or Torres Strait Islander organisations or groups that the licence holder reasonably considers to be parties to agreements related to land and water rights for Aboriginal or Torres Strait Islander people (under the Native Title Act 1993 or any law of a State), where rights relate to land or water in the licence area, or areas of land or water adjacent to the licence area. An example of the type of agreement that may be relevant is an Indigenous Land Use Agreement made for the use and management of land and water which is in the licence area, or adjacent to it.
• Communities that are located adjacent to the licence area which the licence holder reasonably considers may be directly affected by the activities subject to consultation.

At one level, there is useful detail in this list, but the identification task is not straightforward. It requires some careful analysis of the interest holder landscape. Certainly, its seems that proponents are encouraged to go wide in these discussions.

As to what constitutes adequate "consultation", the Offshore Wind Consultation Guidance Note acknowledges that "[c]onsultation occurs on a spectrum ranging from providing access to information, through to full empowerment of the stakeholders to make decisions" and states that proponents "may engage to the extent they consider appropriate however at a minimum… must be able to demonstrate that the regulatory requirements have been met." These regulatory requirements include (reg. 65):

• giving sufficient information to allow an informed assessment of any reasonably foreseeable effects of the proposed activities; and
• giving a reasonable period for the consultation.

Further, the Offshore Wind Consultation Guidance Note makes clear that what is reasonable will not be the same in all circumstances. Consultation undertaken in relation to approved offshore gas and oil projects provides some guidance on what appropriate consultation with First Nations peoples for offshore wind projects may look like.

Finally, it is important to recall that the consultation requirements under the OEI Regulations are legally distinct from requirements to engage with First Nations people under other legislation, such as the Native Title Act 1993 (Cth) or applicable cultural heritage or land rights legislation. On the ground, though, there are likely to be ways to co-ordinate engagement.

Consultation requirements for offshore oil and gas projects

What consultation does the OPGGS Regulations require?

OPGGS Regulations, which predate the OEI Regulations, require that proponents, in the course of preparing an environment plan for an offshore oil and gas project, must consult with persons or organisations whose functions, interests or activities may be affected by the activities to be carried out under the environment plan (a relevant person) (reg. 25). An environment plan must be approved by NOPSEMA before a proponent can undertake any of its proposed activities.

As is well know, the OPGGS Regulations received a lot of judicial attention in 2023 (see below). It is now absolutely clear that First Nations people and groups, and their representatives, such as land councils and prescribed body corporates, may be relevant persons whose functions, interests and activities may be affected by activities proposed in environment plan.

Similar to the OEI Regulations, the OPGGS Regulations also requires that relevant persons are given sufficient information to allow them to make an "informed assessment of the possible consequences" of the activity on the functions, interests or activities of the relevant person and that a reasonable period of time is provided for consultation (reg. 25(2) and (25(3)).

The OPGGS Regulations have not been amended following their examination by Federal Court in 2023. It does appear though, that the 2024 OEI Regulations, with their more prescriptive approach, are intended to be simpler for proponents to apply.

Updated consultation guidance from NOPSEMA

Those operating under the OPGGS Regulations do, however, have the benefit of the NOPSEMA Consultation Guidelines. These were published following the Full Federal Court appeal decision in Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 and subsequent Federal Court judgments in Cooper v NOPSEMA (No 2) [2023] FCA 1158 and Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9. We summarise these decisions in our Native Title Year in Review 2023-2024 article, "Further litigation of First Nations consultation rights for offshore projects in the wake of Tipakalippa".

The Consultation Guidelines set out what NOPSEMA will take into consideration when deciding whether the consultation requirements in the OPGGS Regulations have been met. In particular, they state that proponents must demonstrate that a reasonable opportunity to be consulted has been afforded to First Nation groups. Where interests are held communally (such as native title rights), NOPSEMA expects that reasonable notice be provided to group members but does not expect that exhaustive communications will occur with each and every person.

The Guidelines explain that determining whether "interests" have a communal or collective dimension relies on engaging with individuals who hold the relevant knowledge. It is important to assess what accurately reflects the views of the group in the proper cultural context, which includes identifying and engaging with those who are generally recognised as having the authority to speak on behalf of the group. Proponents may need to seek assistance from a suitably qualified expert to assist in making this assessment.

Statements of reasons published by NOPSEMA

Recent statements of reasons published by NOPSEMA that approve environment plans suggest that reasonable ways to identify and consult with affected persons and groups may include:

• desktop studies of relevant databases (ie to identify relevant peoples, groups or organisations);
• reaching out directly to relevant organisations or people via email, mail or phone;
• advertising in national, state and local newspapers to invite engagement;
• publishing information in relation to the activity on the proponent's website and providing contact details;
• reaching out to groups to determine the best way to engage; and
• running various community information sessions, genuinely engaging with attendees and recording contact information of attendees.

Consultation pursuant to the Draft First Nations UCH Guideline

The Draft First Nations UCH Guidelines encourage proponents to undertake genuine and culturally appropriate consultation with First Nations People. Our article "First Nations underwater cultural heritage under increasing scrutiny" describes the Draft First Nations UCH Guidelines in detail.

In respect of First Nations consultation, the Draft First Nations UCH Guidelines identifies the following key principles for genuine engagement (amongst others):

• engaging genuinely and respectfully, ideally through co-designing appropriate engagement protocols appropriate for the situation;
• engaging actively and directly, rather than relying on social media or other public announcements to share information or invite interest; and
• engaging collaboratively, meaning that all relevant information is provided to First Nations stakeholders and sufficient time provided to allow them to make informed assessments and decisions.

However, the Draft First Nations UCH Guidelines note that there is no "one size fits all" approach to First Nations consultation.

Key insights: how should consultation occur?

Considered together, these distinct legislative regimes can assist proponents to determine how to appropriately consult First Nations people in relation to offshore projects more generally. Each operates in their own regulatory environment. However, there are some generally applicable learnings:

• The work of identification of 'consultees' largely falls on the proponent.
• Simply relying on public notices and allowing individuals to self-identify and opt in to consultation is unlikely to demonstrate adequate representation or ensure a reasonable chance to participate.
• Ensure sufficient information is provided to allow First Nations peoples to be fully informed and understand the proposal and how it may affect them.
• Tailor the information to suit the needs of the relevant persons being consulted, including tailoring the information so it is readily understood.
• Allow sufficient time for consultation, based on the specific persons or group's particular circumstances.
• Consider co-designing appropriate engagement protocols prior to undertaking consultation.
• Ensure that the information and opinions obtained through consultation are actively considered.

Offshore project proponents should see consultation with First Nations peoples as an opportunity to help identify or narrow key cultural heritage, environmental and social issues arising in relation to the project at an early stage, and as a means by which to enhance the project's social licence to operate.

Other Author: Miranda Aprile, Lawyer.

Want to know more?

• Consultation requirements in Australia's offshore wind space, 9 April 2025
• Australia finalises new regulations for offshore wind projects, 19 February 2025
• Further litigation of First Nations consultation rights for offshore projects in the wake of Tipakalippa, 6 June 2024
• Full Court Tipakalippa decision – stakeholder consultation grows teeth, 25 July 2023