South-east Marine Parks Network Draft Management Plan

Submission on the South-east Marine Parks Network
Draft Management Plan

14 November 2024
About EDO

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Submitted to:

Australian Marine Parks
Department of Climate Change, Energy, the Environment and Water
Commonwealth of Australia
By email: SEReview@dcceew.gov.au
Uploaded at: the Parks Australia Consultation Hub

For further information on this submission, please contact:

Rachel Walmsley
Deputy Director, Policy and Law Reform
T:
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Acknowledgement of Country
The EDO recognises First Nations Peoples as the Custodians of the land, seas, and rivers of
Australia. We pay our respects to Aboriginal and Torres Strait Islander Elders past, present, and emerging, and aspire to learn from traditional knowledge and customs so that, together, we can protect our environment and cultural heritage through both Western and First Laws. In providing submissions, we pay our respects to First Nations across Australia and recognise that their
Countries were never ceded and express our remorse for the deep suffering that has been endured by the First Nations of this country since colonization.
Executive Summary

The Environmental Defenders Office (EDO) welcomes the opportunity to comment on the South- east Marine Parks Network Draft Management Plan (Draft Management Plan). EDO has a long history of engagement on the regulatory framework for marine conservation and management in
Australia, recognising the global significance of our iconic marine environment.

While we recognise there are a range of issues that need to be clearly addressed in an effective management plan, this submission focuses on safeguarding marine ecosystems from the impacts of industrial activities, including mining, petroleum extraction, and carbon capture operations.
The EDO welcomes the industrial activity restrictions. We support key prescriptions within the
Draft Management Plan, such as the prohibition on mineral seabed mining and carbon capture and storage, and make recommendations to strengthen prescriptions to more comprehensively exclude mining, petroleum-related activities and pipelines across all zones.

Furthermore, this submission emphasizes the importance of upholding the rights of First Nations communities through meaningful consultation and the implementation of Free, Prior, and
Informed Consent for any activities impacting their interests. Finally, the EDO recommends strengthening approval criteria for exceptional activities, ensuring that all risks and impacts are comprehensively assessed and managed to the highest standards. Through these recommendations, the EDO aims to enhance the Draft Management Plan’s effectiveness in preserving the unique environmental and cultural values of the South-east Marine Network.

Summary of Recommendations:
1. To remove Prescriptions that allow for petroleum activities within the South-east
Network and to insert a Prescription that states petroleum activities are not allowed
anywhere in the South-east Network.
2. To remove Prescription 4.3.8.8 and to insert a Prescription that prohibits the
construction and operation of pipelines for the purposes of mining activities within all
zones in the South-east Network.
3. To remove Prescription 4.3.9.3 and to insert a Prescription that prohibits the
construction and operation of pipelines for the purposes of carbon capture and storage
operations in the South-east Network.
4. To include a Prescription that where the Director determines that there are risks,
impacts or benefits to First Nations people by a proposed, the Director must consult
with and obtain the free, prior and informed consent of such affected First Nations
peoples.
5. Establish clear guidance and objective criteria to clarify what constitutes ‘as low as
reasonably practical’ and what is ‘acceptable.’
6. Expand Prescription 4.4.1.2 to allow for a broader range of considerations of impacts
and risks within the Director’s assessment.
7. Ensure that authorisation of activities not otherwise allowed under the plan is strictly
limited and Prescription 4.5.1.2(d) be expanded to ensure comprehensive assessment of
risks as well as impacts - requiring that the proponent has demonstrated, to the
satisfaction of the Director, that the impacts and risks from the activity are reduced and
mitigated to as low as is reasonably practicable, consistent with clear criteria and
guidance.
8. That Prescription 4.5.1.2 include clear criteria that must be met where the proponent
has demonstrated, to the satisfaction of the Director, that the impacts and risks of the
proposed activity are of an acceptable level.

Introduction

As noted, EDO has a long history of engagement on the regulatory framework for marine conservation and management in Australia, recognising the global significance of our iconic marine environment.1

We support increased marine protections to achieve and surpass Australia’s 30x30 commitments under the Global Biodiversity Framework. The need for improved protection is both in area and zoning level. In this context, EDO supports the creation of 1 1 new marine sanctuary areas across the 10 parks, and expanded bioregional representation. Conversely, we do not support the reduction on the level of protection for by downgrading 11,000 km² of sanctuary zones in Flinders
Marine Park.

While we recognise there are a range of issues that need to be clearly addressed in an effective management plan, for the purpose of this submission we focus on the Prescriptions within the
Draft Management Plan that relate to industrial activities for offshore gas and oil operations in the
South-east Network, particularly those contained in sections 4.3.8 and 4.3.9. It also focuses on
Prescriptions relating to the Director’s powers to make decision on certain activities and the granting of certain authorisations, permits and licences.

Mining Operations (s 4.3.8)

The EDO strongly supports Prescription 4.3.8.1 to prohibit mineral seabed mining anywhere in the
South-east Network. This accurately reflects the dangers and damage inherent in such activities that pose unacceptable risks to the environment.

The EDO also welcomes the intention of the Draft Management Plan to ban a significant amount of industrial activity within the region, including Prescription 4.3.8.2 that bans petroleum activities under new exploration permits or special prospecting authorities granted after the commencement of the plan. However, the EDO believes that there should be no caveats or exceptions provided in relation to the allowance of petroleum activities, and as such, there should be a total ban on petroleum exploration and production within the South-east Network. This includes petroleum exploration and production:

• for multiple use zone and special purpose zone
• for proponents seeking retention or production licences following exploration permits
granted prior to the commencement of the management plan
• for those with existing petroleum titles or subsequent titles resulting from existing
petroleum titles

1
See www.edo.org.au for previous submissions and law reform reports including: More than just fish and ships - The case for an Oceans Act - Environmental Defenders Office
The EDO does not support ‘allowable petroleum activities’ in the South-east Network and therefore not supportive of Prescriptions 4.3.8.3 and recommends its removal from the Draft
Management Plan.

Recommendation:

To remove Prescriptions that allow for petroleum activities within the South-east Network and
to insert a Prescription that states petroleum activities are not allowed anywhere in the South-
east Network.

Further, the Draft Management Plan allows for the construction and operation of oil and gas pipelines within all zones, including otherwise fully protected marine sanctuaries. The EDO is of the view that this poses unacceptable direct impacts to the environment, as well as the potential risks of accidents, spills and leaks in these areas. The installation and presence of pipelines carrying petroleum fluids poses the following risks:
(a) Increased turbidity of marine waters due to trenching and dredging activities during
pipeline installation and burial: The potential use of equipment such as a cutter suction
dredger will create high sediment plume release rates. Such high sedimentation will
undoubtedly increase turbidity of the water column and may cause sediment
inundation, smothering benthic organisms in the vicinity.
(b) Pipeline leakage or rupture: Any leaks of hydrocarbons into the marine environment,
particularly ecosystems with high environmental value such as marine parks, will pose
the threat of chemical contamination of marine water, with a consequent risk to animal
and human health (particularly if the affected species in the impacted area(s) are fished
for human consumption).
(c) An increase in marine traffic due to pipeline trenching and/or dredging activities may
increase the likelihood of vessel collisions or accidental releases of contaminants, as
well as increased risk of harm to marine animals through vessel strike.
(d) Cumulative impacts may occur if multiple pipelines are to be installed across one
marine park.

We note that spills and leaks from pipelines are unfortunately a common occurrence within the petroleum industry. For example, in 2024 alone, ExxonMobil Australia reported two hydrocarbon spills due to pipeline ruptures occurring in separate projects, one being off the Victorian coast at the West Kingfish platform and the second being in the Bass Strait. Such occurrences pose an unacceptable risk to these protected areas and should not be allowed within a regulatory scheme that aims to protect the marine park network.

Recommendation:

To remove Prescription 4.3.8.8 and to insert a Prescription that prohibits the construction and
operation of pipelines for the purposes of mining activities within all zones in the South-east
Network.
Offshore Geological Storage of Carbon Dioxide (s 4.3.9)

The EDO strongly supports Prescription 4.3.9.1 to prohibit the permanent storage of carbon dioxide under the seabed. The EDO is also supportive of Prescription 4.3.9.2 to ban geological storage surveys within the region.

For the reasons stated above, the EDO is of the view that no pipeline construction or operations should occur within the South-east Network, and as such, opposes Prescription 4.3.9.3 that allows for this to occur in relation to activities for the purposes of carbon capture and storage operations.

Recommendation:

To remove Prescription 4.3.9.3 and to insert a Prescription that prohibits the construction and
operation of pipelines for the purposes of carbon capture and storage operations.

Making Decisions about Activities (s 4.4)

Prescription 4.4.1.1 outlines the matters the Director must consider before authorising a proposed activity, which includes the potential impacts, risks and benefits to First Nations people. The EDO is supportive of this provision but believes it should be strengthened by requiring that where it is determined that First Nations people’s interests will be impacted by a proposed activity, the
Director is required is to consult with such affected people and obtain their free, prior and informed consent (FPIC) before being able to grant authorisation.

The Draft Management Plan provides that the Director “is committed to respecting the cultural authority of First Nations people for their cultural values and will seek the free, prior and informed consent of First Nations people before recording, storing or sharing information on cultural values” (p 37). The EDO is of the view that this duty should extend to not just the management of information provided by First Nations people, but to matters of decision making in relation to activities.

The duty to obtain free, prior and informed consent is drawn from article 32(2) of United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by Australia on 3 April 2009, and noted in the schedule to the Draft Management Plan (p130). FPIC is grounded in the fundamental rights to self-determination and to be free from racial discrimination guaranteed by at least three treaties that Australia is a party to: the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights and the International
Convention on the Elimination of All Forms of Racial Discrimination.2 When a First Nations person or community is identified as their interests being potentially impacted by a proposed activity, consultation based on FPIC should be mandatory. The process by which FPIC is obtained must be

2
Human Rights Council, Study of the Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, UN Doc A/HRC/39/62, (10 August 2018) < https://documents-dds- ny.un.org/doc/UNDOC/GEN/G18/245/94/PDF/G1824594.pdf?OpenElement> [3].
ongoing, with decision-makers seeking input throughout the decision making process.3 Through
FPIC, First Nations peoples should be able to influence the outcome of decision-making processes affecting them which is more than a ‘mere right to be involved’ or to simply ‘have their views heard’.4 This means that through consultations, First Nations peoples must have the ability to alter the decision at issue or to develop accommodations of which they are satisfied meet their interests at stake.

Recommendation:

To include a Prescription that where the Director determines that there are risks, impacts or
benefits to First Nations people by a proposed, the Director must consult with and obtain the
free, prior and informed consent of such affected First Nations peoples.

Additionally, we note that Prescriptions 4.4.1.2(a) and (b) require the Director to be satisfied that potential impacts and risks will be avoided or reduced to as low as reasonably practicable and so that they are acceptable. As these are subjective tests for the decision-maker, we recommend that clear guidance and objective criteria be established to clarify what constitutes ‘as low as reasonably practical’ and what is ‘acceptable.’

Recommendation:

Clear guidance and objective criteria be established to clarify what constitutes ‘as low as
reasonably practical’ and what is ‘acceptable.’

Further, EDO believes that the Prescription should be broadened beyond ‘marine park values’ and
‘marine park values and representativeness’ as is currently proposed. The consideration
Prescription should encompass all impacts and risks associated with the proposed activities so that other important affected stakeholders and considerations are included in the Director’s consideration.

Recommendation:

Expand Prescription 4.4.1.2 to allow for a broader range of considerations of impacts and risks
within the Director’s assessment.

EDO supports Prescription 4.4.3.2 that allows for an affected person to apply to the AAT for review of a reconsidered decision.

3
See for example, Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Mexico, CERD/C/MEX/CO/16-17 (4 April 2012) [16]-[17]. (“effective” consultations must be carried out “at each stage of the process”).
4
Human Rights Council, Study of the Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, UN Doc A/HRC/39/62, (10 August 2018) < https://documents-dds- ny.un.org/doc/UNDOC/GEN/G18/245/94/PDF/G1824594.pdf?OpenElement> [15].
Authorisation of activities (s 4.5)

Prescription 4.5.1.2(d) addresses when a Director may authorise an activity that would otherwise not be allowed under the management plan. EDO submits that this should be an extremely limited option, otherwise the proposed restrictions on activities may be undermined.

Under subsection (d), the proponent must demonstrate that the impacts from the activity must be reduced and mitigated to as low as is reasonably practicable. The EDO is of the view that this
Prescription should also contain the requirement that the potential risks of the activity are also assessed, and must be demonstrated as meeting the same criteria. Without considering the potential risks of such proposed activities, in a context where the activity is already being an exception to what is ordinarily permissible and thus likely to be of potentially high impact, there is a danger that essential hazards and considerations will not be fully assessed. Including risks as a criterion in the Director’s determinations would then accurately reflect the high level of approval that must be obtained in order to carry out activities that would otherwise be unauthorised under the management plan. We reiterate that the plan must make clear that the use of this exception should be strictly limited, with a high degree of rigour and transparency for any decision-making under this Prescription.

Recommendation:

That authorisation of activities not otherwise allowed under the plan be strictly limited and
Prescription 4.5.1.2(d) be expanded to ensure comprehensive assessment of risks as well as
impacts - requiring that the proponent has demonstrated, to the satisfaction of the Director,
that the impacts and risks from the activity are reduced and mitigated to as low as is reasonably
practicable, consistent with clear criteria and guidance.

In addition to this, the EDO recommends that an additional criteria is included in Prescription
4.5.1.2, such that the proponent has demonstrated that the impacts and risks of the proposed activity are reduced to an acceptable level. This is in line with other standards contained within the regulatory regime and ensures the criteria the Director must be satisfied of accurately reflects the seriousness in which permission may be granted to carry out activity that would otherwise be prohibited under the management plan.

Recommendation:

That Prescription 4.5.1.2 include clear criteria that must be met where the proponent has
demonstrated, to the satisfaction of the Director, that the impacts and risks of the proposed
activity are of an acceptable level.

EDO supports Prescription 4.5.5.1 that requires the Director to publish the authorisations issued under the plan. This will promote better transparency, engagement and community awareness of such activities.
Conclusion
In conclusion, the EDO strongly advocates for a robust, precautionary approach in managing activities within the South-east Marine Network. We commend the Draft Management Plan’s prohibitions on mineral seabed mining, carbon capture and storage and new petroleum exploration but urge for a total prohibition on petroleum activities and related activities without exceptions. We recommend the removal of allowances for pipeline construction and operation related to both petroleum and carbon capture storage activities, given the significant environmental risks and historical precedent of spills and leaks.

The EDO also calls for enhanced protections for First Nations people, recommending that the
Director be required to obtain FPIC from affected First Nations communities before authorising any activities that may impact their interests. This ensures adherence to international human rights standards and allows First Nations people a meaningful role in decision-making processes.

Lastly, the EDO recommends strengthening the criteria for authorising exceptional activities, ensuring comprehensive assessments of risks and impacts. Expanding the scope of impact assessments to encompass all relevant considerations and requiring that activities meet stringent risk-reduction and acceptability standards will uphold the integrity and protective purpose of the
South-east Marine Network.

These recommended amendments will enhance the Draft Management Plan's effectiveness, ensuring the highest standards of environmental stewardship, cultural respect, and risk management for the long-term preservation of this critical marine environment.

Thank you for the opportunity to make this submission.
Please do not hesitate to contact our office should you have further enquiries.