consultation and the principles of good decision …...the purpose of my presentation this afternoon...

$: Consultation and the principles of good decision …...The purpose of my presentation this afternoon is to share some of NOPSEMA’s recent experiences and insights regarding stakehol\$
Consultation and the principles of good decision making

APPEA HSE Conference Alice Turnbull Environment Specialist– Assessment and Compliance NOPSEMA

Presenter

Presentation Notes

Speaking time = 25 minutes

Introduction

• We have raised the bar (and this is why) • Principles of good decision making & good

consultation • A means, rather than an end • Transparent and respectful • Continuous and iterative • Conclusion

2 A434723 8 September 2015

Presenter

Presentation Notes

The purpose of my presentation this afternoon is to share some of NOPSEMA’s recent experiences and insights regarding stakeholder consultation and how good consultation is essential to making a good decision. NOPSEMA is in a fairly unique position to be able to see the range of consultation activities undertaken by industry and the range of responses from stakeholders to different situations and circumstances. One of the key take home messages for us over the past 18 or so months (particularly since EPBC streamlining came into effect) has been that good consultation is the foundation of social licence. That is, both the industry’s social licence to operate and NOPSEMA’s social licence to regulate.

We have raised the bar (and this is why)

3 A434723 8 September 2015

EPBC streamlining commences

Increased correspondence, feedback and complaints

External stakeholders give feedback that they don’t like and don’t trust the ‘new process’

Coordinated protest campaigns over some activities

We all need to

get better at this

Presenter

Presentation Notes

Many of you in the audience today will have been working with NOPSEMA since its inception in 2012. Many of you will have noticed, particularly over the past 18 months, that our expectations around stakeholder consultation and our focus on the issue have increased in this time. You are right, it has. Implementation of the Program endorsed under Part 10 of the Environmental Protection and Biodiversity Conservation Act 1999 (commonly known as EPBC streamlining, or the Program) was a bit of a watershed for NOPSEMA in terms of external stakeholder interest in our role as a regulator. Prior to February 2014 many (but not all) offshore petroleum activities were referred under the EPBC Act, as well as submitting an EP to NOPSEMA, and were subject to public notification during that assessment process. Most of the public concern over these activities was expressed during the public comment period or directly to the Minister for the Environment. After February 2014, in the eyes of some, this open and transparent process appeared to be dismantled and a black box placed over the environmental assessment of the offshore oil and gas industry. Instead of a clear public comment period that anyone could access, provided they knew where to look this, ‘new regulator’, NOPSEMA, was now telling stakeholders to go and talk directly to the titleholders they trusted even less than the government. NOPSEMA started to receive the feedback and concerns that were previously directed towards the Department of Environment. This has included various protest campaigns, requests under the Freedom of Information Act and formal complaints that have been investigated by NOPSEMA. At the same time, titleholders are submitting more strategic EPs designed to offer them more flexibility in the way they carry out their activities but this comes with inherent uncertainty and an increased need to rely on processes for ongoing consultation. The bottom line from all of this? People care, they want to have a say in how the marine environment is affected by the oil and gas industry and they have valuable context to add to the environmental assessment process.

In principle…

4 A434723 8 September 2015

Principles of good decision making

• Within power • Fair • Relevant • Reasonable • Well-founded • Clear

Principles of good consultation

• Continuous • Broad-based • Accessible • Not burdensome • Transparent • Consistent and flexible • Evaluation and review • Not rushed • A means, rather than an

end Source: summarised from Administrative Decisions (Judicial Review) Act 1977

Source: Australian Government Guide to Regulation (Department of Prime Minister and Cabinet 2014)

Presenter

Presentation Notes

For NOPSEMA to continue to regulate effectively we must ensure that the decisions we make conform to the principles of good decision making. Equally, as industry makes decisions on their activities every day, these same principles (really just a good dose of common sense) are equally as relevant. When it comes to making decisions, either as a regulator or as a titleholder, consultation becomes a crucial part of that decision making: How can we ensure that our decision is fair to all persons affected by it unless we are aware of the interests and functions of stakeholders? How can we ensure that the information we use to make our decision is relevant and well-founded if we aren’t aware of the concerns and priorities of everyone affected? How can we ensure that our decisions are reasonable unless we have all the facts on the table, from everyone affected by our decision? There are plenty of publications and papers out there which discuss the principles of good decision making and even more on the principles of good consultation. However, NOPSEMA is bound by the Administrative Decisions (Judicial Review) Act 1977 – which dictates how administrative decisions, such as accepting an EP, must be made. NOPSEMA is also required to consider the Australian Government Guide to Regulation, which actually contains quite a good set of guiding principles for consultation.

In principle…

5 A434723 8 September 2015







etc.

Presenter

Presentation Notes

It doesn’t take much effort to recognise that the principles of good decision making are intrinsically linked to the principles of good consultation and that all of these principles contribute to the sort of process that maintains and builds a social licence.

In principle…

6 A434723 8 September 2015







Presenter

Presentation Notes

Through NOPSEMA’s assessment and inspection functions there have been three consultation principles in particular that, if not done well, have resulted in increased stakeholder concern and adverse findings during NOPSEMA’s decision making. That is not to say that no titleholders follow these principles – or that this is a magic bullet that will eliminate all disgruntled opinions – but in our experience, these are the top three that we all need to work on.

A means, rather than an end

7 A434723 8 September 2015

• Process vs outcome • Process + outcome

or sometimes

• Process (- outcome)

Process matters

Consultation under the OPGGS (Environment) RegulationsTitleholder Relevant PersonsNOPSEMA

Identify and engage with relevant persons

New Activity

Communicate functions, interests and activities to titleholder

Provide sufficient information and time to allow for an

informed assessment of how functions interests and activities

affected

Make an assessment of potential impacts and raise any objections or

claims

Assess the merits of objections or claims

Determine response or proposed response and provide to relevant

person

Prepare and submit EP to NOPSEMA

Determine sufficiency of response and raise any further objections or

claims

Objections and claims appropriately addressed?

Continue to communicate functions, interests and activities

Self identify as a relevant person

Publish details of submission on website

Assess EP

Accept, request modification or refuse EP

Notify Titleholder

Publish decision on website

Publish accepted EP summary on website

Conduct inspections during activity

Commence activityContinue to consult relevant persons throughout activity

If accepted, prepare and submit EP Summary

Where required, modify management of activity in response

to ongoing consultation or regulatory actions

Advise and Promote

Published Policy and Guidance- Consultation requirements- EP Summary requirements

Engagement with titleholders and relevant persons

Manage complaints – inspection, investigation, enforcement as required

Not satisfied with the consultation undertaken after advising titleholder

Presenter

Presentation Notes

This principle is arguably the most important. When it comes to stakeholder consultation, process matters. It’s not a case of process vs outcome, it’s more like process and outcome or in some situations, process – in the absence of an agreed outcome. In the latter case, process becomes critical. Unfortunately, or perhaps inevitably, there is no one-size fits all solution to consultation and different, specific methods (based on the principles of good consultation) will need to be developed in each case. The broad process, however, can be applied in most cases and NOPSEMA has attempted to provide some guidance on this in the Guidance Note on Stakeholder Consultation that is currently up on our website for comment. The diagram on the right is taken from that guidance note. It attempts to illustrate the interactions between stakeholders (the orange column), titleholders (the blue column) and NOPSEMA (the grey column).


8 A434723 8 September 2015

Right People

Right Information

Process

Right Time

Presenter

Presentation Notes

All of that a bit much for a power point slide though so instead we can distil it into an easier to remember, simpler diagram – it’s about getting the right people, the right information at the right time. The trick is recognising what is ‘right’ for each situation, as everyone has a different perception of risk, informed by their own situation and context. However, the principles of good decision making can be used to help determine what ‘right’ is for a particular circumstance.


9 A434723 8 September 2015

Right people

Right information

Process

Right time

Establish the context

Risk Assessment

Risk treatment

Implement, monitor

and review

Communicate

& Consult

Presenter

Presentation Notes

There is one other important point to make about process – it’s not just about the consultation process in isolation. Stakeholder consultation is a critical step in identifying risks, setting the external context for a risk assessment and informing the likelihood and consequence of each risk. This is particularly true in situations where there is uncertainty surrounding the activity or its impacts.

A means rather than an end

10 A434723 8 September 2015

Presenter

Presentation Notes

To give an example of why process is important for a number of reasons I am going to use a case from onshore oil & gas which continues to be in the news and illustrates why process is just as important for the regulator as it is for the titleholder. In April 2015 Metgasco wanted to conduct exploration on their permit but were being prevented from doing so by a mob of angry protesters. Just hours before the police were going to have to remove the protester blockade, the NSW Resources and Energy minister suspended Metgasco’s exploration permits. This caused an immediate drop in their share prices and, to the state the bleeding obvious, was a bit more than just inconvenient. Purely based on information in the press, I think it is fair to say that Metgasco’s social licence to operate was not at an all-time high at that point. However, on the 24th April the NSW Supreme Court overturned the ministers ruling. Justice Button delivered a judgement that the ruling was ‘not made according to law’ and that procedural fairness had not been implemented. He did, however, note that his ruling related only to the legal processes followed, and not the “desirability” of Metgasco’s activities. In this case the minister did not adhere to the principles of good decision making; that is, he took into consideration irrelevant information – that is, he only considered the outcomes of the consultation (an angry mob), rather than focusing on the attributes or process of the consultation itself. his decision was deemed not to be fair to Metgasco – the decision was made quickly with no warning to Metgasco. In the words of Justice Button, it came like a bolt from the blue This example illustrates some of the consequences of poor consultation for both titleholders, stakeholders and the regulator. For the titleholder the consultation process, while it did not prevent considerable pain, delay and monetary disadvantage (via a falling share price), was essential to demonstrate via the courts that they should be allowed to retain their legal licence to operate, even though it was clear that their social licence to do so was on shaky ground. For NOPSEMA it reinforces the importance of the decision making principles. It means that if the principles of good consultation are implemented via a robust process then it is difficult to make a finding that the consultation is insufficient when considering the principles of good decision making. For stakeholders I will make this point, if they have been transparently included in the consultation process then it is difficult for them to argue that they have not been engaged and those occasions where a stakeholder may choose to absent themselves from the process become clear.

Transparent

11 A434723 8 September 2015

• Process

Step 1

• Process

Step 2

• Process

Step 3

Outcome

Outcome

Outcome

Presenter

Presentation Notes

Which brings me to the next principle that I would like to discuss – the consultation process must be transparent and the dialogue between parties must be respectful. There isn’t a lot that irritates people more and erodes trust and social licence, than contributing in good faith and then feeling like your views have been ignored and your time wasted.

Transparent

12 A434723 8 September 2015

• Process

Step 1

• Process

Step 2

• Process

Step 3

Outcome

Outcome

Outcome

Presenter

Presentation Notes

Part of this transparency is making sure the people you are consulting with can see the process and how they fit into it. The other part of transparency is making sure that people can see the outcome of that consultation and how their views have shaped that outcome.

Transparent process

13 A434723 8 September 2015

No surprises

• Agreed communication methods

• Clear objectives

Broad-based

• Open to all stakeholders

• Stakeholder opt-out, rather than opt-in

Clear, relevant

information

• Complete, understandable and relevant information provided

Presenter

Presentation Notes

Transparency of process can mean a number of different things and does cross-over with the other consultation principles. For instance, undertaking broad-based consultation, at least initially, helps to demonstrate that the process has been open to all stakeholders. In determining who to consult with, the principles of good decision making may help – consider who else has rights and interests in your area of activity, consider whether you have fairly identified and communicated with all potential stakeholders and provided a reasonable and fair opportunity to participate. A good example to illustrate successful, transparent consultation processes can be found in a couple of recent EP assessments for seismic surveys. In both cases the titleholders made an early start on consultation and allowed lots of time for the process to play out. They initially approached a wide range of stakeholders, including local government and multiple fishing groups, to ensure that all relevant persons were identified. They were then able to agree ongoing methods of communication with stakeholders who identified themselves as relevant persons – using a mixture of consultation methods including writing, meetings, phone calls and face-to-face discussions. Stakeholders knew what to expect and how they were going to be engaged. They knew up front what was open for discussion and agreement. There was a transparent process.

Transparent outcomes

14 A434723 8 September 2015

Risk assessment

• Outcomes used to identify risks

• Outcomes used to inform risk assessment

Communicate back to

stakeholders

• Stakeholders know how their views are taken into account

• Direct, meaningful response

Deliver on promises

• Do what you say you will do

• Let people know if circumstances change

Presenter

Presentation Notes

Transparency of outcome – whatever the outcome is – is also important. Stakeholders must be provided with meaningful and appropriate responses. That’s not to say that titleholders must agree or acquiesce in every circumstance (although sometimes that may be appropriate if it will reduce impacts and risks to ALARP). But titleholders may need to have the difficult conversation to explain why they disagree if this is the case. Equally, letting people know where and how the environmental management of an activity has been altered in response to their feedback is also important to build trust and respect. Again, the principles of good decision making can be used to test whether you as the titleholder have done enough in your attempt to reach an agreed outcome – was the information provided clear and relevant, is the position we have reached fair, is it within our power or ALARP to do more? Carrying on from the example used before, in these same cases the outcomes of consultation was communicated back to stakeholders via thorough and meaningful responses to each objection or claim raised. In one case a compensation agreement for a specific affected stakeholder was agreed. This feedback loop was applied to both final outcomes and each step along the way. For example, the titleholder recorded meeting minutes and then went a step further, distributing them and asking participants to acknowledge as an accurate record of the meeting. Each stakeholder understood where their views had been incorporated into the ongoing management of the activity and knew if their claim had been rejected (and why). The outcomes of the process were transparent. These examples are from the assessment of EP so we don’t know yet how well the ongoing consultation and conduct of the activity will play out. However, NOPSEMA would expect the agreed outcomes to be implemented or a new agreement reached. NOPSEMA would also expect this consultation to continue throughout the activity with stakeholders informed of any changes to determine if these changes affect the agreed outcomes. Keeping relevant persons informed throughout the activity is important – on a short but specific note, it is polite (in the least) and may save people some worry if you let them know if the activity has been cancelled. NOPSEMA is aware that stakeholders get anxious if they think a large number of surveys or activities are taking place in their area of interest. The reality is that at least some of these activities never go ahead but the information that stakeholders receive implies that all of them will occur.

Continuous and iterative

15 A434723 8 September 2015


Risk Assessment

Risk treatment

Implement, monitor and

review

Communicate & Consult

Presenter

Presentation Notes

Which brings me to the final principle of good consultation that I would like to touch on today – consultation as a continuous and iterative process. Consultation with stakeholders doesn’t finish when the EP gets submitted or even when it gets accepted. Consultation works best when there is ongoing and meaningful dialogue that builds trust and respect between all parties, throughout an activity. Part of this continuous process is recognising that circumstances change – there may be new stakeholders that are identified, aspects of the activity or its timing may change, the context for relevant stakeholders may change. The need to develop a robust process based on the principles of good consultation isn’t primarily for approval by a regulator – it is primarily to gain and build social licence and reduce the risks to your project. This is as true at the end of the activity as it is at the beginning. An example to illustrate this principle comes from a recent investigation conducted by NOPSEMA. We had assessed and accepted an EP for a relatively small, 2D seismic survey where we actually thought that the consultation conducted prior to EP submission was pretty good. There had been early and genuine two-way engagement between the titleholder and their stakeholders. The feedback provided was treated seriously by the titleholder and in this case resulted in a significant change to the way in which the activity was conducted. It was even recognised by the stakeholder who later complained that it was an excellent example of consultation. Should I have just issued a spoiler alert? During the survey itself, this excellent up front work was eroded by poor implementation. NOPSEMA received a complaint from local fishers that the activity was being undertaken in their trawl area, the promised prior notification had not occurred, the titleholder’s contact person couldn’t be reached and when they did get in touch there was a lot of buck passing and ‘not my job, this other person was supposed to have notified you’. On water communications were also tense and ultimately, after a bit of a vessel standoff, the fisher had to disrupt their activities in a way that was entirely avoidable. As a result NOPSEMA investigated the incident and found that ongoing consultation undertaken by the titleholder was inadequate and did not comply with the arrangements and commitments made in the EP. For some stakeholders, it is appropriate to develop a specific, tailored consultation plan or agreement for ongoing communication and feedback throughout the activity. Particularly where detailed controls are required to ensure that the petroleum activity does not unduly interfere with the rights and interests of the stakeholder. In this case ongoing dialogue is essential to identify changes, reduce uncertainty and to determine if the control measures are being effective (and what to do about it if they aren’t). On the other side of the coin, NOPSEMA has also conducted inspections where ongoing, continuous consultation has been done really well. In this example, the consultation presented in the EP was acceptable but not the best we had seen. We conducted a targeted inspection of consultation commitments for the activity, as part of NOPSEMAs stakeholder engagement and transparency work program, and in this case were pleasantly surprised. The titleholder had been in constant consultation with the two local fishing groups with pre-start notifications and then weekly activity updates. In addition, the titleholder made a point of meeting with these groups in person during crew changes, inviting them on board the seismic vessel, increasing their knowledge of seismic operations and answering questions. They also identified new stakeholders during the course of the activity. Well to be fair, the stakeholder identified themselves by swimming in front of the moored vessel holding a protest sign while their compatriot took photos. The titleholder was able to actively engage with this group of people and allay their concerns to at least to a point where the protesting stopped. In this example the continuous, iterative and flexible consultation resulted in a ‘transformation’ in community attitudes (according to the mayor of the town). To the point where the local fishing group that had previously opposed the activity contacted the titleholder in response to some bad press in the local paper to make the point that this did not represent the views of their organisation. One of the strengths from this example is the multiple methods used to undertake consultation throughout the activity. A combination of face-to-face meetings, vessel visits, emails, phone calls, web-based and SMS communications meant that all stakeholders could be communicated with in a way that suited them and met their needs. An effective consultation process must be a sustainable one that allows it to continue for all parties involved.

Conclusion

16 A434723 8 September 2015

• Process

Step 1

• Process

Step 2

• Process

Step 3

Outcome

Outcome

Outcome


Risk Assessment

Risk treatment

Implement, monitor

and review

Communicate

& Consult

Right People

Right Information

Process

Right Time

Presenter

Presentation Notes

Hopefully, throughout this presentation I have been able to illustrate how the principles of good decision making are related to and can be used to enhance the principles of good consultation. I hope that I have also been able to provide an insight into how NOPSEMA considers both of these sets of principles in the assessment and inspection of environment plans. Good consultation is a key element of any decision making, either by a regulator or by a titleholder, and is an essential element in building and maintaining the trust and respect of the communities in which we both operate.

Thank you

consultation and the principles of good decision …...the purpose of my presentation this afternoon...

Documents