Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report

Chapter 17: Indigenous information and involvement under the EPBC Act

Key points

  • There is a need to ensure that Indigenous peoples are engaged throughout all activities impacting on Indigenous environmental interests and heritage.
  • Improved linkages are required between the EPBC Act and other legislation dealing with Indigenous matters, including the Native Title Act 1993 and Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
  • Guidance is required on issues relating to the use of Indigenous knowledge, including how traditional knowledge is obtained and the circumstances where it can be used.
  • Improved Indigenous consultation in strategic and regional planning approaches may be one way to ensure effective integration of Indigenous opinions in high level decision-making.

Current provisions of the Act

17.1The Act provides for the involvement of Indigenous peoples in conserving Australia’s biodiversity, including to protect the traditional use of land and water by Indigenous peoples, to protect Indigenous heritage and to provide for Indigenous involvement in managing Commonwealth reserves.

17.2This is explicit in the objects of the Act which recognise the role Indigenous peoples play in the conservation and sustainable use of resources, and the need to promote the use of traditional knowledge to inform management and conservation decisions. The relevant objects for the purposes of this discussion are:

  • to promote a co-operative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples;
  • to recognise the role of Indigenous peoples in the conservation and ecologically sustainable use of Australia’s biodiversity; and
  • to promote the use of Indigenous peoples’ traditional knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.[1]
  • Subsection 3(2) further provides that in order to achieve these objects, the Act intends to promote the use of partnership approaches for environmental protection and biodiversity conservation through:
  • conservation agreements with landholders;
  • recognising and promoting Indigenous peoples’ role in, the knowledge of, the conservation and ecologically sustainable use of biodiversity; and
  • the involvement of the community in management planning.[2]
Non-interference with Indigenous rights

17.4Section 8 of the EPBC Act provides the Act does not affect the operation of the Native Title Act 1993 and the Aboriginal Land Rights (Northern Territory) Act 1976. Both these Acts include provisions that preserve customary rights to use of land and waters.[3] In addition, s.359A of the Act provides that provisions of the Act and Regulations relating to Commonwealth reserves do not affect traditional use by Indigenous persons for non-commercial hunting or food gathering or for ceremonial and religious purposes.

Indigenous heritage

17.5The 2003 Amendments to the Act[4] inserted a Commonwealth heritage management regime, which focused on matters of national significance and Commonwealth responsibility. The amendments provided a process for recognising and managing places of National and Commonwealth Heritage and require consideration of Indigenous heritage values present in Commonwealth or National Heritage places.

17.6The Indigenous Heritage Program (IHP) is an Australian Government initiative that supports the identification, conservation and promotion of Indigenous heritage. This program is aimed at recognising Indigenous heritage as an important part of our nation’s past, present and future story.[5] In practice, the IHP assists in identifying places likely to have outstanding Indigenous heritage value to Australia which may be suitable for inclusion on the National Heritage List under the EPBC Act.

Management of Biodiversity

17.7Indigenous engagement in bilateral agreements, recovery planning and threat abatement planning is mandated in the Act. These provisions require consideration to be given to the role and interests of Indigenous peoples in the conservation of Australia’s biodiversity.

Indigenous Advisory Committee (IAC)

17.8Section 505A requires the establishment of an IAC under the Act. The first committee was established in 2000. The role of the Committee is to advise the Minister on the operation of the Act, taking into account the significance of Indigenous peoples’ knowledge of the management of land and the conservation and sustainable use of biodiversity. All committee members are Indigenous Australians and are selected for membership on the basis of their expertise in Indigenous land management, conservation and cultural heritage management.

17.9Further discussion about the role of the IAC appears in Chapter 19 of this report.

Joint management of Commonwealth reserves

17.10Commonwealth reserves are established under Part 15 of the Act. Where a Commonwealth reserve is wholly or mostly on Indigenous people’s land[6] the Act requires that a Board of Management must be established for the reserve and must have a majority of members who are nominated by the traditional owners of the land.[7] The functions of a Board of Management include preparing management plans for the Commonwealth reserve and making decisions about management of the reserve to give effect to those plans.[8] Boards of Management are currently established under the Act for Kakadu, Uluru-Kata Tjuta and Booderee National Parks.

17.11The Act also makes provision for the interests of Indigenous peoples to be taken into account in management of Commonwealth reserves. Management plans must take into account the interests of traditional owners of any Indigenous people’s land within the reserve and any other Indigenous peoples with an interest in the reserve.[9] The Director of National Parks must consult the relevant Aboriginal Land Council in the preparation of management plans.[10] The Director must also consult a relevant Land Council generally in relation to performance of the Director’s functions and exercise of the Director’s powers under the Act.[11]

Indigenous biological knowledge

17.12Australia’s approach to securing access to genetic resources on equitable terms, with the involvement of holders of Indigenous traditional knowledge, is reflected in the EPBC Regulations.

17.13Part 8A of the EPBC Regulations provides the framework for regulating access to biological resources in Australia. Regulation 8A.01 recognises the special knowledge held by Indigenous persons about biological resources in Commonwealth areas, while Regulation 8A.06 provides that biological resources in a Commonwealth area can only be accessed in accordance with a permit issued under Part 17 of the Regulations. The Minister can issue the permit if satisfied that, among other things and if applicable, prior informed consent of the use of Indigenous biological resources has been obtained. Full disclosure must be made of any use of Indigenous knowledge and the terms on which that knowledge is to be used. Further information about arrangements for access to and use of biological resources is provided in Chapter 16 of this report.

17.14The use of Indigenous traditional knowledge is also addressed in the inter-governmental agreement that governs access to Australia’s genetic resources for scientific research and development – the Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources (2002).[12] The agreement requires that all parties ‘recognise the need to ensure the use of traditional knowledge is undertaken with the cooperation and approval of the holders of that knowledge and on mutually agreed terms’.

17.15Other initiatives

17.16These initiatives are not legislated under the Act however, they highlight other Indigenous activities currently being undertaken by the Australian Government.

Caring for our country

17.17Through the Australian Government’s Caring for our Country initiative, some of the Government’s 2007 election commitments relating to Indigenous investment have been or will be implemented. These include:

  • employing additional Indigenous rangers;
  • assisting Indigenous Australians to prepare sea country plans in the Great Barrier Reef;
  • expanding the Indigenous Protected Area network;
  • assisting Indigenous Australians to enter the carbon trading market; and
  • providing on-going support for the Indigenous Land Management Facilitator network.
  • Caring for our Country includes several targets which recognise the importance of traditional knowledge, including the use of traditional ecological knowledge in the development of management plans in at least 32 newly initiated Indigenous Protected Area projects over four years and the involvement of at least 15 projects in the use or recording of traditional knowledge from Indigenous communities over two years.
Working on country

17.19The Working on Country element of Caring for our Country builds on the recognition of Indigenous knowledge by contracting Indigenous peoples to provide environmental services in remote and regional areas. This work helps to maintain, restore, protect and manage Australia’s environment—on land, sea and heritage areas. Working on Country creates employment opportunities in remote and smaller regional areas of Australia, where there are often fewer jobs compared with large regional centres and urban areas.

Indigenous Protected Areas (IPA)

17.20Indigenous Protected Areas (IPAs) are Indigenous owned or controlled lands which have been declared as protected areas in perpetuity and although not established or managed under the Act, many IPAs give effect to the management of species listed under the Act, National Heritage sites and areas with rich biodiversity.

17.21The IPA program was initiated in 1995 with the aim of establishing a mechanism for conservation partnerships with Indigenous land owners to achieve a comprehensive, adequate and representative national reserve system. under the program, traditional owners are supported to conduct extensive consultations and develop plans of management for the declaration of their lands as IPAs. The Indigenous landowners are then supported to implement their plans, including managing threats such as weeds, feral animals and wildfire and to manage and protect their land’s natural and cultural values.

17.22There are currently 28 IPAs covering an area of over 20 million hectares, representing 25% of the National Reserve System.

Map of Indigenous Protected Areas in Australia

Key points raised in public submissions

17.23The key view of public submissions is that Indigenous involvement in land and sea management is essential to the effective protection of matters of under the Act. In its submission the Australian Human Rights Commission (AHRC) noted that:

17.24The International human rights frameworks clearly identify Indigenous peoples’ rights to be fully engaged in government processes that directly or indirectly impact on their lives. This means that Indigenous peoples must be directly and substantially engaged in all aspects of the formulation and implementation of policies that affect their rights and interests, particularly in respect of their land and waters. The human rights framework also requires that Indigenous peoples have the right to determine the priorities for their lands, waters and natural resources, and to give - or not give - their free, prior and informed consent over developments on their land. It is also imperative that governments maximise opportunities for Indigenous participation in programs affecting their lands and waters.[13]

Objects of the Act

17.25A number of submissions noted that while the objects of the Act expressly recognise Indigenous peoples’ knowledge about biodiversity and their role in biodiversity conservation, Indigenous interests are not effectively incorporated into the administration of the Act.

17.26The Tiwi Land Council noted that development opportunities in remote Indigenous communities are a scarce commodity and expressed the view that the provisions of the Act which deal with Indigenous involvement, do not deal with the critical issue at stake – namely whether resources can be used effectively for Indigenous economic and social development.[14] As this submission also commented, remote Indigenous communities, where rich natural resources often occur, are among the most vulnerable to processes and decisions made under the Act. These processes often place tough and sometimes insurmountable obstacles in the way of Indigenous development.[15]

17.27The Tiwi Land Council submitted that:

The first of the four principles of ESD is that the decision-making process should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations. Clearly, the objective of promoting ecologically sustainable development pre-supposes that viable development scenarios exist.[16]

17.28The Tiwi Land Council recommended that the objects of the Act be amended to recognise that needed developments in Indigenous and remote communities are a desired and accountable outcome of the EPBC Act’s processes.[17] They argued that too often, environmental considerations hold sway over economic and social considerations on Indigenous land.[18]

17.29A number of submissions made reference to Article 8(j) and 10(c) of the Convention on Biological Diversity, suggesting that these articles have been lost and need to be explicitly referred to in the Act.[19] For example, it was commented that the Act fails to acknowledge Indigenous peoples as part of the natural systems of the environment, treating cultural and spiritual significance as separate and disparate associations.[20]

17.30As the Centre for Aboriginal Economic Policy Research (CAEPR) stated:

17.31The objects of the Act should broaden its focus to include the recognition of, respect for, and maintenance of Indigenous knowledge, innovations and practices including Indigenous systems of governance and/or management (e.g. customary marine tenure). As in the Convention on Biological Diversity, the use of Indigenous knowledge, innovations and practices should require the approval (or informed consent) of their owners as well as their involvement and cooperation.[21]

17.30The AHRC also questioned the limited reference to Indigenous interests in the objects, recommending that s.3A be amended to specifically identify Indigenous rights and involvement as a crucial consideration, arguing that the reference in s.3A to ‘and equitable considerations’ was vague and amorphous and should be amended to read ‘decision-making processes that should effectively integrate both long and short-term economic, environmental, social, cultural and equitable considerations’.[22]

Links with other Indigenous legislation

17.31It was noted that multiple pieces of legislation relating to Indigenous matters made it difficult for Indigenous peoples to access resources and engage appropriately and concluded that there was a need for greater alignment of legislation referencing Indigenous matters.[23] CAEPR and the IAC pointed out that while the Act provides for the protection and conservation of heritage, including Indigenous heritage, there is no link between the Act and the Aboriginal Torres Strait Island Heritage Protection Act 1984 (ATSIHP Act). CAEPR recommended that the Act be amended to detail the relationship between the EPBC Act and the Aboriginal and Torres Strait Islander Act 2005, the ATSIHP Act and the Water Act 2007.[24]

17.32Further, it was recommended that the Act also needs to include links to the Native Title Act 1993. For example, s.93 of the EPBC Act applies to proposed actions that have been deemed to be controlled actions and the Minister has decided that the action should be assessed based on the referral information. In such cases, the Department must prepare a draft report which includes recommendations about whether the action should be approved under the Act, including any proposed conditions for an approval. It was argued that in such cases, the draft recommendation report should be published on the internet along with an invitation for public comment, before the Minister makes the decision.

17.33The IAC suggested that s.93 be amended to require consultation with Prescribed Body Corporates (PBCs) for referrals, consultation, advice and decisions under the Act. The IAC also commented that work needs to be done to build the capacity of PBCs and empower Native Title Holder groups to participate under the EPBC Act and there should be clear links between the preservation of Indigenous cultural values and native title rights provisions.[25]

17.34CAEPR noted that:

While the EPBC Act expressly acknowledges native title rights—including section 211 of the Native Title Act (NT) 1993, which preserves native title rights to hunt, fish, gather or undertake other cultural or spiritual activities where these activities would normally be restricted by Commonwealth, State or Territory legislation—it treats these rights weakly so that, in our opinion, these rights are often no more than those of a ‘passive’ user.[26]

Consultation and participation

17.35The Australian Government’s recognition of the importance of Indigenous involvement in conservation was noted and that this involvement is recorded in the Australia State of the Environment Report 2001.[27] However, it was argued that the processes under the Act for consultation with Indigenous groups, as important stakeholders in biodiversity conservation and sustainable use of natural resources, were inadequate and should be addressed as part of the review of the Act.

17.36The IAC acknowledged the efforts made to engage Indigenous peoples effectively through the legal and policy framework provided under the Act. However, they argued that the broad scope of the Act still allows for too many inconsistent processes and ad hoc outcomes. The IAC asserted that proper processes for consultation and negotiation with Indigenous peoples need to be written into the Act.[28] The IAC commented positively on the engagement and consultation process undertaken in the strategic assessment of the proposed Kimberley Gas Precinct, noting that such consultation had been undertaken as an administrative arrangement rather than as a legislative requirement.[29]

17.37Submissions noted processes that occur under the Act where there is no express requirement for consultation with the Indigenous community, for example Ramsar declarations, listing of species and ecological communities and the assessment of projects where there is the potential to impact on Indigenous interests. Consultation in these circumstances occurs as part of broader consultation with the public and other interested parties. Further, where there is the mandated requirement to consult, such as recovery and threat abatement planning, consultation was considered inadequate or cursory. In this regard, CAEPR submitted that:

There appears to be minimal scope for public participation outside of the provision of written submissions. This may not be equitable as it is likely to exclude some sections of the public that have limited access to communications technology and/or have limited literacy. Efforts should be made to ensure that processes are more open, inclusive and proactive, particularly ensuring appropriate processes are in put in place to facilitate involvement of traditional owners.[30]