Final report

Chapter 2 - Indigenous culture and heritage

October 2020

Key points

The Review considers that the EPBC Act is not fulfilling its objectives as they relate to the role of Indigenous Australians in protecting and conserving biodiversity, working in partnership with and promoting the respectful use of their knowledge.

The key reasons why the EPBC Act is not fulfilling these objectives are:

  • There is a culture of tokenism and symbolism. Indigenous knowledge or views are not fully valued in decision-making. The Act prioritises the views of western science, and Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers.
  • Indigenous Australians are seeking stronger national protection of their cultural heritage. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) provides last-minute intervention but does not work effectively with the development assessment and approval processes of the Act. The national level arrangements are unsatisfactory and out of step with community expectations.
  • The Act does not meet the aspirations of Traditional Owners, where they lease their land to the Commonwealth. The settings for the Director of National Parks and the joint boards means that, ultimately, the Director makes decisions for these areas.

The key reforms recommended by the Review are:

  • The co-design of policy and implementation to improve outcomes for Indigenous Australians.
  • The National Environmental Standards should include specific requirements relating to best-practice Indigenous engagement and participation, to enable Indigenous views and knowledge to be incorporated into regulatory processes.
  • A recommended National Environment Standard for Indigenous engagement and participation in decision-making, developed in detail by the Review through an Indigenous-led process, should be adopted in full and immediately implemented.
  • The role of the Indigenous Advisory Committee should be substantially recast as the Indigenous Engagement and Participation Committee. The role of this Committee is to provide leadership in the co-design of reforms and advise the Environment Minister on the development and application of the National Environmental Standard for Indigenous engagement and participation in decision-making.
  • Indigenous knowledge and western science should be considered on an equal footing in the provision of formal advice to the Environment Minister. The recommended Ecologically Sustainable Development Committee should be responsible for ensuring advice provided to the Environment Minister incorporates the culturally appropriate use of Indigenous knowledge.
  • The national level settings for Indigenous cultural heritage protection need comprehensive review. This process should consider how comprehensive national level protections are given effect, including how they interact with the development assessment and approval process of the EPBC Act. This review should explicitly consider the role of the Act in providing protections.
  • Where aligned with their aspirations, transition to Traditional Owners having more responsibility for decision-making in jointly managed parks. For this to be successful in the long term there is a need to build capacity and capability, so that joint boards can make decisions that effectively manage risks and discharge responsibilities.

2.1 - The Act does not fully support the rights of Indigenous Australians in decision-making

Although the EPBC Act was world leading when first legislated, it is now dated and does not support best practice for incorporating the rights of Indigenous Australians in decision-making processes. It lags behind best practice within Australia and behind key international commitments Australia has signed. The Australian Government is recognising improved outcomes for Indigenous Australians through enabling co-design and policy implementation with Indigenous Australians. Any reform to the EPBC Act must be conducted in a way that is consistent with the National Agreement on Closing the Gap, the Council of Australian Governments commitments in the Partnership Agreement for Closing the Gap, and other supporting processes.
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2.2 - Indigenous knowledge and views are not fully valued in decision-making

The EPBC Act heavily prioritises the views of western science, with Indigenous knowledge and views diminished in the formal provision of advice to decision-makers. This reflects an overall culture of tokenism and symbolism, rather than one of genuine inclusion of Indigenous Australians. A National Environmental Standard for Indigenous engagement and participation in decision-making will ensure that Indigenous Australians that speak for Country have the opportunity to do so, and that their views and knowledge is explicitly considered in decisions in a culturally respectful and transparent way.
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2.3 - Indigenous Australians seek, and are entitled to expect, stronger national-level protection of their cultural heritage

The current laws that protect Indigenous cultural heritage in Australia are well behind community expectations. They do not deliver the level of protections that Indigenous Australians and the community expect, and they do not work with the way developments are assessed, approved and conducted. Comprehensive review of national-level Indigenous cultural heritage protection legislation is needed.
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2.4 - The EPBC Act does not meet the aspirations of Traditional Owners for managing their land

Joint management arrangements are in place for 3 parks – Kakadu, Uluṟu-Kata Tjuṯa and Booderee. In these areas, Traditional Owners lease their land to the Director of National Parks (DNP). The legal settings in the EPBC Act have created an unbalanced power relationship. This imbalance has resulted in longstanding tensions between the joint boards of management and the Director of National Parks. Traditional Owners of jointly managed parks have expressed their aspiration to have more responsibility and control over the management of their land and waters. The Commonwealth Government, through the Director of National Parks, should immediately commit to working with Traditional Owners to co-design reforms for joint management, including policy, governance and transition arrangements.
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