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

Over the past decade, there has been increased recognition of the value of incorporating Indigenous knowledge, innovations and practices into environmental management to deliver positive outcomes for the Australian environment. Indigenous Australians play a significant role in direct land and sea protection and management throughout Australia. These activities are supported by the Australian Government, but most support mechanisms sit outside the operation of the EPBC Act such as:

  • Indigenous Land Use Agreements (ILUAs)
  • Indigenous ranger programs
  • Indigenous Protected Areas (IPAs)
  • savanna burning carbon farming projects
  • national investment in environmental research – for example, through the National Environmental Science Program (NESP) – which also supports and facilitates the participation of Indigenous Australians in research and environmental management activities.

Within the operation of the EPBC Act, the participation of Indigenous Australians is focused on:

  • an Indigenous Advisory Committee, which has a broad, ‘as needed’ advisory function and is not linked to specific decisions that are made
  • the arrangements for joint management of Commonwealth reserves on land owned by Indigenous Australians
  • the protection of some Indigenous heritage, including requirements for the Australian Heritage Council to consult with Indigenous Australians who have rights or interests in the places that it is considering.

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 (Box 6).

Box 6 - International agreements relating to Indigenous peoples’ rights

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) ‘affirms the minimum standards for the survival, dignity, security and well-being of Indigenous peoples worldwide and enshrines Indigenous peoples’ right to be different’. It emphasises the right of Indigenous peoples to participate in the decision-making process for matters that affect them, the need for mechanisms for redress, and obliges signatory states to obtain free, prior and informed consent before taking actions that may impact Indigenous peoples, such as making laws or approving projects on Indigenous lands.

The Convention on Biological Diversity (CBD) provides for the recognition of Indigenous peoples’ inherent ecological knowledge and, with the free, prior and informed consent of Indigenous knowledge holders, promotion of the wider application of such knowledge. It requires signatories, subject to their national legislation, to respect, preserve and maintain Indigenous peoples’ ecological knowledge and practices with respect to the conservation and sustainable use of biological diversity.

The Aichi Biodiversity Targets agreed under the CBD include a specific target (Target 18) that ‘by 2020, the traditional knowledge, innovations and practices of Indigenous and local communities relevant for the conservation and sustainable use of biodiversity, and their customary use of biological resources, are respected, subject to national legislation and relevant international obligations, and fully integrated and reflected in the implementation of the Convention with the full and effective participation of Indigenous and local communities, at all relevant levels.’

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the Nagoya Protocol) is a global agreement that implements the access and benefit-sharing obligations of the CBD. The Nagoya Protocol, signed but not yet ratified by Australia, establishes a framework that ensures the fair and equitable sharing of benefits that arise from the use of genetic resources. Indigenous communities may receive benefits through associated frameworks that ensure respect for the value of traditional knowledge associated with genetic resources.

For more information, see the International agreements further reading at the end of the report.