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.

While individuals may have good intentions, the settings of the EPBC Act and the resources afforded to implementation are insufficient to support effective inclusion of Indigenous Australians in the processes for implementing the Act. The cultural issues are compounded because the Act does not have the mechanisms to require explicit consideration of Indigenous community values and Indigenous knowledge in environmental and heritage management decisions. Although national protocols and guidelines for involving Indigenous Australians have been developed (AHC 2002; DoEE 2016), resourcing to implement them is insufficient and they are not a requirement.

However, there are examples of species recovery being led by Indigenous communities for culturally important species using recovery planning tools within the EPBC Act (Box 7). In its submission to the Review, the Indigenous Advisory Committee (2020) noted that:

These examples are the exception rather than the rule.

The Department has issued guidance Engage Early – Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (DoEE 2016) on expectations for applicants for EPBC Act approval. However, this is not an enforceable standard or requirement. It is unclear how the Environment Minister considers Indigenous matters in decision-making for Act assessments.

The operation of the EPBC Act Indigenous Advisory Committee (IAC) exemplifies the culture of tokenism. The Act does not require the IAC to provide decision-makers with advice. The IAC is reliant on the Environment Minister inviting its views. This is in contrast to other statutory committees, which have clearly defined and formal roles at key points in statutory processes. The effective operation of the IAC is further limited by the lack of adequate funding.

For example, the IAC does not provide independent advice on the adequacy of the incorporation of Indigenous knowledge in key decision-making processes (such as listings, recovery plans and conservation advices, or environmental impact assessments).

The IAC’s operating practice is to avoid cutting across the roles of other statutory committees. While the IAC and other statutory committees have established dialogues and ad hoc interactions, this has been informal and lacks structured intent. The incorporation of input by Indigenous Australians to the deliberations of other committees has often been tokenistic and symbolic. Representatives of Indigenous Australians on certain, but not all committees, is further accepted as satisfying the mandate to involve Indigenous Australians. But this involvement pays lip service to the ethic of involvement and respectful integration of Indigenous knowledge and culture into environment protection and biodiversity conservation. This lack of genuine involvement in committees and decision-making processes has been raised in submissions to the Review, including those from the IAC and Indigenous Land Councils.

2.2.2 - Reforms should be pursued through co-designed policymaking and implementation

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 (CoAG 2019a) and other supporting processes (Box 8).

The pursuit of reforms would occur alongside other Australian Government initiatives, including those related to an Indigenous Voice, the Northern Australian economy, the protection of Indigenous intellectual property and development of a government-wide Indigenous Evaluation Strategy.

Indigenous Australians often engage with multiple departments and organisations across all levels of government. Activities should seek to align with or complement other work, while maintaining relevance to the environment portfolio.

The practice of co-design should be applied to progressing the agreed recommendations from this Review and be embedded into policy, procedures and behaviours going forward.

The role and membership of the IAC should be substantially recast, to form the Indigenous Engagement and Participation Committee (Chapter 4). The role of this Committee would be to:

• support the co-design of reforms (and the participation of Indigenous Australians in this process)
• monitor and advise on, the application of the National Environmental Standard for Indigenous engagement and participation in decision-making and oversee the further refinement of this Standard
• provide advice to other statutory committees (Chapter 4) on the respectful use of Indigenous knowledge.

The philosophy adopted by the co-design process could include that it:

• genuinely demonstrate respect for Indigenous knowledge, world views, culture and ongoing custodianship
• acknowledge and redress perceived imbalances of power
• promote transparency, open communication and two-way knowledge sharing
• be flexible about engagement approaches outside of traditional written and face-to-face consultations and in how the Commonwealth Government receives feedback and advice
• support two-way communication and initiation of co-design, where all parties have equal rights and opportunities to initiate engagement and discussion
• acknowledge the value of Indigenous knowledge across a diverse range of issues, beyond what have traditionally been determined issues of interest or significance for Indigenous Australians
• support a continual process of monitoring, revising and reviewing approaches to actively involve Indigenous Australians
• link to support more coordinated and consistent efforts for Indigenous engagement at the national level.

2.2.3 - Best-practice engagement to embed Indigenous knowledge and views in regulatory processes

Contributors to the Review highlighted that the EPBC Act should more actively facilitate Indigenous participation in decision-making processes. Specifically, contributors called for normalisation of incorporating Aboriginal and Torres Strait Islander knowledge in environmental management planning and environmental impact assessment through culturally appropriate engagement.

Contributions have all highlighted the importance of the underpinning concept of free, prior and informed consent. A range of views have been presented to the Review on how this could be achieved, including:

• specific regulatory requirements or standards expected in decision-making processes (for example, standards for proponents in conducting environmental impact assessment) or binding standards for consultation with Indigenous Australians
• requirements for participation of Indigenous Australians in regional planning activities (such as strategic assessments or ecologically sustainable development plans) to incorporate their knowledge and values into decision-making
• greater investment in scientific research where Indigenous Australians are co-researchers alongside western science.

A National Environmental Standard for Indigenous engagement and participation in decision-making will ensure that Indigenous Australians that speak for Country have had the opportunity to do so, and that their views and knowledge is explicitly considered in decisions in a culturally respectful and transparent way.

Through an Indigenous-led process, the Review has developed a recommended National Environmental Standard for Indigenous engagement and participation in decision-making (Appendix B). This Standard sets out the minimum requirements for meaningful engagement and participation of Indigenous Australians in the legislative and policy processes related to the EPBC Act. It is intended to complement existing Commonwealth, State and Territory legal frameworks that recognise cultural rights and interests, such as native title, statutory land rights and heritage protection. This Standard is to be used by all parties undertaking any activities under government legislation or policies relating to the Act, including the process for making National Environmental Standards.

The National Environmental Standard recognises the longstanding custodianship of land, freshwater and sea management in Australia by Indigenous Australians and their ongoing role in protecting and managing the environment and maintaining their cultural responsibility and connection to Country. It provides a set of principles to empower Indigenous Australians to actively participate in decision-making with governments, and enable greater consideration of their land, freshwater and sea management knowledge as it relates to the operation of the EPBC Act. These principles are intended to be consistent with the UN Declaration on the Rights of Indigenous Peoples and the Convention on Biological Diversity (UN 2007) and have drawn on existing guidelines recognised as best practice (Box 9).

The recommended National Environmental Standard has been prepared to reflect the current settings of the EPBC Act.

The recommended National Environmental Standard for Indigenous engagement and participation in decision-making should be adopted in full and immediately implemented. The Indigenous Engagement and Participation Committee will be responsible for overseeing the implementation of this Standard, and leading the co-design of improvements, including providing advice to the Minister on how it should be maintained and refined.

However, for the National Environmental Standard to fully reflect best-practice principles for involving Indigenous Australians in decision-making, the EPBC Act would require broader reform and detailed legislative amendment. Amendment to the Act is needed to enable this Standard to be strengthened to meet best practice and public expectations.

Amendments to the EPBC Act will enable the recommended National Environmental Standard to be improved including in the following ways:

• Participation of Indigenous Australians in shared decision-making should be undertaken in a way that promotes the rights, obligations, ecological knowledge and cultural protections afforded to Indigenous Australians under law, including the right to self-determination and in accordance with the principle of free, prior and informed consent.
• Indigenous Australians have the right to self-determination and derive benefit from the way their knowledge is shared and used. Knowledge holders have the right to keep confidential any information concerning their cultural practices, traditions or beliefs and to exclude this information from publication.

Refinements to the National Environmental Standard over time should involve a broad and open opportunity for Indigenous Australians to participate. In line with the Standard itself, the process should provide adequate time to enable Indigenous Australians to provide their views.

2.2.4 - Combine Indigenous knowledge and western science in statutory advisory committees

The structure of the statutory advisory committees in the EPBC Act, and the lack of interaction between them, ingrains the cultural primacy of western science in the way that the Act operates.

The National Environmental Standard for Indigenous engagement and participation in decision-making is one mechanism to ensure that Indigenous Australians that speak for and have traditional knowledge of Country have the proper opportunity to contribute to decisions made under the EPBC Act. Establishment of this Standard further recognises the value of Indigenous knowledge systems that include practices that have supported sustainable livelihoods and healthy Country for over 60,000 years in Australia. It will ensure that, where appropriate, these practices can be applied to the operational aspects of the Act to help improve outcomes for matters of national environmental significance and the Australian environment more broadly.

In addition to a substantial re-casting of the role of the Indigenous Advisory Committee, more needs to be done to enhance how Indigenous land, freshwater and sea management knowledge is considered equally alongside western science and information.

Combining these 2 knowledge systems is increasingly being recognised as having multiple benefits if done in the right way. The Our Knowledge, Our Way Guidelines in Caring for Country (Woodward et al. 2020) is an Indigenous-led resource that presents examples of how weaving together Indigenous and western knowledge can provide benefit to Country and people (Box 10). It further highlights the strong connection and protocols Indigenous Australians have with their knowledge and the need for non-Indigenous researchers and policy developers to respect how they want their knowledge used or not used.

Reforms to the statutory advisory committees of the EPBC Act (Chapter 5) will be key to ensuring Indigenous knowledge is considered alongside western science in a way that respects Indigenous environmental management practices, which have been used for thousands of years and continue to be used to care for Country. The establishment of the Ecologically Sustainable Development (ESD) Committee will ensure coordination and stewardship over all National Environmental Standards. The ESD Committee will ensure that advice is well balanced and composed of the scientific, economic, social and Indigenous knowledge required to underpin the operation of the Act.

The Indigenous Engagement and Participation (IEP) Committee should be responsible for advising on the application of the National Environmental Standard for Indigenous engagement and participation in decision-making relating to:

• achievement of environment and heritage outcomes as part of the broader monitoring and evaluation framework (Chapter 11)
• development and maintenance of all National Environmental Standards (Chapter 1)
• Commonwealth Government led strategic national and regional planning (Chapter 8)
• adequacy of the information influencing decisions (Chapter 10)
• data and information supply chain (including environmental accounts, monitoring and evaluation, and National Environmental Information Assets (NEIAs)) (Chapter 11).

Annual monitoring, evaluation and reporting of the inclusion of Indigenous views and knowledge in decisions and, more broadly, the National Environmental Standard for Indigenous engagement and participation in decision-making will ensure that improvements can be made over time to the Standard and supporting processes. The IEP Committee will be responsible for establishing the monitoring and reporting method of the Standard.

The Department of Agriculture, Water and the Environment should invest in cultural capability development to support these reforms and build staff capacity to ensure that relationship building with Indigenous Australians, and inclusion of their knowledge, is done respectfully. The Department should also support this cultural shift by:

• Recognising the importance of language – In reviewing internal plans, processes and external communications activity, considering the way things are framed will be critical. On early review of some of the current language used, there are opportunities to strengthen this, for instance by moving away from concepts of ‘recognition’ to ‘respect’ and moving from ‘now recognising places of significance’ to ‘acknowledging places that have always held significance’.
• Supporting Indigenous leadership in the Department – Maintaining a continued focus on creating meaningful employment pathways for Indigenous staff will be critical to embed Indigenous perspectives within all levels of Commonwealth decision-making.
• Creating mechanisms to support proactive engagement from Indigenous Australians – In any two-way partnership, both parties should hold equal rights to initiate discussion and consultation activity. The Department should review what mechanisms and models are in place to support Indigenous Australians to consult with the Commonwealth and initiate conversation.
• Being clear about paid participation policies – Where engagement processes are extended to include a more diverse range of stakeholders (which include community members) the Commonwealth will need to be clear about what paid participation policies are in place and how these apply to various processes.
• Delivering clear and proactive communication about policy and funding changes – Clear communication should be a particular focus when changes (both at the department and government levels) are made to key funding, programs, policies or decisions. In an Indigenous context, the Department will need to consider what communication activities work best, beyond simply making information public.
• Investing in research – Continued investment in research with Indigenous Australians into impacts of combining knowledge systems, engagement approaches and models of program innovation will also be critical to ensuring that an evidence base can be developed over time.

This capacity building should begin now.