2.4 - The EPBC Act does not meet the aspirations of Traditional Owners for managing their land

Joint management arrangements for Commonwealth reserves (Chapter 5, Part 15, Division 4 subdivision F of the EPBC Act) 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 DNP is a statutory position, established under Part 19, Division 5 of the EPBC Act. For each jointly managed park, a board of management has been established.

The governance framework for jointly managed parks is shaped by the provisions of:

• relevant Commonwealth Land Rights legislation – the Aboriginal Land Rights (Northern Territory) Act 1976 and Aboriginal Land Grant (Jervis Bay Territory) Act 1986
• the lease agreements between Traditional Owners and the DNP
• the EPBC Act.

The legal settings in the EPBC Act have created an unbalanced power relationship between the DNP (as the lease holder) and Traditional Owners. This imbalance has resulted in longstanding tensions between the joint boards of management and the DNP.

The position of the DNP being a corporation sole under the EPBC Act also means that, ultimately, the position is responsible for decisions made about management of parks and for the effective management of risks such as those relating to occupational health and safety. As a corporation sole, the DNP relies on resources provided to it by the Department to execute its functions. Employees in these parks are employed by the Department, consistent with Australian Public Service (APS) requirements, and resourcing levels are subject to usual government budgetary processes.

Previous reports (ANAO 2019) have highlighted shortcomings in the structure of the relationship between the Department and the DNP. This Review has not revisited these issues given the comprehensive recent assessment.

The contributions of Traditional Owners of Kakadu, Uluṟu-Kata Tjuṯa and Booderee National Parks, as well as the Land Councils that support them, have indicated that the current settings in the EPBC Act for joint management of parks fall short of their aspirations. Examples of this include:

• the inability for Traditional Owners of Booderee National Park to exercise functions, rights and powers within the park under the relevant land rights law
• limits on the number of Traditional Owners on boards means that, for parks that comprise of many Traditional Owner groups, some groups are left out of decision-making
• lease agreements stipulate that the DNP should actively seek suitably qualified Indigenous staff members to fill the majority of permanent employed positions. However, APS-wide employment conditions mean that pathways for employment are reduced, and career progression is limited to lower levels of the public service
• Traditional Owners feel that important opportunities for employment that support connection to Country (such as through ‘day labour’) have diminished over time
• Traditional Owners feel they don’t have recourse if the DNP fails to implement park management plans, decisions of joint management boards, or lease obligations
• Traditional Owners perceive that their views on restricting public access to particular areas of a park that have cultural significance or at particular times are not respected.

Decisions made by a joint management board can be overturned by the DNP. The ultimate decision-making position of the DNP does not empower Traditional Owners to make genuine joint management decisions. There are examples where joint boards have had the opportunity to participate in decision-making but have been unable to effectively do so. They are either reluctant to accept the responsibilities associated with decisions or are unable to draw together disparate community interests and aspirations.

The contributions received from Traditional Owners to the Review indicate that they seek a real partnership and more responsibility to make decisions. Traditional Owners seek their position as owners of land to be respected by the DNP and reflected in the way the DNP (as the leaseholder) interacts with them.

Some contributors to the Review seek a broader application of joint management settings.

2.4.2 - Transition to Traditional Owners having more responsibility for managing their land

Traditional Owners of jointly managed parks have expressed their aspiration to have more responsibility and control over the management of their land and waters. Submissions received by the Review have highlighted opportunities to better support these aspirations. These include:

• improved monitoring, compliance and review of joint management arrangements to ensure the DNP implements management activities in a manner consistent with agreed plans
• genuine joint decision-making, meaning that Boards accept the responsibilities and risks that are currently borne by the DNP
• improved employment opportunities and through employment the opportunity to work on Country and share knowledge of Country
• changes to the relationships between laws to provide for greater local management and control.

The shared vision between Traditional Owners and the Commonwealth Government on what they seek to achieve from their partnership in joint management and how this builds toward the longer-term aspirations of Traditional Owners is unclear.

A shared vision for success is needed. This should be done for each park so that local differences can be reflected. Without a shared vision, any change is likely to deliver unintended outcomes, diluted focus or underinvestment in the transition needed to meet the aspirations of Traditional Owners. The first step must be to reach consensus on the shared vision and then co-design the policy, governance and transition arrangements needed to achieve it.

Any transition to greater responsibility for Traditional Owners in decision-making will require support for them to develop the capabilities to execute the legal and administrative responsibilities associated with managing parks. This includes responsibility for effective health and safety risks to park staff and visitors, accountability for expending operating costs (between $7 million and $20 million per year) and for the effective management of capital works budgets. The magnitude and significance of a transition to greater decision-making for Traditional Owners should not be underestimated.

The pathway to sole management cannot occur without some change to the legal settings of the role of the DNP in parks management and decision-making, including consideration of whether standalone law is most appropriate (Chapter 3). The changes need to be co-designed with the Traditional Owners to ensure that a more balanced relationship between Traditional Owners, the Commonwealth and the DNP can occur.