Chapter 2 - Indigenous culture and heritage
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 its objectives are:
- There is a culture of tokenism and symbolism. Indigenous knowledge or views are not fully valued in decision-making. The EPBC 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 and does not work effectively with the development assessment and approval processes of the EPBC Act. The national level arrangements are unsatisfactory.
- The EPBC Act does not meet the aspirations of Traditional Owners for managing their land. The settings for the Director of National Parks and the joint boards means that ultimately, decisions are made by the Director.
The key reform directions proposed by the Review are:
- The National Environmental Standards should include specific requirements relating to best practice Indigenous engagement, to enable Indigenous views and knowledge to be incorporated into regulatory processes.
- The national level settings for Indigenous cultural heritage protection need comprehensive review. This should explicitly consider the role of the EPBC Act in providing protections. It should also consider how comprehensive national level protections are given effect, including how they interact with the development assessment and approval process of the Act.
- Indigenous knowledge and western science should be considered on an equal footing in the provision of formal advice to the Environment Minister. The proposed Science and Information Committee should be responsible for ensuring advice incorporates the culturally appropriate use of Indigenous knowledge.
- 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.
- Improved outcomes for Indigenous Australians will be achieved by enabling co-design and policy implementation.
- The role of the Indigenous Advisory Committee should be substantially recast as the Indigenous Knowledge and Engagement Committee, whose role 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.
Over the last 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) and 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 formally focused on:
- an Indigenous Advisory Committee, whose remit is a broad 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 people who have ‘rights or interests’ in the places that it is considering.
While world leading when first legislated, the EPBC Act is now dated and does not support leading practice for incorporating the rights of Indigenous people in decision-making processes. It lags behind leading practice within Australia, and furthermore, lags behind key international commitments Australia has signed (Box 4).
Box 4 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’32 . 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)33 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.’34
The Nagoya Protocol35 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 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.
 United Nations 2007, United Nations Declaration on the Rights of Indigenous Peoples. Resolution adopted on 13 September 2007.
 Secretariat of the Convention on Biological Diversity, United Nations Environmental Programme 2011, The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the Protocol) to the Convention on Biological Diversity (CBD). United Nations.