2.1 - Indigenous knowledge and views are not fully valued in decision-making

These examples are therefore 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)⁴⁰. This sets out expectations for applicants for EPBC Act approval, it is not an enforceable standard or requirement. Furthermore, it is not transparent how the Environment Minister addresses 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. 0The 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.

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).

While the IAC and other statutory committees have established dialogues and ad hoc interactions, this has been informal and lacks structured intent. Indigenous input to the deliberations of other committees has been tokenistic and representative. 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 IAC⁴¹and Indigenous Land Councils⁴².

The IAC’s operating practice is to avoid cutting-across the roles of other statutory committees. The effective operation of the IAC is further limited by the lack of adequate funding.

2.1.2 - Indigenous Australians seek, and are entitled to expect, stronger national-level protection of their cultural heritage

Places of natural and cultural value that are important to the world or Australia can be recognised and protected by listing them as National Heritage, Commonwealth Heritage or World Heritage under the EPBC Act.

These include places that hold particular cultural importance for Indigenous people. For example, Kakadu National Park, Tasmanian Wilderness, Uluṟu-Kata Tjuṯa and Willandra Lakes Region, Budj Bim Cultural Landscape, Brewarrina Aboriginal Fish Traps (Baiame's Ngunnhu), and the Myall Creek Massacre and Memorial Site are all places protected under the EPBC Act for their natural and/or Indigenous cultural values.

At the national level Indigenous cultural heritage is protected under numerous other Commonwealth laws, including the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act). The ATSIHP Act can be used by Aboriginal and Torres Strait Islander people to ask the Environment Minister to protect an area or object where it is under threat of injury or desecration and where state or territory law does not provide for effective protection.

At the Commonwealth level, cultural heritage is also protected under the Copyright Act 1968 (for some intangible heritage) and the Moveable Cultural Heritage Act 1986 (for tangible, moveable heritage).

The states and territories also play a role in Indigenous heritage protection and submissions including from the Victorian Aboriginal Heritage Council⁴³, have highlighted the potential for duplication. Others, such as the Tasmanian Aboriginal Centre⁴⁴, have noted the importance of the Commonwealth playing a role, where state and territory-based arrangements, in their view, provide insufficient protections.

The ATSIHP Act does not align with the development assessment and approval processes of the EPBC Act. Cultural heritage matters are not required to be broadly or specifically considered by the Commonwealth in conjunction with assessment and approval processes under Part 9 of the Act. Interventions through the ATSIHP Act occur after the development assessment and approval process has been completed.

Contributions to the Review have highlighted the importance of considering cultural heritage issues early in a development assessment process, rather than Traditional Owners relying on a last minute ATSIHP Act intervention⁴⁵. The misalignment of the operation of the EPBC Act and the ATSIHP Act promotes uncertainty for Traditional Owners, the community and for proponents.

In their submissions, stakeholders have raised their concerns that the Commonwealth does not provide sufficient protection of Indigenous heritage and that fundamental reform is both required and long overdue⁴⁶. For example, the New South Wales Aboriginal Land Council submission highlighted:

These submissions identify opportunities for the EPBC Act to play a more expansive role in Indigenous heritage protection at the national level.

​​​​​​2.1.3 - 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 three 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:

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

The construct of the position of the DNP as a corporation sole under the EPBC Act means that ultimately, that position is responsible for decisions made in relation to the management of national 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 national parks are employed by the Department, consistent with Australian Public Service (APS) requirements, and resourcing levels are subject to usual government budgetary processes.

Previous reports⁴⁸ have highlighted shortcomings in the structure of the relationship between the Department and the DNP. This Review has not sought to revisit 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 Commonwealth parks fall short of their aspirations. Examples⁴⁹ of this include:

• the inability for Traditional Owners of Booderee National Park to exercise functions, rights and powers under the relevant land rights law within the park
• 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 that the majority of permanent employed positions be held by suitably qualified Indigenous staff members. APS-wide employment conditions mean 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 the 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.

Some contributors to the Review seek a broader application of joint management settings⁵⁰.