Interim Report

2.2 - Proposed key reform directions

June 2020

2.2.1 - Reforms should be pursued through co-designed policy-making and implementation

The Australian Government is recognising improved outcomes for Indigenous Australians through enabling co-design and policy implementation with Indigenous people. It is important that any reform to the EPBC Act be conducted in a way that is consistent with the Council of Australian Governments (COAG) Commitments in the Partnership Agreement for Closing the Gap and supporting processes (see Box 6).

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.

Aboriginal and Torres Strait Islander peoples and communities often engage with multiple departments and organisations across all levels of government. It is a busy space and activities should seek to align with or complement other work, while maintaining relevance to the environment portfolio.

Box 6 - COAGs Closing the Gap Commitments

Key excerpts from the Agreement51

  • Priority Action 1—developing and strengthening structures so that Aboriginal and Torres Strait Islander people share in decision-making with governments on closing the gap.
  • Priority Action 2—building formal Aboriginal and Torres Strait Islander community-controlled service sectors to deliver closing the gap services.
  • Priority Action 3—ensuring mainstream government agencies and institutions that deliver services and programs to Aboriginal and Torres Strait Islander people undertake systemic and structural transformation to contribute to closing the gap.

Excerpts from a ‘New Way of Working’ Coalition of the Peaks document52

  • When Aboriginal and Torres Strait Islander people are included and have a real say in the design and delivery of services that impact on them, the outcomes are far better.
  • Aboriginal and Torres Strait Islander people need to be at the centre of Closing the Gap policy: the gap won’t close without our full involvement.
  • COAG cannot expect us to take responsibility for outcomes or to be able to work constructively with them if we are excluded from decision-making.

The practice of co-design should relate to both progressing the agreed recommendations from this Review and how the approach is embedded into policy, procedures and behaviours going forward.

The role and membership of the IAC should be substantially recast, to form the Indigenous Knowledge and Engagement Committee (see Chapter 5). The role of this Committee would be to:

  • support the co-design of reforms (and the participation of Indigenous Australians in this process)
  • oversee the development of, and monitor and advise on, the application of the proposed National Environmental Standard for Indigenous engagement.

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

  • genuinely demonstrate respect for Indigenous knowledge, worldviews, culture and ongoing custodianship
  • acknowledge and redress perceived imbalances of power
  • promote transparency, open communication and two-way knowledge sharing
  • be flexible in what engagement approaches could look like outside of traditional written and face to face consultations and in how the Commonwealth 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, which may extend beyond what has traditionally been determined issues of interest or significance for Indigenous peoples
  • support a continual process of monitoring, revision and review of approaches, that actively involve Indigenous peoples
  • link to support more coordinated and consistent efforts at the Commonwealth level with respect to Indigenous engagement.

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

Contributors to the Review53 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 Australians54
  • requirements for the participation of Indigenous Australians in regional planning activities, so their knowledge and values can be incorporated into decision-making (such as strategic assessments or bioregional plans)
  • greater investment in scientific research, where Indigenous Australians are co-researchers alongside western science55

A National Environmental Standard for best-practice Indigenous engagement is required to ensure that Indigenous Australians that speak for Country have had the proper opportunity to do so, and for their views to be explicitly considered in decisions. The proposed National Environmental Standard for best practice Indigenous engagement should be developed in close collaboration with Indigenous Australians. Specifically, an Indigenous Knowledge and Engagement Committee (see Chapter 5) should be responsible for leading the co-design process.

The Standard would be applied to all aspects of decision-making under the EPBC Act, including the development of regional plans and environmental impact assessment and approval decisions. Existing relevant Australian Government and key agency guidelines including Engage Early – Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)56could be used as a starting point for the development of the Standards (Box 7).

 

Box 7 - Building blocks for National Environmental Standards for Engagement with Aboriginal and Torres Strait Islander people and communities

Two Commonwealth Government guidelines have been developed to assist stakeholders of the EPBC Act to understand their obligations for engaging with Aboriginal and Torres Strait Islander peoples on Indigenous heritage matters, Native title agreements and other relevant considerations. These guidelines provide a starting point for reforms on Indigenous engagement under the Act and the development of National Environmental Standards:

  • Engage Early – Guidance for proponents on best practice Indigenous engagement for environmental assessments under the EPBC Act’57aims to improve how proponents engage and consult Indigenous peoples during the environmental assessment process under the EPBC Act. The guidance encourages proponents to think more broadly than just matters that impact Indigenous heritage, including interactions with the Native Title Act 1993 and engaging Indigenous Australians to manage offsets. The guidance outlines some specific considerations for parties, including allowing additional time before statutory processes to engage and seek consent, establishing meaningful relationships with communities, and identifying any Native title agreements in place on the land.
  • Ask First: A guide to respecting Indigenous heritage places and values 58 was developed by the Australian Heritage Council (then Commission) soon after the EPBC Act was written to address ‘lack of familiarity or awareness in the wider community’ in Indigenous heritage matters. It identifies the links between the landscape as a whole and Indigenous heritage values and outlines that Indigenous Australians need to give their consent at most stages before activities that involve Indigenous heritage proceeds. The guidelines established early that ‘consultation and negotiation with Indigenous stakeholders’ is not only best practice, but essential for strengthening the protection of Indigenous heritage values. The document clearly outlines actions that professionals and organisations should take and offers additional, non-mandatory guidance.

2.2.3 - National-level cultural heritage protections need comprehensive review

The current laws that protect Indigenous cultural heritage at the national level need comprehensive review. This review should consider both tangible and intangible cultural heritage (see Box 8).

Box 8 - Intangible cultural heritage

The concept of intangible cultural heritage relates to knowledge of or expressions of traditions. Intangible Indigenous cultural heritage is defined in various Commonwealth and state and territory laws in Australia

Victorian Aboriginal Heritage Act 2006

‘Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition … and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.’59

Northern Territory Aboriginal Scared Sites Act 1989

‘Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.

A sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.’60

ATSIHP Act

‘…the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.’61

Contributors to this Review 62 have emphasised the intrinsic link between Indigenous peoples, land and water and their culture and wellbeing.

 

 

‘For Indigenous Australians, Country owns people and every aspect of life is connected to it, it is much more than just a place. Inherent to Country are vistas, landforms, plants, animals, waterways, and humans. Country is loved, needed and cared for and Country loves, needs and cares for people. Country is family, culture and identity, Country is self.’ Indigenous Working Group, Threatened Species Recovery Hub63

These contributors have suggested that the EPBC Act could have a more expansive role to protect culturally important species, important cultural places that have intangible, ecological, environmental, and physical cultural assets.

There is a need for comprehensive review of national-level Indigenous cultural heritage protection legislation. Reform should consider processes currently underway that are looking to improve Indigenous cultural heritage protection outcomes.

The Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) has been working since 2018 to develop 'Best Practice Standards in Indigenous Cultural Heritage Management and Legislation'. This work is being done in partnership with Indigenous heritage leaders. When finalised, the framework will provide a basis on which to comprehensively review how Indigenous heritage is protected by national laws in Australia, and how national laws should interact with state-based arrangements.

The goal of a national review would be to ensure that national laws provide best-practice protection of cultural heritage—tangible and intangible—and work in concert with protections afforded under state and territory laws.

Given the intrinsic links between the environment, culture and wellbeing, and the objects of the EPBC Act, the Act could play a significant role in delivering more effective protections. This includes how Indigenous heritage is protected under the Act (for example places or culturally important, but common species) and how protections are given effect (for example in regional planning processes, protected area management, or development assessment and approval processes).

However, the EPBC Act may not be best placed to protect all Indigenous cultural heritage (such as language and crafts). Other laws or processes will need to work in concert with national environmental law to provide comprehensive, national-level protections.

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, engrains the cultural primacy of western science in the way that the Act operates.

The National Environmental Standard for best-practice Indigenous engagement is one mechanism to ensure that Indigenous Australians that speak for and have traditional knowledge of Country have had the proper opportunity to contribute to decisions made under the Act.

In addition to a substantial re-casting of the role of the Indigenous Advisory Committee, more needs to be done to enhance how Indigenous knowledge is considered alongside western science and information. This includes:

  • proposed reforms to the statutory advisory committees of the EPBC Act (see Chapter 5)
  • the establishment of an Information and Knowledge Committee—the remit of this committee should include the culturally appropriate use of Indigenous knowledge in decision-making
  • the composition of the Information and Knowledge Committee should be such that the scientific, economic, social and traditional knowledge required to underpin the operation of the EPBC Act are balanced.

2.2.5 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 Director of National Parks (DNP) implements management activities in a manner consistent with agreed plans
  • aspirations of 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 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 is essential for success. Without one, 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 is 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 decision-making by Traditional Owners will require support for owners to develop the capabilities to execute the legal and administrative responsibilities associated with managing national 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 budgets64. The magnitude and significance of a transition to greater decision-making for Traditional Owners should not be underestimated.

 

Footnotes

[51]Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks) 2019 Partnership Agreement with the Commonwealth Government.

[52] Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks) 2018, A new way of working: Talking about what’s needed to close the: gap in life outcomes between Aboriginal and Torres Strait Islander people and other Australians

[53] Submissions to the EPBC Act Review discussion raising this issue included: Northern Land Council, ANON-QJCP-UGJD-R, Central Land Council, ANON-K57V-XQQ4-U, NSW Aboriginal Land Council, ANON-K57V-XQ28-Z, Tasmanian Aboriginal Centre, ANON-K57V-XQKY-T

[54] Submissions to the EPBC Act Review discussion raising this issue included: Northern Land Council, ANON-QJCP-UGJD-R, Central Land Council, ANON-K57V-XQQ4-U

[55] NESP - Northern Australia Hub, ANON-QJCP-UGJA-N. Submission in response to the EPBC Act Review Discussion Paper

[56] Department of Agriculture, Water and the Environment 2016, Engage Early—Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999

[57] Department of Agriculture, Water and the Environment 2016, Engage Early—Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999

[58] Department of Agriculture, Water and the Environment 2002, Ask First – A guide to respecting Indigenous heritage places and values

[59] See Section 79B of the Victorian Aboriginal Heritage Act 2006.

[60] See the Northern Territory Aboriginal Sacred Sites Act 1984 and Aboriginal Land Rights (Northern Territory) Act 1976.

[61] See Part 1, Section 3(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cmwth)

[62] Submissions to the EPBC Act Review discussion raising this issue included: Northern Land Council, ANON-QJCP-UGJD-R, Australian Institute of Aboriginal and Torres Strait Islander Studies, ANON-K57V-XFT6-N, Wurundjeri Woi-wurrung Cultural Heritage Aboriginal Corporation, ANON-K57V-XQ5S-X

[63] See Kwaymullina, A. 2005, Seeing the Light: Aboriginal Law, Learning and Sustainable Living on Country. Indigenous Law Bulletin, 6: 12. as referenced in Indigenous Working Group- Threatened Species Recovery Hub. ANON-QJCP-UGT1-F.

[64] Australian National Audit Office (ANAO) 2019, Management of Commonwealth National Parks, Auditor-General Report No.49 2018–19.

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