Wreck Bay Aboriginal Community Council (WBACC)

Submission in response to discussion paper

Are heritage management plans and associated incentives sensible mechanisms to improve? How can the EPBC Act adequately represent Indigenous culturally important places? Should protection and management be place-based instead of values based?

The Board considered these questions (Questions 12 and 19), as well as the document entitled Chapter Seventeen, Indigenous Information, available with the Discussion Paper, and made the following points:

• Section 8 of the EPBC Act also needs to refer to the Land Grant (Jervis Bay Territory) Act 1986 as an Act not affected by the EPBC. Also, WBACC’s legal advice is that the Land Grant Act takes precedence over the Native Title Act 1993. WBACC also suggests that its By-Laws under the Land Grant Act are tools that it currently has to place restrictions on areas of significance, to make an area a significant Aboriginal Place, but it is unclear how this works if that place is within the BNP, under the EPBC Act.
• Section 505A of the EPBC should require inclusion of members from each of the Jointly Managed Parks on the Indigenous Advisory Committee.
• WBACC would also like to see a National Framework supported by a network of Indigenous Land Management Facilitators, and would like the Jervis Bay Territory to have an Indigenous Land Management Facilitator and a seat at the Indigenous Advisory Committee table.
• WBACC is of the view that Caring for Country and Working on Country initiatives should be independent of Parks Australia, and not caught up with Parks’ Australia’s budget. Funding for these programs should only be directed to Traditional Owners/ Land Councils, through the National Indigenous Australian Agency, to ensure that money is spent on programs that directly benefit and further the land management skills of Traditional Owners/Land Councils.
• The Board notes that it is very difficult to get new listings of Indigenous Protected Areas.
• World Heritage Listing can affect the status of traditional owners in decision making and can affect traditional use. The obligations that Australia owes to the world can result in less voice for communities, despite the requirement for them to be involved in each step of a process. Uluru and Kakadu are treated differently to Booderee because Booderee does not have World Heritage Listing. Uluru and Kakadu need more recognition for their communities’ viewpoints.
• Having said that, the lack of World Heritage listing means that in Booderee, there is no obligation to involve traditional owners is every step of the process. The Director of National Parks only has to “consult” traditional owners rather than involve them in decision making.
• In the area of Bilateral agreements and strategic assessments (section 49A) WBACC agrees that Indigenous peoples should have the right to give their free, prior and informed consent on decisions that have a direct or indirect impact on their lives – “consideration of the role and interests” is not enough.
• WBACC also finds it problematic that the Act refers to “Traditional Owners” throughout and under the Land Rights (JBT) Act that term has no meaning and can create confusion. WBACC would prefer the term “Registered Members” when referring to WBACC.
• Likewise, references to “indigenous people” (s.368) who are not traditional owners also creates confusion, with the possibility of non traditional owners/ registered members of WBACC being consulted with regard JBT lands.
• WBACC very much supports the need for better linkages with other Indigenous legislation, particularly in the area of indigenous cultural heritage. Currently there is no automatic ownership of objects for Aboriginal communities. Objects belong, under several different pieces of legislation, to the Director, or the Minister, or the ACT Chief Minister.
• WBACC also wants protection of burial rights within the Booderee National Park and wants the rights of interment in the JBT better defined.
• WBACC does think that protection and management should be place based instead of values based (eg. we want the EPBC to specifically recognise the JBT and the individual issues we have due to our anomalous jurisdictional status), however WBACC is also strongly of the view that there needs to be one piece of legislation that deals with indigenous heritage adequately and consistently across all places.
• WBACC makes the point that our vision is for sole management of Booderee – it is the part of our aboriginal land currently covered by the EPBC. We intend to move towards sole management by consolidating Park’s functions into WBACC’s over time.
• WBACC would like the EPBC Review to consider the role of Director of National Parks. The discussion paper questions do not seem to elicit any comment on the role of the Director.
• Our understanding is that under the EPBC, the position does not hold the level of authority that it did under the Australian National Parks and Wildlife Act, that preceded the EPBC, when the Director was independent and answerable to the Prime Minister. Now the role is not part of Parliament, is not really answerable to Parliament and can’t negotiate as an independent with other Commonwealth agencies for the rights of indigenous people.
• The role is essentially just another role in the department of the Environment, subservient to the Minister of the Environment, which is not necessarily the most appropriate department for the furtherance of indigenous rights.
• The Minister rather than the Director submits Plans of Management for Jointly Managed Parks to the Parliament; submissions for funding are done by the Department, not the Director.
• The Act does not make clear how the Director role is measured by traditional owners; how does the Director role work with traditional owners in a fair minded way to support economic and social outcomes?
• At the moment the role seems to be an administrative mechanism to purchase services from Parks Australia and to deal with Joint Boards.

What high level concerns should the review focus on? For example, should there be greater focus on better guidance on the EPBC Act, including clear environmental standards? How effective has the EPBC Act been in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation? What have been the economic costs associated with the operation and administration of the EPBC Act?

WBACC wishes to reinforce points it made in its earlier submission re. the role of the Director of National Parks. The Director is essentially a figurehead under the current Act. WBACC contends that the joint management relationship should be directly between WBACC and the Minister for the Environment, with the Minister for Indigenous Australians also involved to champion the Joint Management concept.

Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?

WBACC recognises that better environmental outcomes will cost money, however WBACC does not feel confident to answer this question fully because it is not clear to us what such markets would be or how they would work. We are assuming that environmental markets might include tourism and Heritage and Environmental protection, potentially waste management, however it might also be that large polluters such as mining companies or broad scale farming businesses may be environmental markets in the sense that they could be a source of income for protecting parts of the environment they have not impacted.

WBACC asks: where would such a trust fund sit – ie. who would manage it?

Who would determine the criteria for its use? WBACC would like a role in that process.

How would the trust monies be distributed? WBACC would like a role in that process.

What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

WBACC did not address this question.

How could private sector and philanthropic investment in the environment be best supported by the EPBC Act?

• Could public sector financing be used to increase these investments?
• What are the benefits, costs or risks with the Commonwealth developing a public investment vehicle to coordinate EPBC Act offset funds?

WBACC did not address this question.

Do you have suggested improvements to the principles below? How should they be applied during the review and in future reform?

Indigenous knowledge and experience

WBACC suggests that the word “indigenous” be replaced with “Aboriginal” which is a more accurate term for the people who inhabit the three Commonwealth National Parks.

Aboriginal people need to be recognised by the Act and to play a stronger role in the management of country. There needs to be more of a recognition of Aboriginal knowledge systems that don’t necessarily fit a western concept of “qualifications” as required under APS employment rules. Aboriginal knowledge systems that would help in the fight against climate change, with bushfire management etc, are not acknowledged or recognised in the Act. Aboriginal knowledge systems need to be recognised as at least equal with western science under the Act.

Ensuring the role of Indigenous Australians’ knowledge and experience in managing Australia’s environment and heritage.

The EPBC Act does not specifically mention the concept of Joint Management, rather, this is a concept created by the Plans of Management and associated leases. WBACC supports the Northern Land Council’s call for the concept of Joint Management to be embedded in the Act.

There needs to be special recognition under the EPBC Act of the importance of the marine environment, and the need for Aboriginal management of that environment in the JBT. This necessarily involves consideration of NSW waters and NSW Marine Parks because what happens at the low tide mark (which is ostensibly in NSW) can impact the way in which land based environments, in the JBT) can function properly. The EPBC Act currently results in a gap in the management of marine resources and traditional practices (high tide JBT/low tide NSW – with different regulatory regimes, directly affecting food resources eg. pippies). WBACC contends that all Commonwealth reserves should have a marine buffer no less than a certain distance (perhaps linked to the Coastal Waters Act as it is currently for Kakadu) and that there needs to be much better cooperative management arrangements across jurisdictions. So, in the JBT, WBACC and BNP should be involved in the management of NSW Marine Parks, which directly adjoin BNP, and the JBT, and impact on it. It would be ideal if the EPBC Act could facilitate this type of cooperative arrangement.

Threatened species management should be specifically linked to the rights of Aboriginal people and links between species management and cultural and environmental management should be made under the Act.

Aboriginal scientific and cultural knowledge and experience needs to be valued also in terms of its intellectual property. This is not a concept dealt with currently in the EPBC Act. In jointly managed places, Aboriginal knowledge systems may be worked through Park /government publications, signage etc without real acknowledgement or value. This is something that should be explored for a more meaningful approach to joint management.

Improving inclusion, trust and transparency suggest adding the words” through effective two way communication with traditional owners/(registered members in the case of Wreck Bay)”to make the principle more meaningful.

Improving inclusion, trust and transparency through better access to information and decision making, and improved governance and accountability arrangements.

In the JBT, currently, departments are not necessarily working together to check that procedures and rules under the EPBC are being followed. In one case, Defence took more seabed than allowed to create a port. This was supposed to go through a referral process but that was somehow circumvented, so part of Defence’s port is in the National Park.  In another example, a commercial leaseholder extended its boundary in to the National Park. There are no processes managing the internal boundary and the seabed.

The EPBC Act should compel departments and jurisdictions to work together to give effect to its requirements.

Supporting partnerships and economic opportunity. This statement comes across as a motherhood statement and is not very meaningful. The principle should be linked with the National Federation Reform Council (formerly COAG) agendas in the areas of closing the gap.

Support partnerships to deliver for the environment, supporting investment and creating new jobs. NIAA should be one of the partners in this relationship.

Integrating planning

Streamlining and integrating planning to support ecologically sustainable development.

Ecologically sustainable development and integrated planning need to be part of government approval processes. There needs to be a recognition of the role of ACT Planning within the JBT process.

General response

Conflict between EPBC and Aboriginal Land Grant (JBT) Act 1986 in relation to Cultural Heritage - in the Jervis Bay Territory, State or Territory based legislation for the protection of cultural heritage, assumed by the EPBC Act, is missing. There is the ACT Heritage Act, but it is limited in that it does not cover the marine environment. The EPBC Act needs to be expanded in relation to the JBT, to take on the role of protecting the whole of the environment, including the marine environment, and WBACC needs to have more power/influence within that construct. Under the Land Grant Act, WBACC can apply to make an area an Area of National Significance but has never exercised this right.

Role of WBACC wardens (established under the Aboriginal Land Grant (JBT) act 1986 – they should be Rangers under the EPBC Act. The rights to transition the compliancy function to WBACC are not currently in the EPBC Act – only the BNP can perform the ranger duties. The By-Laws of the Land Grant Act have been written to reflect the EPBC, so it should not be difficult to transition to using WBACC wardens, but the EPBC Act needs to change to allow that to happen.

See relevant clauses from the Land Grant Act below.

Relevant Extracts from the Aboriginal Land Grant (Jervis Bay territory) Act 1986.

Section 6.  Functions of the Council include:

(cc) “to protect and conserve natural and cultural sites on Aboriginal Land.”

(cd) “to engage in land use planning in relation to Aboriginal Land.”

(ce) “to manage and maintain Aboriginal Land.”

Section 7.

(1) “…the Council has … power to do all things necessary or convenient to be done for or in conjunction with the performance of its functions.”

Section 47.

(1) “In the performance of its functions the Council shall have regard to the preservation of the environment.”

(2) “Where the Council proposes to carry out works or projects that could have a significant effect on the environment, the Council shall give the Minister particulars in writing of the works or project.”

(3) “In this section, environment includes all aspects of the surroundings of a natural person, whether affecting the person as an individual or in the person’s social groupings.”

Section 52A.

(1) The By-Laws don’t apply to land within Booderee National Park.

(2) The Council may make by-laws for a wide range of activities, protections, controls and regulations over Aboriginal Land – most of which are relevant to the controls which will be included within a Land Use Plan.

1. Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2016

Section 5.  Definitions

“Aboriginal Land” doesn’t include Booderee National Park.

“Management Plan” means a planning instrument approved by the Council from time to time, for the management of Aboriginal Land and all its resources.

“Town Plan” means a plan established by the Council to govern land use, activities and any other matters within a township, as determined by the Council from time to time.

“Township” – a group of dwellings denoted on a plan … of the town declared by the Council to be the current official Town Plan.

Section 13.

(1) “The Council must develop, introduce and maintain a Town Plan for each township on Aboriginal Land.”

(2) When making or varying a Town Plan, the Council must notify residents, invite representations and give due consideration to representations.

Division 5.2 – Regulatory Provisions

Section 17.

(1) An offence in this Division does not apply to an activity that

(a) is included in a Management Plan, or

(b) is carried out by the Council, or

(c) is authorised by a permit mentioned in (2) …

(2) The Council may issue a permit … authorising a person to carry out an activity prohibited under Division 5.2.

Section 19.

The Council can issue a permit for an activity if it can be done in accordance with a Management Plan.

Sections 20 – 63 prohibit activities on Aboriginal Land.  Regulation for many of these activities would be incorporated within the Land Use Plan.  In particular, Section 21 (excavating, building and works) and Section 61 (approval for building and construction work) specifically relate to a requirement for development approval through issuing of a permit by the Council.

Section 75.

(1) The Council can only issue permits under certain conditions.  One condition (b) relates specifically to the prohibited activities in Division 5.2.  For these activities, the circumstances described in Section 77 apply.

Section 77.  Circumstances that must apply before Council can issue a permit include:

(1) The activity must be consistent with a Management Plan in force.  Or, if no management plan, consistent with the Council functions to “6(cc) protect and conserve natural and cultural sites on Aboriginal Land”, “6(cd) engage in land use planning”, “6(ce) manage and maintain Aboriginal Land”.

(2) The activity must not be likely to “(b) unduly damage Aboriginal Land”, “(c) unduly interfere with the preservation or conservation of biodiversity or heritage on Aboriginal Land”, “(d) unduly interfere with the protection of other features or facilities on Aboriginal Land” etc.