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Wurundjeri Woi-wurrung Cultural Heritage Aboriginal Corporation

QUESTION 1: Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think? 

Matters of National Significance (Matters) should be just that, nationally important. There is, however, a case to be made that Traditional Owner voices have been excluded from many of the historic decisions about what are Matters, reflected by the small proportion of National Heritage place listings that are Indigenous. It would be useful and suitable moving forward to have input from the relevant Traditional Owner groups on both their opinions of the currently listed elements, and a supported mechanism for Traditional Owner inclusion into future decisions of values. These values are potentially not public knowledge but the existence/value presence recorded.

While there is provision for Indigenous communities to include their places of value within the act, the level of recording verification, costs, and information required are often outside the immediate scope for Traditional Owner corporations. The lack of resources available to Traditional Owner groups to assess, list and protect Matters creates a major barrier in favour of the development industry. Another impediment is lack of trust in current government systems to properly protect significant cultural places. Traditional Owners should be supported to lead the process of registration with the input appropriate researchers and support staff while maintaining control and ownership of knowledge, recognition of IP, and control over information release. All elements supported through the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It is important to understand the differences in needs for communities in remote, rural, and more urban environments. An engagement plan will not be a one-size-fits-all response.

The Wurundjeri Woi-wurrung Cultural Heritage Aboriginal Corporation (Wurundjeri Corporation) supports the ability for the EPBC Act to incorporate new items of National Significance and recognises the activity as essential. Progressive evolution of policy and legislation shows that adaption is essential, particularly in light of climate change impacts and rapid land use change. Ecological systems are dynamic and need to have proactive protection if and when they become threatened. There has to be appropriate knowledge and mechanisms to facilitate change.

QUESTION 2: How could the principle of Ecologically Sustainable Development (ESD) be better reflected in the EPBC Act? For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making? 

The principles of ESD are important to the Wurundjeri Corporation, particularly with regards to intergenerational equity, health, and the retention of biodiversity. EDS valuation models are particularly difficult to implement as, usually, the Environmental and Social aspects are not given appropriate weighting, through inaccurate environmental costing models, a lack of value placed on people who work in the sector, and a lack of education about the environment and social benefits of long term planning in natural resource management. Market-based valuation models also assume that there is a dollar value to everything, which does not sit well with Traditional Owners who have different perspectives of Country. It would be too easy to remove, restrict, or ignore Traditional Owner concepts of value and cultural context in the market-based processes, which would be against the ESD principles. Environmental degradation has a greater cost to the future and intergenerational sustainability than is often accounted for in such systems. Conservation is widely promoted as a cost in an economic sense, rather than of being a benefit within economic models because it does not provide immediate direct financial profit. Healthy functional ecology and ecosystem services on Country are essential.

The principles of ESD are sound, but in light of the concerns around implementation and valuation systems we would argue for more information, the involvement from trained professionals, and the appropriate inclusion of Traditional Owners concerning any application of ESD principles if pursued as a method for decision making.

QUESTION 3: Should the objects of the EPBC Act be more specific? 

The objects of the Act seem pretty specific, what isn’t always specific is the implementation around those objects. The Act has provision for cooperative approaches to environmental management, however there is very little in the way of guidance for relationship building with Traditional Owners. The communication is limited and one-sided in the case of the Wurundjeri Corporation’s National Heritage Place, the Mt William Stone Hatchet Quarry. The Wurundjeri Corporation has had limited communication, involvement, and support from the department with regards to ongoing management and research.

There seems to be little in the way of proactive protection, rather the Act seems to come into play through the application process to impact upon some aspect of National Significance. In addition there is minimal information about the way the Act is used to fulfil its agenda (as described in Box 3 of the review document). Some Wurundjeri Corporation members do not feel engaged with the processes of the EPBC Act and find it difficult to reconcile its purpose and outcomes with the other legislative processes that they are more familiar with.

QUESTION 4: Should the matters of national environmental significance within the EPBC Act be changed? How? 

While there is protection of National Heritage Places, the Wurundjeri Corporation would support the creation of an Indigenous cultural heritage specific category that would identify important cultural places incorporating intangible, ecological, environmental, and physical cultural assets. Any nomination system would have to be a process in line with cultural lore, and be driven by the principles of self-determination and the other principles of UNDRIP. Any reports used or created in any such determination must remain the property of the specific Traditional Owner groups who’s information and knowledge it is. 

The Wurundjeri Corporation owns part of one of only a few Indigenous places currently listed on the National Heritage Register (Mt William Stone Hatchet Quarry). The extent of this Indigenous place is not fully within the control of our organisation, which is a concern to the community as the area outside the property boundary is considered part of the Indigenous cultural landscape. The Wurundjeri Corporation does not have statutory control over land management practices and protection decisions at this Indigenous place, while the current landowner has the responsibility of protecting part of the landscape.

The Wurundjeri Corporation would support the creation of an ongoing national system within the EPBC Act for assessing and protecting Indigenous places of National Cultural Significance, as this fills a gap between the State protections and the World Heritage processes particularly for Traditional Owners.

QUESTION 5: Which elements of the EPBC Act should be priorities for reform? For example, should future reforms focus on assessment and approval processes or on biodiversity conservation? Should the Act have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity, removing the need for regulation in the right circumstances? 

The Wurundjeri Corporation would like to see several future reforms for the EPBC Act. The Corporation would like to see a greater emphasis on project proposals and plans which avoid impact on listed Matters. The Wurundjeri community prefers proactive protection of threatened species and ecological communities, and Indigenous cultural heritage, rather than offsets or relocation. The Wurundjeri Corporation would also argue to increase Indigenous inclusion in regulation processes, as Traditional Owner voices in such matters are not included. Assessment and approval processes should look to include Traditional Owner values.

The Corporation would also like to see greater inclusion of Traditional Owners cultural values as part of any registrations of culturally sensitive areas, species, and communities that are Matters or listed on the National Heritage register in general. This process must include proper resourcing and inclusion about decisions for elements of cultural knowledge from the appropriate Traditional Owner communities. Values are not just scientific, they are also cultural.

It is also important to ensure that companies impacting Matters have the financial ability to rehabilitate and restore damaged areas. For example, the rehabilitation of mining and quarrying activities does not seem to be monitored or managed appropriately, with companies not held accountable even if rehabilitation is part of their conditions of operation.

The final aspect of removing regulation in the right circumstances is not something that the Corporation would not necessarily agree to. At this point, it is unclear what would constitute the ‘right circumstances’, who would decide the criteria, and when it would be applied. This Act is supposed to protect the listed items and, by reducing the oversight and information received by the agency, there is less evidence available for making informed decisions.

QUESTION 6: 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? 

This review should also look at improving and properly resourcing environmental protection systems. This is not just maintenance of existing budgets, there has to be actual and real increases in environmental spending, and a reversal of the current devaluing of the environmental sector through a reliance on volunteers. Volunteer programs are great but there is also a requirement for appropriately renumerated trained professionals. The ecology and cultural assets of Australia are key to our identity, bringing visitors the country and providing employment opportunities. Therefore the ability of the EPBC Act to protect listed Matters as a first option should be a priority matter for any government.

Also in terms of guidance for those engaging with the EPBC processes it should also include improving communication about decisions, particularly to Traditional Owners, and enhancing the effectiveness of protection. The Wurundjeri Corporation would like to see the Federal Government examine options that will result in clearer environmental protection standards. Guidance around the role and extent of the Act is one suitable option for improving the knowledge situation, ensuring that people understand what the Act can do. A properly resourced environment sector would assist in this process, as well as having greater inclusion of Traditional Owner voices.

Accessible information around the how’s and why’s of EPBC Act is important. The obligations of the EPBC Act to protect Indigenous interests must increase Trust. The current level of Trust in decision-making process is particularly low within Indigenous communities, including the Wurundjeri Corporation. The current lack of protection outcomes from the EPBC Act approvals around Melbourne’s growth areas, from decisions made as long as 10 years ago do, not help with the lack of trust in these decisions. There is a perception within the Wurundjeri community that decisions made within the framework of the existing EPBC Act are too heavily influenced by economic outcomes, rather than the social or environmental benefits that would fit with ESD principles.

The final part of this question is perhaps a little too focused on just one part of the principles of ESD and should also include questions relating to the social and environmental costs of the Act. For instance, what weighting is given to social and environmental outcomes in the EBPC Act decision making processes? Who decides what the best outcome is, and what is the modelling is being used for determining economic benefit? In addition to this, what are the expected in terms of expected community benefit? It is also worth noting that an activity which impacts a Matter of National is a cost to continued ecological and cultural sustainability. The removal or damage to a functioning remanent ecological system requires a greater sum of money to restore or replace than avoidance of that Matter. Decision making processes rarely seem to consider the value of leaving something (in this case ecological and cultural values) in situ, and providing suitable maintenance systems.

QUESTION 7: What additional future trends or supporting evidence should be drawn on to inform the review?

The trends and evidence this review needs to incorporate should include those derived through proper Traditional Owner engagement in both this review and in future EPBC Act processes. Supporting evidence should include discussion points from direct consultation with Traditional Owners of areas where National Heritage and World Heritage places are located (see response to Question 4, above).

If the Act intends to operate within UNDRIP principles, then Traditional Owner engagement should be a key assessment criterion for review participation, ongoing EPBC process engagement, and inclusion in nomination processes by other parties. For example, while it is explicitly identified that Traditional Owners can nominate Matters under the Act, it is essential to ensure that Traditional Owner groups are aware that they can nominate Indigenous cultural heritage places, and what kinds of places they can nominate. There is also a matter of capacity to start and achieve a nomination. Which communities have the technical systems, the personnel, and the relationships to build an application which is ‘acceptable’ to the Commonwealth parties.

It would also be an important part of ongoing data collection, for future reviews, to understand how often the Department communicates with Traditional Owners as Key Stakeholders in EPBC processes, and to track these kinds of communications. The communication based information may be specific to an area, general information about the use of the Act, research opportunities, and/or where listed items may be at risk. It would help the Department identify if they are improving their services to Traditional Owners across the entirety of Australia.

In terms of additional information required going forward decisions for the EPBC Act should also include Research into the impacts of climate change. Predicting future habitat extents for threatened species and communities is essential to include within decision-making processes and it must be communicated to all relevant parties; applicants, traditional Owners, and landholders. If decisions are made without future climate modelling it may result in the extinction of species as their habitat is reduced.

QUESTION 8: Should the EPBC Act regulate environmental and heritage outcomes instead of managing prescriptive processes?

This Act should be able to do both.

The Wurundjeri Corporation believes that there should be a framework for regulating environment and heritage outcomes; this applies to approvals given that impact known Matters and areas where Matters may also be present/proposed for listing. How can we ensuring that the Traditional Owner organisations are informed of what approvals have been given for their Country? It is also essential to identify and manage processes where Matters may be harmed.

If prescriptive process management is removed from this Act, how then will projects and proposals harming listed Matters be managed and tracked? The Wurundjeri Corporation supports management and monitoring of destructive processes. Business operations that impact listed Matters should be monitored, and those actions should not come at the expensive of the nationally listed items which belong to all Australians.

QUESTION 9: Should the EPBC Act position the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system? Who should articulate outcomes? Who should provide oversight of the outcomes? How do we know if outcomes are being achieved?

The Wurundjeri Corporation agrees that the EPBC Act should be used by the Commonwealth to improve the delivery of heritage and environment outcomes. The Corporation would also like to see:

  • Better integration between state and federal processes
  • Better communication with Traditional Owners regarding Matters on Country
  • Improved financial support for Traditional Owners to list and protect Matters
  • Improve that protection in line with ESD and UNDRIP principles
  • Increased monitoring of damaging processes and the rehabilitation outcomes

Traditional Owners must be involved with defining the outcomes of the Act, just as they should be directly engaged and involved when it comes to reviewing outcomes from the Act, specifically those relating to cultural values and listed Matters. The information that the Wurundjeri Corporation would like to see, to be able to assess outcomes, includes the number and type of decisions pertaining to the EPBC Act, the locations of these decisions, the purpose of the decisions (e.g. protection of a listed Matter, application for impact (and how that impact was mitigated), research), and whether these decisions were undertaken in consultation with Traditional Owners.

In general, the Corporation would like to see wider and better reporting where there have been impacts to Matters. They would like to see greater emphasis on avoidance of these Matters as well.

QUESTION 10: Should there be a greater role for national environmental standards in achieving the outcomes the EPBC Act seeks to achieve? In our federated system should they be prescribed through:

Non-binding policy and strategies? 

Expansion of targeted standards, similar to the approach to site contamination under the National Environment Protection Council, or water quality in the Great Barrier Reef catchments? 

The development of broad environmental standards with the Commonwealth taking a monitoring and assurance role? Does the information exist to do this?

The Wurundjeri Corporation would support any improvements leading to greater environmental and cultural heritage protections and outcomes. The Corporation identifies that non-binding policies and strategies have minimal impact – they are tools that provide the bare minimum of protection and, as such, are not a mechanism that the Wurundjeri Corporation would support. Traditional Owner involvement in biodiversity and heritage protection does not occur through non-binding agreements. In dynamic and evolving systems, driven by climate change, land use change, and population growth it is essential to have a strong ecological science system to inform decision making processes. In the current system information is not always present.

More information is required in relation to proposed standards to understand how these might operate. Standards, if implemented, must be strategic and flexible for the range of ecosystems and cultural heritage places that occur across Australia. It is possible that such standards should relate to identifying habitat improvement, threat minimisations, and mitigating harm. In addition to scientific experts, the development of standards should be in consultation with Traditional Owners in areas of listed or proposed Matters. Engagement should not just focus on Traditional Owner groups in remote and rural areas.

QUESTION 11: How can environmental protection and environmental restoration be best achieved together?   

Restoration and rehabilitation of landscapes is often undone after the completion of works, even with the requirements of the Act, and these damaged landscapes form a growing legacy of prior activities left to volunteers, NGOs, or TOs to fix with minimal support. The Wurundjeri Corporation would like to see a greater focus from the EPBC Act on protection and restoration of Matters after works have finished. This could be through determining appropriate costs for rehabilitation prior to the commencement of destructive works. The cost could be paid to an independent body to manage until such time rehabilitation is needed. The funds act as an insurance policy that rehabilitation processes will occur. Managing on-ground restoration may not be the direct responsibility within the auspices of the EPBC Act, but there should be some level of oversight to ensure that suitable and appropriate rehabilitation is achieved. It is also more economically viable to save a particular area with listed Matters than attempt to implement, manage, and monitor offsets.

If the idea of an upfront cost for rehabilitation is used, then one measure of success might be the number of rehabilitated sites paid for out of the private purse, rather than the Commonwealth or State. Another would be the reduction of sites/places needing rehabilitation once detrimental activities cease, or the areas saved from development rather than offset.

Traditional Owners must be supported to have their say within the structure of the Act about the listed Matters, and they must be included as part of any program which focuses on restoration and rehabilitation of the listed Matters – including the potential to integrate Indigenous land management practices. This does not just apply to communities in remote and rural areas, but also Traditional Owners who live in areas predominantly taken up with freehold land. There is a distinct trend towards ongoing work with Indigenous communities in remote and rural areas, while limited resources and support are provided to Indigenous communities where development is impacting remnant areas of vegetation on Country. Traditional Owners must have their science and knowledge of Country recognised within the Act. The protection of Traditional knowledge must also occur within at least one section of legislation.

Incentives are on potential way to but only if the right type of incentive schemes are utilised.

QUESTION 12: 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?

Heritage and environmental management plans are essential to investigate the extent, nature and significance of flora/fauna and cultural heritage, and to implement appropriate avoidance, harm minimisation or management measures. However, they are useless without appropriate support to achieve the actions within them (financial and personnel). Once a management plan is in place, ensuring positive outcomes by also supporting on-ground works is in many ways more important than the ability for an organisation to do yet another supported management plan if the previous plan was left unfunded. Management plans for listed Matters could include appropriately costed actions for the life span of the plan.

There is a proven record of success with incentives for the protection of environmental assets and this would also seem appropriate for Heritage places. There has to be a strong monitoring and compliance aspect to ensure long term and appropriate protection. Incentives occur in several different forms so identifying appropriate one/s should occur. If introduced incentives should be managed and monitored by an independent body.

The inclusion of Indigenous cultural places in the National Heritage Register is important and, until recently, has been under-valued within the current assessment system. Benchmarks and categories for inclusion should be modified for greater inclusion of Traditional Owner places and values. They must include Indigenous values for assessment, utilise Traditional cultural knowledge, and be developed directly with Indigenous communities – using the UNDRIP principles as a guide.

In terms of place-based versus values-based approaches, it is important to understand the link between values and place; one is not more important than the other. Intangible cultural values and ecological cultural values must be included within any future process, as for too long there has been the artificial separation of Cultural Heritage and Environment.

The EBPC Act should also consider a system to protect sensitive and sacred information without having to disclose such information to the state. Current Intellectual property laws in Australia are insufficient to do this and there is an opportunity for the EPBC Act to promote Indigenous knowledge (and data) sovereignty as this will also bring it closer in line with the UNDRIP principles. There would also have to be a dedicated effort to ensure appropriate nation-wide consultation on this matter, rather than the standard top-down approach, supporting self-determination. Heritage protection and listing must be both place-based and values-based to ensure the complete understanding of a listed Matter. For example, the cultural values of Mount William Stone Hatchet Quarry are much broader than the physical location of the quarry. These cultural values comprise the stories, trade links, and traditional knowledge of Mt William stone, as well as the place-based tangible aspects such as the landscape and its physical features, and the surface and subsurface Indigenous artifacts from quarrying and trade activities.

All Traditional Owners should also have support around lodging applications for listing, for approving management plans on their Country, and potentially having an ongoing role in compliance of sensitive places.

QUESTION 13: Should the EPBC Act require the use of strategic assessments to replace case-by-case assessments? Who should lead or participate in strategic assessments?  

Strategic assessments, in theory, provide an ideal opportunity to investigate broader, longer-term strategic directions for preserving and protecting Matters. However, the current experience of strategic assessments on Wurundjeri Country for the Wurundjeri Corporation is a negative one. The regional assessment of the Merri Creek catchment has not resulted in suitable or defined offsets or protection, because the investigation was not rigorous or inclusive of Traditional Owner environmental values. A similar outcome was apparent for the Western Grasslands Reserve study, west of Melbourne. Strategic assessments have their place, but they do not replace local, validated, current information, and they must involve genuine consultation with Traditional Owners that translates to inclusive outcomes.

Any investigations into the Matters, particularly regional strategic investigations, should include the relevant Traditional Owners. Traditional Owners have rights to speak on Country about cultural environmental values.

QUESTION 14: Should the matters of national significance be refined to remove duplication of responsibilities between different levels of government? Should states be delegated to deliver EPBC Act outcomes subject to national standards?

There is benefit in looking at ways to simplify the complex elements of the EPBC Act; however duplication of responsibilities is not necessarily a detriment when determining outcomes for the listed Matters. Environmental resources, species, communities, and cultural heritage are not uniformly spread across a landscape and they cross modern jurisdictional boundaries meaning that a one size fits all approach to environmental management is not suitable, and that backing up state legislation with Commonwealth has benefits. The current systems of data collection and legislation used in preserving and protecting the environment and cultural heritage are different between each State and the Commonwealth. Until such time as there is seamless information sharing with regards to threatened species and communities, protection, and cultural heritage, duplication offers the opportunity to ensure decisions are appropriate at the National, State, and regional scales.

The Wurundjeri Corporation would like to see improved information sharing with the government agency responsible for administering the EPBC Act, and would like to see National Standards for decision making. The Corporation would also like to see a mechanism developed for reviewing and appealing decisions made that impact Nationally Listed items.

QUESTION 15: Should low-risk projects receive automatic approval or be exempt in some way?

  • How could data help support this approach?
  • Should a national environmental database be developed?
  • Should all data from environmental impact assessments be made publicly available?

Low-risk projects should not be automatically approved or exempt – this process should have some oversight, and not just rely on the perception of a single assessor. If a species, community or location of cultural heritage is worthy of listing, it is certainly worthy of having a proper and fulsome assessment if there is a chance of harm.

Databases with spatial and cultural information are useful if they are properly resourced, updated, and fully utilised, and have the potential to improve transparency around EPBC applications, decisions, and listings would be useful. A useful dataset would include the (approximate) location of an EPBC application, its status, and the application Status (if it was approved or is pending etc.). Information and decision transparency is important in terms of the EPBC Act process is important. When private entities apply to impact on listed Matters under the EBPC Act, it is an asset belonging to the Australian people that they are disturbing. There is, however, also the issue that databases, including spatial databases, cannot always represent all the values of an area, and that sometimes the location of an important asset may not be included because to do so would attract unwanted attention to that value.

The development of a National Database will require a lot of preparation if it is to be used and useful and in particular must also include safeguard for Traditional Owners to retain rights and ownership of their data, including where necessary managing how locations of sensitive cultural assets are represented. Again this is in line with UNDRIP around knowledge ownership and data sovereignty issues. Access, inclusion, and editing rights are important factors to consider. More information is required by the Corporation regarding any proposed new National database of information. It is also interesting that there are already numerous National databases already in development which seek to add cultural and ecological data.

Access to a national environmental database must involve written consent from Traditional Owner groups if the information pertains to Aboriginal traditional knowledge or cultural heritage. The issue of public data is a complex one for Indigenous people. From cultural perspectives, not everyone is entitled to all information about everything. Under the terms of the UNDRIP, there is an explicit discussion about rights to manage knowledge and other Matters as they see fit. Indigenous cultural knowledge and Data Sovereignty is important and must be respected. This ultimately means Indigenous information and data must not be public without free informed prior consent, and Traditional Owners decide on the way their knowledge is treated.

Another aspect of a public database is that it can attract people to culturally sensitive areas or places where there are sensitive, rare, and threatened species. It is a risk to those places to make that information public.

QUESTION 16: Should the Commonwealth’s regulatory role under the EPBC Act focus on habitat management at a landscape-scale rather than species-specific protections?

The Wurundjeri Corporation would expect that there is a focus on both landscape and species-specific protections, as they are intrinsically linked. Any attempt to separate species and landscapes when considering protection of Biodiversity values would be irresponsible in the long term survival of communities and species. It is particularly important in the face of environmental fragmentation through peri-urban expansion, massive fire impacts, agricultural expansion, and rapid climate change.

There is incredible value in having a local and regional response in biodiversity management processes, but is also important to have good public policy and guidance, particularly in bringing resources which are not always locally available when protecting nationally listed communities and species. This is particularly important around big issues such as climate change, urban expansion, clearing, and mining demands. Increasing and ongoing risk to species and communities from climate change is one area which points to the need for a holistic regulatory process.

The Wurundjeri Corporation would not be averse to expanding the EPBC Act regional and bioregional response planning, particularly with the inclusion of Traditional Owner groups as part of any process. Understanding values and threats on the bioregional scale is essential for good decision-making, particularly with the inclusion of Traditional Owner perspectives.

QUESTION 17: Should the EPBC Act be amended to enable broader accreditation of state and territory, local and other processes?   

There are certainly opportunities to update and improve the EPBC Act from a traditional regulatory Act. From the Wurundjeri Corporation’s perspective, co-regulation processes which are inclusive of Traditional Owner voices could be an appropriate process. Based upon the operating principles of the EPBC Act, any change should facilitate greater support of the principles in UNDRIP. Traditional Owners should be at the table regarding Matters that relate to their Country. Co-management agreements in the Natural Resource Management space are currently implemented through Native Title processes (and in Victoria, the Traditional Owner Settlement Act and the possible outcomes of Treaty negotiation). However, the EPBC Act should be inclusive of all Traditional Owner organisations representing their Country, even those who may not have the formal legal standing within the existing State systems.

The Wurundjeri Corporation understands that the achievement of ecological offset outcomes is highly variable, and that positive results from highly prescribed management plans is variable (i.e. plant rate survival) often reliant on favourable factors that are highly variable (i.e. weather, rainfall etc.). However, the Corporation would disagree that legislation is not about ensuring compliance with the requirements of the Act. If there is no way to check that appropriate processes are followed, then adherence to the EPBC is reliant on trust. It is unlikely that, even without malicious intent, every process and requirement is adhered to precisely, and therefore harm would come to protected Matters without the knowledge or ability to amend a harmful process. Prescribing a mechanism to ensure compliance is important. The ability to have a compliance and outcome-based system that recognises ecological and environmental uncertainty is required as we move into a period of greater climatic uncertainty with broader reaching impacts i.e. the 2020 fire season, where not only fire but persistent smoke issues occured. Use of state/territory, local and other independent experts from diverse and suitable backgrounds to monitor and manage compliance may be an appropriate process, which should include local Traditional Owner representation.

QUESTION 18: Are there adequate incentives to give the community confidence in self regulation?

No. The Wurundjeri Corporation utterly rejects the idea that Matters can be protected through self-regulation. Self-regulation in general both in Australia and around the globe is susceptible to issues of non-adherence and reduced compliance, whether it be intentional or negligent. Self-regulation is often narrow in its implementation, considering certain voices or authorities and ignoring or minimising others. It is a privileged system often used to lockout external or dissenting voices.

The concept of self-regulation for Matters across all aspects of the legislation would be unacceptable to the Wurundjeri community as Traditional Owners.

QUESTION 19: How should the EPBC Act support the engagement of Indigenous Australians in environment and heritage management?   

  • How can we best engage with Indigenous Australians to best understand their needs and potential contributions?
  • What mechanisms should be added to the Act to support the role of Indigenous Australians?

Elders and Traditional Owners from the Wurundjeri Corporation should be involved and informed in decision-making about any proposed or listed Matters on Wurundjeri Country. The Narrap and Water Unit at the Wurundjeri Corporation support greater involvement across the range of listed Matters, particularly recognition of cultural landscapes, plants and animals, and the Cultural Heritage Team supports the VAHC’s response to this question.

Based upon the current version of the Narrap (Country) Plan, the Wurundjeri Corporation prefers a model of engagement with external parties that is proactive, inclusive, and supports self-determination. The Narrap Plan outlines Wurundjeri Corporation’s processes in relation to the NRM sector. The model contains four elements which are interlinked and assist the Wurundjeri Corporation to assert their sovereignty and work with a range of stakeholders. This is demonstrated in the draft Narrap Plan. While the State of Victoria is directly referenced in this plan, it is relevant to Federal legislation as well:

Draft Statement from Narrap Plan advocating Wurundjeri Corporation involvement at all levels of decision-making processes:

  1. Policy & Legislation (Consultation) - Direct engagement in policy development with the State of Victoria and associated government departments with regards to legislation which impacts Country.
  2. Program Partnership – Equitable involvement and inclusion with projects and programs for Elders and Community as leaders, partners, or as informed recipients.
  3. Consulting – Paid professional work for a service conducted by the Narrap Team (or other business units) and usually acquired through a tender process.
  4. On ground presence – Direct Caring for Country actions that include restoration, rehabilitation, protection, research, education, assessments, and knowledge gathering. This also can include Cultural Values knowledge sharing.

Based upon the concept of Free Prior Informed Consent and Ethical research principles, there are three main types of involvement which can be considered from the organisational perspective.

  1. Information Sharing: In areas to the Corporation about activities and outcomes as not all projects will have direct involvement but information about activities is essential.
  2. Participation: Active inclusion of the Corporation in planning appropriate actions for projects rather than being told what to do.
  3. Education: Opportunities for the Corporation’s membership to share their experiences, knowledge, and values in a culturally appropriate manner. Opportunities for the Wurundjeri Corporation Elders and community to learn from technical and subject experts.

The Wurundjeri Corporation has the final decision on the type of participation they would like to have. This decision can be influenced by other factors such as internal organisational capacity, budget, and demand from other sectors and unexpected events. While not all of these are directly relevant to the working of the EPBC Act, the principles of appropriate information and sharing is key.

QUESTION 20: How should community involvement in decision making under the EPBC Act be improved? For example, should community representation in environmental advisory and decision-making bodies be increased?

While other groups will speak to the inclusion of the broader community, this response is focused on Indigenous community inclusion. The Wurundjeri Corporation suggests that greater inclusion of local Traditional Owners in decision-making processes is essential. Traditional Owners have unique and often different views on the values of sensitive environmental and cultural Matters. The parameters of healthy ecology may be different, but scientific and Indigenous views often align and should be included as equal and valid points of view when determining important protected Matters under the EPBC Act. Traditional Owners speak for Country.

This is in line with UNDRIP principles and should apply to Traditional Groups regardless of their recognition and status under State legislation.

QUESTION 21: What is the priority for reform to governance arrangements? The decision-making structures or the transparency of decisions? Should the decision makers under the EPBC Act be supported by different governance arrangements?

When decisions about the listed Matter are made on Wurundjeri Country, the Traditional Owners should be involved and informed. The Wurundjeri Corporation would like there to be more transparency around both the decision-making process and why a particular decision has been reached. These factors are connected and should be treated with equal importance. This is would be in keeping with the UNDRIP principles. The Corporation also would like to see the Commonwealth take on board the various self-determined processes and engagement structures outlined in Country Plans from across Australia. In terms of Wurundjeri Corporation, the Narrap Plan outlines the organisations desired processes for communication and engagement as an equal partner regarding matters of Culture (environment and intangible knowledge) on Wurundjeri Country. Wurundjeri people should have a say in outcomes on Wurundjeri Country.

QUESTION 22: What innovative approaches could the review consider that could efficiently and effectively deliver the intended outcomes of the EPBC Act? What safeguards would be needed?

As mentioned previously in this review, the Wurundjeri Corporation would like to see avoidance as a primary outcome.

Other aspects include the understanding that economic imperative is not the only metric or driver for outcomes, and that ESD models, if used, must be able to incorporate cultural values.

Ensuring that there is a fund available for rehabilitation, restoration, and research that comes from the pockets of those who damage or destroy listed Matters should be considered seriously in approval processes. Funds could be held independently until such time as they are needed.

QUESTION 23: Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?  

The Wurundjeri Corporation would welcome the development of suitable and appropriate environmental markets, and the implementation of a trust fund, particularly established on the premise that biodiversity has value even when not utilised as a resource.

An economic opportunity exists to expect upfront payments from companies who are required to conduct post works rehabilitation to pay upfront and before works commencing. This money would go into an independently managed trust fund for use after the activity by appropriate parties. Profits from such a fund could contribute towards Traditional Owners, researchers, and community groups managing and protecting the EPBC listed species, communities, and cultural heritage across the country.

QUESTION 24: What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

The Wurundjeri Corporation sees greater involvement by Traditional Owners, and increasing capacity of these organisations to be directly involved with developing and achieving offset outcomes across land and sea Country, as key opportunities. The Corporation would also support looking at landscape decision-making for cultural assets, and building a system for decision-making that takes into account climate change and intangible cultural values. The Wurundjeri Corporation is dubious about the current outcomes of offsetting processes, particularly through the experience with the Offsets for the Western Grassland Reserve and the Northern Woodland Reserve in the Peri-urban landscapes near Melbourne. Market-based forces present limited outcomes for ecologically valuable land particularly where developers outprice all other options. Offsets cannot be made locally through this process, which further reduces the ecological and cultural heritage landscape value.

QUESTION 25: 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?

Private sector funds are always welcome into biodiversity practices with the provision that it occurs without restriction to their end-use from the donator. Private money without an agenda is preferable unless it is linked to specific damages. It is also important to identify those who impact Matters and their responsibility to avoid, and minimise that harm as well as pay for damage done to items which are deemed valuable by research scientists, community members, and Traditional Owners.

A significant risk is that of green-washing, where donations are used by companies and individuals as a way of buying the good will of the general public. Cost of administration is particularly difficult to address. Identifying what an appropriate operational budget was and having transparent reporting structures would be essential for this type of fund.

Public sector funding for environmental protection is essential for the protection of significant biodiversity values (including cultural values). These are values that have been judged as important to Australia.

QUESTION 26: Do you have suggested improvements to the above principles? How should they be applied during the Review and in future reform?

The Wurundjeri Corporation is keen to see Traditional Owners have greater involvement in the integrated and smooth processes for managing listed Matters. The Corporation advocates processes which retain assets within Country rather than see them offset, ensure cultural values are properly recognised and protected, and have requirements for discussions with Traditional Owners about appropriate land use and management.

Effective Protection

Effective protection is not occurring as the outcomes are still vague and not funded. For example, the Native Grassland approval to the west of Melbourne, which laid out plans for publicly acquiring land for a grassland reserve, has failed to deliver the protection and funds for management. There is only vague understanding of what the EPBC offset reserve in the north of Melbourne will look like. The initial reporting of the values in the Merri Creek catchment were understated, and the resulting decisions and approvals subsequently flawed.

There are still gaps whereby listed species, communities and cultural heritage are still being removed and harmed, even with the processes in place to protect them. In particular, decisions are made to approve vegetation removal on a case-by-case situation without looking at the entire landscape and cumulative impacts on the listed Matter.

Economic Opportunities

The Wurundjeri Corporation would like to develop ecological sustainable systems in partnership with the Commonwealth that provide ongoing protection for listed Matters, including cultural heritage. The Wurundjeri Corporation has observed that the majority of economic opportunities are focused on financial gain via approval for destruction and offset, for example, clearing of vegetation for housing development. One of the few non-destructive models is tourism. There are, however, situations where tourism is not an option, as it is either inappropriate or hard to set up, maintain and deliver. Identifying economic outcomes should be developed on a case-by-case basis, as they are not always going to be compatible with the listed Matters. Economic opportunities are welcomed by the Wurundjeri Corporation, but not at the expense of the cultural and environmental values.

Indigenous Inclusion and Improving Inclusion

The Wurundjeri Corporation would like to see greater and explicit engagement with Traditional Owner groups (as indicated through the UNDRIP processes). This document is very dense and could be transferred into a Plain English version to improve the chances of feedback from Traditional Owner groups. The longer timeframe, which in this instance was driven by necessity, is of benefit to Traditional Owner corporations and should be considered in future reviews.

  • Short timeframes for feedback do not allow a full and considered response from Traditional Owner groups, and is contrary to the UNDRIP principles of self-determination and prior informed consent.
  • Inclusion in and information to Traditional Owners about EPBC Act decisions on Country are essential moving forward.
  • Time and resources to support the inclusion for building meaningful partnerships with Traditional Owners are also critical.
  • Inclusion of a self-determined cultural network of cultural places is also essential.

The ability to remove Native Title from Traditional Owners by the Government is a massive concern. This type of action does not inspire trust in EPBC Act processes, and the transparency of decision making. It also goes against the UNDRIP principles, which makes a mockery of the statement.

Supporting Partnerships

The Wurundjeri Corporation would like to understand the definition of partnership in this context. The Corporation identifies partnership as a full commitment to support participation, ensure free prior informed consent, and respectful recognition of rights to Country. As such, the Wurundjeri Corporation would like the Commonwealth to support partnerships with Traditional Owners so that they can have direct, ongoing, and meaningful interactions via the EPBC Act.

In terms of this and future reviews, the Wurundjeri Corporation believes that it is the responsibility of the Commonwealth to remove participation barriers for Traditional Owners to ensure genuine inclusion. It is essential for the Commonwealth to understand the resourcing of Traditional Owner groups that are, and are not, engaged in undertaking this review to foster greater self-determination in-line with the UNDRIP principles. There are many Traditional Owner groups that do not have the staff or resources to respond to a detailed document that is not in Plain English format. It should be the goal of the Commonwealth to reduce inequality and inequity, rather than continue in a ‘business as usual’ manner which is ultimately exclusionary.

Moving forward into implementation of the Act over the next 10 years, Traditional Owners should be a full partner in decision-making processes within the auspice of the EPBC Act with respect to Country. This means that Traditional Owner groups must be supported to achieve full partnership under the auspice of the EPBC Act. Traditional Owners must have the resources, the time, and the support to present their views, their values, and ideas for asset protection.

QUESTION 27: Is the EPBC Act delivering what was intended in an efficient and effective manner? - Is the EPBC Act delivering what was intended in an efficient and effective manner?

The delivery of the Act is not well known to the Wurundjeri Corporation. It is difficult to understand the processes which led to an unsuccessful grant application in 2018-19 when the feedback suggested that an organisation which has delivered multiple grants valuing in the 100's of thousands and also manages a turn over in excess of $3mil could not manage a $200,000 two year grant.

It is also difficult for the community to understand how decisions to destroy sensitive and listed matters  continue to be approved if the EPBC Act is working within ESD and UNDRIP principles.

QUESTION 28: How well is the EPBC Act being administered? - How well is the EPBC Act being administered?

The administration of this Act is difficult to understand which means that Wurundjeri people do not know if it is being administered effectively or not

There is little to no communication with the Department even about the area which we own that is listed.

In light of the lack of knowledge it must be said that the department is failing to discuss matters with Traditional Owners and is not well administered in that respect.

QUESTION 29: Is the EPBC Act sufficient to address future challenges? Why? - Is the EPBC Act sufficient to address future challenges? Why?

The EPBC Act is at this time not equipped to address future challenges but could be amended to be well positioned. Currently the ability for organisations to not comply with clean ups and rehabilitation after disturbance is too high. There is also minimal recognition of the impacts of climate change, urban expansion, and agricultural intensification. These four factors must be addressed to ensure improved ecological and biodiversity protection outcomes.

The final factor  is the increase in funding for Traditional Owner involvement through consultation, communication, and active supported participation.

QUESTION 30: What are the priority areas for reform? - What are the priority areas for reform?

Wurundjeri Corporation supports initiatives in climate change as this is a significant threat to Country and its values.

They also would like to see greater Traditional Owner participation and support, and inclusion more formally within the Act.

The third area for reform is transparency and accountability. Transparency around decisions and accountability to improve listed Matters by those who damage (either with or without approval).

QUESTION 31: What changes are needed to the EPBC Act? Why? - What changes are needed to the EPBC Act? Why?

There needs to be greater inclusion for Traditional Owners in decision making processes, including representation on panels, advice about culture and ecology as well as recognition of ownership, and the development of strong trusting partnerships.

While this will not always be a smooth and harmonious process the future outcomes for building trust within a decision making framework and legal structure is yet another essential step towards reconciliation and recognition of prior rights.

QUESTION 32: Is there anything else of importance to you that you would like the review to consider? - Is there anything else of importance to you that you would like the review to consider?

This review is not easily accessible to Traditional Owner groups, it requires high level literacy, an understanding of political structures, reliable internet and email access as well as the understanding of the current policy and act. Traditional Owners have the right to speak for their Country and as such greater effort should be made to have those people heard.

Engagement with peak or industry bodies (such as the Victorian Federation of Traditional Owners or the Victorian Aboriginal Cultural Heritage Council in Vic) are  useful but they do not represent all groups.



The full text of this submission including the attachment can be downloaded using the ‘download pdf’ link in the sidebar of this page.


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Submission ID

In response to

Discussion paper
Wurundjeri Corporation


The objects of the Act
Threatened species
International obligations
Indigenous Australians
Matters of National Environmental Significance
Environmental Impact Assessments
Cumulative impacts
Climate Change
Compliance and enforcement
Decision making
Public participation in decision making
Wildlife trade
Commonwealth National parks

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