Kimberley Land Council (KLC)

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? 

The EPBC Act is intended to protect Australia’s environmental values, including in the face of emerging challenges. As such, the EPBC Act should cover, and be responsive to, such ‘new’ matters of national significance, including:

• Activities contributing to climate change (e.g. through significant greenhouse gas emissions)
• Impacts on significant water resources, notably beyond those from large coal and coal seam gas projects
• Land clearing at significant scale
• Important ecosystems of national or global significance and vulnerable ecological communities
• The National Reserve System – which includes Indigenous Protected Areas (IPAs)

Additionally, a regulatory power should be established that allows for the addition of new triggers.

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? 

Firstly, ESD should be considered to include a cultural component that reflects Indigenous people’s ongoing connection to country and millennia-old traditions reliant on an intact environment. This entails the need for a clear commitment to consultation with and participation of Indigenous people in environmental protection measures, biodiversity and cultural heritage conservation and natural resource management. In turn, that requires support and respect for the principles of free, prior and informed consent (FPIC).

Mere cost-benefit analysis should only be employed if environmental, social and cultural costs and benefits are appropriately quantified, including both direct and indirect costs and benefits. If this is not done properly and comprehensively (which is not straightforward), the EPBC Act – in direct contrast to its objects – will enshrine a perverse and artificial favouring of economic benefits, which are more easily valued in monetary terms, over environmental and social ones.

Rather than favouring one analytical approach over another ex-ante, a clear process for accreditation of assessment processes that meet set national standards would be beneficial. Assessment requirements and decision-making criteria should be clear, objective, consistent, informed by science and enshrined in legislation (and therefore publicly accessible to ensure transparency and accountability).

Assessments should be supported by independently appointed and accredited professionals to improve quality, comprehensiveness, transparency, and impartiality. Continuous improvement and establishing resilience should be key objectives, and provisions for merits reviews should be applicable across the board.

Should the objects of the EPBC Act be more specific? 

The primary object should (more) clearly be the title of the Act – environmental protection and biodiversity conservation.

Objects in relation to Indigenous people and their traditional knowledge should more strongly emphasise their crucial role in the nation achieving the other objects of the Act; e.g. by amending the following:

• “to recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity”, by adding: […] “and to support them in exercising this role by ensuring appropriate capacity, information, consultation and participation in decision-making”; and
• “to promote the use of Indigenous peoples' knowledge of biodiversity with the involvement of, and in cooperation with, the owners of the knowledge”, by adding: […] “and, subject to free, prior and informed consent, have regard to that knowledge in decision-making under the Act”.

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

Please refer to the KLC’s answer to Question 1, repeated hereunder for completeness:

The EPBC Act is intended to protect Australia’s environmental values, including in the face of emerging challenges. As such, the EPBC Act should cover, and be responsive to, such ‘new’ matters of national significance, including:

• Activities contributing to climate change (e.g. through significant greenhouse gas emissions)
• Impacts on significant water resources, notably beyond those from large coal and coal seam gas projects
• Land clearing at significant scale
• Important ecosystems of national or global significance and vulnerable ecological communities
• The National Reserve System – which includes Indigenous Protected Areas (IPAs)

Additionally, a regulatory power should be established that allows for the addition of new triggers.

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

Positive environmental outcomes should be the overall goal of the Act. These are not currently clearly defined, but could include specific goals such as threatened species recovery, net-zero emissions, no extinctions etc. They should be regulated, and reviewed / updated regularly.

Processes will still be required to ensure that these outcomes are achieved; however, clearer goals would ensure that the objects of the Act is taken into consideration in decision-making, rather than just the letter. One reason for processes to remain relevant even with an increasingly outcome-focused approach, is to ensure that outcomes are sustainable in the long term, which requires due and transparent processes in order to ensure appropriate stakeholder consultation and decisions being made on the best available information. All processes should be founded in the principles of free, prior and informed consent, and require consultation and participation of Indigenous people where their rights, interests or customs are affected or perceived to be affected.

Once again, merits reviews should be available to ensure decisions contribute to the achievement of key outcomes the Act sets out to deliver.

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 Commonwealth should have ultimate responsibility for delivering the outcomes the Act is – or should be, as per answer to Question 8 – designed to deliver. As such, while States and Territories have a role to play in executing processes and facilitating assessments, oversight, monitoring, and assurance of outcomes, including remedial action and penalties, should be a Federal responsibility. This ensures consistency and transparency.

How can environmental protection and environmental restoration be best achieved together?  

In order to facilitate effective operation of the legislation, provisions in relation to environmental restoration should be integrated into the EPBC Act, such that protection and restoration are covered under one umbrella. This also ensures that the protections and proactive support for native title holder and other Indigenous people’s rights and interests the KLC is advocating for in relation to the Act are equally applied to environmental restoration. This is all the more important in light of ever-increasing pressures from development on ecosystems.

Please refer to the remainder of this document for detail on the incorporation of Indigenous land management approaches and relevant consultation.

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 Act needs to ascribe authority to Indigenous people (in particular Native Title holders) to identify and designate places of cultural significance. This ability should extend to cover the intangible values of a site, although they may not otherwise be recognised by Western law, such that traditional owners are able to protect their history and stories in the same way that physical (natural) assets would be protected.

On the one hand, this approach requires the Act to respect and recognise Indigenous traditional cultural and ecological knowledge as authority on – and sufficient proof for – the significance of a place. On the other hand, it necessitates strong protections for Indigenous cultural knowledge and tradition against undue access, disclosure and use, in the same way that other intellectual property would be protected.

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?

Issues of duplication are already adequately provided for by delegation of decision-making through bipartite arrangements.  Further delegation is not warranted.

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?

Automatic approvals come with a range of inherent risks that, cumulatively, should not be considered acceptable. Furthermore, the mechanisms of self-referral and levels of assessment already adequately provide for different levels of impact.

Furthermore, the combined impact of several projects that may individually be considered to be ‘low risk’ may in fact be major and of national significance – this applies especially if large projects were broken up into smaller, seemingly low-risk components, or if several individual projects across States were not centrally assessed. Overall responsibility and oversight is crucial to avoid such unintended consequences.

In addition, automatic approvals also do not allow for appropriate consultation processes or the assurance of free, prior and informed consent for example where Indigenous people’s rights and interests might be affected.

However, a national environmental database could significantly streamline and make more consistent the approval process for all projects. Equally, a clear, objective, and consistent set of assessment requirements and decision-making criteria, informed by science and enshrined in the legislation, would have the same positive impact and reduce assessment costs.

Relatedly, all data and information related to assessments should be in the public domain in a timely, transparent and easily accessible manner. This would not only improve overall transparency, accountability and ultimately confidence in the system, but would avoid costly and time-intensive freedom of information (FOI) requests and questions to Parliament.

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

There are too many precedents where self-regulation has failed. Community confidence in self-regulation (and regulation by the States and Territories) is low, and cumulative impacts could not feasibly be taken into account through a system of self-regulation even if this wasn’t the case. Additionally, self-regulation would likely be process rather than outcome-focused, and non-compliance would be less likely to be effectively disincentivised. Lastly, a requirement for self-regulation comes with additional costs that may be prohibitive for small / emerging projects. As a result, self-regulation – at least at this point in time and in light of the level of maturity of the system – should not be an option.

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?

Aboriginal people are crucial to effective and sustainable environmental protection and biodiversity conservation, as well as long-term sustainable development. As the largest land holding demographic in the Kimberley region, Aboriginal people are already playing an important and active role in ensuring that the landscape is protected for future generations – such as through Indigenous Protected Areas (IPAs) and the application of traditional management approaches, including ‘right-way’ burning in the savannas – while establishing sustainable land management enterprises, providing invasive species management services (weeds and feral animals), fire management and the operation of carbon projects under the Emissions Reduction Fund (ERF).

As a result, considerations of native title and Indigenous land and sea management approaches should be embedded in the legislation, ensuring that Australia learns from and leverages the millennia-old skills, knowledge and expertise in environmental management and protection Indigenous people have accumulated.

There are a range of well-established existing avenues for consultation and engagement, including through regional representative bodies such as Land Councils. Any engagement must be premised on the principle of Free, Prior and Informed Consent (FPIC) as per the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Commonwealth legislation, including the EPBC Act, needs to make provisions not only to promote Indigenous traditional ecological knowledge (as per the Act’s current objects), but to actively support its use to inform decision-making at the highest levels – subject to that use being consented to.

As per suggestions in the Discussion Paper, this means early and genuine engagement and consultation, including in regards to the process employed for such consultation which needs to be appropriate to Indigenous people’s unique circumstances (culturally, geographically and socio-economically). A process – based on FPIC – that outlines effective consultation and negotiation approaches should be included in the Act.

Specifically, there are a range of activities under the EPBC Act that currently do not expressly require consultation with the Indigenous community (e.g. Ramsar declarations, listing of species and ecological communities, and the assessment of projects where there is the potential to impact on Indigenous interests). In these cases, Indigenous consultation may occur as part of broader consultation with the general public and other interested parties only. The requirement for Indigenous consultation should be mandated explicitly.

Consultation with PBCs should be required for referrals, consultation, advice and decisions under s93 of the Act. In relation to bilateral agreements and strategic assessments, Indigenous peoples’ free, prior and informed consent should be mandated through legislative amendments to ensure best practice in strategic assessments in alignment with UNDRIP, including early engagement.

Further, even in circumstances where consultation with Indigenous communities is already mandated (e.g. recovery and threat abatement planning), consultation needs to take into account often limited means, capacity constraints, high cost of participation, remoteness, accessibility of information and timeframes (which can be impacted by cultural obligations). Information needs to be in appropriate language to be full grasped, in light of a commitment to FPIC. Again, this could be facilitated by working through established representative bodies such as Land Councils.

In order to ensure effective consultation and sufficient capacity for Indigenous people to engage fully, an effective funding regime that ensures long-term, sustainable financial support irrespective of the political cycle is required. Without such support and commitment to effective governance, open, inclusive and proactive consultation cannot take place, as appropriate access to information and ability to provide input to participatory decision-making cannot be guaranteed without the broader empowerment of Traditional Owners.

Lastly, it is crucial to note the distinction between native title rights and interests, and those of other land holders. While Native Title specifically recognises the unique connection of Aboriginal people to country, it is often not afforded the same protections as other interests in land or water (e.g. it cannot be registered on title).

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?

Transparency and accountability is crucial to allow for participation – this means public accessibility of all relevant data and information in a timely manner, and broad provisions for merits reviews.

Equal and equitable input from the public should be sought, and any community representatives need to be duly authorised and designated to speak on behalf of the (part of the) community they purport to, whilst having to declare conflicts and vested interests up-front and publicly.

 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?

Both the structures / governance and transparency are crucial for the integrity of the Act and the decisions made thereunder. As above, this requires clear goal-setting, with designated outcomes to be achieved and measured, as well as a clear set of assessment requirements and decision-making criteria – public, transparent, consistent, objective and measurable.

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

Australia’s Indigenous people already deliver a range of services benefiting Australia’s environment, with Indigenous ranger groups in some of Australia’s most remote places protecting and managing country in line with their traditional knowledge and practices. From this strong base, using a combination of Western science and traditional knowledge, Indigenous land managers in the savanna region of Northern Australia are establishing carbon enterprises under the Emissions Reduction Fund (ERF) in order to reduce greenhouse gas emissions from wildfires and deliver environmental, economic, social and cultural benefits to their communities and the planet. Carbon farming through savanna fire management has the potential to generate not only climate but much broader environmental benefits, including habitat protection, threatened species conservation and other biodiversity outcomes.

Commonwealth environmental policy should include a plan to transition the ERF and Safeguard mechanism to a baseline and credit scheme, complemented by a robust offset mechanism. This shift to a private market should be coupled with a reallocation of public funding towards supporting new projects and supporting community adaptation to climate change. It should remove current government price signals depressing the value of domestic offsets and support Indigenous carbon businesses to sell credits as ‘premium’ products. Establishing and supporting a robust and fungible national offset market should be a central priority of engagement with State and Territory Governments, as well as with other nations.

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

Environmental offsetting should be additional, in perpetuity, and subject to science-based limits, ensuring that activities with critical negative impact cannot simply be offset. This might include activities entailing (or – as per the precautionary principle – likely to entail) extinctions or the loss of critical habitat.

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

One of the stated principles for future reform is “Indigenous knowledge and experience: Ensuring the role of Indigenous Australians’ knowledge and experience in managing Australia’s environment and heritage”.

Simply ensuring Indigenous people’s (ongoing) role in environmental protection and management is insufficient and the wording does not go far enough in adequately reflecting the significant contribution Indigenous people make in this area.

Amendments should be made that reflect a principle of ensuring that Indigenous knowledge and expertise are relevant considerations decision-making under the Act. An ongoing role ‘looking after country’ is a traditional right and obligation to Indigenous people irrespective of the legislation but as a result of culture and connection to land and sea country – only the explicit acknowledgement and integration of that role into modern legislation will do the resulting contribution justice.

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?

See Full Submission attached for general comments regarding Indigenous engagement

Overall recommendations

A. Indigenous involvement and use of Aboriginal people’s knowledge and expertise

Aboriginal people are crucial to effective and sustainable environmental protection and biodiversity conservation, as well as long-term sustainable development. As Traditional Owners, landholders and/or land managers of the vast majority of the Kimberley, Aboriginal people are already playing an important and active role in ensuring that the landscape is protected for future generations – such as through Indigenous Protected Areas (IPAs) and the application of traditional management approaches, such as ‘right-way’ fire management in the savannas – while establishing sustainable land management enterprises, providing invasive species management services (weeds and feral animals), fire management and the operation of carbon projects under the Emissions Reduction Fund (ERF).

In line with previous recommendations, it is crucial for the achievement of the EPBC Act’s objects, its efficacy and sustainability into the future, that the involvement of Indigenous people in environmental protection, cultural heritage and biodiversity conservation, and sustainable natural resource management be appropriately recognised as follows:

1. Objects and principles for review of the Act

Objects in relation to Indigenous people and their traditional knowledge should more strongly emphasise their crucial role in the nation achieving the other objects of the Act; e.g. by amending the following:

• “to recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity”, by adding: […] “and to support them in exercising this role by ensuring appropriate capacity, information, consultation and participation in decision-making”; and
• “to promote the use of Indigenous peoples' knowledge of biodiversity with the involvement of, and in cooperation with, the owners of the knowledge”, by adding: […] “and, subject to free, prior and informed consent, have regard to that knowledge in decision-making under the Act”.

One of the stated principles for future reform is “Indigenous knowledge and experience: Ensuring the role of Indigenous Australians’ knowledge and experience in managing Australia’s environment and heritage”.

Simply ensuring Indigenous people’s role in environmental protection and management is insufficient and does not go far enough as this wording does not adequately reflect the significant contribution Indigenous people make. Amendments should be made that reflect a principle of ensuring that Indigenous knowledge and expertise are integrated into decision-making as a fundamental aspect of all environmental and heritage protection and management in Australia. An ongoing role is a traditional right and obligation to Indigenous people irrespective of the legislation but as a result of culture and connection to country – only the explicit acknowledgement and integration of that role into modern legislation will do the resulting contribution justice.

2. Free, Prior and Informed Consent (FPIC)

The EPBC Act should enshrine the principle of Free, Prior and Informed Consent (FPIC) as per the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

FPIC should be applied not only to matters considered to be directly impacting on traditional lands, but any matter impacting or seen by Traditional Owners to be impacting on their rights and interests.

As per the Hawke Review of the EPBC Act, FPIC should also be required for the use of Indigenous knowledge for non-commercial activities on Commonwealth land.

3. Native title rights and interests

It is crucial to note the distinction between native title rights and interests, and those of other land holders. While Native Title specifically recognises the unique connection of Aboriginal people to country, it is often not afforded the same protections as other interests in land or water (e.g. it cannot be registered on title). For this reason, Native Title rights and cultural considerations should form part of the principle of ecologically sustainable development (ESD).

4. Recognition and active consultation and use of Indigenous knowledge

Commonwealth legislation, including the EPBC Act, needs to make provisions not only to promote Indigenous traditional ecological knowledge (as per the Act’s current objects), but to actively support its use to inform decision-making at the highest levels – subject to that use being consented to. Section 3A of the EPBC Act should be amended to identify Indigenous rights and involvement as a crucial consideration.

As per suggestions in the Discussion Paper, this means early and genuine engagement and consultation, including in regards to the process employed for such consultation which needs to be appropriate to Indigenous people’s unique circumstances (culturally, geographically and socio-economically). A process – based on FPIC – that outlines effective consultation and negotiation approaches should be included in the Act.

Active involvement in participatory decision-making should be facilitated through established representative bodies such as Land Councils, in order to ensure comprehensive input and avoid a perception of ‘cherry-picking’ engagement.

Meanwhile, any engagement, consultation, use and/or subsequent disclosure of Indigenous knowledge then needs to be governed by the principles of FPIC, as per above. Indigenous knowledge should be considered intellectual property and afforded related protections, in particular in relation to sacred and secret material, i.e. privileged matters of cultural significance. Without such protections, disclosure of crucial information may be withheld for cultural reasons, resulting in sub-optimal (at best) or perverse (at worst) outcomes that contravene the objectives of the Act. This may be the case for example in relation to the geographical locations of significant sites.

5. Funding

To allow for the above level of engagement, an effective funding regime, that ensures long-term, sustainable financial support for Prescribed Bodies Corporate (PBCs) and Indigenous land and sea management is required in such a way that it would be de-coupled from the political cycle. Indigenous Ranger Program funding, which has recently been extended by the Commonwealth Government, is only one part of this urgent need. Capacity building for PBCs which hold Native Title is required as much as ongoing funding for IPAs and the development of sustainable, future-proof industries on Indigenous lands – in line with Traditional Owner aspirations.

Without such support and commitment to Indigenous empowerment, it would be difficult for assessments and reviews under the Act to deliver on a commitment to open, inclusive and proactive consultation, because effective governance, access to information and appropriate ability to provide input cannot be guaranteed. As such, the EPBC Act should require processes to proactively facilitate involvement of Traditional Owners, including support for long-term capacity-building of PBCs and empowerment of Native Title holders to participate in decision-making in relation to their lands and the preservation of their rights and cultural values.

B. The National Reserve System, IPAs and the relevance of Indigenous definitions of matters of national environmental significance

Indigenous Protected Areas (IPAs) are a voluntary mechanism for Indigenous traditional lands to be incorporated into the National Reserve System without the loss of ownership and control by the Traditional Owners of that land. This means that IPAs are managed in accordance with Traditional Owner aspirations, often outlined in Healthy Country Plans and/or IPA Management Plans, as well as in line with international conservation guidelines under the International Union for Conservation of Nature (IUCN) system.

Given IPAs’ status as Indigenous conservation estate, these Protected Areas as well as other areas managed under Indigenous Healthy Country Plans, should be designated matters of national environmental significance for the purposes of the Act. Such formal recognition would enshrine Indigenous rights and traditional responsibilities in relation to conservation, land management and biodiversity stewardship, and ensure Indigenous empowerment and leadership.

Indigenous-led decision‐making and traditional management of country in line with traditional ecological knowledge, culture and custom is central to the sustainability of ecological outcomes. This means a need for sound governance. Once this is achieved, a range of positive outcomes are delivered by IPAs, including cultural, social, economic, as well as environmental benefits.

An IPA is usually supported through a multi-year funding agreement. However, given the high cost of managing vast, remote landscapes, many traditional owner groups (have to) supplement government funding through fee-for-service or other income generating activities, as well as support from the private sector and philanthropic organisations.

A commitment by the Commonwealth to genuine and effective consultation and participation of Indigenous people in decision-making on environmental protection, natural and cultural resource management, and sustainable development matters requires support for robust and culturally appropriate governance, including IPAs, jointly managed areas and Native Title lands.   Even if IPAs are adequately resourced, management can be vulnerable because of chronic under-resourcing of PBCs.

Attachment

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