indigenous infoermation and involvement under the epbc act (in: … · indigenous information and...

INDIGENOuS INFORMATIONChapter Seventeen

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 256

Chapter 17: Indigenous information and involvement under the EPBC Act

Indigenous information and involvement under the EPBC Act


Key points ■ There is a need to ensure that Indigenous peoples are engaged throughout all activities impacting on Indigenous

environmental interests and heritage.

■ Improved linkages are required between the EPBC Act and other legislation dealing with Indigenous matters, including the Native Title Act 1993 and Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

■ Guidance is required on issues relating to the use of Indigenous knowledge, including how traditional knowledge is obtained and the circumstances where it can be used.

■ Improved Indigenous consultation in strategic and regional planning approaches may be one way to ensure effective integration of Indigenous opinions in high level decision-making.

Current provisions of the Act17.1 The Act provides for the involvement of Indigenous peoples in conserving Australia’s biodiversity, including

to protect the traditional use of land and water by Indigenous peoples, to protect Indigenous heritage and to provide for Indigenous involvement in managing Commonwealth reserves.

17.2 This is explicit in the objects of the Act which recognise the role Indigenous peoples play in the conservation and sustainable use of resources, and the need to promote the use of traditional knowledge to inform management and conservation decisions. The relevant objects for the purposes of this discussion are:

■ to promote a co-operative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples;

■ to recognise the role of Indigenous peoples in the conservation and ecologically sustainable use of Australia’s biodiversity; and

■ to promote the use of Indigenous peoples’ traditional knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.1

17.3 Subsection 3(2) further provides that in order to achieve these objects, the Act intends to promote the use of partnership approaches for environmental protection and biodiversity conservation through:

■ conservation agreements with landholders;

■ recognising and promoting Indigenous peoples’ role in, the knowledge of, the conservation and ecologically sustainable use of biodiversity; and

■ the involvement of the community in management planning.2

non‑interference with indigenous rights

17.4 Section 8 of the EPBC Act provides the Act does not affect the operation of the Native Title Act 1993 and the Aboriginal Land Rights (Northern Territory) Act 1976. Both these Acts include provisions that preserve customary rights to use of land and waters.3 In addition, s.359A of the Act provides that provisions of the Act and Regulations relating to Commonwealth reserves do not affect traditional use by Indigenous persons for non-commercial hunting or food gathering or for ceremonial and religious purposes.

1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.3(d)(f)-(g).2 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.3(2).3 Native Title Act 1993 (Cth) s.211 and Land Rights Act (Northern Territory) 1976 (Cth) s.71.


257 Chapter Seventeen INDIGENOuS INFORMATION AND INvOLvEMENT uNDER THE EPBC ACT


indigenous heritage

17.5 The 2003 Amendments to the Act4 inserted a Commonwealth heritage management regime, which focused on matters of national significance and Commonwealth responsibility. The amendments provided a process for recognising and managing places of National and Commonwealth Heritage and require consideration of Indigenous heritage values present in Commonwealth or National Heritage places.

17.6 The Indigenous Heritage Program (IHP) is an Australian Government initiative that supports the identification, conservation and promotion of Indigenous heritage. This program is aimed at recognising Indigenous heritage as an important part of our nation’s past, present and future story.5 In practice, the IHP assists in identifying places likely to have outstanding Indigenous heritage value to Australia which may be suitable for inclusion on the National Heritage List under the EPBC Act.

management of Biodiversity

17.7 Indigenous engagement in bilateral agreements, recovery planning and threat abatement planning is mandated in the Act. These provisions require consideration to be given to the role and interests of Indigenous peoples in the conservation of Australia’s biodiversity.

indigenous advisory committee (iac)

17.8 Section 505A requires the establishment of an IAC under the Act. The first committee was established in 2000. The role of the Committee is to advise the Minister on the operation of the Act, taking into account the significance of Indigenous peoples’ knowledge of the management of land and the conservation and sustainable use of biodiversity. All committee members are Indigenous Australians and are selected for membership on the basis of their expertise in Indigenous land management, conservation and cultural heritage management.

17.9 Further discussion about the role of the IAC appears in Chapter 19 of this report.

joint management of commonwealth reserves

17.10 Commonwealth reserves are established under Part 15 of the Act. Where a Commonwealth reserve is wholly or mostly on Indigenous people’s land6 the Act requires that a Board of Management must be established for the reserve and must have a majority of members who are nominated by the traditional owners of the land.7 The functions of a Board of Management include preparing management plans for the Commonwealth reserve and making decisions about management of the reserve to give effect to those plans.8 Boards of Management are currently established under the Act for Kakadu, uluru-Kata Tjuta and Booderee National Parks.

17.11 The Act also makes provision for the interests of Indigenous peoples to be taken into account in management of Commonwealth reserves. Management plans must take into account the interests of traditional owners of any Indigenous people’s land within the reserve and any other Indigenous peoples with an interest in the reserve.9 The Director of National Parks must consult the relevant Aboriginal Land Council in the preparation of management plans.10 The Director must also consult a relevant Land Council generally in relation to performance of the Director’s functions and exercise of the Director’s powers under the Act.11

4 Environment and Heritage Legislation Amendment Act (No.1) 2003 (Cth).5 Minister for the Environment, Heritage and the Arts, $3 million boost to Indigenous heritage protection (media release) (2008)

http://www.environment.gov.au/minister/garrett/2008/pubs/mr20080707.pdf at 28 April 2009.6 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.363(4) defines Indigenous people’s land as land that is owned on behalf of

Aboriginal or Torres Strait Islander people.7 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.374 and 377.8 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.376.9 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.368(3)(c)(ii) and (iii).10 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.368(2) and (5).11 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.514D(2).




indigenous biological knowledge

17.12 Australia’s approach to securing access to genetic resources on equitable terms, with the involvement of holders of Indigenous traditional knowledge, is reflected in the EPBC Regulations.

17.13 Part 8A of the EPBC Regulations provides the framework for regulating access to biological resources in Australia. Regulation 8A.01 recognises the special knowledge held by Indigenous persons about biological resources in Commonwealth areas, while Regulation 8A.06 provides that biological resources in a Commonwealth area can only be accessed in accordance with a permit issued under Part 17 of the Regulations. The Minister can issue the permit if satisfied that, among other things and if applicable, prior informed consent of the use of Indigenous biological resources has been obtained. Full disclosure must be made of any use of Indigenous knowledge and the terms on which that knowledge is to be used. Further information about arrangements for access to and use of biological resources is provided in Chapter 16 of this report.

17.14 The use of Indigenous traditional knowledge is also addressed in the inter-governmental agreement that governs access to Australia’s genetic resources for scientific research and development – the Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources (2002).12 The agreement requires that all parties ‘recognise the need to ensure the use of traditional knowledge is undertaken with the cooperation and approval of the holders of that knowledge and on mutually agreed terms’.

17.15 Other initiatives

17.16 These initiatives are not legislated under the Act however, they highlight other Indigenous activities currently being undertaken by the Australian Government.

caring for our country

17.17 Through the Australian Government’s Caring for our Country initiative, some of the Government’s 2007 election commitments relating to Indigenous investment have been or will be implemented. These include:

■ employing additional Indigenous rangers;

■ assisting Indigenous Australians to prepare sea country plans in the Great Barrier Reef;

■ expanding the Indigenous Protected Area network;

■ assisting Indigenous Australians to enter the carbon trading market; and

■ providing on-going support for the Indigenous Land Management Facilitator network.

17.18 Caring for our Country includes several targets which recognise the importance of traditional knowledge, including the use of traditional ecological knowledge in the development of management plans in at least 32 newly initiated Indigenous Protected Area projects over four years and the involvement of at least 15 projects in the use or recording of traditional knowledge from Indigenous communities over two years.

working on country

17.19 The Working on Country element of Caring for our Country builds on the recognition of Indigenous knowledge by contracting Indigenous peoples to provide environmental services in remote and regional areas. This work helps to maintain, restore, protect and manage Australia’s environment—on land, sea and heritage areas. Working on Country creates employment opportunities in remote and smaller regional areas of Australia, where there are often fewer jobs compared with large regional centres and urban areas.

12 Natural Resource Management Ministerial Council, Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources (2002) http://www.environment.gov.au/biodiversity/publications/access/nca/pubs/nca.pdf at 15 April 2009.




indigenous Protected areas (iPa)

17.20 Indigenous Protected Areas (IPAs) are Indigenous owned or controlled lands which have been declared as protected areas in perpetuity and although not established or managed under the Act, many IPAs give effect to the management of species listed under the Act, National Heritage sites and areas with rich biodiversity.

17.21 The IPA program was initiated in 1995 with the aim of establishing a mechanism for conservation partnerships with Indigenous land owners to achieve a comprehensive, adequate and representative national reserve system. under the program, traditional owners are supported to conduct extensive consultations and develop plans of management for the declaration of their lands as IPAs. The Indigenous landowners are then supported to implement their plans, including managing threats such as weeds, feral animals and wildfire and to manage and protect their land’s natural and cultural values.

17.22 There are currently 28 IPAs covering an area of over 20 million hectares, representing 25% of the National Reserve System.

map of indigenous Protected areas in australia

Indigenous Protected Areas April 2009 1 Nantawarrina

2 Preminghana 3 Risdon Cove 4 putalina 5 Deen Maar 6 Yalata 7 Warul Kawa 8 Watarru 9 Walalkara10 Mount Chappell Island11 Badger Island12 Dhimurru13 Guanaba14 Wattleridge15 Paruku16 Ngaanyatjarra17 Mount Willoughby18 Tyrendarra19 Toogimbie20 Anindilyakwa21 Laynhapuy22 Ninghan23 Northern Tanami24 Warlu Jilajaa Jumu25 Kaanju Ngaachi26 Babel Island27 Great Dog Island28 lungatalanana

29 Pulu Islet30 Djelk31 Ngarrabullgan32 Gumma33 Angas Downs34 Southern Tanami35 Balanggarra36 Framlingham Forest37 Wellesley Islands38 Dorodong39 Eastern Yalanji40 Katiti/Petermann Ranges41 Kurtonitj42 Warddeken43 Marthakal44 Angkum45 Murru Murru/Bendee Downs46 Bardi Jawi47 Orana48 Poolamacca49 Wardaman50 Thamarrurr51 Dambimangari and Uunguu

Data source: Topographic Data - Australia - 1:100,000 © Geoscience Australia, 1989, All rights reserved.Caveats: Data used are assumed to be correct as received from the data suppliers. © Commonwealth of Australia 2009Map produced by ERIN for the Indigenous Land Management Section, Australian Government Department of the Environment,Water Resources, Heritage and the Arts. Canberra, April 2009.

Declared IndigenousProtected Areas

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Indigenous Protected Area Consultation Projects

52 Sandy Bore53 Kalka54 Pipalyatjara55 Lake Condah56 Allambie57 Muldoons58 Wauraltee59 Tarriwa Kurrukun60 Karajarri61 Willows and Boorabee

Co-Management Consultation Projects62 Central QLD Coast63 Mandingalbay Yidinji64 Girringun

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Key points raised in public submissions17.23 The key view of public submissions is that Indigenous involvement in land and sea management is essential

to the effective protection of matters of under the Act. In its submission the Australian Human Rights Commission (AHRC) noted that:

The International human rights frameworks clearly identify Indigenous peoples’ rights to be fully engaged in government processes that directly or indirectly impact on their lives. This means that Indigenous peoples must be directly and substantially engaged in all aspects of the formulation and implementation of policies that affect their rights and interests, particularly in respect of their land and waters. The human rights framework also requires that Indigenous peoples have the right to determine the priorities for their lands, waters and natural resources, and to give - or not give - their free, prior and informed consent over developments on their land. It is also imperative that governments maximise opportunities for Indigenous participation in programs affecting their lands and waters.13

objects of the act

17.24 A number of submissions noted that while the objects of the Act expressly recognise Indigenous peoples’ knowledge about biodiversity and their role in biodiversity conservation, Indigenous interests are not effectively incorporated into the administration of the Act.

17.25 The Tiwi Land Council noted that development opportunities in remote Indigenous communities are a scarce commodity and expressed the view that the provisions of the Act which deal with Indigenous involvement, do not deal with the critical issue at stake – namely whether resources can be used effectively for Indigenous economic and social development.14 As this submission also commented, remote Indigenous communities, where rich natural resources often occur, are among the most vulnerable to processes and decisions made under the Act. These processes often place tough and sometimes insurmountable obstacles in the way of Indigenous development.15

17.26 The Tiwi Land Council submitted that:

The first of the four principles of ESD is that the decision-making process should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations. Clearly, the objective of promoting ecologically sustainable development pre-supposes that viable development scenarios exist.16

17.27 The Tiwi Land Council recommended that the objects of the Act be amended to recognise that needed developments in Indigenous and remote communities are a desired and accountable outcome of the EPBC Act’s processes.17 They argued that too often, environmental considerations hold sway over economic and social considerations on Indigenous land.18

17.28 A number of submissions made reference to Article 8(j) and 10(c) of the Convention on Biological Diversity, suggesting that these articles have been lost and need to be explicitly referred to in the Act.19 For example, it was commented that the Act fails to acknowledge Indigenous peoples as part of the natural systems of the environment, treating cultural and spiritual significance as separate and disparate associations.20

17.29 As the Centre for Aboriginal Economic Policy Research (CAEPR) stated:

The objects of the Act should broaden its focus to include the recognition of, respect for, and maintenance of Indigenous knowledge, innovations and practices including Indigenous systems of governance and/or management (e.g. customary marine tenure). As in the Convention on Biological Diversity, the use of Indigenous knowledge, innovations and practices should require the approval (or informed consent) of their owners as well as their involvement and cooperation.21

13 Submission 193: Australian Human Rights Commission, pp.25-26.14 Submission 107: Tiwi Land Council.15 Submission 107: Tiwi Land Council.16 Submission 107: Tiwi Land Council, p.3.17 Submission 107: Tiwi Land Council.18 Submission 107: Tiwi Land Council.19 Submission 210: Indigenous Advisory Committee.20 Public consultation - Indigenous Advisory Committee pers. comm. (Canberra, March 2009).21 Submission 130: Centre for Aboriginal Economic Policy Research, p.4.




17.30 The AHRC also questioned the limited reference to Indigenous interests in the objects, recommending that s.3A be amended to specifically identify Indigenous rights and involvement as a crucial consideration, arguing that the reference in s.3A to ‘and equitable considerations’ was vague and amorphous and should be amended to read ‘decision-making processes that should effectively integrate both long and short-term economic, environmental, social, cultural and equitable considerations’.22

links with other indigenous legislation

17.31 It was noted that multiple pieces of legislation relating to Indigenous matters made it difficult for Indigenous peoples to access resources and engage appropriately and concluded that there was a need for greater alignment of legislation referencing Indigenous matters.23 CAEPR and the IAC pointed out that while the Act provides for the protection and conservation of heritage, including Indigenous heritage, there is no link between the Act and the Aboriginal Torres Strait Island Heritage Protection Act 1984 (ATSIHP Act). CAEPR recommended that the Act be amended to detail the relationship between the EPBC Act and the Aboriginal and Torres Strait Islander Act 2005, the ATSIHP Act and the Water Act 2007.24

17.32 Further, it was recommended that the Act also needs to include links to the Native Title Act 1993. For example, s.93 of the EPBC Act applies to proposed actions that have been deemed to be controlled actions and the Minister has decided that the action should be assessed based on the referral information. In such cases, the Department must prepare a draft report which includes recommendations about whether the action should be approved under the Act, including any proposed conditions for an approval. It was argued that in such cases, the draft recommendation report should be published on the internet along with an invitation for public comment, before the Minister makes the decision.

17.33 The IAC suggested that s.93 be amended to require consultation with Prescribed Body Corporates (PBCs) for referrals, consultation, advice and decisions under the Act. The IAC also commented that work needs to be done to build the capacity of PBCs and empower Native Title Holder groups to participate under the EPBC Act and there should be clear links between the preservation of Indigenous cultural values and native title rights provisions.25

17.34 CAEPR noted that:

While the EPBC Act expressly acknowledges native title rights—including section 211 of the Native Title Act (NT) 1993, which preserves native title rights to hunt, fish, gather or undertake other cultural or spiritual activities where these activities would normally be restricted by Commonwealth, State or Territory legislation—it treats these rights weakly so that, in our opinion, these rights are often no more than those of a ‘passive’ user.26

consultation and participation

17.35 The Australian Government’s recognition of the importance of Indigenous involvement in conservation was noted and that this involvement is recorded in the Australia State of the Environment Report 2001.27 However, it was argued that the processes under the Act for consultation with Indigenous groups, as important stakeholders in biodiversity conservation and sustainable use of natural resources, were inadequate and should be addressed as part of the review of the Act.

17.36 The IAC acknowledged the efforts made to engage Indigenous peoples effectively through the legal and policy framework provided under the Act. However, they argued that the broad scope of the Act still allows for too many inconsistent processes and ad hoc outcomes. The IAC asserted that proper processes for consultation and negotiation with Indigenous peoples need to be written into the Act.28 The IAC commented positively on the engagement and consultation process undertaken in the strategic assessment of the proposed Kimberley Gas Precinct, noting that such consultation had been undertaken as an administrative arrangement rather than as a legislative requirement.29

22 Submission 193: Australian Human Rights Commission, p.5.23 Submission 210: Indigenous Advisory Committee.24 Submission 130: Centre for Aboriginal Economic Policy Research.25 See e.g. Submission 210: Indigenous Advisory Committee.26 Submission 130: Centre for Aboriginal Economic Policy Research.27 Submission 193: Australian Human Rights Commission.28 Submission 210: Indigenous Advisory Committee.29 Submission 210: Indigenous Advisory Committee.




17.37 Submissions noted processes that occur under the Act where there is no express requirement for consultation with the Indigenous community, for example Ramsar declarations, listing of species and ecological communities and the assessment of projects where there is the potential to impact on Indigenous interests. Consultation in these circumstances occurs as part of broader consultation with the public and other interested parties. Further, where there is the mandated requirement to consult, such as recovery and threat abatement planning, consultation was considered inadequate or cursory. In this regard, CAEPR submitted that:

There appears to be minimal scope for public participation outside of the provision of written submissions. This may not be equitable as it is likely to exclude some sections of the public that have limited access to communications technology and/or have limited literacy. Efforts should be made to ensure that processes are more open, inclusive and proactive, particularly ensuring appropriate processes are in put in place to facilitate involvement of traditional owners.30

17.38 CAEPR also provided an example, suggesting that a review of the McArthur River Mine proposal was an opportunity to explore how consultation processes with, and the interests of, traditional owners could be better managed by the referral, assessments and approval procedures under the Act. CAEPR also recommended that recovery planning should involve Indigenous peoples, in recognition of their role in conservation and sustainable use of biodiversity and suggested that recovery plans give high priority to recovery of species that are of economic, social and cultural significance to Indigenous peoples, as well as species of biodiversity value.31

17.39 The Tiwi Land Council raised concerns regarding the inadequacy of consultation processes in the project approval stage. They recommended that the Act should include a provision, separate from that available in the assessment process, which gives Indigenous peoples an opportunity to make their development needs known at bureaucratic and ministerial levels, and to ensure adequate weighting is given to their needs.

17.40 Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll argued that the processes under the Act do not adequately facilitate the involvement and cooperation of Indigenous peoples and the IAC needs to be supported to consult with Indigenous communities to develop suitable and effective mechanisms for consultation with Indigenous communities:

to consult with communities on a species by species, and ad-hoc basis is very time and resource intensive for everyone involved. More efficient and effective alternatives need to be explored such as regional scale consultation on all NES matters to better involve Indigenous communities.32

Bilateral agreements and strategic assessments

17.41 under s.49A of the Act, the Environment Minister is required to consider ‘the role and interests of Indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources’ in the context of a proposed bilateral agreement.

17.42 The AHRC raised concerns regarding this provision, stating that the provisions contravene Indigenous peoples’ right to give their free, prior and informed consent on decisions that have a direct or indirect impact on their lives. The Commission noted that the discretion of the Minister to only consider the ‘role and interests of Indigenous peoples’ is too broad and not open to effective judicial review.33 The IAC supported this view, noting that this provision requires no engagement with Indigenous peoples in determining their ‘role and interests’, and has a limiting provision about the scope of Indigenous peoples’ interests, rights and aspirations.

17.43 The issue of judicial review is discussed in Chapter 20 of this report.

30 Submission 130: Centre for Aboriginal Economic Policy Research, p.6.31 Submission 130: Centre for Aboriginal Economic Policy Research.32 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, pp.10-11.33 Submission 193: Australian Human Rights Commission.




17.44 CAEPR noted that strategic assessments and bilateral agreements provide significant opportunities to enhance Indigenous involvement in land and sea development and cite the strategic assessment of the Torres Strait Turtle and Dugong Fishery, as an example where the role of Indigenous peoples in the conservation and sustainable use of biodiversity has been recognised.34 CAEPR also observed that there were positive elements of the Kimberley Strategic Assessment but highlighted several limitations, including how vulnerable traditional owners are to change in the political climate. CAEPR recommended the development of a national (or nationally consistent) legislative mechanism strengthening traditional owners’ rights and influence in all jurisdictions over decisions and actions that are likely to have significant economic, environmental, social and/or cultural impacts on Indigenous land.35

17.45 The Tiwi Land Council also highlighted the vulnerability of Indigenous communities to political decision–making under the Act:

remote Indigenous communities tend to be among those most vulnerable to EPBC Act processes and decisions that place tough and often insurmountable obstacles in the way of development. There is no requirement that Indigenous views on economic, social and equitable considerations are to be valued, encouraged, articulated, recognised, explored or evaluated.36

17.46 The Australian Network of Environmental Defender’s Offices (ANEDO) recommended that:

the Act should be amended to implement a process of ‘free prior and informed consent’ before adopting and implementing legislative or administrative measures that may affect Indigenous peoples as is consistent with The Declaration of the Rights of Indigenous Peoples, ensuring that Indigenous engagement goes beyond being merely a consultative approach.37

indigenous heritage

17.47 The Australian Human Rights Commission (AHRC) argued that the Act requires amendment to ensure that Indigenous peoples are engaged throughout all phases of listing heritage areas, including the planning, nomination, and management phases of declaring and managing heritage listed areas. The Commission noted that s.315 of the Act provides that in relation to the listing of a property on the World Heritage List, the Environment Minister must give notice in the Commonwealth of Australia Gazette of the submission of the property for listing. The Commission felt that there was a need to ensure that Indigenous peoples have access to this information and are in the best position possible to respond to proposed listings that may impact on them.38

17.48 With regard to harmonisation, the IAC argued that the Act needs to be amended to incorporate one piece of legislation that deals with Indigenous heritage adequately, with a set of standards for dealing with Indigenous heritage that are consistent across the Commonwealth and all States and Territories. Further, the IAC suggested that Indigenous heritage places be made matters of NES which would have great potential in removing uncertainty and ensuring that Indigenous heritage is addressed early in any referral process.39

34 Submission 130: Centre for Aboriginal Economic Policy Research.35 Submission 130: Centre for Aboriginal Economic Policy Research, p.6.36 Submission 107: Tiwi Land Council, p.4.37 Submission 189: Australian Network of Environmental Defender’s Offices, p.12.38 Submission 193: Australian Human Rights Commission. 39 Submission 210: Indigenous Advisory Committee.




17.49 The Australian Human Rights Commission40 made reference to the Western Arnhem Land Fire Abatement Project developed by the North Australian Indigenous Land and Sea Management Alliance41 as a project which has worked towards producing ‘quadruple bottom line outcomes’ – economic, social, environmental and cultural, which represents a more holistic approach, incorporating cultural factors into the traditional ‘triple-bottom line’ framework. The Commission made a number of recommendations in relation to increasing Indigenous involvement under the Act, including:

■ increased use of Indigenous stewardship models;

■ expanding the Indigenous Advisory Committee’s composition and role, and

■ promoting the use of local and traditional ecological knowledge to inform management and conservation decisions.42

involvement in management, including protected area management and commonwealth land

17.50 The existing legal rights of traditional owners over natural resources are mainly rights of passive use rather than of active management.43 The success of the IPA programme was acknowledged as a vehicle in assisting Indigenous peoples in managing their estates and in recognising Indigenous governance and decision–making arrangements. The AHRC noted that joint management of national parks, conservation reserves and IPAs is increasingly being accepted as an appropriate option for the management and protection of these areas. However, a major weakness of the IPA program is its failure to include ‘sea country’. The IPA framework should be expanded so that it provides for Indigenous management and protection of critical marine habitats of threatened species and ecological communities as an effective way of improving their recovery.44

17.51 The Australian Institute of Aboriginal and Torres Strait Islander Studies made a number of recommendations regarding Indigenous involvement in IPAs, including the need to recognise that the process of establishing the consent of Indigenous traditional owners for protected area management is complex and time consuming, and there are particular challenges for Indigenous peoples to develop equitable partnerships in the management of their sea country.45

17.52 The contribution of Australian Government programs such as Caring for our Country in providing funding to Indigenous programs was appreciated, however it was noted that these programs fail to recognise the holistic nature of Indigenous land and sea management. For example, one submission argued that Indigenous groups are required to compete for short term, compartmentalised funding depending on the nature of the grant required.46 A more effective funding regime was recommended:

environmental programs being refocused so that they invest holistically on Indigenous-owned land. In this way Indigenous land and sea management organisations would, through participatory planning processes, develop land and sea management plans for regions and then submit these as comprehensive planning documents that identify Indigenous aspirations on issues of national environmental significance as identified in the EPBC Act.47

40 Submission 130: Centre for Aboriginal Economic Policy Research.41 West Arnhem Fire Management Agreement, available at: http://www.nailsma.org.au/projects/Indigenous_carbon_abatement.html42 Submission 193: Australian Human Rights Commission. 43 Submission 130: Centre for Aboriginal Economic Policy Research. 44 Senate Committee Report, Submission 70 (Professor Jon Altman and Mr Sean Kerins).45 Submission 088: The Australian Institute of Aboriginal and Torres Strait Islander Studies.46 Senate Committee Report, Submission 70 (Professor Jon Altman and Mr Sean Kerins).47 Senate Committee Report, Submission 70 (Professor Jon Altman and Mr Sean Kerins), p.10.




indigenous intellectual property rights and use of indigenous knowledge

17.53 Indigenous peoples have well established systems of knowledge and practices relating to the use and management of biological diversity on the lands and environments of Australia. Submissions were critical of the lack of recognition and protection of this knowledge, and argued that Indigenous peoples, as the holders and custodians of this knowledge, have the right to have this knowledge recognised and protected and the right to share equitably in benefits derived from the use of this knowledge.

17.54 The AHRC argued that the current framework for the protection of intellectual property in Australia does not provide adequate protection or recognition of the unique nature of Indigenous knowledge and should not be regarded as an adequate safeguard against the misappropriate use of Indigenous knowledge. The Commission recommended:

that in the absence of an international and national framework that provides for the protection and use of Indigenous knowledge, the Review Committee and the Commonwealth Government should extend the objects of EPBC Act to recognise the importance of protecting, conserving and maintaining Indigenous knowledge.48

17.55 The CAEPR agreed and stated that the objects of the Act should reflect the Convention on Biological Diversity; the use of Indigenous knowledge, innovations and practices should require the approval (or informed consent) of their owners as well as their involvement and cooperation. The objects should also encourage or require the equitable sharing of benefits arising from the utilisation of such knowledge, innovations and practices as stated in the Convention. Ideally, this should be in the form of proper resourcing and remuneration of Indigenous land and sea management efforts.49

17.56 The IAC suggested that the review consider a process of identifying and listing plants of significance to Indigenous peoples primarily used for medicinal and cultural purposes.50 The IAC envisioned that this list would be in addition to the threatened species list.51

senate inquiry into forestry and mining operations on the tiwi islands

17.57 The Senate Standing Committee on Environment, Communications and the Arts is inquiring into forestry and mining operations on the Tiwi Islands, including compliance with environmental approvals and consideration of alternative economic opportunities. It is understood that this Committee will report in time for its recommendations to be taken into account by this review.

Discussion of key points raised in submissions17.58 The key messages from submissions involve the need to strengthen the Act to protect Indigenous knowledge

explicitly and recognise the role and significance of ‘people on country’ as a fundamental principle of environment protection and biodiversity conservation in Australia. Submissions also argued that Indigenous peoples should be engaged in all aspects of the formulation and implementation of policies and programs that affect their rights and interests. The recent united Nations Declaration of the Rights of Indigenous Peoples notes that one of the ways of giving Indigenous peoples a voice is through public consultation on key policy decisions.52 DEWHA, in consultation with internal and external stakeholders, is currently developing overarching guidelines for Indigenous consultation and engagement that will draw on Ask First: a guide to respecting Indigenous heritage places and values.53

48 Submission 193: Australian Human Rights Commission.49 Submission 193: Australian Human Rights Commission.50 Submission 210: Indigenous Advisory Committee. 51 Submission 210: Indigenous Advisory Committee.52 Jenny Macklin, Statement on the United Nations Declaration on the Rights of Indigenous Peoples, (Speech), 4 April 2009, Parliament House.53 Ask First: a guide to respecting Indigenous heritage places and values is available on the DEWHA website a t http://www.environment.gov.au/heritage/

ahc/publications/commission/books/ask-first.html.



17.59 Despite increased engagement of Indigenous representatives as participants on consultative panels involved with processes of natural resource management, concerns have been raised by submissions regarding the opportunities for Indigenous peoples to have quality input into the decisions these processes produce. Consultation and community participation can be complex and subject to cultural rules which are closely related to land ownership, management responsibilities and spiritual values.

17.60 An option for further consideration is the inclusion of a provision requiring mandatory consultation with Indigenous groups early in the process of conducting strategic assessments and creating bioregional plans. Consultation in the early planning stages, with the inclusion of specific timelines and agreed outcomes, would provide greater certainty for all stakeholders and address some concerns raised in submissions.

17.61 The Resource Management Act 1991 (NZ) contains a provision requiring mandatory public hearings which must, among other things, be culturally sensitive. This, and other approaches taken by the States and Territories and elsewhere, will be considered as part of seeking a balanced approach to Indigenous consultation.

17.62 The need for increased linkages between the EPBC Act and other legislation dealing with Indigenous matters, in particular the Native Title Act 1993 and Aboriginal and Torres Strait Islander Heritage Protection Act 1984, appears to arise out of concerns that the intangible values relating to Indigenous culture are not adequately addressed under the Act, particularly with regard to National Heritage listings and environmental impact assessments.

17.63 The current legislation does go some way in addressing Indigenous values. The difficulties in addressing Indigenous values, particularly cultural heritage values, is acknowledged. However, simply because measuring and protecting these values is difficult does not mean that there are not opportunities for improving how the Act deals with Indigenous values and culture, particularly with respect to consultation and communication processes.

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