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Review of the EPBC Act – Indigenous knowledge and culture focus

08 April 2020

#Planning, Environment & Sustainability

Published by:

Clara Klemski-Edwards

Review of the EPBC Act – Indigenous knowledge and culture focus

In the context of last summer’s raging bushfires across Australia, and the current COVID-19 pandemic, the Australian Government’s Independent Review of the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) led by Professor Graeme Samuel AC (Review) could not be more timely. A discussion paper was released in November 2019 (Discussion Paper).

Business, developers, government and the Australian public have been invited to make submissions across a broad range of topics from the efficacy of the current legislation, being the primary national environmental legislation, to the contribution of Indigenous cultures to environmental management and the importance of ecologically sustainable development (ESD).

In this article, we consider the key issues raised by the Review and in particular the interaction with Indigenous knowledge and culture in guiding change.

Background

The Review commenced on 29 October 2019 with an Expert Panel advising Professor Samuel on the issues arising from the Terms of Reference. The Indigenous Advisory Committee and the Australian Heritage Council are also being directly consulted. The Review is expected to take 12 months with a final report and recommendations due for release in October 2020.

Terms of Reference

The Terms of Reference (ToR) for the Review are broad and include examining the operation of the EPBC Act and the extent to which the objects have been achieved, in addition to making recommendations to modernise it to include consideration of:

  • Australia’s international environmental responsibilities
  • Indigenous peoples' knowledge and role in the management of the environment and heritage
  • implementation of relevant agreements between the Commonwealth, States and Territories
  • other legislation that may relate to the operation of the Act.

The role of Indigenous culture and knowledge in environmental management and law

The objects of the EPBC Act currently recognise the role of Indigenous culture and knowledge:

  • in the conservation and ecologically sustainable use of Australia's biodiversity
  • to promote the use of Indigenous peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.

The Discussion Paper developed as part of the Review notes that “there is growing recognition of the value of involving Australian communities, particularly Indigenous Australians, more directly in managing the environment.” (p14).

In particular the Discussion Paper includes as possible future changes to the EPBC:

  • interlinking with international Indigenous heritage outcomes, for example, where the International Union for Conservation of Nature (IUCN) has recommended that Indigenous heritage values are underrepresented in Australian conservation, including amendment to the objects to wording “to provide for the use of Indigenous peoples' knowledge…” with appropriate support mechanisms (p18)
  • a means of engagement of government with Indigenous communities to achieve the objects of the Act
  • broadly, how the role of Indigenous Australians can contribute to and enhance ecologically sustainable development.

Making a submission to the Review

Taking into account the complex patchwork of legislation across the Commonwealth, States and Territories, including in relation to planning and development law, simplifying the framework in accordance with the guiding principles should be a key part of any reform to the EPBC Act.

It will be interesting to see how the Review considers and reconciles interaction between existing State, Territory and Commonwealth legislation governing Aboriginal cultural heritage.

Holding Redlich can assist with submissions to the Review. Submissions are due on 17 April and it is noted on the Australian Government website that it is continuing on schedule despite COVID-19. Further updates will be forthcoming as the situation progresses.

Authors: Jenny Humphris, Breellen Wary  & Clara Edwards

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future. 

Published by:

Clara Klemski-Edwards

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