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Independent review of the Environment Protection and Biodiversity Conservation Act 1999 (2009)

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Independent review of the Environment Protection and Biodiversity
Conservation Act 1999

Australian Human Rights Commission

Submission by the Aboriginal and Torres Strait Islander Social Justice
Commissioner to Mr Allan Hawke in response to the Independent review of the Environment Protection and Biodiversity Conservation Act 1999

19 December 2008 – extension granted to 30 January 2009

Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to Mr Allan Hawke in response to the Independent review of the Environment Protection and Biodiversity Conservation Act 1999.

  2. The Commission acknowledges that this Independent review of the EPBC Act is
    in accordance with s 522A of the Act. Section 552A requires that an independent
    review of the Act must be undertaken within 10 years of the commencement of the
    Act. The review must be provided to the Minister who is required to cause a copy
    of the report to be laid before each House of the Parliament within15 sitting
    days of that House after the Minister receives
    it.[1]

  3. The Commission notes that the review will examine:

    1. The operation of the EPBC Act generally.

    2. The extent to which the objects of the EPBC Act have been
      achieved.

    1. The appropriateness of current matters of National Environment
      Significance.

    2. The effectiveness of the biodiversity and wildlife conservation
      arrangements.

  4. The Commission notes that the review will be guided by key Australian
    Government policy objectives including:

    1. to promote the sustainability of Australia’s economic development to
      enhance individual and community well-being while protecting biological
      diversity and maintaining essential ecological processes and systems.

    2. to work in partnership with the states and territories within an effective
      federal arrangement

    3. to facilitate delivery of Australia’s international
      obligations.

    4. the Australian Government’s deregulation agenda to reduce and simplify
      the regulatory burden on people, businesses and organisations, while maintaining
      appropriate and efficient environmental standards.

    5. to ensure activities under the Act represent the most appropriate, efficient
      and effective ways of achieving the Government’s outcomes and objectives
      in accordance with the Expenditure Review Principles.

  5. With regard to the scope and intent of the independent review to assess the
    operation of the EPBC Act, the Commission will focus specifically on those
    provisions of the Act and the chapters of the Independent Review of the
    Environment Protection and Biodiversity Conservation Act 1999, Discussion
    Paper     (the Discussion Paper) that relate to Indigenous peoples and
    their rights and interests in their lands, waters and natural
    resources.

2 Summary

  1. The Commission notes that the Environment Protection and Biodiversity
    Conservation Act 1999     (EPBC Act) which commenced on 16 July 2000, is the
    Australian Governments central piece of environmental legislation.

  2. The Commission acknowledges that while the EPBC Act goes a significant way
    to addressing Australia’s international obligations and domestic concerns
    related to the protection and conservation of biodiversity, there are some areas
    that require further consideration. These include:

    1. strengthening the current recognition of the role of Indigenous peoples in
      the conservation and ecologically sustainable use of Australia’s
      biodiversity, and providing not only for the recognition and use of Indigenous
      knowledge, but also requiring the protection of this knowledge

    2. extending the matters considered to be of national environmental
      significance to include more recent concerns such as climate change, land
      clearing and forestation, and water and promoting the consistent application of
      environmental and other relevant legislation across the
      country

    3. promoting the full and effective participation and engagement of Indigenous
      peoples in the implementation of the EPBC Act, including by fully applying the
      principles of free, prior, and informed consent of issues that will have a
      direct or indirect impact on the lives of Indigenous peoples in
      Australia.

3 Recommendations

  1. The Commission recommends:

    1. Section 3A of the EPBC Act should be amended to:

      1. link the Ecologically Sustainable Development principles (ESD principles) to
        the compliance and enforcement requirements of the legislation,

      2. introduce specific monitoring, assessment and reporting requirements as to
        the how the ESD principles have been respected and fully implemented

      3. include a specific reference to indigenous rights and involvement as a vital
        consideration.

    2. Section 3A(a) of the EPBC Act should be amended to read:
      ‘decision-making processes that should effectively integrate both
      long-term and short-term economic, environmental, social, cultural and equitable
      considerations.

    3. The Matters of National Environmental Significance (MNES) listed under Part
      3 of the EPBC Act should be extended to include climate change, land clearing
      and reforestation, and water as MNES.

    4. Express provisions should be made in the EPBC Act to provide for indigenous
      involvement and consultation in the declaration and decision-making processes
      relating to Ramsar wetlands.

    5. The EPBC Act provide for the free, prior and informed consent, co-operation
      and involvement of the Indigenous peoples of a proposed protected area
      in:

      1. the nomination of the area

      2. the development and implementation of management plans and other forms of
        agreement (including bilateral agreements).

    1. Sections 5-10 of the EPBC Act be amended to include the relationship between
      the EPBC Act and legislation concerning climate change as well as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
      and the Water Act 2007 (Cth).

    2. The Review Committee should consider the need to strengthen the position of
      the Indigenous Advisory Committee (IAC) to have a more directive and
      authoritative capacity rather than limiting the IAC to an advisory role
      only.

    3. The Review Committee consider the inclusion of specific mechanisms that
      promote transparency in relation to the advice and deliberations of the
      Committee’s established under the EPBC Act.

    4. The EPBC Act should include provisions that relate to the appropriate
      engagement of Indigenous peoples, in accordance with the international human
      rights framework. In particular, that the Review Committee consider the
      Guidelines for engagement with Indigenous peoples, contained in Engaging the
      marginalised: Partnerships between indigenous peoples, government and civil
      society[2],      in order to build upon
      and formulate an extensive set of principles for Indigenous engagement in the
      operation of the EPBC Act.

    5. 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.

4 Scope of the
Act

  1. As noted above, the EPBC Act, which commenced on 16 July 2000, is the
    Australian Government’s central piece of environmental legislation.

  2. In response to chapter 1 of the Discussion Paper the Commission will
    consider:

    1. the appropriateness of the objects of the Act, particularly those concerned
      with the Commonwealth’s role in environment protection and
      management.

    2. whether the principles of Ecological Sustainable Development (ESD) are
      appropriate to the Commonwealth’s role in environment protection and
      management, and whether the legislation provides an adequate framework to guide
      ESD decisions made under the Act.

    3. whether the existing matters of national environmental significance (NES)
      are appropriate and whether there should be additional matters of NES, and how
      should they be framed.

4.1 The Objects of
the Act

  1. The Commission notes that the objects of the Act are to:

    • provide for the protection of the environment, especially those aspects of
      the environment that are matters of national environmental significance
      (NES)

    • promote ecologically sustainable development through the conservation and
      ecologically sustainable use of natural resources

    • promote the conservation of biodiversity

    • provide for the protection and conservation of heritage

    • promote a cooperative approach to the protection and management of the
      environment involving governments, the community, landholders and indigenous
      people

    • assist in the cooperative implementation of Australia’s international
      environmental responsibilities

    • recognise the role of indigenous peoples in the conservation and
      ecologically sustainable use of Australia’s biodiversity

    • promote the use of indigenous peoples’ knowledge of biodiversity with
      the involvement of, and cooperation with, the owners of that
      knowledge.

  2. In light of the significant challenges we face in the immediate future as a
    result of the impacts of continued drought and climate change, the Commission
    supports and commends the Government’s aim to ensure a legislative
    framework that promotes ecologically sustainable development through the
    conservation and ecologically sustainable use of natural resources.

  3. However, while the Commission is of the view that the objects are
    appropriate in terms of the Commonwealth’s role in the protection and
    management of the environment, the Commission is concerned that the current
    objects of the Act are not sufficient to ensure the protection and ongoing
    maintenance of Indigenous peoples rights and interests.

  4. For example, the objects clearly identify issues related specifically to the
    protection and conservation of
    heritage[3] and the role of Indigenous
    peoples in the conservation and ecologically sustainable use of
    Australia’s biodiversity.

  5. However, there is no clear link or guide as to the relationship between the
    EPBC Act and the Aboriginal and Torres Strait Islander Heritage Protection
    Act 1984     (Cth) as defined by ss 5-10 of the
    Act[4]. In order to adequately and
    consistently protect the heritage
    value[5] of places of significance to
    Indigenous peoples and achieve the objects of the Act, clear linkages must be
    made between inter-related legislation, both state and commonwealth to ensure
    consistency of approach and application.

  6. With regard to final object of the Act, the Commission notes that the object
    promotes the use of Indigenous people’s knowledge of biodiversity. While
    it is positive and crucial that the Australian Government recognises the
    importance of Indigenous knowledge to the protection of Australia’s
    biodiversity, the Commission is concerned that the object does not also provide
    for the protection of this knowledge. This issue will be addressed in more
    detail below in section 6.3(c).

4.2 The
Human Rights Framework and Indigenous Peoples’

  1. As the Government’s central piece of environment legislation, the EPBC
    Act provides for the domestic implementation of Australia’s international
    obligations under a number of international conventions relating to the
    environment, including:

    1. The Convention on Wetlands of International Importance especially as
      Waterfowl Habitat (Ramsar Convention)

    2. The Convention Concerning the Protection of the World Cultural and Natural
      Heritage (World Heritage Convention)

    3. The Convention on Biological Diversity (Biodiversity
      Convention).

  2. However, in addition to implementing the above instruments, the Commission
    notes that the EPBC Act impacts on the implementation of Australia’s
    obligations under a number of international human rights instruments, such as
    the International Covenant on Civil and Political Rights (ICCPR), the
    International Covenant on Economic, Social and Cultural Rights (ICESCR), and the
    Convention of the Elimination of all forms of Racial Discrimination (CERD).
    These instruments create a number of obligations on Australia to ensure the full
    and equal enjoyment and exercise of human rights for its citizens, including
    Indigenous peoples.[6]

(a) Overview of human
rights obligations in relation to Indigenous persons

  1. As the first peoples of Australia, Indigenous peoples possess a number of
    distinct rights that relate to their lands, waters, and natural resources; self
    determination; and engagement and participation in government processes that
    directly or indirectly impact on their lives.

  2. Indigenous peoples’ special connection to land and waters is protected
    under international law which provides for the right to practice, revitalise,
    teach and develop culture, customs and spiritual practices and to utilise
    natural resources.[7]

  3. The Committee on the Elimination of Racial Discrimination has also
    highlighted that the obligation to not discriminate on the basis of race
    requires that governments:

    1. provide indigenous peoples with conditions allowing for a sustainable
      economic and social development compatible with their cultural
      characteristics.

    2. ensure that members of indigenous peoples have equal rights in respect of
      effective participation in public life and that no decisions directly relating
      to their rights and interests are taken without their informed
      consent.

    3. recognise and protect the rights of indigenous peoples to own, develop,
      control and use their communal lands, territories and resources... [8]

(b) The right to a
healthy environment

  1. Environmental rights include the right of access to the unspoiled natural
    resources that enable survival such as land, shelter, food, water and air; the
    right to refuse development; and specific environment-related rights of
    Indigenous peoples.

  2. Environmental rights are provided for by international instruments including
    the Convention on Biological
    Diversity[9], the Ramsar Convention,
    the Rio Declaration[10] and Agenda
    21[11].

  3. The Rio Declaration asserts that human beings are at the centre of concerns
    for sustainable development and that we are entitled to a healthy and productive
    life in harmony with nature.[12] It
    also recognises the vital role of Indigenous communities’ knowledge and
    traditional practices in environmental management and calls on States to
    recognise and duly support the identity, culture and interests of Indigenous
    peoples and enable their effective participation in the achievement of
    sustainable development.[13]

  4. Agenda 21 is a comprehensive plan of action to be taken globally, nationally
    and locally by organisations of the United Nations, governments, and major
    groups in every area where there are human impacts on the environment. Agenda 21
    recognises that:

    1. Indigenous peoples have developed over many generations a holistic
      traditional scientific knowledge of their lands, natural resources and
      environment.

    2. the ability of Indigenous peoples to participate fully in sustainable
      development practices on their lands has tended to be limited as a result of
      economic, social and historical factors.

  5. In view of the interrelationship between the natural environment and its
    sustainable development and the cultural, social, economic and physical
    well-being of Indigenous people, Agenda 21 asserts that Indigenous people and
    their communities shall enjoy the full measure of human rights and fundamental
    freedoms without hindrance or discrimination. [14] It emphasises that national and
    international efforts to implement environmentally sound and sustainable
    development should recognise, accommodate, promote and strengthen the role of
    Indigenous people and their communities. In particular, it provides for the
    protection and management of natural resources recognising the effects that
    climate change will have on Indigenous
    peoples.[15]

  6. The Ramsar Convention provides for the conservation and wise use of all
    wetlands and their resources ‘through local, regional and national actions
    and international cooperation, as a contribution towards achieving sustainable
    development throughout the world.’

  7. The Convention provides guidelines for establishing and strengthening local
    communities’ and Indigenous peoples’ participation in the management
    of wetlands focusing on the need for Indigenous engagement and participation,
    trust and capacity building, knowledge exchange, flexibility and
    continuity.

  8. The objective of the Convention on Biological Diversity is to sustain all
    life on earth, including aquatic ecosystems, with the global goal to reverse and
    stop the loss of biodiversity.

  9. The Convention is directly linked with the Ramsar Convention through the
    Conference of the Parties (COP) decisions as the two conventions overlap in
    dealing with similar subject matter.

  10. Subject to national legislation, the Convention on Biological Diversity
    provides that each contracting Party shall, as far as possible and as
    appropriate:

    1. respect, preserve and maintain knowledge, innovations and practices of
      indigenous and local communities embodying traditional lifestyles relevant for
      the conservation and sustainable use of biological diversity and promote their
      wider application with the approval and involvement of the holders of such
      knowledge, innovations and practices and encourage the equitable sharing of the
      benefits arising from the utilization of such knowledge innovations and
      practices. [16]

    2. protect and encourage customary use of biological resources in accordance
      with traditional cultural practices that are compatible with conservation or
      sustainable use
      requirements[17]

  11. Additionally, many of the decisions of the COP call for the full and
    effective participation of Indigenous communities in order to achieve the global
    goal. [18]

(c) The
right to
culture[19]

  1. Indigenous peoples across the world have a right to practice, protect and
    revitalise their culture without interference from the state. Governments have
    an obligation to promote and conserve cultural activities and
    artefacts.[20] The right to culture
    is entrenched in a number of international law instruments. Article 27 of the
    ICCPR protects the rights of minorities to their own culture. The Human Rights
    Committee’s General Comment 23 makes it clear that this right applies to
    Indigenous peoples. The Committee also confirmed that this may require States to
    take positive legal measures to protect this
    right.[21]

  2. The right to culture is also found in a number of other instruments
    including:

    1. the World Heritage Convention, which notes that cultural heritage and
      natural heritage are increasingly threatened with destruction not only by the
      traditional causes of decay, but also by changing social and economic conditions
      which aggravate the situation with even more formidable phenomena of damage or
      destruction[22]

    2. Article 15 of the ICESCR, which upholds the right of everyone to ‘take
      part in cultural life’

    3. the ICERD[23], which commits all
      states to ‘ensure that indigenous communities can exercise their rights to
      practise and revitalize their cultural traditions and customs and to preserve
      and to practise their
      languages.’[24] ICERD General
      Comment 23 also provides that ‘no decisions directly relating to
      [Indigenous communities’] rights and interests are taken without their
      informed
      consent’[25]

    4. Article 30 of the Convention on the Rights of the Child, which
      protects the rights of children to their culture

    5. Article 8 of International Labour Organisation Convention 169, which
      provides a specific protection for Indigenous peoples stating that:
      ‘[Indigenous peoples] shall have the right to retain their own customs and
      institutions, where these are not incompatible with fundamental rights defined
      by the national legal system and with internationally recognised human
      rights’[26]

    6. the Declaration on the Rights of Indigenous Peoples, which includes a number
      of rights related to the right to practice and revitalisation of their cultural
      practices, customs and
      institutions.[27]

(d) The
right to economic development

  1. The ICESCR and the Declaration on the Rights of Indigenous Peoples provide
    for Indigenous peoples to access and use their lands, waters and natural
    resources for economic development and building sustainable communities.

  2. The United Nations Declaration on the Rights of Indigenous Peoples provides
    in particular that Indigenous peoples have the right to determine and develop
    priorities and strategies for the development or use of their lands or
    territories and resources. It states that:

    States shall consult and
    cooperate in good faith with the Indigenous peoples concerned through their own
    representative institutions in order to obtain their free and informed consent
    prior to the approval of any project affecting their lands or territories and
    other resources, particularly in connection with the development, utilisation or
    exploitation of mineral, water, or other
    resources.[28]

and that:

Indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining
health, housing and other economic and social programmes affecting them and, as
far as possible, to administer such programmes through their own
institutions.[29]

4.3 Domestic
Implementation

  1. The Commission stresses the importance of applying a consistent approach to
    monitoring and adherence of international standards, particularly in relation to
    Indigenous peoples’ rights and interests concerning land and resource
    management, and environmental and cultural heritage. This must include equitable
    involvement by Indigenous peoples in the development of these approaches.

  2. The Commission considers that the implementation of Australia’s
    international human rights obligations requires that the Government ensure that
    domestic mechanisms guarantee that the relevant rights discussed above are
    expressed, applied and exercised equally and consistently across the
    country.

  3. Therefore, at the domestic level, Indigenous peoples’ rights require
    legislative protection. In the development of legislative frameworks such as
    those relevant to land, water, and natural and cultural heritage, the following
    must be accounted for and protected:

    1. the full participation and engagement of Indigenous peoples in the
      development of policy and legislation that directly or indirectly affects their
      lives and their rights

    2. the adoption of and compliance with the principle of free, prior and
      informed consent

    3. the protection of Indigenous interests, specifically access to their lands,
      waters and natural resources

    4. the protection of Indigenous areas of significance, biodiversity, and
      cultural heritage

    5. the protection of Indigenous knowledge

    6. access and benefit-sharing through partnerships between the government,
      private sector, and Indigenous communities

    7. the principle of non-discrimination and substantive
      equality.

4.4 Principles of
Ecological Sustainable Development (ESD)

(a) The ESD
Principles

  1. Section 3A of the EPBC Act identifies a number of Principles of Ecologically
    Sustainable Development (the ESD principles). These are listed as:

(a) decision-making
processes that should effectively integrate both long-term and short-term
economic, environmental, social and equitable
considerations

(b) if
there are threats of serious or irreversible environmental damage, lack of full
scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation

(c) the principle of inter-generational equity – that the present
generation should ensure that the health, diversity and productivity of the
environment is maintained or enhanced for the benefit of future generations

(d) the conservation of biological diversity and ecological integrity should
be a fundamental consideration in decision-making

(e) improved valuation, pricing and incentive mechanisms should be
promoted.

  1. The ESD principles were developed in accordance with Agenda 21 and are
    confirmed in the Commonwealth Government’s National Strategy for
    Ecologically Sustainable Development 1992     (NSESD). The objectives of the
    NSESD were identified as:

    1. enhancing individual and community well-being and welfare by following a
      path of economic development that safeguards the welfare of future
      generations

    2. providing for equity within and between generations

    3. protecting biological diversity and maintaining essential ecological
      processes and life-support systems

  2. The NESD defined ecologically sustainable development (ESD)
    as:

    using, conserving and enhancing the community's resources so
    that ecological processes, on which life depends, are maintained, and the total
    quality of life, now and in the future, can be
    increased.[30]

  3. The NSESD highlights the importance of considering these guiding principles
    and core objectives as a package. The Commission supports the position outlined
    in the NSESD that affirms that no objective or principle should predominate over
    the others and that a balanced approach is required that takes into account all
    these objectives and principles to pursue the goal of ESD.

(b) Need for specific
ESD Principle relating to Indigenous interests

  1. Despite the reference to Indigenous interests in the Objects of the Act, the
    Commission is concerned that that the role and involvement of Indigenous peoples
    is not adequately reflected or mentioned in the ESD principles in s 3A. This is
    a cause for concern because the ESD principles provide guidance in terms of the
    practical application of the Act. The omission of any explicit reference to
    Indigenous rights and interests discounts their significance and carries the
    risk that decisions made under the Act will fail to give appropriate regard to
    such rights and interests. In the Commission’s view, this could
    effectively diminish the importance of Indigenous peoples’ roles in
    environmental and biodiversity conservation efforts.

  2. The Commission therefore recommends that the ESD principles in section 3A of
    the EPBC Act should be amended to specifically identify Indigenous rights and
    involvement as a crucial consideration.

(c) Need for specific
reference to cultural considerations in s 3A(a)

  1. The Commission is also concerned that the ESD principle listed in s 3A(a)
    includes explicit reference to only three equitable considerations, being
    economic, social and environmental. Under this ESD principle, culture is not
    identified as being a specific consideration of any weight. This is despite the
    objects of the Act specifically promoting the role of Indigenous peoples in the
    conservation and ecologically sustainable use of Australia’s biodiversity,
    and the use of Indigenous peoples knowledge’s.

  2. In the Commission’s view, it is not sufficient to assume that cultural
    considerations will be adequately taken into account under the vague and
    amorphous reference in s 3A(a) to ‘and equitable considerations’.

    For Indigenous peoples, culture is the key to caring for country.
    Caring for country is in turn the key to the maintenance and strengthening
    Indigenous people’s culture and well-being and ensuring that the principle
    of inter-generational equity is maintained or enhanced for the benefit of future
    generations. It is the active practice of Indigenous culture that promotes
    ecological sustainable development. Therefore, if Indigenous culture and the
    active engagement of Indigenous people is not considered in achieving ESD, the
    loss of cultural knowledge through the lack of engagement may pose a risk to the
    successful achievement of ESD.

  3. The North Australian Indigenous Land and Sea Management Alliance in the
    development of the Western Arnhem Land Fire Abatement Project have worked
    towards producing ‘quadruple bottom line outcomes’ – economic,
    social, environment and cultural. The quadruple bottom line is an adaptation of
    the term ’triple bottom line’, a term widely used in resource
    management to discuss a project in terms of its economic, social and
    environmental outcomes. The quadruple bottom line represents a more holistic
    means which expands the framework to include the cultural factors as well as the
    three other outcomes.[31]

  4. The Commission
    therefore recommends that Section 3A (a) be amended to read:
    ‘decision-making processes that should effectively integrate both
    long-term and short-term economic, environmental, social, cultural and
    equitable considerations’ (emphasis added).

(d) Lack of
accountability and monitoring of ESD principles

  1. While the Commission commends the Governments initiative in promoting the
    principles of ESD, the Commission is concerned that as an object of the Act, the
    ESD principles are undermined within both the NSESD and the EPBC Act as they are
    promoted as guiding only.[32]

  2. In the Commission’s view, in order to truly reflect the significance
    and relevance of ecologically sustainable development, these principles must be
    linked to the compliance and enforcement requirements of the legislation and
    have specific, monitoring, assessment, and reporting requirements as to how
    these principles have been respected and fully implemented.

  3. The Commission therefore recommends that Section 3A of the EPBC Act be
    amended to:

    1. link the ESD principles to the compliance and enforcement requirements of
      the legislation, and

    2. introduce specific, monitoring, assessment, and reporting requirements as to
      how the ESD principles have been respected and fully implemented.

4.5 Matters of
National Environmental Significance (MNES)

  1. The Commission notes that the EPBC Act provides a legal framework to protect
    and manage seven matters of national and international environmental
    significance, being:

    1. world heritage sites

    2. national heritage places

    3. wetlands of international
      importance[33]

    4. nationally threatened species and ecological communities

    5. migratory species

    6. Commonwealth marine areas

    7. nuclear
      actions.[34]

  2. The provisions of the EPBC Act are only triggered where there is a likely
    impact on one or more of the MNES listed above.

  3. The Commission notes that the Act aims to balance the protection of these
    crucial environmental and cultural values with our society’s economic and
    social needs and supports the continued recognition of the seven listed
    MNES.

  4. However the Commission is of the view that this list must also include more
    recent challenges and policy priorities including:

    1. climate change

    2. land clearing and reforestation

    3. water.

(a) Climate
change

  1. With regard to climate change, the EPBC Act was passed prior to
    Australia’s adoption of the Kyoto Protocol and Australia’s Carbon
    Pollution Reduction Scheme. As a result there is currently no trigger or
    mechanism under the EPBC Act for addressing issues affected by climate change,
    including potential
    ‘impacts’[35] and
    ‘significant
    impacts’[36] arising from
    adaptation and mitigation strategies.

  2. Additionally, the Commission is concerned that emerging climate change
    strategies focused on economic outcomes may also have an array of adverse
    environmental and/or cultural impacts, such as in relation to land clearing and
    forestation discussed below.

  3. At the recent Conference of the Parties to the Convention on Biodiversity,
    (COP-9) held in Bonn, Germany, the Parties to the Convention were urged to:

    [E]nhance the integration of climate change considerations related
    to biodiversity in their implementation of the Convention with the full and
    effective involvement of relevant stakeholders...and consider consumption and
    production models, including vulnerable components of biodiversity within these
    areas with regard to the impacts on indigenous and local
    communities.[37]

  4. Additionally, at an Australian Human Rights Commission, Human Rights Law
    Seminar on the impacts of climate change on human rights, von Doussa
    highlighted the need for governments to ensure that ‘Indigenous
    people’s custodial role over traditional lands, and the flow on impacts
    for environmental protection and caring for country, are fully taken into
    account when developing strategies for mitigation and
    adaptation’.[38]

  5. This illustrates how important it will be for the Australian Government to
    ensure it takes a broad holistic perspective when determining its climate change
    policy, and what linkages are required to other legislative frameworks to ensure
    consistency. More broadly, the government must conduct a review of all domestic
    legislation to evaluate how existing mechanisms affect the response to climate
    change.

(b) Land clearing and
reforestation

  1. Environmental degradation and climate change have presented the market with
    the impetus to create large scale plantations in pursuance of new timber
    products and for the emerging carbon trade industry in Australia. However, the
    rapid proliferation of these plantations and other initiatives has raised a
    number of complex environmental and cultural concerns.

  2. For example, as the Indigenous Peoples Organisation Network explained in
    their report to the Seventh Session of the United Nations Permanent Forum on
    Indigenous Issues in New York:

    In Australia, the area under
    industrial-plantation forestry has increased by 6,000km² in the past
    decade. As a proportion of the total area of agricultural land, this is a small
    change, but in a few individual regions such as south-western Victoria and the
    Riverina in the Murray Darling Basin, new plantation forestry represents a
    significant change in land
    management.[39]

    In northern Victoria and southern NSW, particularly in the high country,
    there have been large scale pine and blue gum plantations, which because of
    declining rainfall and their fast growth rate, are the most attractive trees for
    plantations in this region. However monocrops like these create particular
    environmental problems, for example:

    1. there is an enormous native vegetation removal and concomitant native animal
      removal

    2. monocrops are feral animal havens

    3. many of these crops experience herbicide application

    4. young tree growth in areas where they are not grown naturally has
      significance adverse affects on water supplies and ground water levels

    5. impacts on ground water including increased salinity problems in already
      degraded
      eco-systems.[40]

  3. The Indigenous Peoples Organisation Network also rightly pointed out that
    commercial tree plantations have potential for creating a viable economic base
    for Indigenous Australians whilst also utilising Indigenous cultural knowledge
    in the development of effective and sustainable land management strategies. This
    may offer a particularly viable option for consideration in areas of the country
    where economic development opportunities are scarce. Some plantations also have
    excellent potential to create biodiversity areas that sustain traditional
    cultural economies and restore degraded ecosystems.

  4. However there are concerns in Australia that the opposite is occurring, with
    large tracts of land being set aside for commercial interests that exclude
    Indigenous rights and interests, as well as the planting of monocrops that do
    not support Indigenous cultural
    economies.[41] Balancing the
    economic, social, environmental, and cultural interests in such development will
    be crucial to maintaining the integrity of the environment.

(c) Water

  1. With regard to water, the Commission notes that the Commonwealth Government
    has become more engaged in water management through the Water Amendment Act
    2008, specifically in the Murray-Darling Basin. The Commission supports the
    governments’ efforts to enable a stronger cross-jurisdictional approach to
    water management that results in greater consistency in the application of
    legislation, and greater cooperation between the States and the
    Commonwealth.

  2. However, the Commission is concerned about the current implementation of the
    Ramsar Convention through the EPBC Act.

  3. Section 3 of the EPBC Act provides the domestic legislative framework in
    implementing Australia’s obligations under various international
    instruments including the Ramsar
    Convention.[42] Australia currently
    has 64 Ramsar sites.

  4. The Commission is concerned that that there is no express provision under
    the EPBC Act that requires the Minister to consult with Indigenous peoples
    before making a Ramsar wetland declaration. Furthermore, the Commission is
    concerned that there are no provisions in the EPBC Act that provide for
    Indigenous involvement in the declaration of Ramsar wetlands.

  5. The Commission recommends that express provisions be made in the EPBC Act to
    provide for Indigenous involvement and consultation in the declaration and
    decision-making processes relating to Ramsar wetlands.

  6. The Commission also notes that, as with the EPBC Act, one of the objects of
    the Water Act 2007 (Cth) is to ‘give effect to relevant
    international agreements’[43],
    including:

    1. the Ramsar Convention

    2. the Convention on Biological Diversity

    3. any other international convention to which Australia is a party that is:

      • (i) relevant to the use and management of the Basin water resources

      • (ii) prescribed by the regulations of the Water
        Act.[44]

  7. As there is a direct link between the EPBC Act and the Water Act, the
    Commission considers that activities conducted in accordance with the Water Act
    should also be required to comply with and be assessed against the principles
    and requirements of the EPBC Act.

  8. The Commission therefore recommends that the MNES listed under Part 3 of the
    EPBC Act, be extended to include climate change, land clearing and
    reforestation, and water as MNES.

5 Protected
Areas

  1. In response to chapter 5 of the Discussion Paper the Commission will
    consider:

    1. what factors the Minister should have regard to when making a decision on
      heritage listing

    2. the process for nominating and listing Commonwealth Heritage and National
      Heritage places

    3. the effectiveness and utility of Commonwealth heritage strategies and
      management plans for protection World, National and Commonwealth Heritage
      values.

  2. The Protected Areas under the EPBC Act include

    1. World Heritage properties

    2. National Heritage properties

    3. Commonwealth Heritage properties

    4. Wetlands of National importance (Ramsar wetlands)

    5. Biosphere reserves

    6. Commonwealth reserves and conservation zones

  3. The EPBC Act provides for the listing of natural, historic or Indigenous
    places that are of outstanding national heritage value to the Australian nation,
    such as the Brewarrina Aboriginal Fish Traps (Baiame’s Ngunnhu), New South
    Wales, as well as heritage places on Commonwealth lands and waters or under
    Australian Government control.

  4. A declared World Heritage property is an area that has been included in the
    World Heritage List or declared by the Minister to be a World Heritage property.
    World Heritage properties are places with natural or cultural values which are
    recognised to have outstanding and universal value, such as the Great Barrier
    Reef.[45]

  5. The Commission notes that each year the Minister makes a general call for
    nominations to the National and Commonwealth Heritage Lists. Anyone may nominate
    a place in response to this call.

  6. The Commission recognises that the listing of a heritage place under the
    EPBC Act aims to ensure that the values of the place will be protected and
    conserved for future generations. However, the Commission is concerned about the
    affect on the rights and interests of Indigenous peoples, particularly the right
    of Indigenous peoples to the ownership and control of their lands, territories
    and natural resources, and to give - or not give - their free, prior and
    informed consent over developments on their land. This includes a right to
    determine and develop priorities and strategies for the development or use of
    their lands and resources.

  7. Firstly, the Commission considers that the EPBC Act requires amendment to
    ensure that Indigenous people must be engaged throughout all phases of
    nomination through to management of heritage listed areas including, the
    planning, nomination, and management phases of declaring and managing heritage
    listed areas. For example:

    1. The Commission notes that s 315 of the EPBC Act provides that in relation to
      the listing of a property on the World Heritage List, the Minister must give
      notice in the Gazette of the submission of the property for listing. In
      order to ensure that Indigenous peoples have access to this information and are
      in the best position possible to respond to the submission, the EPBC Act should
      include a requirement specific to the notification of Indigenous
      peoples.

    This might require notification to the
    relevant Land Council or Indigenous representative body under a similar
    mechanism to that provided under the ‘future act regime’ in Part 2
    of the Native Title Act 1993 (Cth).[46] This would
    ensure that the Indigenous peoples have full access to the notification and
    listing process and are not overlooked or merely engaged as an afterthought.

    The Commission considers that this notification mechanism should also be
    applied to provisions relating to the nomination of Commonwealth and National
    Heritage properties.

    1. The Commission is concerned that in the development of bilateral agreements,
      s 49A(c) of the EPBC Act requires the Minister to only have considered the role and interests of Indigenous peoples in promoting the conservation and
      ecologically sustainable use of natural resources in the context of the proposed
      agreement, and in accordance with Australia’s obligations under the
      Biological Diversity Convention.

    The limitations of this provision
    contravene Indigenous peoples’ right to give their free, prior, and
    informed consent on decisions that have a direct or indirect impact on their
    lives. Additionally, the discretion of the Minister to only consider the role
    and interests of Indigenous people is very broad and therefore not readily
    amenable to effective judicial review. As a result, Indigenous interests can too
    easily be discounted in favour of other priorities. The current provisions also
    fail to afford Indigenous peoples with any formal opportunity to make
    submissions to the Minister prior to his or her making relevant decisions under
    the Act that may impact on Indigenous rights and interests.

    1. The Commission notes that the provisions that relate to the management of
      Protected Areas in Part 10 of the Environment Protection and Biodiversity
      Conservation Regulations 2000       do not provide adequate provisions to ensure
      the full and effective engagement or participation of Indigenous in the
      development or implementation of management plans.

    2. While regulations 10.01D (c)(ii) and 10.03C(c)(ii), for example, provide
      that the publication of notice about management plan for National and
      Commonwealth Heritage places must invite comments on the draft from Indigenous
      people with rights and interests in the place, neither the Act nor the
      Regulations include provisions that require the participation of Indigenous
      peoples in the actual drafting of the plan.

    3. The Commission acknowledges that the EPBC Act does provide for the specific
      involvement of Indigenous peoples in the management of Commonwealth reserves on
      Indigenous people’s lands.[47] However, the Commission considers that provisions such as these should be
      expanded so as to also be applied to the management of other areas concerned
      with the EPBC Act, such as World Heritage and National Heritage listed areas.
      This may also contribute to a consistent application of the legislation in
      relation to Indigenous engagement.

  8. The Commission also recommends that the EPBC Act provide for the free, prior
    and informed consent, co-operation and involvement of the Indigenous peoples of
    a proposed protected area in:

    1. the nomination of the area

    2. the development and implementation of management plans and other forms of
      agreement (including bilateral agreements).

  9. Secondly, education and accessible information must be provided to the
    Indigenous peoples whose rights and interests are likely to be affected prior to
    a declaration being made, to ensure that their consent is properly informed.
    Clear information must also be provided as to their rights to their lands,
    waters and natural resources once a listing has been confirmed and finalised as
    to their role and responsibility in the development and implementation of
    management plans for those areas.

6 Indigenous
Involvement

6.1 Introduction

  1. In response to chapter 6 of the Discussion Paper, the Commission will
    consider:

    1. whether there are opportunities to harmonise legislative provision for the
      protection of Indigenous heritage values and how

    2. whether the EPBC Act adequately supports Indigenous involvement in the
      preparation of management plans for Commonwealth reserves

    3. whether the processes under the EPBC Act facilitate the involvement and
      cooperation of Indigenous people as owners of knowledge of
      biodiversity.

  2. In addition to concerns raised above, the Commission notes that the EPBC Act
    provides for the recognition of Indigenous peoples rights and interests in its
    objects, particularly:

    1. the role played by Indigenous people in the conservation and sustainable use
      of resources

    2. the need to promote the use of local and traditional ecological knowledge to
      inform management and conservation decisions.

6.2 Opportunities
to harmonise legislative provision for the protection of Indigenous heritage
values

  1. The Commission notes that the EPBC Act currently provides for the
    relationship between State and Territory laws relevant to the Act’s scope
    and operation, including:

    1. Fisheries Management Act 1991

    2. Native Title Act 1993

    3. Aboriginal Land Rights (Northern Territory) Act
      1976

    4. Airports Act 1996

    5. Antarctic Treaty (Environment Protection) Act 1980

    6. State and Territory
      laws.[48]

  2. However, the Commission is of the view that the EPBC Act must also require
    that these laws operate in accordance with the EPBC Act.

  3. As discussed above in section 4.1, the Commission notes that while the EPBC
    Act provides for the protection and conservation of heritage, including cultural
    heritage, there are no distinct linkages between the EPBC Act and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

  4. The Commission also notes that the development of climate change legislative
    frameworks and policy is developing rapidly in Australia and is a responsibility
    of the Commonwealth Government. It is in this context, that the Commission
    promotes the need for climate change policy and legislation to be clearly linked
    to the EPBC Act.

  5. Further, as discussed above, the challenge that water-related issues brings
    to the successful implementation of the EPBC Act requires formal and direct
    linkages to the Water Act 2007 as a matter of urgency.

  6. The Commission recommends that ss 5-10 of the EPBC Act be amended to include
    the relationship between the EPBC Act and legislation concerning climate change
    as well as the Aboriginal and Torres Strait Islander Heritage Protection Act
    1984     (Cth) and the Water Act 2007 (Cth).

(a) The importance of
Indigenous involvement

  1. The Australian Government recognise the importance of Indigenous involvement
    in conservation. In fact they highlight three reasons as to why it is important
    to involve Indigenous people in understanding and managing
    biodiversity:

    1. First, there is widespread recognition of the past, present and future
      custodianship of Australia's biodiversity by Indigenous peoples, and of their
      rights and responsibilities toward it under both customary and western law.

    2. Second, traditional and ongoing Indigenous knowledge is increasingly
      accepted as a valid and necessary information input to biodiversity management,
      alongside scientific information.

    3. Third, with some 15% of the continent under Indigenous ownership and/or
      management in 1996, often in remote environments that represent a management
      challenge, achieving protection of biodiversity without strong participation by
      local communities would be
      impossible.[49]

  2. The Commission notes that the joint management of national parks and other
    conservation reserves (including Indigenous Protected Areas) with Indigenous
    traditional owners is increasingly being accepted as an appropriate option for
    the management and protection of these
    areas.[50]

  3. Additionally, Government programs such as the Working on Country program
    promotes the use of Indigenous knowledge in protecting and managing land and sea
    country and provides funding for Indigenous people to deliver environmental
    outcomes such as fire management to the Australian Government. The provision of
    environmental services by Indigenous peoples will contribute significantly to
    the maintenance of Australia’s biodiversity and assist with the mitigation
    of climate change impacts.

  4. In addition, as discussed above, the international human rights framework
    clearly identifies Indigenous peoples’ rights to be fully engaged in
    government processes that directly or indirectly impact on their lives. This
    means that Indigenous people 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.

  5. The Commission also notes that it is the declared position of the Australian
    Government to encourage Indigenous economic development through leveraging
    opportunities available to them on the Indigenous estate. Therefore, it will be
    crucial in the development of the Indigenous Economic Development Strategy that
    the role of Indigenous peoples, particularly through the use of Indigenous
    knowledge to assist with conserving Australia’s biodiversity, identified
    in the EPBC Act is accounted for.

6.3 Options for
increasing Indigenous involvement

  1. For the reasons discussed below, the Commission also considers that this
    review provides a valuable opportunity to explore potential opportunities for
    Indigenous peoples in the conservation and sustainable use of resources. Whilst
    not a conclusive list, options for consideration that are discussed below
    include:

    1. increased use of Indigenous stewardship models

    2. expanding the composition and role of the Indigenous Advisory
      Committee

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

(a) Indigenous
stewardship models

  1. One option for enhancing the role of Indigenous peoples in the protection
    and maintenance Australia’s biodiversity is to support Indigenous
    stewardship, particularly over lands where Indigenous peoples reside.

  2. The Indigenous stewardship model promotes the inclusion of Indigenous people
    as an integral part of land and water management, rather than separate to it,
    with active responsibility for the maintenance and care of land and waters.
    Under this approach, Indigenous peoples perceive protection of their lands to
    mean avoiding their destruction through sustainable use, rather than avoiding
    their use altogether.

  3. Therefore, because many Indigenous peoples prefer to remain on their lands,
    engaging them in land-conservation initiatives creates a win-win opportunity for
    both conservationists and Indigenous communities.

(b) Indigenous Advisory
Committee

  1. The Commission notes that s 505A of the EPBC Act provides for the
    establishment of an Indigenous Advisory
    Committee[51] (IAC). The EPBC Act
    provides that the functions of the IAC are 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.[52]

  2. The composition of the Committee including the qualifications of its members
    is at the Ministers discretion. Members are appointed on a part-time basis, and
    the Minister appoints one of the members to chair the
    Committee.[53] The Commission also
    notes that in accordance with s 505B the Minister may give the Committee written
    guidelines about its functions.

  3. The Commission is concerned that the EPBC Act does not adequately support
    Indigenous engagement by its failure to clearly state that the membership of the
    IAC must be constituted only by Indigenous people. If non-Indigenous membership
    of the Committee is to be approved by the Minister, the Commission considers
    that the EPBC Act should direct that this decision must be based on the
    Minister’s reasonable satisfaction that:

    1. the member will bring substantial and relevant expertise to the Committee
      that could not otherwise be obtained from another Committee established under
      the EPBC Act[54]

    2. the member can fairly represent the interests of Indigenous
      communities.

  4. In addition, the Commission considers that the role of the IAC needs to be
    strengthened. While the IAC provides representation on issues relevant to
    Indigenous peoples, their lands and waters, the level of engagement between the
    Minister and the IAC is often limited to the terms of reference developed by the
    government. Additionally, the position of the IAC and its capacity to
    effectively reflect the concerns of Indigenous peoples about their rights and
    interests is limited by the fact that this platform is to inform the government
    only, rather than to have a direct role in decisions which affect Indigenous
    people.

  5. The Indigenous Peoples Organisations Network has argued that the IAC is
    effectively excluded from the workings of the EPBC Act. There is considerable
    frustration that the IAC is established under the Act to advise the Minister for
    Environment, Water, Heritage and the Arts on the operation of the Act in
    relation to activities and matters of national environmental significance.
    However, despite the efforts of the IAC for example, to argue the significance
    of the Burrup Peninsula on the Dampier Archipelago in Western Australia, their
    advice has been largely
    ignored.[55]

  6. The Commission is also concerned to ensure that consultation by the Minister
    with the IAC does not replace the government’s requirement to engage
    directly with Indigenous peoples whose lands and waters will be affected by
    decisions in accordance with the EPBC Act. That is, whilst engagement with the
    IAC should be encouraged, it should never be capable of acting as a substitute
    for direct and comprehensive engagement with the Indigenous peoples of the
    relevant lands.

  7. The Commission recommends that the Review Committee consider strengthening
    of the IAC to provide a more directive and authoritative capacity rather than
    limiting this to an advisory role only. For example, the EPBC Act could be
    amended to provide for delegated decision-making to the IAC on specific matters
    of significance to Indigenous peoples and their rights and interests. This may
    include World Heritage listed areas and Commonwealth and National Heritage
    listed areas over places with significant relevance to Indigenous peoples.
    Alternatively, the Act could provide greater guidance on the priority of IAC
    recommendations in informing the decision-making of the Minister to provide
    greater scope for judicial review where a Minister fails to reasonably follow
    such recommendations.

  8. Additionally, the Commission is concerned about the lack of transparency in
    relation to the advice provided to the Minister by the Committee’s. The
    Commission is of the view that all of the Committee’s established under
    the EPBC Act, be required to provide formal advice/reports to the Minister and
    that this information is publically available on the Departments website. This
    would further contribute to strengthening the role of the IAC.

  9. The Commission recommends that the Review Committee consider the inclusion
    of specific mechanisms that promote transparency in relation to the advice and
    deliberations of the Committee’s established under the EPBC Act. In
    reviewing the engagement of Indigenous peoples under the EPBC Act and the role
    of the IAC, the Commission further recommends that the Review Committee have
    regard to the guidelines for engagement with Indigenous peoples, contained in Engaging the marginalised: Partnerships between indigenous peoples,
    government and civil society     (Copy attached at Appendix
    1).[56] These guidelines
    provide an excellent framework to build upon to formulate an extensive set of
    principles for Indigenous engagement in the operation of the EPBC Act.

(c) Promoting
the use of local and traditional ecological knowledge to inform management and
conservation decisions

  1. As identified above, the Commission notes that the final object of the EPBC
    Act promotes the use of Indigenous people’s knowledge of biodiversity.
    While it is positive and crucial that the Australian Government recognises the
    importance of Indigenous knowledge to the protection of Australia’s
    biodiversity, the Commission is concerned that the object does not also provide
    for the protection of this knowledge.

  2. Davis argues that:

    Over the millennia, Indigenous peoples have
    developed a close and unique connection with the lands and environments in which
    they live. They have established distinct systems of knowledge, innovation and
    practices relating to the uses and management of biological diversity on these
    lands and environments.

    3. Much of this knowledge forms an important contribution to research and
    development, particularly in areas such as pharmaceuticals, and agriculture and
    cosmetic products. In the context of these uses, Indigenous peoples claim that
    their rights as traditional holders and custodians of this knowledge are not
    adequately recognised or protected. They demand not only recognition and
    protection of this knowledge, but also the right to share equitably in benefits
    derived from the uses of this
    knowledge.[57]

  3. The EPBC Act does not provide any guidance on how this knowledge is
    obtained, who has control over the use of this knowledge and under what
    circumstances (whether it becomes public knowledge or the knowledge of the
    government department implementing the EPBC Act), and the role of Indigenous
    people in the appropriation of this knowledge. Are they merely expected to hand
    over the information in the national interest?

  4. A long held concern of Indigenous peoples around the world is the inadequate
    protection of Indigenous traditional knowledge. This includes protection from
    misappropriation. For the majority of Indigenous Australians the rights to
    Indigenous knowledge are generally owned collectively by the Indigenous
    community (or language group, or tribal group) as distinct from the individual.
    It may be a section of the community or, in certain circumstances, a particular
    person sanctioned by the community (in accordance with traditional law and
    custom) that is able to speak for or make decisions in relation to a particular
    instance of traditional knowledge. Some of this knowledge is of a highly sacred
    and secret nature and therefore extremely sensitive and culturally significant
    and not readily publicly available, even to the members of the particular group
    who owns that knowledge.

  5. The Commission is concerned that the focus of the object of the EPBC Act is to promote the use of local and traditional ecological knowledge to
    inform management and conservation decisions. The reliance on Indigenous
    knowledge is increasingly becoming common practice. The Commonwealth
    Government’s Green Paper on Climate Change in Australia also identifies
    the need to investigate ‘the feasibility of co-operative research centres
    to collect Indigenous
    knowledge’.[58]

  6. The Commission is of the view that the current framework for the protection
    of intellectual property in Australia does note provide adequate protection or
    recognition of the uniqueness of Indigenous knowledge and should not be regarded
    as an adequate safeguard against the misappropriation of Indigenous knowledge.
    For example, Australian intellectual property laws typically focus on the right
    of an individual and are ill-suited to communal or group protection. These laws
    are also focused on the protection of published ‘works’ and are
    therefore also ill-suited to the protection of intergenerational knowledge
    passed down in the oral tradition:

    Opportunities to preserve and
    value Indigenous Traditional Knowledge are endangered by the range of problems
    within our environment and communities today. Avenues for the preservation of
    traditional knowledge are fading and are at risk of being lost altogether. Loss
    of traditional knowledge will result in a decline of Indigenous identity and a
    severe reduction in the recognition and understanding of an invaluable
    sustainable knowledge
    system.[59]

  7. Section 303BA of the EPBC Act states that the objects of the Act include
    complying with Australia’s obligations under the Convention on Biological
    Diversity’s Biodiversity Convention.

  8. The Commission refers the Review Committee and the Australian Government to
    the provisions of this Convention which provides guidance on the issue of
    protection of Indigenous knowledge. Whilst not specific to Indigenous rights,
    the Convention on Biological Diversity provides specific opportunities for
    introducing measures to recognise and protect Indigenous knowledge. For
    example, Article 8(j) encourages countries to:

    ...respect, preserve
    and maintain knowledge, innovations and practices of Indigenous and local
    communities embodying traditional lifestyles relevant for the conservation and
    sustainable use of biological diversity and promote their wider application with
    the approval and involvement of the holders of such knowledge, innovations and
    practices and encourage the equitable sharing of the benefits arsing from the
    utilisation of such knowledge, innovations and
    practices.[60]

  9. In addition, Article 8(j) specifically gives recognition firstly to the
    traditional knowledge, innovations and practices of Indigenous people and local
    communities while also speaking strongly for its protection, preservation and
    maintenance. Article 8(j) also provides that the use of Indigenous traditional
    knowledge, innovations and practices should only occur with the approval and
    involvement of the Indigenous or local community and that any benefits that
    arise from its use is to be shared with the people or community from which that
    knowledge originated.[61]

  10. Additionally, the Desert Knowledge Cooperative Research Centre (Desert
    Knowledge CRC) have developed a comprehensive Protocol for Aboriginal
    Knowledge and Intellectual
    Property.[62]     This protocol has
    been developed with specific relevance to the Aboriginal communities with which
    the Desert Knowledge CRC work closely. The protocol acknowledges and respects
    that those Aboriginal communities and groups will have their own protocols that
    must also be observed, understood and engaged with as an essential ongoing part
    of any process with Indigenous people. However, the protocol serves as a very
    useful guide towards best practice in ethics, confidentiality, equitable benefit
    sharing and in managing research information. [63] The complete protocol is attached at
    Appendix 2 as an example of what should be considered in the development of a
    National Indigenous Knowledge Use and Protection Protocol.

  11. The Commission recommends 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.

7 Appendix

  1. Appendix 1 - Engaging the marginalised: Partnerships between indigenous
    peoples, government and civil society

  2. Appendix 2 - Desert Knowledge Cooperative Research Centre Protocol for
    Aboriginal Knowledge and Intellectual Property

[1] Environment Protection and
Biodiversity Conservation Act 1999, s
522A.

[2]Human Rights and Equal
Opportunity Commission and United Nations Permanent Forum on Indigenous Issues, Engaging the marginalised: Report of the workshop on engaging with Indigenous
communities, (2005) At: http://www.humanrights.gov.au/social_justice.

[3] World Heritage Convention,
Article 1, provides that: ‘For the purpose of this Convention, the
following shall be considered as "cultural heritage": monuments: architectural
works, works of monumental sculpture and painting, elements or structures of an
archaeological nature, inscriptions, cave dwellings and combinations of
features, which are of outstanding universal value from the point of view of
history, art or science; groups of buildings: groups of separate or connected
buildings which, because of their architecture, their homogeneity or their place
in the landscape, are of outstanding universal value from the point of view of
history, art or science; sites: works of man or the combined works of nature and
man, and areas including archaeological sites which are of outstanding universal
value from the historical, aesthetic, ethnological or anthropological point of
view.

[4] Environment Protection
and Biodiversity Conservation Act 1999, ss 5 –
10.

[5] Environment Protection
and Biodiversity Conservation Act 1999, s
528.

[6] While a breach of these
obligations is ultimately the responsibility of the Commonwealth government,
being the government that has the international legal personality to enter into
treaty obligations, it is clear that the laws of state and territory governments
can put Australia in breach of those obligations: see art 50 of the ICCPR and
art 28 of the ICESCR. It may be noted that the Australian Government can seek to
protect against breaches of human rights obligations by legislating to override
state laws: see, for example, Commonwealth v Tasmania (1983) 158 CLR
1.

[7] See International Covenant
on Civil and Political Rights, arts 1, 27; International Covenant on Economic,
Social and Cultural Rights, articles1,15; Declaration on the Rights of
Indigenous Peoples, arts 11-13,
26-31.

[8] United Nations Committee
on the Elimination of Racial Discrimination, General Comment 23: Indigenous
Peoples, UN Doc: A/52/18, annex V, 18 August 1997, para
5.

[9] Australia ratified the
Convention on Biological Diversity in June 1993. The Convention came into force
in December 1993.

[10] Australia
was one of the 178 countries participating in the UN sponsored conference on
Environment and Development held in Rio de Janeiro in 1992. That conference
formulated the Rio Declaration on Environment and Development, a statement of 27
principles directed towards promoting sustainable development, including the
protection of the environment. At http://www.aph.gov.au/library/pubs/RN/1997-98/98rn04.htm,
(viewed 25 November 2008).

[11] Agenda 21 was adopted by more than 178 Governments, including Australia,
at the UN Conference on Environment and Development in 1992. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[12] The Rio Declaration on Environment and Development, Principle
1.

[13] The Rio Declaration on
Environment and Development, Principle
22.

[14] Agenda 21,
Chapter 18. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[15] Agenda 21, Chapter 26. Chapter 26 specifically relates to recognising
and strengthening the role of Indigenous People and their Communities. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[16] Convention on Biological Diversity, Art 8(j).

[17] Convention on Biological
Diversity, Art 10(c).

[18] See
for example Conference of the Parties to the Biodiversity Convention, Marine
and coastal biological diversity, COP 9 Decision IX/20, Bonn, 19 - 30 May
2008. At http://www.cbd.int/decisions/?m=COP-09&id=11663&lg=0 (viewed1 September 2008).

[19] See the Human Rights Education Associates website at: http://www.hrea.org/index.php?base_id=157.

[20] See the Human Rights Education Associates website at: http://www.hrea.org/index.php?base_id=157.

[21] United Nations Office of the High Commissioner for Human Rights, General
Comment No. 23: The rights of minorities, Art. 27, UN Doc
CCPR/C/21/Rev.1/Add.5, 1994.

[22] Convention Concerning the Protection of the World Cultural and Natural Heritage,
was adopted by the United Nations Educational, Scientific and Cultural
Organization (UNESCO) on 16 November 1972, at Paris,
France.

[23] Convention on the
Elimination of All Forms of Racial Discrimination, opened for signature 7
March 1966, 660 UNTS 195 (entered into force 4 January 1969. Australia ratified
the convention on 30 September 1975).

[24] Committee on the
Elimination of Racial Discrimination, General Comment No. 23: Indigenous
peoples, 1997.

[25] Committee
on the Elimination of Racial Discrimination, General Comment No. 23:
Indigenous peoples, 1997.

[26] Convention (No.
169) concerning Indigenous and Tribal peoples in independent countries (entered
into force 5 September 1991).

[27] See United Nations Declaration on the Rights of Indigenous
Peoples, GA Resolution 61/295, UN Doc A/61/L.67, 2007, articles 5, 8, 11,
12 and 25 among others.

[28] Declaration on the Rights of Indigenous Peoples, Article 32.

[29] Declaration on the Rights
of Indigenous Peoples, Article
23.

[30] Ecologically Sustainable
Development Steering Committee, National Strategy for Ecologically
Sustainable Development 1992, Endorsed by the Council of Australian
Governments

December, 1992. At: http://www.environment.gov.au/esd/national/nsesd/strategy/index.html (viewed, 22 January 2009).

[31] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Human Rights and Equal Opportunity Commission, 2008, p
268.

[32] Ecologically
Sustainable Development Steering Committee, National Strategy for
Ecologically Sustainable Development 1992, Endorsed by the Council of
Australian Governments

December, 1992. At: http://www.environment.gov.au/esd/national/nsesd/strategy/index.html (viewed, 22 January 2009).

[33] Often called ‘Ramsar’ wetlands, as covered by the Ramsar
Convention.

[34] Australian
Government, Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act) Fact Sheet. At: http://www.environment.gov.au/epbc/publications/pubs/epbc-act-fact-sheet.pdf (viewed 29 August 2008).

[35] Environment Protection and Biodiversity Conservation Act 1999, s 527E.
Definition also provided in Australian Government Department of the Environment,
Water, Heritage and the Arts, Independent Review of the Environment
Protection and Biodiversity Conservation Act 1999 Discussion Paper, 31
October 2008, p 9.

[36] Definition provided in Australian Government Department of the Environment,
Water, Heritage and the Arts, Independent Review of the Environment
Protection and Biodiversity Conservation Act 1999 Discussion Paper, 31
October 2008, p 9.

[37] Convention on Biodiversity, Conference of the Parties- COP-9 –
Decisions, Biodiversity and climate change, COP-9 Decision IX/16 (2008). At: www.cbd.int/decisions/cop9/?m=COP-09&id=11659&lg=0 (viewed 1 September 2008).

[38] J
von Doussa (President of the Australian Human Rights Commission), Climate
change and human rights: a tragedy in the making, Australian Human Rights
Commission, Human Rights Law Seminar, Sydney, 20 August 2008. At: http://www.humanrights.gov.au/legal/seminars/index.html,
(viewed 26 August 2008).

[39] Benyon and Doody, ‘Impacts of tree plantations on groundwater in
south-eastern Australia’, Australian Journal of Botany, 54(2), p
181. As cited by Indigenous Peoples Organisations Network, Oil Palm and Other
Commercial Tree Plantations, Monocropping: Impacts on Indigenous Peoples’
Land Tenure and Resource Management Systems and Livelihoods – Indigenous
Peoples Organisation of Australia Response, Response to Item 4 of the
Seventh Session of the United Nations Permanent Forum New York 21 April –
2 May 2008.

[40] Indigenous
Peoples Organisations Network, Oil Palm and Other Commercial Tree
Plantations, Monocropping: Impacts on Indigenous Peoples’ Land Tenure and
Resource Management Systems and Livelihoods – Indigenous Peoples
Organisation of Australia Response, Response to Item 4 of the Seventh
Session of the United Nations Permanent Forum New York 21 April – 2 May
2008.

[41] Indigenous Peoples
Organisations Network, Oil Palm and Other Commercial Tree Plantations,
Monocropping: Impacts on Indigenous Peoples’ Land Tenure and Resource
Management Systems and Livelihoods – Indigenous Peoples Organisation of
Australia Response, Response to Item 4 of the Seventh Session of the United
Nations Permanent Forum New York 21 April – 2 May 2008.

[42] Section 3(2)(f) of EPBC
Act

[43] To the extent to which
those agreements are relevant to the use and management of the Basin water
resources). Water Act 2007 (Cth), s 3 (b).

[44] Water Act 2007 (Cth), s 4.

[45] Australian
Government Department of the Environment and Water, The Environment
Protection and Biodiversity Conservation Act - Guide to the EPBC Act, Commonwealth of Australia, 2007. At:

[46] Native Title Act 1993 (Cth), Part 2, Section
24.

[47] Environment
Protection and Biodiversity Conservation Act 1999, ss 374 –
383.

[48] Environment
Protection and Biodiversity Conservation Act 1999, ss 5 –
10.

[49] Department of
Environment, Water, Heritage and the Arts, Australia State of the Environment
Report 2001 (Theme Report), published by CSIRO on behalf of the Department
of the Environment and Heritage, 2001. At: http://www.environment.gov.au/soe/2001/publications/theme-reports/biodiversity/biodiversity06-5.html.

[50] The Queensland Cape York
Peninsula Heritage Act 2007 which was proclaimed on 2 November 2007,
provides for the removal of impediments to the declaration of national parks by
establishing joint management arrangements with Indigenous landholders At: http://www.nrw.qld.gov.au/cape_york/index.html.
The NSW Government are negotiating Aboriginal co-management of national parks,
reserves and other areas through the development of Aboriginal co-management
arrangements. At: http://www.environment.nsw.gov.au/comanagement/index.htm.

[51] Environment Protection and Biodiversity Conservation Act 1999, s
505a(1).

[52] Environment
Protection and Biodiversity Conservation Act 1999, s
505B.

[53] Environment
Protection and Biodiversity Conservation Act 1999, s 505A(2) and
(3).

[54] For example, the
Threatened Species Scientific Committee, and the Biological Diversity Advisory
Committee, Environment Protection and Biodiversity Conservation Act 1999, ss 502 – 505.

[55] Indigenous Peoples Organisation Network (IPO), Environment – Indigenous
Peoples Organisation of Australia Response, Response to Agenda Item 4.2
– Environment of the Seventh Session of the United Nations Permanent
Forum, New York, 21 April – 2 May 2008.

[56]Human Rights and Equal
Opportunity Commission and United Nations Permanent Forum on Indigenous Issues, Engaging the marginalised: Report of the workshop on engaging with Indigenous
communities, (2005) At: http://www.humanrights.gov.au/social_justice.

[57] M Davis, (Science,
Technology, Environment and Resources Group), Biological Diversity and
Indigenous Knowledge, 29 June 1998, Research Paper 17 1997-98, Parliament of
Australia, available online at: www.aph.gov.au/library/Pubs/RP/1997-98/98rp17.htm,
accessed on 22 September
2008.

[58] The Hon Peter Garrett,
Minister for the Environment, Water, Heritage and the Arts, Correspondence with
the Aboriginal and Torres Strait Islander Social Justice Commissioner –
Request for Information in preparation of the Native Title Report 2008, 29
August 2008.

[59] Traditional
Knowledge Revival Pathways. At: http://tkrp.com.au/index.php?option=com_content&task=view&id=17&Itemid=26 (viewed 1 October 2008).

[60] Convention on Biological Diversity, Article
8(j).

[61] H Fourmile-Marrie
& G Kelly, The Convention on Biological Diversity and Indigenous People:
Information concerning the implementation of decisions of the Conference of the
Parties under the Convention on Biological Diversity, Centre for Indigenous
History and the Arts, University of Western Sydney, 2000, pages
3-4.

[62] Desert Knowledge
Cooperative Research Centre, Protocol for Aboriginal Knowledge and
Intellectual Property. At: www.desertknowledgecrc.com.au (viewed 15 December 2008).

[63] Desert Knowledge Cooperative Research Centre, Protocol for Aboriginal
Knowledge and Intellectual Property. At: www.desertknowledgecrc.com.au (viewed 15 December 2008).