By Peter Burnett
In an earlier blog I argued that Professor Graeme Samuel’s 2020 review of the EPBC Act amounted to a call for five transformations in national environmental law. Last time I wrote about transforming a system that is focused on process to a focus on outcomes. Today I write about the second transformation.
Something really struck me about Anthony Albanese’s election-night victory speech last May. After the usual ‘humbled by victory’ thank you, and the standard ‘bring Australians together’ call for unity, Albanese launched into what sounded like the passionate policy speech he had wanted to give all along, but couldn’t, because of Labor’s ‘small policy target’ strategy.
Warming up as he tripped across our future as a ‘renewable energy superpower’ and a more ‘just society’, Albanese reached full voice with:
And together we can embrace the Uluru Statement from the Heart. We can answer its patient, gracious call for a voice enshrined in our constitution. Because all of us ought to be proud that amongst our great multicultural society we count the oldest living continuous culture in the world.
After the frustrations of weeks of restrained ‘don’t frighten the horses’ language (central to their election campaign), it was a relief to hear this leadership.
I also felt that the ground had shifted. Just as the election of the ‘Teal’ independents expressed our national desire, finally, to address climate change properly, Albanese’s confident commitment to the 2017 Uluru Statement marks, in my opinion, our desire to take the next major step towards reconciliation with our First Nations people.
When the ground shifts, everything moves
The implications of this commitment don’t stop with a referendum on an Indigenous ‘voice’ to Parliament. Or even with the other elements of the Uluru statement, truth-telling and treaty.
With Rio Tinto’s 2020 destruction of the Juukan Gorge caves still fresh in many memories (an act done with the ‘consent’ of the Traditional Owners), Graeme Samuel’s strong criticism of Indigenous tokenism in his review of the EPBC Act, and his implicit call for a transformation in environmental policy to take Indigenous knowledge and values seriously, now feel mainstream.
Mainstream such sentiments might now be, but integrating them into our national environmental law is still complicated and challenging.
Providing for ‘respectful consideration of Indigenous views and knowledge’ will take time and investment. Indigenous knowledge doesn’t grow on trees and respectful engagement will have to move at a pace with which Indigenous people are comfortable.
It is the same with our Indigenous heritage protection laws, which don’t just need to protect Indigenous values and set national standards, but fully resourced; and that includes building capacity for extensive and respectful engagement.
This is where the 2020 Juukan Gorge disaster showed up major weaknesses in the existing system. The caves in the gorge were probably eligible for protection under a National Heritage listing, but no-one had nominated them.
There was also a safety net: an old and supposedly temporary law from the 1980s allowed the environment minister to issue an Aboriginal heritage protection order, provided the place was under threat. But when lawyers for the Traditional Owners called the minister’s office about invoking that law to save the Juukan Gorge caves, the minister’s staff failed to put them onto the right officials.
So, no application was made.
We can’t let important values fall through the cracks because we were waiting for Indigenous people to fill-out a white-culture nomination form, or because someone rang the ‘wrong’ phone number.
Finally, Samuel recommended a move to true joint management of federal national parks on Indigenous land, such as Uluru-Kata Tjuta. Again, this will require significant capacity building. As he put it, ‘the magnitude and significance of a transition to greater decision-making for Traditional Owners should not be underestimated.’
It doesn’t stop with EPBC
Taking Indigenous knowledge and values seriously in environmental policy is not limited to the transformation recommended by Professor Samuel under the EPBC Act.
Now we need to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
When UNDRIP was first adopted by the UN in 2007, Australia was one of only four countries to vote against it. Thankfully, we reversed our position only two years later.
Now, belatedly, a parliamentary committee has started looking at UNDRIP’s domestic application.
This declaration raises a lot of issues, but I’ll zero-in on the clause that links most strongly with the EPBC Act.
Article 32 states that Indigenous peoples have the right to control development or use of their lands and other resources. Specifically, for development projects such as mines or roads, it requires governments to:
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. [Emphasis added]
The implication is that, in addition to the respectful engagement proposed by Professor Samuel, Traditional Owners should have a right to veto developments.
The brings in the Native Title Act, which gives native title holders a ‘right to negotiate’ but not a veto.
This Act is complex but, in general, if negotiations over, say, a proposed mine, are unsuccessful, the matter will go to arbitration. In theory, an arbitrator such as the Native Title Tribunal could stop a mine from going ahead, but the more likely outcome is that development will proceed under conditions, which might include negotiated compensation.
Where is all this going?
The Indigenous affairs agenda for 2023 is looking packed.
In addition to the referendum on the Voice to Parliament, the government’s environmental package based on the Samuel Review will, hopefully, transform environmental law concerning Indigenous knowledge and values, as Samuel recommended.
We may even see a change to the Native Title Act to give native title holders the right to veto proposed developments.
These reforms are not just politically ambitious, but resource-intensive. The political passion the Prime Minister displayed on election night will need to extend to opening the national wallet!