Senator Lidia Thorpe's Dissenting Report
Recommendation 1
1.1The Stage 2 Nature Positive bills should not pass in their current form, and should only be passed once they are amended in a way that will genuinely improve the health of Country.
Recommendation 2
1.2The Federal Parliament and its committees must fundamentally change their procedures, practices and policies around consultation to ensure that First Peoples and other strategically under-represented populations can meaningfully contribute and provide evidence in an accessible, timely and appropriate manner.
Recommendation 3
1.3The development of all environmental legislation, policies and resourcing arrangements must include a broad consultation process with First Peoples, their communities and knowledge-holders on a grassroots level. This must occur in a way that adheres to the rights and obligations set out in the United Nations Declaration on The Rights of Indigenous Peoples (UNDRIP), including the principles of self-determination and Free, Prior and Informed Consent.
Recommendation 4
1.4The Federal Government must begin Treaty negotiations with all Sovereign First Peoples as a matter of urgency to enable all language groups to uphold their cultural authority over the Country, self-determine their own aspirations and have greater control over decisions relating to the management of Country.
Recommendation 5
1.5The Federal Government must progress its work program for strengthening protections for Country and First Peoples’ tangible and intangible cultural heritage as a matter of urgency, including the establishment of transparent timelines and broad public consultation processes that allow for appropriate scrutiny and accountability.
Recommendation 6
1.6The Federal Government must implement in full all recommendations from the 2021 A Way Forward report into the destruction of Juukan Gorge, including the introduction of new standalone cultural heritage legislation as a matter of urgency. This must include broad consultation to ensure that cultural heritage laws align with all new environmental laws, and National Environmental Standards to protect any further destruction of First Nations tangible and intangible cultural heritage.
Recommendation 7
1.7In accordance with its commitments under the Nature Positive Plan and the recommendations of the Samuel Review, the Albanese Government must immediately release the draft National Environmental Standard for First Nations Participation and Engagement in Decision-Making and engage in a broad consultation process, including the provision of a clear timeline for development and implementation of the Standard in this term of government.
Recommendation 8
1.8The Federal Government must ensure that First Peoples’ perspectives and ecological knowledge is embedded in all environmental policy, practices and approaches to nature protection, including the Nature Reform package and Environment Protection and Biodiversity Conservation Act 1999, to prevent the ongoing destruction of First Peoples’ cultural, intangible and tangible heritage. This must include appropriate protections for culturally sensitive information and Indigenous Cultural and Intellectual Property, in recognition of the fact that First Nations knowledge is not a resource to be extracted.
Recommendation 9
1.9First Peoples must have a greater role in decision making about Country, including strengthening the role of the existing Indigenous Advisory Committee (IAC) by:
1.10clearly specifying the functions of the IAC in legislation, including tasking it with overseeing the development, implementation, monitoring and review of the National Environmental Standard (NES) for First Nations Engagement and Participation in Decision Making;
providing that the IAC may provide advice to other statutory decision-makers and relevant agencies, including the CEO of Environment Protection Australia (EPA), any advisory body established by the EPA, the Head of Environment Information Australia (EIA), the Threatened Species Scientific Committee, and the Australian Heritage Council;
improving transparency of the IAC’s work, including publication of advice provided by the IAC to the Minister and other statutory decision-makers; and
providing for the frequency and procedures of meetings, including publishing of its agendas and records of meeting minutes on the Department’s website (subject to non-disclosure of confidential or sensitive matters).
Recommendation 10
1.11Amend the EPA Bill to legislate a ‘board with CEO’ model, with adequate provisions to ensure a strong and independent EPA and that the CEO carries out their functions consistently with clear duties and purposes of the EPA.
Recommendation 11
1.12Amend the EPA Bill to legislate Objects of the EPA Act and clear duties on the CEO, including duties to deliver nature positive outcomes, halt and reverse the decline of listed threatened species, and adhere to the principles of Free, Prior and Informed Consent in engaging with First Nations.
Recommendation 12
1.13The Data and Information National Environmental Standard must be prioritised alongside the First Nations National Environmental Standard and EIA must be legislatively required to act consistently with these standards to appropriately deal with First Nations knowledge and protect Indigenous Cultural and Intellectual Property, in accordance with Article 31 of the UNDRIP.
Recommendation 13
1.14Amend the EIA Bill to insert a definition of nature positive based on the Global Biodiversity Framework.
Recommendation 14
1.15The Nature Positive baseline should be established as a matter of urgency in the EIA Bill to avoid Country and cultural heritage being destroyed by any further delays, to be implemented using the 2021 State of the Environment Report and prioritising areas under threat due to exploration and expansion, rather than relying on the CEO to establish a baseline.
Recommendation 15
1.16Amend the EPBC Act to include a strong legislative framework for the development and implementation of legally binding National Environmental Standards in the form of disallowable legislative instruments, in accordance with the Government’s commitment and the recommendations of the Samuel Review. This framework must include:
a legislated timeline within which priority Standards must be developed, beginning with the First Nations Engagement and Participation in Decision Making, Data and Information, and Matters of National Environmental Significance;
allow for the application of Standards to decisions and function under the EPBC Act;
arrangements around the governance, implementation, monitoring and review of the Standards;
a non-regression clause so that future Standards cannot weaken existing Standards; and
appropriate provisions to take effect in the event that the legislated timeline is not met.
Recommendation 16
1.17Amend the EPBC Act to strengthen critical habitat protections and provide clear definitions of unacceptable impacts for each Matter of Environmental Significance.
Recommendation 17
1.18Amend the EPBC Act to repeal the exemption for Regional Forestry Agreements and ensure the EPBC Act can apply to native forest logging to halt the destruction of our sacred sites, our totems, and so many threatened forest-dependent species.
Recommendation 18
1.19Amend the EPBC Act to ensure appropriate referral of land clearing for impact assessment and requirements for the consideration of cumulative impacts in decision-making under relevant sections of the Act.
Recommendation 19
1.20Repeal the continued use of land exemption at section 43B of the EPBC Act to end the agricultural sector’s exploitation of this loophole and allow for EPBC regulation of deforestation in threatened species habitat.
Recommendation 20
1.21Amend the EPBC Act to insert provisions to restrict the use of biodiversity offsets in line with best practice.
Recommendation 21
1.22The Nature Positive bills must be amended to require explicit consideration of climate impacts and full emissions contributions of new projects, aligning the legislation with our climate targets under the Climate Change Act 2022 and the reformed Safeguard Mechanism.
Recommendation 22
1.23Amend the EPBC Act to expand the existing water trigger to include consideration of the cultural values of water resources and ensure it applies to carbon capture and storage projects.
Recommendation 23
1.24The Minister for Environment and Water must use their powers under the EPBC Act to protect Country by:
calling in Tamboran and Empire Energy’s gas fracking wells for assessment under the EPBC water trigger;
repealing the EPBC approvals for Defence Housing Australia’s unlawful and destructive development at binybara/Lee Point;
adequately assessing the Hunter Gas Pipeline, which will have devastating impacts on Gomeroi Country, including groundwater, biodiversity, and the climate; and
calling in Adani’s coal mine for review under the EPBC water trigger in light of new scientific studies revealing the mine’s devastating impacts on water resources.
1.25First Peoples have never ceded our Sovereignty. Since time immemorial, the knowledge and expertise of First Peoples has kept the lands, waters and skies of this continent in optimal health, while sustaining the cultural, social, and economic well-being of First Peoples.
1.26Acknowledging that every First Nations person has their own understanding of Sovereignty, the Blak Sovereign Movement asserts that the Sovereignty of Aboriginal and Torres Strait Islander peoples means:
… an unceded right held in collective possession by the members of Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters, minerals and natural resources of what is now known as Australia, and the right of Aboriginal and Torres Strait Islander peoples to exercise an unimpeded and collective self-determinate governance over their political, economic and social affairs.
1.27First Peoples have distinct, enduring Sovereign rights and cultural obligations relating to the management and custodianship of Country. These rights, as outlined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), have been systematically erased and negated from decision making around the management of Country since colonisation.
1.28Our Ancestors and Elders have taught us that when we care for Country, Country will care for us. The rivers are our mother, the forests are our lungs, the land is our home, the plants are our food and our medicine, the animals our totems, and the skies are where our ancestors rest. Despite the devastating impacts of colonisation and the ongoing violence of the colonial system perpetrated against First Peoples and Country, our deep connection to Country remains.
1.29And so every time the land is plundered, a sacred site is destroyed, another totem species goes extinct, a water source is contaminated, or the sky is polluted, this not only impacts Country, but it impacts our being. Western colonial thinking struggles to comprehend this, stuck in binaries that separate us from our environment.
1.30These bills represent the latest iteration of colonial governments’ exclusion of First Peoples from management of Country and denial of our Sovereignty and rights to care for Country. These bills as they stand will not address the ecocide and devastating collapse of ecosystems that we are currently seeing. The very concept of ‘Nature Positive’ contradicts First Peoples relationship to Country, as it frames nature as something separate to us, a natural resource that we can plunder and pollute as much as we wish while attempting in vain to offset this damage elsewhere to achieve a net ‘positive’ outcome. There is nothing positive about continuing to allow destructive industries and multinational corporations to drive us into a climate and ecological catastrophe. Similarly, there is nothing positive about excluding First Nations peoples, our knowledge and our ways of being and doing from these bills that will have such a significant impact on Country.
1.31Professor Graeme Samuel and other stakeholders have claimed that our national environmental laws are ‘broken’. It is important to note, however, that these laws are not broken. Laws like the EPBC Act have been carefully designed by governments and industry to allow for the continuation of the systematic plundering and exploitation of Country, displacement of First Peoples and desecration of our cultural, tangible and intangible heritage. The loopholes that riddle the legislation were created so that big industry, particularly agriculture and mining, were able to do what they have done since colonisation - pillage, plunder and pollute the lands, waters and skies of this continent with little to no regard for the destruction caused to our sacred sites, our totems, and our songlines. This ecocidal project is an act of cultural genocide, and it continues to this day.
1.32Nevertheless, there are steps that can be taken now that would work towards halting the ecocidal project and steer us away from ecological collapse. We have heard extensive evidence through the Senate inquiry into the Bills about the need for substantial reform to improve the health of Country and halt the ecocide that is unfolding. Due to the grave concerns highlighted, these Bills should be substantially amended to ensure the health of Country can be maintained and restored. Of particular concern is the ongoing, unaddressed issue of First Peoples dispossession and violation of our Sovereign rights and interests.
Country is our soil, our water and the species that evolved here, and what’s killing Country is modern Australia’s culture … [a] culture [that] has been based on killing for Country and killing Country, and we can’t hide from that. None of us came here today and drove across a drinkable stream, no matter how we came here—we didn’t even fly across one. We need to stop.[1]
1.33The Stage 2 Nature Positive bills should not pass in their current form, and should only be passed once they are amended in a way that will genuinely improve the health of Country.
1.34The absence of First Peoples’ participation in this legislative reform and Senate inquiry is shameful, and exemplifies how First Peoples’ ecological knowledge and practices are not given proper consideration. This is the biggest reform of national environmental law that has occurred in a long time, and yet the way in which this legislative process has been rushed through has not allowed for proper scrutiny or input from First Peoples. The limited number of submissions from First Nations individuals and organisations, and a single 45-minute First Nations panel in the hearing, highlight the immense work that still needs to be done to ensure First Peoples can share their knowledge in an accessible and appropriate manner. We are sick of being a tick-box exercise. As Ms Luther stated:
If we’re truly to reform environmental policymaking in this country, we have to ensure that mob are truly valued for the knowledge that they hold and for our culture collectively. Time and time again, we’re ticking boxes, but we need to ensure that adequate representation and free, prior and informed consent are established.[2]
1.35The Federal Parliament and its public engagement processes are not designed to accommodate First Peoples and non-Western ways of thinking and doing. The short timeframes, reliance on written communications and difficulty accommodating alternative forms of evidence are exemplary of this. This is particularly evident in this inquiry, which had a very short deadline for submissions and only a single hearing day, making even greater the existing barriers to participation for First Peoples and other historically under-represented populations and leading to the exclusion of many important perspectives from the discussion. I thank all those First Nations individuals and groups who participated in this inquiry, and all other witnesses who have been unanimous in asserting that the only way to ensure that nature is protected is to embed First Peoples ecological knowledge in decision making about Country.
1.36The Federal Parliament and its committees must fundamentally change their procedures, practices and policies around consultation to ensure that First Peoples and other strategically under-represented populations can meaningfully contribute and provide evidence in an accessible, timely and appropriate manner.
1.37The development of all environmental legislation, policies and resourcing arrangements must include a broad consultation process with First Peoples, their communities and knowledge-holders on a grassroots level. This must occur in a way that adheres to the rights and obligations set out in the United Nations Declaration on The Rights of Indigenous Peoples, including the principles of self-determination and Free, Prior and Informed Consent.
1.38The Albanese Government has made explicit commitments to First Peoples and the broader public to care for and protect Country, yet continues to fail us. The Nature Positive Plan included a number of important and necessary reforms, including standalone cultural heritage legislation, to be developed and implemented alongside new national environmental laws that would include a First Nations Engagement and Participation Standard. None of these crucial reforms have occurred, and every day that they are delayed means more damage and desecration of Country, including sacred sites. As Dr Pascoe put it:
If you look at the Nature Positive Plan as it was published, it said that it would be improving the decision-making powers of Indigenous peoples to care for Country. You couldn’t say that this tranche of laws goes anywhere near that. We still haven’t seen standards for First Nations engagement and decision-making, as we were promised. The thing we’re not sure of is how this law will interact with heritage legislation reform. So I wouldn’t say that this tranche of laws goes anywhere towards moving the rights and interests of mob in any way, shape or form.[3]
1.39Moreover, this Government has chosen not to enact UNDRIP into domestic law and dodged its commitments to Treaty, all of which would result in better protections for Country and an end to the ongoing ecocide. Meanwhile, Labor governments across the continent have been giving a green light to their mates and donors in the fossil fuel industry, who continue to pollute and plunder our environment while ignoring First Peoples’ right to Free, Prior and Informed Consent, as outlined in the UNDRIP. Nevertheless, these bills present a long-overdue opportunity to update legislation, policy and resourcing arrangements to ensure they address the enduring rights of First Peoples and protect Country and cultural heritage.
1.40Since colonisation, First Peoples and our representative bodies have asserted our enduring Sovereign rights to manage, access and care for Country. This has occurred alongside decades of advocacy for the colonial state to recognise and uphold First Peoples’ rights and interests, including various reforms to environmental legislation, policy and practices.
1.41This advocacy has been supported by environmental groups, legal experts and industry bodies, and these calls to strengthen First Peoples’ rights and interests have been echoed resoundingly throughout the Senate inquiry process, as well as in the 2021 Inquiry into the destruction of the Juukan Gorge and Samuel Review. As such, I am concerned that, without significant reforms, the health of Country and the rights of First Peoples will continue to diminish.
1.42First Peoples have not ceded our Sovereignty. This means we have not given up our Sovereign rights to care for the lands, waters and skies of this continent. This is why we need Treaty, so that each Sovereign Nation across the continent can self-determine its own aspirations and assert its Sovereign rights to care for Country and protect sacred sites. In the midst of an extinction and climate crisis, rather than forcing First Peoples to fight for their right to be consulted, the government must start sharing decision making with the oldest living culture on the planet. Treaty offers a pathway forward that respects the rights, knowledge and expertise of First Peoples, who hold the solutions for caring for Country. The federal government has committed to Truth and Treaty, and it needs to make good on those promises, so that all language groups can uphold their cultural authority over Country and self-determine their own aspirations.
1.43Additionally, the recommendations from the 2021 Juukan Gorge Inquiry[4] still are yet to be fully implemented. Every day that these recommendations wait to be implemented, sacred sites and songlines risk being further destroyed. There is an urgent need for new standalone cultural heritage legislation, including protections for intangible cultural heritage and underwater cultural heritage. The Albanese Labor Government committed to implementing these recommendations in full, yet two years into their term we see no evidence of any progress. While the government stalls on further cultural heritage protections, there are incidents like the destruction of Juukan Gorge happening all over the continent.
1.44The Federal Government must begin Treaty negotiations with all Sovereign First Peoples as a matter of urgency to enable all language groups to uphold their cultural authority over the Country, self-determine their own aspirations and have greater control over decisions relating to the management of Country.
1.45The Federal Government must progress its work program for strengthening protections for Country and First Peoples’ tangible and intangible cultural heritage as a matter of urgency, including the establishment of transparent timelines and broad public consultation processes that allow for appropriate scrutiny and accountability.
1.46The Federal Government must implement in full all recommendations from the 2021 A Way Forward report into the destruction of Juukan Gorge, including the introduction of new standalone cultural heritage legislation as a matter of urgency. This must include broad consultation to ensure that cultural heritage laws align with all new environmental laws, and National Environmental Standards to protect any further destruction of First Nations tangible and intangible cultural heritage.
1.47First Peoples are the oldest remaining culture on the planet. We are the oldest scientists, the oldest ecologists, and have cared for these lands, waters and skies for thousands of generations. Our Ancestors and Elders have taught us that when we care for Country, Country will care for us. Utilising the knowledge of our Elders and First Nations experts offers ancient yet innovative solutions to many of the environmental and sustainability issues we currently face. This has been highlighted by many academics and experts as the only pathway forward to secure the survival and safety of the environment. This will also strengthen social cohesion, diminishing the cause of many social problems arising from policies consulting with only some peak bodies that don’t represent the concerns of the broader community. Destruction of Country that stems from colonisation and dispossession only serves to weaken community and culture. We see the lack of First Nations knowledge and consideration in decision making all over the continent. Actively listening to and engaging with First Peoples is of benefit to everyone, but requires shifting the archaic systems of the colonial process that separate us from Country and value profit and over our social and cultural wellbeing. Ms Luther stated:
… we feel that state and national bodies need to incorporate and reintroduce traditional practices such as cultural burning and other practices to help mitigate our climate risks and restore our degraded lands, waterways and ecosystems. This must be led by Indigenous people and have an accurate representation of male, female and kinship knowledge systems within those frameworks. We also would point out that there is a high-water mark for rights articulation, and it’s imperative that governments implement the UNDRIP when they look at reforms and introduction of these new domestic laws, especially when First Nations peoples are impacted by these laws and by what proposed laws are going to be made.[5]
1.48The Samuel Review stated that:
The EPBC Act is not fulfilling its objectives as they relate to the role of Indigenous Australians in protecting and conserving biodiversity, working in partnership with and promoting the respectful use of their knowledge. The key reasons why the EPBC Act is not fulfilling these objectives are:
There is a culture of tokenism and symbolism. Indigenous knowledge or views are not fully valued in decision-making.
The Act prioritises the views of western science, and Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers.[6]
1.49The Samuel Review outlined a number of reforms to embed First Nations knowledge and views in decision making, including the following reform actions:
co-design of policy and implementation to improve outcomes for First Peoples;
National Environmental Standards for best practice First Nations engagement and participation;
a standalone National Environment Standard for First Nations engagement and participation in decision-making, developed in detail through a First Nations-led process, should be adopted in full and immediately implemented;
an enhanced role for the Indigenous Advisory Committee;
provision of advice to the Minister (e.g. decision briefs for approvals) should incorporate culturally appropriate use of Indigenous knowledge; and
review and reform of cultural heritage protections.[7]
1.50The National Standard for First Nations Participation and Engagement in Decision-Making is long overdue and has been subjected to numerous delays. This Standard was a core recommendation from the Samuel Review and the Albanese Government committed to its implementation in the Nature Positive Plan. This Standard must be designed by First Peoples for First Peoples, and be subjected to broad consultation that engages on a grassroots level with First Nations communities and appropriate knowledge-holders. This will be a legally enforceable mechanism to ensure adherence to the principles of Free, Prior and Informed Consent. The Samuel review also recommended expanding the role of the existing Indigenous Advisory Committee (IAC) within the Department, including overseeing the implementation, monitoring and review of the First Nations Standard. Ms Luther stated:
We can’t speak for mob all over the country, but we definitely see that, time and time again, people are being steamrolled and they’re not given all the adequate information in addition to a timeline to be able to process the information. There is little support for people to really understand what’s truly at stake and what the actual impacts are of having land clearing or extractive industries being rolled out on country. It’s a continuous process where essential information is omitted. They’re feeling pressured to give a response. As we see, they will go to the same people for the same answers because they know what they can get rather than there being true and proper, prior and informed consent on these proposals. We definitely call for there to be protocols established to ensure that people are being informed correctly and have the opportunity to give advice or respond in a way that’s appropriate for their community.[8]
1.51In accordance with its commitments under the Nature Positive Plan and the recommendations of the Samuel Review, the Albanese Government must immediately release the draft National Environmental Standardfor First Nations Participation and Engagement in Decision-Making and engage in a broad consultation process, including the provision of a clear timeline for development and implementation of the Standard in this term of government.
1.52The Federal Government must ensure that First Peoples’ perspectives and ecological knowledge is embedded in all environmental policy, practices and approaches to nature protection, including the Nature Reform package and EPBC Act, to prevent the ongoing destruction of First Peoples’ cultural, intangible and tangible heritage. This must include appropriate protections for culturally sensitive information and Indigenous Cultural and Intellectual Property, in recognition of the fact that First Nations knowledge is not a resource to be extracted.
1.53First Peoples must have a greater role in decision making about Country, including strengthening the role of the existing Indigenous Advisory Committee by:
clearly specifying the functions of the IAC in legislation, including tasking it with overseeing the development, implementation, monitoring and review of the National Environmental Standard (NES) for First Nations Engagement and Participation in Decision Making;
1.54Significant concerns were raised in the inquiry about the vulnerability of the EPA in its current form to pressure from vested interest and political interference, which would fail on the Government’s commitment to establishing a ‘robust and independent EPA’. It is clear that amendments are required to ensure the EPA’s strength and integrity, with a number of sensible proposals put forward by various stakeholders. Of note, the EPA must be led by an independent board of qualified members and a set of clear legislative duties and purposes, including duties to deliver nature positive outcomes and adhere to the principles of Free, Prior and Informed Consent in engagement with First Nations. Without measures to ensure proper integrity, accountability and transparency, the EPA risks becoming another bureaucratic body with no real power to rein in industry and halt the ongoing ecocide.
1.55Amend the EPA Bill to legislate a ‘board with CEO’ model, with adequate provisions to ensure a strong and independent EPA and that the CEO carries out their functions consistently with clear duties and purposes of the EPA.
1.56Amend the EPA Bill to legislate Objects of the EPA Act and clear duties on the CEO, including duties to deliver nature positive outcomes, halt and reverse the decline of listed threatened species, and adhere to the principles of Free, Prior and Informed Consent in engaging with First Nations.
1.57The EIA Bill should establish clear and robust data handling processes to ensure EIA is able to effectively obtain and manage data and is required to make data publicly accessible. The Environmental Defenders Office (EDO) highlight in their submission some key ways that this should occur, including:
EIA must be able to obtain and use relevant data, including through mandatory data sharing provisions;
In order to promote transparency, support community engagement and encourage improved decision-making, information held by EIA should be publicly accessible and in a form that is easy to understand and use; and
EIA functions, including data and information handling practices, must be consistent with relevant National Environmental Standards, particularly the First Nations Standard to deal with how First Nations knowledge and information is shared and used.[9]
1.58First Nations knowledge and expertise is essential to restoring the health of and protecting Country, but it must not be treated as yet another resource to be extracted by colonial governments. EIA must manage culturally sensitive information in a way that protects Indigenous Cultural and Intellectual Property, as set out in Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples:
(1)Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
(2)In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.[10]
1.59EDO provide useful insight into how EIA’s functions can align with Article 31 of the UNDRIP:
At present, it is not clear how culturally important or sensitive data will be managed by EIA as it relates to First Nations. It is integral that any Indigenous Knowledge provided by First Nations peoples is respected and acknowledged as the intellectual property of those knowledge holders. Indigenous Knowledge includes both Traditional Knowledge and Traditional Cultural Expressions. Further, all data that is recorded as part of an assessment and approval (or other process) under the EPBC Act must remain the property of First Nations people. First Nations people must retain ownership of their Traditional Knowledge and Traditional Cultural Expressions and must have the right to control how their Indigenous Knowledge is collected, curated, integrated, analysed, used, shared and published, in accordance with Article 31 of the [UNDRIP].[11]
1.60Additionally, measurable and defined baselines should be enshrined in the definition of Nature Positive in the legislation. Definitions should be based on the Global Biodiversity Framework and provide robust approaches to nature protection with clear baselines for measuring progress. This could be implemented using the 2021 State of the Environment Report as a matter of urgency, rather than the current reliance on the CEO to determine baselines. The Government must include First Peoples’ knowledge and perspectives in definitions and approaches to nature protection. Ms Luther stated:
We considered how the EIA bill requires HEIA to establish a baseline from which to measure and report Australia’s progress towards nature positive at a national scale. We would request that this is established swiftly to avoid scrutiny and to deliver baseline data that is accurate. We query the timeline to deliver the baseline study, as Australia is a significantly large land mass. Furthermore, we demand that areas under threat due to exploration and expansion of mineral leases and land clearing are prioritised, as our cultural heritage and Country is at grave risk of being destroyed by further delays. Last year, there were over 116 new approvals for fossil fuel projects. This year, leases have been approved at an unprecedented rate and have a timeline in addition to effective processes and protocols established to determine an accurate baseline study on what measures are in place to ensure that traditional ecological knowledge is given equal consideration alongside scientific studies.[12]
1.61The Data and Information National Environmental Standard must be prioritised alongside the First Nations Standard and EIA must be legislatively required to act consistently with these standards to appropriately deal with First Nations knowledge and protect Indigenous Cultural and Intellectual Property, in accordance with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
1.62Amend the EIA Bill to insert a definition of nature positive based on the Global Biodiversity Framework.
1.63The Nature Positive baseline should be established as a matter of urgency in the EIA Bill to avoid Country and cultural heritage being destroyed by any further delays, to be implemented using the 2021 State of the Environment Report and prioritising areas under threat due to exploration and expansion, rather than relying on the CEO to establish a baseline.
1.64It was highly disappointing, albeit not entirely surprising, to see the Albanese Labor Government to yet again cave to pressure from industry by splitting these reforms and postponing the crucial forms - new environmental laws - into an undetermined time in the future. We cannot wait any longer to halt the ongoing ecocide and the stage 2 bills currently before parliament present an opportunity now to make some urgently needed changes to the current framework and strengthen protections for forests, threatened species, our climate and our sacred waters.
1.65The Standards were the cornerstone of the Samuel Review. We cannot wait any longer for these Standards to be developed and come into effect. Appropriate action must be taken now to ensure Standards can be implemented in a timely manner, beginning with priority Standards. Numerous stakeholders and experts called for the establishment of a strong legislative framework for the development and implementation of Standards. EDO stated:
… the National Environmental Standards are intended to be legally binding, outcomes-based instruments that will guide decision-making in the new regime … This is a significant departure from the current, highly discretionary and often arbitrary, decision-making system under the EPBC Act. To set the foundation for stage three, the legislative architecture should be set in place to enable the Minister to create National Environmental Standards as envisioned. This will support both EPA and EIA to effectively fulfil their roles from the outset.
Establishing the power for National Environmental Standards to be developed, created, and varied subject to a non-regression clause, should be part of these stage two reforms. Ultimately, the National Environmental Standards will need to be operationalised within the EPBC Act (or proposed stage 3 Nature Positive Bill) to ensure environmental and approval decisions are made consistent with National Environmental Standards.[13]
1.66Amend the EPBC Act to include a strong legislative framework for the development and implementation of legally binding National Environmental Standards in the form of disallowable legislative instruments, in accordance with the Government’s commitment and the recommendations of the Samuel Review. This framework must include:
1.67Urgent protections that experts have advocated for since the EPBC Act’s inception could be inserted now to prevent any new extinctions of plants and animals, including defining unacceptable impacts, restricting the use of biodiversity offsets, and ensuring that deforestation across the continent is adequately referred, assessed, and subjected to EPBC regulations. EDO stated:
… the term ‘unacceptable impacts’ is not defined and provisions are underutilised. Including a definition would provide greater clarity to proponents as to what is unacceptable, and set much clearer expectations as to when the Minister (or the EPA when these powers are delegated to the EPA) should be expected to utilise these powers.[14]
1.68The destruction of forests from logging and land clearing is a key driver of biodiversity loss. Logging of our old growth native forests is one of the worst examples of violence perpetrated by the colonial system against First Peoples and Country. Yet, despite the devastating impacts of colonisation and this ongoing violence, our deep connection to Country remains.
1.69Forests are the life support system of our Country and our planet. We know that without these forests we have no air to breathe and no clean water to drink. Forests are a refuge for wildlife which include our sacred Totems and Creator Spirits that need this land to survive. There has never been consent to log our forests, and this destruction must end and First Peoples have never ceded our rights to our lands, waters, and responsibilities to care for and protect Country. There are measures now that could be taken to ensure that native forest logging and land-clearing are subject to EPBC regulation.
1.70The Albanese Government committed to applying the Standards to Regional Forestry Agreements, thereby effectively removing their exemption from requiring approvals under the EPBC Act. Given that we will not see the Standards in this term of parliament, there a number of alternative options to effectively remove the RFA exemption from the EPBC Act.
1.71Additionally, the ALP committed to establishing a land clearing trigger in 2019, stating:
As part of environmental law reform Labor will take urgent action to update the Environmental Protection and Biodiversity Conservation Act to include:
A National Parks trigger.
A vegetation management trigger.
Adding shale gas to the water trigger.
These additions will help to conserve high conservation areas and Australia’s precious water resources.
Stopping broadscale land clearing and habitat loss, reducing threats to threatened species, protecting National Parks and making sure science is central to decision making will all be key aims of the new law. It’s time the law changed from merely requiring the Minister to consider impacts on MNES to being able to protect the environment.[15]
1.72The current bills present an opportunity to insert provisions that will ensure land clearing, including in areas not covered by RFAs, is appropriately referred and assessed by the new EPA and subjected to EPBC regulation.
1.73Amend the EPBC Act to strengthen critical habitat protections and provide clear definitions of unacceptable impacts for each Matter of Environmental Significance.
1.74Amend the EPBC Act to repeal the exemption for Regional Forestry Agreements and ensure the EPBC Act can apply to native forest logging to halt the destruction of our sacred sites, our totems, and so many threatened forest-dependent species.
1.75Amend the EPBC Act to ensure appropriate referral of land clearing for impact assessment and requirements for the consideration of cumulative impacts in decision-making under relevant sections of the Act.
1.76Repeal the continued use of land exemption at section 43B of the EPBC Act to end the agricultural sector’s exploitation of this loophole and allow for EPBC regulation of deforestation in threatened species habitat.
1.77Amend the EPBC Act to insert provisions to restrict the use of biodiversity offsets in line with best practice.
1.78As a result of decades of colonial governments allowing the fossil fuel industry to run rampant in mining, drilling and fracking our lands and waters, we are in a climate crisis. Climate change is a key threat to the wildlife, landscapes and special places protected under the EPBC Act, yet there are no mechanisms that allow the Minister, or the newly established EPA, to directly consider climate impacts on Country when making decisions. In 2006, now Prime Minister Anthony Albanese criticised the then-Coalition government for amendments to the EPBC Act on their failing to address climate change, stating that ‘the bill contains no measures to cut Australia’s spiralling greenhouse pollution or protect Australia from dangerous climate change’.[16] He called on the government to ‘ensure climate change is properly factored into environmental decision making under the [EPBC Act]’ and ‘establish a climate change trigger in the Act to ensure large scale greenhouse polluting projects are assessed by the Federal Government’.[17]
1.79As highlighted in numerous submissions, this could be effectively pursued by amending the legislation and including climate considerations into the EPBC Act while ensuring that environmental laws align with climate legislation. It is our responsibility to ensure this for future generations and the Albanese Government has a unique opportunity to do this now. Failure to do so could have wide-ranging consequences on Country and future generations.
1.80The Nature Positive bills must be amended to require explicit consideration of climate impacts and full emissions contributions of new projects, aligning the legislation with our climate targets under the Climate Change Act 2022 and the reformed Safeguard Mechanism.
1.81To First Peoples, water is the lifeblood that runs through Country, connecting Clans and Songlines while nourishing the land. We as First Peoples have never ceded our Sovereignty, and this includes our water Sovereignty. Western thinking has failed to integrate into colonial laws the intimate and intricate connections between our waters, lands and skies. First Peoples have always known that our waterways are connected across the continent, and modern science has recently shown this. However, environmental laws have not been updated to allow for the proper consideration of impacts on water resources, including consideration of the cultural values of our sacred waterways.
1.82Amend the EPBC Act to expand the existing water trigger to include consideration of the cultural values of water resources and ensure it applies to carbon capture and storage projects.
1.83The Minister for Environment and Water must use their powers under the EPBC Act to protect Country by:
1.84The science and expertise is on the table. The choices made today by the Albanese Government will be of consequence for all future generations. On behalf of First Peoples, Country, and future generations, I urge the Albanese Government to address concerns raised throughout this inquiry to pass these laws in a way that will halt the ongoing ecocide and improve the health of Country and its people.
Senator Lidia Thorpe
Participating Member
Footnotes
[1]Mr Richard Swain, Indigenous Ambassador, Invasive Species Council, Committee Hansard, 26July2024, p. 10.
[2]Ms Emma-Lee Luther, Communications Manager, Seed Indigenous Youth Climate Network, Committee Hansard, 26 July 2024, p. 11.
[3]Dr Jack Pascoe, private capacity, Committee Hansard, 26 July 2024, p. 10.
[4]Joint Standing Committee on Northern Australia, A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, October 2021, pp. xxv–xxix.
[5]Ms Emma-Lee Luther, Communications Manager, Seed Indigenous Youth Climate Network, Committee Hansard, 26 July 2024, p. 11.
[6]Department of Climate Change, Energy, the Environment and Water (DCCEEW), Second Independent Review of the EPBC Act, p. 57.
[7]DCCEEW, Second Independent Review of the EPBC Act, p. 57.
[8]Ms Emma-Lee Luther, Communications Manager, Seed Indigenous Youth Climate Network, Committee Hansard, 26 July 2024, p. 15.
[9]Environmental Defenders Office, Submission 25, p. 20.
[10]United Nations, Declaration on the Rights of Indigenous Peoples, Article 31, pp. 22–23.
[11]Environmental Defenders Office, Submission 25, p. 21.
[12]Ms Emma-Lee Luther, Communications Manager, Seed Indigenous Youth Climate Network, Committee Hansard, 26 July 2024, p. 12.
[13]Environmental Defenders Office, Submission 25, pp. 23–24.
[14]Environmental Defenders Office, Submission 25, p. 26.
[15]Labor Environment Action Network, Labor’s Commitments on Environmental Law Reform (accessed 9 September 2024).
[16]Mr Anthony Albanese MP, House of Representatives Hansard, 18 October 2006, p. 69.
[17]Mr Anthony Albanese MP, House of Representatives Hansard, 18 October 2006, p. 69.
Inquiry into Nature Positive (Environment Information Australia) Bill 2024 [Provisions] and related bills
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