Environment Protection And Biodiversity Conservation Act for Indigenous Stakeholders

Department of the Environment, 2014

What is the Environment Protection and Biodiversity Conservation Act?

The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) is the Australian Government’s central piece of environmental law. It provides a legal framework to protect and manage nationally and internationally important plants, animals, wetlands and heritage places – defined in the EPBC Act as matters of national environmental significance.

The objectives of the EPBC Act are:

  1. to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and
  2. to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and
  3. to promote the conservation of biodiversity; and
  4. to promote a cooperative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples; and
  5. to assist in the cooperative implementation of Australia’s international environmental responsibilities; and
  6. to recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and
  7. to promote the use of Indigenous peoples’ knowledge of biodiversity with the involvement of, and in cooperation with, the owners of the knowledge.

What is a matter of national environmental significance and why is this relevant?

Under the EPBC Act, the Australian Government is responsible for regulating nine matters of national environmental significance, which are:

  • world heritage sites;
  • national heritage places;
  • wetlands of international importance (often called ‘Ramsar’ wetlands after the international treaty under which such wetlands are listed);
  • nationally threatened species and ecological communities;
  • migratory species;
  • Commonwealth marine areas;
  • the Great Barrier Reef Marine Park;
  • nuclear actions; and
  • water resources in relation to coal seam gas and large coal mine developments.

The EPBC Act also applies to developments that occur in areas managed by the Australian Government or that may impact on these areas, such as land owned by the Department of Defence, or where a development is being undertaken by the Australian Government.

The EPBC Act requires any action that is likely to have a significant impact on any of the above matters to be referred to the Minister for assessment and approval. There are policy guidelines available that outline whether an action may significantly impact on any of the above matters of national environmental significance. These are available at policy guidelines or by contacting the Department of the Environment on the details provided at the end of this fact sheet.

Who does the EPBC Act apply to?

The EPBC Act applies to any group or individual (including companies) whose actions may have a significant impact on a matter of national environmental significance. This may include landowners, developers, industry and farmers as well as local, state and commonwealth government agencies. People and communities are able to contribute their views on projects referred to the Australian Government under the EPBC Act through the consultation requirements within the environmental assessment process.

What are the consultation requirements under the EPBC Act for proposed activities and developments that may affect Indigenous stakeholders including Traditional Owners?

The EPBC Act requires consultation at particular stages of the referral and assessment process. This includes consultation with governments, proponents and the Australian community, including Indigenous communities. The Department of the Environment publishes all referred projects on its website and these are available for public comment. For projects that require further assessment and approval, proponents must widely advertise their plans for a proposed development, including on the internet and in daily newspapers. They must also provide for community access to relevant information for comment, such as an environmental impact statement. Indigenous stakeholders can provide comments on proposals through this process. For assessments where public comments are received, these comments must be provided to the Minister for consideration as part of the decision making process. In addition to providing a transparent assessment process, the consultation can introduce local, specialist and traditional knowledge into an assessment and also highlight relevant issues that need to be addressed.

For further information about how to comment on a project referred under the EPBC Act you can contact the Department of the Environment on the details provided at the end of this fact sheet.

How does the EPBC Act recognise the role of Indigenous people in protecting and managing Australia’s biodiversity?

The EPBC Act recognises the role Indigenous people play in the conservation and sustainable use of Australia’s natural environment and Indigenous heritage. The objectives of the EPBC Act include:

  • to promote a co-operative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples;
  • to recognise the role of Indigenous peoples in the conservation and ecologically sustainable use of Australia’s biodiversity; and
  • to promote the use of Indigenous peoples’ traditional knowledge of biodiversity with the involvement of and in co-operation with, the owners of the knowledge.

How are Indigenous interests represented under the EPBC Act?

The Indigenous Advisory Committee (IAC) represents Indigenous interests under the EPBC Act.

The IAC:

  • is a ministerially appointed committee established under the EPBC Act.
  • advises both the Australian Government environment Minister and the Department of the Environment on issues affecting Aboriginal and Torres Strait Islander peoples.
  • is comprised of twelve Indigenous Australians who are appointed by the Minister and take into account the significance of Indigenous people’s knowledge of the management of land and the conservation and sustainable use of biodiversity.
  • members have extensive experience in areas including Indigenous land management, conservation and cultural heritage management.
  • meets in person at least twice a year in addition to scheduled teleconferences throughout the year and undertaking a range of out of session work.

How does the EPBC Act protect heritage?

The EPBC Act is the Australian Government’s environment and heritage legislation which protects places that have been included on the National Heritage List. This means that people cannot undertake any activity that may cause damage or have significant impact on the heritage values of the place.

Why is heritage important?

Heritage is important to the Australian community because it tells the stories of our past, of our nation’s development, our spirit and our unique country. Aboriginal and Torres Strait Islander culture is an important part of Australia’s history and Indigenous Australians are the main source of information about their heritage. Further information is available from Indigenous heritage website.

Protecting Indigenous heritage

The EPBC Act makes sure Indigenous interests are considered when places which may have Indigenous heritage values are being considered for, or are on, the National Heritage List. National Heritage listing does not change land ownership and does not affect Native Title rights. Nominating Places to the National Heritage List: a Guide for Indigenous Communities provides more information. Indigenous heritage is also protected through the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Protection of Movable Cultural Heritage Act 1986.

The National Heritage List

Each year the Australian public is asked to nominate heritage places which could be included in the National Heritage List so the places can be protected and managed. Unlike places of value to local people or places on state heritage lists, National Heritage places must be of outstanding heritage value to the nation. The Australian Heritage Council makes an assessment of the nominated places and lets the Minister for the Environment know whether or not the Council assesses that it has national heritage values. The Minister makes the final decision about which places are included in the National Heritage List.

If you are thinking of nominating a place to the National Heritage List you should talk with Traditional Owners, people in the community and heritage experts to determine if the National Heritage List is the best option to recognise and protect your special place. Ask First: a guide to respecting Indigenous heritage places and values is a practical guide to help people understand how to treat heritage places with respect and how to engage respectfully with Indigenous Australians.

Benefits to the community

The benefits to the community of a place being included on the National Heritage List are that the place’s national heritage values will be protected under the EPBC Act. This means that people cannot undertake any activity that will have significant or adverse impact on the heritage values of the place. Where Indigenous heritage values are identified in a listing, it provides the Australian community with a good understanding of the importance of the Indigenous heritage to the national story. Listing can also provide opportunities for cultural tourism and ecotourism. A place on the National Heritage List also brings responsibilities to the community which may include assisting to develop plans for managing heritage places. For more information contact the Department of the Environment by email at ciu@environment.gov.au

What happens when matters being considered under the EPBC Act occur on land that is subject to native title?

Section 8 of the EPBC Act states that the Act does not affect the operation of the Native Title Act 1993 and the Aboriginal Land Rights (Northern Territory) Act 1976. Both of these Acts include provisions that preserve customary rights to use of land and waters. Where relevant, Native Title claims may be included in considerations into the social and economic impacts of a development being assessed under the EPBC Act.

Does the EPBC Act permit traditional use of land on Commonwealth reserves?

Yes. In the Act there are provisions that manage and deal with activities in Commonwealth reserves. These provisions do not prevent Indigenous people from continuing their traditional use of the land for non-commercial hunting and food gathering or for ceremonial and religious purposes. Traditional use of land in Commonwealth reserves by Indigenous persons is protected by sections 8 and 359A of the EPBC Act. An Indigenous person may carry out traditional use of land despite the prohibition in sections 354 and 354A of the EPBC Act or in EPBC Regulations. The traditional use must comply with applicable laws. environment.gov.au For example, while an Indigenous person does not need a permit to carry out traditional hunting, they do need to comply with applicable laws, such as obtaining the necessary licence for any hunting equipment.

How can the EPBC Act help Indigenous people to protect their lands and culturally significant species?

The EPBC Act makes sure Indigenous interests are considered when places, which may have Indigenous heritage values, are being considered for, or are on the National Heritage List. National Heritage listing does not change land ownership and does not affect Indigenous Native Title rights. Australian states and territories have primary responsibility for the protection and management of Indigenous heritage places and maintain registers of Indigenous heritage sites. Indigenous heritage is also protected through the Protection of Moveable Cultural Heritage Act 1986. Where Indigenous heritage values are identified in a listing the Australian community will be able to recognise and understand the importance of the Indigenous heritage within the national context. A place on the National Heritage List also brings responsibilities to the community which may involve assisting to develop plans for managing a heritage place. A nomination guide is available for Indigenous communities considering nominating places on the National Heritage List and is available at the Heritage website.

Conservation agreements

An EPBC Act conservation agreement is an agreement between the Commonwealth Environment Minister and another person for the protection and conservation of one or more of the following:

  • biodiversity;
  • values of a listed heritage place;
  • the ecological character a wetland of international importance (‘Ramsar’ wetland);
  • the environment in respect to nuclear actions; or
  • the environment on Commonwealth land or in the Commonwealth marine area.

In most cases a conservation agreement is between the Minister and a land owner, but they may also apply where a person who has usage rights relating to the land. For example, an agreement may be entered into with Traditional Owners for the protection of their lands for the conservation and protection of a threatened species or particular National Heritage values. Conservation agreements can relate to privately owned land, public land or marine areas, but not areas that are in a Commonwealth reserve under the EPBC Act.

Environmental offsets

Environmental offsets are measures that are designed to compensate for the environmental impacts of an action. Offsets are considered during environmental impact assessments under the EPBC Act and may be required as a condition of approval for a development. There are opportunities for Indigenous communities or Traditional Owner groups to work with project developers to manage their country as environmental offsets. This would involve protecting and managing an area of land or sea to benefit a matter of national environmental significance, such as a particular threatened species or heritage place, based on offset funding provided by a developer. Opportunities regarding the delivery of offsets are normally negotiated directly with a developer during the planning and assessment stages for a project. The EPBC Act Environmental Offsets Policy outlines the requirements in relation to providing offsets for projects approved under the EPBC Act and is available at: EPBC Act environmental offsets policy

Who can I talk to if I need to obtain further information?

Further information about the EPBC Act is available from the Department of the Environment, by emailing ciu@environment.gov.au, or calling 1800 803 772. The Indigenous Advisory Committee Secretariat within the Department can respond to queries about the committee email iac@environment.gov.au or call (02) 6275 9212.