Keyes, Tony --- "Indigenous Rights Sidelined Again: the Federal Environment Protection and Biodiversity Conservation Bill" [1999] IndigLawB 55; (1999) 4(22) Indigenous Law Bulletin 14

• Indigenous Rights Sidelined Again: The Federal Environment Protection And Biodiversity Conservation Bill

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Indigenous Rights Sidelined Again:
the Federal Environment Protection and Biodiversity Conservation Bill

by Tony Keyes

The Environment Protection and Biodiversity Conservation Bill was rushed through the Senate in less than two days (on 22 and 23 June 1999) after the Federal Government reached a deal over amendments to the original Bill with the Australian Democrats.

On the whole, indigenous groups’ involvement in the process was limited to making submissions to the Senate Environment Committee, although in recent weeks some representatives had participated in teleconferenced workshops.

Indigenous groups, including ATSIC and the Northern and Central Land Councils, had complained to the Government, and to non-Government Senators, that consultation over indigenous issues in the Bill had been inadequate. Many indigenous groups were not aware of the legislation or its importance to Aboriginal and Torres Strait Islander people.

Despite the obvious fact that the relationship between indigenous people and their land and environment is integral to their whole identity, the Bill as originally introduced in July 1998 ignored indigenous interests almost entirely. The token recognition was clause 8, which purported to make the Bill subject to s 211 of the Native Title Act 1993(Cth) (the NTA), and provisions relating to the jointly-managed Commonwealth National Parks (Kakadu, Uluru/Kata Tjuta and Booderee). Broader concerns about intellectual and cultural property and related matters were not dealt with.

The Bill had its genesis in 'heads of agreement' between Commonwealth and State Governments in 1997. In February 1998, the Environment Minister, Senator Robert Hill, published a 'Consultation Paper' proposing two new laws—an Environment Protection Act and a Biodiversity Conservation Act—to replace a number of existing Commonwealth environment laws. The Consultation Paper allowed less than two months for comment, and gave very little detail of the proposals. As a result, indigenous representative groups were very limited in their ability to consult with their constituents, or indeed to respond at all. Certainly indigenous views were not satisfactorily sought or obtained in the drafting of the Bill.

A single Bill—the Environment Protection and Biodiversity Conservation Bill—was introduced into the Senate on 2 July 1998, and shortly afterwards referred to the Senate Environment Committee for inquiry and report. The Committee conducted a number of hearings in 1998 and early 1999. On 27 April 1999, it reported to the Senate. The Government members generally endorsed the Bill, but Labor, Democrat and Green Senators opposed the Bill. The Democrats, however, indicated that they thought that the Bill could be amended to make it satisfactory.

Indigenous groups including ATSIC and the Central and Northern Land Councils lobbied non-Government Senators against passing the Bill, or negotiating secretly with the Government over possible amendments to the Bill. On 22 June 1999, however, the Democrats announced that they had reached an agreement with the Government on amendments to be moved in the Senate. Both the Minister and the Democrats had expressed repeatedly in recent times a wish to pass the Bill by 30 June 1999, although no good reasons were advanced. By contrast, Labor and the Greens were prepared to voice and act on most concerns raised by indigenous groups.

The most immediately objectionable aspect of the agreement is that the Democrats agreed to support a Government 'guillotine' motion on the Senate debate. The result is that debate on the 528 clauses of the Bill, the 511 Government amendments, and about 300 non-Government amendments, was limited to five and-a-half hours.

It is true that the Bill as amended in the Senate is better for indigenous people than the Minister’s original draft. For example, the Bill now provides for indigenous representation on the statutory Scientific and Biodiversity Committees, as well as establishing a statutory Indigenous Environment Advisory Committee. The objects clause of the Bill has been amended to include indigenous interests.

However, the amended Bill is defective in a number of significant respects. For example, it gives only lip service to the obligations of clause 8(j) of the Convention on Biological Diversity, which requires recognition of indigenous traditional knowledge. Similarly, one of the more well-known shortcomings of the original Bill — Senator Hill’s proposal that a Northern Territory Government representative sit on the Boards of the jointly managed parks, Uluru/Kata Tjuta and Kakadu regardless of traditional owners’ interests — has not been remedied. Instead, the consent of traditional owners will ostensibly be required, but if it is 'unreasonably withheld', the Minister will have the power to call on the Commonwealth Ombudsman to arbitrate the issue.

Further, the operation of the Bill in practice will depend to a large extent on the form of regulations and other statutory instruments to be made under the new legislation, and in particular on the ways in which the many Ministerial discretions in the Bill will be exercised.

Again, (as with the Wik Ten point Plan) indigenous issues have been decided by non-indigenous politicians in Canberra, based on their own suppositions about indigenous wishes, rather than through a proper consultation process. The result will be imperfect legislation and a failure yet again to recognise indigenous rights to self-determination and intellectual property. The best that can be hoped is that lobbying and activism through the proposed advisory committee may retrieve some of the damage.

Tony Keyes is a lawyer at the Central Land Council. During the passage of the bill, he was seconded as an adviser to the Office of the Shadow Minister for the Environment Nick Bolkus. He has been covering the Environmental Protection and Biodiversity Conservation Bill for CLC since its introduction over twelve months ago representing the views of the traditional owners of Uluru/Kata Tjuta National Park on this issue.