Samuel review: ‘Outdated’ environmental laws must consider Indigenous knowledge

By Shannon Jenkins

Friday January 29, 2021

Australia’s flagship environment program will be subject to a new review into its effectiveness
Australia’s flagship environment program will be subject to a new review into its effectiveness. Environment minister Sussan Ley (AAP Image/Lukas Coch)

A review of Australia’s environmental laws has called for governments to harness and incorporate the knowledge of Indigenous Australians into environmental management, to better protect biodiversity and heritage.

The 268-page final report of the review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has this week been released — three months after it was delivered to the government.

The EPBC Act is “outdated”, leads to “piecemeal decisions” that don’t align with the environmental management responsibilities of states and territories, and isn’t trusted by Australians to deliver for the environment, business or community, independent reviewer professor Graeme Samuel found.

“It does not enable the commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters,” he said.

“The Act is a barrier to holistic environmental management which, given the nature of Australia’s federation, is essential for success.”

New and legally enforceable National Environmental Standards that deliver crucial protections by setting boundaries for government activities are the “centrepiece” of the recommended reforms.

While the report has already proposed standards for matters of national environmental significance, Indigenous engagement and participation in decision-making, compliance and enforcement, and data and information, Samuel said the full suite of standards should also include:

  • Commonwealth actions and actions involving commonwealth land,
  • Transparent processes and robust decisions,
  • Environmental monitoring and evaluation of outcomes,
  • Environmental restoration,
  • Wildlife permits and trade.

Read more: The Briefing: why the Morrison government is devolving commonwealth environmental responsibilities

Current environmental laws do not fully support the rights of Indigenous Australians in decision-making, reflecting a “culture of tokenism and symbolism” rather than inclusion, the review found.

“The operation of the EPBC Act has failed to harness the extraordinary value of Indigenous knowledge systems that have supported healthy Country for over 60,000 years in Australia,” Samuel said.

“A significant shift in attitude is required, so that we stop, listen and learn from Indigenous Australians and enable them to effectively participate in decision-making. National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.”

Samuel has made four recommendations to change this, including for the EPBC Act to require decision-makers to consider Indigenous views and knowledge, and for the Director of National Parks to “immediately commit to working with Traditional Owners to co-design reforms for joint management, including policy, governance and transition arrangements”.

Another key recommendation — which the government has already rejected — called for the establishment of an independent Environment Assurance Commissioner to monitor compliance and enforcement of environmental laws.

“The EAC should be free from political interference and responsible for publicly reporting on the performance of the commonwealth and accredited parties,” the report said.

The review also recommended that the government assign independent powers for commonwealth compliance and enforcement to the secretary of the Department of Agriculture, Water and the Environment, and consolidate compliance functions into an Office of Compliance and Enforcement within the department.

“This office should be provided with a full suite of modern regulatory powers and tools, and adequate resourcing to enable the commonwealth to meet the National Environmental Standard for compliance and enforcement,” it said.

Governments shouldn’t “cherry pick” from the “highly interconnected” 38 recommendations, Samuel warned.

“To shy away from the fundamental reforms recommended by this review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems. This is unacceptable,” he said.

“A firm commitment to change from all stakeholders is needed to enable future generations to enjoy and benefit from Australia’s unique environment and heritage.”

Environment minister Sussan Ley on Thursday said the government was “committed” to a number of recommendations outlined in Samuel’s interim report, including national standards, a single touch approval process, “rigorous” assurance monitoring for bilateral agreements, and the modernisation of Indigenous cultural heritage protection.

She said the process of working through the recommendations with stakeholders would “take some time to complete”, but the government would begin by progressing single touch approval legislation through the Senate.

“All state and territory leaders agreed the immediate priority was to implement single touch approvals by passing legislation to streamline approval processes and to develop national environmental standards reflecting the current requirements of the EPBC Act,” she said.

Greens environment spokesperson Sarah Hanson-Young said the federal government must accept the warnings in the review and implement stronger environmental laws.

“The Samuel Report sounds the alarm that Australia’s environment is under unprecedented stress. Without urgent action and a full reform package we risk losing our native wildlife and iconic natural places for good,” she said.

“What is needed is stronger laws and an independent cop on the beat to enforce them. Anything less and there will be more dead koalas, our forests and bushland will be destroyed and our oceans polluted.”

Read more: Opinion: governments should not charge ahead like bulls at gates on the EPBC Act


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