National and international frameworks that support caring for Country

Legal and policy frameworks can support or hinder effective caring for Country. Australia is gradually developing the frameworks required for Indigenous recognition and involvement, but most are still not adequate. There is a need to shift to a rights-based approach for self-determination and recognition of the stewardship role that Indigenous people have under customary laws.

The United Nations Sustainable Development Goals report 2020 showed that Australia is failing to reach goals across multiple areas (MSDI 2020):

 

The report shows that Australia is performing well in health and education, but is failing to reduce CO₂ emissions, waste and environmental degradation, and to address cost of living pressures and economic inequality. Of the 56 indicators examined in this report, only 12 are assessed as on track to meet the 2030 targets; 23 indicators are assessed as off track; 11 are classified as breakthrough needed and 10 need improvement. The report also shows COVID-19 has exacerbated trends – including higher levels of unemployment, poverty and psychological distress – that were emerging before COVID-19, and that could fracture Australian society.

The Sustainable Development Goals fundamentally empower Indigenous principles for caring for Country, identifying targets for equity and health for both people and Country. It is concerning that Australia has already fallen behind.

At the national scale, federal support for caring for Country occurs through Indigenous-specific and mainstream programs. Many recipients have welcomed longer-term aggregation of funds, increased investment and streamlined delivery that is occurring in some programs. It is hoped future investment will include even more diverse Indigenous land and sea management efforts, further supporting tailored management responses at the local level.

Indigenous land ownership and management

Before 1788, Indigenous people owned all lands and seas of Australia. It was not until 1966 that the first movement to transfer land back to Indigenous people in South Australia began. Then in the 1970s and 1980s, land rights changes affected mostly New South Wales and the Northern Territory. Further changes to land rights and possession occurred after the Mabo v Queensland (No. 2) case (1992) and the introduction of the Native Title Act 1993 (Cth). The Mabo decision recognised that Indigenous people’s rights to their Country continue after occupation, except where these rights have been extinguished by valid legal actions.

Federal, state and territory legal frameworks recognise the rights and interests of Indigenous people. Indigenous rights and interests are recognised formally to varying extents in 57% of Australia’s land area through:

• purchasing land or granting Indigenous ownership of land
• Indigenous management and co-management arrangements, including Indigenous Protected Areas
• determination of native title
• Indigenous Land Use Agreements (ILUAs).

On some lands, more than one of these forms of recognition apply.

Indigenous land ownership and management is increasing (Figure 8). Of all Australia’s land mass:

• 15.2% is subject to statutory land rights
• more than 13.7% is exclusive native title
• more than 27.1% is nonexclusive native title.

The extent of the Indigenous estate varies between jurisdictions. For example, the Indigenous estate comprises 80% of South Australia and 77% of the Northern Territory, but just 6.1% of New South Wales (Table 5).

The Indigenous estate includes large areas where Indigenous rights are constrained by the rights of other users. ILUAs and nonexclusive native title determinations can result in outcomes where Traditional Owners are not able to access many parts of these areas.

Indigenous people also hold obligations to care for parts of Country that are not formally recognised as part of the Indigenous estate. Traditional Custodians are at the mercy of landholders to access traditional estates to maintain connection to, and management obligations for, Country (see Lack of access to Country) (Wilson et al. 2018).

Native Title Act 1993

The Native Title Act 1993 (Cth) operates across all state and territory jurisdictions. Native title recognises rights and interests in land related to traditional and cultural activities under the common law. Native title rights and interests have existed since before Australia’s colonisation, and continue to exist now where they have not been lawfully extinguished. Native title in Australia provides a step forward in recognising Indigenous rights, but is not yet a full recognition of the connections between customary and nation-state laws regarding caring for Country (McIntyre 2021, Rodoreda & Bischoff 2021).

For procedural rights to be recognised under the Native Title Act and native title to be recognised under common law, native title claims must receive a determination by the Federal Court of Australia. Native title claimants can also receive procedural rights for native title claims upon successful registration with the National Native Title Tribunal. Native title does not change underlying tenure, but is either found to exist or to be extinguished by acts of government such as land tenure types, which are inconsistent with native title rights and interests.

Native title is defined as the ‘the communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to land and waters, possessed under traditional law and custom, by which those people have a connection with an area which is recognised under Australian law’ (NNTT 2021). These can include rights to maintain culturally important sites, and to use land for hunting, ceremony, camping and living on. Native title holders may also have rights to native title monies and benefits received through ILUAs and other agreements, including the development of land. They may also have a say in the management and development of land. Depending on the rights and interests as expressed through a native title determination, native title holders may also have commercial rights to trade resources (Willis 2014, AIATSIS 2016).

Exclusive and nonexclusive native title determinations are increasing (Figures 9 and 10). There are 531 native title determinations and 166 active native title claimant applications and 230 Prescribed Bodies Corporate (PBCs) throughout Australia (see Prescribed Bodies Corporate).

In recent years, native title commercial rights and interests in seas and waters have been recognised (AIATSIS 2013). In the Great Barrier Reef, Traditional Use of Marine Resources Agreements provide Indigenous co-management over additional areas of sea Country (GBRMA 2021). However, where a law limits or requires a licence to do an activity, such as hunting or fishing, s. 211 of the Native Title Act allows native title holders to continue to exercise their native title rights and interests in waters for any noncommercial or domestic use without a licence.

The rights and interests protected under the Native Title Act find some reflection in the Indigenous values of natural and cultural heritage protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Better linkage between these 2 acts could provide a solid framework for collaborative management practices. There is also a need for more Indigenous input into ministerial decision-making. The Indigenous Advisory Committee recommends that s. 93 of the EPBC Act be amended to mandate engagement with PBCs for referrals, consultations, advice and decisions under the EPBC Act (IAC 2020).

Prescribed Bodies Corporate

The Native Title Act states that, when a native title determination is made, native title holders must establish a corporation called a Prescribed Body Corporate, or PBC, also known as a Registered Native Title Body Corporate. PBCs hold native title rights and interests on behalf of the native title group and represent them on all issues. PBCs can form agreements called Indigenous Land Use Agreements with other parties (see Indigenous Land Use Agreements).

PBCs are important governance entities for managing and caring for Country. They are the legally recognised decision-making entity where native title has been granted, and first point of contact for external organisations seeking permissions or partnerships with the Traditional Owner group. PBCs have varying levels of resources, which impacts their ability to manage and care for Country. For example, many PBCs have little to no income, whereas other PBCs have capacity to manage their own Indigenous ranger programs. Concerns have been raised about the levels of funding and ongoing access to resources and support (including capacity building) for PBCs, particularly where time-sensitive critical decision-making is imposed on them by well-resourced industry interests (Fagan 2020).

There are currently 230 PBCs throughout Australia (Figure 11). It is estimated that there will be more than 300 PBCs once all native title determinations are resolved.

Indigenous Land Use Agreements

An ILUA is a voluntary, legally binding agreement about the use and management of land or waters, made between one or more native title groups and another party, including miners, pastoralists or governments. ILUAs can cover future development arrangements in the way that native title co-exists with other rights, access to an area, extinguishment of native title, compensation and ‘other matters’. As of July 2021, ILUAs have been registered on 34.7% of Australia (Figures 12 and 13). A further 1.6% of Australia is currently subject to ILUAs and is in the process of being registered. ILUAs co-exist with the rights of multiple other users and may give limited or no access for Indigenous land management.

While ILUAs provide an opportunity for negotiation and agreements between native title groups and other parties, the extent to which native title groups can realise beneficial outcomes from this form of agreement depends on several factors, including the:

• capacity of the native title representatives to negotiate (which depends on access to resources and timeframes for negotiation)
• motivating factors of the other party to negotiate in good faith (including social licences to operate on behalf of their shareholders).

ILUAs are frequently confidential. After the destruction of Juukan Gorge, a parliamentary inquiry has drawn attention to the common provision in mining-related ILUAs that prevents Traditional Owners from objecting publicly about any action of the company, and further provisions that release the company from any actions, objections or claims of any kind under Australian and state laws (Ingram 2020). As a result of the inquiry, many Indigenous partners to ILUAs are seeking renegotiation of clauses that might result in unacceptable levels of impact to land and sea Country (Thompson 2020).

State and territory Indigenous land laws

Each state has their own laws that recognise Indigenous land interests (Table 6). This may include legislation that recognises Indigenous land within their respective jurisdictions and assigns these lands to Indigenous entities, including Aboriginal Land Trusts, Land Councils and PBCs, to be managed on behalf of Indigenous peoples who may be associated with a particular area.

Protected areas

The Australian Government recognises 4 broad categories of protected area governance (Borrini et al. 2013) (Table 7):

• governance by government (e.g. national and marine parks)
• shared governance (e.g. formal ‘joint’ management)
• private governance (e.g. nature trusts and reserves)
• governance by Indigenous peoples and local communities (e.g. ‘community’; Indigenous Protected Areas, or IPAs).

Indigenous rights are recognised to various extents in all 4 types of protected area. While many Indigenous people are involved with government and privately governed protected areas, here we consider only those with IPAs and formal joint management, where Indigenous leadership is more common.

Indigenous Protected Areas

IPAs are areas that allow Indigenous people to dedicate their traditional land and seas as protected. IPAs are protected areas governed by Indigenous people, and supported by the Australian Government through their IPA Program (Gould et al. 2021). Established by the Australian Government in the late 1990s and developed in collaboration with Traditional Owner groups, the IPA Program encourages Traditional Owners to voluntarily commit to the long-term management of their land and sea Country to conserve its natural and cultural values. In exchange for making this commitment, Traditional Owners can access funding and support to develop and implement management plans.

With the purpose of ‘facilitating the integration of traditional ecological knowledge into contemporary land management practices’ (SVA 2016), IPAs were initially dedicated only over land owned exclusively by Indigenous people. More recently, other tenures have been included in IPAs, with coastal and island Indigenous groups successfully integrating marine areas into both existing and new IPAs (Gould et al. 2021).

IPAs are a significant contribution to Australia’s protected area estate. As at September 2020, there were 78 dedicated IPAs encompassing 74,693,991 hectares, representing 46.53% of Australia’s National Reserve System (Figure 14) (NIAA 2020). IPAs have significantly grown since 2016. In 2020, 2 IPAs were added, and a further 21 consultation projects are underway as of September 2021, including 6 IPA consultation projects that include areas of sea Country.

In Australia and around the world, indigenous people have persistently sought formalised recognition and protection of their customary use and ownership of coastal and marine areas. More recently, Indigenous Australians have explored the designation of IPAs in marine and coastal planning. This would mean that IPAs become a collaborative governance and management mechanism to ‘stitch Country back together’ across multi-tenure or different protected area types, including national and marine parks (Rist et al. 2019).

IPAs provide a framework for Traditional Owners to plan, dedicate, govern and manage their customary estate, via a combination of ‘legal and other effective means’ (Gould et al. 2021). ‘Legal’ mechanisms that may support Traditional Owner management of IPAs include (Gould et al. 2021):

• legal ownership of lands
• Indigenous customary resource use rights enshrined in legislation
• protection of sacred sites and other cultural sites and areas through cultural heritage legislation
• protection of significant species and habitats through biodiversity conservation and natural resource management legislation.

Other tools and mechanisms by which Traditional Owners manage IPAs include:

• management planning processes (including Healthy Country Planning, based on Indigenous cultural values and governance)
• establishing Indigenous land and sea management ranger groups (see Indigenous Ranger programs)
• partnering with government agencies, nongovernment organisations, neighbouring ranger groups, landowners, philanthropists and natural resource stakeholders. Such partnerships have resulted in improvements in the way natural and cultural resource management are delivered, through enhanced coordination of activities and access to funding (Rist et al. 2019, Gould et al. 2021).

Indigenous land management is very cost-effective. A 2016 report found that an investment of $35.2 million into the following 5 IPAs and their associated Indigenous ranger programs generated social, economic, cultural and environmental outcomes with an adjusted value of $96.5 million (SVA 2016) (Figure 15):

• Warddeken, Northern Territory
• Girringun, Queensland
• Birriliburu, Western Australia
• Mutuwa Kurrara Kurrara, Western Australia
• Minyumai, New South Wales.

Social Ventures Australia identified the critical need for sustained investment from partners to realise longer-term outcomes of IPAs, including (SVA 2016):

• stronger communities
• increased capacity for self-determination
• development of an Indigenous land-based economy.

Formal joint management with Traditional Owners

Most parks and protected areas, regardless of their governance type, engage broadly with the community and have diverse partnerships with stakeholders, including with Indigenous Traditional Owners (Dovers et al. 2015). ‘Joint management’ arrangements go beyond these informal partnerships, as authority and responsibility lies with a new entity or entities that represent both government and Traditional Owners (see case study: Gariwerd (Grampians National Park), in the A coordinated approach by Australian governments section in the Heritage chapter).

Formal joint management now exists in numerous parks in all states and territories except for Tasmania and the Australian Capital Territory (Table 8). The extent to which Traditional Owners are able to fully and equitably share the governance depends on numerous factors (Smyth & Jaireth 2012, Bauman et al. 2013), and different arrangements apply in the different jurisdictions and among different parts of jurisdictions. Considerable progress has occurred in power-sharing through formal joint management in recent years, particularly in Queensland, Victoria and Western Australia.

Since the establishment of the Great Barrier Reef Marine Park in 1975, there has been a greater effort and focus on engaging Indigenous people in the management and co-management of existing and new marine parks. Progress towards formal joint management of marine parks has generally been slower than for terrestrial parks. Nevertheless, policies including recognition of Indigenous fisheries, support for ranger groups working on sea Country and inclusion of cultural values in planning have empowered Traditional Owner roles in their marine estates (Rist et al. 2019, Gould et al. 2021).

While progress has been made, many challenges continue with formal joint management. For example, each year, Anangu Traditional Owners celebrate the handback of their traditional territories within Uluru–Kata Tjuta National Park in 1986. But the ‘Tjukurpa’, the foundation of Anangu law, which is supposed to be a pillar of joint management of the park, has not been followed in practice. Despite strong Indigenous opposition to tourists climbing Uluru, it was only after many years of discussion by the park’s board that the Uluru climb was permanently closed in 2020 (Parks Australia 2021).

The Commonwealth joint management model was challenged in 2020, when the Traditional Owners on the Kakadu board of management expressed ‘no confidence’ in the Canberra-based director of national parks and senior staff. The Minister for the Environment has established a senior advisory group to review arrangements and ensure that Traditional Owners are at the forefront of joint management discussions and outcomes (Ley 2021). The minister has called for independent advice on the governance, structure and culture of the management of Commonwealth jointly managed national parks.

Land management funding from Australian Government

Indigenous land management funding from the Australian Government has increased from $90 million in 2016–17 to $116.2 million in 2020–21 (Figure 16a).

Indigenous land management comprised 8.7% of the total budgeted Australian Government Indigenous-specific expenditure in 2020–21 ($1.33 billion). The Indigenous Rangers 2021 to 2028 Grant Opportunity will see investment of $746 million provided to 80 Indigenous ranger organisations, to support 129 ranger groups for 7 years. Western Australia and the Northern Territory receive the greatest proportion of this funding (Figure 16b). In the 2020–21 Budget, environment spending was 0.23% of the entire federal budget, down from 0.32% in 2013–14 (ACF 2021b).

Legal empowerment

There is a complex web of laws and agreements that relate to Indigenous people and the environment. This includes the EPBC Act, heritage laws, land rights, native title, water laws, planning laws, intellectual property and biodiscovery laws. But the legacy of colonial laws is generally not adequate to deliver the rights that Indigenous people seek. There is a lack of recognition of Indigenous rights in the constitution.

Indigenous rights vary depending on the state or territory or the nature of the rights. This impacts how Indigenous people can assert their rights to land and protect Indigenous knowledge. For example, state water laws, regulatory systems and the National Water Initiative do not deliver Indigenous water rights (see the Inland water chapter). Fire regulatory systems in state and territories do not enable cultural fire management of the environment. Intellectual property laws such as copyright, patents and plant breeder rights are not designed to recognise Indigenous knowledge rights or rights to resources. Indigenous people continue to seek law reform.

 

There needs to be a 2-pronged approach: We need to finally have at least our position and authority embedded in the constitution, but the way we managed prior to invasion was that we saw our nation as a whole but it was specific around regional governance and in the Kimberley we have a law of regional governance which predates settler law, called the Wunan, which was about trade, which was about our circular economy, which was about reciprocity. SoE Indigenous workshop participant, Western Australia (Murawin 2021b)

There is a need for consistency nationally across legislation. Peter Yu, Yawuru man and head of the Australian National University First Nations Portfolio (formally National Centre for Indigenous Studies), has said (Morrison 2020):

 

We would like to reiterate that we should aim for the greatest possible degree of consistency in the application of the various legislation (EPBC Act, Native Title Act, Aboriginal and Torres Strait Islander Heritage Protection Act 1984) at the federal and state level. Ensuring clear mapping on the precedence of legislation would help to navigate the legal complexity and benefit all stakeholders: Indigenous communities, environmental groups, and industry.

The work of Robinson & Raven (2019) has also looked at the challenges of recognising Indigenous customary law and creating an effective form of legal pluralism. Some of these challenges are evidence, secrecy, decline or loss of knowledge and laws, Indigenous diversity, geographical and familial limits, loss of control of law, making and documenting static oral laws, complexity of links to culture and Country, and political will towards constitutional and statutory recognition (Tobin 2014).

Treaties

A treaty is an agreement between states, nations or governments, including between Indigenous peoples and governments. In Australia, momentum is building for treaties between Indigenous people and governments, with preparations underway in Victoria (First Peoples – State Relations 2021), the Northern Territory (NT Treaty Commission 2021), Queensland (DSDSATSIP 2021) and South Australia (ANTaR 2019a). Treaty-like outcomes also have been agreed with the Noongar people in Western Australia (ANTaR 2019b), and the Australian Capital Territory allocated funds for a treaty process in its budget of 2021 (Lindell 2021).

Treaties are used throughout the world as an accepted means of acknowledging injustices, resolving differences and creating a shared future (DSDSATSIP 2020). Treaties are an opportunity to redefine the relationship between governments and Indigenous people in Australia, and to address the many impacts of environmental change identified in this chapter. The legacies of colonisation, frontier violence, dispossession and family disruption that continue to impact caring for Country can only be ended through treaty.

The South West Native Title Settlement, the largest native title settlement in Australia’s history and considered by many to be Australia’s first treaty, shows the overwhelming importance of treaties to land and sea management. The settlement recognises Noongar people as Traditional Owners of the south-western region of Western Australia, one of the largest cultural blocks in Australia, and establishes Noongar governance over trusts, corporations and committees. It provides for land to be returned to the Noongar people, joint management of the south-west conservation estate and an agreed approach to heritage management. The settlement also establishes frameworks and resources for community and economic development.

Truth-telling about colonisation, the past and the present and the connection between them, is recognised as fundamental to treaty-making in settler societies. As a result of generations of advocacy by Indigenous people in Victoria and months of work in partnership with the First Peoples’ Assembly of Victoria, the Victorian Government established the Yoorrook Justice Commission as the nation’s first truth-telling process in 2021 (FPAV 2021) (see also case study: Treaty-making in Victoria – the First Peoples’ Assembly of Victoria). The commission has 7 key objectives, including establishing an official record of the impact of colonisation on Indigenous people in Victoria, and making detailed recommendations about practical actions and reforms needed to redress these inequities. The commission will deliver an interim report to the Victorian Government by 30 June 2022 and a final report by 30 June 2024.

Treaty-making is occurring through different processes in the states and territories, and the treaties that result will also be very different. It is vital that any treaty process is based on the cultural protocols of both Indigenous people and governments.

Co-design and co-development of policy

In recent years, the requirement for Indigenous participation through co-design has emerged as a key prerequisite of policy legitimacy in the Indigenous policy domain (Dillon 2021). Within the Indigenous policy domain in the past 7 years, justifying policy based on the results of consultation has shifted to a focus on the concept of co-design (Dillon 2021).

The importance of co-design for Indigenous natural resource management focuses on its ability to integrate, or weave, Indigenous knowledge and western science. Differing systems of knowledge production and underlying world views can be difficult to align, and the validity of both approaches needs to be recognised. The co-design concept can bring these differences together. Key considerations for co-design start with defining the research problem together, and researchers must commit time to establish relationships and build trust with Indigenous people (Parsons et al. 2016).

The Australian Government is currently developing an Indigenous Voice co-design process (Reconciliation Australia 2021). A framework to assess cultural safety in Australian public service has also been developed (Mackean et al. 2020).

Indigenous cultural and intellectual property

Indigenous cultural and intellectual property (ICIP) refers to Indigenous people’s rights to their tangible and intangible heritage, including (Janke & Michael Frankel and Company 1998):

• arts and cultural expression
• documentation of Indigenous people such as in films, photographs and reports
• cultural knowledge such as knowledge of plants, plant resources and seasonal information
• cultural objects such as woven baskets, artefacts and treasures held in museums or collected sites
• sites and places that are culturally significant
• languages
• ancestral remains.

There is currently no specific law that properly protects ICIP and there are gaps in protection within intellectual property (IP) laws, access and benefit-sharing laws, and heritage laws. For instance, some Indigenous knowledge is orally based and this is not protected by copyright, which requires a work to be written down or in material form. A key issue for Indigenous people is what happens when knowledge is recorded and how it is used. Another is the use of plant knowledge and commercialisation of plants (Janke 2018).

There have been calls for greater protection of ICIP in IP laws. There have been many inquiries into Indigenous knowledge and the IP system, including the 1998 report Our culture: our future, which called for new laws, and advocated for protocols and a National Indigenous Cultural Authority (Janke & Michael Frankel and Company 1998). IP Australia, as part of its Indigenous Knowledge Project, is examining elements for a new legal framework to protect Indigenous knowledge, including standalone legislation creating a new form of collective or communal IP right, as well as a national Indigenous regulatory body and measures to prevent trade in inauthentic products. Terri Janke has put together a proposal for a National Indigenous Cultural Authority to assist with connecting potential ICIP users and Traditional Owners (Janke 2009).

Internationally, the World Intellectual Property Organization (WIPO) convenes an Intergovernmental Committee (since 2000), which Australia attends. While some Indigenous Australians have attended the meetings, there is no regular attendance or strategic approach to the inclusion of Indigenous Australians at these meetings. The WIPO Intergovernmental Committee has prepared draft articles for new rights for the protection of traditional knowledge, including commercialisation and the need for consent.

ICIP options

International and national governments have been discussing ways to handle Indigenous knowledge appropriation for the past 40 years. Since 2018, IP Australia’s Indigenous Knowledge Project has been exploring different options relating to Indigenous knowledge and the IP system. After extensive consultations, IP Australia released a work plan for 2020–21, which includes the options for sui generis laws to protect Indigenous knowledge. The plan also includes the possibility of developing options for implementing disclosure requirements for patent and plant breeders’ rights applications. This will support Indigenous people and prevent misuse of their traditional knowledge. The plan also includes exploring links between patents data and the Atlas of Living Australia to increase transparency in the use of Australian native genetic resources and Indigenous knowledge in claimed inventions (Expert Working Group 2013).

Indigenous people and users of Indigenous knowledge have used protocols, contracts and existing laws as a way to manage and protect ICIP. This includes developing ICIP clauses in contracts and developing contract governance arrangements that enable more Indigenous control over the Indigenous knowledge (Figure 17). Existing IP laws including copyright and trademarks can also be used to protect and manage ICIP. Geographic indications have also been suggested as a way of protecting Indigenous knowledge, cultural expression and genetic resources derived from Country, in the same way that some wines and cheeses denote their origin in labelling. Other methods include co-development protocols and using traditional knowledge custodian notices and biocultural labels (see Biocultural protocols and labelling) (Janke & Sentina 2017).

Indigenous protocols and codes of ethics have been developed to recognise Indigenous rights in research, arts, film, collecting institutions and other sectors:

• Research sector
  • AIATSIS code of ethics for Aboriginal and Torres Strait Islander research (2020)
  • National Health and Medical Research Council’s Ethical conduct in research with Aboriginal and Torres Strait Islander peoples and communities: guidelines for researchers and stakeholders 2018 and Keeping research on Track II 2018
• Caring for Country
  • Our knowledge, our way in caring for Country: Indigenous-led approaches to strengthening and sharing our knowledge for land and sea management (2020)
• Arts, film
  • Australia Council for the Arts’ Protocols for using First Nations cultural and intellectual property in the arts (2020)
  • Screen Australia’s Pathways and protocols: a filmmaker’s guide to working with Indigenous people, culture and concepts (2009)
• Museums, galleries and libraries
  • Australian Museums and Galleries Association’s Continuous cultures, ongoing responsibilities (2005)
  • –          Aboriginal and Torres Strait Islander Library, Information and Resource Network’s Aboriginal and Torres Strait Islander protocols for libraries, archives and information services (2010).

In some cases, ICIP notices have been developed to sit alongside copyright notices – for example (Woodward et al. 2020):

 

Notice: The information shared by Traditional Owners may include Indigenous knowledge which cannot be protected by copyright and hence a Creative Commons licence. (Regardless), we as Indigenous knowledge holders assert our ownership (which may be collective ownership), authority and control over our Indigenous cultural and intellectual property (ICIP) expressed in words or captured in images (photos), or shown through a form of visual representation in this document. Our ICIP includes language and names; cultural practices, governance, values and responsibilities; knowledge about plants, animals, and land and sea; stories and their meaning; and reference to culturally important sites. We assert our rights to our ICIP and ask that you acknowledge and properly attribute who and where it came from, that you respect it, that you maintain its integrity and not use it out of context, that you treat it in the right way, and that you contact us to learn more and to create mutually beneficial opportunities and partnerships for the future.

Another example is McKemey et al. (2019) (also see Figure 18):

 

The language and information, including its visual representation, contained in this publication includes the traditional biocultural knowledge, cultural expression and references to biological resources (plants and animals) of the peoples of the Ngandi, Wubuy (Nunggubuyu), Ritharrŋu/Wagilak, Marra, Ngalakan, Alawa, Rembarrnga, Warndarrang and Roper River Kriol language groups. The information is shared by Elders for the purposes of knowledge preservation, general education and language maintenance.

ICIP in research and management projects

The Australian Government has acknowledged that, while Indigenous knowledge contributes significantly to research in Australia, it is evident that these contributions are not always acknowledged or valued appropriately. Historically, Indigenous people have been seen more as research subjects or participants. Indigenous people should be seen as collaborators and partners in research, who make meaningful contributions to science (Expert Working Group 2013).

Our knowledge, our way in caring for Country provides best-practice guidelines for Indigenous-led approaches to strengthening and sharing knowledge for land and sea management. The guidelines state that good collaborative project partners should negotiate protocols, which includes consideration of IP and ICIP (Woodward et al. 2020).

Some projects have followed an ethical approach to scientific research and commercial development of Indigenous knowledge (see Plant use and commercialisation). The success of these projects has been due to the advocacy of strong Indigenous knowledge holders, and the goodwill of universities, research organisations and researchers. Some universities and research organisations have included ICIP in their IP policy (e.g. University of Wollongong) or developed their own ICIP protocols (e.g. University of Western Australia and University of Newcastle). It is important that all research organisations establish research agreements with Indigenous people that include ICIP clauses including ICIP permissions and licensing arrangements.

The SGS Economics and Planning report on Indigenous engagement in the national research program found that protocols based on good faith and mutual understanding enable parties to arrive at an arrangement that respects Indigenous cultural ownership, values and practices (Wensing & Callinan 2020). The report recommends that the True Tracks principles and framework be adopted as the minimum standards for protocols between National Environmental Science Program Hubs and Indigenous people to protect Indigenous knowledge. The True Tracks principles are Janke (2021):

• 1. Respect
• 2. Self-determination
• 3. Consent and consultation
• 4. Interpretation
• 5. Cultural integrity
• 6. Secrecy and privacy
• 7. Attribution
• 8. Benefit sharing
• 9. Maintaining Indigenous culture
• 10. Recognition and protection.

Convention on Biological Diversity and the Nagoya Protocol

The United Nations Convention on Biological Diversity 1992 (CBD) and the supplementary Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity 2010 are important international documents on this issue. The CBD is a legally binding international treaty to protect the knowledge, innovations and practices of indigenous and local communities, and promote their wider application with the approval and involvement of the knowledge holders. Article 8(j) of the CBD states (CBD 2021):

 

Each contracting Party shall, as far as possible and as appropriate:

• Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.

The Nagoya Protocol aims to share the benefits arising from the use of indigenous genetic resources in a fair and equitable way. It does this by requiring member countries to establish measures to ensure that the use of traditional knowledge is subject to the free, prior and informed consent of indigenous landowners, and by encouraging benefit sharing (see International laws and agreements). Australia has signed the protocol but has not yet ratified and implemented it; the implementation of the Nagoya Protocol in Australia should be a focus over the next 5 years.

Biodiscovery laws and access and benefit sharing

Australia’s laws on the protection of biological diversity and the use of Indigenous traditional knowledge are patchy. Australia has not yet implemented the Nagoya Protocol, and there are different approaches and requirements depending on the location of the genetic resources and the nature of the relevant land tenure (Janke & Sentina 2017). Australian legislation was introduced at a national level with the EPBC Act, and in the Northern Territory, the Australian Capital Territory and Queensland. Western Australia introduced a bill in 2019, but it has not yet passed into law.

Generally, these laws have not been effective in enabling Indigenous people’s rights to their knowledge. There is a need for ratification of the Nagoya Protocol and a national consistent system.

The EPBC Act and Regulations provide that, where access is for commercial or potentially commercial use, the applicant must enter into an access and benefit-sharing agreement with the access provider. For noncommercial purposes, the applicant must obtain written permission and state that it does not intend to use the biological resources for commercial purposes. This can, in principle, assist Traditional Owners to negotiate agreements for use of resources and associated knowledge of land that is accessed. In practice, the law provides limited protection and the provisions do not consider Indigenous knowledge.

In 2020, the Queensland Government reformed ‘biodiscovery’ laws to better respect and uphold the rights of Indigenous knowledge holders. Consulting widely with Indigenous communities, scientists and ICIP experts, these reforms aimed to better reflect the requirements of the 2014 Nagoya Protocol. The reforms also aimed to streamline biodiversity approval processes, and include the regulation of biological materials from state lands and waters, and from private and Indigenous lands. Further, the Traditional Knowledge Code of Practice, which aims to more meaningfully incorporate Traditional Owners in the biodiscovery industry, was developed as part of these reforms.

Biocultural protocols and labelling

When implementing access and benefit-sharing schemes, it is important to be able to identify the source or provenance of the material and knowledge. Another strategy to protect ICIP is biocultural protocols (BCPs), which has been the topic of debate in the United Nations Environment Programme (UNEP 2009).

Local Contexts is an initiative that has developed traditional knowledge (TK) labels and notices, as well as biocultural (BC) labels and notices to support the provenance and ethics of collections containing Indigenous knowledge and resources, and provide tools and approaches that outline community expectations and consents about the appropriate uses of materials in a collection or data repository. These notices and labels also connect the data to people and the source environments. This way, Indigenous people can control the data they share over time, especially when it moves outside the original community or local context (Anderson & Hudson 2020). Local Context notices and labels invite collaboration with Indigenous communities, and create spaces within cultural heritage and research systems for them to define the provenance, protocols and permissions, including for genetic resources and associated metadata (Liggins et al. 2021). Journals can also apply these labels and notices to their papers alongside their author statements, and data accessibility and benefit-sharing statements (Wright et al. 2017).

BCPs have been of greatest use to communities where there are no clear legal systems of protection. There is also a role for BCPs where the legal system recognises them as applicable procedures and punishes noncompliance with them. However, without a strong disclosure requirement, it is difficult to monitor compliance with BCPs.

Reconciliation Action Plans

Reconciliation Action Plans (RAPs) are a key organisational mechanism for commitment, action and institutional governance around Indigenous rights and collaboration. Since 2016, there has been a rise in the number of governments, industries, nongovernment organisations (NGOs) and research organisations with RAPs.

The Australian Government Department of Agriculture, Water and the Environment’s Stretch RAP 2021 to 2024 has caring for Country as a key commitment. A key focus is addressing community needs by (DAWE 2021c):

• increasing engagement by partnering with Indigenous organisations and via the Indigenous Advisory Committee
• increasing employment
• observing cultural protocols.

Several corporations and NGOs have RAPS that focus on the environment and Indigenous engagement (DAWE 2021c). For example, the South Australian Environment Protection Authority includes a RAP as a deliverable for its state of the environment reporting. This is to ensure that Indigenous perspectives about the state of the environment and addressing environmental pressures, management practice and looking after Country are included (EPA SA 2021). In 2019, the Green Building Council recognised that Indigenous people have deep insights into building sustainable, resilient places for people that respect the natural environment (GBCA 2021). Several local councils have developed RAPs.

Mining company Rio Tinto’s RAP 2016–2019 noted that working directly with Indigenous people to identify areas of important cultural heritage value is fundamental to any of their mining development (Rio Tinto 2016). However, Reconciliation Australia revoked its endorsement of the Rio Tinto RAP after the blasting of the Juukan Gorge in 2020 (Reconciliation Australia 2020).

RAPs and other key Indigenous engagement strategy documents seek to hold corporations, government departments and other agencies to account in engaging with Indigenous people. A problem raised by RAP critics is that they are voluntary and legally unenforceable, hence they can be token gestures. However, they are a framework that is goal focused and measurable, and whether an organisation reaches its goals is on the public record. In Reconciliation Week 2021, June Oscar, Aboriginal and Torres Strait Islander Social Justice Commissioner, noted that RAPS have brought positive changes and are first steps. Oscar stated, ‘We’ve got to take RAPs to the next level and reposition them in the bigger agenda of social, political and economic settlement so they can be a driving force for self-determination’ (Oscar 2021).

EPBC Act review

The EPBC Act enables the Australian Government to work with the states and territories to protect the environment and conserve biodiversity.

In 2020, the independent review of the EPBC Act, undertaken by Professor Graeme Samuel AC, stated that the EPBC Act is ‘outdated’ and leads to ‘piecemeal decisions’ that are not in alignment with environmental management responsibilities of states and territories (Samuel 2020). Chapter 2 of Samuel’s report, on Indigenous culture and heritage, says that the EPBC Act has failed to fulfil its objectives as they relate to the role of Indigenous Australians. Samuel comments that the Act is a barrier to holistic environmental management and that governments have failed to support the rights of Indigenous Australians to self-determination and environmental decision-making. This is a missed opportunity on behalf of governments to harness the wealth of traditional knowledge in managing the environment.

It was recommended that a National Environmental Standard for Indigenous engagement and participation in decision-making should be adopted. This would help to address the unsatisfactory suite of national-level laws that protect Indigenous cultural heritage, which are out of step with community expectations and require comprehensive review (see the Heritage chapter). The National Environmental Standard is also intended to recognise the right of Indigenous people to initiate engagement and to be involved in design through to evaluation of the EPBC Act’s processes and activities.

As stated in the review, ‘environmental management is inadequate without incorporating the knowledge, land and sea management practices of Indigenous Australians’ (Samuel 2020).

International laws and agreements

The United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) is a key agreement for Indigenous rights and the environment. In 2009, Australia endorsed the UNDRIP, but it is a nonbinding agreement. Indigenous peoples call for greater recognition of UNDRIP. UNDRIP describes ‘the rights of Indigenous peoples to live in dignity, to maintain and strengthen their own institutions, cultures and traditions and to pursue their self-determined development, in keeping with their own needs and aspirations’ (UNPFII 2007). Importantly, this document also sets standards of free, prior and informed consent, and advocates for the right of indigenous peoples to conservation and protection of the environment. The entire document is relevant to Indigenous environmental management. While it is nonbinding, it is still influential in guiding management policies. There is a need for greater recognition of these rights by Australian governments and industry.

Another key convention is the Convention on Biological Diversity and the associated Nagoya Protocol on Access and Benefit Sharing (see Convention on Biological Diversity and the Nagoya Protocol). These international documents promote access, benefit-sharing agreements and research agreements with traditional knowledge holders. Although there has been some translation of these instruments within Australian laws, they are yet to be administered across Australia in a meaningful way.