Indigenous governance, rights and access

Ongoing colonisation continues to impact the rights of Indigenous people to access and manage Country. The colonial legal system and the established practices of environmental management have ignored Indigenous people, their knowledge systems and their millennia-long practices of caring for Country. Although there is evidence that governments are developing governance models that include Indigenous people on advisory boards or as part of consultation, Indigenous people need to be included in key decisions about the environment. There must be more willingness by government to embrace Indigenous knowledge and caring for Country principles. Most importantly, Indigenous people need to be empowered to share their knowledge on their terms.

Country encompasses landscapes and seascapes, as well as knowledge and caring for Country practices, including care of plants and animals (see Connection to Country). This holistic approach is not often translated into land management strategies or policies. The inflexibility of government environmental management practices disempowers Indigenous people in managing their Country. The mismanagement of Country has been the result.

A key area that illustrates this is cultural fire management. Australia’s environment has been nurtured by Indigenous fire management practices, which were well used across the country. For Indigenous people, cultural burning and fire management are proactive measures taken to create healthy Country. Since the beginning of colonisation, there has been no consistent cultural fire management nationally. These traditional land management practices have largely stopped or have been significantly curbed by regulations in states and territories.

Many states and territories are developing programs to bring back cultural burning practices, particularly in the context of the current climate change emergency. However, the adoption of such practices is usually within rigid, non-Indigenous management frameworks and should take into account the rapidly changing climate as well as historical legacies of impact. There have been many calls for greater collaboration and joint management of fire management using both Indigenous knowledge and western science. Indigenous people must develop, lead and implement environmental management techniques that are guided by cultural practices and traditional knowledge systems (Maclean et al. 2018, Fisher & Altman 2020, McKemey et al. 2020, Steffensen 2020). The 2020 Samuel Review of the EPBC Act called for greater recognition and inclusion of Indigenous environmental management practices.

Although Indigenous cultural rights, including self-determination rights and protection from racial discrimination, are enshrined in human rights instruments, the laws in Australia are limited in giving meaningful effect to these rights.

The United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) provides an international foundation to recognise Indigenous cultural and knowledge rights. It was endorsed by Australia in 2009, but is a nonbinding agreement. It 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, it also sets standards of free, prior and informed consent, and advocates for the right of Indigenous people to conserve and protect the environment. Although during the past 5 years we have seen more recognition of these rights by governments and industry in guiding management of our land and sea, too often they remain ignored in decision-making. There is a lack of understanding of Indigenous cultural governance and rights by corporations, and a lack of effective engagement and collaboration. However, there is some evidence that Indigenous cultural governance is being strengthened, sitting alongside the national and state governance (Talbot 2017).

Assessment Governance, rights, and access to Country for Indigenous people
2021 Assessment graphic for an assessment conducted by Indigenous community members, showing that pressures are very high, meaning they strongly degrade the state of the environment, over a large extent and with a high degree of severity. The situation is deteriorating.

Changes in native title, land rights, Indigenous Protected Areas and co-management are positive; however, overall environmental management and governance arrangements do not adequately incorporate Indigenous knowledge, practices, culture and rights, and do not ensure equitable access to natural resources. Indigenous people continue to be impacted by poor access to water, constraints on cultural food collection and burning practices, and inadequate protection of Indigenous cultural and intellectual property.
Assessments of impact are very high
Assessments of trend are deteriorating
Related to United Nations Sustainable Development Goal targets 11.4, 15.6

Access and rights to Indigenous estate

The Indigenous estate includes land owned and accessible to Indigenous people. Native title, land rights, Indigenous Protected Areas, and fully and co-managed national parks are mechanisms by which Indigenous people are able to connect with and care for Country. However, there are barriers caused by difficulties in accessing privately owned land, weak land title, and a complicated jurisdictional system of land tenure. The legal rights framework of native title, land rights and access rights is complex, and entities such as governments, industry and private owners are better resourced to use the legal system in their favour for access and use rights. There is a lack of transparency in negotiations.

Indigenous ranger programs offer Indigenous people a source of employment, capacity building and, most importantly, unfettered opportunity to link back with and protect Country. However, limited resources and underfunding are barriers for Indigenous people to effectively perform these duties. The movement of Indigenous people off Country to urban centres changes how Indigenous people can care for Country. Urban areas are also part of Country, and access to green spaces, waterways and sites is important for Indigenous people, but Indigenous people are not often included in urban planning.

Indigenous access and rights to natural resources

The historical and present mismanagement of Australia’s environment denies Indigenous people equitable access to natural resources. Mismanagement refers to the poor protection and inequitable allocation of environmental resources and assets, and also the inflexibility to recognise Indigenous knowledge in management approaches. Areas of concern include water resources, cultural burning practices and fishing rights.

Access to water is a primary and ongoing concern for Indigenous people. The mismanagement and loss of water is a particular issue for Indigenous freshwater communities. The 2019 Murray–Darling Basin Royal Commission highlighted the long-term and irreversible impacts of this poor management (see Integrated water management) (Walker 2019).

Limited rights to water have far-reaching health and economic impacts for Indigenous communities. For example, in the Northern Territory, communities rely on low-quality water for domestic uses, which can cause detrimental health outcomes such as lowered life expectancy. The limited commercial usability of native title rights also means that any water rights cannot be used to generate economic outcomes.

Water management laws do not fully recognise Indigenous people’s rights to access, use, manage and care for water resources. Australia’s recognition of Indigenous people’s right to water is one of the weakest of any colonial countries (Moggridge & Thompson 2021). It is estimated that Indigenous water rights in the Murray–Darling Basin are less than 0.01% of diversions (Jackson et al. 2021). Indigenous people and communities have been left out of key conversations about future water-use planning and management.

The rights of Indigenous Australians to participate in the cultural practice of fishing is an ongoing issue. Some states have recognised Indigenous fishing rights; however, they do not extend to the full realisation of rights in UNDRIP.

Indigenous cultural and intellectual property

Indigenous people have a right to use and protect their Indigenous knowledge and knowledge systems. This is at the heart of Indigenous identity (Terri Janke and Company 2018). Cultural and intellectual property encompasses traditional cultural expression such as songs, dance and languages, as well as traditional knowledge such as medicinal and ecological knowledge. Indigenous knowledge of place, time and being informs how Indigenous people connect with community and care for Country. However, Indigenous knowledge has been, and continues to be, subject to widespread appropriation and exploitation, nationally and internationally. The mass and sustained appropriation of Indigenous knowledge dismantles the intricate and nuanced knowledge systems that have been cultivated by Indigenous peoples for thousands of years (Terri Janke and Company 2018).

The appropriation and misuse of Indigenous knowledge and Indigenous cultural and intellectual property (ICIP) continues to be a problem for Indigenous people. The more demand for Indigenous knowledge in commercial activities grows, particularly regarding plants, the more Indigenous people fear misappropriation and exploitation by non-Indigenous entities. Biopiracy of Indigenous knowledge denies Indigenous people the benefit-sharing and economic advantages flowing from the use of their Indigenous knowledge and genetic resources on their lands and waters.

International legal instruments such as the Convention on Biological Diversity and its Nagoya Protocol recognise this issue and seek to compel benefit-sharing arrangements. However, there is an absence of a comprehensive legal framework in Australia for free, prior informed consent to the use of Indigenous knowledge (see Indigenous cultural and intellectual property and data).

Only within the past 40 years has the issue of Indigenous knowledge and ICIP been discussed by government and organisations. Significantly, Article 31 of UNDRIP mandates that Indigenous people have a right to ‘maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expression … and their intellectual property over this knowledge and expression’. The right of Indigenous people to freely use and develop their Indigenous knowledge and ICIP is interconnected with their right to self-determination.

There are laws for access and benefit sharing in the Commonwealth, the Northern Territory and Queensland. However, the lack of protection nationally allows biopiracy to continue. In 2020, Queensland amended its Biodiscovery Act 2004 to comply with the Nagoya Protocol. This Act now requires anyone engaging in biodiscovery to take all reasonable measures to reach an agreement with Indigenous knowledge custodians. Indigenous people continue to ask for implementation of the Nagoya Protocol – this includes proper attribution; benefit sharing; and free, informed and prior consent.

Data and lack of access to data have also been identified as key limitations to Indigenous self-determination. Much knowledge and other Indigenous data have been collected by government, universities and research agencies, and Indigenous people call for greater access to, and control over, their data (see Indigenous cultural and intellectual property and data).