The Commonwealth Department of Environment has recently published a new guideline that is relevant to your business. The guideline is entitled Engage Early: Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (Guideline). 

The Guideline can be found here:

The Guideline sets out the Department’s views on best practice principles for engaging with Aboriginal people in relation to projects that are subject to assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). As its title suggests, the Guideline is not legally binding and, as such, does not technically obligate proponents to take particular measures. However, the introductory paragraph notes (and similar language is used throughout) that the Guideline ‘sets out the Department of Environment’s expectations on how Indigenous engagement should occur’ (emphasis added), suggesting that failure to adhere to the Guideline may have consequences for the approval process of a project.

The primary aim of the Guideline is to ‘improve how proponents engage and consult Indigenous peoples during the environmental assessment process under the EPBC Act’. The Guideline includes principles on both timing and method of consultation and engagement, and the Department’s views on what constitutes best practice in consulting with Indigenous people, which includes:

  • working with appropriate organisations to identify all relevant affected Indigenous peoples (such as land councils and native title representative bodies);
  • building relationships and trust through early ongoing communication for the duration of the project;
  • early engagement and workable timeframes;
  • cultural awareness and competency.

Notably, the Guideline provides that there will be some circumstances for which the Department expects consultation with Indigenous people to be in addition to the public consultation process, including where the proposal will have, or is likely to have, a significant impact on the listed heritage values of:

  • a National Heritage place or a World Heritage property;
  • Commonwealth land or a Commonwealth marine area; or
  • the environment, where the proposal is a ‘nuclear action’.

This expectation also applies where the proposed project will be in an area that is, or could be in future, subject to a native title claim or determination. In such circumstances, the Guideline recommends proponents consult with Indigenous people at the pre-referral stage and include a report about such consultation in the environmental assessment documentation. Proponents will need to demonstrate genuine consultation with Indigenous people and state how any issues raised have been addressed.

The Guideline also encourages proponents to ‘actively consider opportunities for engaging and working collaboratively with Indigenous stakeholders to develop and deliver environmental offsets’, which can be negotiated by way of an ILUA where appropriate. For listed heritage sites that may be impacted by a project, the Guideline provides that offsets can be considered, though the traditional owners must be consulted about the most appropriate offset in these circumstances, which may include:

  • an offset that contributes to an area recognised as important to increasing landscape connectivity beyond what is required by the impacted protected matter;
  • employment of local Indigenous land and sea rangers; or
  • payment to rural landholders to manage their land for conservation purposes.

The Guideline raises the bar in terms of a proponent’s requirement to engage with Indigenous people in relation to projects that fall under the EPBC Act, particularly where those projects will be done in areas that ‘could’ be subject to a native title claim or determination in future (which is in addition to any applicable legal requirements under the Native Title Act 1993). 

Our view is that proponents with projects that are likely to require EPBC Act compliance should aim to follow the Guideline as closely as possible to ensure that requisite approvals can be granted without delay. Given existing requirements under the Native Title Act 1993, there are unlikely to be significant difficulties in building appropriate procedures into the project approvals process.