Will Australia’s main environment law continue marginalizing Indigenous authority, despite overhaul? (commentary)

Australia’s main environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), was recently updated.
The EPBC overhaul is a major shift in environmental standards, which also appoints a new independent environment watchdog and other changes, but one of the most urgent failures of the old policy remains unresolved: the marginalization of Indigenous input and authority.
The real test in the updated EPBC lies in how it’s implemented, a new op-ed argues: “If governments continue treating First Nations as consultees rather than partners, the new laws will inherit the same weaknesses that allowed deforestation, cultural loss and biodiversity decline under the old regime.”
This article is a commentary. The views expressed are those of the authors, not necessarily of Mongabay.

Australia’s main environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), has finally been rewritten. After years of warnings that the old law was “not fit for purpose,” parliament backed sweeping changes: national environmental standards, a new independent environment watchdog, higher penalties for breaches, and the closure of loopholes that had allowed native forest logging and large-scale land clearing to slip through federal oversight.

These reforms respond to the 2020 Samuel Review, which warned that Australia’s nature laws were failing to stop habitat loss and biodiversity decline. But one of the most urgent failures of the old regime remains far from resolved: the marginalization of Indigenous authority.

Aboriginal and Torres Strait Islander peoples, the custodians of Country for tens of thousands of years, are still consulted rather than empowered. Their ecological knowledge and cultural responsibility for land and water are not yet central to the decisions that shape Australia’s environmental future.

Now that the overhaul has passed, the debate shifts from whether to modernize the act to a more important question: will this new system finally share power with First Nations, or simply rebuild an old architecture with the same blind spots?

Australia's Indigenous communities identify their territories with the proper term 'Country.' Image courtesy of Luggarrah. — Australia’s Indigenous communities identify their territories with the proper term ‘Country.’ Tebrakunna Country is traditional land located in northeastern Tasmania. Image courtesy of Luggarrah.

What Canada shows us

Across Canada, Indigenous nations have moved beyond being observers in environmental decisions. They hold majority ownership in renewable energy, mining and infrastructure projects, backed by Indigenous loan-guarantee programs that help communities invest directly in developments on their lands.

Where Indigenous nations are genuine partners, conflict drops and long-term outcomes improve. These projects are not automatically “green,” but they integrate deeper knowledge of place, cultural responsibilities and long-term stewardship.

Australia cannot copy Canada’s approach outright, as the EPBC is an environmental law, not an economic empowerment tool, but the lesson is clear: environmental legitimacy grows when Indigenous peoples hold real power, not when they are offered last-minute consultation. Without that shift, even the strongest environmental standards struggle to earn trust.

Why it matters here

The reforms do strengthen parts of Australia’s environmental system. The new federal regulator will be able to issue stop-work orders, enforce compliance and impose meaningful penalties. National environmental standards are designed to set clearer, more transparent expectations for developers and decision-makers. Long-standing exemptions for native forest logging will end after an 18-month transition. More land clearing will require assessment. Fast-tracked approval pathways for coal and gas have been removed.

These changes will matter for ecosystems under pressure, from the Northern Territory savannas to Tasmania’s giant wet forests, and for communities who depend on healthy Country.

Expansive areas of Australia are Country stewarded by Indigenous communities. Image courtesy of Emma Lee. — Vast areas of Australia called Country are stewarded by Indigenous communities. Image courtesy of Emma Lee.

But the reforms stop short of addressing the central issue: who holds authority over decisions that shape Country? The new standards do not fully limit ministerial discretion. The minister retains significant flexibility over how the standards are applied, a key concern raised by scientists, lawyers and First Nations organizations. And while the government has promised a dedicated First Nations standard, it has not yet been written, let alone embedded into law.

The gaps are not small:

Environmental blind spots: The Samuel Review called for Indigenous knowledge to be integrated into assessments and regional planning. Without mandatory, co-designed mechanisms, decisions risk overlooking critical insights, from fire management to habitat patterns, that shape biodiversity resilience.
Cultural risks: Stronger standards do not automatically protect sacred sites or culturally significant landscapes. The new Restoration Contributions Fund, which lets developers pay into a central pool rather than deliver their own offsets, risks embedding a “damage now, repair elsewhere” approach. Without Indigenous authority over what is too important to offset, irreplaceable Country remains exposed.
Erosion of trust: Moving enforcement to an independent regulator may improve transparency, but if approvals continue to be made without shared authority, First Nations communities may still feel that decisions happen to them, not with This is how distrust takes root.
Lost opportunities for co-governance: Indigenous ranger programs and Indigenous protected areas are among Australia’s most successful conservation models. Yet the new laws do not make them default partners in implementing the national standards, nor do they guarantee long-term investment in Indigenous-led stewardship.

Although Australia has rebuilt the scaffolding of environmental law, it has not yet answered the deeper question: who gets to decide what happens on Country?

Various elements of the landscape hold significance for Australia's Indigenous communities. Image courtesy of Emma Lee. — Various elements of the landscape hold significance for Australia’s Indigenous communities. Image courtesy of Emma Lee.

Four ways forward

The new system is only the starting point. The standards, regulations and decisions made over the next few years will determine whether the reforms actually shift power or simply redesign the same top-down model. Four changes would make a difference.

Embed shared decision-making in approvals. For developments that could damage Indigenous heritage or biodiversity, approvals should be made by joint panels that include Indigenous representatives with equal authority. Co-chaired or majority-Indigenous panels can be built into the standards and used for matters of national environmental significance on Indigenous lands.
Put Indigenous leadership at the center of offsets and restoration. As offsets move to a Restoration Contributions Fund, a significant share must be directed to Indigenous-managed programs, ranger groups, Indigenous protected areas and community conservation enterprises. Traditional Owners should hold binding authority over what cannot be offset. Without this, destruction of cultural landscapes becomes a transaction rather than a loss.
Create a strong, enforceable Indigenous environmental standard. The promised First Nations standard must:

recognize Indigenous peoples as rights-holders;
require early, ongoing engagement;
embed free, prior and informed consent (FPIC);
define when joint approvals or Indigenous-led plans are required;

And, critically, it must be enforceable, not advisory.

Make Indigenous knowledge a required part of every assessment. Environmental Impact Assessments and regional plans should include Indigenous ecological and cultural knowledge, protected by strong data sovereignty rules. Regulators should have to demonstrate how this knowledge shaped their decisions, not treat it as optional background.

The EPBC overhaul is a major shift, but the real test lies in how it is implemented. The next stage will decide whether Australia builds an environmental system that respects Country and the people who have cared for it the longest.

If governments continue treating First Nations as consultees rather than partners, the new laws will inherit the same weaknesses that allowed deforestation, cultural loss and biodiversity decline under the old regime. But if co-decision-making, Indigenous-led restoration and enforceable cultural protections are woven into the next standards, this reform could become a genuine turning point.

Australia now has the legislative architecture to protect nature. Whether it succeeds depends on whether Indigenous peoples are treated as partners, not observers, in the decisions that shape their lands and waters.

Ali Kandi is a Ph.D. candidate at Edith Cowan University in Australia, and Emma Lee is a Trawlwoolway woman from Tebrakunna Country in Northeast Tasmania and a professor of environmental and social governance at Federation University Australia.

Related audio from Mongabay’s podcast: The environment editor at The Guardian Australia details why the nation’s environment will continues to degrade despite leaders’ rhetoric, listen here:

See related coverage: