1.1
The Australian Greens have concerns about Part 1 of Schedule 1 of the
Carbon Credits (Carbon Farming Initiative) Amendment Bill 2017 (the Bill),
which relates to consent requirements, and more broadly about the differential
treatment of native title claimants compared with determined native title
holders in the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI
Act).
Item 1, Part 1
1.2
As noted in the Majority Committee Report, the amendment of section 28A
of the CFI Act will remove the need for third-party consent for savanna fire
management projects and other area-based emissions-avoidance projects.
1.3
While the amendments will not remove the requirement for the project
proponent to have a 'legal right' to carry out the project, it will remove a
consent right for Aboriginal interest holders in relation to their traditional
lands and waters. The Law Council of Australia notes in its submission to the
inquiry that the impact of this removal is a significant issue.[1]
1.4
The Law Council of Australia stated in its submission:
Since the first consultations in relation to the CFI Act in
2009/10, the position of most native title holders and Indigenous land rights
land holders has been that consent should be required for any land-based
project that may interfere with their rights and interests. In effect, this
applies to both sequestration projects (due to permanence obligations), but
also emissions avoidance projects that may impair/interrupt co-existing rights
and interests.[2]
1.5
Section 45A of the CFI Act recognises native title holders as potential
eligible interest holders, giving them important protections in ensuring they
are consulted.
1.6
The Kimberley Land Council stated in its submission that:
The protections afforded to native title holders by section
45A of the CFI Act would be significantly diminished through the Bill’s
proposed amendments to section 28A, leaving native title holders with not even
a right to be notified of emissions avoidance projects registered on their
native title lands.[3]
1.7
In this regard, the Law Council of Australia notes the limited resources
in the native title sector and how removing the positive obligation of the
consent requirement for emission avoidance projects will place an additional
burden on native title holders and their representative bodies to keep a close
eye on the projects being registered.[4]
1.8
There is an important distinction between native title rights and
interests, and other legal or equitable interests.[5]
Particularly because native title is not protected in the same way that other
interests in land or water are; it cannot be registered on title.[6]
1.9
The Kimberley Land Council stated in its submission:
This situation is particularly concerning as it applies to
exclusive possession native title holders. Exclusive possession native title
holders should be afforded rights equivalent to other exclusive interest
holders when it comes to third parties undertaking activities on land and
waters. Removing the consent requirement for emissions avoidance projects
places exclusive possession native title holders at a disadvantage to
equivalent property interest holders, due to limited protections under general
property law.
...
It would be inconsistent to repeal emissions avoidance
project consent requirements and not provide some form of pro-active statutory
protection for exclusive and co-existing native title holders, with respect to
area-based emissions avoidance projects.[7]
1.10
Given the differences between native title interests and other
legal/equitable interests in land, statutory provisions that require proactive
engagement from those wishing to undertake area-based offsets projects on
traditional lands is warranted, and necessary.
Item 2, Part 1
1.11
There is also concern regarding the transitional provision, which will
retrospectively remove the need to obtain conditional consent, a measure that
was introduced as part of the 2014 amendments. As the Kimberley Land Council
stated in its submission:
The explanatory memorandum to the Bill confirms that the aim
is to address consents that have not been obtained by some project proponents.
As a consequence, this will enable proponents, who registered and bid for
projects, with a clear understanding of the CFI Act requirements (and receiving
conditional ERF contracts) to be rewarded for not engaging with or obtaining
the agreement of the relevant native title holders or other eligible interest
holders. The majority of ERF contract holders are capable of designing and
winning projects that involve obtaining all relevant consents (or addressing
this risk through other commercial measures). The Bill should not apply so as
to change the goalposts retrospectively. Doing so penalises those proponents
who have invested in complying with the regime by spending time and money
seeking indigenous or other eligible interest holder consent, and rewards those
who have not done so by granting them a retrospective reprieve from compliance.[8]
1.12
The Law Council of Australia also commented:
All contracts for the past four auction cycles have been
issued on the current statutory basis. To change this requirement now, impacts
on the interests of Indigenous people, but also potentially disadvantages
existing ERF participants and previous bidders into the ERF.[9]
Native title claimants
1.13
There is also concern over the differential treatment of native title
claimants compared with determined native title holders in the CFI Act. This is
because determined native title holders have consent rights but native title
claimants do not. The Aboriginal Carbon Fund feels the CFI Act is unfair on
native title claimants and wants to see registered native title claimants be
treated the same way as other native title holders.[10]
The Cape York Land Council is of the same view.[11]
1.14
In its submission, the Kimberley Land Council stated:
Given that a native title determination does not create new
native rights, but confirms the existence (subject to extinguishment) of
existing native title rights, registered native title claimants should be
afforded the same rights as native title holders who have received a
determination. This approach would be consistent with the approach taken in the
Native Title Act 1993, and improve overall CFI integrity, as it would
ensure future rights holders have consented to the future potential impact on
their land, for example through the application of a carbon maintenance
obligation.[12]
Recommendation 1
1.15
The Australian Greens recommend that item 1 of Schedule 1 be
removed from the Bill.
Recommendation 2
1.16
The Australian Greens recommend that further consultation with
Aboriginal and Torres Strait Islander peoples be carried out in relation to
item 2 of Schedule 1 of the Bill.
Recommendation 3
1.17
The Australian Greens recommend that the Government amend the
Bill so that the registered native title claimants are treated the same as
determined native title holders.
Senator
Peter Whish-Wilson Senator Rachel Siewert
Deputy Chair Senator
for Western Australia
Senator for
Tasmania
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