1.1
First implemented by the Labor Government, the Carbon Credits (Carbon
Farming Initiative) Act 2011 (the CFI Act) stipulates how carbon credits
are created, accounted for and discharged.
1.2
Labor Senators are deeply concerned that the Government has used
remedying a so-called drafting error to remove consent rights for emission
avoidance offset projects from native title holders.
1.3
Labor Senators are broadly supportive of the remaining amendments
proposed in this Bill, which will improve the functioning of Australia's carbon
credit system.
1.4
While it is good the Coalition Government has finally come around to fix
some of the mistakes it has made to how carbon credits are generated, approved
and managed, this is still a government that lacks any climate change policy
post 2020. In contrast to the Coalition Government, Labor has a detailed
climate policy, which will transition Australia to a clean energy economy and
meet our international obligations.
Consent requirement
1.5
There is a significant divergence of views in relation to the amendment
of native title consent requirements, with support from project proponents and
opposition from Indigenous stakeholders and the Law Council of Australia.
1.6
Labor Senators do not support the removal of consent requirements from
native title holders for emissions avoidance offset projects. However, given
the short-term nature of emissions avoidance offset projects, Labor Senators
support the intention of the amendment to remove the requirement to obtain
third party consent from entities such as banks with a mortgage over the land
and state ministers for most Crown land.
1.7
Labor Senators are concerned that while the Chair's report includes a
summary of the legal arguments against amending consent requirements, the Chair's
report fails to adequately address the concerns of native title holders
themselves. Instead, the report relies on a so-called drafting error in the
Government's 2014 amendments to the Act, the tired cliché of a reduction in red
tape for project proponents, and assertions from the Department of the Environment
and Energy as sufficient justification for removal of native title holders'
rights. Labor Senators believe greater weight should have been afforded to the
comprehensive submissions from the Law Council of Australia, Kimberley Land
Council, Cape York Land Council and Aboriginal Carbon Fund.
1.8
In consultation with Indigenous stakeholders, Labor has prepared a
second reading amendment to protect native title holders from having their
consent requirements removed. This amendment will be circulated in the Senate
at a later date.
1.9
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.[1]
The Law Council and Kimberley Land Council argue that emission avoidance offset
projects such as savanna fire management have a clear capacity to interfere
with or impair Indigenous people's rights and interests (for example, due to
permanence obligations of sequestration projects or through the change in
availability of flora, fauna and access to sites as a result of savanna fire
management projects).[2]
These submissions also raised concerns that the removal of third-party consent
places exclusive possession native title holders at a disadvantage to
equivalent property interest holders due to limited protections under general
property law.[3]
1.10
The Law Council argues that the amendment creates an unfair burden on
native title holders, with the requirement to challenge a potential proponent's
legal right left solely to the native title holder.[4]
Further, the Law Council argues it would be inconsistent to repeal emissions
avoidance project consent requirements and not provide some form of pro-active
statutory protection for exclusive and coexisting native title holders, with
respect to area-based emissions avoidance projects.[5]
1.11
The Chair's report relies solely on the so-called 2014 drafting error and
does not address the substance of these issues raised by the Law Council and
Kimberley Land Council. The Department's response to these claims relies on the
provisions contained in section 46 of the CFI Act, but this only applies under a
specific set of circumstances.[6]
Labor Senators consider that the Coalition Government has failed to consider
the complexities of native title rights and interests.
1.12
The submissions from the Aboriginal Carbon Fund and Kimberley Land
Council noted consent requirements in the current legislation may be important
in avoiding future liability where there is no legal right to carry out the
project. This is of particular concern with pastoral leases where land
interests might be shared.[7]
Labor Senators regard the response from the Department of the Environment and
Energy for disputes to be resolved outside of the CFI Act as unsatisfactory, as
it merely shifts the administrative burden on to native title holders.[8]
Conditional consent
1.13
As currently drafted, the Bill will remove the consent requirements for
over 20 savanna fire management projects for which 'conditional consent' has
been granted through the Bill's transitional provision.
1.14
These proponents have not sought consents from native title holders and
justified this through the Coalition's argument that there was a drafting error
and the Coalition's promise that the requirement would be changed
retrospectively. The Department of the Environment and Energy argues it would
be unfair to require these proponents to seek consents, however the Kimberley
Land Council submits that it is in fact penalising those proponents who have
gained required third party consents.[9]
1.15
Labor Senators also view as inappropriate the Coalition Government
giving advice to these proponents to effectively ignore their legal
requirements in seeking third party consent. A future intention to change the
law (an action that is subject to the will of Parliament) should not be used as
a reason for proponents to ignore the law as it stands, which appears to have
been the Government's approach to these conditional consent holders. While
Labor Senators understand the frustration of these project proponents, we draw
their attention to the inappropriateness of the Government's advice, and its
implicit discounting of the role of Parliament in changes to law.
1.16
The Department of the Environment and Energy further argues that these
projects should be exempt because the conditional declarations may be revoked
as consents were not gained before the end of each project's first reporting
period.[10]
However, rather than exempt these projects from gaining consents, Labor
Senators consider that the proposed amendment to paragraph 31(3)(b), which
allows the Regulator to vary a declaration such that the proponent does not
need to gain consents before the end of the first reporting period, provides
sufficient cover for the proponents while ensuring consents are gained. Labor
Senators are nonetheless deeply concerned by the Coalition Government's botched
management of this supposed drafting error. Labor Senators further note the
argument by the Kimberly Land Council that the conditional consent process is
inconsistent with the requirement to obtain free, prior and informed
consent of Indigenous peoples to activities occurring on their land.[11]
Recommendation 1
1.17
Labor Senators recommend that the Bill not be passed in its
current form.
Recommendation 3
1.18
Labor Senators recommend that the Bill explicitly include a
requirement for project proponents to obtain the consent of native title
holders prior to the registration of the project.
Recommendation 3
1.19
Labor Senators recommend that the Bill not include the
transitional provision listed in Part 1 of the Bill.
Senator Anne
Urquhart Senator Anthony
Chisholm
Senator for
Tasmania Senator for Queensland
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