Carbon rights in NSW

Last week NSW Deputy Premier Andrew Stoner announced that Western Division leaseholders would have the same rights as freeholders with respect to carbon rights. 

Has anything changed? 

No. The Crown Land Act was amended in 2006 to allow perpetual leaseholders to grant a forestry right on their land - this could only happen if the leaseholder had the carbon right in the first place.

So the Deputy Premier's announcement confirms the Government's view on what was already in place. 

This would be the same position for landholders under the NSW Aboriginal Land Rights Act - carbon projects could proceed as long as they were in the interests of Aboriginal people. 

However, the same cannot be said for the 26,000 would be Aboriginal landholders who have made a claim under the Act - that's how long the backlog is for dealing with land claims in NSW.

The only protection for this group is consent right to carbon storage projects where the NSW Minister has made a decision to grant a title - a very small number of cases.


What's going on in the NT?

The NT Primary Industries Minister put the breaks on carbon farming on Friday when he suggested that a permit was required for carbon farming on pastoral leases.

What is going on? 

Well, the Minister's comments arose in the context of Henbury Station, near Alice Springs, coming up for sale this week. Henbury was previously sold to R.M. Williams who wanted to destock the property and manage it for conservation and carbon. The company went broke.

The Minister said he wanted the property returned to pastoral production and that carbon farming was "off the table" until he saw value for the pastoral sector.

Everyone watching the pastoral sector in the NT knows that the industry is slow. Many stations are up for sale. Before R.M. Williams bought it, Henbury was on the market for a couple of years. No one bought it.

As early as 2002, the Productivity Commission recognised problems for the sector and recommended changes to broaden the use of pastoral land. Pastoral administration tended to discourage rather than promote diversified land use. 

In 2011, the previous NT Government released a paper on amendments to Pastoral Land Act for the "economic viability" of the industry. Amendments are now in the Parliament. At heart they propose that the Pastoral Board may grant a permit for a "non-pastoral purpose" for up to 30 years, with provision for extensions. There is no ban on carbon farming, but the Board must take into account "current Government policy". Not much change really, but the extension of time from 5 years is important for long term projects.

Despite the Minister's comments, carbon farming has already been taken up in the NT with 11 savanna burning projects already approved on pastoral land - clearly, the NT Government thinks this is an okay use of pastoral land, without a permit.

But carbon storage projects, like previously proposed on Henbury, are perhaps another story as they require the carbon rights to be held and the project carried out over the long term. Savanna burning, on the other hand, is an emissions reduction project with no requirement to hold the carbon. Henbury ran into the problem of having to change the lease, or have the carbon rights granted, or both. And all without any carbon rights legislation in the NT. It's not clear what exactly happened.

So we will be interested to see how things develop. But I would be surprised if the Government got in the way of a struggling pastoralist who wanted to run a rangelands carbon project alongside their cattle operation. Or traditional owners who want to do the same.

As the savanna projects show, permits are not always required and carbon farming looks alive and well in the NT. 


Repossession of Australia

We’ve been waiting for over a decade, but ANU researchers Jon Altman and Francis Markham have finally put together a fabulous piece of work documenting the move from the dispossession to the repossession of Australia over the last generation – in 2013 Indigenous landholding is now at 31 per cent of Australia (if non-exclusive native title is included).

This is a major piece of work compiling Commonwealth, State and native title records which is dynamic and ongoing – last year alone there were 40 native title determinations (believe me I know, having tried to do this when working with the government!)

Altman and Markham map showing Aboriginal and Torres Strait Islander land in 2013

The Altman and Markham maps are rich and they make some interesting observations: much of the land is not valued by ABARE and is listed as unallocated Crown land on existing maps. The land is generally intact, although where degraded through mines and loss of habitat there has been no compensation. And the communal land systems are perhaps poorly designed to participate in the modern economy.

So does this landholding have transformative power? Altman and Markham think a big part of the future might be in ecological services. Already, Indigenous Protected Areas form a large chunk of national conservation land, there is a strong overlap of threatened species refuges and Indigenous land, and belated recognition is coming from the Australian Government in the form of a $320m commitment for Working on Country programs over the next five years.

And now the Indigenous Carbon Farming Fund has rolled out its first round, focusing on savanna burning in the mostly Indigenous held north of Australia. Perhaps carbon farming can help Indigenous people take a bigger step into Altman’s hybrid economy – combining traditional with the market.

For more, check out Altman and Markham’s AIATSIS webcast, slides from the Native Title Conference, or Altman’s piece in Crikey.


Regulator issues NT land rights advice

The Clean Energy Regulator has issued a summary of legal advice stating that project applicants will need to show evidence of permission from the relevant Land Trust.

This is common sense – if you want to do something on land, you need the permission of the landowner.

But the issue is complicated on Aboriginal land in the Northern Territory where Land Trusts can’t handle money and traditional owners have rights to use land in accordance with tradition. Who will carry out projects?

Summary of advice from the Clean Energy Regulator

Summary of advice from the Clean Energy Regulator

On one hand, the Land Trust could do a deal with any organisation to grant a lease and be the project owner. This kind of deal could take a while, especially if it’s a large area with a lot of traditional owners.

On the other hand, if traditional owners have a right to use country, why can’t they use that to burn country and get some carbon credits?

But burning country and being a project owner are two different things.

Burning country might just be that. But being project owner implies having some control over the burning and obtaining a benefit to the exclusion of others.

The position of the Regulator of obtaining permission first is sensible – it also accords with provisions in the Land Rights Act which require informed consent from traditional owners before granting any interests in land.

The Regulator does leave the traditional use option ajar if the applicant can show no one else’s interests are affected.

However, even though the Land Rights Act does not require informed consent where interests in land are not granted, I am sure the drafters would not have intended individual traditional owners to benefit from CFI projects without making an agreement with the others. Certainly, my experience working at a Land Council was that informed consent was the principle for all consultations.

Whether or not an interest in land is required for any deal, the principle of informed consent from the landowner seems like a good one to uphold. That is what the Aboriginal Carbon Fund will be doing – better to sort out governance up front than have it bite your bum later.


Review: Identifying Opportunities for Aboriginal South Australians

The SA Government Department of Primary Industries and Regions SA has taken a step forward for Aboriginal carbon farming by releasing a report on Identifying Opportunities for Aboriginal South Australians. The report was made by Rural Solutions SA.

The report's main findings are that:

  • projects are most likely to be implemented when they support existing land management objectives
  • of 7 suitable activities, human induced regeneration is the activity with the highest potential
  • there is a need for further information and capacity building.

The report identifies 7 activities as suitable for broad application on Aboriginal land, including 3 on feral animals as well as soil carbon and patch burning.

Unfortunately, the report does not explain how it arrived at this conclusion. For example, the activity found with most potential, human induced regeneration (controlling ferals and weeds etc), may have high potential on 21,602,250 ha of Aboriginal land, but there is no analysis to support this. At present, there is only one regeneration methodology which is for forest regrowth only - it would be useful to know how much Aboriginal land this methodology would apply to. Rangelands regeneration would appear to have broader application in SA but this was not discussed and methodologies for this are still under development (AbCF is involved in developing).

On the other activities, a group is working on feral animal management, but none of ferals, soil carbon and patch burning currently have approved methodologies - patch burning does seem like a long shot in SA. The activity analysis in the report is limited.

The report lists a number of challenges to carbon farming and suggests sharing information at an Aboriginal leaders' forum as a way to move forward. Unfortunately, however, the report does not shed light on key issues such as Aboriginal land and forest property agreements and how projects could proceed on pastoral land given Crown ownership of carbon.

The report helpfully notes a number of things to think about and adds to the suite of information for Aboriginal carbon farmers that is becoming available - see our Online Resources for more.


Native Title Conference 2013

Rowan and I attended the Native Title Conference this week. In addition to a very warm welcome and a taste of the incredible dirtsong, the conference continued the series of carbon panels it started in 2011.  

This year, Emily Gerrard from Allens and the National Indigenous Climate Change Project hosted, with presentations from Shaun Ansell from the Indigenous Land Corporation on Fish River, Tom Holyoake on developments in the Kimberley and our own Rowan Foley talking about carbon as a business that needs long term relationships.

Impressive to the Indigenous Land Corporation leading the way and showing it can be done - Shaun gave a nice presentation identifying all the steps from purchase of the property in 2010 to selling their credits. Shaun emphasised the lesson from all of this: be conservative in your assessments.

Hopefully others can now follow the path and add carbon to their business. 


Arrernte dancers at the warm welcome

Arrernte dancers at the warm welcome