legal

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. 

Jeremy

Torres Strait winning on resources

Torres Strait Islanders got a win in the High Court this week: their native title right "to take [resources] for any purpose" - including commercial purposes - was found not to be extinguished.

The case basically means the Islanders can keep on fishing as part of native title, but if they do want to sell it,  they will have to get a licence like anyone else.

The case was a bit of a rerun of Yanner where Mr Yanner was charged for taking a croc without a licence. The High Court said that was fine for a bit of family tucker. 

This week's case probably doesn't change much for the Islanders, but it does reaffirm the principle that native title could include a commercial element and the courts will only find that native title is extinguished in very clear cases.

Lauren Butterly thinks such a decision should give Indigenous people a broader say in marine governance.

This got me thinking about carbon rights, which is generally a right to benefit from the carbon on the land. It's another kind of resource right with a modern commercial take.

The difference with carbon rights is that nothing in the Federal scheme says you have to have a special carbon right registered to play (unlike Qld fishing law) - you just have to have the right to the carbon however so. For example, you could just have a freehold. Or you could have exclusive possession native title.

This week's decision might make it easier for native title holders to assert rights to carbon on their land. And this might help to get a bigger say on land governance. Not to mention a few more dollars from managing land for carbon.

There are a few issues to play out on Indigenous land and carbon projects, but the Torres Strait case keeps things moving in a positive direction. 

Jeremy

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.

Jeremy