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
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?
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.