The Clean Energy Regulator has developed guidance that explores how the
Native Title Act 1993 interacts with Emissions Reduction Fund requirements, including obtaining legal right and consents from all eligible interest-holders to undertake a project.
If you are applying to register an area-based emissions avoidance project or a sequestration project under the Emissions Reduction Fund, you must seek the consent of any persons or organisations holding an eligible interest in the land on which your project will run. Failure to do so will result in non-compliance.
There are two types of projects conducted under the Emissions Reduction Fund where a project owner will require eligible interest-holder consent:
The Clean Energy Regulator requires eligible interest-holder consent in two situations:
An eligible interest-holder under the Emissions Reduction Fund is a person or organisation that has a specific legal interest in the land on which a project is being, or will be, conducted. A complete listing of eligible interest-holders is provided in sections 43 to 45A of the
Carbon Credits (Carbon Farming Initiative) Act 2011.
The number and type of eligible interest-holders will vary depending on the nature of the land title and project type, but will generally include those persons or organisations listed on land titles as having an interest in the property. These persons and organisations may include, but are not limited to, financial institutions that hold a mortgage over the land, registered native title bodies corporate, or in the case of Crown land, the relevant Minister.
Project owners need to be aware that in some circumstances eligible interest-holders will not grant consent for a project to take place on land in which they have an interest. In these cases, the project may need to be varied or voluntarily revoked.
In addition to considering what eligible interest-holders you may need to consult, projects that have native title considerations will also need to consider how the
Native Title Act 1993 interacts with scheme requirements. See more about
legal right and
Owners of area-based emissions avoidance or sequestration projects must seek the consent of eligible interest-holders and submit to the Clean Energy Regulator signed consent forms from each eligible interest-holder.
eligible interest-holder consent form is a legal document. It confirms that eligible interest-holders understand the details of the proposed project, including any risks and benefits to them resulting from the project.
An eligible interest-holder consent form is not required from a party to an Indigenous land use agreement if that agreement includes consent to the making of an Emissions Reduction Fund project application on the project land. If that consent is set out in a registered Indigenous land use agreement, then for so long as the project is registered as an Emissions Reduction Fund project details of the agreement must not be removed from the Register of Indigenous Land Use Agreements without the written consent of the Clean Energy Regulator.
If a project owner has not obtained signed consent forms from each eligible interest-holder before submitting their project for registration, only conditional registration will be granted.
If a project is granted conditional registration, the project owner must provide signed eligible interest-holder consent forms to the Clean Energy Regulator before the end of their first reporting period. Failure to do so may result in the project owner not receiving Australian Carbon Credit Units (ACCUs).
Those project owners with a contract with the Australian Government to deliver ACCUs on particular dates must ensure they can meet their obligations. If they are unable to obtain eligible interest-holder consent or if consent is delayed, ACCUs may not be issued in time to fulfil their contracted obligations.
It is vital to plan ahead and allow ample time to prepare your first report, facilitate an audit, obtain eligible interest-holder consent forms and submit the report. Early consultation with the Clean Energy Regulator will assist your understanding of the costs, benefits and obligations associated with your project.
The Clean Energy Regulator’s
processing times for applications and reports need to be factored into your planning.
Yes, you can participate in an auction but the Clean Energy Regulator requires a conditions precedent be included in your contract. The conditions precedent will require you to obtain the eligible interest-holder consents prior to your ACCU delivery obligations commencing.
The Clean Energy Regulator and the contractor must agree on the
conditions precedent. More information is available at understanding
Giving of consent by an eligible interest-holder does not:
This document provides general guidance concerning legal rights in the context of Emissions Reduction Fund projects. While reasonable steps have been taken in compiling this document, the Clean Energy Regulator accepts no responsibility for the accuracy, currency or completeness of the information contained in the document.
The Clean Energy Regulator recommends persons consult the relevant legislation and seek legal or professional advice concerning their circumstances if they have any doubts.
The Clean Energy Regulator is not engaged in providing legal or professional advice in making this document available.
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