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21 June 2018

Native title, legal right and eligible interest-holder consent guidance available

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.

Native title refers to the bundle of rights and interests in land and waters that Aboriginal and Torres Strait Islander people can hold under traditional laws and customs. Native title may exist over an area at common law even if native title rights have not been formally recognised (or determined) by a court.

Area-based Emissions Reduction Fund projects subject to native title law must consider native title holder interests—particularly with regard to satisfying legal right and eligible interest-holder consent compliance obligations for the project.

Area-based projects can also provide material benefits to both native title groups and project proponents where these parties are not the same. However, these benefits may only be realised if there is genuine, early engagement with Indigenous communities and native titleholders affected by a project.

The process for recognising native title rights and interests is set out in the Native Title Act 1993.

Native title and legal right

If you are undertaking an area-based project over a project area for which native title determinations or native title claims exist, there may be implications to consider under the Carbon Credits (Carbon Farming Initiative) Act 2011 and the Native Title Act 1993. Native title determinations and claims may also affect your legal right to carry out your project.

Native title holders approached by scheme participants, or who wish to be involved in the Emissions Reduction Fund, should familiarise themselves with the material covered by the Native title, legal right and eligible interest-holder consent guidance, consider legal, cultural and commercial aspects of the proposed project, and seek independent professional advice.

Guidance available

In November 2017, the Clean Energy Regulator released draft guidance for stakeholder consultation to explore how the Native Title Act 1993 intersects with eligibility requirements for area-based projects under the Emissions Reduction Fund. After a consultation period, the Clean Energy Regulator released the final guidance about native title, legal right and eligible interest-holder consent considerations under the Emissions Reduction Fund on 21 June 2018.

The guidance was developed in consultation with key stakeholders, including:

  • Indigenous land councils and other indigenous bodies
  • Pastoralists
  • Emissions Reduction Fund agents and aggregators
  • Registered Greenhouse and Energy Auditors, and
  • State and territory governments.

Scheme participants who carry out an area-based Emissions Reduction Fund project must have the legal right to undertake their project, obtain consents from all eligible interest-holders, and hold all required regulatory approvals for the project before they can receive Australian carbon credit units. This guidance is designed to assist participants with area-based projects understand their legal right and eligible interest-holder consent requirements, and clarify expectations for projects that have native title considerations.

Additional project resources have been developed to help participants (proponents) establish and demonstrate legal right, and should be used in conjunction with the main guidance document. Scheme participants, or ‘project proponents’, include registered native title bodies corporate, traditional owners, pastoralists or any other party including an aggregator or agent.

Download document

Documentasset::Native title, legal right and eligible interest-holder consent guidance

Documentasset::Project resource 1: State and territory land law and summary of land rights law

Documentasset::Project resource 2: How does a project proponent demonstrate legal right

Documentasset::Project resource 3: Identifying land subject to native title

For more information, see legal right and eligible interest-holder consent.

Disclaimer

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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