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10 November 2021
Method Development
Clean Energy Regulator
GPO Box 621
Canberra ACT 2601
Via upload at: https://consult.industry.gov.au/blue-carbon-method/have-your-say
Dear Sir / Madam,
Re: Submission in relation to the proposed new Blue Carbon method under the ERF (DRAFT Carbon
Credits (Carbon Farming Initiative - Tidal Restoration of Blue Carbon Ecosystems) Methodology
Determination 2021)
The Kimberley Land Council (KLC) is the recognised Native Title Representative Body for the Kimberley
region in WA. The KLC actively facilitates the registration and operation of Indigenous carbon projects
on behalf of native title holders and other Kimberley Aboriginal people, including those holding
pastoral leases. All projects supported by the KLC are owned directly by Traditional Owners (via the
relevant PBC / Aboriginal Corporation). All revenue from these projects goes back to the proponents,
is re-invested, and contributes directly to the regional economy, Aboriginal employment, PBC
governance and capacity development, as well as ongoing and improved project operations and the
co-benefits generated as a result.
The KLC has a long history of engaging in climate change policy and carbon method development,
working with the Australian Government on the development of the Carbon Farming Initiative, the
Direct Action Plan and Emission Reduction Fund (ERF), and sharing experience in implementing carbon
projects through the Indigenous Carbon Industry Network (ICIN), International Savanna Fire
Management Initiative (ISFMI), and other national and global forums.
While carbon projects offer significant opportunities for Aboriginal people, for more sustainable land
management, and for climate change mitigation, conversely, without proper consultation and
appropriate checks and balances that ensure the principles of free, prior and informed consent (FPIC),
there is a risk of projects contributing to the disempowerment of Aboriginal people. Importantly, in
developing carbon policy, it is crucial to note the distinction between native title rights and interests,
and those of other interest holders. While native title specifically recognises the unique connection of
Aboriginal people to country, it is often not afforded the same protections as other interests in land
or water (e.g. it cannot be registered on title). For this reason, legislation which creates incentives for
third parties to use and benefit from activities on areas subject to native title rights and interests must
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Submission: ERF Method for Tidal Restoration of Blue Carbon Ecosystems provide positive protections for native title holders. As recognised by the Federal Court of Australia,
activities under the ERF have a clear capacity to interfere with Aboriginal peoples’ rights and interests
in areas of their traditional country, and therefore trigger the need for such protections.
In light of the above and given the close connection of Indigenous people to coastal and sea country
in the Kimberley and beyond, the KLC appreciates the opportunity to provide comment and
recommendations in relation to the draft Carbon Credits (Carbon Farming Initiative — Tidal
Restoration of Blue Carbon Ecosystems) Methodology Determination 2021 (the Method), noting that
it is likely to be the first of many Blue Carbon methods and will therefore set a framework and
precedent in relation to issues previously unexplored under the ERF, such as impacted land areas
outside the registered project area and the impact of sea level rise during the permanence period.
1. “Relevant Landholders” in relation to impacted areas
The Method duly takes into account Relevant Landholders in relation to Impacted areas outside of the
registered project area, and requires evidence of their consent as part of the Project Application (s18),
amongst other rights (notice of proposed activity, agreement to operation and maintenance plans
etc.).
Given the significance, potential magnitude and likely near-term irreversibility of Blue Carbon project
impacts through flooding of impacted areas, and the resulting impact on any existing and/or future
native title rights and interests, consent should be required from all native title holders (whether they
hold exclusive or non-exclusive rights and interests) as well as registered native title claimants in
relation to impacted areas.
As per draft s18, evidence of such consent should be required at the time and as part of the project
application. This ensures that any activity and resulting impacts have not commenced by the time
consent is sought.
Due regard to native title rights and interests could be achieved by extending and making explicit the
definition of ‘Relevant Landholder’ at s5 of the Method to include:
i. [for the avoidance of doubt] Exclusive possession native title holders;
ii. Non-exclusive possession native title holders; and
iii. Registered native title claimants.
Relatedly, the Method or – at a minimum – Simple Method Guide, should specify that, where the
declaration of a Blue Carbon project is a Future Act under the Native Title Act 1993 (Cth) (NTA), this
may give rise to certain procedural rights for native title holders or claimants and may require an
Indigenous Land Use Agreement (ILUA) to evidence consent.
In summary, ‘relevant landholders’ in relation to ‘impacted’ areas should explicitly include
exclusive possession native title holders, holders of non-exclusive possession native title, as well
as registered native title claimants, whose written consent shall be required by the time and as
part of the project application.
2. Inclusion of registered native title claimants for the purposes of legal right and consent
Under the CFI Act, a (proposed) project proponent must maintain the exclusive legal right for the
duration of the project’s permanence period.
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Submission: ERF Method for Tidal Restoration of Blue Carbon Ecosystems
Currently, the ERF (through the CFI Act) provides protections and rights for Registered Native Title
Body Corporates (RNTBCs) on behalf of native title holders only, but excludes registered native title
claimants. Given the fact that a native title determination does not create new native rights, but
confirms the existence (subject to extinguishment) of existing native title rights, registered native title
claimants at the time of project registration should be afforded the same rights as native title holders
who have received a determination.
This approach would be consistent with the approach taken in the NTA, and improve project integrity,
as it would ensure future rights holders have given permission (legal right) for and consented to any
(future) potential impact on their land (as may be projected by Hydrological Assessments) as well as
the application of a carbon maintenance obligation.
In summary, as the project proponent must maintain legal right for the duration of the permanence
period for a project, in light of the significance of impact of a Blue Carbon project (flooding), and in
line with the principles of free, prior and informed consent (FPIC), the Method should include a
requirement (broader than that in the CFI Act) for registered native title claimants to be consulted
and for their permission and consent for the project to be sought, and for this to happen prior to its
registration/declaration.
3. Timing of Eligible Interest Holder consent
As per the CFI Act, eligible Interest Holder (EIH) consents are currently required by the end of the
first reporting period, which for a Blue Carbon sequestration offsets project can be just under seven
years after project registration. During this time, the main project activity, i.e. the removal of the
tidal restriction mechanism, would have taken place and its likely significant, irreversible impact on
the landscape and therefore the rights and interests of EIH holders, including Native Title holders
and claimants, would have started to materialise.
This is especially poignant in light of the fact that, since the ability to obtain consent after project
declaration was introduced in 2014, a significant share of projects under the ERF have been revoked
due to a failure to obtain this consent. The practice of only seeking approval (consent) after
committing to an activity (through project registration) is neither common nor best business
practice, and risks significantly undermining the integrity of the scheme. Within an Indigenous
context, it undermines relationships, disempowers Aboriginal people by precluding FPIC, and creates
a significant power imbalance.
It is therefore imperative that the Method require EIH consents to be provided prior to registration,
at the time and as part of the project application, so that they are confirmed by the CER to be in
place at the time of project declaration – similar to consents from ‘relevant landholders’ of impacted
areas outside of the project area.
(Note that there may be a possibility to make an explicit distinction between native title consent and
that of banks and other interest holders, whose consent may be appropriate to negotiate later.)
In summary, for Blue Carbon projects in particular, given their significant impact, it is crucial that
native title EIH consents be a prerequisite for project declaration and that evidence be provided to
the CER at the time of project application, rather than at the end of the first reporting period
(potentially years later and after the main activity has taken place).
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Submission: ERF Method for Tidal Restoration of Blue Carbon Ecosystems
4. Blue Carbon sequestration offsets projects as Future Acts
Blue Carbon projects, which are sequestration offsets projects, have the potential to significantly and
irreversibly impact Indigenous rights and interests, both within the project area and in surrounding
impacted areas.
The registration of a Blue Carbon project on native title land is therefore likely to be a Future Act,
triggering rights and processes under the NTA, such as a requirement for ILUAs to obtain and
demonstrate consent from native title holders and/or claimants for the project area and any impacted
areas, prior to project registration.
In relation to the project area, the declaration of a sequestration project gives rise to a statutory power
for the CER to issue a Carbon Maintenance Obligation (CMO) over the project. As a CMO has the power
to affect native title rights and interests by granting the CER a contingent right to control activities
over that land area, the declaration of a sequestration project is therefore a Future Act. The procedural
rights and processes which apply will depend on the application of Part 2, Division 3 of the NTA.
Additionally, in relation to both the project area and any impacted area(s), s24MD of the NTA requires
that, for acts which pass the freehold test, native title holders must be given the same procedural
rights as other holders of exclusive possession title (freehold) – including permission (legal right) and
consent rights.
It is recommended that an ILUA is the most appropriate form to evidence native title permission for
sequestration projects, particularly in light of permanence obligations, as an ILUA binds future
generations. The ILUA must be obtained prior to the Future Act which is the project declaration.
As per point 2. above, this should apply to exclusive and non‐exclusive possession native title holders
as well as registered native title claimants.
For completeness, the following should be noted in regards to broader implications of this policy area:
• If an ILUA is not obtained prior to project declaration, the CER is limiting its ability to issue a
CMO in the future. This risks undermining the integrity of the ERF as a whole, as the regulating
body is not able to exercise its enforcement powers and thereby ensure carbon stocks remain
sequestered.
• The approach of requiring an ILUA for sequestration projects would bring the carbon industry
in line with the practice of other industries operating on native title land, including pastoralism
and mining. It would also ensure compliance with the United Nations Declaration on the
Rights of Indigenous Peoples.
In summary, the CER should note and provide appropriate guidance that registrations of Blue
Carbon (sequestration) projects are likely to be Future Acts under the Native Title Act, triggering
certain procedural rights.
5. Facilitating informed consent, awareness, accessibility and adoption of the Method
• Evidence should be required, at the time and as part of project registration, that both eligible
interest holders and ‘relevant landholders’ (as per expanded definition above) have
received any and all relevant information – including hydrological assessments, proposed
project application documents etc – to make an informed decision about providing permission
and/or consent in line with best practice FPIC processes.
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Submission: ERF Method for Tidal Restoration of Blue Carbon Ecosystems
Relatedly, the CER should require evidence that both eligible interest holders and ‘relevant
landholders’ have had sufficient time and resources to access independent legal and/or
technical advice to inform their consent in relation to the proposed project.
Lastly, project proponents should be required to share updated hydrological assessments
and other relevant information throughout the project’s permanence period with both
eligible interest holders and ‘relevant landholders’.
• The Simple Method Guide and the Supplement should explicitly highlight the need for
inclusion of Native Title Determination and Native Title Claim boundaries within Project
Extent Maps (refer Draft Simple Method Guide Section 1.4 (p.19) and Draft Supplement Part
A, Requirement 3.(c) (p.3)).
• The CER’s eligible interest holder and any relevant landholder consent forms should include a
note highlighting the evolving science underlying the Method, and warning of the resulting
potential for projected project impacts to change during (and after) the permanence period.
• The CER should release guidance in relation to other ERF projects being able to be registered
in future on land considered impacted by any potential Blue Carbon project; e.g. would
registration of a human-induced regeneration project be precluded even if flooding was only
projected to occur after the HIR project’s permanence period?
• Given the complexity of the Method and barriers to Indigenous participation in the ERF, in
order to level the playing field and ensure equal access for small / individual proponents,
including and in particular Indigenous groups, the CER should commit to mapping project
potential under the Method, work with State and Territory governments to provide project
start-up resources, and work with the Native Title Representative Bodies and ICIN to
develop relevant information resources.
The KLC looks forward to continuing to provide input into method development processes going
forward, in order to help ensure appropriate Indigenous stakeholder consultation and input – from a
technical / land management as well as native title / legal perspective.
Should you have any questions in regards to this submission, please do not hesitate to get in contact.
Sincerely,
TYRONNE GARSTONE
CEO
Kimberley Land Council
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