Legal issues in carbon farming : biosequestration, carbon pricing, and carbon rights

This paper critically analyses the proposed Australian regulatory approach to the crediting of biological sequestration activities (biosequestration) under the Australian Carbon Farming Initiative and its interaction with State-based carbon rights, the national carbon-pricing mechanism, and the international Kyoto Protocol and carbon-trading markets. Norms and principles have been established by the Kyoto Protocol to guide the creation of additional, verifiable, and permanent credits from biosequestration activities. This paper examines the proposed arrangements under the Australian Carbon Farming Initiative and Carbon Pricing Mechanism to determine whether they are consistent with those international norms and standards. This paper identifies a number of anomalies associated with the legal treatment of additionality and permanence and issuance of carbon credits within the Australian schemes. In light of this, the paper considers the possible legal implications for the national and international transfer, surrender and use of these offset credits.

A legal perspective of carbon rights and benefit sharing under REDD+: A conceptual framework and examples from Cambodia and Kenya

This article discusses two key issues in REDD+ design and implementation at the national level – carbon rights, and benefit sharing. Both carbon rights and benefit sharing can be understood as new legal concepts (although they build on existing law), and as legal concepts they offer a framework for addressing related areas of REDD+ policy. Many countries are currently considering how to manage carbon rights and benefit sharing issues, including Cambodia and Kenya. Both of these countries host existing forest carbon projects and are also in the process of designing national REDD+ programmes. This article uses a conceptual framework for carbon rights and benefit sharing derived from legal analysis to consider the cases of both Cambodia and Kenya, and also includes a general discussion of the challenges countries might encounter when considering how to manage carbon rights and benefit sharing in the context of REDD+ implementation.

Australia and Forest Carbon Partnerships : Indigenous Land Rights

One of the ways in which indigenous communities seek justice is through the formal recognition of their sovereign rights to land. Such recognition allows indigenous groups to maintain a physical and spiritual connection with their land and continue customary management of their land. Indigenous groups world over face significant hurdles in getting their customary rights to land recognized by legal systems. One of the main difficulties for indigenous groups in claiming customary land rights is the existence of a range of conflicting legal entitlements attaching to the land in question. In Australia, similar to New Zealand and Canada legal recognition to customary land is recognized through a grant of native title rights or through the establishment of land use agreement. In other jurisdictions such as Indonesia and Papua New Guinea a form of customary land title has been preserved and is recognized by the legal system. The implementation of REDD+ and other forms of forest carbon investment activities compounds the already complex arrangements surrounding legal recognition of customary land rights. Free, prior and informed consent of indigenous groups is essential for forest carbon investment on customary land. The attainment of such consent in practice remains challenging due to the number of conflicting interests often associated with forested land. This paper examines Australia’s experience in recongising indigenous land rights under its International Forest Carbon Initiative and under its domestic Carbon Credits (Carbon Farming Initiative) Act (Australia) 2011. Australia’s International Forest Carbon initiative has a budget of $273 million dollars. In 2008 the governments of Australia and Indonesia signed the Indonesia-Australia Forest Carbon Partnership Agreement. This paper will examine the indigenous land tenure and justice lessons learned from the implementation of the Kalimantan Forest and Climate Partnership (KFCP). The KFCP is $30 million dollar project taking place over 120,000 hectares of degraded and forested peatland in Central Kalimantan, Indonesia. The KFCP project site contains seven villages of the Dayak Ngdu indigenous people. In 2011 Australia established a domestic Forest Carbon Initiative, which seeks to provide new economic opportunities for farmers, forest growers and indigenous landholders while helping the environmental by reducing carbon pollution. This paper will explore the manner in which indigenous people are able to participate within these scheme noting the limits and opportunities in deriving co-benefits for indigenous people in Australia under this scheme.

Real estate issues associated with the implementation of a carbon trading framework : a rural landholders perspective

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change and the subsequent Kyoto Protocol which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. The Australian Government has responded by initiating the Garnaut Climate Change Review which in its final report, proposed that an emissions trading scheme be introduced and set out some of the desirable features of such a trading scheme. This proposal has been the subject of much debate and at this stage there still seems to be little clarity surrounding the topic of emissions trading in Australia. The treatment of rights to carbon sequestered in vegetation is also an issue when reconciled with the system of land tenure and ownership in many jurisdictions. These carbon property rights are treated differently in different Australian and international jurisdictions ranging from recognition of their new and unique nature to fitting them within a more established common law framework, e.g.a profit a prendre. This paper identifies the treatment of these sequestered carbon rights within the wider property rights framework in Australia and considers issues that this treatment may inflict on land holders when there is a fracturing of ownership between the rights of the carbon in vegetation and the ownership of the land.

Legal liability for carbon capture and storage in Australia : where should the losses fall?

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

Assessment of the application of contingent valuation theory to bio-sequestered carbon

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change (United Nations 1992 at page 1414) and the subsequent Kyoto Protocol (United Nations Climate Change Secretariat 1998) which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. Australian states have responded by creating a legal framework for the recognition of rights to bio-sequestered carbon. There is a lack of uniformity in the approach of each state to the recognition of these rights, which vary from the creation of new and novel interests in land to the adoption of more traditional rights such as a profit a prendre. Rights to bio-sequestered carbon are likely to have an impact on the utility, marketability, value and financing of rural land holdings. Despite the creation of the legal framework for recognition of rights to sequestrated carbon, there has been a delay in the introduction of a formalised carbon trading scheme in Australia. In the absence of an established carbon market, this paper addresses the applicability of contingent valuation theory to assess the value of bio-sequestered carbon rights to a rural land holder. Limitations and potential controversies associated with this application of contingent valuation theory are also addressed in this paper.

Carbon sequestration: Evaluating the impact on rural land and valuation approach

This thesis uses semi-structured interviews and documentary analysis to explore the impact of carbon sequestration rights on rural land in Queensland and to determine whether current rural valuation knowledge and practice is equipped to deal with these rights. The carbon right in Queensland is complex and subject to significant individual variation. The nature and form of this right will determine whether it has a positive or negative impact on Queensland rural land. Significant gaps in the knowledge of industry stakeholders, including rural valuers, concerning carbon rights were found, and recommendations for valuation practice were made.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The Australian response to climate change : business as usual or legal innovation?

Through international agreement to the United Nations Framework Convention on Climate Change and the Kyoto Protocol the global community has acknowledged that climate change is a global problem and sought to achieve reductions in global emissions, within a sufficient timeframe, to avoid dangerous anthropogenic interference with the climate system. The sheer magnitude of emissions reductions required within such an urgent timeframe presents a challenge to conventional regulatory approaches both internationally and within Australia. The phenomenon of climate change is temporally and geographically challenging and it is scientifically complex and uncertain. The purpose of this paper is to analyse the current Australian legal response to climate change and to examine the legal measures which have been proposed to promote carbon trading, energy efficiency, renewable energy, and carbon sequestration initiatives across Australia. As this paper illustrates, the current Australian approach is clearly ineffective and the law as it stands overwhelmingly inadequate to address Australia’s emissions and meet the enormity of the challenges posed by climate change. Consequently, the government should look towards a more effective legal framework to achieve rapid and urgent transformations in the selection of energy sources, energy use and sequestration initiatives across the Australian community.

Proposed REDD+ project for the Sundarbans : legal and institutional issues

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

REDD+ and mangroves : a study on Sundarbans

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

From rights to responsibilities : reconceptualising carbon sequestration rights in Australia

Biosequestration of carbon in trees, forests and vegetation is a key method for mitigating climate change in Australia. To facilitate this, all States have enacted legislation for carbon sequestration rights, separating commercial rights in carbon from ownership of the land, trees and vegetation in which the carbon is sequestered. Ownership of carbon sequestration rights under state law is a prerequisite for the issue of carbon credits to proponents of ‘eligible sequestration offsets projects’ under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (‘Carbon Farming Act’). This article examines the extent to which current State carbon sequestration rights support the offsets regime established by the Carbon Farming Act. The Commonwealth Act is concerned with allocating responsibilities to ensure the maintenance of the carbon sequestration, while the State Acts confer commercial rights in the carbon and leave the responsibilities to be allocated by private agreements. The carbon sequestration rights as defined by state laws do not confer the rights of access and management over land that a project proponent needs in order to discharge its responsibilities to maintain the carbon sequestration.

Soil carbon saturation : implications for measurable carbon pool dynamics in long-term incubations

The efficiency of agricultural management practices to store SOC depends on C input level and how far a soil is from its saturation level (i.e. saturation deficit). The C Saturation hypothesis suggests an ultimate soil C stabilization capacity defined by four SOM pools capable of C saturation: (1) non-protected, (2) physically protected, (3) chemically protected and (4) biochemically protected. We tested if C saturation deficit and the amount of added C influenced SOC storage in measurable soil fractions corresponding to the conceptual chemical, physical, biochemical, and non-protected C pools. We added two levels of C-13- labeled residue to soil samples from seven agricultural sites that were either closer to (i.e., A-horizon) or further from (i.e., C-horizon) their C saturation level and incubated them for 2.5 years. Residue-derived C stabilization was, in most sites, directly related to C saturation deficit but mechanisms of C stabilization differed between the chemically and biochemically protected pools. The physically protected C pool showed a varied effect of C saturation deficit on C-13 stabilization, due to opposite behavior of the POM and mineral fractions. We found distinct behavior between unaggregated and aggregated mineral-associated fractions emphasizing the mechanistic difference between the chemically and physically protected C-pools. To accurately predict SOC dynamics and stabilization, C Saturation of soil C pools, particularly the chemically and biochemically protected pools, should be considered. (C) 2008 Elsevier Ltd. All rights reserved.

Soil carbon saturation : evaluation and corroboration by long-term incubations

Although current assessments of agricultural management practices on soil organic C (SOC) dynamics are usually conducted without any explicit consideration of limits to soil C storage, it has been hypothesized that the SOC pool has an upper, or saturation limit with respect to C input levels at steady state. Agricultural management practices that increase C input levels over time produce a new equilibrium soil C content. However, multiple C input level treatments that produce no increase in SOC stocks at equilibrium show that soils have become saturated with respect to C inputs. SOC storage of added C input is a function of how far a soil is from saturation level (saturation deficit) as well as C input level. We tested experimentally if C saturation deficit and varying C input levels influenced soil C stabilization of added C-13 in soils varying in SOC content and physiochemical characteristics. We incubated for 2.5 years soil samples from seven agricultural sites that were closer to (i.e., A-horizon) or further from (i.e., C-horizon) their C saturation limit. At the initiation of the incubations, samples received low or high C input levels of 13 C-labeled wheat straw. We also tested the effect of Ca addition and residue quality on a subset of these soils. We hypothesized that the proportion of C stabilized would be greater in samples with larger C Saturation deficits (i.e., the C- versus A-horizon samples) and that the relative stabilization efficiency (i.e., Delta SCC/Delta C input) would decrease as C input level increased. We found that C saturation deficit influenced the stabilization of added residue at six out of the seven sites and C addition level affected the stabilization of added residue in four sites, corroborating both hypotheses. Increasing Ca availability or decreasing residue quality had no effect on the stabilization of added residue. The amount of new C stabilized was significantly related to C saturation deficit, supporting the hypothesis that C saturation influenced C stabilization at all our sites. Our results suggest that soils with low C contents and degraded lands may have the greatest potential and efficiency to store added C because they are further from their saturation level. (c) 2008 Elsevier Ltd. All rights reserved.