Rights and Interests in Land Created under the Carbon Credits Act 2011 (Cth): Theoretical and Practical Issues

The Commonwealth Government pays financial incentives from the 'Emissions Reduction Fund' to entities that agree to implement eligible projects to mitigate greenhouse gas emissions, including projects that involve sequestration of carbon in trees and soil. Under the enabling legislation, the Registrar of Titles is empowered to make entries or notations on the register to identify the existence of projects, or when use and enjoyment of the land may be restricted for the purpose of meeting statutory requirements. While it is unlikely that these provisions evidence legal or equitable interests that have been created in land associated with projects supported by Emissions Reduction Fund, in some circumstances they may evidence mere equity interests that bind third parties with adequate notice or by operation of law. Notwithstanding that register entries made under the Carbon Credits Act largely encourage administrative efficiency and satisfaction of key contractual obligations between the Commonwealth and the project contractor, they nonetheless create numerous practical issues that must be addressed by interested persons dealing with land.