Legal rights

Invaluable knowledge for a changing planet

It is estimated that there are more than 476 million self-identified indigenous people in some 90 countries around the world. But far too often they continue to face discrimination and their voices go unheard.

Indigenous peoples have a special role to play in the conservation and sustainable management of natural resources. Their deep, diverse and locally-rooted knowledge can help the world adapt to and mitigate the effects of climate change. 

Indigenous peoples have unique food systems based on sustainable livelihood practices adapted to the specific ecosystems of their territories.

Indigenous women, in particular, have untapped potential as stewards of natural resources and biodiversity. They are guardians of cultural diversity and peacemakers in conflict resolution.

Free, Prior and Informed Consent (FPIC)

Aboriginal title refers to the rights and interests First indigenous people have in land and waters based on their traditional laws. Even if these rights haven't been officially recognised by a court, they may still exist. 

Free, Prior and Informed Consent (FPIC) is a specific right of indigenous peoples recognised in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which is consistent with their universal right to self-determination. If you're planning an area-based project where there are Aboriginal title claims, there are legal implications under the BidCarbon (Carbon Farming) Standard and the UN Declaration on the Rights of Indigenous Peoples. Aboriginal title claims may affect your legal right to carry out your project.

If you hold aboriginal title and want to run a project or are approached by another BidCarbon Standard Scheme participant, you should:

● check the guidelines on aboriginal title, legal rights and consent

● consider the project's cultural and legal aspects

● check if a project area overlaps with land subject to aboriginal title

● seek professional advice.

To be eligible to undertake an BidCarbon Standard Scheme project, you must have:

● permission to perform the project activities on or for the sites or assets included in the project, and

● a lawful and exclusive right to receive all BidCarbon removal units (BRUs) generated as a result of the project activities.

When you have an exclusive right to something, it means that no other person can lawfully claim that right.

Obtaining the legal right to carry out the project activities on the site or assets included in the project, and having the lawful and exclusive right to be issued BRUs, does not replace or include obtaining relevant regulatory approvals or permits to undertake the project activities.

Project registration does not qualify as an approval to proceed with an activity; it exclusively confers entitlement to gain BidCarbon removal units (BRUs) upon successful emissions reduction.

Elements of legal right

You need to establish legal right before you can register a project. You will need to demonstrate your legal right:

● when you register the project

● if you want to vary a project

● with project offsets reports.

You must provide evidence that you hold or have acquired legal right through a written agreement, such as a commercial contract. You also need to maintain records showing how you have, or obtained, legal right to carry out the project. This includes the steps you took, any advice received and who you consulted with.

During audits, you may have to provide evidence of legal right, eligible interest-holder consents and regulatory approvals.

Eligible interest-holder consent

For area-based emissions avoidance or sequestration projects, you also need to seek consent from any person or organisation that has an eligible interest in the land the project will run on.

Find out more about eligible interest-holder consents.

When you must demonstrate legal right

To acquire the legal right to carry out the project you should consider all the stakeholders involved or impacted by the project. The BidCarbon Standard Scheme project may pique the interest of owners, lessees, and service providers, whose agreements with one another may determine their legal rights.

In any commercial agreement, parties have the option to transfer the legal right to execute the project to any involved party, which may include aggregators or service providers (refer to diagram below). The diagram below illustrates the transfer of legal rights in the specific direction.

Owner

Lessee

Service provider

It is the participant's responsibility to ensure that their project does not overlap with another project under the BidCarbon Standard Scheme. Do not allow duplication of emission reductions counts.

Transparency with stakeholders about your intention to run a BidCarbon Standard Scheme project is essential. Once a project is registered, no other person can register a project with the same activity or overlapping activities at the same project site or assets.

The Technical Review Committee (TRC) will assess whether an individual has the legal right to undertake a project during registration. This assessment is dependent on the information provided and is not intended to be evidence of legal entitlement. The Foundation and its procedures do not create or validate legal rights.

Who provides you with legal right?

Your legal entitlement to conduct the project on or for the included sites or assets must persist for a duration that is no less than the crediting period for the project. Typically, this will be seven years for emissions avoidance projects and 25 years for sequestration projects.

What is the duration of legal right?

If your project is registered and for any reason your legal right to carry out the project or your responsibility for it ceases, you must notify The Technical Review Committee (TRC) within 90 days. The Technical Review Committee may revoke the project’s registration if the person with responsibility for the project is not registered as a participant for the project within 90 days after the cessation occurs. Where revocation of a sequestration project’s registration occurs before expiry of its permanence period, the Technical Governance Committee may also require you to relinquish a certain number of BRUs. A relinquishment notice will not exceed the total number of BRUs issued for the project.

If you have registered as a participant in a project and someone else gains your legal right to carry out the project, you will need to apply to the Technical Governance Committee to transfer the project registration to that person's name. The Technical Governance Committee may approve your application and effect the change. As a prerequisite for granting the application, the Technical Governance Committee may require you to provide security regarding the fulfillment of any prerequisites to surrendering BRUs imposed on you. This security can be in the form of a bank guarantee, a letter of credit issued by a bank, or a bond, among others.

What happens if circumstances change?

When submitting a project registration to the Technical Review Committee, it is imperative that you declare your legal entitlements to carry out the proposed project. You must describe your legal rights in detail within the registration form.

Your explanation of your legal entitlements must be clearly stated and pertain to each specific site or asset for which you claim legal right. The clarification should comprise:

● a description of the project activities and associated obligations (such as allowing access or monitoring),

● a statement that you (the applicant):

- have the right to carry out the project activities on or for the sites or assets included in the project, and

- have a lawful and exclusive right to be issued all BRUs that may be created as a result of the project activities,

● an explanation of how you acquired the legal right, and

● a statement about the duration of your legal right.

You may support your explanation with documents demonstrating your legal right.

If in any project report you provide to the Technical Review Committee, you claim BRUs for any changes in project sites or assets after registration of the project, or after the last project report was provided, you must describe your legal right for those changed sites or assets in the manner stated above. You may support your explanation with documents demonstrating your legal right. After receiving your application or project report, the Technical Review Committee may require clarification or more information.

An auditor of a project report may need to see information and documents such as relevant title or contractual documentation, which evidence your legal right. This may occur in an initial audit which will audit your claim of legal right for any specified sites or assets at the time of project registration, or in a subsequent audit which will audit a project report that discloses any changes in sites or assets in respect of which BRUs have been claimed.

You must demonstrate to the Technical Review Committee that you have the legal right to execute the project on particular sites or assets. Failure to do so will result in the non-issuance of BRUs for any unclear legal rights on sites or assets.

How is legal right demonstrated?

You may provide documents to show your legal right. These can be copies of email exchanges, letters or agreements and can include:

● deeds

● terms and conditions of the current land tenure

● explanations of how project activities are permitted

● state/territory correspondence confirming project activities are allowed

● legal advice

● records of land tenure amendments to allow project activities

● assessments of whether the future acts regime applies

● evidence of compliance with the BidCarbon (Carbon Farming) Standard and the UN Declaration on the Rights of Indigenous Peoples' information and consultation requirements.

● Indigenous land use agreements or agreements with registered aboriginal title bodies corporate

If you provide a contract or similar documentation (or their extracts), you should provide an explanation or summary of the parts that are relevant to your legal right and its duration. If you are providing an extract, you should state that there is nothing in the other parts of the document from which the extract was made that contradicts the information in the extract or causes that information to be incorrect or misleading.

What documents could demonstrate legal right?

This document provides general guidance concerning legal rights in the context of BidCarbon Standard Scheme projects. While reasonable steps have been taken in compiling this document, the BidCarbon Foundation accepts no responsibility for the accuracy, currency or completeness of the information contained in the document.

The BidCarbon Foundation advises individuals to review the applicable legislation and obtain legal or professional advice regarding their circumstances if they have any uncertainties.

The BidCarbon Foundation is not providing legal or professional advice in distributing this document.

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