Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636

Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636

Section 28A of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) applies to area-based emissions avoidance projects as well as sequestration offset projects, and the Regulator's imposition of consent conditions for eligible interest holders was within power. The condition that a project proponent has a 'legal right to carry out' the project is not a jurisdictional fact but a matter for the Regulator to be satisfied upon, subject to judicial review for lawfulness of that satisfaction.

Parties
Applicant and First Cross Respondent: Country Carbon Pty Ltd; First Respondent and Second Cross Respondent: Clean Energy Regulator; Second Respondent and Cross Claimant: Abm Elgoring Ambung Aboriginal Corporation
Jurisdiction
Australia
Judgment Date
01 November 2018
Procedural Posture
Judicial Review and Cross Claim / Final Judgment at First Instance
Outcome
Application for judicial review dismissed; separate question on cross-claim answered in the negative.
Legal Topics
Judicial Review of Regulatory Decisions, Consent Requirements Under Carbon Credits (carbon Farming Initiative) Act, Statutory Construction—reading Words Into Legislation, Definition and Application of 'project Proponent', Jurisdictional Fact in Statutory Powers
Administrative Law Statutory Interpretation Native Title Judicial Review of Regulatory Decisions Consent Requirements Under Carbon Credits (carbon Farming Initiative) Act Statutory Construction—reading Words Into Legislation Definition and Application of 'project Proponent' Jurisdictional Fact in Statutory Powers

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Parties

Country Carbon Pty Ltd

Applicant and First Cross Respondent

Clean Energy Regulator

First Respondent and Second Cross Respondent

Abm Elgoring Ambung Aboriginal Corporation

Second Respondent and Cross Claimant

Procedural Posture

Judicial Review and Cross Claim / Final Judgment at First Instance

Legal Issues

  1. 1 Whether s 28A of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) applies only to sequestration offset projects or also to area-based emissions avoidance projects; whether the Regulator was empowered to impose conditions requiring the consent of eligible interest holders in the applicant's projects; whether the existence of a 'legal right to carry out' the project is a jurisdictional fact for the purposes of Regulator's discretion under the Act.

Ratio Decidendi

Section 28A of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) applies to area-based emissions avoidance projects as well as sequestration offset projects, and the Regulator's imposition of consent conditions for eligible interest holders was within power. The condition that a project proponent has a 'legal right to carry out' the project is not a jurisdictional fact but a matter for the Regulator to be satisfied upon, subject to judicial review for lawfulness of that satisfaction.

Court Disposition

Application for judicial review dismissed; separate question on cross-claim answered in the negative.

Orders

  • The application for judicial review filed on 12 October 2017 be dismissed.
  • The applicant pay the respondents' costs of the application for judicial review, to be fixed in a lump sum.