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This is a Bill, not an Act. For current law, see the Acts databases.


CARBON RIGHTS BILL 2002

                        Western Australia


             Carbon Rights Bill 2002

                           CONTENTS


      Part 1 -- Preliminary
1.    Short title                                                2
2.    Commencement                                               2
3.    Definitions                                                2
4.    Crown bound                                                3
      Part 2 -- Carbon rights
5.    Registration of carbon right form to create carbon
      right                                                      4
6.    Interest in land (carbon right) created on registration
      of carbon right form                                       4
7.    Limits on creation of carbon rights                        5
8.    Carbon rights: consequences of ownership and other
      legal effects                                              5
9.    Dealings in carbon rights                                  5
      Part 3 -- Carbon covenants
10.   Entering into carbon covenants                             7
11.   Registration of carbon covenant form to create carbon
      covenant                                                   7
12.   Interest in land (carbon covenant) created on
      registration of carbon covenant form                       8
13.   Limits on creation of carbon covenants                     9
14.   Dealings in carbon covenants                               9
15.   Carbon covenants: other legal effects                      9
16.   Registration of surrender of carbon covenants: effect     10
      Part 4 -- Miscellaneous
17.   Regulations                                               11


                                                                page i
                             117--1
                           Western Australia


                     LEGISLATIVE ASSEMBLY



                  Carbon Rights Bill 2002


                               A Bill for


An Act to provide for the creation and effect of certain interests in
land in relation to the effects of carbon sequestration from, and
carbon release to, the atmosphere, and for related matters.



The Parliament of Western Australia enacts as follows:




                                                                  page 1
     Carbon Rights Bill 2002
     Part 1         Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Carbon Rights Act 2002.

     2.         Commencement
5         (1)   Subject to subsection (2), this Act comes into operation on a day
                fixed by proclamation.
          (2)   This Act is not to come into operation before section 64 of the
                Transfer of Land Amendment Act 2002 has come into operation.

     3.         Definitions
10              In this Act --
                "affected land", in relation to a carbon right, means the land in
                     respect of which the carbon right is registered;
                "burdened land", in relation to a carbon covenant, means the
                     land in respect of which the covenant is registered as a
15                   burden;
                "carbon covenant" means an interest in land referred to in
                     section 12(1)(a);
                "carbon covenant form" means a form that is lodged under
                     section 11(1);
20              "carbon release" means the release into the atmosphere of
                     carbon that has been stored in land or in anything on land;
                "carbon right" means an interest in land referred to in
                     section 6(1)(a);
                "carbon right form" means a form that is lodged under
25                   section 5(1);
                "carbon sequestration" means --
                     (a) the absorption from the atmosphere of carbon dioxide
                           by land or anything on land; and
                     (b) the storage of carbon in land or in anything on land;

     page 2
                                                     Carbon Rights Bill 2002
                                                  Preliminary         Part 1

                                                                          s. 4



          "Crown land" has the same meaning as it has in the Land
               Administration Act 1997;
          "land" has the same meaning as it has in the Land
               Administration Act 1997;
5         "owner", in relation to freehold land, means a person whose
               name is registered as a proprietor of the freehold land;
          "registered" means registered under the TLA;
          "Registrar" means the Registrar of Titles;
          "relevant carbon right", in relation to a carbon covenant or a
10             proposed carbon covenant, means the carbon right in
               relation to which the covenant is, or is to be, entered into;
          "TLA" means the Transfer of Land Act 1893.

     4.   Crown bound
          This Act binds the Crown in right of the State and, subject to the
15        limits of the legislative power of the State, the Crown in all its
          other capacities.




                                                                       page 3
     Carbon Rights Bill 2002
     Part 2         Carbon rights

     s. 5



                            Part 2 -- Carbon rights
     5.         Registration of carbon right form to create carbon right
          (1)   A person may lodge with the Registrar, for registration, a form
                for the creation of a carbon right in respect of freehold land or
5               Crown land.
          (2)   A carbon right form cannot be registered unless --
                 (a) it is in a form approved by the Registrar;
                 (b) it contains a statement that it is for the creation of a
                       carbon right under this Act;
10               (c) it contains the land description for the freehold or
                       Crown land in respect of which the proposed carbon
                       right is to be created;
                 (d) it identifies, if the proposed carbon right is to be in
                       respect of part only of the land referred to in
15                     paragraph (c), by way of words or a sketch, the part of
                       the land that is the subject of the proposed carbon right;
                 (e) it specifies the term of the proposed carbon right, which
                       can be in perpetuity; and
                  (f) there is compliance with section 104B of the TLA.

20   6.         Interest in land (carbon right) created on registration of
                carbon right form
          (1)   When a carbon right form is registered --
                 (a) the carbon right that is the subject of the form is created
                      and becomes a separate interest in the land in respect of
25                    which the form is registered; and
                 (b) the proprietor of the carbon right is each person who is
                      registered as a proprietor of that interest.
          (2)   A carbon right has effect even if it has the same proprietor as
                the affected land.


     page 4
                                                                 Carbon Rights Bill 2002
                                                             Carbon rights        Part 2

                                                                                               s. 7



          (3)   A carbon right is, in relation to the affected land --
                 (a) a hereditament; and
                 (b) an encumbrance.
                Note: the definition of "land" in the TLA includes hereditaments in freehold
5               and Crown land.

     7.         Limits on creation of carbon rights
          (1)   A carbon right cannot be created in any way other than under
                this Part.
          (2)   No more than one carbon right form can be registered at any
10              particular time in respect of the same area of land.

     8.         Carbon rights: consequences of ownership and other legal
                effects
          (1)   A proprietor of a carbon right has the legal and commercial
                benefits and risks arising from changes to the atmosphere that
15              are caused by carbon sequestration and carbon release occurring
                in or on land in respect of which the carbon right is registered.
          (2)   A carbon right --
                  (a)    does not confer any right of possession; and
                  (b)    is not a subdivision of land to which section 20 of the
20                       Town Planning and Development Act 1928 applies.

     9.         Dealings in carbon rights
          (1)   A carbon right can be --
                  (a)    dealt with as a separate interest in land, except that it
                         cannot be varied;
25                (b)    the subject of a caveat or process of execution.
          (2)   The operation of subsection (1) is subject to --
                 (a) Part IV Division 2A of the TLA; and



                                                                                        page 5
    Carbon Rights Bill 2002
    Part 2         Carbon rights

    s. 9



              (b)   any provision of the TLA that applies by virtue of a
                    carbon right being --
                       (i) a separate interest in land;
                      (ii) land within the meaning of the TLA;
5                    (iii) an encumbrance; or
                     (iv) otherwise referred to in that provision.




    page 6
                                                           Carbon Rights Bill 2002
                                                  Carbon covenants          Part 3

                                                                               s. 10



                          Part 3 -- Carbon covenants
     10.         Entering into carbon covenants
           (1)   The proprietor of a carbon right may, in relation to any matter
                 that affects or might affect carbon sequestration or carbon
5                release occurring in relation to the affected land, enter into a
                 covenant with one or more persons who have an interest in land.
           (2)   The covenant can be for a right, obligation (which can include a
                 positive covenant) or restriction in relation to land.
           (3)   The persons' interests in land referred to in subsection (1) need
10               not be in respect of the same land.

     11.         Registration of carbon covenant form to create carbon
                 covenant
           (1)   A person may lodge with the Registrar, for registration, a form
                 for the creation of a carbon covenant.
15         (2)   A carbon covenant form cannot be registered unless --
                  (a) it is in a form approved by the Registrar;
                  (b) it contains a statement that it is for the creation of a
                        carbon covenant under this Act;
                  (c) it contains a description of the carbon right in relation to
20                      which the proposed carbon covenant is to be created;
                  (d) it contains the land description for the land to be
                        burdened by the proposed carbon covenant;
                  (e) it identifies, if the proposed carbon covenant is to be in
                        respect of part only of the land referred to in
25                      paragraph (d), by way of words or a sketch, the part of
                        the land that is the subject of the proposed carbon
                        covenant;
                   (f) it contains the terms of the right, obligation or restriction
                        that is the subject of the proposed carbon covenant;


                                                                             page 7
     Carbon Rights Bill 2002
     Part 3         Carbon covenants

     s. 12



                  (g)    the proprietor of the proposed carbon covenant will be
                         the proprietor of the relevant carbon right;
                  (h)    it specifies --
                            (i) the day on which the proposed carbon covenant
5                                is to commence, which cannot be before the day
                                 the relevant carbon right is created; and
                           (ii) the term of the proposed carbon covenant, which
                                 cannot be longer than the term of the relevant
                                 carbon right;
10                 (i)   it contains such other information as is prescribed by the
                         regulations; and
                   (j)   there is compliance with section 104G of the TLA.

     12.         Interest in land (carbon covenant) created on registration of
                 carbon covenant form
15         (1)   When a carbon covenant form is registered --
                  (a) the carbon covenant that is the subject of the form is
                       created and becomes a separate interest in the relevant
                       carbon right; and
                  (b) the proprietor of the carbon covenant is each person who
20                     is registered as the proprietor of the relevant carbon
                       right.
           (2)   A carbon covenant has effect even if it has the same proprietor
                 as the burdened land.
           (3)   Except to the extent that it otherwise provides, a carbon
25               covenant --
                   (a) benefits, attaches to, and runs with, the relevant carbon
                        right; and
                   (b) burdens, attaches to, and runs with, the burdened land.




     page 8
                                                                 Carbon Rights Bill 2002
                                                        Carbon covenants          Part 3

                                                                                           s. 13



           (4)   A carbon covenant --
                  (a) in relation to the relevant carbon right, is a hereditament;
                        and
                  (b) in relation to the burdened land, is an encumbrance.
5                Note: the definition of "land" in the TLA includes hereditaments in freehold
                 and Crown land.

     13.         Limits on creation of carbon covenants
                 A carbon covenant cannot be created in any way other than
                 under this Part.

10   14.         Dealings in carbon covenants
           (1)   Subject to subsection (2), a carbon covenant can be --
                  (a) dealt with as a separate interest in the relevant carbon
                        right;
                  (b) the subject of a caveat or process of execution.
15         (2)   The proprietor of a carbon covenant must at all times be the
                 proprietor of the relevant carbon right.
           (3)   The operation of subsection (1) is subject to --
                  (a) Part IV Division 2A of the TLA; and
                  (b) any provision of the TLA that applies by virtue of a
20                      carbon covenant being --
                           (i) a separate interest in land;
                          (ii) land within the meaning of the TLA;
                         (iii) an encumbrance; or
                         (iv) otherwise referred to in that provision.

25   15.         Carbon covenants: other legal effects
                 A carbon covenant --
                  (a) cannot confer any right of possession;


                                                                                         page 9
     Carbon Rights Bill 2002
     Part 3         Carbon covenants

     s. 16



                  (b)    can grant a licence to enter to inspect or remedy a
                         default;
                   (c)   is not a licence to use or occupy land or a subdivision of
                         land to which section 20 of the Town Planning and
5                        Development Act 1928 applies.

     16.         Registration of surrender of carbon covenants: effect
           (1)   When a surrender of the whole of a carbon covenant is
                 registered, all rights, obligations and restrictions under the
                 covenant cease to have effect, except to the extent that the
10               covenant provides otherwise.
           (2)   When a surrender of part of a carbon covenant is registered, all
                 rights, obligations and restrictions under the covenant cease to
                 have effect in respect of the surrendered part, except to the
                 extent that the covenant provides otherwise.




     page 10
                                                          Carbon Rights Bill 2002
                                                     Miscellaneous         Part 4

                                                                              s. 17



                             Part 4 -- Miscellaneous
     17.         Regulations
           (1)   The Governor may make regulations prescribing all matters that
                 are required or permitted by this Act to be prescribed, or are
5                necessary or convenient to be prescribed, for giving effect to
                 this Act.
           (2)   Without limiting subsection (1) regulations may, for the
                 purposes of State, national or international reporting
                 requirements in relation to carbon sequestration or carbon
10               release, require a proprietor of a carbon right to provide to the
                 Minister or such other person or body specified in the
                 regulations, information about --
                   (a) the area of the affected land;
                   (b) the quantity and form of carbon sequestered or released
15                       by the affected land or anything on the affected land;
                         and
                   (c) such other matters as are relevant to carbon
                         sequestration or carbon release occurring in relation to
                         the affected land.
20         (3)   Regulations made under this Act may provide that
                 contravention of a regulation or a provision of a regulation
                 constitutes an offence and provide for penalties not exceeding
                 $5 000.




 


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