Wednesday, August 27, 2008

Peter Spencer's Carbon Credits "Stolen" Legally: Federal Court

Peter Spencer is a farmer whose property near Cooma, NSW – “Saarahnlee” – has been “sterilised” by woody weed infestation under the NSW Native Vegetation laws. He refused to stand by as the Commonwealth Government used the trees they forced him to grow instead of pasture to meet their Kyoto commitments. The Government ‘nationalised’ the carbon credits that Peter believed were rightfully his.

He sued, seeking damages. He took on the Government, supported by a farmers’ grassroots movement called the Commonwealth Property Protection Association, led by Alistair McRobert. Peter has drained his personal wealth (know the feeling) to pursue justice for all landholders. It has consumed his life for 2 years. If it was a movie made out in Hollywood, the ending would see Peter succeeding for all of us. But today, in the Federal Court, Justice Emmett found Peter’s fairytale ending is not in the script.

That the Government had appropriated the farmers’ ‘carbon credits’ was very likely, said Justice Emmett. In Paragraph 149 he made a statement that could be used to defend a farmer’s rights to carbon stored in the landscape: he said there was every possibility that the Government had ‘acquired’ or ‘taken’ his ‘property’.

The Judge found that Peter lost on technicalities. In effect, by banning the management of woody weeds, the Government has blocked Peter’s ability to farm the land. Was this an ‘acquisition’? If so, it was the States’ Laws, not the Commonwealth’s, that did the deed. (My first lesson in the Law as a young legal student was: “The Law is not about Justice.”)

The Carbon Coalition supports Peter’s crusade for the rights of landholders.

However we felt there were obstacles in the ‘law of carbon’ that would block his claim: 1. Additionality – credits can only be created by activity that was conducted solely for the purpose of sequestration or emissions avoidance. Peter clearly had no intention of capturing carbon. 2. There was no market in operation at the time to give the credits a value. (The 1m acre deal that was concluded in QLD was possible because the landholder had permits to clear the land.)

Peter, in the words of Abe Collins, our American colleague, “Onwards!”

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