Property Law and Mitigation

This chapter deepens our analysis by considering in more detail the mechanisms used by Australia's Carbon Credits Act , contrasting them with those used in New Zealand's Climate Change Response Act . The Australian approach provides an example of how sequestration schemes supported by rights created by statute and contract, as opposed to property rights, may nonetheless attempt to dock with property law mechanisms in attempts to ensure sequestration activities endure over time. Specifically, we consider whether these statutory mechanisms might, in fact, amount to property interests in land as they look and feel a bit like recognised property rights. The chapter also considers whether it would be possible, or desirable, to simply use legislation to deem these mechanisms to be property. If they are not property, or not deemed to be property, the statutory mechanisms will only be personal interests. In this case the ability to ensure obligations to store carbon in trees over time are met will rely on enforcement mechanisms outside property law. This will also put them at risk of being overridden by any other property interests that happen to exist, or are created, in the land being used for the sequestration project.