97Carbon maintenance obligation

#### 97 Carbon maintenance obligation Relevant area of land (1) For the purposes of this section, each of one or more areas of land is a relevant area of land if: (a) the following conditions are satisfied: (i) a sequestration offsets project is or was an eligible offsets project; (ii) a notice was given under section 88, 89, 90 or 91 in relation to the project; (iii) the area was, or the areas were, identified in the relevant section 27 declaration as the project area or project areas for the eligible offsets project; (iv) the notice required a person to relinquish a particular number of Australian carbon credit units; (v) the person did not comply with the requirement within 90 days after the notice was given; or (b) the following conditions are satisfied: (i) a sequestration offsets project is or was an eligible offsets project; (ii) a notice was given under section 88, 89, 90 or 91 in relation to the project; (iii) the area was, or the areas were, identified in the relevant section 27 declaration as the project area or project areas for the eligible offsets project; (iv) the notice required a person to relinquish a particular number of Australian carbon credit units; (v) the Regulator is satisfied that it is likely that the person will not comply with the requirement within 90 days after the notice was given; or (c) the Regulator is satisfied that: (i) a sequestration offsets project is or was an eligible offsets project; and (ii) it is likely that a notice will be given under section 88, 89, 90 or 91 in relation to the project; and (iii) the area is, or the areas are, identified in the relevant section 27 declaration as the project area or project areas for the eligible offsets project; and (iv) the notice is likely to require a person to relinquish a particular number of Australian carbon credit units; and (v) it is likely that the person will not comply with the requirement within 90 days after the notice is given. Declaration (2) The Regulator may, by writing, declare that: (a) a specified area, or one or more of specified areas, of land are subject to a carbon maintenance obligation; and (b) an activity (if any) specified in the declaration is a permitted carbon activity in relation to the area or areas of land for the purposes of this Act. > Note: For specification by class, see the Acts Interpretation Act 1901. (2A) A specified area must consist of the whole or a part of a relevant area of land. (3) If an area or areas of land are subject to a carbon maintenance obligation, the carbon maintenance obligation relates to the project mentioned in whichever of subparagraph (1)(a)(i), (1)(b)(i) or (1)(c)(i) applies. (4) An activity may be specified under paragraph (2)(b) by reference to: (a) the area or areas of land on which the activity may be carried out; or (b) the manner in which the activity may be carried out; or (c) the time or times at which the activity may be carried out; or (d) the period or periods during which the activity may be carried out; or (e) the person or persons who may carry out the activity. (5) Subsection (4) does not limit the ways in which an activity may be specified under paragraph (2)(b). (6) If the Regulator makes a declaration under subsection (2), the Regulator must take all reasonable steps to ensure that a copy of the declaration is given to: (a) the project proponent for the project; and (b) each person who holds an eligible interest in the area, or any of the areas, of land; and (c) a person specified in the regulations or the legislative rules; and (d) the relevant land registration official. (7) A failure to comply with subsection (6) does not affect the validity of a declaration under subsection (2). Benchmark sequestration level (8) If an area or areas of land are subject to a carbon maintenance obligation that relates to a sequestration offsets project, the benchmark sequestration level is the number of tonnes of carbon that was sequestered in the relevant carbon pool on the area or areas when the declaration under subsection (2) was made in relation to the area or areas. Obligations (9) If an area or areas of land are subject to a carbon maintenance obligation, a person must not engage in conduct that: (a) results, or is likely to result, in a reduction below the benchmark sequestration level of the sequestration of carbon in the relevant carbon pool on the area or areas; and (b) is not a permitted carbon activity. (10) If: (a) an area or areas of land are subject to a carbon maintenance obligation; and (b) there has been a reduction below the benchmark sequestration level of the sequestration of carbon in the relevant carbon pool on the area or areas; the owner or occupier of the land must take all reasonable steps to ensure that the number of tonnes of carbon sequestered in the relevant carbon pool on the area or areas is not less than the benchmark sequestration level. Ancillary contraventions (11) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (9) or (10); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (9) or (10); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (9) or (10); or (d) conspire with others to effect a contravention of subsection (9) or (10). Civil penalty provisions (12) Subsections (9), (10) and (11) are civil penalty provisions. > Note: Part 21 provides for pecuniary penalties for breaches of civil penalty provisions. Duration of declaration (13) A declaration under subsection (2) comes into force when a copy of the declaration is given to the project proponent for the project under subsection (6). (14) Unless sooner revoked, a declaration under subsection (2) ceases to be in force at whichever of the following times happens first: (a) when the penalty payable under section 179 in respect of the non‑compliance with the requirement referred to in subparagraph (1)(a)(v) or (b)(v) (including any late payment penalty payable under section 180 in relation to the section 179 penalty) is paid in full; (b) if: (i) the notice referred to in subparagraph (1)(c)(ii) is given; and (ii) the notice required a person to relinquish a particular number of Australian carbon credit units; and (iii) the person did not comply with the requirement within 90 days after the notice was given; when the penalty payable under section 179 in respect of the non‑compliance with the requirement (including any late payment penalty payable under section 180 in relation to the section 179 penalty) is paid in full; (c) if the relevant section 27 declaration has never been varied so as to add one or more project areas—the end of the period that: (i) begins on the first occasion on which an Australian carbon credit unit was issued in relation to the project in accordance with Part 2; and (ii) is of the same duration as the permanence period for the project; (d) if the relevant section 27 declaration has been varied so as to add one or more project areas—the end of the period that: (i) begins on the last occasion on which the declaration was so varied; and (ii) is of the same duration as the permanence period for the project. Declaration is not a legislative instrument (15) A declaration made under subsection (2) is not a legislative instrument.