Several provisions of this Act could ensnare practitioners who assume standard property or forestry principles apply.
First, no compensation is payable for loss arising from land becoming FPPFL (s 5). This is a blanket exclusion and applies regardless of the value of the land or the rights lost. It extinguishes any common law or statutory claim for compensation that might otherwise arise from the vesting of private interests in the Crown under s 4(2)(a). The only exception is that subsections (1) and (2) do not extinguish or affect the right to commence or carry on any activity authorised before commencement (s 4(5)), but that preservation of existing activities does not create a compensation entitlement.
Second, the sale prohibition (s 4(8)) is absolute for all FPPFL except statutory land (where it ceases on 8 April 2020) and land used for specified infrastructure (electricity infrastructure, highways, powerline corridors, rail infrastructure, rail planning corridors, subsidiary roads). An exchange under section 6 does not count as a sale, but any other form of disposal is prohibited. Practitioners advising on land transactions must confirm whether the land is FPPFL, and if so, whether any exception applies. The definition of “sell, transfer or convey” is not expanded, and by negative implication, giving a lease or licence would not be prohibited , the Act expressly contemplates continuation of leases and licences under section 9.
Third, the vesting provision (s 4(2)(a)) applies broadly but contains two critical exceptions: it does not apply to statutory land (s 4(3)), and the prohibition on native forest harvesting does not apply to the forestry coupes listed in Schedule 2 (s 4(4)). The Schedule 2 coupes are identified by coupe code and district. Any native forest harvesting on those coupes is still regulated by the Forest Practices Act 1985, but it is not prohibited by this Act.
Fourth, the special species timber harvesting approval under Part 3 is subject to a time gate: applications can only be made “not earlier than 3 years from the commencement of this Part” (s 11(1)). If Part 3 commenced with the rest of the Act on proclamation, that means no applications could be made before 2017 at the earliest. The approval is also subject to the minister being satisfied that the timber cannot be supplied from permanent timber production zone land (s 11(7)(a)). This creates a supply-chain test that could block approvals if the Forestry corporation or others can source the timber elsewhere.
Fifth, the special species management plan must be made within 3 years of Part 3’s commencement (s 12(1)). If that deadline was missed, there may have been a period during which no plan existed, which would effectively prevent any approvals under section 11 because the minister must be satisfied that harvesting will be consistent with the plan. The plan-making process includes a 42-day public comment period, but the minister is not required to accept all representations (ss 12(4)-(6)).
Sixth, transfer notices (Schedule 4) can take effect retrospectively: a notice may specify a transfer day that is before, on or after the day the notice is published in the Gazette (Schedule 4, clause 2(4)). This means assets, liabilities or contracts can be transferred with retroactive effect. Parties to contracts that are transferred cannot terminate or claim breach solely because of the transfer (Schedule 4, clause 2(8)). This is a significant limitation on ordinary contractual rights.
Seventh, the Crown Lands Minister is not liable for pre-commencement breaches of leases, licences, or easements (s 9(8)). A tenant with a claim against the original grantor for a pre-vesting breach cannot pursue the Crown Lands Minister for that breach. The minister steps into the shoes of the grantor only for rights and obligations that continue after commencement.
Eighth, the definition of “native forest harvesting” is carefully circumscribed. It excludes harvesting for access roading and cable harvesting infrastructure for permanent timber production zone land and for the Schedule 2 coupes. It also excludes special species timber harvesting approved under Part 3. However, the definition does not exclude harvesting that is incidental to other activities such as mining or infrastructure development, unless those activities are separately authorised.
Ninth, while the Act repeals the Tasmanian Forests Agreement Act 2013 (s 34, Schedule 6), it continues the proclamation made under that Act on 16 December 2013 (Statutory Rules 2013, No. 111) insofar as it is consistent (s 36). Practitioners relying on the repeal should check that the proclamation has not been preserved or amended.