Div 6Commercial forestry

Division 6—Commercial forestry Subdivision 1—Preliminary 164—Interpretation (1) In this Division— forest manager, in relation to a commercial forest, means the person who has effective control of the forest vegetation that makes up the forest, either as the owner or occupier of the land on which the vegetation is growing or as owner of the forest vegetation under a forest property (vegetation) agreement under the Forest Property Act 2000. (2) In this Division, a reference to harvesting does not include any activity prescribed by the regulations for the purposes of this subsection. 165—Declaration of forestry areas (1) The Minister may, by notice in the Gazette, declare an area of the State to be a declared forestry area for the purposes of this Act. (2) However, the Minister must not declare an area to be a declared forestry area unless— (a) the area has been identified in a water allocation plan; and (b) the Minister has referred the matter to the Minister primarily responsible for commercial forestry within the State and has considered any advice provided by that Minister; and (c) the Minister is satisfied, after taking into account such matters as the Minister thinks fit— (i) that commercial forests in the relevant area (including after taking into account expansions that are reasonably likely to occur into the future) are having, or are reasonably likely to have, a significant hydrological impact on a prescribed water resource; and (ii) that the declaration is a reasonable measure to improve the management of the prescribed water resource. (3) While a declaration is in force under subsection (1), the forest manager for a commercial forest within the declared forestry area that falls within the relevant designation under the water allocation plan must ensure that the forest is the subject of a forest water licence granted by the Minister under Subdivision 2 (unless the commercial forest is a forest excluded from the operation of Subdivision 2 by the relevant water allocation plan). (4) The Minister may, by subsequent notice in the Gazette— (a) vary the declaration of an area under subsection (1); (b) revoke the declaration of an area under subsection (1). (5) If a notice is published under subsection (4), the Minister may, by the same or a subsequent notice in the Gazette, make provision for any transitional or consequential matter, including for the status or operation of any forest water licence that may apply in relation to the relevant area and the status or hydrological transfer value (if any) of any water allocation attached to any forest water licence after taking into account the provisions of the relevant water allocation plan (and any such notice will have effect according to its terms). (6) For the purposes of this section, the expansion of a commercial forest will be taken to include a situation where there is to be an increase in the land that is to be planted with trees for the purposes of a commercial forest. Subdivision 2—Licences 166—Forest water licences (1) A forest water licence will be granted by the Minister. (2) An application for a licence must be in a form approved by the Minister and must— (i) the commercial forest in relation to which the licence is being sought; or (ii) if the forest is yet to be established, the land where the forest is to be located, the proposed size of the forest (by area and by number of trees), and the type or types of trees proposed to be planted; and (b) be made by the forest manager, or by some other person authorised by the Minister; and (c) be accompanied by the fee prescribed by the regulations; and (d) be accompanied by such other information or material as the Minister may require. (3) The Minister may refuse to grant a forest water licence— (a) to a person, or to the associate of a person, who formerly held a licence that was cancelled under this Act; or (b) to a person who has acted in contravention of this Act; or (c) on any ground prescribed by the regulations; or (d) on any other reasonable ground. (4) In addition, the Minister's decision on the grant of a forest water licence must be consistent with— (a) any relevant provisions of the water allocation plan; and (b) requirements (if any) prescribed by the regulations. (5) A forest water licence applies to the site of the commercial forest to which the licence relates and is attached to— (a) subject to paragraph (b)—the land constituting the site; (b) if the forest is the subject of a forest property (vegetation) agreement—the forest vegetation. (6) If land within the ambit of subsection (5)(a) is transferred, the transferee must furnish the Minister with notice of the transfer in accordance with the regulations. (7) If the interest conferred under the Forest Property Act 2000 by a forest property (vegetation) agreement within the ambit of subsection (5)(b) is assigned to another person, the person to whom the interest is assigned must furnish the Minister with notice of the assignment in accordance with the regulations. 167—Allocation of water (1) A forest water licence must have a water allocation attached to the licence. (2) The water allocation must provide for a quantity of water that is at least equal to the water required to fully offset the impact of the forest on the relevant water resource, as determined in accordance with the hydrological values that are relevant to the commercial forest under the relevant water allocation plan (as relevant at the time of the issue of the licence and as relevant taking into account any expansion or reduction in the size of the forest) and subject to any allowance under a scheme (if any) relating to the management of the forest (including as to the planting and harvesting of trees constituting the forest) approved by the Minister (on such conditions as the Minister thinks fit) for the purposes of this section. (3) The water allocation may be obtained— (a) by the holder of the relevant forest water licence, on the basis that a water allocation is being granted by the Minister; or (b) by the holder of the relevant forest water licence on the basis of a transfer of a water allocation— (i) from the holder of another forest water licence; or (ii) from the holder of a water licence, (or by a combination of both). (4) The Minister may require the payment of a fee for a water allocation granted by the Minister under subsection (3)(a). (5) The Minister may, in connection with the operation of subsection (4), determine a fee that is based on— (a) the Minister's assessment of the value of the water allocation; or (b) a process that determines the value of the water allocation according to a procedure determined by the Minister (including, if the Minister thinks fit, a tender or auction process). (6) A water allocation (as attached to a forest water licence) must be consistent with the relevant water allocation plan (and, in the case of a water allocation under subsection (3)(b), will be obtained subject to any conversion or adjustment under the provisions of the relevant water allocation plan). (7) A water allocation is personal property and may pass to another in accordance with the provisions of this Act or, subject to this Act, in accordance with any other law for the passing of property. (8) In this section— hydrological values means the values specified by the water allocation plan (as measurements of hydrological impact). 168—Variations—allocations (1) A water allocation attached to a forest water licence may be varied (including so as to provide for a reduction in the water allocation) by the Minister— (a) at any time on the application of, or with the consent of, the holder of the licence; or (b) at the time, or within the prescribed period following the time, when a part (or all) of the forest is harvested; or (c) if the Minister is authorised to do so by the regulations. (3) A variation to provide for the reduction of a water allocation under subsection (1)(c) may only be made within the prescribed period following the time when a part (or all) of the forest is harvested. (4) The Minister's decision on the variation of a water allocation under subsection (1) must be consistent with the relevant water allocation plan. (5) A variation under subsection (1) may operate subject to any allowance under a scheme (if any) relating to the management of the forest (including as to the planting and harvesting of trees constituting the forest) approved by the Minister (and subject to complying with any conditions attached to that approval). (6) The Minister is not required to conduct a hearing or to give notice to a third party before varying a water allocation under this section. 169—Transfer of allocations (1) Subject to this Act and the relevant water allocation plan, the holder of a forest water licence may transfer the whole or a part of the water allocation attached to the licence— (a) to the holder of another forest water licence for a forest in the same declared forestry area; or (b) to the holder of another forest water licence for a forest in a different declared forestry area; or (c) to the holder of a water licence; or (d) to the Minister. (2) A reference in subsection (1)(a), (b) or (c) to a forest water licence or a water licence includes a reference to a licence created to receive the relevant transfer. (3) A transfer requires the approval of the Minister. (4) An application to the Minister for the Minister's approval must— (5) The Minister must refuse to grant approval for the transfer of a water allocation if the result would be that the water allocation attached to the licence would fall below the water required to offset the impact of the forest on the relevant water resource (as determined under the relevant water allocation plan). (6) The Minister may refuse to grant approval for the transfer of a water allocation if the holder of the licence is in breach of a condition of the licence. (7) In addition, the Minister's decision to grant or refuse approval for the transfer of a water allocation— (a) must be consistent with the relevant water allocation plan; and (b) if— (i) the transfer is to the holder of another forest water licence for a forest in a different declared area—must be consistent with the water allocation plan for the water resource that is relevant to the other forest water licence; or (ii) the transfer is to the holder of a water licence that relates to a different prescribed water resource—must be consistent with the water allocation plan for that other prescribed water resource; and (c) must be made in the public interest; and (d) must be consistent with requirements (if any) prescribed by regulation under this paragraph (which regulation may prescribe circumstances where an application for a transfer must be refused). (8) Depending on— (a) the class of the commercial forest under the other licence on a transfer under subsection (1)(a) or (b), taking into account the provisions of the relevant water allocation plan; and (b) the provisions of any relevant water allocation plan as to how water allocations are to be converted or adjusted if transferred from 1 class of forest to another, or in relation to 1 prescribed water resource to another, the hydrological value of a water allocation may be reduced or increased (by force of the provisions of a water allocation plan or plans and by force of this subsection) on its transfer. (9) Without limiting a preceding subsection, if a forest property (vegetation) agreement to which a forest water licence is attached comes to an end, the forest manager may, subject to the regulations, deal with a water allocation attached to the licence in a manner approved by the Minister. (10) Despite the provisions of the Stamp Duties Act 1923, the transfer of a water allocation under this section is not chargeable with duty under that Act. 170—Conditions A forest water licence will be subject to such conditions— (a) prescribed from time to time by the regulations; or (b) endorsed on the licence itself by the Minister. 171—Variations—conditions (1) A condition to a forest water licence may be varied by the Minister— (a) at any time on the application of, or with the consent of, the holder of the licence; or (b) at the time, or within the prescribed period following the time, when a part of the forest is harvested; or (c) at intervals specified by the Minister in the licence; or (d) if the Minister is authorised to do so under the provisions of the relevant water allocation plan; or (e) if the Minister is authorised to do so by the regulations. (3) The Minister's decision on the variation of a condition— (b) must be consistent with requirements (if any) prescribed by regulation under this paragraph (which regulation may prescribe circumstances where an application for variation must be refused). (4) The holder of a licence may appeal to the ERD Court against— (a) a decision to refuse to grant an application to vary a condition of the licence under subsection (1)(a); or (b) the variation of a condition under subsection (1)(b) or (c). (5) The Minister is not required to conduct a hearing or to give notice to a third party before varying a condition under this section. 172—Establishment of licence on declaration of areas (1) On or after a relevant day, the forest manager for a commercial forest within the relevant declared forestry area (as the forest exists on the relevant day) is entitled, on due application under this Act made within a period specified by the relevant water allocation plan, to be issued a forest water licence with respect to that forest that has attached to the licence a water allocation granted by the Minister (without the payment of a purchase price) (and until the period so specified expires and, if due application is made within that period, until the forest water licence is issued, the forest manager will be taken not to be in breach of section 165(3)). (2) The Minister must, in acting under subsection (1), take into account the provisions of the relevant water allocation plan (as at the date of issue of the licence), and may take into account such other matters as the Minister thinks fit. (3) A water allocation plan may, in connection with the operation of subsections (1) and (2), make any provision on account of any water allocation held in relation to a commercial forest immediately before the commencement of this section by virtue of a requirement to hold a permit under section 104(3)(f) (an off‑set allocation), including that the water allocation attached to a forest water licence under subsection (1) is to be adjusted to take into account the existence of the off‑set allocation, that the off‑set allocation take the place of an allocation under subsection (1), that the off‑set allocation may be transferred (subject to the provisions of this Act and of the water allocation plan), or that the off‑set allocation will be subject to any other requirement or provision due to the replacement of a requirement for a permit with the scheme set out in this Division. (4) Any provision made under subsection (3) will also operate subject to any principles or adjustments set out in the relevant water allocation plan (including so as to vary the hydrological value of an off‑set allocation on account of the need to convert the allocation to an allocation under this Division or in connection with any transfer of a water allocation from 1 class of forest to another or in relation to 1 prescribed water resource to another). relevant day, in relation to a commercial forest within a declared forestry area, is the day from which a forest water licence is required under this Division in relation to the commercial forest. 173—Surrender of licences A licensee may surrender the licensee's forest water licence in prescribed circumstances. 174—Cancellation of licences The Minister may cancel a forest water licence in circumstances— (a) specified in the relevant water allocation plan; or (b) prescribed by the regulations. Subdivision 3—Offences 175—Offences (1) A person who— (a) contravenes section 165(3); or (b) contravenes or fails to comply with a condition to which a licence under this Division is subject, (a) if the court by which the conviction is recorded has accepted evidence as to the extent of the deficiency in a water allocation, as assessed according to hydrological values, and considers it appropriate that this paragraph applies— (i) a sum calculated at the prescribed rate for each kilolitre of water represented by those hydrological values; or (A) where the offender is a body corporate—$250 000; (B) where the offender is a natural person—$125 000, whichever is the greater; or (i) where the offender is a body corporate—$250 000; (ii) where the offender is a natural person—$125 000. (2) A forest manager who is required to comply with section 165(3) in relation to a particular commercial forest must ensure that the water allocation attached to the relevant forest water licence is at all times at least equal to the water required to fully offset the hydrological impacts of the forest on the relevant water resource, as determined in accordance with the hydrological values that are relevant to the forest under the relevant water allocation plan and subject to any allowance under a scheme (if any) relating to the management of the forest (including as to the planting and harvesting of trees constituting the forest) approved by the Minister (and subject to complying with any conditions attached to that approval). (a) if the court by which the conviction is recorded has accepted evidence as to the extent of the deficiency in a water allocation, as assessed according to hydrological values, and considers it appropriate that this paragraph applies— (i) a sum calculated at the prescribed rate for each kilolitre of water represented by those hydrological values; or (A) where the offender is a body corporate—$250 000; (B) where the offender is a natural person—$125 000, whichever is the greater; or (i) where the offender is a body corporate—$250 000; (ii) where the offender is a natural person—$125 000.