Forestry Act 2012 (NSW)

Forestry Act 2012 No 96 An Act to provide for the dedication, management and use of State forests and other Crown-timber land for forestry and other purposes; to constitute the Forestry Corporation of New South Wales as a statutory State owned corporation and to specify its objectives and functions; to repeal the Forestry Act 1916 and the Timber Marketing Act 1977 and to amend certain other legislation; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Forestry Act 2012. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— authorised officer means a person appointed as an authorised officer under section 70. board means the board of directors of the Corporation. carbon sequestration right has the same meaning as in section 87A of the Conveyancing Act 1919. chief executive officer means the chief executive officer of the Corporation. clearing licence means a clearing licence issued under Division 2 of Part 4. Corporation means the Forestry Corporation of New South Wales constituted under Part 2. Crown land and Crown Land Acts have the same meanings as in the Crown Land Management Act 2016. Crown-timber land means any of the following— (a) land within a State forest or flora reserve, (b) Crown land (whether or not held under a lease or licence from the Crown and whether or not included in a timber reserve), (c) land affected by a profit à prendre, but does not include— (d) any Crown land the subject of a prescribed Crown tenure if the subject land has an area of 2 hectares or less, or (e) any Crown land the subject of a tenure from the Crown that is not a prescribed Crown tenure. flora reserve means land dedicated or set apart under this Act or the former Act as a flora reserve. forest agreement means a forest agreement referred to in Part 5A that is in force. Note— Part 5A is transferred to this Act on the commencement of Schedule 4.11[16]. forest lease means a lease granted under section 62. forest materials means rock, stone, clay, shells, earth, sand, gravel or any like material. forest materials licence means a forest materials licence issued under Division 2 of Part 4. forest permit means a permit issued under section 60. forest products means the products of trees and other vegetation (other than timber) that are of economic value. forest products licence means a forest products licence issued under Division 2 of Part 4. forestry area means a State forest, timber reserve or flora reserve and includes any part of a State forest, timber reserve or flora reserve. Forestry Commission means the corporation constituted under the former Act. forestry operations means— (a) logging operations, namely, the cutting and removal of timber from land for the purpose of timber production, or (b) the harvesting of forest products, or (c) ongoing forest management operations, namely, activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities and bush fire hazard reduction, or (d) ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities. forestry right means a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919. former Act means the Forestry Act 1916 as in force immediately before its repeal by this Act. function includes a power, authority or duty, and exercise a function includes perform a duty. government agency means any of the following— (a) a government sector agency within the meaning of the Government Sector Employment Act 2013 or the head (within the meaning of that Act) of any such agency, (b) a NSW Government agency, (c) any other public authority that is constituted by or under an Act or that exercises public functions (other than a State owned corporation). integrated forestry operations approval means an approval referred to in Part 5B that is in force. Note— Part 5B is transferred to this Act on the commencement of Schedule 4.11[16]. land exchange agreement means an agreement under section 31. land manager of a forestry area means the land manager for the area as provided by section 57. lease under the Crown Lands Acts includes a promise of lease under those Acts and lessee means the holder of such lease, and includes the holder of any such promise. licence means a licence issued by the Corporation under this Act. management plan means a management plan under section 21. plantation—see section 4. prescribed Crown tenure means a tenure from the Crown specified in the First Schedule to the former Act. profit à prendre means a profit à prendre reserved to the Crown under clause 5(1) of Schedule 1. renewable energy infrastructure means infrastructure for the generation and storage of energy from renewable sources, and includes associated transmission and distribution infrastructure. resource acquisition fee means a fee payable under Division 3 of Part 4. small quantity authorisation means an authorisation under section 45. SOC Act means the State Owned Corporations Act 1989. special management zone means any area of State forest declared to be a special management zone under section 18. State forest means land dedicated under this Act, the former Act or the former Forestry Act 1909 as State forest, being a dedication that is in force. timber includes trees of any age or description, whether growing or dead. timber licence means a timber licence issued under Division 2 of Part 4. timber reserve means land temporarily reserved under the former Act for forestry purposes, being a reservation in force immediately before the repeal of the former Act. tree means a tree of any description and includes a shrub and a sapling or seedling of a tree. use, in relation to a forestry area, includes occupy the area or engage in or conduct an activity in the area. voting shareholders of the Corporation means the voting shareholders within the meaning of the SOC Act. working plan means a working plan under section 25. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "plantation" (1) For the purposes of this Act, a plantation is, subject to this section, an area of Crown-timber land (other than a flora reserve), or an area of land owned by the Corporation, on which the predominant number of trees forming, or expected to form, the canopy are trees that have been planted (whether by sowing seed or otherwise)— (a) for the purpose of timber production, or (b) for the protection of the environment (including for the purpose of reducing the salinity of the land or otherwise repairing or improving the land, for the purpose of biodiversity conservation or for the purpose of acquiring or trading in carbon sequestration rights), or (c) for any other purpose, but not principally for the purpose of the production of food or any other produce other than timber. (2) To avoid doubt, a natural forest is not a plantation for the purposes of this Act. However, an area of land is not a natural forest merely because it contains some native trees that have not been planted. (3) The Minister may, after carrying out an assessment of an area of land, by order published in the Gazette make a determination as to whether or not the area comprises or is part of a plantation for the purposes of this Act. Any such determination has effect according to its tenor. Part 2 Forestry Corporation Division 1 Constitution and management of Forestry Corporation 5 Establishment of Forestry Corporation There is constituted by this Act a corporation with the corporate name of the Forestry Corporation of New South Wales. Note— Schedule 4 to this Act amends the SOC Act to make the Forestry Corporation a statutory State owned corporation. The SOC Act contains a number of provisions that will apply to the Corporation as a statutory SOC. In particular— (a) Part 3 contains provisions relating to the status of the Corporation, the application of the Corporations Act 2001 of the Commonwealth, the issue of shares to the Treasurer and another Minister, the board of directors, the chief executive officer, the employment of staff, the giving of directions by the portfolio Minister (including directions for the performance of non-commercial activities or the carrying out of public sector policies), the constitution of the Corporation, dividends and tax-equivalent payments, government guarantees, the sale or disposal of assets and the legal capacity and general powers of the Corporation, and (b) Part 4 deals with the accountability of the Corporation (including statements of corporate intent, annual reports and accounts), and (c) Part 5 deals with miscellaneous matters (including the duties and liabilities of directors and the application of public sector legislation). 6 Board of directors (1) The Corporation is to have a board of directors. (2) The board is to consist of no fewer than 3 and not more than 7 directors appointed by the voting shareholders. (3) One of the directors is, in and by the director's instrument of appointment or in and by another instrument executed by the voting shareholders, to be appointed as chairperson of the board. (4) The chief executive officer may be appointed as a director. (5) The board is accountable to the voting shareholders in the manner set out in Part 4 of the SOC Act and in the constitution of the Corporation. (6) The voting shareholders may remove a director, or the chairperson, from office at any time for any or no reason and without notice (but only at a duly convened meeting of the voting shareholders) and, in that event, the office of the director or chairperson is taken to have become vacant for the purposes of Schedule 8 to the SOC Act. (7) Subject to subsections (8) and (9), Schedule 8 to the SOC Act has effect with respect to the constitution and procedure of the board. (8) The provisions of section 20J of the SOC Act, and of clauses 2(1) and (2) and 7(1)(d) and (2) of Schedule 8 to the SOC Act, do not apply to the Corporation or to the chairperson. (9) The provisions of clause 6 of Schedule 8 to the SOC Act do not apply to the chief executive officer if appointed as a director, and the chief executive officer is not entitled to remuneration under that clause in his or her capacity as a director. 7 Chief executive officer (1) The chief executive officer of the Corporation is to be appointed by the board but only with the approval of the voting shareholders. (2) Subject to this section, the chief executive officer holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment. (3) The voting shareholders may remove a person from office as chief executive officer, at any time, for any or no reason and without notice. (4) The chief executive officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine with the approval of the voting shareholders. (5) The board may, with the approval of the voting shareholders, fix the conditions of employment of the chief executive officer in so far as they are not fixed by or under any other Act or law. (6) The board may require the chief executive officer to enter into performance agreements. (7) The chief executive officer may delegate any functions of the chief executive officer to an employee of the Corporation, but this power is subject to any directions of the board. (8) The Government Sector Employment Act 2013 (Part 6 included) does not apply to the chief executive officer. (9) The provisions of section 20K of the SOC Act, and of Schedule 9 to that Act, do not apply to the chief executive officer. 8 Acting chief executive officer (1) The board may, from time to time, appoint a person to act in the office of chief executive officer during the illness or absence of the chief executive officer. (2) The board may remove a person from office as acting chief executive officer, at any time, for any or no reason and without notice. (3) A person, while acting in the office of chief executive officer— (a) has all the functions of the chief executive officer and is taken to be the chief executive officer, and (b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine with the approval of the voting shareholders. (4) For the purposes of this section, a vacancy in the office of a chief executive officer is regarded as an absence from office. (5) Clause 5 of Schedule 9 to the SOC Act does not apply to an acting chief executive officer of the Corporation. 9 Application of SOC Act The provisions of this Part are in addition to and do not (except to the extent to which this Part provides) derogate from the provisions of the SOC Act. Division 2 Objectives and functions of Forestry Corporation 10 Objectives of Forestry Corporation (1) The principal objectives of the Corporation are as follows— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, (b) to have regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991, (d) to contribute towards regional development and decentralisation, (e) to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management. (2) Each of the principal objectives of the Corporation is of equal importance. (3) The Corporation also has, in exercising its functions as the land manager of a forestry area, the objectives of a land manager under Part 5. (4) The provisions of section 20E of the SOC Act do not apply to the Corporation. 11 Functions of Forestry Corporation (1916 Act, ss 11 and 11AA) (1) The principal functions of the Corporation are as follows— (a) to carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the Corporation, (b) to take or authorise the taking of forest materials from State forests or land owned by the Corporation, (c) to sell, supply or process timber, forest products or forest materials taken or harvested under paragraph (a) or (b), (d) to establish and maintain plantations, (e) to control and manage, subject to Part 5, forestry areas, (f) subject to the Rural Fires Act 1997, to carry out measures on Crown-timber land for the protection from fire of timber and forest products on that land, (g) to grant forestry rights in respect of State forests, timber reserves or land owned by it, including any such right that is for the benefit of the Corporation, (h) to acquire, hold, sell or otherwise deal with or trade in carbon sequestration rights (including for the benefit of other persons). (2) The Corporation may— (a) provide facilities or services, or undertake activities, that are ancillary or incidental to its principal functions, and (b) conduct any business or provide any service (whether or not related to its principal functions) that it considers will further its objectives. (3) The Corporation has such other functions as are conferred or imposed on it by or under this or any other Act or law. (4) Despite any other provision of this Act, the Corporation is not authorised to take or authorise any other person to take any timber, forest products or forest materials from any Crown-timber land that is the subject of a forestry right unless the forestry right is held or granted by the Corporation. 12 Ownership of trees in State forest plantations (1) The Corporation is the owner of the trees in any plantation that is or is part of a State forest. (2) Subsection (1)— (a) has effect even though State forests are vested in the Crown, and (b) operates to extinguish any existing rights in any such trees before the commencement of this section. (3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. (4) Compensation (including damages or any other form of monetary compensation) is not payable to any person or body because of the enactment or operation of this section or for the consequences of that enactment or operation. Part 3 State forests and flora reserves Division 1 Dedication of Crown land 13 Classification of Crown land for State forest purposes (1916 Act, s 17) (1) The Minister may classify Crown land for the purpose of selecting land that is suitable and desirable in the public interest to be dedicated as State forest. (2) In classifying Crown land for any such purpose, the Minister is to ensure, to such extent as the Minister considers appropriate, that the selection of land to be dedicated as State forest will result in— (a) the promotion of effective and economic control, utilisation and management of the land for timber production and the facilitation of the economic marketing of timber and forest products, and (b) the establishment, maintenance or expansion of industry for the processing and treatment of timber and forest products, and (c) the growth and harvesting of trees for timber and forest products, and (d) the continuing protection of necessary tree cover in the public interest. (3) The Minister is to also take into account— (a) the potential for economic timber production of any land that is of an inferior character for the purposes of agriculture or grazing but which, by appropriate treatment of the soil, would be capable of sustaining the growth of suitable commercial species of trees in plantations, and (b) such other factors as the Minister considers relevant to the establishment and proper management of State forests. (4) Crown land need not be classified under this section in order for it to be dedicated as State forest. 14 Dedication of land as State forest (1916 Act, s 18) (1) The Governor may, by notice published in the Gazette, dedicate as State forest any Crown land that is not the subject of a tenure from the Crown. (2) Any such dedication of land may be limited so as to exclude any land lying below the surface of the land at a depth greater than a depth specified in the notice dedicating the land. (3) Land dedicated under this section may not be dealt with otherwise than as provided by this Act and any such dedication may not be revoked or altered except under this Act. (4) The Governor may, by order published in the Gazette, constitute 2 or more State forests, or any parts of 2 or more State forests, as one State forest for the purposes of this Act. (5) Subsection (4) does not affect— (a) the declaration of any land as a special management zone, or (b) the setting apart of any land as a flora reserve, or (c) any rights or obligations conferred or imposed by or under this or any other Act. (6) Despite subsection (1), Crown land that is the subject of a prescribed Crown tenure and that has an area of more than 2 hectares may be dedicated as State forest in accordance with this section. 15 Revocation of dedication of land as State forest (1916 Act, s 19) (1) Subject to this Act, the dedication of land as State forest may only be revoked or altered in whole or in part in the following manner— (a) a proposal for the revocation or alteration is to be tabled in each House of Parliament, (b) after the proposal has been tabled, the Governor may, on a resolution being passed by both Houses that the proposal be carried out, by notice published in the Gazette, revoke or alter the dedication. (2) On any such revocation, the land becomes Crown land to be dealt with under the Crown Land Management Act 2016 and until so dealt with is to be reserved from sale or lease under any Act. 16 Flora reserves (1916 Act, s 25A(1)–(4)) (1) The Governor may, by notice published in the Gazette— (a) dedicate, with the concurrence of the Minister administering the Crown Land Management Act 2016, any Crown land that is not the subject of a tenure from the Crown, or (b) set apart the whole or part of a State forest, as a flora reserve for the preservation of native flora. (2) Any such dedication of land may be limited so as to exclude any land lying below the surface of the land at a depth greater than a depth specified in the notice dedicating the land. (3) The setting apart of the whole or a part of a State forest as a flora reserve under this section does not affect the dedication as a State forest of the area so set apart. (4) Subject to this Act, a notice under this section is not to be revoked wholly or in part otherwise than by Act of Parliament. (5) Despite subsection (1)(a), Crown land that is the subject of a prescribed Crown tenure and that has an area of more than 2 hectares may be dedicated as a flora reserve in accordance with this section. 17 Review of dedicated State forests (1916 Act, s 17A) The Minister is, on a continuing basis, to review dedicated State forests for the purposes of determining whether or not any State forest, or part of any State forest, should continue to be dedicated as such. Division 2 Special management zones 18 Declaration of special management zones (1916 Act, s 21A(1), (1A), (3) and (7)) (1) The Minister may, by notice published in the Gazette, declare any area of State forest (other than a flora reserve) to be a special management zone if the Minister is satisfied that the area has special conservation value. (2) The object of the declaration of a special management zone and the prohibition of forestry operations in the zone is to protect its special conservation value. (3) The Minister is to ensure that the public is given an opportunity to make representations about any proposed notice of the Minister under this section to declare a special management zone. The Minister must— (a) fix a time within which the public may make representations about the proposal, and (b) make copies of the proposed notice available for public inspection before that time on such website as the Minister thinks appropriate, and (c) make available for public inspection before that time on that website a statement outlining the activities that the Minister proposes to prohibit in the zone, and (d) take any representation on the proposal received by the Minister within that time into account before making a decision on the matter. (4) Except as provided by this Act, a notice under this section is not to be revoked wholly or in part otherwise than by Act of Parliament. 19 Prohibition of forestry operations in special management zones (1916 Act, s 21A(2), (2A), (4)–(6) and (8)) (1) The Minister may, by notice in writing to the Corporation— (a) prohibit particular kinds of forestry operations in a special management zone, or (b) prohibit forestry operations in the zone unless particular conditions are complied with. (2) The carrying out of general purpose logging is prohibited in a special management zone. (3) The Corporation must ensure that any forestry operations carried out in a special management zone comply with any prohibition imposed by or under this section. (4) An integrated forestry operations approval does not authorise the carrying out of any forestry operations in a special management zone that are prohibited by or under this section. (5) The Minister may vary or revoke a notice under this section by a further notice. (6) The Minister is to ensure that any notice under this section is made available for public inspection on such website as the Minister thinks appropriate. 20 Revocation of special management zones (1916 Act, s 21A(1B) and (1C)) (1) The Governor may, by notice published in the Gazette, revoke the declaration of any land as or as part of a special management zone and by that notice set apart the land as or as part of a flora reserve. (2) The Governor may, by a notice under Division 1 of Part 4 of the National Parks and Wildlife Act 1974 that reserves land under that Act— (a) revoke the declaration of the land, or any part of the land, as a special management zone, and (b) revoke the dedication of the land, or any part of the land, to which the declaration as a special management zone applies, as State forest. Division 3 Management plans and working plans 21 Management plans for State forests (1) The Corporation is to prepare and adopt plans for its management of State forests. (2) A management plan may relate to one or more State forests. (3) A management plan must contain such information or other matter as may be prescribed by the regulations. (4) A management plan may be amended in accordance with the procedures and requirements of this Division relating to the preparation and adoption of a management plan. 22 Management plans to be consistent with integrated forestry operations approvals (2009 Reg, cl 6) (1) The Corporation is not to adopt a management plan for a State forest that is wholly or partly located in the area to which an integrated forestry operations approval applies unless it is in accordance with the terms of the integrated forestry operations approval for the area. (2) To the extent that a management plan for a State forest that is wholly or partly located in the area to which an integrated forestry operations approval applies is not consistent with the terms of the integrated forestry operations approval for the area, the terms of the approval prevail. (3) The requirements of this section are in addition to the other requirements of this Division in relation to management plans. 23 Procedures for preparing and adopting management plans (2009 Reg, cl 5) (1) Before adopting a draft management plan, the Corporation is to ensure that the draft plan is publicly advertised in a notice that— (a) is published on the website of the Corporation, and (b) includes a brief description of the draft plan, and (c) includes a statement indicating a location at which members of the public may examine a copy of the draft plan, and (d) indicates a closing date on or before which written submissions may be made to the Corporation concerning the draft plan, being a date that is not less than 30 days after the date on which the notice is first published. (2) The Corporation is, before adopting the draft plan, to consider any submissions made to it on or before the closing date for submissions specified in the notice. 24 Review of management plans A management plan for a State forest is to be reviewed— (a) after any review and amendment of any integrated forestry operations approval that applies to the area of the plan to ensure the plan is consistent with that amended approval, and (b) at such other times as the Corporation considers appropriate. 25 Working plans for flora reserves (1916 Act, s 25A(5)) (1) The Corporation is, in respect of each flora reserve, to prepare a detailed written scheme of the operations to be carried out on or in relation to the flora reserve. (2) The object of any such scheme is to be the preservation of native flora on the flora reserve. (3) The Corporation is to submit the scheme for a flora reserve to the Minister for approval and, if approved by the Minister, the scheme becomes the working plan for the flora reserve. (4) Operations may not be carried out on or in relation to a flora reserve unless such operations are in accordance with the working plan for the reserve. (5) The working plan for a flora reserve may, with the approval of the Minister, be amended or altered from time to time. (6) A working plan may contain provisions authorising a local council in whose area a flora reserve is situated to participate to the extent specified in the working plan in the management of the reserve or in carrying out any of the operations authorised by the working plan on or in relation to the reserve. In any such case, the council concerned may expend out of its consolidated fund any money necessary to meet the costs and expenses of exercising the authority conferred on it by the working plan. (7) A working plan may also contain provisions authorising the representative or representatives of any local committee or public body or organisation to participate, to the extent specified in the working plan, in the management of the flora reserve or in carrying out any of the operations authorised by the working plan. Division 4 Acquisition and sale of land 26 Acquisition of land for State forest purposes (1916 Act, s 15(1) and (2)) (1) The Minister may, for the purpose of a State forest, for the purpose of providing access to a State forest or for any purpose necessary for or incidental to the management or control of a State forest, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) On acquisition, the land is vested in the Crown. 27 Acquisition of land dedicated as State forest (1916 Act, s 15(3) and (4)) (1) The Minister may, for the purpose of giving effect to a land exchange agreement, acquire land dedicated as State forest by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) Despite any other provision of this Act, the publication in the Gazette of an acquisition notice under section 19 of the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of this section operates to revoke any dedication as State forest, declaration as special management zone or any dedication or setting apart as flora reserve of the land referred to in the acquisition notice. 28 Acquisition of land for future lease grant or dealing (1916 Act, s 15(4A)–(4E)) (1) The Minister may, on behalf of the Crown, acquire land (including an interest in land) for the purposes of a future lease grant or dealing by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) An acquisition for a future lease grant or dealing is an acquisition— (a) to enable the reservation, dedication or setting apart of land under this Act and the exercise of functions conferred or imposed by or under this Act in relation to land, or (b) to enable the exercise of functions conferred or imposed by or under this Act in relation to land already reserved, dedicated