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Natural Resources and Other Legislation Amendment Bill 2010
Natural Resources and Other Legislation
Amendment Bill 2010
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Natural Resources and Other Legislation
Amendment Bill 2010.
Policy Objectives
The objectives of the Bill are to amend:
· the Land Act 1994 (Land Act), Survey and Mapping Infrastructure Act
2003 (SMIA) and Water Act 2000 (Water Act) to:
· introduce a feature based methodology to:
· resolve uncertainty in the location of ambulatory boundaries
adjoining tidal and non-tidal waters (other than lakes) in the
SMIA; and
· clarify the lateral extent of the State's management powers
in non-tidal watercourses in the Water Act;
· clearly differentiate between the boundary of the State's
ownership of a watercourse and the non-tidal jurisdiction line for
managing a watercourse, by removing State ownership matters
from the Water Act and inserting them into the Land Act.
· the Forestry Act 1959, its Regulations and certain other Acts (Forestry
Act) to:
· facilitate the restructure of the State's interest in Forestry
Plantations Queensland (FPQ) and to amend the Forestry Act and
other legislation to provide an appropriate regulatory framework
for the future. This includes continuation of plantation forestry
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Natural Resources and Other Legislation Amendment Bill 2010
management on State Plantation Forest (SPF) and protecting
existing access rights over SPF; and
· remove the restriction that a natural resource agreement is not an
interest in land. That restriction is currently in Part 6B of the
Forestry Act, which enables a landholder to enter into natural
resource agreements about a natural resource product (e.g.
carbon) and register these agreements as a profit a prendre.
· the Land Act to:
· extend, from 30 to 100 years, the term that a trust lease or sublease
can be granted over an operational Deed of Grant in Trust, and
· clarify some of the key provisions relating to implementation of the
Delbessie Agreement (State Rural Leasehold Land Strategy)
(hereafter referred to as the Delbessie Agreement).
· the Aboriginal Cultural Heritage Act 2003 and Torres Strait Islander
Cultural Heritage Act 2003 to:
· amend the definition of the Aboriginal or Torres Strait Islander
native title party for an area to put beyond doubt the identity of
the native title party for cultural and heritage purposes in the
situation where there are two or more previously registered
claimants for an area.
· the SMIA & Surveyors Act 2003 (Surveyors Act) to:
· make minor changes to the endorsement of individuals and
companies registered as surveyors;
· increase terms for Board appointments and make provision for
filling of a casual vacancy for the chairperson of the Board;
· align the definitions of "professional conduct" and "professional
misconduct";
· enable a former surveyor to authorise another to make
corrections to plans;
· align the making of survey guidelines and survey standards; and
· provide for electronic provision of survey information to the
department.
· the Land Title Act 1994 (Land Title Act) and the Land Act to:
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Natural Resources and Other Legislation Amendment Bill 2010
· clarify, update and improve provisions for the keeping of
registers relating to land; and
· the Land Title Act and Land Act to:
· replace or complement existing advertisement, publication or
notice provisions (excluding gazettal requirements) with a
provision allowing the relevant decision maker or his or her
delegate to determine the most appropriate method of advertising
to be undertaken having regard to the nature of the advertisement
or notice and the target audience.
· the Vegetation Management Act 1999 to:
· further reduce regulatory duplication between the Vegetation
Management Act 1999 and Nature Conservation Act 1992 by
extending the existing national park exemption under the
Vegetation Management Act 1999 to national parks (Aboriginal
land), national parks (Torres Strait Islander land) and national parks
(Cape York Peninsula Aboriginal land).
· the Water Act to:
· provide for the finalisation of the Lower Balonne provisions for
the Condamine and Balonne Resource Operations Plan.
Reasons for the Policy Objectives
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
Ambulatory Boundaries
Tidal and non-tidal ambulatory boundaries are defined (in the Land Act and
Water Act respectively) by reference to a body of water such as a sea or
river. Unlike a right line or fixed boundary, the location of an ambulatory
boundary may shift through gradual and imperceptible movement (erosion
and accretion).
The deed of grant for these types of lots of land identifies that a boundary,
or part thereof, is formed by reference to some type of water. For example
a deed of grant may state that the boundary commences "on the right bank
of the Brisbane River at the East corner of portion ..." or "...on the right
bank of Obi Obi Creek..." or "...on the high-water mark of Keppel
Bay...".
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Natural Resources and Other Legislation Amendment Bill 2010
Over the years varying approaches to the interpretation of these terms and
their effect on the location of a boundary has been evident.
Traditionally, surveyors for the purposes of establishing or determining
ambulatory tenure boundaries, have in most instances, taken a practical
approach and adopted a natural boundary such as a land based feature that
in most cases was to the edge of the useable land.
The natural feature relied upon by the surveyor did not always accord with
the legal definitions in the relevant legislation (currently the Land Act and
Water Act) which determine where an ambulatory boundary is located at
any given time.
Surveyors used "rules and directions" issued by Surveyors-General or the
Registrar of Titles to interpret which feature should be used. Survey plans
were then prepared and areas of lots calculated based on the location of the
boundary in accordance with the extent of the useable land identified by a
surveyor.
Generally, a landowner's understanding and use of tidal and non-tidal
boundary land accords with the relevant survey plan, to define the
boundary, even though the deed of grant is legally authoritative.
With the increasing value of waterfront land, legal challenges to boundary
locations have resulted in Court decisions in relation to both tidal and
non-tidal boundaries which have tended to adopt boundaries closer to the
water than the original survey at the time of grant.
Court decisions such as these may adversely affect both tidal lands and
non-tidal watercourses. For tidal lands, concerns include that beach is
being taken into private ownership, the potential for restricted public access
and damage to fragile dune areas.
Tidal boundaries
An example of a tidal boundary decision was the 1999 Supreme Court case
(Svendsen v State of Queensland & Anor [1996] 1 Qd R 216) (the
Svendsen decision) concerning a high-water mark boundary in which the
Court applied a more literal interpretation of the Land Act than that
interpreted by the State (i.e. to the tidal plane known as mean high water
springs (MHWS)). As a consequence, at least 234 lots along Queensland's
coast and rivers have been resurveyed to MHWS.
The Registrar of Titles may not refuse to register these resurveys as they
are lawful interpretations of the deed of grant. In the case of land adjoining
beaches, some such resurveys have included land that would be considered
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Natural Resources and Other Legislation Amendment Bill 2010
public beach and resurveys of land adjoining non-tidal boundary
watercourses have included land that the State regards as part of the
watercourse. For example, on the coastline near Bargara these resurveys
have caused considerable concern about public access to the beach.
In recognition of the concerns regarding tidal land boundaries, the
government introduced a three-year stay on the registration of tidal land
survey plans in November 2005, during which time a policy response
would be determined. The stay is still in operation. It was extended in
2008 and 2009 whilst the policy response was developed. There is no stay
in place regarding non-tidal land boundaries.
Non-tidal watercourse boundaries
The Water Act provides that the "bed and banks" of a boundary
watercourse are the property of the State, and defines the bed and banks in
terms of the normal flow of the watercourse.
In relation to non-tidal watercourse boundaries the disparity between
surveyed boundaries and the legal definitions seems to arise because of the
need to identify on the ground "normal flow" levels.
Under current law, when a survey is required for a non-tidal boundary
watercourse, the surveyor is faced with uncertainty in the meaning of
normal flow, and with the impracticality of determining the boundary using
flow measurements. Therefore, many surveyors base their survey on a key
feature on the bank of the watercourse.
There are a number of factors affecting interpretation of current definitions
including the:
· extreme variations in the physical features of watercourses caused by
natural erosion and deposition processes over a range of time scales;
· variability of flow conditions in Queensland watercourses - for
example, an annual mean flow, as one definition of "normal" flows,
would easily be contained in the main channel of the Paroo, whereas
in the Wet Tropics large areas of land would be covered. Also, even if
a hydrological definition of "normal" flow is decided upon, locating
this on a one off site visit to determine the extent of the bed and banks
is not practical. Hydrological modelling and mapping would need to
be undertaken; and
· imprecision and circular nature of the current definitions and
uncertainty emerging over time as to whether it was intended that the
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Natural Resources and Other Legislation Amendment Bill 2010
terminology used was intended to capture the lower or upper banks of
a watercourse.
The extent of the State's jurisdictional limit to manage watercourses
The Water Act defines a "watercourse", for amongst other things, locating
the lateral extent of the State's ability to manage and control activities
within the watercourse. The State is obliged to ensure that any State
approved activity undertaken in a non-tidal watercourse such as excavating
or quarrying is done with minimal or no impact to the watercourse. As
stated above, the State's ability to effectively manage potential adverse
impacts can be at times, complex and uncertain.
The Rights in Water and Water Conservation and Utilization Act 1910 (the
1910 Act) established the definition of a watercourse for allocation,
quarrying and tenure purposes. Ever since the 1910 Act there has been
debate over how to interpret the definition to locate the lateral extent of the
watercourse. In fact the Parliamentary debate for the 1910 Act raised many
of the issues that are to be resolved by this Bill.
The State has always maintained a broad interpretation relating to the
lateral extent of its management rights in non-tidal watercourses. Over the
last 15 years, there have been three Queensland lower court decisions in
which the lateral extent of the non-tidal watercourse was an important issue
and in which the State was required to defend its current position. The
judgments in each case favoured a narrower interpretation than that
adopted by State. However, these court findings have done little to clarify
the uncertainties surrounding the current definition.
For example, in Karreman Quarries Pty Ltd v Chief Executive [2007]
QPEC 111 the Court determined that the jurisdictional limit was located at
a point lower than the high bank (or outer bank) despite long standing
practice. There is a risk that in similar circumstances no approval would be
required for such quarrying activity under the Water Act despite
considerable interference within a watercourse.
Forestry Act 1959 - (restructure)
FPQ is a corporation sole established under the Forestry Plantations
Queensland Act 2006, and has operated the State's plantation forestry
operations on a commercial basis since 1 May 2006. Other than a small
number of senior officers, FPQ is staffed by employees of Forestry
Plantations Queensland Office (FPQO), a public sector office under the
Public Service Act 2008, under a work performance agreement.
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Natural Resources and Other Legislation Amendment Bill 2010
FPQ currently holds a profit á prendre allowing it to deal with natural
resource products (NRPs) on SPF land. Under the Forestry Act, SPF land is
that subset of the State forest reserve suitable for use for plantation forestry.
Consistent with announced Government policy, the SPF land will not be
sold to the buyer of FPQ, but will be retained by the State. The only land
sold as a part of this transaction is the freehold land that is directly held by
FPQ. This does not form part of the SPF estate that is owned directly by the
State and governed by the Forestry Act.
The Bill facilitates the restructure of the State's interest in FPQ and to
amend the Forestry Act and other legislation to provide an appropriate
regulatory framework for the future. This includes protecting existing
access rights over SPF.
Forestry Act 1959 - (natural resource agreements)
Part 6B of the Forestry Act establishes legal mechanisms to allow freehold
landholders and lessees who own the trees as improvements to enter into
natural resource agreements (agreements) about the ownership, use and
economic benefit of natural resource products (e.g. trees or carbon) and for
those agreements to be registered as a profit a prendre on the land title
pertaining to the property.
Currently section 61J (4) of the Forestry Act provides that these
agreements do not create an interest in land to the extent they deal with
ownership (of natural resource products). The intention of the government
at the time was to separate the ownership of the land and the rights intrinsic
to the property from the contractual rights of a person in respect of natural
resource products.
Whilst it is likely that registration of the agreement under the Land Title
Act has the effect of creating an interest in land, the removal of section
61J(4) will remove confusion in the industry and ensure that any natural
resource agreement made after commencement will create an interest in the
land. Ensuring that an agreement changing the ownership of trees creates
an interest in land will provide a level of security for landholders entering
into any agreements relating to plantations for use in the voluntary carbon
market. Existing agreements will not be affected by the amendment.
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Natural Resources and Other Legislation Amendment Bill 2010
Land Act 1994
Chapter 6, Part 4, Division 8B
As stated above, Part 6B of the Forestry Act is intended to enable lessees
who own the trees as improvements to enter into natural resource
agreements about the ownership, use and economic benefit of natural
resource products (e.g. carbon). The only mechanism by which such
agreements by lessees can be registered is under Chapter 6, Part 4, Division
8B of the Land Act, which allows the registration of profits a prendre under
the Land Act. However, it is not currently clear that Division 8B covers
carbon related agreements.
Delbessie Agreement
The Delbessie Agreement is a major land management initiative aimed at
ensuring Queensland's rural leasehold land estate remains as productive
and viable as possible, while protecting the natural resources and
environmental values of the rural leasehold estate. For rural leases, the
Delbessie Agreement has clarified duty of care requirements and
introduced land management agreements for leases larger than 100
hectares issued for terms of 20 years or more.
The Delbessie Agreement focuses on achieving:
· improved natural resource management and remediation of leasehold
land;
· greater industry capability to plan at the property level, resulting in
improved profitability, sustainability and certainty;
· improved administration of leasehold land to adapt to emerging issues
and climate change;
· enhanced environmental protection;
· increased monitoring of natural resource condition; and
· enhanced partnerships between lessees and indigenous people through
access and use arrangements for traditional purposes.
As on-ground implementation of the Delbessie Agreement progresses, it is
necessary to provide greater clarity to some of the existing Land Act
provisions by better reflecting the agreement's intent.
A further number of minor amendments and improvements to the Land Act
are required to provide greater clarification to the intent of the Land Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Aboriginal Cultural Heritage Act 2003 & Torres Strait Islander
Cultural Heritage Act 2003
The amendment to the Aboriginal Cultural Heritage Act 2003 and Torres
Strait Islander Cultural Heritage Act 2003 definition of the Aboriginal or
Torres Strait Islander native title party for an area is to take account of a
particular set of circumstances which makes native title party identification
complex.
The amendment deals with the situation where there are two or more
previously registered native title claimants (and no currently registered
native title claimant) for an area. The amendment will provide that the last
of those claimants to have had their native title claim registered over the
area, is the native title party for the area for cultural heritage purposes.
The amendment will put this issue beyond doubt for all stakeholders.
Survey and Mapping Infrastructure Act 2003 & Surveyors Act
2003
A number of deficiencies have been identified in these Acts in relation to:
· endorsement of individuals and companies registered as surveyors;
· terms for Board appointments and provision for filling of a casual
vacancy for the chairperson of the Board;
· lack of alignment of the definitions of "professional conduct" and
"professional misconduct";
· a former surveyor cannot currently authorise another to make
corrections to plans;
· the timing of the making of survey guidelines and survey standards
are not aligned; and
· electronic provision of survey information is not provided for.
Land Title Act 1994 and Land Act 1994 (land registers)
The need for minor amendments to the Land Title Act has been identified
to ensure the keeping of registers relating to land is as efficient, convenient
and accurate as possible, and the rights of persons with interests in land and
the functions and powers of the registrar of titles are clearly defined.
Provisions of the Land Act relating to the keeping of land registers need to
be amended for consistency with the Land Title Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Land Title Act 1994 and Land Act 1994 (advertising
amendments)
The provisions in the Land Title Act and Land Act do not currently enable
the decision maker to determine the most appropriate method of
advertising, publishing or giving notice (excluding gazettal requirements)
to be undertaken having regard to the nature of the advertisement or notice
and the target audience.
Vegetation Management Act 1999
The amendment to the Vegetation Management Act 1999 to extend the
existing national park exemption to additional national parks is appropriate
because these additional national parks are already adequately protected,
with vegetation clearing only allowable when it is conducted in accordance
with the stringent management principles already in place under the Nature
Conservation Act 1992.
Water Act 2000 (Finalising the Lower Balonne provisions for
the Condamine and Balonne Resource Operations Plan)
The Lower Balonne provisions of the draft Condamine and Balonne
Resource Operations Plan were deferred from finalisation in December
2008 to enable the completion of an outstanding legal proceeding (now
considered).
While the Lower Balonne provisions remain unfinalised, the water users in
the area continue to be at a disadvantage as compared to other water users
in the catchment who have had their water entitlements converted to
tradeable water allocations.
The Lower Balonne catchment is the only major catchment in the
Murray-Darling Basin which does not yet have tradeable water access
entitlements.
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Natural Resources and Other Legislation Amendment Bill 2010
How the Policy Objectives will be achieved
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
Tidal and non-tidal boundaries
Upon commencement of the Bill, subject to limited exceptions, the
ambulatory boundary of all lots of land will be the feature as identified on
the current plan of survey (the current plan). For example, the current plan
may identify that the boundary was considered by the surveyor to be the toe
of a stable dune, part of a riverbank, or in the case of extended boundaries,
mean high water springs.
The ambulatory boundary will remain as identified on the current survey
plan and subject to the doctrine of erosion and accretion until such time as
a landowner resurveys his or her ambulatory boundary. Unless it is a
reserved plan of survey, any new plan of survey (new plan) with an
ambulatory boundary lodged after commencement of this Bill must have
been prepared using the new rules or it will not be registered.
Further surveys will continue to be located at the feature subject to the
ambulatory boundary principles.
The Bill includes a declaratory power for the Chief Executive to declare
boundaries for a single lot or a larger area comprising of more than one lot,
even when survey plans for all of the land have not been lodged. This may
be used where, for example, the high-water mark for several adjoining lots
has been significantly modified and determining the tidal boundary has
been problematic.
In order to more clearly differentiate between the boundary of the State's
ownership of a watercourse and the non-tidal jurisdiction line for managing
a watercourse, provisions dealing with State ownership are removed from
the Water Act and inserted into the Land Act.
Riparian rights will not be adversely affected by the proposed changes to
non-tidal ambulatory boundaries.
Non-tidal jurisdiction scheme
Upon commencement a feature-based definition will determine the extent
of the State's jurisdiction to manage activities within a watercourse. This is
similar to the approach used in the Wild Rivers Act 2005, which uses a
feature-based definition for "nominated waterway" rather than a flow based
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Natural Resources and Other Legislation Amendment Bill 2010
definition. Adopting a similar definition for non-tidal watercourses will
provide increased certainty and consistency across legislation and in the
management and control of all watercourses throughout Queensland.
On commencement, any existing activity, such as gravel extraction,
undertaken within the outer banks of a watercourse that had not previously
been considered to be within the watercourse will require approval by the
Chief Executive under the Water Act. A transitional provision will provide
a period of six months for such approvals to be sought. This situation is
anticipated to occur in a very small number of cases.
Where an application for continuing activities is refused and a business can
demonstrate particular hardship arising because of the expansion of the
watercourse jurisdiction, an application may be made to the Department of
Environment and Resource Management (the Department) for approval to
continue the activities for a reasonable time while that business undertakes
transitional arrangements to transition their activities out of the
watercourse.
Forestry Act 1959 (restructure)
Legislation is necessary to:
· facilitate the restructure of the plantation forestry business of FPQ and
the orderly withdrawal of the Government from conducting the
business of commercial plantation forestry;
· achieve certain policy objectives of the Government, including
protecting existing lawful access rights over SPF, and requiring that
SPF land be used for plantation forestry purposes on an ongoing basis;
and
· update the Forestry Act and other legislation so that it is capable of
working effectively in a restructured plantation forestry environment.
The Bill achieves its main policy objectives by:
· providing for the land comprising the SPF estate to be remapped,
ensuring that the boundaries of the estate are appropriate and certain
at the point when the State divests its interest in FPQ's plantation
forestry business;
· establishing a legislative scheme that will allow the Minister to grant
plantation licences over SPF land. A plantation licence will enable the
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Natural Resources and Other Legislation Amendment Bill 2010
plantation licensee to undertake plantation forestry operations within
all or part of the SPF estate (licence area) on a sustainable basis;
· requiring the plantation licensee to ensure that:
· the licence area is used for the purpose of plantation forestry; and
· the plantation licensee does not unreasonably restrict the lawful use
of the licence area by members of the public and others,
and providing for possible cancellation of the plantation licence
over all or part of the licence area should the plantation licensee
breach these obligations;.
· creating a register for the registration of plantation licences and other
relevant interests in plantation licences to be administered by the
Registrar of Land Titles, as a delegate of the Chief Executive (lands);
· providing for statutory functions and powers relating to SPF currently
held by FPQ and FPQO to revert to the Chief Executive (other than in
relation to statutory FPQ sales permits which comprise a key
commercial asset of FPQ's business);
· making provisions to permit the plantation licensee to deal with
existing sales agreements of FPQ;
· enabling the Chief Executive to delegate certain functions and powers
under the Forestry Act (essentially being those functions and powers
necessary to operate a plantation forestry business on the SPF land) to
the plantation licensee and certain other persons;
· placing obligations on the plantation licensee and certain other
persons to prevent and control fire within the licence area; and
· amending certain legislation of general application to ensure that the
plantation licensee's commercial interest is appropriately reflected in
other Acts.
Forestry Act 1959 - (natural resource agreements)
The Bill will amend the Forestry Act to ensure that any natural resource
agreement made after commencement will create an interest in the land.
Ensuring that an agreement changing the ownership of trees creates an
interest in land will provide a level of security for landholders entering into
any agreements relating to plantations for use in the voluntary carbon
market. Existing agreements will not be affected by the amendment.
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Natural Resources and Other Legislation Amendment Bill 2010
Land Act 1994
Chapter 6, Part 4, Division 8B
Chapter 6, Part 4, Division 8B of the Land Act is amended by the Bill to
clarify that a lessee may, subject to the provisions of the part, register a
profit a prendre in relation to carbon sequestration and to clarify the link
between this Division and Part 6B of the Forestry Act.
Delbessie Agreement
The Bill strengthens the Land Act provisions relating to the Delbessie
Agreement by:
· clarifying the requirements for granting or reducing longer lease terms
and lease extensions over rural leasehold land and ensuring in the
process that all rural leases affected by the Delbessie Agreement are
adequately covered by legislation and that they are treated in a
consistent and equitable manner;
· allowing certain leases over rural leasehold land in the Cape York
region to be extended for a term of up to 75 years and providing
guidance on the relevant requirements;
· standardising the timeframe for applying for a lease extension;
· removing any perverse incentive that could encourage actions which
result in land degradation in order to qualify for lease extensions;
· requiring that the Minister must be satisfied with agreements for
nature conservation and indigenous access and use to ensure that they
are of an acceptable standard and fully satisfy the purpose for which
they were intended;
· streamlining decision-making in relation to the offer of lease
extensions, the condition of lease land, land management agreements,
nature conservation agreements or conservation covenants, and
indigenous access and use agreements.
A further number of minor amendments and improvements to the Land Act
such as exchanging land, registration of land management plans,
conversion of tenure, further dealing with a significant development lease
and forfeiture because of fraud and rental matters are made by the Bill to
give greater clarification to the intent of the Land Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Aboriginal Cultural Heritage Act 2003 & Torres Strait Islander
Cultural Heritage Act 2003
The Bill amends the Aboriginal Cultural Heritage Act 2003 and the Torres
Strait Islander Cultural Heritage Act 2003 by amending the definition of
the Aboriginal or Torres Strait Islander native title party for an area. This
amendment will put beyond doubt the identity of the native title party for
cultural purposes in the situation where there are two or more previously
registered claimants for an area.
Survey and Mapping Infrastructure Act 2003 & Surveyors Act
2003
The Bill amends the SMIA and the Surveyors Act to provide for:
· minor changes to endorsement of individuals and companies
registered as surveyors;
· increased terms for Board appointments and provision for filling of a
casual vacancy for the chairperson of the Board;
· alignment of the definitions of "professional conduct" and
"professional misconduct";
· enabling a former surveyor to authorise another to make corrections to
plans;
· aligning the making of survey guidelines and survey standards; and
· electronic provision of survey information to the Department.
Land Title Act 1994 and Land Act 1994 (land registers)
The Bill provides minor amendments to the Land Title and the Land Act to
clarify, update and improve provisions for the keeping of registers relating
to land.
Land Title Act 1994 and Land Act 1994 - (advertising
amendments)
The Bill amends the Land Title Act and Land Act to replace or complement
existing advertisement, publication or notice provisions (excluding gazettal
requirements) with a provision allowing the relevant decision maker or his
or her delegate to determine the most appropriate method of advertising to
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Natural Resources and Other Legislation Amendment Bill 2010
be undertaken having regard to the nature of the advertisement or notice
and the target audience.
Vegetation Management Act 1999
Amendment to section 7 (1)(b) (Application of Act) of the Vegetation
Management Act 1999, to include national parks (Aboriginal land), national
parks (Torres Strait Islander land) and national parks (Cape York Peninsula
Aboriginal land) to the other national parks already exempted under this
section.
Water Act 2000
The Bill amends the Water Act to provide for the finalisation of the Lower
Balonne provisions for the Condamine and Balonne Resource Operations
Plan.
Alternatives to the Bill
For all the amendments in the Bill, there are no other viable alternatives
that would achieve the policy objectives other than the proposed Bill.
Estimated administrative Cost to the Government for
implementation
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
These proposed amendments do not have any direct financial implications
for Government. Any additional costs arising from the implementation of
the proposed amendments will be met from within existing Departmental
resources.
Forestry Act 1959 (restructure)
Post-restructure and disposal, the Government will not conduct plantation
forestry operations on SPF. There will be an ongoing need for a contract
management function within the Department of Environment and Resource
Management in relation to the plantation licence and the related
agreements, and an additional demand on the resources of the Land
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Natural Resources and Other Legislation Amendment Bill 2010
Registry in relation to the new registration system for plantation licences.
However neither are expected to involve significant expense.
The cost of administering the Bill will be offset by the proceeds from the
disposal of FPQ.
Forestry Act 1959 - (natural resource agreements), Land Act
1994, Survey and Mapping Infrastructure Act 2003, Aboriginal
Cultural Heritage Act 2003 & Torres Strait Islander Cultural
Heritage Act 2003, Surveyors Act 2003, Land Title Act 1994 and
Land Act 1994 (land registers), Land Title Act 1994 and Land
Act 1994 - (advertising amendments), Vegetation Management
Act 1999
These proposed amendments do not have any direct financial implications
for Government. Any additional costs arising from the implementation of
the proposed amendments will be met from within existing Departmental
resources.
Consistency with Fundamental Legislative Principles
The Bill is generally consistent with fundamental legislative principles.
Potential breaches of fundamental legislative principles are addressed
below.
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
Legislation should provide for the compulsory acquisition of property only
with fair compensation--Legislative Standards Act 1992, section 4(3)(i).
Tenure issues
The approach adopted in this Bill is to use trigger points for ambulatory
boundary location. On the trigger point, the location at law of the
ambulatory boundary shifts in accordance with the relevant formula
included in the new provisions, regardless of what is or may have been
depicted on any plan of survey for the land, and even, to some extent at
least, regardless of a strict construction of the words of any deed of grant.
The new legislative provisions aim to achieve greater certainty and
practicality in the identification of ambulatory boundaries by legally
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Natural Resources and Other Legislation Amendment Bill 2010
underpinning a moving away from a water level or flow level based
approach and moving towards a natural feature based approach.
Because of the significant variety of circumstances that could apply, there
are significant exceptions applying, including the possibility that the Chief
Executive could declare the location of the boundary (clause 215, new
sections 83 (Third exception for the original adopted natural feature rule
(tidal) provision (Chief Executive single lot declaration (tidal exception),
93 (Multiple lot declaration (tidal) provision), 109 (First exception for the
boundary location criteria rule (non-tidal) provision (Chief Executive
single lot declaration (non-tidal) exception) and 120 (Multiple lot
declaration (non-tidal) provision)).
Clause 215 of the Bill inserts a new section 122 into SMIA which provides
appeal provisions in relation to the Chief Executive declarations mentioned
above.
Clause 215, new sections 94 (No compensation for operation of div 2 or
this division) and 121 (No compensation for operation of division 4 of this
division) provide that no compensation will be payable in relation to the
operation of the new ambulatory location rules being implemented by this
Bill.
At each trigger point, a scheme of compensation for any statutory shifting
of boundaries would appear to involve significant expense and difficulty
with little benefit to land owners. For example, working out precisely
where an ambulatory boundary used to be could involve difficult
fact-finding, and application of difficult to apply legal principles, to achieve
an answer that will be of no future benefit.
The first major trigger point is the commencement of the legislative
changes. At this point in time, Clause 215 of the Bill inserts new sections
76 (Current adopted natural feature rule (tidal) provision) and 103 (Current
adopted natural feature rule (non-tidal) provision) into the SMIA to provide
that the boundary at law will, where possible, become the line of the
current location of a natural feature shown in the current plan of survey,
even though, immediately before the commencement of the legislative
changes, the boundary could have been located at law closer to the water
than that current location. In other words, in some cases, at the first trigger
point, the area of a parcel of land could be reduced by operation of statute.
The operation of the first trigger point is justified by:
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Natural Resources and Other Legislation Amendment Bill 2010
· the necessity to maintain public access and ownership of Queensland
beaches and the otherwise prohibitive cost of doing so should
compensation be payable to all affected landholders;
· the location of the boundary will arguably continue to accord with a
landholder's expectation that the current survey plan for the lot depicts
the full extent of their land. The area described on the survey plan
will not alter and the lot remains subject to erosion and accretion;
· the uncertainty in the current statutory definition of the boundary for
non-tidal lots, making it difficult to determine the current location of
the boundary at law;
· the potentially vast number of lots that may be affected and therefore
the compensation payable could be quite large, particularly in the case
of non-tidal lots; and
· the resource intensive process to identify all lots for which
compensation may be payable. For non-tidal blocks it would be
necessary to investigate stream conditions in order to determine (in
accordance with recent court decisions) "where water normally
flows".
The other major trigger point is the registration of the first new plan of
survey for the land after the commencement of the legislative changes.
Clause 215 of the Bill inserts new sections 80 (Original adopted natural
feature rule (tidal) provision) and 108 (Boundary location criteria rule
(non) tidal provision) that provide that:
· for a tidal boundary, at this point in time the boundary at law will
where possible become the current location of a natural feature
identified by going right back to the first old plan of survey that
adopted a natural feature; and
· for a non-tidal boundary, a natural feature identified under criteria
stated in the new legislative provisions will locate the boundary at law.
There is a possibility here is, again, that before the registration of the first
new plan of survey, the boundary could have been located at law closer to
the water than its new location. In other words, again, in some cases, at the
second trigger point, the area of a parcel of land could be reduced by
operation of statute. This trigger point occurs when the owner of the land
decides to deal with the land in a way that requires a survey of the land.
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Natural Resources and Other Legislation Amendment Bill 2010
There has been an analogous situation in the local government context in
which the High Court determined that if the surrender of property is
required as a condition to consent, for example, to a subdivision approval,
the acquisition is not compulsory as the developer has the option not to
continue with the subdivision (Lloyd v. Robinson (1962)). The general
principles of this case will apply to the proposed amendments.
Accordingly, in this circumstance the fundamental legislative principle of
acquisition with fair compensation is not breached.
It must also be noted that the loss of area as outlined above may, in many
cases, be technically true, but practically of little or no consequence. For
example, for land with a tidal boundary, planning legislation and coastal
protection legislation have over the years reduced the scope for
development. For land with a non-tidal watercourse boundary, any loss of
land area is balanced to some extent by a corresponding extension into the
lost land of the riparian rights provided for in the Water Act. (These rights
are being transferred to the Land Act).
State Jurisdiction
Clause 239 of the Bill, new section 5 (Meaning of watercourse) provides
new criteria for determining the outer limits of State jurisdiction under the
Water Act. The amendments, on commencement, may extend the State's
jurisdiction into parts of privately owned land not previously under the
State's jurisdiction for the purposes of the Act.
The jurisdictional amendments do not involve any loss of private land area,
but could involve the application of Water Act requirements to land not
previously subject to those requirements, for example, a requirement for to
obtain a permit to take quarry material from a watercourse. It is arguable
that this may be considered a diminution of property rights.
It is unlikely that these amendments will negatively impact upon many
landholders as the Department has consistently taken a practical approach
to the administration of the Water Act and asserted a broad jurisdictional
extent in relation to watercourses. Consequently it is likely that there will
be only insignificant changes to a small number of landholder's activities.
The impacts of these amendments will be largely ameliorated by
transitional provisions to be included in the Water Act which will on a
temporary basis maintain the authority of licences and permits for activities
on land that, on the commencement of the new Act, becomes land under
the jurisdiction of the department as a watercourse.
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Natural Resources and Other Legislation Amendment Bill 2010
The amendments are aimed at moving away from a problematical flow
level based approach to the identification of the extent of a watercourse,
and moving towards a natural feature based approach to provide greater
certainty as to jurisdiction
Land Act 1994
Whether legislation has sufficient regard to rights and liberties of
individuals by being consistent with principles of natural justice--LSA, s
4(3)(b)
Delbessie Agreement
Clause 110 replaces section 155D of the Land Act that provides for the
Minister's power to reduce the extended term of a rural lease. The
replacement provisions will allow the Minister to reduce not only the
extended term, but also the original term of the lease, if requirements that
were met by the lessee at the time the original lease was granted cease
being met, and those requirements formed the basis for the particular term
of the lease being granted.
It is arguable that these amendments would not be consistent with
principles of natural justice because although an appeal against the
Minister's decision would be available under section 155D, natural justice
requires a right to make submissions before the decision is made.
However, the amendment inserts a requirement that the lessee must be
notified in writing of the proposed exercise of the power to reduce the term
of the lease and the lessee may make a submission in response.
Additionally, the decision must be notified in writing and is appealable.
Land Title Act 1994
Legislation should have sufficient regard to rights and liberties of
individuals--Legislative Standards Act 1992, section 4(3).
Clause 193 of the Bill amends section 130 of the Land Title Act to clarify
that that section does not apply in relation to a caveat lodged by the
registrar of titles (registrar).
The intent of section 30 is to discourage persons from lodging caveats
under section 122 for improper purposes, that is when there is no real basis
on which an interest in land can be claimed. The registrar's power to lodge
a caveat under section 17 is to assist in the registrar's statutory functions,
which may require lodgement of a caveat to protect the integrity of the
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Natural Resources and Other Legislation Amendment Bill 2010
freehold land register and/or to protect the rights of persons with an interest
in land in certain circumstances. The reversal of the onus of proof and
compensation provided for in section 130 are not appropriate, and were
never intended to apply, in relation to registrar's caveats. The amendment
is for clarification as section 189(1)(i) already provides that no
compensation is payable in relation to a registrar's caveat. However this
could be interpreted as applying only to compensation under section 188 or
section 188A and it is desirable to clarify that no compensation is available
under section 130. The amendment does not abrogate any rights a person
may have at common law.
Aboriginal Cultural Heritage Act 2003 & Torres Strait Islander
Cultural Heritage Act 2003
Whether legislation has sufficient regard to rights and liberties of
individuals by:
· being consistent with principles of natural justice--LSA, s 4(3)(b);
and
· having sufficient regard to Aboriginal tradition and Island custom -
LSA, s4(3)(j)
The proposed amendment at clause 4 seeks to recognise the last registered
native title claim over an area where there are two or more previously
registered claimants for an area. Currently, section 34(1)(b)(i)does not
distinguish between previously registered native title claimants and as a
result, any previously registered claimant is considered to be the Aboriginal
party for an area.
This does not cause any concerns where there are no overlaps to consider.
However when dormant previously registered native title claims become
active upon the dismissal/discontinuance/withdrawal/striking out of the last
registered claim by the Federal Court, problems are created for
stakeholders engaged in cultural heritage activities seeking to identify the
native title party.
No transitional provisions are envisaged as the Department intends to
recognise all agreements received prior to the amendments to the Acts
being implemented.
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Natural Resources and Other Legislation Amendment Bill 2010
Forestry Act 1959 (restructure)
Whether legislation has sufficient regard to rights and liberties of
individuals by having sufficient regard to Aboriginal tradition and Island
custom (Legislative Standards Act, s 4(3)(j))
The grant of a plantation licence in respect of the SPF may have native title
implications. Advice from Crown Law was obtained in relation to this
issue. The Bill does not extinguish native title rights. Further, the grant of a
plantation licence under the proposed provisions is the grant of a
non-exclusive licence and does not extinguish native title rights. Native title
holders remain entitled to seek compensation under the Native Title
(Queensland) Act 1993 and the Native Title Act 1993 (Cth). Thus, it is
submitted that the Bill has sufficient regard to Aboriginal tradition and
Island custom.
Delegation of administrative power only in appropriate cases and to
appropriate persons (Legislative Standards Act 1992 section 4(3)(c))
Delegation
The Bill proposes to delegate certain powers to a plantation licensee to
allow it to:
· control the activities and conduct of persons within its licence area;
and
· administer pre-existing licences/permits and issue new
licences/permits.
The plantation licensee requires the power to control the activities and
conduct of persons within its licence area to ensure the safety of persons
and to protect the interests of licence and permit holders.
The delegation of powers to administer pre-existing licences/permits and
issue licences/permits to the plantation licensee is consistent with the
policy goal of ensuring access to the land and the principle of ensuring the
plantation licensee has appropriate authority to manage the land.
These powers are limited to the licence area and the proposed Bill
ultimately vests these powers in the State (with the exception of powers
relating to pre-existing commercial contracts for the sale of plantation
timber previously issued in the form of "sales permits" under the Forestry
Act, which will be administered by the plantation licensee directly). The
powers will be delegated by deed. The Delegation Deed provides the State
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Natural Resources and Other Legislation Amendment Bill 2010
with a mechanism to control and manage the plantation licensee's exercise
of its powers.
As there are good policy grounds for the plantation licensee to be able to
exercise delegated powers, and the State is incorporating adequate controls
of the exercise of that power into the Delegation Deed, it is submitted that
the delegation of power in these circumstances is appropriate.
Appointment of plantation licensee as an administering entity for
existing sales permits
FPQ derives its right to the NRPs in the SPF from its profit a prendre
granted under section 46A of the Forestry Act. When FPQ was
established, sales permits granted by the Department of Primary Industry
and Forestry to customers to purchase NRP were vested in FPQ under the
Forest Plantations Queensland Act 2006. FPQ was granted powers to
administer those contracts under the Forestry Act independently of the
Chief Executive of the Department who administers the Forestry Act. FPQ
continued the business of entering into commercial agreements with
customers to purchase NRPS exercising these powers under its commercial
mandate set out in section 12 of the Forest Plantations Queensland Act
2006 (the post 2006 agreements).
The sales permits vested in FPQ and the post 2006 agreements may have
dual legal characteristics, namely as both a general law contract and as a
statutory permit (ie a sales permit) (sales permits/commercial agreements).
They are a general law contract in that the commercial terms were
negotiated at arms length between the parties. They are also sales permits
since they may have been simultaneously issued as a permit under section
56 of the Forestry Act. It is intended to vest the business, asset and
liabilities of FPQ (including the sales permits/commercial agreements) into
a special purpose vehicle (NewCo) by a transfer notice under the
Infrastructure Investment (Asset Restructuring and Disposal) Act 2009.
This does not deal with the statutory permit characteristic of the sales
permits/commercial agreements. In the absence of a provision to the
contrary, the sales permits/commercial agreements may also be subject to
the control of the Chief Executive of the Department.
Given that the sales permits are an essential commercial asset of NewCo,
this is an unintended and inappropriate outcome. An illustration of the
difficulty arising is where NewCo seeks to determine a sales
permit/commercial agreement lawfully in accordance with its commercial
terms. The customer may seek to argue that the statutory permit itself has
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Natural Resources and Other Legislation Amendment Bill 2010
not been lawfully terminated, since it may only be terminated by the Chief
Executive under the Forestry Act.
It is proposed to deal with this issue in two ways. Firstly, it is necessary to
grant to NewCo a set of powers under the Forestry Act including powers
under section 58(1) and 58(1B) to the exclusion of the Chief Executive of
the Department by appointing NewCo as an administering authority for
these and other provisions solely in relation to these sales
permits/commercial agreements.
If that is the case NewCo may exercise powers under the Forestry Act and
under the general law to manage the sales permits/commercial agreements.
Thus in certain circumstances NewCo may terminate a sales
permits/commercial agreement where a customer has contravened the
Forestry Act or a term of the sales permit/commercial agreement. The
termination if exercised under section 58 will cancel the statutory permit.
Two control mechanisms are proposed to constrain the exercise of the
powers to terminate under section 58(1) and 58(1B) of the Forestry Act.
Firstly, where a sales permit/commercial agreement contains terms and
conditions permitting termination under the general law, NewCo may only
terminate the statutory permit under section 58, if it is also permitted to
terminate the sales permit/commercial agreement under the general law.
Secondly, where a sales permit is more akin to a statutory permit than a
commercial agreement and does not contain terms and conditions
permitting termination under the general law, NewCo may exercise its
powers under section 58 to terminate the sales permit. However this is a
decision that can be reviewed by the Chief Executive under the Forestry
Act.
It is further submitted that the power is sufficiently constrained and its
exercise is subject to appropriate review. The Judicial Review Act 1994
continues to apply to decisions made under provisions of the Forestry Act,
including section 58. To the extent that the sales permits are agreements,
conduct which is in breach of the agreement can be litigated in a Court of
appropriate jurisdiction. If the consequence of the exercise of a statutory
power is in breach of the terms of the commercial agreement, it may give
rise to judicial review remedies and it also may give rise to a common law
right to damages.
Whether legislation has sufficient regard to rights and liberties of
individuals by delegation of administrative power only in appropriate
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Natural Resources and Other Legislation Amendment Bill 2010
cases and to appropriate persons (Legislative Standards Act 1992, s
4(3)(c))
It is proposed that the powers of the Minister and the Chief Executive under
the Forestry Act and the Chief Executive (fire) under the Fire and Rescue
Service Act 1990 (Fire Act) will initially be exercised by the Treasurer.
The rights of the Treasurer to exercise these powers will be terminated after
an initial "bedding in" period by way of gazette notice. The relevant
provisions are subject to a sunset clause. The conferral of powers does not
deprive the Minister or the Chief Executive under the Forestry Act and the
Chief Executive (fire) of that head of administrative power and thus the
overall administration of the Forestry Act will not be affected. The
appropriation of these powers is necessary to facilitate the efficient and
effective restructure of FPQ and the completion of transaction
documentation.
Compulsory acquisition of property only with fair compensation
-(Legislative Standards Act 1992 section 4(3)(i))
Amendments will be made to the Forestry Act to provide for the transition
of certain areas of SPF of high conservation value back to the State at a
certain date without payment of compensation to the plantation licensee.
These "conservation hand back" areas have been identified by agreement
with conservation stakeholders. The State is permitting the plantation
licensee to harvest these areas at the end of the current growth cycle, and
requiring the plantation licensee to remediate the land to an appropriate
standard. Accordingly, the plantation licensee obtains the benefit of a
single rotation. Potential bidders will be made aware of the conservation
hand back areas intended to revert to the State. Given that:
· these areas have been identified as conservation areas;
· the plantation licensee's right to harvest these areas is limited to a
single rotation; and
· the successful bidder will be aware of this limitation prior to making
its bid,
it is submitted that this does not constitute a compulsory acquisition of
property.
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Natural Resources and Other Legislation Amendment Bill 2010
Water Act 2000
Legislation should make rights and liberties, or obligations, dependent on
administrative power only if the power is sufficiently defined and subject to
appropriate review (Legislative Standards Act 1992,section 4(3)(a)).
The Legislative Standards Act 1992 (LSA 1992) defines fundamental
legislative principles (FLPs) as principles relating to legislation that
underlie a parliamentary democracy based on the rule of law.
The proposed amendment to finalise the Lower Balonne provisions
(deferred from finalisation in December 2008) for the Condamine and
Balonne Resource Operations Plan (CB ROP) poses in clause 243 a
potential breach of the principle which provides that legislation should
make rights and liberties, or obligations, dependent on administrative
power only if subject to appropriate review [LSA s4(3)(a)].
The potential breach is in relation to the inclusion of a provision that affects
the review and appeal rights for aggrieved persons which would ordinarily
be available under existing process for finalisation of a Resource
Operations Plan (ROP).
In this situation existing administrative powers to amend a ROP are not
being used and instead legislative power is to be used which is excluded
from review by the Judicial Review Act 1991.
Restricting the right to judicial review is considered justified in this case as
it is balanced with the extensive consultation undertaken throughout the
ROP development process and the robust merit review process undertaken
by the ROP Referral Panel.
Extensive consultation was undertaken over a period of several years
during the preparation of the draft CB ROP and prior to finalising the CB
ROP, giving interested parties opportunity to provide input. This included
public release of the notice of intention to prepare the draft CB ROP and
submissions on the draft CB ROP.
In addition, the Chief Executive established a referral panel (ROP Referral
Panel) to advise on relevant matters about the draft CB ROP and public
submissions to it. A ROP Referral Panel is an expert panel of independent
members of the public, established to review the draft CB ROP, any
relevant submissions and make recommendations to the Chief Executive.
In preparing the final draft CB ROP the Chief Executive considered the
recommendations of the ROP Referral Panel, including recommendations
relating to the Lower Balonne provisions.
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Natural Resources and Other Legislation Amendment Bill 2010
Finally, the Supreme Court of Queensland (in Munya Lake Pty Ltd & Ors v
The Chief Executive, The Department of Natural Resources and Water)
considered and reviewed the previous decision process and found in favour
of the Chief Executive and did not find fault.
Consultation
Community and industry stakeholders
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
Key external stakeholders were consulted during July and August 2009 and
included:
· Cement Concrete & Aggregates Australia;
· Urban Development Institute Australia;
· Surveying and Spatial Sciences Institute;
· Queensland Conservation Council;
· Local Government Association of Queensland;
· Spatial Industries Business Association;
· Queensland Farmers Federation;
· AgForce;
· Queensland Law Society; and
· Queensland Resources Council.
Aboriginal Cultural Heritage Act 2003 & Torres Strait Islander
Cultural Heritage Act 2003
The Department has discussed this issue with Queensland Gas Company,
Australia Pacific LNG, Origin Energy, Arrow Energy, Xstrata, Santos,
representatives of the Barunggam People, and members of the Wiri People
Core Country native title claim group.
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Natural Resources and Other Legislation Amendment Bill 2010
Forestry Act 1959 (restructure)
Targeted consultation has been undertaken with specific stakeholder groups
including employees, unions, customers of FPQ, joint venture partners and
conservation groups.
Surveyors Act 2003
The Surveyors Board, the Spatial Industries Business Association and the
surveying profession were consulted on the proposed amendments
regarding endorsement of individuals and corporations.
Land Act 1994 and Land Act 1994 (land registers)
The proposed amendments to the Land Act to support the Delbessie
Agreement have been tabled with the State Rural Leasehold Land
Ministerial Advisory Committee (MAC) in their November 2009 meeting
Government
Representatives from the following Departments were consulted in relation
to the Bill:
· The Department of the Premier and Cabinet and Queensland Treasury
have been consulted throughout the development of the Bill on issues
relating to compensation. Various other government agencies have
been consulted on the tidal and non-tidal feature based methodologies.
· Primary Industries and Fisheries have also been consulted in relation
to the amendment to the Forestry Act and are supportive of the
amendment due to their ongoing interest in facilitating investment in
Queensland's timber plantation industry.
Results of consultation
Community
Land Act 1994, Survey and Mapping Infrastructure Act 2003
and Water Act 2000 - (ambulatory boundaries)
The Queensland Resources Council did not provide any specific feedback
on the consultation draft of the Bill and stated that they will continue to
monitor the progress and implementation of the legislative changes.
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Natural Resources and Other Legislation Amendment Bill 2010
One of the key concerns raised has been the lack of compensation to
landowners whose boundary shifts on commencement.
Other concerns raised included the effect of the Bill on development
applications lodged and on existing extraction operations in watercourses.
Aboriginal Cultural Heritage Act 2003 & Torres Strait Islander
Cultural Heritage Act 2003
The consultation parties indicated that it sought leadership from the
Department, as the administrator of the Acts to eliminate any conjecture
and uncertainty relating to the definition of the native title party for an area
where there are two or more previously registered claimants for an area.
The amendment will eliminate duplication of processes in certain
circumstances, which was welcomed by some of the consultation parties.
Surveyors Act 2003
The Spatial Industries Business Association does not consider it necessary
to require a corporation registered as a surveyor to employ a surveyor who
holds a consulting endorsement. However, there is widespread support
amongst the profession for the proposed amendment. The Surveyors Board
considers the amendment essential to ensure that corporations registered as
surveyors have the relevant competency.
Land Act 1994
The State Rural Leasehold Land Ministerial Advisory Committee has not
identified concerns about the amendments relating to the Delbessie
Agreement.
Government
All Departments consulted supported the Bill.
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Natural Resources and Other Legislation Amendment Bill 2010
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 provides that the short title of the Act is the Natural Resources
and Other Legislation Amendment Act 2010.
Commencement
Clause 2 provides that the following parts of the Bill commence on a day to
be fixed by proclamation:
· part 3 (Amendment of the Aboriginal Land Act 1991);
· part 4 (Amendment of the Coastal Protection and Management Act
1995);
· part 12 (Amendments of the Land Act commencing by Proclamation);
· part 15 (Amendment of State Development and Public Works
Organisation Act 1971);
· part 16 (Amendment of Survey and Mapping Infrastructure Act 2003);
· part 17 (Amendment of Surveyors Act 2003);
· part 19 (Amendment of Torres Strait Islander Land Act 1991);
· part 21 (Amendment of Water Act 2000), other than sections 237 and
243 (Insertion of new ch 8, pt 4B - Special provision for Condamine
and Balonne Resource Operations Plan).
· clauses 199 to 202 (insertion of new section 196A - Publication of
particular public notices on department's website); and
In relation to the Forestry Act - restructure amendments to be effected by
this Bill:
· amendments relating to the eventual dissolution of FPQ and the repeal
of the Forestry Plantations Queensland Act 2006 (contained in clause
72 (to the extent it inserts new section 131 into the Forestry Act),
clause 249 and the amendments to the Public Service Act 2008 and the
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Natural Resources and Other Legislation Amendment Bill 2010
Statutory Bodies Financial Arrangements Act 1982 in the schedule))
commence on a day to be fixed by proclamation; and
· certain transitional and consequential provisions which have the effect
of making either the Chief Executive administering the Forestry Act
or the plantation licensee the "successor" of FPQ need to commence
simultaneously with the granting of the first plantation licence. These
transitional and consequential provisions are listed in subclause 2(3).
Subclause 2(4) facilitates public notice of the date of effect of the
transitional and consequential provisions by requiring the date to be
notified by gazette notice.
Part 2 Amendment of Aboriginal
Cultural Heritage Act 2003
Act amended
Clause 3 provides that this part amends the Aboriginal Cultural Heritage
Act 2003.
Amendment of s 34 (Native title party for an area)
Clause 4 amends the definition of the Aboriginal native title party for an
area to put beyond doubt the identity of the native title party for cultural
purposes in the situation where there are two or more previously registered
claimants for an area. The amendment will put this issue beyond doubt for
all stakeholders.
Part 3 Amendment of Aboriginal Land
Act 1991
Clause 5 provides that this part amends the Aboriginal Land Act 1991.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 20 (Beds and banks of watercourses and
lakes)
Clause 6 amends section 20 of the Act, which provides that watercourses
are "available State land" (land in which no person other than the State has
an interest) to remove the terms "beds and banks" of a watercourse. This
amendment reflects the fact that changes made in this Bill to the criteria for
determining the ambulatory boundary for non-tidal land mean that these
terms are no longer relevant in determining the extent of the State's
ownership of a watercourse.
Amendment of schedule (Dictionary)
Clause 7 amends the Schedule to the Act by omitting the definition of
"beds and banks". The definition referred to the Water Act, Schedule 4.
The changes made in this Bill to the criteria for determining the ambulatory
boundary for non-tidal land mean that these terms are no longer relevant in
determining the extent of the State's ownership of a watercourse and have
been omitted from the Water Act.
Part 4 Amendment of Coastal
Protection and Management Act
1995
Act amended
Clause 8 provides that this part amends the Coastal Protection and
Management Act 1995.
Amendment of s 123 (Development permits--right to use and
occupy)
Clause 9 amends section 123 of the Act which provides, except in certain
listed circumstances a right to use and occupy land on which tidal works are
situated that have been granted a development permit for operational work
that is tidal work.
This amendment is consequential to amendment to the definition of "tidal
work" by clause 10 below, to ensure that "tidal works" previously on
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Natural Resources and Other Legislation Amendment Bill 2010
freehold land which are now on State land between the tidal boundary and
"tidal water" (orphaned assets) come under the definition of tidal works.
The amendment to section 123 will provide that the extension to the
definition of tidal works does not extend the right to use and occupy
beyond the area of any orphaned assets to land on the landward side of a
tidal boundary or right line tidal boundary.
Amendment of schedule (Dictionary)
Clause 10 amends the definition of "tidal works" and inserts an associated
new definition in the dictionary. The amendments to the criteria for
determining the ambulatory boundary for tidal land made by this Bill may
result, in some cases, in structures such as boat ramps and associated
utilities (e.g. power and water) which previously ran straight from freehold
land to "tidal waters" now being partially located on State land in between
the new tidal boundary and tidal waters.
The revised definition will ensure that "tidal works" previously on freehold
land which are now on State land between the tidal boundary and "tidal
water" (orphaned assets) come under the definition of tidal works. The
consequence of this amendment is that the owner of the tidal works will, by
virtue of section 123 of the Act, have a right to use and occupy the land on
which the orphaned assets are located.
Part 5 Amendment of Dividing Fences
Act 1953
Act amended
Clause 11 refers to the Act which this part amends namely, the Dividing
Fences Act 1953.
Insertion of new s 4A (Act not to apply to licence areas)
Clause 12 inserts a new section 4A into the Act, which is to ensure that the
obligation to contribute to the construction or repair of a dividing fence
under the Act does not apply to a plantation licensee or plantation
sublicensee in relation to a licence area under the Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 6 Amendment of Fire and Rescue
Service Act 1990
Act amended
Clause 13 refers to the Act which this part amends namely, the Fire Act.
Amendment of s 61 (Interpretation and application of division)
Clause 14 amends the definitions in section 61 of the Act to define
"licence area", "occupier of land", "plantation licensee", "plantation
officer", "plantation operator" and "plantation sublicensee". These
definitions support the amendments to sections 66 and 68 of the Act
discussed below.
Amendment of s 66 (Fires in State forests etc.)
Clause 15 amends section 66 of the Act. Subsection 66(1)(b) provides that
division 1 of part 7 of the Act (which relates, amongst other things, to the
giving of permits to light fires) does not apply to the actions of persons
performing duties under the Act on certain categories of State land,
including State forest. The SPF and the licence area are subsets of the State
forest. After the grant of a plantation licence, it is intended that the
regulatory environment for the buyer, so far as is relevant to fire prevention
and control, should be as similar as possible to that of other private sector
occupants of land. The effect of this amendment is therefore to apply
division 1 of part 7 of the Act to the licence area which, amongst other
things, enables the commissioner to grant permits to any appropriate
person (including a plantation licensee or plantation sublicensee) to light
fires in a licence area. The amendment also clarifies that a plantation
operator or a plantation officer is not a person performing duties under the
Act in relation to the lighting of fires in a licence area.
The overall effect of this amendment is that while FPQ currently does not
require a permit under the Act to light a fire in the SPF, the plantation
licensee and any plantation sublicensee will require a permit. The existing
provisions of the Act (specifically subsection 71(2)) contemplate the
possibility of a "standing" permit being given where the commissioner is
satisfied that this is appropriate, including having regard to subsection
65(3). A "standing" permit arrangement could allow the plantation licensee
or a plantation sublicensee to light fires within a particular "burn period" in
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Natural Resources and Other Legislation Amendment Bill 2010
accordance with a fire management plan without being required to submit
an application for each individual burn.
It is intended that, the plantation licensee or any plantation sublicensee will
derive their powers and obligations in relation to fire prevention and control
on the licence area both from the Fire Act and the Forestry Act. However,
the plantation licensee will derive their powers and obligations in relation
to any fire prevention and control activities conducted outside the licence
area from the Fire Act. As such it is anticipated that the plantation licensee
will seek registration as a rural fire brigade under section 79 of the Act.
This will enable the holder of such registration to exercise a number of
powers under the Act additional to those of an occupier of land, and
facilitate responsible fire management and response activities on the
licence area and, where appropriate, surrounding areas, within the
oversight of the Queensland Fire and Rescue Service.
Amendment of s 68 (Powers of occupier of entry etc.)
Clause 16 amends section 68 of the Act to insert a new subsection 68(4)
and renumber the existing subsection 68(4). Subsection 68(3) requires an
occupier of land (which will include the plantation licensee or any
plantation sublicensee) to, inter alia, make certain notifications if they
become aware of a grass fire burning within 1.6 kilometres of their land.
The category of persons to whom the notification must be directed is
"prescribed persons" who are listed in the definition in subsection 68(4)
and who, relevantly, include an officer of a rural fire brigade. As it is
anticipated that the plantation licensee will seek registration as a rural fire
brigade, the effect of this amendment is to clarify that an occupier which is
registered as a rural fire brigade cannot meet its obligations under section
68 by "self-notifying".
Part 7 Amendment of Forestry Act 1959
Act amended
Clause 17 provides that this part amends the Forestry Act 1959.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new ss 14-15
Clause 18 inserts new sections 14 and 15 in the Forestry Act.
New section 14 (Joint Ministerial power)
New section 14 provides that, until an end day declared by a gazette notice,
a reference in the Forestry Act to the Minister, the Chief Executive or the
chief executive (fire) (each a relevant person), includes a reference to the
Minister administering the Financial Accountability Act 2009 (Treasurer).
New section 15 (Expiry of ss 14-15)
New section 15 provides a sunset date for sections 14 and 15, being one
year from commencement. There is an option to extend this period by a
regulation, for a maximum of two years.
The effect of new section 14 is to temporarily permit the Treasurer to
exercise the full range of functions under the Forestry Act granted to the
Minister administering the Forestry Act, the Chief Executive administering
the Forestry Act and the Chief Executive administering the Fire Act.
This is a temporary mechanism to enable the plantation licence and the
related agreements to be executed by the Treasurer under section 61QA of
the Forestry Act. This reflects the commercial reality that major
transactions can be time sensitive and protects the State's interests by
enabling the State to respond quickly to issues relating to the divestment of
FPQ.
It is likely that the end day referred to in this section will be shortly after
the restructure and divestment of FPQ is completed. The provision for an
extension of not more than 2 years duration (by regulation) is intended to
provide coverage for unforeseen contingencies and thereby protect the
commercial interests of the State.
Amendment of s 17 (Appointment of officers)
Clause 19 amends section 17 of the Act to empower the Chief Executive to
appoint "plantation officers" for a licence area. The amendments to section
17 also provide that the appointment ceases if the person stops being an
employee of a plantation operator, or the plantation operator ceases to be a
delegate of the Chief Executive's powers under new section 96B of the
Forestry Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Under new subsection 96B(2) of the Forestry Act, the Chief Executive may
delegate his or her functions under section 17 to appoint plantation officers
to a plantation licensee, plantation sublicensee, plantation manager, or a
registered mortgagee or an enforcing party (appointed by the mortgagee). It
is intended that the appointing function will be delegated to the direct
employer of the plantation officers because that entity is best placed to
supervise and oversee the activities of the plantation officers.
The power to appoint "forest officers" and "other officers" as referred to in
subsection 17(1) will not be delegated to the plantation licensee, a
plantation sublicensee or a plantation manager - they will only be able to
appoint plantation officers, and then only for so long as the delegation
remains in place. Pursuant to new subsection 17(2A), plantation officers
must be appointed for a specified licence area, being (under new subsection
96B(4)(a)) the relevant licence area for the appointing plantation licensee,
plantation sublicensee or plantation manager, and may exercise powers
only within that licence area (new subsection 18A(1)).
Plantation officers will exercise a smaller range of powers than forest
officers, being only those powers listed in new sections 18A and 18B and
existing sections 72, 75 and 88 (as amended by the Bill).
Insertion of new ss 18A-18C
Clause 20 inserts new sections 18A to 18C into the Forestry Act.
New section 18A (General powers of plantation officers)
New section 18A outlines the general powers of a plantation officer and
makes the failure to comply with a lawful direction or requirement of a
plantation officer an offence. A plantation officer may:
· take away or dispose of an unauthorised notice in a licence area;
· require the production of an authorisation permitting a person to
conduct an activity in the licence area and inspect, examine and take
copies of the authorisation (new section 20 is a supporting provision
for this power);
· where a plantation officer finds a person committing (or who can be
reasonably suspected of having committed) an offence, require the
name and address of that person;
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Natural Resources and Other Legislation Amendment Bill 2010
· direct a person to stop committing an offence, and/or to leave the
licence area; and
· direct a person to leave an area if the plantation officer reasonably
believes that the person's presence in or near the licence area involves
a risk to that person's, or another person's, health or safety.
All of these powers are only capable of being exercised in the relevant
licence area. Reflecting the commitment to maintain public access to the
SPF, the power to direct persons to leave an area is limited to those
circumstances where the person's presence involves a risk to a person's
health or safety. For example, a person may be directed to leave an area
where tree felling is occurring.
Regulatory signs erected by the plantation licensee, plantation sublicensee,
plantation manager or a plantation officer under section 34AA as the
delegate of the Chief Executive under new section 96B are another means
of ensuring that persons are not in parts of the licence area where activities
such as tree felling and back burning are occurring or are scheduled to
occur.
New section 18B (Powers of plantation officers in relation to
fire)
New section 18B provides a plantation officer with certain powers in
relation to a fire in a licence area. If a plantation officer reasonably believes
that a fire is, or is likely to be, a hazard, the plantation officer may put the
fire out or direct a person to put the fire out or to reduce the intensity of the
fire. Failure to comply with a direction of a plantation officer in respect of a
fire is an offence.
Plantation officers will often be "first on scene" within the licence area, and
therefore require appropriate powers in relation to fire control. These
powers are consistent with the powers of:
· forest officers under section 12 of the Forestry Regulation 1998; and
· rural fire brigades under the Fire Act (although rural fire brigades also
have additional powers).
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Natural Resources and Other Legislation Amendment Bill 2010
New section 18C (Plantation operator and plantation officer are
persons performing duties only for particular provisions)
New section 18C is a clarifying provision to the effect that certain
references in the Act to persons "performing duties under this Act"
include:
· a plantation operator; and
· a plantation officer,
when performing duties under the Forestry Act. Plantation operators and
plantation officers will also be treated as persons performing duties under
the Forestry Act for the purposes of subsections 39(2)(a) (offence of
interfering with forest products on State Forest), 84(4) (requirement to
produce a person's authority), 86(1) (offence of obstruction of officer),
95(a)(b) (rebuttable presumption about a signature) and 96
(acknowledgement of service) of the Forestry Act, but not for other
sections of the Forestry Act.
The amendments to the Forestry Act effected by the Bill create a number of
new categories of persons/entities in relation to the plantation licence and
the licence area, including as follows:
· the plantation licensee, which is the corporation to which a plantation
licence is granted by the Minister under new section 61QA;
· a plantation sublicensee, which is a corporation to which a sublicence
of a plantation licence is granted by the plantation licensee (with the
consent of the Minister) under new section 61QO; and
· a plantation manager, who is a person engaged by a plantation
licensee or a plantation sublicensee to conduct plantation forestry
operations in the licence area on behalf of the plantation licensee or
plantation sublicensee.
Generally, rights and obligations relating to the use and occupation of the
licence area are granted to/placed on the plantation licensee and any
plantation sublicensee. Sublicensing arrangements are explicitly
recognised under the amended provisions of the Forestry Act because
business structures involving a combination of a "property company" and
an "operations company" which is a lessee, sublessee or sublicensee of the
"property company" are common in the forestry industry.
In addition, new section 96B provides for the Chief Executive to delegate
certain functions under the Act to the plantation licensee, and any person
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Natural Resources and Other Legislation Amendment Bill 2010
associated with the plantation licensee which may be the employer of the
staff involved in the day to day operations of the plantation forestry
business. Thus, new section 96B allows for a delegation to a plantation
licensee, a plantation sublicensee or a plantation manager, as well as a
registered mortgagee or an enforcing party exercising power under section
61SQ.
The Forestry Act uses the term "plantation operator" to refer to any of a
plantation licensee, plantation sublicensee, plantation manager, registered
mortgagee or enforcing party.
Plantation officers mainly derive their powers from the Forestry Act, but
can also be the delegate of the Chief Executive under new section 96B.
Particularly because of the delegation arrangements, it is possible that there
may be some confusion in relation to whether, and when, plantation
operators and plantation officers are to be regarded as persons "performing
duties under this Act". New section 18C clarifies this issue.
Insertion of new s 20 (Retention of document produced to
plantation officer)
Clause 21 inserts new section 20 in the Forestry Act to set out the
procedural obligations that apply where a plantation officer requires a
person to produce documents under new subsection 18A(2)(b).
Amendment of s 21 (Officers not to trade in timber etc.)
Clause 22 amends section 21 of the Forestry Act to include plantation
officers as officers covered by the section. Section 21 prevents officers
becoming subject to a conflict of interest by prohibiting them from
engaging in certain dealings without the consent of the Chief Executive.
The power to grant such a consent, so far as is relevant to the licence area,
is amongst the powers capable of delegation under new section 96B.
Insertion of new s 32AA (Chief executive to notify chief
executive (lands) of change to State forest)
Clause 23 inserts a new section 32AA, which requires the Chief Executive
to notify the Chief Executive (lands) of any increase or decrease in the area
of land declared to be State forest.
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Natural Resources and Other Legislation Amendment Bill 2010
This section is included to ensure the Chief Executive, who administers the
State forest and is best placed to know about any changes, notifies the
Chief Executive (lands) about any land related changes.
Insertion of new pt 3A
Clause 24 inserts new Part 3A into the Forestry Act.
New Part 3A (State plantation forest)
New Part 3A deals with the declaration of State forest as SPF and sets out
the circumstances in which land can be removed from the SPF.
New section 32A (Declaration of land as State plantation forest)
New section 32A provides for the declaration of the SPF by regulation. The
relevant regulation is the Forestry Regulation 1998, which is amended in
Part 8 to insert a new schedule 4A which will list the plans showing the
SPF estate as at the date of assent. The amendment of the Forestry
Regulation 1998 by primary legislation is required to enable the restructure
timing to be met. After the restructure, if required, areas can be placed in
and removed from SPF by a regulation amending schedule 4A of the
Forestry Regulation 1998.
Only land which is already classified as State forest is capable of being
classified as SPF. This reflects the current arrangements. New subsection
32A(2) provides that if land which is SPF stops being State forest, it
automatically ceases to be SPF. This subsection is required to replace
subsection 4(3) of the Forestry Plantations Queensland Act 2006.
SPF is currently declared by regulation under subsection 4(1) of the
Forestry Plantations Queensland Act 2006. As it is proposed to repeal the
Forestry Plantations Queensland Act 2006 after FPQ is restructured (see
clause 249 of the Bill), it is necessary to move this mechanism into the
Forestry Act.
New section 32B (Particular areas of conservation value to be
removed from State plantation forest)
New section 32B provides for the automatic removal of certain areas of
conservation value from the SPF as specified in the section, with the effect
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Natural Resources and Other Legislation Amendment Bill 2010
that these areas cease to be part of the licence area, but remain as State
forest.
As part of the preparations for the sale of FPQ, certain areas of the SPF
estate were identified as having conservation value, and the Government
has committed to removing these from the SPF estate once the current
plantation timber has been harvested. The dates specified in new section
32B provide a sufficient period for the current plantation timber to mature
and be harvested, and for the area to be rehabilitated to standards specified
in the plantation licence. The plantation licence also allows for these areas
to be excised from the licence area before the dates specified in new section
32B if the plantation licensee harvests and rehabilitates them before those
dates. It should be noted that when these areas are removed from the
licence area, there is no entitlement to compensation.
New section 32C (Quarrying in State plantation forest)
New section 32C provides that the Chief Executive may not get or
authorise a person to get a total of 5,000t or more of quarry material, in a
year, from an area within SPF. The reason for including this provision is
that quarrying activities of this intensity are likely to be disruptive to
plantation forestry operations. The effect of the provision is that if the State
wishes to place a quarry of this capacity in an area which is currently SPF,
the State can revoke the SPF classification of the area by regulation, and the
area will retain its classification as State forest. Areas removed from SPF
are automatically removed from any licence area, triggering the application
of the compensation provisions in new division 8 of part 6D of the Forestry
Act. The section exempts quarrying activities conducted by a plantation
licensee or plantation sublicensee on SPF because their quarrying activities
(which, under the terms of the proposed plantation licence, may be
restricted to getting and using quarry material in the licence area to
construct and maintain the plantation licensee's own roads and certain other
roads) will not be inconsistent with plantation forestry and the conduct of
plantation forestry activities by the licensee.
Omission of s 33AA (Application of pt 4 to a State plantation
forest)
Clause 25 omits section 33AA of the Forestry Act, which modified the
application of part 4 of the Forestry Act to SPF in order to recognise the
role of FPQ and FPQO as set out in Part 6C. This amendment will take
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Natural Resources and Other Legislation Amendment Bill 2010
effect simultaneously with the omission of Part 6C from the Forestry Act
which will occur upon entry into a plantation licence.
Amendment of s 34 (Use of State forests)
Clause 26 amends section 34 of the Forestry Act to provide that
subsections 34(1)(a), 34(1)(c), 34(2) and 34(2A) do not apply to natural
resource products in a licence area. Section 34 sets out a list of powers of
the Chief Executive for the purposes of the use and management of State
forests, including SPF. This amendment limits the exercise of certain of
these powers, namely the power to:
· determine and cause to be put into operation the silvicultural system
most suitable to the circumstances of a State forest; and
· determine, in relation to the period specified in the determination, the
maximum quantities of forest products of any kind or description
which may be removed from a State forest during such period without
impairing the permanent productive capacity of the State forest or
State forests in question.
The plantation licence requires that the plantation licensee holds an
appropriate forestry management accreditation under an internationally
recognised accreditation system which requires the implementation of
sustainable management practices. At this stage, provided that such
accreditation is maintained, it is not intended that the State will impose a
silvicultural system on the plantation licensee, or set maximum harvest
quantities (which, regardless, is a concept relevant to native forest
harvesting activities, not plantation based activities). These will be matters
for the plantation licensee's business judgement, having regard to the
requirement to maintain their forestry management accreditation.
The Chief Executive continues to hold powers under these sections in
relation to forest products other than natural resource products, because the
plantation licensee does not obtain the exclusive right to deal with forest
products other than natural resource products.
Subsection 34(3) of the Forestry Act provides that despite any lease,
licence, permit or other right or authority granted under this or any other
Act, the Chief Executive may within any State forest from time to time
construct, carry out, improve, maintain, operate, protect, control, and
otherwise manage any silvicultural or other works of any description
whatsoever which the Chief Executive considers necessary or desirable for
the proper utilisation and management of the State forest. The effect of the
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Natural Resources and Other Legislation Amendment Bill 2010
amendment is that the State will not have an overriding ability to
unilaterally carry out works in the licence area. Such works are the
responsibility of the plantation licensee.
Amendment of s 34A (Specialised management within State
forests)
Clause 27 amends section 34A of the Forestry Act so that the Governor in
Council cannot declare an area of SPF to be a feature protection area,
scientific area, State forest park or forest drive. These "specialised
management areas" are subject to specific requirements under sections
34C, 34D, 34E and 34F of the Forestry Act, and it is not appropriate that
these requirements be unilaterally imposed upon the plantation licensee
post-sale. The Chief Executive still retains the ability to remove areas from
SPF (which triggers the compensation arrangements under new division 7
of part 6D of the Forestry Act) but retain their State forest classification,
and may then designate such areas as "specialised management areas".
There are a small number of areas within the SPF which are currently
classified as feature protection areas and scientific areas. The "dual
classification" of these areas is saved by clause 72 of the Bill. Provisions
have been included in the plantation licence to ensure that these areas
continue to be managed in accordance with sections 34C and 34E of the
Forestry Act.
Amendment of s 34H (Self-registration camping areas)
Clause 28 amends section 34H of the Forestry Act to provide that SPF
cannot be a self-registration camping area. After commencement, there will
be no existing self-registration camping areas in the SPF estate. The
Department of Environment and Resource Management, rather than the
plantation licensee, will be responsible for the management of camping
sites within State forest.
Amendment of s 35 (Granting of permit for land within State
forest)
Clause 29 amends section 35 of the Forestry Act to insert a subsection
(1A) in respect of granting an occupation permit, a stock grazing permit or
an apiary permit within State forest and a licence area. This subsection
requires a plantation licensee or other person exercising delegated power
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Natural Resources and Other Legislation Amendment Bill 2010
under section 35 to advise an applicant of its ability to apply for a review of
a decision under section 83A of the Forestry Act.
Amendment of s 37 (Particular authorities over State forest,
timber reserve or forest entitlement area)
Clause 30 amends section 37 of the Forestry Act in order to clarify that the
section is not intended to limit or otherwise affect the provisions under
which compensation is payable to owners of land under the Mineral
Resources Act 1989, the Petroleum & Gas (Protection & Safety) Act 2004
or the Greenhouse Gas Storage Act 2009.
Amendment of s 39 (Interfering with forest products on State
forests etc.)
Clause 31 amends section 39 of the Forestry Act. Section 39 is an offence
provision relating to unauthorised interference with forest products
(including natural resource products) in State forest. The effect of the
amendment is to ensure that authorised dealings with forest products cover
the contemplated post-sale arrangements. To this end, new paragraph (b) of
subsection 39(1) provides that it is not an offence to interfere with forest
products under the authority of a permit to light fires given under section
65 of the Fire Act.
New paragraph (b) of subsection 39(2) provides that section 39 does not
apply to a person acting under a plantation licence, a plantation sublicence
or a related agreement or in accordance with an agreement entered into
with a plantation licensee or plantation sublicensee. The reference to
persons acting in accordance with an agreement entered into with a
plantation licensee or plantation sublicensee includes customers, who will
be getting natural resource products from agreed areas within the licence
area pursuant to a customer contract with the plantation licensee. It is
intended that the plantation licensee will enter into customer contracts on a
purely contractual basis, and not as "sales permits" under the Forestry Act.
Replacement of s 43 (Application of pt 6 to forest products from
a licence area)
Clause 32 omits and replaces section 43 of the Forestry Ac to provide that
Part 6 does not affect the rights of a plantation licensee or plantation
sublicensee to deal with natural resources or to get and use quarry material
under Part 6D or a plantation licence or plantation sublicence. Current
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Natural Resources and Other Legislation Amendment Bill 2010
section 43 modified the application of Part 6 of the Forestry Act to SPF in
order to recognise the role of FPQ and FPQO as set out in Part 6C. This
amendment will take effect simultaneously with the omission of Part 6C
from the Forestry Act.
Amendment of s 46 (Sale of forest products or quarry material)
Clause 33 omits section 46(1AA) of the Forestry Act to remove the power
of the Chief Executive to enter into a profit á prendre with FPQ. Instead,
the Minister is empowered under new section 61QA to enter into a
plantation licence in respect of SPF. FPQ's existing profit á prendre will in
fact be terminated when the first plantation licence is entered under new
section 61QA. This section will be omitted at the time the plantation
licence is granted.
Amendment of s 55 (Licences to get forest products etc.)
Clause 34 inserts a new subsection (2) into section 55 of the Forestry Act
with respect to licences to get forest products etc. This subsection requires
a plantation licensee or other person exercising delegated power under this
section to advise an applicant of its ability to apply for a review of a
decision under section 83A of the Forestry Act.
Amendment of s 56 (Permits etc.)
Clause 35 inserts a new subsection (4) into section 56 of the Forestry Act
with respect to licences to get forest products etc. This subsection requires
a plantation licensee or other person exercising delegated power under this
section to advise an applicant of its ability to apply for a review of a
decision under section 83A of the Forestry Act.
Clause 35 also inserts a new subsection (5) into section 56 of the Forestry
Act to make it clear that new section 61QA and not section 56 is the
operative provision as regards plantation licences and plantation
sublicences. Other permits, licences, leases, authorities, agreements and
contracts will continue to be able to be granted and extended by the Chief
Executive under subsection 56(1), including over the licence area.
Amendment of s 57 (Power of entry under licence or permit)
Clause 36 inserts a new subsection (7) into section 57 of the Forestry Act
to provide that section 57 (which grants to holders of permits and licences
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Natural Resources and Other Legislation Amendment Bill 2010
under the Act certain powers of entry over nearby land for the purpose of
accessing their permit or licence area) does not apply to a plantation
licence or plantation sublicence. A plantation licensee's or plantation
sub-licensee's rights of access over relevant State land will be governed by
a licence, permit or agreement as contemplated by new subsection 61QL.
Amendment of s 58 (Power to cancel, suspend, permit, licence
etc.)
Clause 37 inserts a new subsection (7) into section 58 of the Forestry Act to
provide that section 58 (which contains the Chief Executive's power to
cancel, suspend a permit, licence, lease or other authority, or an agreement
or contract granted or made under the Forestry Act) does not apply to a
plantation licence or plantation sublicence. After the restructure, a
plantation licence may only be cancelled in accordance with Division 6 of
Part 6D of the Forestry Act. The ability to cancel a plantation sublicence
will be governed by the terms of the sublicence.
Amendment of s 59 (Transfer of permits etc.)
Clause 38 inserts a new subsection (3) into section 59 (under which a
lease, agreement, contract, permit, licence or other authority granted or
made under the Forestry Act can be transferred or surrendered), which
provides that the section does not apply to a plantation licence or plantation
sublicence.
Amendment of s 60 (Failure to comply with provisions of lease,
etc.)
Clause 39 inserts a new subsection (3) into section 60 (under which a
failure to comply with a provision, condition or restriction to which a lease,
agreement, contract, permit, licence or other authority is granted or made
under the Forestry Act is an offence) does not apply to a plantation licence
or plantation sublicence. The consequence of a breach of the terms of a
plantation licence will be set out in the plantation licence and also in
Division 6 of Part 6D of the Forestry Act. The terms of a plantation
sublicence will set out the consequences for a breach by the sublicensee.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 61H (Appeal to Land Court)
Clause 40 amends section 61H of the Forestry Act to correct a reference to
a "division" of the Act which should instead be a reference to a "part" of
the Act. This amendment is not related to the restructure of FPQ.
Amendment of s 61J (Agreement about natural resource
products)
Clause 41 omits paragraph 61J(4)(a), which provides that the vesting of
natural resource product under the agreement does not create an interest in
land under the Land Act or the Land Title Act.
Section 61J establishes legal mechanisms to allow freehold landholders
and lessees who own the trees as improvements to enter into natural
resource agreements about the ownership, use and economic benefit of
natural resource products (e.g. trees or carbon) and for those agreements to
be registered as a profit a prendre on the land title pertaining to the
property.
Whilst it is likely that registration of the agreement under Land Title Act
has the effect of creating an interest in land, the removal of section 61J will
remove confusion in the forestry plantation industry and ensure that any
natural resource agreement made after commencement will create an
interest in the land. Ensuring that an agreement changing the ownership of
trees creates an interest in land will provide a level of security for
landholders entering into any agreements relating to plantations for use in
the voluntary carbon market. Existing agreements will not be affected by
the amendment.
Amendment of s 61L (Definitions)
Clause 42 adds a reference to section 65A of the Forestry Act to a list of
provisions set out in paragraph (d) of the definition of "relevant provision"
in section 61L of the Forestry Act.
This amendment reflects a change to section 65 effected by clauses 52 and
53 (to omit subsections 65(3) and 65(3A) and insert new section 65A,
which restates this subsection in more modern language). Section 61L of
the Forestry Act is not repealed on assent, but only when clause 44 of the
Bill becomes effective.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 61N (Application of relevant provisions)
Clause 43 replaces a reference to subsection 65(3) of the Forestry Act to
new section 65A, reflecting the change effected by clause 53. Section 61N
of the Forestry Act is not repealed on assent, but only when clause 44 Part
3A SPF of the Bill becomes effective.
Omission of pt 6C and s 61T
Clause 44 omits part 6C and section 61TW of the Forestry Act when the
plantation licence is entered into. Part 6C made FPQ and FPQO, rather than
the Chief Executive, the "administering entity" for various sections of the
Forestry Act, so far as they applied to SPF. The effect of the repeal of part
6C is that functions and powers under these sections "revert" to the Chief
Executive, who may exercise them personally or through a delegate such as
the plantation licensee under new section 96B, or through another delegate
such as an appropriately qualified employee of the Department.
Transitional provisions reflecting this change are included in new sections
120, 122 to 126 and 129 of the Forestry Act.
Section 61T (formerly numbered 61Q) modified the application of part 7 of
the Forestry Act to SPF in order to recognise the role of FPQ and FPQO as
set out in Part 6C. This amendment will take effect simultaneously with the
omission of Part 6C from the Forestry Act.
New Part 6D (Plantation forestry)
Clause 45 inserts new Parts 6D and 6E into the Forestry Act.
Insertion of new pts 6D and 6E
New Part 6D establishes the regulatory arrangements for plantation
licences in respect of SPF.
New Division 1 - Preliminary
New section 61Q (Definitions for pt 6D)
New section 61Q provides supporting definitions for part 6D.
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Natural Resources and Other Legislation Amendment Bill 2010
The term "plantation forestry" is relevant (inter alia) to the "use it or lose
it" obligation imposed on the plantation licensee under new subsection
61QE(1)(a). Importantly, "plantation forestry" is an ongoing activity,
consistent with the principle that State forests are permanently reserved for
the purpose of producing timber and associated products in perpetuity in
subsection 33(1) of the Forestry Act. This is directed towards ensuring that
the licence area will be appropriately managed for forestry activities
including being replanted after harvesting, consistent with sustainable
management practices for plantation forestry that are generally accepted in
the Australian plantation forestry industry at the relevant time.
New Division 2 - Plantation licences
New section 61QA (Agreements to deal with natural resource
product etc.)
New subsection 61QA(1) empowers the Minister to grant a corporation the
right to deal with natural resource product on specified SPF or specified
parts of SPF for the purpose of plantation forestry and for incidental
purposes, by entering into an agreement (plantation licence) with the
corporation (plantation licensee) and provides for the matters that may be
included in a plantation licence.
Under new section 61QA of the Forestry Act, a plantation licence can only
be granted in respect of SPF land. New section 61QA(7) provides that if
land forming part or all of the licence area for a plantation licence stops
being SPF, the land also stops being licence area. This will also occur if
land forming part or all of the licence area stops being State forest (which
has the effect that it also stops being SPF). Removal of land from the
licence area under new subsection 61QA(7) (except pursuant to new
section 32B) is a compensation event under new section 61RH.
Without limitation, the incidental purposes contemplated by this section
include granting and administering permits and licences under sections 35,
55, 56 and 73(2) to the extent that such functions and powers are delegated
to the plantation licensee and other persons under new section 96B.
Consistent with the Government's commitment to protect lawful access
rights for the public over SPF, a plantation licence does not confer rights of
exclusive possession on the plantation licensee. Instead, it gives the
plantation licensee the exclusive right to deal with, including get and sell,
natural resource products in the licence area. The plantation licensee also
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has a right to enter and remain in, and use, the licence area, but this is a
non-exclusive right. This position is further clarified by new subsection
61QA(7).
The Bill will not give the plantation licensee the right to sell quarry
material in the licence area (quarry material is not natural resource product
under the Forestry Act). Instead, the plantation licensee will have the right
to get and use quarry material in the licence area as provided for in the
plantation licence and the relevant agreements. In this regard, it is intended
that the plantation licensee will be permitted to use quarry material in the
licence area to construct and maintain roads and tracks both within the
licence area and outside the licence area where required to access the
licence area. Pursuant to new subsection 61QA(5), no fee is payable in
relation to a plantation licensee's right to get and use quarry material under
its plantation licence.
New subsection 61QA(2)(e) provides that the plantation licensee's rights
under new subsections 61QA(2)(a) and 61QA(2)(b) may be restricted or
limited in relation to particular areas in the licence area. It is intended that
more limited rights will apply to the areas known as "buffer areas", which
are native forest areas within the licence area. Although the licence area
comprises predominantly plantation timber, there are native forest areas
which border plantation areas and protect them against fire, and which
border and protect watercourses within the licence area. The plantation
licence does not grant the plantation licensee the right to get and sell timber
from these "buffer areas" (except to the extent that tree felling in these
areas is incidental to routine maintenance). To the extent that the Chief
Executive currently grants sales permits over these areas to third party
timber processors, these arrangements will not be changed as a result of the
amendments made by the Bill (however such permittees will be subject to
new subsection 69E(5)).
New section 61QB (Related agreements)
New section 61QB empowers the Chief Executive under the Forestry Act,
and the Chief Executive (fire) to enter into one or more agreements with a
plantation licensee or plantation sublicensee about operational and other
matters relevant to the use, maintenance and management of the licence
area (related agreements). Such agreements can also, amongst other things,
deal with arrangements relating to access over relevant State land. These
agreements are not intended to be registered.
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New section 61QC (Plantation licence is an interest in land)
New section 61QC clarifies that the nature of the interest conferred by a
plantation licence is akin to a profit á prendre. As profits á prendre are
classified as interests in land, the new section explicitly states that
plantation licences and plantation sublicences confer an interest in land.
New section 61QD (Sale of natural resource product)
New section 61QD clarifies that, subject to the plantation licence, a
plantation licensee may contract with other persons for the sale of natural
resource products from its licence area, including by granting to a customer
the right to get a specified volume of natural resource products from a
specified area within the licence area (an "at stump" contract). It is
intended that the plantation licensee or plantation sublicensee will enter
into contracts on a purely contractual basis, and not as "sales permits"
under the Forestry Act. The licensee may also conduct a business of selling
harvested timber (e.g. merchandising timber sales delivered to mill door).
New section 61QE (Statutory obligations)
New section 61QE imposes statutory obligations on the plantation licensee,
without limiting any other obligations of a plantation licensee under the
Act, the plantation licence or a related agreement. It is intended that the
plantation licence and the related agreements will impose a range of
obligations on the plantation licensee, however, the two obligations
imposed by section 61QE are particularly important in terms of protecting
the public interest and have been included in the Forestry Act for this
reason.
The plantation licensee's statutory obligations are:
· to use the licence area for the purpose of plantation forestry; and
· to not interfere with the lawful use of the licence area by members of
the public and others unless it is reasonably required for the plantation
licensee's use of the licence area for the purpose of plantation forestry
or an incidental purpose.
The requirement to use the licence area for the purpose of plantation
forestry, together with the enforcement mechanisms available to the
Minister under new Division 4 of Part 6D of the Forestry Act, imposes a
"use it or lose it" obligation on the plantation licensee. Consistent with the
announced objectives for the sale, it is expected that the buyer will operate
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a commercially and environmentally sustainable plantation forestry
business post-sale. This requires an appropriate level of continuing
investment in replanting the licence area, subject to legitimate plantation
forestry considerations such as environmental conditions and forecast final
product demand patterns. Although the plantation licence will allow the
licence area to be used for purposes incidental to plantation forestry (ie
including those activities conducted prior to sale, such as grazing,
beekeeping, communications infrastructure and recreational activities),
under new subsection 61QE(1)(a), plantation forestry must be the
dominant purpose for which the licence area is used. It is implicit in the
definition of "plantation forestry" that compliance with the obligation in
new subsection 61QE(1)(a) will be assessed over a timeframe of
appropriate length, and in respect of areas within the licence area of an
appropriate size, having regard to generally accepted industry practice.
The requirement not to interfere with the lawful use of the licence area by
members of the public and others unless it is reasonably required for the
plantation licensee's use of the licence area for plantation forestry purposes
or incidental purposes is one of a number of measures included in the Bill,
the plantation licence and the relevant agreements to deliver on the
Government's commitment to protect existing lawful access rights for the
public over SPF land. Other mechanisms include the limitation on the
delegated power to erect regulatory signs imposed by new subsection
96B(4)(b) and a requirement in the plantation licence to include
information on the plantation licensee's website about how to apply for
access permits in respect of the licence area.
Without limitation, "interference" can take the form of:
· erecting a regulatory notice prohibiting entry into an area (if the
prohibition is not reasonably required for plantation forestry purposes
or incidental purposes, it is also likely that the delegation of the
notices power by the Chief Executive to the plantation licensee does
not authorise the notice because of new subsection 96B(4)(b)); or
· creating a permanent physical barrier to public access.
It should be noted that the use of the licence area by members of the public
and others contemplated by subsection 61QE(1)(b) is lawful use, such as a
licensed driver or rider using a registered vehicle on formed roads in
accordance with the road rules.
New subsection 61QE(3) provides that section 61QE does not require a
plantation licensee to plant trees on:
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· a "conservation" area identified in new section 32B: These areas are
included in the plantation licence on a "one harvest" basis. After they
are harvested, they will be rehabilitated to standards set out in the
plantation licence and then removed from the licence area and from
SPF, rather than being replanted; or
· an unformed plantation forestry road that is taken to be part of the
licence area under new section 61QM. This is because the rights of the
licensee over these areas are temporary in nature due to the fact that a
road constructing authority may decide to construct a formed road on
the unformed plantation forest road.
New section 61QF (Rights under a plantation licence)
New section 61QF clarifies that, subject to any contrary intention
expressed or implied in the Forestry Act, the plantation licence or a related
agreement, a right conferred on a plantation licensee under the Forestry
Act, the plantation licence or a related agreement may be exercised by the
plantation licensee's employees, agents, contractors, customers and
invitees.
New section 61QG (Appointment of plantation manager)
New section 61QG gives the plantation licensee the right to appoint a
person as a plantation manager, with the Minister's written approval, over
part or all of the licence area. A plantation manager may also be a delegate
of the Chief Executive of the Act under section 96B.
New section 61QH (Acts and omissions of a plantation
sublicensee or plantation manager etc.)
New section 61QH makes the plantation licensee liable for the acts and
omissions of a plantation sublicensee, plantation manager appointed by it
and an employee, agent, contractor, customer or invitee of a plantation
licensee, a plantation sublicensee or a plantation manager.
Those acts or omissions may amount to a breach of the Forestry Act, the
plantation licence or the related agreements. This strengthens the need for
the plantation licensee to supervise these persons.
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New section 61QI (Plantation licence may be transferred)
New section 61QI permits a plantation licensee to transfer its rights and
obligations under a plantation licence with the Minister's approval. The
transfer must be registered (see section 61RO) and will take effect on
registration. The section provides for the obligations of the plantation
licensee to be transferred on registration, to overcome the common law
position that obligations cannot be transferred.
A transfer cannot be registered unless the registered mortgagee of the
plantation licence (if any) gives its written consent (see section
61RW(1)(d)).
Only the whole of a plantation licensee's interest in a plantation licence can
be transferred. The mechanism for transferring part of a licence area is
dealt with in sections 61RB to 61RS.
New section 61QJ (Related agreements may be transferred)
New section 61QJ allows the plantation licensee to transfer related
agreements and its obligations under related agreements if it transfers its
interest in a plantation licence to another party, provided certain conditions
are met.
New section 61QK (Amending a plantation licence)
New section 61QK sets out a process for amending a plantation licence. A
plantation licence may only be amended with the Minister's approval.
Parties cannot be added or removed by amending a plantation licence. The
appropriate dealing to add or remove parties may be a transfer.
New section 61QL (Plantation licensee's rights of access over
relevant State land)
New section 61QL permits the Chief Executive to grant to the plantation
licensee the rights of access over relevant State land, and to State owned
infrastructure on relevant State land, that are necessary for the exercise of
the plantation licensee's rights or obligations under the Forestry Act, the
plantation licence or a related agreement under section 61QB(1).
If the Chief Executive and the plantation licensee fail to agree on the grant
of reasonable access rights under this section, the plantation licensee's
access rights are to be decided by the Minister. These rights bind all
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persons having an interest in the relevant State land over which the right is
given.
Despite that, it is not intended that the Minister would grant access rights
that are inconsistent with existing uses of land (i.e. existing tenures or
interests in land).
New section 61QM (Unformed plantation forest roads)
New section 61QM will allow unformed plantation forest roads to be
treated as being part of a licence area and used for plantation purposes.
Currently, dedicated roads do not form part of the State forest. There are a
number of dedicated roads that run through the SPF that have never been
constructed or used as a road, but have been planted with timber. Because
these areas are not being used as roads, the State wishes to ensure that the
plantation licensee may maintain these areas and use them to continue to
grow and harvest timber until they are required (if ever).
New section 61QN (Chief Executive to identify unformed
plantation forest roads for s 61QM)
New section 61QN provides that the Chief Executive may identify and
record the boundaries of unformed plantation forest roads, as described in
section 61QM, within the licence area.
New Division 3 - Plantation sublicences
New section 61QO (Approval)
New section 61QO establishes a statutory basis for a sublicence of a
plantation licence to be granted. The plantation licensee (with the approval
of the Minister and the written consent of any registered mortgagee) may
enter into an agreement (plantation sublicence) with a corporation
(plantation sublicensee) under which all of the plantation licensee's rights
under its plantation licence in relation to all or part of the licence area are
granted to the plantation sublicensee for a period that is less than the
unexpired term of the plantation licence. A plantation sublicence may be
used where the plantation licensee wishes to be a "property" investor and
the plantation sublicensee is the operator of the plantation forestry
business. Further, a plantation licensee may seek to sublicence part of a
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licence area e.g. the licence area located in North Queensland, which the
sublicence could operate.
Sections 61QO to 61QT replicate the provisions relating to plantation
licences in Division 2 (so far as is relevant to plantation sublicensees).
Plantation sublicences must be registered (see section 61RO(2)(b)) and are
effective upon registration (see section 61SF(1)).
New section 61QP (Rights under the plantation sublicence)
New section 61QP allows the plantation sublicensee to exercise the
plantation licensee's rights under this Forestry Act, the plantation licence
or a related agreement, subject to an express or implied contrary intention
in any of those documents.
New section 61QQ (Appointment of plantation manager)
New section 61QQ gives the plantation sublicensee the right to appoint a
person as a plantation manager over part or all of the licence area, with the
Minister's approval.
New section 61QR (Plantation sublicence may be transferred)
New section 61QR permits a plantation sublicensee to transfer its rights
and obligations under a plantation sublicence with the Minister's written
approval and any such transfer must be registered.
Any transfer cannot be registered unless the registered mortgagee has given
its written consent. The section provides for the obligations of the
plantation sublicensee to be transferred on registration, to overcome the
common law position. Only the whole of a plantation sublicence can be
transferred.
New section 61QS (Related agreements may be transferred)
New section 61QS allows the plantation sublicensee to transfer related
agreements and its obligations under related agreements if it transfers its
interest in a plantation sublicence to someone else, provided certain
conditions are met.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61QT (Amending a plantation sublicence)
New section 61QT sets out a process for amending a plantation sublicence.
A plantation sublicence may only be amended with the approval of the
Minister, subject to the constraints set out in section 61QT(2). Any such
amendment must be registered.
New section 61QU (Validity of plantation sublicence or
amendment of plantation sublicence against mortgagee)
New section 61QU provides protection for a registered mortgagee if a
plantation sublicence or an amendment of a plantation sublicence is
entered into without the consent of the mortgagee. In that situation, the
plantation sublicence or amendment of the plantation sublicence will not
be binding on the mortgagee.
New Division 3A - Mortgages
New section 61QV (Mortgages require Ministerial approval)
New section 61QV allows a plantation licensee or plantation sublicensee to
mortgage its interest in a plantation licence or plantation sublicence with
the Minister's approval and to mortgage its interest in a related agreement
in certain circumstances. As a condition of the Minister's approval, the
Minister may require the mortgagee to enter into a tripartite agreement
with the State in respect of its security interest.
New Division 3B - Ownership of improvements
New sections 61QW (Application of division) and 61QX
(Ownership of equipment and improvements)
New sections 61QW and 61QX address the ownership of equipment and
improvements taken, constructed or placed on a licence area by the
plantation licensee or plantation sublicensee for the purpose of plantation
forestry or an incidental purpose.
These sections are intended to overcome the common law rule in relation to
fixtures being owned by the owner of the land.
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New Division 4 - Cancellation
New section 61QY (Show cause notice for a cancellation of
plantation licence)
New section 61QY allows the Minister to give a show cause notice to a
plantation licensee where the Minister reasonably believes that the
plantation licensee is not complying with its obligations under section
61QE(1) in relation to a licence area or part of a licence area. The show
cause notice must satisfy the criteria specified in subsection (2). Thus, if a
plantation licensee is not conducting the business in accordance with
sustainable management practices for plantation forests, the Minister may
give a show cause notice to the plantation licensee.
New section 61QZ (Representations about show cause notice)
New section 61QZ permits the plantation licensee to make written
representations (known as accepted representations) in response to a show
cause notice and compels the Minister to consider all written
representations.
New section 61R (Ending show cause process without further
action)
New section 61R provides that where the Minister concludes, after
considering the accepted representations, that the plantation licensee is
complying with its obligations under section 61QE(1), the Minister must
not take any further action pursuant to the show cause notice. The Minister
must notify the plantation licensee by notice that no further action will be
taken about the show cause notice.
New section 61RA (Cancellation of plantation licence for
licence area or part)
New section 61RA applies where the Minister, after considering
submissions of the plantation licensee, continues to believe that the
plantation licensee is not complying with its obligations under section
61QE(1) and considers that cancellation of the plantation licence for the
licence area or part of the licence area is warranted. The Minster must then
advise the plantation licensee of the decision and a cancellation must be
lodged and registered.
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New Division 6 - Surrender or division of plantation licence
New section 61RB (Surrender of plantation licence or part of a
plantation licence)
New section 61RB sets out the method under the Forestry Act for a
plantation licensee to transfer part of the plantation licence. This section
permits a plantation licensee to apply to the Minister to surrender part or
the whole of a plantation licence. Without limiting the Minister's
discretion, the Minister may refuse an application to surrender until the
area to be surrendered is rehabilitated to the Minister's satisfaction.
Consent to the surrender must be obtained from any registered mortgagee
or plantation sublicensee.
New section 61RC (Application for division)
New section 61RC permits a plantation licensee to apply to the Minister to
divide its plantation licence by effectively surrendering part of the licence
area and entering into a new plantation licence with respect to that affected
area. The section sets out the requirements for the application. The concept
of division does not enable the Minister to approve the surrender and then
refuse the grant of a new licence over the affected area. The two acts are
part of the one division process, which cannot be separated.
It is intended that plantation licensees would apply for a division in order to
transfer their interest in the plantation licence in respect of part of the
licence area. It is not intended for this provision to be used simply to split
plantation licences. Therefore, section 61RE(2) has been inserted to allow
for the original plantation licence and the new plantation licence to be
linked contractually, in the event of default or termination.
New section 61RD (Deciding the application)
New section 61RD addresses how the Minister must decide the application
for the proposed division. A key factor for the Minister is whether, after
division, the affected area would be sustainable as a viable forestry
plantation. The Minister must be satisfied that all required consents have
been obtained (including the consent of any registered mortgagee).
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New section 61RE (Approving the application)
New section 61RE provides that if the Minister approves an application for
division, the terms of any new plantation licence entered into as a result of
the division will be the same as the terms of the original plantation licence
(except in respect of the licence area) unless otherwise agreed by the
parties.
Section 61RE(3) has been inserted to make it clear that fully performed
obligations should not be repeated in the plantation licence over the
affected area (eg. an obligation to pay a one-off licence fee, payable for the
grant of the original licence, should not be replicated in the new licence).
New section 61RF (Notice of decision)
New section 61RF provides for a notice to be given to the applicant of the
Minister's approval or refusal of an application for division.
New section 61RG (Minister and the plantation licensee may
enter into new plantation licence etc.)
New section 61RG provides for the Minister and plantation licensee to
amend the original plantation licence, enter into the new plantation licence
over the affected area and deal with or enter into related agreements.
Following the grant of the new plantation licence, interests that were
registered in respect of the original plantation licence will be registered
against the new plantation licence in the same order of priority.
New Division 7 - Compensation
New section 61RH (Events that are compensation events)
New section 61RH defines the compensation events that may occur with
respect to the licence area for a plantation licence or plantation sublicence.
This includes the commencement of construction of a formed road on an
unformed plantation forest road, the removal of areas of the land from the
State forest or the grant of leases by the Chief Executive under the Forestry
Act in the licence area.
The Chief Executive may also grant a permit (including a sales permit),
licence, lease, authority, agreement or contract over the licence area under
section 56 personally or through another delegate. However, the right to
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deal with natural resource products in the licence area granted under the
plantation licence will be an exclusive right, as contemplated by new
subsection 61QA(2)(a). Before doing so, the Chief Executive is required to
consult with the plantation licensee and any plantation sublicensee for the
relevant licence area under new section 69E and if the grant of the permit,
licence, lease, authority, agreement or contract materially and adversely
interferes with the use of the licence area for the purpose of plantation
forestry, the grant is a compensation event under new subsection
61QX(1)(b)(iii).
New section 61RI (Events that are not compensation events)
New section 61RI prevents a plantation licensee or plantation sublicense
from claiming compensation for a compensation event with respect to
certain events, including the removal of conservation areas from the licence
area or the removal of areas from the licence area for breach of the
plantation licensee's obligations.
New section 61RJ (Chief executive to give notice of
compensation events to the plantation licensee)
New section 61RJ requires the Chief Executive to give notice to affected
plantation licensees and plantation sublicensees with respect to any
proposed compensation event referred to section 61RH(1).
New section 61RK (Compensation to be assessed under
applied provisions of the Acquisition of Land Act 1967 in
absence of agreement)
New section 61RK provides for the payment of compensation by
agreement. Where the Chief Executive and the plantation licensee cannot
agree on the amount of compensation, the compensation payable will be
assessed in accordance with Part 4 of the Acquisition of Land Act 1967
(with appropriate changes).
It should be noted that where the compensation concerns unformed
plantation forest roads, the licensee is only entitled to the market value of
the natural resource product on the recommended road construction date as
a measure of its loss given the temporary nature of its tenure over the
unformed plantation forest road.
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Natural Resources and Other Legislation Amendment Bill 2010
New Part 6E (Registration of interests in State plantation
forests)
New Part 6E establishes a bespoke standalone registration system for the
registration of plantation licences and related interests. One of the primary
reasons for creating a separate register is that the plans of SPF available do
not meet the requirements for registration under the Land Act 1994.
Although plantation licences will be registered pursuant to the Act,
plantation licences relate to State land. On that basis, Part 6E has been
drafted to reflect established concepts in the Land Act and to a lesser extent
the Land Title Act, although these have been modified as appropriate.
Broadly, the functions of the registration system are to:
· publicly record plantation licences and interests in plantation licences;
· enable financiers to have their security interests registered; and
· provide a regime of priority of interests.
New Division 1 - Preliminary
New section 61RL (Definitions for pt 6E)
New section 61RL provides definitions of "plantation licence sketch plan"
and "sketch plan" for Part 6E.
New Division 2 - Register
New section 61RM (Register of plantation licences)
New section 61RM requires the Chief Executive (lands) to keep a register
of plantation licences. It is intended that this register would fall within the
category of registers about land required or permitted by an act to be
included in the land registry, pursuant to section 276(g) of the Land Act.
New section 61RN (Form of register)
New section 61RN allows the Chief Executive (lands) to keep the register
in a form the Chief Executive considers appropriate.
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New section 61RO (Registration of documents)
New section 61RO provides that plantation licences and other specified
documents and/or dealings relating to plantation licences must be
registered (with a sketch plan if the document relates to part of a licence
area identified in a registered sketch plan).
Termination of a plantation licence or plantation sublicence is intended to
capture two situations:
· the expiry of the plantation licence or plantation sublicence; or
· where the plantation licence or plantation sublicence is terminated,
pursuant to the terms of the plantation licence or plantation
sublicence.
A plantation licence will be registered against a State forest title (or
multiple State forest titles) in the register of State forests to be kept under
section 275(ba) of the Land Act and will be registered in the register of
plantation licences. Dealings with plantation licences (e.g. plantation
sublicences and mortgages) will be recorded as endorsements on the title
for the plantation licence in the register of plantation licences only.
New section 61RP (Particulars that must be registered)
New section 61RP requires the Chief Executive (lands) to record certain
particulars. Therefore, the provisions of a plantation licence will be
recorded in the register and a "title" for each plantation licence will be
created (similar to the creation of a "title" for a lease under the Land Act).
All subsequent dealings with respect to the plantation sublicence will be
registered against the plantation licence. Despite this terminology, no
equivalent to a certificate of title is provided for. The plantation licence will
also be recorded in the register of State forests.
Plantation sublicences will be endorsed as dealings on plantation licence
titles rather than being the subject of separate "titles".
New section 61RQ (Particulars that may be recorded)
New section 61RQ permits the Chief Executive (lands) to register any
particulars necessary to ensure the register is accurate, comprehensive and
useable.
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New section 61RR (Procedures on lodgement and registration
of document)
New section 61RR outlines the procedures that apply on lodgement of
documents with the Chief Executive (lands) and then on registration of the
documents.
New section 61RS (Chief executive (lands) may correct
registers)
New section 61RS provides for when and how the Chief Executive (lands)
may correct the register and how correcting the register affects the holder
of an interest recorded in the register and the register generally.
New section 61RT (Documents form part of the register)
New section 61RT provides that a document will form part of the register
on registration in the register.
New Division 3 - General requirements for documents in the
register
New section 61RU (Form of documents)
New section 61RU sets out the requirements as to the format of documents
to be lodged in the register.
New section 61RV (Execution of documents)
New section 61RV describes how documents to be lodged in the register
may be executed.
New section 61RW (Registered documents to comply with
particular requirements)
New section 61RW describes the requirements that must be complied with
before a document may be registered.
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New section 61RX (Power of the chief executive (lands) when
fraud suspected)
New section 61RX permits the Chief Executive (lands) to refuse to accept
or register a document where the Chief Executive (lands) reasonably
suspects the document to be affected by fraud.
New Division 4 - Registration of documents
New section 61RY (Right to have interest registered)
New section 61RY gives a person a right to have a lodged document
registered if the document meets certain requirements.
New section 61RZ (Registered document operates as a deed)
New section 61RZ provides that a registered document operates as a deed.
New section 61S (Order of registration of documents)
New section 61S provides for the order of registration of documents where
a series of documents are lodged in relation to the one plantation licence.
New section 61SA (Priority of registered documents)
New section 61SA provides for the priority of registered documents
according to the timing of lodgement of documents and also establishes
that registered documents have priority over unregistered documents.
New section 61SB (How a document is registered)
New section 61SB provides that a document is registered by recording in
the register the particulars necessary to identify the document.
New section 61SC (When a document is registered)
New section 61SC states when a document is registered.
New section 61SD (No registration in absence of required
approval or consent of Minister)
New section 61SD provides that a document is not registered if the
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necessary Ministerial approval or consent has not been obtained or the
terms of the document are inconsistent with the terms of any Ministerial
approval or consent. In these circumstances, the Chief Executive (lands)
may correct the particulars included in the register in relation to a
document. The section also deems Ministerial approval or consent to have
been given where the Minister is a party to a document.
New Division 5 - Consequences of registration
The registration system has been created so that a plantation licence will
take effect in accordance with its terms. Its validity will not be conditional
upon registration. However, registration is mandatory.
Any dealings with or documents affecting a plantation licence (or
plantation sublicence), other than mortgages, must also be registered, so as
to ensure the integrity of the register and to obtain the benefits arising from
registration under the Forestry Act.
Mortgages of plantation licences (or plantation sublicences) are not
required to be registered to be binding on the parties. This is to ensure that
there is no question as to the validity or effect of an unregistered mortgage
given that it does not take effect as a statutory charge. An unregistered
mortgage will be effective as between the parties but will not obtain the
benefits arising from registration under the Forestry Act. Notwithstanding
that a mortgage is not required to be registered, given the benefits arising
from registration, it is expected that most, if not all mortgages, will be
registered.
Upon registering a mortgage, the mortgage will be effective and
enforceable against the parties to the mortgage and third parties.
New section 61SE (Benefits of registration)
The concept of indefeasibility is not intended to apply with respect to the
plantation licence system on the basis that it is not appropriate for the State
of Queensland to guarantee the title of a person who holds an interest in
non-freehold land.
New section 61SE provides that the benefits of Division 5 of Part 6E apply
regardless of whether or not valuable consideration has been given.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61SF (Effect of registration on interest)
New section 61SF details the effect of registration of an interest in a
plantation licence other than a mortgage and makes it clear that it is the
registration of a document that transfers, creates and/or vests a legal
interest rather than the execution of the document itself. The section also
provides that an interest in a plantation licence or plantation sublicence is
subject to the specified rights and interests.
New section 61SG (Evidentiary effect of recording particulars
in the register)
New section 61SG provides for the evidentiary effect of recording
particulars of a registered document in the register.
New Division 5A - Transfers
New section 61SH (Registering a transfer)
New section 61SH provides for the requirements that must be satisfied in
order for a transfer of a plantation licence or plantation sublicence to be
registered. This section does not provide for the transfer of part of a
plantation licence. See new section 61RC with respect to the process that
will need to be followed in order to do so.
New Division 6 - Mortgages
New section 61SI (Registering a mortgage)
New section 61SI allows a plantation licensee or sublicensee to grant a
mortgage, charge or other security interest over its rights under a plantation
licence or plantation sublicence (mortgage) and specifies the requirements
in order to register the mortgage.
New section 61SJ (Original mortgagee to confirm identity of
mortgagor)
New section 61SJ provides for the requirements that must be satisfied and
the records that must be kept by a mortgagee with respect to confirming the
identity of the person who executed a mortgage as a mortgagor before a
mortgage is lodged for registration.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61SK (Mortgagee transferee to confirm identity of
mortgagor)
New section 61SK provides for the requirements that must be satisfied and
the records that must be kept by a mortgagee with respect to confirming the
identity of a person who executed a transfer of a mortgage as a transferee
before the transfer of mortgage is lodged for registration.
New section 61SL (Releasing a mortgage)
New section 61SL provides for the registration of a release of a registered
mortgage and the effect of registration of the release.
New section 61SM (Amending or transferring a mortgage)
New section 61SM provides a mechanism for effecting amendments to and
transfers of registered mortgages. An amendment will not require the
Minister's approval under the Forestry Act, whereas a transfer will require
the Minister's approval under the Forestry Act.
New section 61SN (Amending priority of mortgages)
New section 61SN allows the amendment of the priority of registered
mortgages.
New section 61SO (Priority of advances)
New section 61SO addresses the priority of a registered mortgage in
relation to all advances and the performance of all obligations secured by
the registered mortgage.
New section 61SP (Transfer of mortgage does not affect
priority)
New section 61SP addresses the priority of a registered mortgage
immediately after it is transferred.
New section 61SQ (Powers of registered mortgagee)
New section 61SQ allows a registered mortgagee to exercise its rights and
powers under the mortgage if the plantation licensee or plantation
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sublicensee defaults under a registered mortgage and prescribes how those
rights and powers must be exercised.
New section 61SR (Mortgagee exercising power of sale)
New section 61SR requires a registered mortgagee to obtain the Minister's
approval in order to exercise a power of sale conferred by its mortgage or at
law. When exercising a power of sale over a plantation licence or
plantation sublicence (as approved by the Minister) the section enables the
mortgagee to also transfer obligations under a related agreement in certain
circumstances. The power of sale will arise under the mortgage document.
New section 61SS (Effect of transfer after sale under mortgage)
New section 61SS deals with the effect of a transfer executed by a
mortgagee after the exercise of a power of sale under a registered
mortgage.
New Division 7 - Trusts
New section 61ST (Details of trust must be given)
Trusts are not required to be disclosed on the register. However, new
section 61ST allows for holders of interests in plantation licences or
plantation sublicences to be registered as trustee of those interests if the
required documentation is lodged with the Chief Executive (lands) with the
document creating that interest. Obligations apply if the details of the trust
change.
New Division 8 - Enforcement warrants
New section 61SU (Definition for div 8)
New section 61SU defines the term "enforcement warrant".
New section 61SV (Registering an enforcement warrant)
New section 61SV permits the Chief Executive (lands) to register a request
to record an enforcement warrant in the circumstances outlined in the
section.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61SW (Effect of registering an enforcement
warrant)
New section 61SW concerns the effect of the registration of an
enforcement warrant on a plantation licence with respect to proposed
transferees, plantation sublicensees, mortgagees and creditors.
New section 61SX (Cancellation of registration of an
enforcement warrant)
New section 61SX deals with cancelling the registration of an enforcement
warrant.
New section 61SY (Discharging or satisfying an enforcement
warrant)
New section 61SY permits the registration of a discharge or satisfaction of
an enforcement warrant.
New section 61SZ (Transfer of plantation licence sold in
execution)
New section 61SZ addresses the effect of selling a plantation licence under
a registered enforcement warrant.
New section 61T (Effect on enforcement warrant of transfer
after sale by mortgagee)
New section 61T addresses the interaction between a mortgage registered
over a plantation licence or plantation sublicence and an enforcement
warrant relating to a plantation licence or plantation sublicence that is
registered after the mortgage. This is to give registered mortgagees of
plantation licences and plantation sublicences protection against unsecured
creditors, by recognising that enforcement warrants do not apply to
registered mortgagees of plantation licences or plantation sublicences.
New Division 9 - Powers of attorney
New section 61TA (Power of attorney)
New section 61TA allows for documents to be registered in the register of
plantation licences to be executed under a registered power of attorney.
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Natural Resources and Other Legislation Amendment Bill 2010
The power of attorney must be registered under the Land Title Act and may
be revoked under the Land Title Act. Accordingly, section 61TA will
operate as a deeming provision that allows registration of a power of
attorney under the Land Title Act to be sufficient for the purposes of the
Forestry Act.
New Division 10 - Caveats
New Subdivision 1 - Caveats - general
New section 61TB (Requirements of caveats)
New section 61TB sets out the requirements for caveats over plantation
licences other than caveats prepared and registered by the Chief Executive
(lands).
The interest claimed in relation to a plantation licence may include an
interest in a plantation sublicence.
New section 61TC (Lodging caveat)
New section 61TC identifies persons who are permitted to lodge a caveat
over a plantation licence or plantation sublicence. Examples of persons
claiming a registrable interest for the purposes of section 61TC(1)(a) would
include a proposed transferee of a plantation licence, an unregistered
mortgagee or a grantee of an option to purchase a plantation licence.
However, to lodge a caveat, the caveator must have a registrable interest.
For example, a transfer, mortgage or sublicence of a plantation licence
requires mortgagee consent and therefore that consent must have been
obtained to the dealing before a caveatable interest arises.
Subsection 61TC(2) makes it clear that an equitable mortgagee can only
lodge a lapsing caveat.
New section 61TD (Notifying caveat)
New section 61TD requires the Chief Executive (lands) to notify each
person whose interest or right to registration of a document is affected by
the caveat.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61TE (Effect of lodging caveat)
New section 61TE deals with the effect of lodging a caveat, which prevents
dealings with documents affecting plantation licences or plantation
sublicences only.
New section 61TF (Withdrawing caveat)
New section 61TF permits a caveator to withdraw a lodged caveat by
lodging a request to withdraw it.
New section 61TG (Lapsing of caveat)
New section 61TG provides for the lapsing of certain caveats if the
caveatee adheres to the prescribed procedure and the caveator then does not
start proceedings as required in subsection (4).
New section 61TH (Removing caveat)
New section 61TH permits an application by a caveatee to the Supreme
Court to remove a caveat lodged under this division and permits the
Supreme Court to make the order.
New section 61TI (Cancelling caveat)
New section 61TI permits the Chief Executive (lands) to cancel a caveat in
certain circumstances.
New section 61TJ (Further caveat)
New section 61TJ prevents a further caveat being lodged, without the leave
of a court, by the same caveator (other than the Chief Executive (lands)) on
the same or substantially the same grounds as an earlier caveat.
New section 61TK (Notices to caveator)
New section 61TK provides for the service of notices on caveators.
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Natural Resources and Other Legislation Amendment Bill 2010
New Subdivision 2 - Caveats - chief executive (lands)
New section 61TL (Chief executive (lands) may prepare and
register caveat)
New section 61TL permits the Chief Executive (lands) to prepare and
register caveats in favour of a person in the circumstances set out in the
section.
New Division 11 - Relationship with other laws
New section 61TM (Relationship with Property Law Act 1974)
New section 61TM provides that certain provisions of the Property Law
Act 1974 do not apply to a mortgage of a plantation licence or plantation
sublicence. The purpose of this section is to avoid any future doubt about
whether the provisions excluded by this section apply with respect to a
mortgage of a plantation licence or plantation sublicence. The excluded
provisions also reflect the difference in the nature of a mortgage under the
Property Law Act 1974 (which is effective on registration) and a mortgage
of a plantation licence or plantation sublicence (which is effective on
execution). As mortgages under the Property Law Act 1974 take effect as
statutory charges, the Property Law Act 1974 sets out provisions which
might otherwise be found in a mortgage document.
New section 61TN (Relationship with Personal Property
Securities Act 2009 (Cwlth))
New section 61TN addresses the relationship between the Forestry Act and
the Personal Property Securities Act 2009. As expressly provided for under
the Personal Property Securities Act 2009, the section includes a
declaration that none of a plantation licence, a plantation sublicence or any
other right, licence or authority granted by or under the Forestry Act are
personal property for the purposes of the Personal Property Securities Act
2009. This declaration is for the avoidance of doubt, as both a plantation
licence and a plantation sublicence confer an interest in land.
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Natural Resources and Other Legislation Amendment Bill 2010
New Division 12 - General
New section 61TO (Withdrawing lodged document before
registration)
New section 61TO permits the Chief Executive (lands) to withdraw or
permit a document to be withdrawn where he/she is of the view that the
order of lodgement of documents does not give effect to the intention
expressed in the document or the document is a document that should not
have been lodged.
New section 61TP (Chief executive may call in document for
correction or cancellation)
New section 61TP permits the Chief Executive (lands) to call a document
in for correction or cancellation.
New section 61TQ (Requisitions)
New section 61TQ permits the Chief Executive (lands) to issue requisitions
about lodged documents and to refuse to deal with a document lodged or
deposited (and any document depending on it for registration) until the
requisition is complied with.
New section 61TR (Rejecting document for failure to comply
with requisition)
New section 61TR permits the Chief Executive (lands) to reject a document
(and any document(s) depending on that document for registration) where a
requisition is not complied with. The rejected document will lose its
priority but may be relodged after the requisition has been complied with.
New section 61TS (Entitlement to search the register)
New section 61TS permits persons to search the register and obtain copies
of certain particulars or documents in certain circumstances for a fee
prescribed by regulation.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 61TT (Evidentiary effect of certified copies of
documents)
New section 61TT provides that a certified copy of the particulars recorded
in the register is evidence of the particulars recorded where that copy is
obtained under section 61TS(1)(b) of the Forestry Act.
New section 61TU (Service)
New section 61TU addresses the service of notices required or permitted to
be served under the Forestry Act.
New section 61TV (Protection from liability)
New section 61TV protects the Chief Executive (lands) and persons
performing functions of the Chief Executive (lands) under a delegation
from civil liability in certain circumstances.
Replacement of pt 7, hdg (Control and prohibition of fires on
State forests, timber reserves and forest entitlement areas)
Clause 46 replaces the heading of Part 7 of the Forestry Act with "Part 7
Fires on State forests, timber reserves and forest entitlement areas".
New Part 7 Fires on State forests, timber reserves and forest
entitlement areas
Renumbering of s 61Q (Application of pt 7 to a State plantation
forest)
Clause 47 renumbers section 61Q of the Forestry Act as section 61TW.
Amendment of s 62 (Control of fires on State forests etc.)
Clause 48 amends section 62 of the Forestry Act. The nature of this
provision is to prohibit the lighting etc. of fires on State forest and other
forest reserves other than under an authority given under part 7 of the Fire
Act. It is proposed that a plantation licensee or any plantation sublicensee
will be treated similarly to other occupiers of land for the purposes of part 7
of the Fire Act. That is, subject to satisfying the criteria therein, the
plantation licensee or plantation sublicensee may obtain an authority under
part 7 of the Fire Act. Consequently, the prohibition in subsection 62(1)
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Natural Resources and Other Legislation Amendment Bill 2010
will have no application to the plantation licensee or plantation sublicensee
while ever such an authority is in place.
It is not proposed that the plantation licensee will have powers under the
Act in addition to those derived from an authority given under part 7 of the
Fire Act in respect of the lighting of fires on its licence area. Consequently,
the reference in this section to "a person performing duties under this Act"
will not include the plantation licensee, plantation sublicensee, plantation
manager or any plantation officer. See clause 20, section 18C.
The offence under section 62(1) may still be committed in the licence area
by a third party. Should this occur, the plantation licensee or a plantation
sublicensee may suffer damage as a result of the offence. The amendments
to subsection 62(2), together with subsection 88(3) (as amended) enables a
plantation officer or another person authorised by the Chief Executive
(which can include the plantation licensee or a plantation sublicensee) to
bring a prosecution for an offence under the Forestry Act, as a result of
which damage suffered by the plantation licensee or plantation sublicensee
may be recovered from the offender.
Amendment of s 63 (Duty of lessee of State forest etc.)
Clause 49 amends section 63 of the Forestry Act. This section imposes a
positive obligation on holders of leases, licences, permits and other
authorities or rights and privileges in respect of State forest and other forest
reserve to make all reasonable provision for fire prevention, detection,
control and extinguishment, make appropriate notifications on becoming
aware of any fire on, or which threatens, State forest or other forest reserve,
and do everything reasonably within its power to extinguish such a fire.
It is appropriate that the plantation licensee and any plantation sublicensee
should have similar, but not identical, obligations. These will be set out in
new section 63A. Consequently, new subsection (5) of section 63 provides
that section 63 does not apply to a plantation licensee, a plantation
sublicensee or any manager, supervisor or other person acting in the
general management or control of the business of the plantation
sublicensee.
Because the licence area is a subset of State forest, a third party holder or
their agent may have notification and extinguishment obligations under this
section in respect of the licence area. It is not proposed to change the nature
of those arrangements. However, a new subsection 63(1B) will require the
forest officer or other person who first receives a notification about a fire on
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or threatening the licence area to notify the plantation licensee and any
plantation sublicensee for that area.
Insertion of new s 63A (Duty of plantation licensee etc.)
Clause 50 inserts a new section 63A in the Forestry Act to set out
appropriate obligations of the plantation licensee or plantation sublicensee
in respect of fires on the licence area or surrounding State forest. These
obligations do not extend to entering a nearby non-licence area to
endeavour to extinguish the fire. This is because it is intended that specific
protocols between the plantation licensee or plantation sublicensee, the
State and the commissioner of the Queensland Fire and Rescue Service (in
the form of a related agreement as contemplated by new Part 6D of the
Forestry Act) will govern the circumstances in which the plantation
licensee or plantation sublicensee may enter a non-licence area to prevent,
control and extinguish fire.
It is appropriate that the plantation licensee or plantation sublicensee make
notifications of fires in circumstances similar to those of existing licensees,
permit holders, etc. Consequently, new subsection 63A(3) obliges a
plantation licensee or plantation manager to immediately notify a forest
officer of certain fires burning on State forest outside the licence area if the
plantation licensee considers it is unlawfully lit or out of control, outside
State forest which may threaten the State forest, or on the licence area
which may spread to the surrounding State forest.
Amendment of s 64 (Certain person to be incapable of holding
permits etc.)
Clause 51 amends section 64 of the Forestry Act such that the section will
not apply to a plantation licensee, plantation sublicensee or a plantation
licence or plantation sublicence. The provisions in the plantation licence
and related agreements deal comprehensively with the consequences of
breach of the law, including the Fire Act, part 7 and section 62 or 63 of the
Forestry Act. It is therefore not appropriate for this provision to apply to a
plantation licensee or plantation sublicensee or to a plantation licence or
plantation sublicence.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 65 (Control of fires on lands adjoining State
forest etc.)
Clause 52 amends section 65 of the Forestry Act to provide (via a note)
that a plantation operator or plantation officer is not a person performing
duties under the Act for the purposes of the whole of section 65. Thus, the
plantation licensee does not have powers of entry over land neighbouring
the licence area under subsection 65(1). As an occupier of land, the
plantation licensee or any plantation sublicensee will derive powers of
entry onto lands within 1.6 km from the licence area for extinguishment
purposes from section 68 of the Fire Act. In addition, it is intended that
protocols between the plantation licensee, the State and the commissioner
of the Queensland Fire and Rescue Service (in the form of a related
agreement as contemplated by new Part 6D of the Forestry Act) will govern
the circumstances in which the plantation licensee or a plantation
sub-licensee may enter a non-licence area to control and prevent fire.
Further, the plantation licensee is not entitled to an indemnity under
subsection 65(1A), and is not able to recover expenses under subsection
65(2), because that subsection only allows recovery for expenses incurred
by a person performing duties under the Forestry Act.
The licence area is not excluded from the land upon which persons
performing duties under the Act (including forest officers) may enter. The
plantation licensee or a plantation sublicensee may also be liable as an
occupier of the licence area under subsection 65(2).
Subsections 65(3) and 65(3A) have been moved to new section 65A and
restated in language consistent with modern drafting practice. The reason
for relocating these provisions is that they do not relate to extinguishing
fires on lands adjoining State forest etc., but rather relate to extinguishing
fires on State forests etc.
The amendments to subsection 65(4) correct an erroneous reference to
"bush fire brigade" (the term used in the Fire Act is "rural fire brigade").
As outlined above, a plantation licensee, plantation sublicensee, plantation
manager or plantation officer is not a person performing duties under
Forestry Act for the purposes of section 65 and so is not deemed to be a
first officer of a rural fire brigade under subsection 65(4).
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new ss 65A (Recovery of expenses incurred in
extinguishing fires on State forests) and 65B (Recovery of
expenses incurred in extinguishing fires in licence areas)
Clause 53 inserts new sections 65A and 65B in the Forestry Act. New
section 65A restates subsections 65(3) and 65(3A) of the Forestry Act
(prior to their deletion) in more modern language. Although the licence
area is a subset of State forest, new section 65A does not create a right of
recovery by the plantation licensee or plantation sublicensee because they
are not persons performing duties under the Act for this section.
Section 65A will allow the State to recover from the plantation licensee or
plantation sublicensee as an occupier of the licence area should the other
elements of the section be satisfied. Should the State incur expenses in
extinguishing a fire in a licence area which originated outside State forest,
timber reserve or forest entitlement area, the State can recover under this
section (because the licence area is a subset of State forest).
New section 65B (Recovery of expenses incurred in
extinguishing fires in licence area)
New section 65B creates a statutory right of recovery in favour of the
plantation licensee or plantation sublicensee for expenses incurred in
extinguishing unauthorised fires which start outside the licence area.
Recovery is limited to "reasonable" expenses. A statutory right of recovery
is appropriate in the circumstances because the scheme of the Forestry Act
and the Fire Act, so far as they apply to the licence area, is to make the
plantation licensee primarily responsible for fire control and prevention on
the licence area, and the expenses incurred by the plantation licensee in this
regard may be significant.
The plantation licensee cannot recover these expenses from the State under
this section. This does not limit the right of the licensee to recover damages
if it brought an action against the State.
Amendment of s 69 (Forfeiture of leases and the like and
cancellation of agreements)
Clause 54 inserts a new subsection (6) into section 69 of the Forestry Act
to provide that the term "authority" does not include plantation licence or
plantation sublicence. Section 69 provides for the cancellation of a licence
or permit under the Act where there has been a breach by a holder of the
licence or permit of the Fire Act. The provisions in the plantation licence
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and related agreements deal comprehensively with the consequences of
breach of law, including the Fire Act, Part 7 and Part 7 of the Forestry Act.
It is therefore not appropriate for this provision to apply to a plantation
licence or plantation sublicence. It will continue to apply to leases,
licences, permits and other agreements, authorities and contracts granted
over the licence area under sections 35, 55, 56 and 73(2), including FPQ
sales permits, and those granted and administered by the plantation
licensee or plantation sublicensee as the delegate of the Chief Executive
(lands) under section 96B.
Replacement of s 69E (Chief executive must consult with
plantation licensee or plantation sublicensee if considering
exercising power in relation to a licence area)
Clause 55 replaces existing section 69E (which is being omitted as it refers
to Part 6C of the Forestry Act, which is to be repealed) with a new section
69E. New section 69E provides that the Chief Executive is required to
consult with the plantation licensee, and any plantation sublicensee, prior
to granting or making a permit, licence, lease or other authority or an
agreement of contract under the Forestry Act (relevant authorisation) over
the licence area. However, the section does not apply where the Chief
Executive acts through a delegate for the licence area appointed under new
section 96B.
The Forestry Act does not restrict the Chief Executive's ability to grant or
make relevant authorisations over the licence area, however this
amendment is intended to ensure that the interests of the plantation licensee
are not prejudiced.
Examples of circumstances where the Chief Executive may wish to grant
or make a relevant authorisation over the licence area other than through a
delegate appointed under new section 96B include in relation to licences to
take quarry material and permits for sporting and other events which
traverse both State forest and a licence area (eg. a car rally or bicycle race).
Activities of this kind have the potential to disrupt plantation forestry
operations and cause damage to infrastructure such as roads. In consulting
with the plantation licensee or plantation sublicensee, the Chief Executive
is required to consider the impact on the plantation licensee or plantation
sublicensee, and applicant's capacity to reimburse the cost of any damage.
The new section also enables the plantation licensee and plantation
sublicensee to recover damages from a holder of a relevant authorisation
who damages the licence area.
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Amendment of s 72 (Wild stock)
Clause 56 inserts references to plantation officers into section 72 of the
Forestry Act, with the result that both forest officers and plantation officers
can exercise power under the section (however plantation officers can only
exercise powers within the licence area for which the plantation officer is
appointed).
Amendment of s 73 (Unlawfully using State Forests etc.)
Clause 57 adds a new subsection (3) into s 73 (under which certain
activities are unlawful on State forest) to provide that a licensee exercising
delegated power under this section must advise an applicant of its ability to
apply for a review of a decision under section 83A of the Forestry Act.
Amendment of s 74 (Unauthorised building etc. within State
forests)
Clause 57A amends section 74(1) and (3) to permit a plantation officer to
bring proceedings to remove unauthorised structures in the State forest.
Amendment of s 75 (Removal of trespassers)
Clause 58 amends section 75 of the Forestry Act to provide that the term
"forest officer" includes a plantation officer to permit a plantation officer to
apply to a Magistrate for an order to remove trespassers from any State
forest, timber reserve or forest entitlement area.
Amendment of s 76 (Entry on to reserves may be prohibited)
Clause 59 amends section 76(1A) of the Forestry Act to prevent a Minister
from excluding or limiting a plantation licensee's or plantation
sublicensee's access to its licence area.
Amendment of s 79 (Subpurchase)
Clause 59A amends section 79 of the Forestry Act to provide that that
section does not apply to a purchaser of natural resource product from a
plantation licensee or plantation sublicensee. The effect of section 79 is to
deem a "subpurchase" of forest products got under a permit, licence or
other right or authority under the Forestry Act to be purchased on the same
terms and conditions as the permit or licence etc. This is not appropriate for
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Natural Resources and Other Legislation Amendment Bill 2010
purchasers from a plantation licensee or plantation sublicensee. Their
customer contracts will simply take effect in accordance with their terms.
Amendment of s 80 (Accounts of forest products)
Clause 60 inserts a new subsection (3) into section 80 of the Forestry Act
to provide that section 80 does not apply to a plantation licensee or
plantation sublicense. Section 80 concerns the Chief Executive's rights to
inspect the books and accounts purchasers of forest products or quarry
material. This provision is inconsistent with the plantation licensee's
exclusive rights to get and deal with natural resource products in the
licence area.
Insertion of new s 83A (Particular decisions subject to review)
Clause 61 inserts a new section 83A providing for a procedure for certain
decisions, made by a delegate of the Chief Executive under section 96B of
the Forestry Act, to be reviewed. A reviewable decision for the purposes of
this review is a decision in relation to the exercise of a power under
sections 35, 55, 56 and 73(2). These are the powers under which the
delegate may grant a range of permits, licences and other authorities under
the Forestry Act. The new section provides that a person dissatisfied with a
reviewable decision may apply to Chief Executive for a review on the
merits of that decision to be conducted.
In the case of decisions regarding authorities that are granted under
sections 35 and 55 (which relate to the getting of forest products or involve
an occupation right for commercial purposes) the Chief Executive may
delegate the conduct of the review under section 96B to a senior person
employed by the plantation licensee or sublicensee who has the appropriate
commercial expertise to review the decision.
In the case of decisions regarding authorities that are granted under
sections 56 or 73(2), which are primarily recreational in character, it is
more appropriate for the review to be conducted by an officer of the Chief
Executive (rather than a delegate under section 96B).
Amendment of s 84 (Matters may be completed by different
officers)
Clause 62 amends section 84 so that it contemplates a plantation officer.
This section provides that where an officer has:
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· issued a notice;
· given an order;
· given a direction;
· made a request; or
· taken an action,
under the Forestry Act, that officer or another officer who has like powers
under the Forestry Act may at any time withdraw, revoke or vary the
relevant action.
Amendment of s 88 (Offences generally)
Clause 63 inserts into section 88 of the Forestry Act references to
plantation licensees and plantation sublicensees. This general offence
provision deals with (amongst other things) the State's right to
compensation where an offence has been committed, as well as the
prosecutorial rights of a forest officer (and now a plantation officer in
certain circumstances).
New section 88A (Recovery of monies by plantation licensee or
plantation sublicense)
Clause 64 inserts new clause 88A which enables a plantation licensee or
plantation sublicensee to recover certain fees or amounts that are owing to
the State under the Act and capable of being recovered by the plantation
licensee or plantation sublicensee directly from the debtor. Section 96B(6)
provides for the retention by the plantation licensee or plantation
sublicensee of certain revenue such as permit and licence fees.
Amendment of s 91 (Power to waive proceedings)
Clause 65 inserts a new subsection into section 91 of the Forestry Act.
New subsection (1AA) provides that section 91 does not apply to natural
resource product in a licence area. Section 91 sets out the Chief Executive's
powers in relation to the recovery of money in connection with damage or
loss suffered in relation to forest products or quarry material interfered with
in contravention of the Forestry Act. The power is not appropriate for
natural resource product in a licence area post-restructure, as:
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Natural Resources and Other Legislation Amendment Bill 2010
· the plantation licensee will have an exclusive right to natural resource
product in the licence area, and therefore the Chief Executive would
not be seeking to recover loss in relation to such product; and
· the plantation licensee has other avenues through which it can seek to
recover loss or damages in respect of natural resource product in the
licence area (see new section 88A).
Amendment of s 95 (Facilitation of proof)
Clause 66 amends section 95 of the Forestry Act in order to remove
references to documents created by FPQ and FPQO. This section will take
effect on the date the plantation licence is entered into under new section
61QA of the Forestry Act.
Insertion of new s 96AA (Delegation by Minister)
Clause 67 inserts new section 96AA in the Forestry Act to permit the
delegation of the Minister's functions and powers under Parts 6D and 6E to
the Chief Executive administering the Forestry Act.
Amendment of s 96A (Delegation by chief executive)
Clause 68 amends section 96A to insert "general" in the heading of the
section in order to distinguish this section from the specific powers of
delegation in section 96B of the Forestry Act.
Insertion of new ss 96B - 96E
Clause 69 inserts new sections 96B, 96C, 96D and 96E into the Forestry
Act.
New section 96B (Delegation by chief executive - State
plantation forests)
Section 96B permits the Chief Executive to delegate the Chief Executive's
functions under certain sections in the Forestry Act to a plantation licensee,
plantation sublicensee, plantation manager, plantation officer or a
registered mortgagee (or enforcing party appointed by a registered
mortgagee where relevant). The delegated functions include the functions
or powers to appoint plantation officers, to erect regulatory and information
notices, to grant permits under the Forestry Act (other than permits for the
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Natural Resources and Other Legislation Amendment Bill 2010
sale of natural resource products) and to exercise powers with respect to
permits. The exercise of functions and powers delegated in accordance
with this section is restricted to the licence area.
The Chief Executive may delegate powers under section 56 to the
plantation licensee, a plantation sublicensee, a plantation manager or a
plantation officer under new section 96B for forest products, but only in
respect of the licence area. However, the delegation does not include the
function of granting sales permits for natural resource products, such as
plantation timber, reflecting the intention that, post-restructure, the
plantation licensee or plantation sublicensee will enter into customer
contracts on a purely contractual basis, and not as "sales permits" under the
Forestry Act.
The plantation licensee is permitted to retain fees and other amounts
payable under the licences and permits previously granted by FPQ and
transferred to the licensee and for new licences and permits to be granted
over the licence area by the licensee under delegated authority.
New section 96C (Delegation by chief executive - lands)
Section 96C provides for the Chief Executive (lands) to delegate his or her
functions under the Forestry Act to an appropriately qualified public
service officer.
New section 96D (Delegation by FPQ and head of FPQO)
Section 96D permits FPQ and/or the head of FPQO to delegate his or her
functions to:
· a declared entity within the meaning of the Infrastructure Investment
(Asset Restructuring and Disposal) Act 2009; or
· an appropriately qualified person who is an employee of a declared
entity.
This section will permit the "business-as-usual" operations of FPQ and
FPQO to continue during the period between the transfer of assets and
liabilities to a new company, FPQ Pty Ltd, and the completion of the sale.
New section 96E (Protection from liability)
New section 96E provides for the protection of a plantation officer from
liability where the plantation officer has acted, or omitted to act, honestly
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Natural Resources and Other Legislation Amendment Bill 2010
and without negligence. Where civil liability does not attach to the
plantation officer, it will attach to the plantation licensee or the plantation
manager.
Amendment of s 97 (Regulation-making power)
Clause 70 omits section 97(4) of the Forestry Act. Since the Bill repeals
the Forestry Plantations Queensland Act 2006, this subsection is no longer
required.
Replacement of pt 10 heading (other transitional provisions)
Clause 71 amends the heading of Part 10 of the Forestry Act to create a
new division in the part relating to transitional provisions inserted in the
Forestry Act by the Forestry Plantations Queensland Act 2006. New
division 2 of part 10 (added by clause 72 below) relates to transitional
provisions inserted by this Bill.
Insertion of new pt 10, div 2
Clause 72 inserts a new Division 2 into the transitional provisions in Part
10 of the Forestry Act. This new part contains savings provisions to
provide for the continuing validity of the acts of FPQ and FPQO, and
provisions for certain declared areas within SPF, following commencement
of the Forestry Act.
New Division 2 Natural Resources and Other Legislation
Amendment Act 2010
New section 118 (Definitions for subdiv 1)
New section 118 provides definitions for the transitional provisions in
subdivision 1 of Division 2.
New section 119 (Appointment of officers)
New section 119 provides that a forest officer employed by FPQO who is
transferred or seconded to a declared entity under the Infrastructure
Investment (Asset Restructuring and Disposal) Act 2009 is taken to be a
plantation officer for the licence area from the date the declared entity
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Natural Resources and Other Legislation Amendment Bill 2010
becomes a plantation licensee, plantation sublicensee or plantation
manager.
New section 120 (Provision for s 34AA or 34AB (Regulation of
use of State forests by notices and display in State forests of
information notices in conjunction with regulatory notices)
New section 120 provides that a notice erected by FPQ under sections
34AA or 34AB which is in effect immediately before commencement is
taken to be a sign erected by the Chief Executive and continues to have
effect.
New section 121 (Provision for s 34A (Specialised management
within State forests))
New section 121 provides that where a feature protection area or scientific
area under old section 34A continues to be SPF after commencement, the
area continues to be a feature protection area or scientific area and the
Governor in Council may continue to exercise power under old section 34A
to revoke or amend a declaration in relation to those areas.
New section 122 (Provision for s 34G (regulating movement of
vehicles on feature protection areas etc.))
New section 122 provides that a notice erected by the Chief Executive or
FPQ under section 34G(1) (which deals with regulation and prohibition of
movement of vehicles in feature protection areas, State forest parks and
forest drives) which is in effect immediately before commencement is
taken after commencement to have been erected by the Chief Executive,
and continues to have effect.
New section 123 (Provision for s 34H (Self-registration camping
areas))
New section 123 provides that a notice erected by the Chief Executive or
FPQ under section 34H (which deals with self-registration camping areas)
which is in effect immediately before commencement is taken after
commencement to have been erected by the Chief Executive, and continues
to have effect.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 124 (Provision for s 35 (Granting of permit for land
within State forest))
New section 124 provides that a permit granted by FPQ under section 35
that is in force immediately before commencement continues in effect after
commencement, and is taken from commencement to have been granted by
the Chief Executive.
New section 125 (Provision for s 55 (Licences to get forest
products etc.))
New section 125 provides that a licence granted by FPQ under section 55
that is in force immediately before commencement continues in effect after
commencement, and is taken from commencement to have been granted by
the Chief Executive.
New section 126 (Provision for s 56 (Permits etc.) - general)
New section 126 provides that a permit, licence, lease or another authority,
or an agreement or contract, granted by FPQ under section 56 other than an
FPQ sales permit, that is in force immediately before commencement
continues in effect after commencement, and is taken from commencement
to have been granted by the Chief Executive.
New sections 127 & 128 (Provision for s 56 (Permits etc.) -
administering party for FPQ sales permits and application of
relevant provisions for FPQ sales permits)
New section 127 inserts a new provision for section 56 which preserves
FPQ sales permits as if they were granted by or made by the Licensee.
New section 128 inserts a new provision for section 56 which concerns
FPQ sales permits. This section is intended to deal with the dual legal
characteristics of these sales permits, namely as both a general law contract
and as a statutory permit. They are general law contracts in that the
commercial terms were negotiated at arms length between the parties.
They are also sales permits since they may have been simultaneously
issued as a permit under section 56 of the Forestry Act. The sections grant
to a plantation licensee a set of powers under the Forestry Act including
powers under section 58(1) and 58(1B) to the exclusion of the Chief
Executive of the Department by appointing the plantation licensee as an
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Natural Resources and Other Legislation Amendment Bill 2010
administering authority for these and other provisions solely in relation to
these sales permits.
Two control mechanisms are proposed to constrain the exercise of the
powers to terminate under section 58(1) and 58(1B) of the Forestry Act.
Firstly, where a FPQ sales permit contains terms and conditions permitting
termination under the general law, the plantation licensee may only
terminate the statutory permit under section 58, if it is also permitted to
terminate the sales permit/commercial agreement under the general law.
Secondly, where a sales permit is more akin to a statutory permit than a
commercial agreement and does not contain terms and conditions
permitting termination under the general law, the plantation licensee may
exercise its powers under section 58 to terminate the sales permit.
However this is a decision that can be reviewed by the Chief Executive
under the Forestry Act.
New section 129 (Provision for s 73 (Unlawfully using State
forests etc.))
New section 129 provides that a permit granted by FPQ under section 73(2)
that is in force immediately before commencement continues in effect after
commencement, and is taken from commencement to have been granted by
the Chief Executive.
New section 130 (References to FPQ)
New section 130 provides generally that a reference to FPQ, the Chief
Executive of FPQ, or the Head of FPQO in relation to SPF or part of SPF
may be taken as a reference to the plantation licensee or a plantation
sublicensee, if the context permits.
New section 131 (Dissolution of corporation sole under the
Forestry Plantations Queensland Act 2006)
New section 131 provides for the dissolution of FPQ, following the
completion of the restructure. This section will take effect on a date to be
fixed by proclamation.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 132 (Amendment of regulations by the 2010
Amendment Act does not affect powers of Governor in Council)
New section 132 provides that the amendment of the regulations to the
Forestry Act, namely the Forestry Regulation 1998 and the Forestry (State
Forests) Regulation 1987 by the Natural Resources and Other Legislation
Amendment Act 2010 does not affect the power of the Governor in Council
to further amend those regulations or repeal them.
Omission of sch 1 (Administering entity for State plantation
forests)
Clause 73 omits Schedule 1 of the Forestry Act, which sets out the
distribution of functions between FPQ and the Head of FPQO. This section
will take effect on a date to be fixed by proclamation.
Amendment of sch 3 (Dictionary)
Clause 74 amends schedule 3 (dictionary) of the Forestry Act to delete
certain definitions and to include definitions of accepted representations,
chief executive (fire), compensation event, enforcement warrant, enforcing
party, fire commissioner, forest officer, licence, licence area, mortgage,
mortgagee, original plantation licence, plantation forestry, plantation
licence, plantation licence sketch plan, plantation licensee, plantation
manager, plantation officer, plantation operator, plantation sublicence,
plantation sublicensee, reasonably believes, reasonably suspects, register,
registered, register of plantation licences, registry, related agreement,
relevant State land, requisition, show cause notice, show cause period,
sketch plan and State plantation forest.
Part 8 Amendment of Forestry
Regulation 1998
Regulation amended
Clause 75 provides that part 8 of the Bill amends the Forestry Regulation
1998. The Regulation is being amended by primary legislation, rather than
by an amending regulation, in order to meet the required timeframes for the
restructure.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 3 (Powers of forest officers in recreation
areas)
Clause 76 amends section 3 of the Regulation to give plantation officers the
ability to direct a person to leave a recreation area.
Amendment of s 7 (Fire control in recreation areas)
Clause 77 amends section 7 of the Regulation and establishes an offence of
lighting a fire in a recreation area (other than in a fire place or barbeque
provided by the Chief Executive). However, it is not an offence if the
person lights or uses a fire in a barbeque, stove or other appliance specially
constructed for containing a fire, and the use of the barbeque, stove or other
appliance is agreed to by a forest officer. Clause 77 provides that a
plantation officer may also agree to the lighting of a fire.
Amendment of s 23 (Operation of vehicles in State forests)
Clause 78 amends section 23 to provide that a forest officer has the power
to give directions in relation to the use of vehicles in State forests. Clause
78 extends this power to plantation officers.
Amendment of s 24 (Operation of vessels in State forests)
Clause 79 amends section 24 to provide that a forest officer has the power
to give directions in relation to the operation of vessels in State forests.
Clause 79 extends this power to plantation officers.
Insertion of new s 32A
Clause 80 inserts new section 32A in the Regulation to provide that the
areas of State forest described in schedule 4A are declared to be SPF. This
is because the Forestry Plantations Queensland Act 2006 will be repealed,
and as such SPF will need to be declared under the Regulation rather than
under the Forestry Plantations Queensland Regulation 2006.
Omission of s 33 (Forest drives)
Clause 81 omits section 33 of the Regulation which declares certain areas
of State forest (listed in schedule 4 to the Regulation) to be forest drives. At
the commencement, there will be no areas declared to be forest drives. The
provision in the Act enabling an area to be declared as a forest drive by
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Natural Resources and Other Legislation Amendment Bill 2010
regulation (section 34A) will remain, but will no longer apply to SPF. It
should be noted that the revocation of forest drive classification does not
affect the rights of members of the public to drive on roads within the
former forest drive area. The only effect is that the specific provisions in
sections 34F and 34G will cease to apply to the area.
Amendment of s 34 (Plan references)
Clause 82 inserts a reference to "PLP" (plantation licence plan) in
paragraph (a) of section 34 of the Regulation. This paragraph provides that
"FTY" (forestry) and "FSM" (forestry special management) plans are
available from the department administering the Forestry Act.
Replacement of sch 4 (State forest parks)
Clause 83 amends schedule 4 to the Regulation to:
· revoke State forest park classification in respect of two areas, SFP9 on
plan FSM37 (known as Pechey) and SFP7 on FSM35 (known as East
Nanango); and
· replace the State forest park reference with an updated reference in
respect of two areas, SFP4 on plan FSM32 (known as Coochin Creek)
and SFP23 on plan FSM80 (known as Charlie Moreland) to reflect
minor changes to the boundaries of these areas. From commencement,
the Coochin Creek State forest park will be the area referred to as
SFP24 on plan FSM32, and the Charlie Moreland State forest park
will be the area referred to as SFP25 on plan FSM80.
In each case, the areas excised from State forest park are to retain their
State forest classification and be included in the SPF land declared under
new schedule 4A to the Regulation. These changes to the estate reflect the
outcome of a process to match the boundaries of SPF to existing plantation
forestry activity, correct anomalies and generally ensure that the SPF estate
is sufficiently defined to enable the plantation licence to be granted.
Insertion of new sch 4A
Clause 84 inserts new schedule 4A into the Regulation for the purposes of
new section 32A. The plans referred to in this schedule are the updated
plantation licence plans derived from the process described above.
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Natural Resources and Other Legislation Amendment Bill 2010
Omission of sch 5 (Forest drives)
Clause 85 omits schedule 5 of the Regulation which lists areas declared to
be forest drives under section 33.
Part 9 Amendment of Forestry
Plantations Queensland Act 2006
Act amended
Clause 86 provides that part 9 of the Bill amends the Forestry Plantations
Queensland Act 2006. The amendments effected by part 9 (other than
clauses 87 and 94) commence when the first plantation licence is entered
under new section 61QA of the Act, and have the effect of omitting those
provisions of the Act which confer plantation forestry related functions and
powers on FPQ and FPQO. After the first plantation licence is entered,
these functions and powers will either revert to the Chief Executive
administering the Act, or will be performed by the plantation licensee,
plantation sublicensee or plantation manager.
Residual provisions of the Act will remain in effect to enable FPQ to
complete any required "winding up"-type activities before the Act is
repealed under clause 249 of the Bill.
Omission of s 4 (Declaration of land as State plantation forest)
Clause 87 omits section 4 of the Forestry Plantations Queensland Act
2006 which provides for the declaration of State forest land as SPF. Such
declarations will now occur under new section 32A of the Act .
Omission of s 9 (Limitation on FPQ's powers in relation to State
plantation forests)
Clause 88 omits section 9 of the Act. Section 9 is a clarifying provision to
the effect that the only powers FPQ may exercise in relation to a SPF are
the powers conferred on it under the Act and FPQ's profit á prendre. This
section will have no further practical application once the first plantation
licence is entered under new section 61QA of the Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 12 (Functions of FPQ)
Clause 89 amends section 12 of the Act, which sets out the functions of
FPQ, by omitting those plantation forestry related functions which will
cease to apply once the first plantation licence is entered under new section
61QA of the Act. In relation to the omission of subsection 12(2), which
requires FPQ to manage the SPF consistent with best practice principles for
sustainable management of plantation forestry, it should be noted that a
similar obligation is imposed on the plantation licensee under new section
61QE and the definition of "plantation forestry" in new section 61Q of the
Act.
Omission of ss 35 and 36
Clause 90 omits sections 35 and 36 of the Act. Section 35 deals with
compensation payable by the State to FPQ where SPF classification is
revoked over land. Section 36 compels FPQ to enter into an agreement with
the State about the State's access to SPF, and FPQ's access to State land. In
each case, appropriate equivalent arrangements will apply as between the
State and the plantation licensee or any plantation sublicensee under new
part 6D of the Forestry Act.
Omission of s 39 (Application of mineral resources legislation)
Clause 91 omits section 39 of the Act which declares that FPQ does not
have rights to mineral resources on SPF. This clarifying provision is no
longer required once FPQ no longer has an interest in the SPF land.
Insertion of new pt 5, div 1 hdg
Clause 92 inserts a new division heading into the Forestry Plantations
Queensland Act 2006.
New Division 1 - Forestry Plantations Queensland Act 2006 No.
16
Omission of s 61 (Relevant proceedings)
Clause 93 omits section 61 of the Act, which is a transitional provision for
the creation of FPQ in 2006. This provision is not suitable for application
after the restructure of FPQ.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new pt 5, div 2
Clause 94 provides that certain buildings and structures situated on SPF
that were transferred to FPQ when FPQ was created, or constructed by
FPQ since 1 May 2006, are taken to be the personal property of FPQ (and
are not fixtures owned by the State). The section only applies to land which
remains SPF after the changes effected by this Bill.
New Division 2 - Natural Resources and Other Legislation
Amendment Act 2010
Amendment of sch 2 (Dictionary)
Clause 95 removes the definitions of "community service obligation",
"natural resource product", "State forest" and "State plantation forest"
from schedule 2 (dictionary) to the Act. These definitions were only used
in the provisions which are repealed by clauses 87 to 91.
Part 10 Amendment of the Forestry
(State Forests) Regulation 1987
Regulation amended
Clause 96 provides that part 10 of the Bill amends the Forestry (State
Forest) Regulation 1987. This Regulation is the regulation under which
unallocated State land is declared to be State forest. Only State forest can
be declared to be SPF and included in the licence area.
Amendment of schedule (State forests)
Clause 97 amends the schedule to the Regulation to add a reference to a
closed road at South Nanango, with the effect that the unallocated State
land comprising the closed road is added to the area of the existing State
forest which it borders. This area is also included in the SPF land declared
under the Forestry Regulation 1998.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 11 Amendment of Land Act 1994
commencing on assent
Act amended
Clause 98 provides that this part 11 amends the Land Act.
Amendment of s 15 (Leasing land)
Clause 99 removes section 15(6) as this provision was in conflict with
section 153 that states that a lease must state the purpose for which it was
issued. All leases issued under the Land Act must state the purpose of the
lease.
Amendment of s 18 (Exchanging land)
Clause 100 sets out that an application must be received for an exchange of
land. This provision is consistent with other provisions in the Act that
require an application to be made.
Amendment of s 48 (Trustees to give information and allow
inspection of records)
Clause 101 amends section 48 to allow that a land management plan
approved by the Minister for a reserve is noted or recorded in the
appropriate land registry.
Amendment of s 61 (Conditions on trustee leases and trustee
permits)
Clause 102 amends section 61 to allow for the terms of trustee leases and
trustee subleases over operational deeds of grant in trust (DOGIT) to be for
a maximum term of up to 100 years. This provision is in recognition of the
emerging need for trustees of operational DOGIT's to involve the private
sector in the provisions of not only services but essential community
infrastructure that significantly improves the community's access to
services on these operational DOGIT's.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new Ch 4, pt 1,div 2A, hdg
Clause 103 inserts a Chapter 4, part 1, new division 2A heading, "Leases
for significant development", after section 128 of the Act
Replacement of s 129 (Lease for significant development)
Clause 104 replaces section 129 with new sections 129 and 129A.
New section 129 Lease for significant development
New section 129 clarifies that a lease for significant development can be
obtained with or without competition.
New section 129A Further dealings with lease land on
completion of significant development
New section 129A ensures that a lease that is granted for a significant
development is no longer than the term considered appropriate for
completion of the proposed extensive development. The significant
development lease may be granted subject that all or part of the lease land
will be freeholded or further leased upon satisfaction of the fact that the
lessee has completed the extensive developments required under the
conditions of the lease and that the Minister is satisfied that the lessee is
entitled to a grant of a deed or a further lease in accordance with the
conditions of the lease. The purpose of the initial lease will be shown as
significant development lease and the conditions of the lease must relate to
the development and not the management of the developed land.
If the land the subject of significant development lease is further leased the
term of the lease may be up to 100 years and will be for the operation and
use of the completed development. The new lease will be for the purpose of
the completed development and will not be called a significant
development lease.
Relocation and renumbering of s 131 (Amalgamation may be a
condition)
Clause 105 relocates and renumbers section 131 in chapter 4, part 1,
division 2, as section 127A. This amendment is consequential to the
insertion of a new division 2A, "Leases for significant development" into
the Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new ch 4, pt 3, div 1A, hdg
Clause 106 inserts a new chapter 4, part 3, division 1A heading, "Length of
term on issue of term lease".
Amendment of s 155 (Length of term leases)
Clause 107 amends section 155 to clarify the requirements for issuing
leases over rural leasehold land for terms that are longer than 30 years.
Generally, the pre-requisite for an extended term is that the lease land must
be in good condition. Additional conditions relating to nature conservation
and indigenous access and use agreements apply for lease terms of 40 or
more years. Further guidance is also provided for the grant of a lease for a
term of up to 75 years.
The clause also amends section 155 to clarify that a term lease may be
granted for the development and operation of a lease for a significant
development or for the operation and management of the completed
development. This amendment is to clarify another amendment in the Act
which states that if a lease was issued to allow for a development to
commence then on completion of that development and provided that the
proponent had complied with all the conditions of the lease then a further
long term lease could be granted to operate the completed development i.e.
a short term lease may be granted to allow development of a tourist resort
and on completion of the development of the resort a further long term
lease would be granted to allow for the operation of the resort.
Replacement of ss 155A and 155B
Clause 108 replaces sections 155A (Extending particular term leases for a
term of up to 40 years) and 155B (Extending particular term leases for a
term of up to 50 years) with new sections 155AA to 155BA to provide
further clarification on the requirements for extending leases over rural
leasehold land. The amendments also ensure consistency of approach in
lease extension dealings, encourage lessees to continually strive for good
land management outcomes where droughts etc. may otherwise inhibit
their capacity to return the lease land to good condition within a 10-year
timeframe and provide lessees with sufficient time to demonstrate
satisfactory compliance with a land management agreement.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 155AA (Particular term leases may be extended)
New section 155AA clarifies issues with existing sections 155A and 155B
by providing for extensions of certain rural leasehold land for which there
is a land management agreement and no more than 80% of the existing
term of the lease has expired and after no less than 5 years have passed
since the lease was entered into or a land management agreement for the
lease was first registered, whichever is the later--unless special
circumstances apply.
New section 155A (Extending particular term leases for a term
of up to 40 years)
New section 155A clarifies issues in the existing section 155A, namely the
new section clarifies that --
· the section applies to leases with terms of more than 20 years but less
than 40 years;
· the one-off extension may be granted where the Minister is satisfied
that the lease land is brought to good condition and the lessee has
complied with a land management agreement; and
· the extension can be made for a period of not more than 10 years and
must not extend the term of the lease beyond 40 years.
The clarification ensures that lease with terms of between 31 and 39 years
are covered by legislation and removes any potential for leaseholders to
resort to land degradation in order to seek eligibility for maximum lease
terms or extensions.
New section 155B (Extending particular term leases for a term
of up to 50 years)
New section 155B clarifies issues in the existing section 155B, namely the
new section clarifies that --
· the section applies to leases with terms of up to 50 years, providing
appropriate cover for leases with terms of between 41 and 49 years;
· if an extension has not previously been issued under section 155A and
the lease satisfies the requirements of both sections 155A and 155B,
two extensions of up to 10 years each may be issued simultaneously
under section 155B (as if they were being issued under sections 155A
and 155B respectively); and
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Natural Resources and Other Legislation Amendment Bill 2010
· the extension must not take the term of the lease beyond 50 years.
These clarifications provide greater certainty and ensure that all leases
covered by the Delbessie Agreement are treated consistently and have
equal opportunities to achieve the intended outcomes and benefits.
New section 155BA (Extending particular term leases for a term
of up to 75 years)
New section 155BA provides for a one-off extension of certain rural leases
where the term of the lease was originally granted for between 50 and 75
years or has been extended under section 155B.
The Minister may extend the lease for a period of not more than 25 years
where the land management agreement contains a commitment by the
Minister to extend the lease and:
· the lease land is in good condition; and
· all or part of the lease land is land that is declared as an area of
international conservation significance under the Cape York Peninsula
Heritage Act 2007; and
· all or part of the land is the subject of a nature conservation agreement
or conservation covenant; and
· an indigenous land use agreement relating to the land has been entered
into; and
· the nature conservation agreement, or conservation covenant, and
indigenous land use agreement are acceptable to the Minister; and
· the Minister is satisfied that the lessee has complied with the land
management agreement, nature conservation agreement or
conservation covenant, and indigenous land use agreement; and
· that the extension is appropriate having regard to the size of the
declared area.
If an extension has not previously been issued under sections 155A or
155B and the lease satisfies the requirements of sections 155A, 155B and
155BA, up to three extensions may be issued simultaneously under section
155BA (as if they were being issued under sections 155A, 155B and
155BA respectively, but within the maximum amounts permitted by the
relevant section).
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 155C (Registering and taking of effect of
extension)
Clause 109 amends section 155C to reflect the new section 155BA.
Replacement of s 155D (Power to reduce term of extended
lease)
Clause 110 replaces section 155D of the Act (Power to reduce term of
extended lease) with new sections 155D to 155DA to:
· Clarify that the conditions which qualified a lease over rural leasehold
land for a term of more than 30 years or an extension must remain in
place for the particular term or lease extension to continue.
· Provide for the consistent and equitable treatment of leases where
terms or extensions are reduced because one or more of the
requirements which formed the basis for the particular term of the
lease being granted have ceased to exist.
· Clarify the requirements for reducing the terms of certain leases over
rural leasehold land where the extended term was issued under section
155.
· Extend the Minister's powers to cover leases issued under section 155
as well as those extended under new section 155BA.
New section 155D (Power to reduce term of lease because of
land condition)
New section 155D provides for the consistent and equitable treatment of
leases where terms or extensions are reduced because at the time the term
lease was issued or extension was granted:
· the lease land was in good condition but is no longer in good
condition; or
· a conservation agreement or covenant was in place but has since
ceased to exist; or
· an indigenous access and use agreement was in place but no longer
exists; or
· a declaration of international conservation significance under the
Cape York Peninsula Heritage Act 2007 which affected part or all of
the lease land has been lifted; and
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Natural Resources and Other Legislation Amendment Bill 2010
· any of these were a specific requirement for the grant of the particular
term of the lease or lease extension.
New section 155DA (Notice of intention to reduce term)
New section 155DA provides for a lessee to be notified in writing of the
proposed exercise of the power to reduce the term of the lease and the
lessee may make a submission in response if
· the term of a lease other than an extension granted under section
155A, 155B or 155AB is being reduced, in other words, those issued
under section 155 (4) to (7); and
· the Minister proposes to reduce the term of the lease by an amount
that is more than it was extended.
Amendment of s 155E (Provisions about reduction)
Clause 111 amends section 155E of the Act (Provisions about reduction) to
extend the requirement that a lessee, in certain cases, must be notified in
writing of the proposed exercise of a power to reduce the term of the lease
and the lessee may make a submission in response to decisions by the
Minister under new sections 155D or 155DA.
Insertion of new ch 4, pt 3, div 1D
Clause 112 inserts a new Chapter 4, part 3, division 1D, "Relationship with
the Dividing Fences Act 1953".
Amendment of s 158 (Application for new lease)
Clause 113 amends section 158 (Application for new lease) consequential
to the insertion by this Bill of new sections 155A, 155B and 155BA.
Amendment of s 159A (Provisions for decision about most
appropriate form of tenure)
Clause 114 amends section 159A so that if when assessing a renewable
application it is assessed that a more appropriate tenure than a lease is
applicable but the condition of lease would prevent the lease being
converted to freehold, the lease may still be converted to freehold if the
assessment deems that that condition is no longer appropriate. As the
leased land is being assessed in the present, a previous condition that may
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have been appropriate in the past when the lease was first issued but which
is now no longer appropriate should not prevent the lease being dealt as if
the application was for conversion of tenure and not as a renewal of lease.
Amendment of s 162 (Issuing of new lease)
Clause 115 provides that, at renewal, the purpose of the old lease can be
determined with reference to the category and conditions of the old lease if
the purpose was not stated previously or is obscure.
Amendment of s 166 (Application to convert lease)
Clause 116 amends section 166 to reflect the new section 155BA.
Amendment of s 169 (Conditions of freehold offer)
Clause 117 clarifies that a deed of grant cannot issue until all the
requirements of the offer have been satisfied which includes the full
payment of the purchase price.
Amendment of s 176A (General provisions for deciding
application)
Clause 118 clarifies that a land management agreement is required for new
leases that result from subdivisions if a land management agreement
existed for the lease land prior to the subdivision or if the lease is for rural
leasehold land, has a term of more than 20 years and the land is 100 ha or
more.
Amendment of s 176L (General provisions for deciding
application)
Clause 119 clarifies that a land management agreement is be required for a
new lease that results from an amalgamation if there is a land management
agreement for any of the existing leases and if the amalgamated lease is for
over rural leasehold land, the lease has a term of 20 years or more and the
land is 100 ha or more.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 176W (Content of land management
agreement)
Clause 120 amends section 176W consequential to the insertion by this Bill
of new sections 155A, 155B and 155BA.
Amendment of s 183 (Rent payable generally)
Clause 121 amends section 183 so as to allow that for certain categories of
tenures the rent for that whole category or sub-category can be set at a fixed
amount in lieu of calculating the rental using a percentage rate. This clause
is consistent with the Government's commitment that rents for charities
and small sporting and recreational clubs would be set at an amount lower
than the minimum rentals that apply for private benefit tenures. This new
provision would also allow for rentals to be set for Telecommunication
tenures.
Amendment of s 183A (Set rents)
Clause 122 allows that in exceptional circumstances a regulation will
prescribe that a annual rent or whole of term rent can be set for a specific
lease which is less than the minimum rent prescribed in the regulation for a
lease in that category. This provision is necessary for those instances
where an entity may take over the management of a significant
infrastructure on behalf of the State and therefore should only be subject to
a nominal rental.
Insertion of new s 201A
Clause 123 clarifies that a land management agreement is mandatory for
certain term leases over rural leasehold land.
Amendment of s 214E (Power to reduce term of lease or impose
additional conditions)
Clause 124 clarifies that a land management agreement may be required
for the lease land for which a remedial action notice has been issued.
Amendment of s 234 (When lease may be forfeited)
Clause 125 amends section 234 to state that it is a court of competent
jurisdiction such as the Supreme Court and not the Land Court that would
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Natural Resources and Other Legislation Amendment Bill 2010
determine that a lease has been obtained by fraud. As a higher court has
already deemed that a lease was obtained by fraud there is no need to
forward the matter to the Land Court to decide whether the lease may be
forfeited.
Amendment of ch 5, pt 4, div 2A, hdg (Forfeiture of leases by
referral to court)
Clause 126 amends the heading of chapter 5, part 4, division 2A
consequential to amendment to section 234. This amendment is a
consequential amendment following on from the amendment to section
234.
Amendment of s 238 (Application to the court for forfeiture)
Clause 127 renumbers the subsections of section 238 (application to the
court for forfeiture as a consequence of the amendment to section 234.
Amendment of s 239 (Designated person's options if court
decides on forfeiture)
Clause 128 makes minor amendments to section 239 (designated person's
options if court decides on forfeiture) as a consequence of the amendment
to section 234.
Amendment of s 240E (Sale by lessee)
Clause 129 makes minor amendments to section 240E (Sale by lessee) as a
consequence of the amendment to section 238.
Amendment of s 240F (Sale by mortgagee instead of forfeiture)
Clause 130 makes minor amendments to section 240F (Sale by mortgagee
instead of forfeiture) as a consequence of the amendment to section 238.
Amendment of s 240G (Application)
Clause 131 amends section 240G (Application) as a consequence of the
amendment to section 238.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 240J (Application of sdiv 4)
Clause 132 makes minor amendments to section 240J (application of sdiv
4) as a consequence of the amendment to section 234.
Amendment of s 240N (Advice about entering transition to sale
agreement)
Clause 133 makes minor amendments to section 240N (advice about
entering transition to sale agreement) as a consequence of the amendment
to section 234.
Amendment of s 240P (Auction or sale of lease)
Clause 134 makes minor amendments to section 240P (Auction or sale of
lease) as a consequence of the amendment to section 239.
Amendment of s 275 (Registers comprising land registry)
Clause 135 amends section 275 of the Land Act to include a register of
State forests in the land registry
Amendment of s 276 (Registers to be kept by chief executive)
Clause 136 amends section 276 of the Land Act to require the chief
executive to keep and maintain a register of State forests.
Amendment of s 288A (Original mortgagee to confirm identity
of mortgagor)
Clause 137 amends section 288A to extend the operation of subsection (2)
to the lodgement of an instrument of amendment of a mortgage. In some
cases, an amendment of mortgage is registered when indebtedness under a
mortgage is increased beyond that originally provided for in the mortgage,
rather than entering into a new mortgage. (Section 343 provides for
registration of an instrument of amendment of mortgage.) This amendment
is in line with the amendment of section 11A of the Land Title Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 288C (Effect of registration of mortgage under
Land Title Act 1994)
Clause 138 updates a reference in section 288C to a provision of the Land
Title Act.
Amendment of s 290I (Division of lot on standard format plan of
subdivision)
Clause 139 amends section 290I to insert an omitted word in subsection (2)
in line with an amendment of section 49E of the Land Title Act.
Amendment of s 294I (Extinguishing a building management
statement)
Clause 140 amends section 294I to clarify that, where a vacant lot subject
to a building management statement (BMS) is to be removed, consent need
not be given by the mortgagees of all the lots subject to the BMS but only
by the mortgagee of the lot to be removed. This amendment is made for
consistency with the amendment of section 54H of the Land Title Act.
Amendment of s 327 (Absolute surrender of deed of grant)
Clause 141 amends section 327 by omitting "deed of grant" and inserting
"freehold" in its place. This amendment is necessary as there are other
forms of freehold land other than a deed of grant i.e. land vested in fee
simple is not covered by the definition of a deed of grant. The definition of
freehold land under schedule 6 of the Land Act includes land held in the
freehold land register and other land granted or vested in fee simple. The
definition of deed of grant under schedule 6 of the Land Act is "land
granted in fee simple by the State" or "the document evidencing the grant,
including an indefeasible title under the Land Title Act. As the department
accepts surrenders of other forms of freehold land that has been granted or
vested in fee simple other than deed of grants the reference to deed of grant
is being replaced by the broader term of freehold.
Amendment of s 327B (Applying to surrender)
Clause 142 amends section 327B in accordance with clause 141 by
omitting "deed of grant" and inserting "freehold" in its place.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 331 (Effect of surrender on existing interests)
Clause 143 amends section 331 in accordance with clause 141 by omitting
"deed of grant" and inserting "freehold" in its place.
Amendment of s 373A (Covenant by registration)
Clause 144 inserts a new subsection (2A) in section 373A to allow a
covenantor and a covenantee to be the same person.
This clause also amends section 373A(9)(a) to clarify, in accordance with
the original intent of this provision, that a covenant cannot be used to
prescribe standards for landscaping and gardens and for the construction of
structures such as retaining walls that cannot be described as "buildings".
These amendments are in line with the amendment of section 97A of the
Land Title Act.
Amendment of s 373E (Application of div 8B)
Clause 145 amends section 373E of the Act (Application of div 8B) to
clarify that a lessee may, subject to the provisions of the part, register a
profit a prendre in relation to carbon sequestration and to clarify the link
between this Division and Part 6B of the Forestry Act.
Part 6B of the Forestry Act is intended to enable lessees who own the trees
as improvements to enter into natural resource agreements about the
ownership, use and economic benefit of natural resource products (e.g.
carbon). The only mechanism by which such agreements by lessees can be
registered is under Chapter 6, Part 4, Division 8B of the Land Act, which
allows the registration of profits a prendre under the Land Act. However, it
is not currently clear that Division 8B covers carbon related agreements.
Accordingly section 373E is amended to omit reference to "natural resource"
and replace it with reference to a "natural resource product". The term
"natural resource product" is the term inserted into the Forestry Act in 2001
to cover not only parts of the tree, but also carbon stored in a tree or
vegetation, or carbon sequestration by a tree or vegetation.
Amendment of s 373F (Definitions for div 8B)
Clause 146 amends section 373F of the Act (definitions for div 8B) to
insert definitions for "carbon sequestration", and "natural resource product.
The amendments are intended to clarify that a lessee may, subject to the
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Natural Resources and Other Legislation Amendment Bill 2010
provisions of the part, register a profit a prendre in relation to carbon
sequestration and to clarify the link between this Division and Part 6B of
the Forestry Act.
Part 6B of the Forestry Act is intended to enable lessees who own the trees as
improvements to enter into natural resource agreements about the ownership,
use and economic benefit of natural resource products (e.g. carbon.
Amendment of s 374 (Details of trust must be given)
Clause 147 amends section 374 to update the requirements for the
provision of documents evidencing a trust. This amendment is in line with
the amendment of section 110 of the Land Title Act.
Amendment of s 374A (Interests held in trust must be
registered)
Clause 148 amends section 374A to include reference to instruments other
than transfers by which a trustee may become registered as holder of an
interest in a lease or sublease. This amendment is in line with the
amendment of section 109 of the Land Title Act.
Amendment of s 375 (Document of transfer to trustee)
Clause 149 amends section 375 to update the requirements for the
provision of documents evidencing a trust. This amendment is in line with
the amendment of section 110 of the Land Title Act.
Amendment of s 389J (Further caveat)
Clause 150 amends section 389J to clarify that this section does not apply
to lodgement of a caveat by the Chief Executive under section 389L(1).
This amendment is in line with the amendment of section 129 of the Land
Title Act.
Amendment of s 392 (Delegation by Minister)
Clause 151 amends section 392 to reflect the new section 155BA and
clarifies that the Minister may delegate decision-making on such matters as
the offer of an extension, land condition assessment, land management
agreements and indigenous access and use agreements.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new ch 9, pt 1H
Clause 152 inserts a new chapter 9, part 1H, "Transitional Provisions for
Natural Resources and Other Legislation Amendment Act 2010".
New section 521U Definitions for pt 1H
New section 521U provides definitions for the new chapter 9, part 1H,
"Transitional Provisions for Natural Resources and Other Legislation
Amendment Act 2010"
New section 521V (Existing term leases applications)
New section 521V provides that the amendments to existing section 155
apply to term leases over rural leasehold land issued, and an application for
a term lease made but not decided, on or after 1 January 2008.
New section 521W (Existing extension applications)
New section 521W provides that the amendments to existing sections 155A
and 155B apply to an application for a lease extension made but not
decided before the commencement.
New section 521X Application of s 155D to existing leases
New section 521X provides that, from the commencement, section 155D
applies to leases granted under previous section 155 or extended under
previous section 155A or 155B.
New section 521Y (Application of s 201 to existing leases)
New section 521Y provides that new section 201A does not apply to leases
entered into before the commencement."
Amendment of sch 2 (Original decisions)
Clause 153 makes minor amendments to Schedule 2 (Original decisions)
consequential to the amendment to section 239 of the Act made by this
Bill.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of sch 6 (Dictionary)
Clause 154 amends Schedule 6 (Dictionary) to insert definitions that will
clarify that a lessee may, subject to the provisions of the part, register a
profit a prendre in relation to carbon sequestration and to clarify the link
between this Division and Part 6B of the Forestry Act.
Part 6B of the Forestry Act is intended to enable lessees who own the trees as
improvements to enter into natural resource agreements about the ownership,
use and economic benefit of natural resource products (e.g. carbon.
Part 12 Amendments of Land Act 1994
commencing by proclamation
Act amended
Clause 155 provides that this part amends the Land Act.
Replacement of s 5 (Land to which Act applies)
Clause 156 replaces section 5 of the Land Act to remove reference to the
term "high-water mark" as the central concept for determining the location
of a boundary of land adjoining tidal water. The term "high-water mark" is
retained in relation to other provisions in the Act.
Under the Act, the high-water mark is defined as "the ordinary high-water
mark at spring tides". The need to replace this term as the central concept
for determining tenure boundaries arose from a Court interpretation of
high-water mark as "mean high water springs". This decision allowed
landholders to extend their land closer to the water than originally
intended. Moving ambulatory boundaries closer to tidal water has raised
issues including, but not limited to, foreshores being taken into private
ownership.
Replacement of ch 1, pt 4 hdg (Land near high-water mark)
Clause 157 omits the heading "Land near high-water mark" and replaces it
with "Tidal and non-tidal boundaries and associated matters". This change
is consequential to the removal of "high-water mark" from section 5 of the
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Natural Resources and Other Legislation Amendment Bill 2010
Act. The amendment also reflects the inclusion of non-tidal tenure
boundaries in the Land Act and SMIA rather than the Water Act.
Amendment of s 8 (Definitions for pt 4)
Clause 158 omits some existing definitions within section 8 and inserts
new definitions within the Land Act relevant to the new tidal and non-tidal
boundary scheme.
Replacement of ss 9 and 10
Clause 159 omits existing sections 9 and 10 of the Land Act which deal
with land below high-water mark owned by the State and accretions owned
by the State respectively and replaces them with new sections 9 and 10.
New section 9 (Land adjacent to tidal boundary owned by the
State)
New section 9 deals with land that is adjacent to a tidal boundary or a right
line tidal boundary, and is on same side of the tidal boundary as the tidal
water. The term "other land", includes "land below the high-water mark"
and land between the high-water mark and tidal boundary.
The section also refers to "relevant land", which is land with a boundary
formed by high-water mark before the commencement of this section.
"Other land"
· belongs to the State, unless it is inundated land or there is a
pre-existing registered interest over it;
· belonging to the State may be dealt with as unallocated State land;
· belongs to the State even when a registered owner owns land on both
sides of it; and
· does not pass out of State ownership by acts of occupation, use or
removal of material.
The section states that if before commencement, the line of the high-water
mark shifted by gradual and imperceptible degrees, then the shift was a
shift in the boundaries of the relevant land.
In this section, provisions applying to "other land" which is also "land
below the high-water mark" operate prospectively and retrospectively,
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Natural Resources and Other Legislation Amendment Bill 2010
while provisions relating to "other land" which is not below the high-water
mark, operate prospectively only.
The common law term "the ordinary high-water mark at spring tides" has
the same meaning as Mean High Water Springs.
Diagram 1 Vesting of land with a tidal boundary immediately
after commencement.
Diagram 1 illustrates the situation immediately after commencement. The
current plan of survey for lots 1 and 3 depicts a natural feature as the
high-water mark boundary, while the current plan of survey for lot 2
depicts the line of Mean High Water Springs.
At law, because of the operation of new part 7, division 2, subdivision 2, of
the SMIA, the tidal boundaries of lots 1 and 3 in Diagram 1 are now
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located at the natural feature adopted in the current plan, whereas the
boundaries were previously at the line of high-water mark, which the Land
Act defined as Mean High Water Springs. In Diagram 1, the land between
the tidal boundary for lots 1 and 3 and the line of Mean High Water Springs
vests in the State from the date of commencement. As it is prospective
only, and the land was previously incorporated in a registered interest, any
native title rights that might otherwise have subsisted in this land had been
extinguished when the land was originally granted as freehold.
In Diagram 1, the boundary of lot 2 remains at Mean High Water Springs,
until the owner seeks a resurvey pursuant to new part 7, division 2,
subdivision 3, of the SMIA.
New section 10 (Land raised above high-water mark by works)
New section 10 provides that land in the ownership of the State that
becomes raised above the high-water mark because of the carrying out of
works, remains in State ownership and may be dealt with as unallocated
State land.
The elevation of the land must be as a result of the carrying out of works on
or in proximity to the land.
This provision does not apply to reclaimed land. Reclaimed land is
specifically dealt with in Section 127 of the Land Act.
Amendment of s 13 (Power to deal with land below high-water
mark)
Clause 160 amends the heading of section 13 of the Land Act to reflect
dealings with land seaward of a tidal boundary or right line tidal boundary
rather than dealings below high water mark.
The amendments to section 13 are consequential to the shift in concept
from land below high-water mark to land seaward of a tidal or right line
boundary.
New subsection (2) confirms that land on the seaward side of a tidal boundary
or right line tidal boundary may be granted in fee simple where that land is
the subject of reclamation mentioned in section 127 of the Land Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new ch 1, pt 4, div 3
Clause 161 inserts a new division 3 after existing section 13, to provide for
the tenure of land in non-tidal boundary watercourses and lakes.
New Division 3 - The non-tidal environment
New section 13A (Land adjacent to non-tidal boundary
(watercourse) or non-tidal boundary (lake) owned by State)
New section 13A transfers watercourse tenure matters from section 21 of
the Water Act to the Land Act. It should be noted that section 21 of the
Water Act is continued by amendments to the Water Act for the purposes of
matters arising before the commencement of the amendments such that the
beds and banks of all watercourses and lakes forming all or part of the
boundary of land are, and always have been, the property of the State.
New section 13A provides that for land with a non-tidal boundary
(watercourse), adjoining land on the watercourse side of the boundary is
owned by the State. Similarly, the State owns land adjoining the non-tidal
boundary (lake) on the lakeside of the boundary. State ownership of the
watercourse is not affected by the alienation of land with a watercourse
boundary.
This provision retains the riparian rights granted in subsection 20(3) of the
Water Act, which enables the registered owner adjoining the watercourse to
exercise certain rights over land in the boundary watercourse, including the
right to graze their stock and to bring action against a trespasser, as if the
owner were the registered owner of the area.
Owners (and the owner's family, executive officers, employees and agents)
may exercise a right of access for themselves and their stock over the State
land in the watercourse that adjoins their land.
Note that the owner may exercise their rights only to the extent that it does
not interfere with the State's use of the adjacent land for a purpose under
the Water Act. The owner may not take action in trespass against a person
acting on behalf of the State.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 13B (Power to declare and deal with former
watercourse land)
New subsection 13B provides for a situation where the original location of a
watercourse changes and the watercourse land is no longer part of a
functioning watercourse.
At common law, where the location of a watercourse that forms a boundary
of land changes suddenly (i.e. not gradually or imperceptibly as is the
common law test), either by human intervention or natural forces, that
boundary fixes in the position it was located prior to the sudden change. At
that point the boundary is no longer formed by the watercourse and
becomes a fixed boundary.
The clause provides that, if the criteria provided are met, the Chief
Executive administering the Water Act may declare land to be former
watercourse land. The land may then be further dealt with as if it were
unallocated State land, except that the public auction, tender or ballot
requirements of the Land Act do not apply.
Before making the declaration, the Chief Executive responsible must
consult with owners of any land adjoining the watercourse and the Chief
Executive must be satisfied that:
· no person holds a registered interest in the watercourse land;
· the physical location of the watercourse has changed;
· the boundary fixed on application of the ambulatory boundary
principles;
· the watercourse land is no longer part of a functioning watercourse;
and
· over the long term it is unlikely that the watercourse land will again
become part of a functioning watercourse.
An owner applying for land in a former watercourse must provide
sufficient evidence to the Chief Executive that would satisfy the Chief
Executive that the watercourse land is no longer part of a functioning
watercourse.
Amendment of s 14 (Governor in Council may grant land)
Clause 162 amends section 14 so that it takes account of the substitution of
the concept of the tidal boundary for the high-water mark in describing
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Natural Resources and Other Legislation Amendment Bill 2010
which land the Governor in Council may grant. It also inserts a new
sub-section (5) that confirms that land on the seaward side of a tidal or right
line boundary may be granted in fee simple if it has been reclaimed under
section 127 of the Land Act.
Amendment of s 15 (Leasing land)
Clause 163 amends section 15 so that it takes account of the substitution of
the concept of the tidal boundary for the high-water mark in describing
which land the Governor in Council may lease.
Amendment of s 86 (Public notice of proposed surrender)
Clause 164 amends section 86 of the Act, which enables the Minister to
accept the surrender of land mentioned in the division (other grants for
public purposes) if the Minister is satisfied, amongst other matters that
notice of the intention to surrender has been adequately advertised. The
amendment deletes reference to advertising in a newspaper, consequential
to the insertion by clause 175 of this Bill of a new Division 6 that will
generically deal with the giving of public notices under the Act.
Amendment of s 113 (Public notice of availability to be given)
Clause 165 amends section 113 of the Act, which requires the Minister to
advertise the intention to make an interest in land available by auction,
tender or ballot, to deletes reference to advertising in a newspaper,
consequential to the insertion by clause 175 of this Bill of a new Division 6
which will generically deal with the giving of public notices under the Act.
Amendment of s 116 (Interests in land may be sold after
auction)
Clause 166 amends section 116 of the Act which requires that if an interest
in land is not sold at public auction, the interest may be sold by, inter alia,
advertising the reduced reserve in the newspaper in which the auction was
advertised, by deleting reference to advertising in a newspaper,
consequential to the insertion by clause 175 of this Bill of a new Division 6
which will generically deal with the giving of public notices under the Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 126 (Strategic port land)
Clause 167 amends section 126 so that it takes account of the substitution
of the concept of the tidal boundary for the high-water mark in describing
how the State may deal with strategic port land.
Amendment s 178 (Permits below high-water mark)
Clause 168 amends section 178 so that the heading and provision takes
account of the substitution of the concept of the tidal boundary for the
high-water mark in describing the giving of permits for land seaward of a
tidal or right line tidal boundary.
Amendment of s 240P (Auction or sale of lease)
Clause 169 amends section 240P, of the Act which states requirements that
apply for the sale of a lease by the Chief Executive by deleting reference to
advertising in a newspaper, consequential to the insertion by clause 175 of
this Bill of a new Division 6 which will generically deal with the giving of
public notices under the Act.
Amendment s 358 (Changing deeds of grant - change in
description or boundary of land)
Clause 170 removes section 358 (2)(b) as the provision is redundant. The
location of an ambulatory boundary changes at law through gradual or
imperceptible degrees due to accretion or erosion. It is not necessary for a
new deed of grant to be issued to include accretion within the land, even if
the cumulative effect of the accretion is significant. Nevertheless, the
removal of this provision does not prevent a new deed of grant being issued
under the amended provision.
Amendment of s 359 (Correcting or cancelling deeds of grant)
Clause 171 amends section 359 of the Act, which provides for the
correction or cancellation of deeds of grant, by deleting reference to
advertising in a newspaper, consequential to the insertion by clause 175 of
this Bill of a new Division 6 which will generically deal with the giving of
public notices under the Act.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 360 (Governor in Council may change free
holding leases
Clause 172 omits section 360(1)(c) of the Act, which empowers the
Governor in Council to change a free holding lease where the boundaries of
the lease land have significantly changed, because of erosion or by gradual
and imperceptible degrees. The provision is not required because such a
situation is already covered under section 360(1)(a), under which the
Governor in Council may change a free holding lease where, on resurvey of
the lease land, the boundaries of the land do not agree with the boundaries
described in the lease or appropriate plan, and no doubt exists about the
boundaries of the land.
Amendment of s 360C (Applying to amend description of lease)
Clause 173 amends section 360C of the Act, which enables a lessee to
apply to amend the description of a lease to omit a reference to section
360(1)(c). That section is omitted by clause 172 of this Bill.
Amendment of s 393 (Delegation by chief executive)
Clause 174 amends section 393 so that it takes account of the substitution
of the concept of the tidal boundary for the high-water mark in describing
how the Chief Executive may delegate his or her powers to deal with
strategic port land.
Insertion of new ch 7, pt 1, div 6
Clause 175 inserts a new chapter 7, part 1, division 6 into the Act dealing
with public notices other than gazette notices.
New Division 6 (Public notices other than gazette notices)
New section 403C - Publication of particular public notices on
department's website
New section 403C requires an official to publish a public notice (other than
a gazette notice) required under this Act on the Department's web site for a
total of at least 10 business days. The new section does not prevent the
official from also giving the notice in another way the official considers
appropriate, having regard to the target audience for the notice.
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Natural Resources and Other Legislation Amendment Bill 2010
This new section replaces more prescriptive requirements in other sections
of the Act that do not allow for consideration of the most cost effective way
to fulfil the purpose of the publication or advertisement.
Amendment of s 431C (Further evidentiary aids)
Clause 176 amends section 431C of the Act (Further evidentiary aids)
which provides that a certificate purporting to be signed by the Chief
Executive stating certain matters is evidence of the matter. The section is
amended to enable a certificate stating the day, or during a stated period
that a stated notice was published on the department's website.
This amendment is consequential the insertion of new section 430C which
requires an official to publish a public notice required under this Act on the
Department's web site for a total of at least 10 business days.
Omission of ch 7, pt 3B (Tidal boundary plans of subdivision)
Clause 177 omits chapter 7 part 3B of the Land Act dealing with tidal
boundary plans of subdivision. This part was inserted in the Land Act in
2005 to implement a stay on the registration of tidal boundary plans of
subdivision. The stay was put in place in November 2005 in recognition of
concerns over resurveys of tidal land boundaries closer to the water, in line
with the Svendsen decision, into areas generally regarded as public beach
land.
These provisions can now be repealed.
Insertion of new ss 521Z and 521ZA
Clause 178 inserts new sections 521Z and 521ZA into the Land Act which
provides transitional provisions for the Natural Resources and Other
Legislation Amendment Act 2010.
New section 521Z (Continuing application of no compensation
provision)
New section 521Z continues the application of the repealed section 431NG
after the repeal of chapter 7, part 3B put in place in November 2005 in
recognition of concerns over resurveys of tidal land boundaries closer to
the water, in line with the Svendsen decision, into areas generally regarded
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Natural Resources and Other Legislation Amendment Bill 2010
as public beach land. New section 521Z continues the exclusion of
compensation arising from the operation of part 3B.
New section 521ZA (Lease or permit)
New section 521ZA addresses the situation where two adjoining lots share a
high-water mark boundary. The landward lot is the "primary land", and the
seaward lot is the "relevant land". Where both primary land and relevant land
is in the same ownership and the ambulatory boundary is relocated after
commencement, the area of the relevant land increases to the extent that the
area of the primary land decreases, so that the two lots remain contiguous and
their total area remains the same.
Amendment of sch 2 (Original decisions)
Clause 179 inserts into Schedule 2, for the purposes of section 423, a decision
about the granting of an application to have land declared as former
watercourse land. The effect of the inclusion of the decision in Schedule 2 is
to identify that a person who has a right to appeal against the decision may
apply to the Minister for a review of the decision.
Amendment of sch 6 (Dictionary)
Clause 180 omits a number of definitions that no longer apply, and inserts a
number of new definitions relating to tidal and non-tidal boundaries.
Part 13 Amendment of Land Title Act
1994
Act amended
Clause 181 provides that this part amends the Land Title Act.
Amendment of s 9A (Land title practice manual)
Clause 182 amends subsection 9A(2) of the Act to include, as new
paragraph (ba), a reference to directions given by the chief executive under
section 61RW of the Act. This will allow the manual of land title practice
to include provisions relating to the register of plantation licences.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 11A (Original mortgagee to confirm identity of
mortgagor)
Clause 183 amends section 11A to extend the operation of subsection (2) to
the lodgement of an instrument of amendment of a mortgage. In some
cases, an amendment of mortgage is registered when indebtedness under a
mortgage is increased beyond that originally provided for in the mortgage,
rather than entering into a new mortgage. (Section 76 provides for
registration of an instrument of amendment of mortgage.)
Amendment of s 18A (Pre-examination of plans)
Clause 184 amends section 18A to update a term relating to local
government processes.
Replacement of s 49DA (Creation of common property)
Clause 185 replaces section 49DA to clarify that the provision only applies
in the case of progressive subdivision of a lot or lots in a community titles
scheme to create lots and/or common property in accordance with the
community management statement for the scheme. Section 49DA was
never intended to have a broader application to subdivisions in other
circumstances.
Amendment of s 49E (Division of lot on standard format plan of
subdivision)
Clause 186 amends section 49E to insert an omitted word in subsection (2).
A further amendment inserts an omitted word in subsection (2).
Amendment of s 54B (Circumstances under which building
management statement may be registered)
Clause 187 amends section 54B to correct a perceived inconsistency
between the terms of section 54A(5) and section 54B(2). Where a lot, to
which a building management statement (BMS) applies, is subdivided by a
building format plan, pursuant to section 54A(5) the BMS applies to the
new building format lots and common property created.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 54H (Extinguishing a building management
statement)
Clause 188 amends section 54H to clarify that, where a vacant lot subject
to a building management statement is to be removed, consent need not be
given by the mortgagees of all the lots subject to the BMS but only by the
mortgagee of the lot to be removed.
Amendments in 2005 allowed a BMS to apply to a vacant lot in certain
circumstances to facilitate staged developments, where it is intended that
the vacant lot will be part of the development. If it is later decided that the
planned development will not go ahead on the vacant lot, it will need to be
removed from the BMS, which currently requires consent from the
registered owners and mortgagees of all the lots subject to the BMS. If
community titles schemes have been established on the other lots to which
the BMS applies, the bodies corporate for the community titles schemes
can consent on behalf of the owners (section 54I(b)), however there may be
a large number of different mortgagees of the lots in the community titles
schemes.
Amendment of s 97A (Covenant by registration)
Clause 189 amends section 97A in three respects. Firstly, a new subsection
(2) is inserted to allow a covenantor and a covenantee to be the same
person. In some circumstances land is sold or transferred by the State or a
local government subject to a condition that the purchaser registers a
covenant under section 97A, for example, a covenant requiring that the
land be used for a particular purpose. It is desirable that a covenant can be
registered prior to such a sale instead of providing for this under a contract
of sale.
Secondly, subsection (3)(c) is extended to allow registration of a covenant
over a freehold lot to "tie" ownership of the lot to a registered lease of
another freehold lot. An example where this is desirable is where a
freehold lot used for residential purposes has a mooring or car parking
space associated with it, and that mooring or car parking space is a leased
area (under a registered lease) of another freehold lot.
Thirdly, subsection (8) is amended to clarify, in accordance with the
original intent of this provision, that a covenant cannot be used to prescribe
standards for landscaping and gardens and for the construction of structures
such as retaining walls that cannot be described as "buildings".
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 109 (How trusts may be registered)
Clause 190 amends the heading of section 109 to reflect the substance of
the section and to include reference to instruments other than transfers by
which a trustee may become registered as holder of an interest.
Replacement of s 110 (Instrument of transfer to trustee)
Clause 191 amends section 110 to update the requirements for the
provision of documents evidencing a trust.
Amendment of s 129 (Further caveat)
Clause 192 amends section 129 clarify that this section does not apply to
lodgement of a caveat by the registrar of titles under section 17.
Amendment of s 130 (Compensation for improper caveat)
Clause 193 amends section 130 to clarify that this section does not apply in
relation to lodgement of a caveat by the registrar of titles under section 17.
A caveat may be lodged by a person claiming an interest in land under
section 122. The intent of section 130, which provides for the payment of
compensation and reverses the onus of proof is to discourage the
lodgement of caveats under section 122 for improper purposes.
Amendment of s 154 (Lodging certificate of title)
Clause 194 amends section 154 to provide a further exception to the
requirement to return a certificate of title upon lodgement of an instrument
for registration. Where a lodged instrument relates to a registered lease and
the registered owner is not a party and is not affected by the instrument, the
requirement to return the certificate of title for cancellation causes
inconvenience and unnecessary expense for the lodger.
Amendment of s 162 (Obligations of witness for individual)
Clause 195 amends section 162 to provide consistency in the terms used in
this section.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 185 (Exceptions to s 184)
Clause 196 amends section 185 as a consequence of the amendment of
section 11A.
Amendment of s 189 (Matters for which there is no entitlement
to compensation)
Clause 197 amends section 189(1)(i) to clarify that the effect of this
provision is to exclude compensation for continuing a registrar's caveat, as
well as for lodging. This is consistent with the wording of section 130.
Amendment of s 189A (Limit on amounts recoverable by
mortgagee)
Clause 198 amends section 189A to ensure that the limit imposed by this
section on amounts recoverable by a mortgagee apply in all relevant
circumstances. Section 189A was one of a number of provisions inserted
into the Land Title Act by the Natural Resources and Other Legislation
Amendment Act 2005 for the purpose of protecting defrauded owners and
limiting the compensation paid by the State in cases where the execution of
a registered mortgage, securing a high interest loan, involved fraud against
the registered owner. The amendment will ensure that in the circumstances
set out in (1)(a) and (b), the limit on the amount recoverable under the
mortgage for interest and costs will apply where a relevant mortgagee is
entitled to payment of moneys secured by the mortgage other than through
exercising mortgagee's power of sale.
Insertion of new s 196A
Clause 199 inserts a new section 196A into the Act (Publication of
particular public notices on department's website) which requires an
official to publish a public notice (other than a gazette notice) required
under this Act on the Department's web site for a total of at least 10
business days. The new section does not prevent the official from also
giving the notice in another way the official considers appropriate, having
regard to the target audience for the notice.
Omission of pt 10A (Tidal boundary plans of subdivision)
Clause 200 omits part 10A from the Land Title Act. This part provided for
the stay on the registration of tidal boundary plans of subdivision. The stay
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Natural Resources and Other Legislation Amendment Bill 2010
was put in place in November 2005 in recognition of concerns over
resurveys of tidal land boundaries closer to the water, in line with the
Svendsen decision, into areas generally regarded as public beach land.
This new section replaces more prescriptive requirements in other sections
of the Act which do not allow for consideration of the most cost effective
way to fulfil the purpose of the publication or advertisement.
Insertion of new pt 12, div 5
Clause 201 inserts a new Division 5 which provides for transitional
provisions for the Natural Resources and Other Legislation Amendment
Act 2010.
New Division 5 Transitional provision for Natural Resources
and Other Legislation Amendment Act 2010
New section 211 (Continuing application of no compensation
provision)
New section 211 continues the application of the no compensation
provisions under the stay on the survey of tidal boundaries, put in place in
November 2005 in recognition of concerns over resurveys of tidal land
boundaries closer to the water, in line with the Svendsen decision, into
areas generally regarded as public beach land, by continuing the operation
of repealed section 191F.
Amendment of sch 2 (Dictionary)
Clause 202 amends the dictionary in Schedule 2 of the Land Title Act, by
omitting definitions previously required for the stay on registration of tidal
plans of subdivision.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 14 Amendment of Mineral
Resources Act 1989
Act amended
Clause 203 provides that part 14 of the Bill amends the Mineral Resources
Act 1989.
Amendment of schedule (Dictionary)
Clause 204 inserts the plantation licensee, for the avoidance of doubt as to
whether a plantation licensee would be an "owner" for the purposes of the
Mineral Resources Act 1989, as a new category of "owner" into the
definition in that Act. This will enable the plantation licensee along with
the State, to be afforded the rights of an "owner" under that Act including
those in relation to land access and compensation.
Part 15 Amendment of State
Development and Public Works
Organisation Act 1971
Act amended
Clause 205 provides that this part amends the State Development and
Public Works Organisation Act 1971.
Amendment of sch 2 (Dictionary)
Clause 206 amends the dictionary to the Act to reflect the substitution of
the tidal boundary for the concept of the high-water mark being made by
this Bill.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 16 Amendment of Survey and
Mapping Infrastructure Act 2003
Act amended
Clause 207 provides that this part amends the SMIA.
Amendment of s 6 (Survey standards)
Clause 208 amends section 6 to allow survey standards to be made about
the exchange of survey information, including by electronic
communication, between surveyors and the department.
Amendment of s 9 (When survey standards and survey
guidelines have effect)
Clause 209 amends section 9 so that survey standards and survey
guidelines can take effect on the same day.
Insertion of new s 25A
Clause 210 inserts a new section 25A into the Act that empowers the chief
executive to direct a surveyor to take soil samples from land for the
purposes of collecting relevant evidence under the multiple lot declaration
(tidal) provisions or the multiple lot declaration (non-tidal) provision.
The surveyor may enter upon the land and while taking the soil sample,
must not cause permanent damage to property on the land and otherwise
must cause as little damage as possible.
Amendment of s 32 (Authority for cadastral surveyor to act for
another in particular circumstances)
Clause 211 amends section 32 to allow a former cadastral surveyor (for
instance, a retired surveyor) to authorise another cadastral surveyor to act
in his or her stead for the purposes of amending a survey carried out by the
former cadastral surveyor.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 51 (Survey control register)
Clause 212 omits a reference in subsection 51(2)(b) to section 69 and
replaces it with a reference to section 139. The amendment is being made
because this Bill inserts a new Part 7 into the SMIA (tidal and non-tidal
boundaries and associated matters) and, through clause 214 (Renumbering
of pts 7 and 8) of the Bill, renumbers existing parts and provisions
accordingly.
Amendment of s 59 (Meaning of particular words used in
describing an administrative area boundary)
Clause 213 amends section 59 to clarify that the definitions used in the
context of administrative boundaries do not affect the meaning of the words
used in determining tidal and non-tidal boundaries in Part 7 of the SMIA.
Renumbering of pts 7 and 8
Clause 214 renumbers parts 7 and 8 in line with the amendments to the
SMIA.
Insertion of new pt 7
Clause 215 inserts a new part 7 after section 61 of the SMIA which
provides for the location of tidal and non-tidal boundaries and associated
matters.
New Part 7 (Tidal and non-tidal boundaries and associated
matters)
New Division 1 - Preliminary
New section 62 (Definitions for pt 7)
New section 62 contains definitions for new part 7 of the SMIA to deal
with the determination of tidal and non-tidal boundaries.
New section 63 (Meaning of watercourse for pt 7)
New section 63 provides for a definition of a watercourse for the purposes
of defining watercourse boundaries.
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Natural Resources and Other Legislation Amendment Bill 2010
Note that the relationship between a watercourse boundary and a tidal
boundary is dealt with in subsection 70(2).
New section 64 (Application of ambulatory boundaries
principles in pt 7)
New section 64 provides for the prospective and retrospective operation of
the ambulatory boundaries principles on the natural feature that defines the
boundary. "Ambulatory boundary principles" are defined in new section 62
to mean the common law principles applying changes to ambulatory
boundaries.
The ambulatory boundary principles apply those existing common law
principles in distinguishing between the effects of sudden change and
gradual and imperceptible change on a boundary formed by water
adjoining land, whether it is tidal or non-tidal.
New subsection 64(4) provides that the ambulatory boundary principles
which were previously applied to the boundary between land and water are
taken to apply to the natural feature.
New section 65 (Special provision for reserved plans of survey)
New section 65 provides for reserved plans of survey. Where a plan is
certified to be a reserved plan of survey, it is treated as an old plan of survey
for determining the location of a tidal boundary or a non-tidal boundary
(watercourse) before the registration of the first new plan of survey.
A reserved plan of survey is a plan that has been prepared and registered
for:
· a public purpose involving the disposal or dealing with land under the
Land Act;
· a development approval under the Sustainable Planning Act 2009 in
force at commencement; or
· works directed or authorised under a regulation under the State
Development and Public Works Act 1971 to be undertaken or
completed by an entity; and
· the Chief Executive (land) or the registrar of titles has satisfied
themselves about the purpose of the plan and has certified the plan as
being a reserved plan of survey.
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Natural Resources and Other Legislation Amendment Bill 2010
New Division 2 Tidal Boundaries
New Subdivision 1 Preliminary
New section 66 (Non-application of subdivisions 2 to 4 to
particular land)
New section 66 provides that certain categories of land are exempt from the
application of new subdivisions 2 to 4. Therefore the boundaries of these
areas do not change upon commencement or upon a resurvey.
Exempt land includes land with a "specified tidal boundary" (defined in
new section 71), some indigenous lands, State forests, protected areas
under the Nature Conservation Act 1992 (NCA) and strategic port land.
Therefore, the boundaries of these lots do not change upon commencement
or upon a resurvey.
Land where the boundary has been specifically identified with a reference
on the Deed of Grant to line such as "Mean High Water Springs"
("specified tidal boundary land") is exempt because the State specifically
intended to recognise lots to that particular boundary. In these cases there
was a specific intent by the State to have the boundary at that specified line,
in contrast with general boundary descriptors such as "high-water mark".
Land protected under the NCA includes national parks (scientific), national
parks, national parks (Aboriginal land), national parks (Torres Strait
Islander land), national parks (Cape York Peninsula Aboriginal land),
national parks (recovery), conservation parks, resources reserves and
nature refuges.
This land is exempt as land under the NCA as it is dedicated for specific
environmental and conservation purposes and as such these amendments
are not intended to affect these categories of land.
However, the clause provides that, for the purposes of this Act, land
comprised of a coordinated conservation area, wilderness area, World
Heritage management area or international agreement area is not regarded
as a protected area under the NCA. These areas are not areas concerned
with land boundaries, rather they are "administrative areas" under the
SMIA and as such any movement in an ambulatory boundary caused by
this Bill will have no influence on these areas.
Strategic port land is also exempted from the new subdivisions. The
commercial importance of ports, the day to day management by Port
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Natural Resources and Other Legislation Amendment Bill 2010
Authorities and the long established understanding and recognition of their
boundaries means that changes to their boundaries could put at risk the
effective running of the ports.
Should land cease to be land protected by the NCA or declared as State
forest or strategic port land, then the exemptions no longer apply.
New section 67 (Overview of sdivs 2 to 6)
New section 67 provides an overview of the new subdivisions 2 to 6.
Subdivision 2 provides the method for locating a tidal boundary after
commencement of the new provisions and ending on the registration of the
first new plan of survey. Unless an exception applies, the tidal boundary
location is the natural feature adopted in the current applicable plan of
survey.
Subdivision 3 provides for the location of a tidal boundary from
registration of the first new plan of survey until the registration of a
subsequent new plan of survey. Generally, the tidal boundary is located by
the natural feature adopted in the first old plan of survey (the original
survey of the land), that was an authoritative survey plan immediately prior
to a new plan of survey registered after commencement.
Each of subdivisions 2 and 3 contain some exceptions to the basic rule for
the location of the tidal boundary, including when a natural feature:
· cannot be located;
· has been obliterated;
· does not exist;
· is only one of multiple features which meet the criteria;
· is not shown on an old plan of survey; or
· there is no old plan of survey.
Subdivision 4 provides for the location at law of a tidal boundary of land
from the registration of any subsequent new plan of survey for the land,
relying on the feature adopted in the first new plan of survey for the land.
Subdivision 5 describes rules for determining the location at law of a tidal
boundary of land where new source material is issued.
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Natural Resources and Other Legislation Amendment Bill 2010
Subdivision 6 provides rules that clarify the existing law in relation to the
landward (referred to as "esplanade boundaries") and seaward boundaries
(the tidal boundaries) of esplanades.
New section 68 (Operation of sdivs 2 to 4)
New section 68 describes how the new subdivisions 2 to 4 work. The rules
in subdivisions 2 to 4 prevail in the event of any inconsistency between the
provisions and the location of the tidal boundary as:
· represented on the applicable plan of survey; or
· described in any source material for the land in force immediately
before commencement.
New section 69 (Noting of advice about operation of sdiv 3 or
div 3)
New section 69 provides a discretion to the chief executive (land) or the
registrar of titles to annotate the freehold register or the leasehold register
to identify land where subdivision 3 or a multiple parcel declaration would
or is likely to result in a relocation of the tidal boundary away from its
current location.
This provision will be used to annotate the freehold register for "extended
land", identified by the Department, where the land was resurveyed to
Mean High Water Springs or a feature approximating Mean High Water
Springs, and the source material indicates that the land does not have a
specified tidal boundary. This will serve as an alert to purchasers of such
land that the boundary of the land may shift at its next resurvey.
No fee is payable in relation to the placing of a notation on a register
pursuant to this section.
Whilst every effort will be made to annotate the register, it may be that
there are some lots of "extended land" that the department has been unable
to identify and accordingly new subsection 69(2) does not impose any
obligation on the registrar, the Chief Executive or anyone else to take
action allowed under subsection 69(2).
New Section 70 (Meaning of tidal boundary of land)
New section 70 defines a tidal boundary. Land has a tidal boundary if the
land is identified, either expressly or by necessary implication with
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Natural Resources and Other Legislation Amendment Bill 2010
reference to water that is subject to tidal influence. The source material
may refer to a generalised tidal boundary identifier (e.g. high-water mark),
a natural feature (e.g. the top of a bank running in proximity to the water's
edge) or a body of tidal water (e.g. Pacific Ocean, Moreton Bay, Brisbane
River). A tidal boundary cannot be represented as a right line boundary.
In most instances, a Deed of Grant describes the boundary to a location
such as mean high water springs or at high-water mark. These terms have
not been used consistently and as such confusion has arisen about where
the tidal boundary is located. (see Svendsen v State of Queensland [1996] 1
Qd R 216).
This new section also deals with the relationship between tidal and
non-tidal land. Land upstream of a downstream tidal limit declared under
the Water Act does not have a tidal boundary, even if the source material is
constructed in a way that implies that the land is bounded by tidal water.
New section 71 (Meaning of specified tidal boundary)
New section 71 provides that land has a specified tidal boundary if the land
has a tidal boundary and the source material refers to a specific boundary
identifier (e.g. Mean High Water Springs, or ordinary high-water mark at
spring tides). Under new section 66, land with a specified tidal boundary is
exempt from the application of the new tidal boundary location provisions
under the Bill. This is because the State has always known the precise
location of the boundary of land with a specified tidal boundary.
A specified tidal boundary also includes land where action was taken under
section 358 of the Land Act (or similar earlier legislation) to relocate a tidal
boundary by the surrender of the original deed of grant and the issue of a
new deed of grant after a resurvey.
New section 72 (Tidal boundary location criteria)
In certain circumstances, the determination of the location of a tidal
boundary involves reference to a number of criteria. New section 72
provides the criteria that must be applied to locate a tidal boundary in these
circumstances. The key objectives are to ensure:
· stability and sustainability;
· conservation and protection; and
· preservation of the public interest.
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Natural Resources and Other Legislation Amendment Bill 2010
The criteria also provide a means of identifying the boundary when a
natural feature cannot be adopted. In these instances the tidal boundary
must be located on the landward side of any sandy beach, fore dune, sandy
dune or active erosion area that does not have any natural vegetation.
New section 73 (Special regulation-making power to support
tidal boundary location)
New section 73 provides for the making of a regulation to support the
application of the provisions of this division. The regulations may, through
text and diagrams, provide guidance how the provisions should be applied
in varying tidal environments.
This section also prevents the invalidity of the regulation if it is capable of
providing greater certainty than the new provisions relating to tidal
boundaries provided for in the Act.
New section 74 (Special provisions for plans of survey
approved under stay provisions)
New section 74 provides that a plan of survey approved during the tidal
stay for registration will be treated as if it has been surveyed under the new
rules. The natural feature or other thing depicting the high-water mark
boundary on the plan of survey approved during the stay will be adopted as
the tidal boundary. The provision excludes the operation of subdivisions 2
and 3, which means that a resurvey of the ambulatory boundary is not
required in order to register a subsequent new plan of survey. This
provision recognises the similarity between the new provisions and the
criteria in operation during the stay.
New Subdivision 2 - Locating tidal boundaries at law until
registration of first new plan of survey
New section 75 (Application of sdiv 2)
New section 75 provides that subdivision 2 applies after commencement of
the new provisions and ends on the registration of the first new plan of
survey.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 76 (Current adopted natural feature rule (tidal)
provision
The new section 76 provides the rules for locating tidal boundaries at
commencement.
The tidal boundary is the natural feature adopted in the plan of survey
registered at commencement, together with any associated material for the
plan. The natural feature may be, for example, the landward edge of
mangroves, seaward edge of grassy dune, or the stable toe of a dune.
The tidal boundary is located at the natural feature, taking into account the
application of the ambulatory boundary principles.
New subsection 76(2) provides that, for the purposes of this subdivision, the
adoption of the line of intersection of a tidal plane with land is sufficient to
achieve the adoption of the natural feature. The objective is to recognise as
an existing registered interest the situation where land, described in the
deed as extending to "high-water mark" has been resurveyed to "mean high
water springs". Note that this section may be distinguished from
subsection 80(2) (at first resurvey after commencement), in which the
adoption of a line of intersection between a tidal plane and land is not
sufficient for the adoption of a natural feature in the context of registering a
new plan of survey.
The example following section 76(4) explains the changes in the location
of the tidal boundary, for land where the deed of grant referred to the tidal
boundary as the "high-water mark" and the plan of survey identified a
natural feature which was not the line of intersection between a tidal plan
and land. The natural feature adopted as the boundary on the plan may
have been described as the top of a bank or the edge of a sandy beach.
Immediately before the commencement of this division, the source
material would have been interpreted as providing that the land extended to
Mean High Water Springs. However, upon commencement, the tidal
boundary is taken to be the natural feature as shown on the most recent
registered plan of survey, which is the top of the bank or the edge of the
sandy beach, even if this is in a more landward position than the line of
Mean High Water Springs.
New section 77 (Current adopted natural feature rule (tidal)
exception provision
New section 77 provides for the location of a tidal boundary, if the rules set
out in section 76 do not apply or cannot be practicably applied.
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Natural Resources and Other Legislation Amendment Bill 2010
The tidal boundary is located where it could most reasonably be expected
to be located under Subdivision 3 (Locating tidal boundaries at law from
registration of first new plan of survey) if the first new plan of survey were
to be registered for the land. That is, the tidal boundary is where it would
be located on resurvey, subject to the application of the ambulatory
boundary principles.
New section 77 applies if the current adopted natural feature rule (tidal) in
section 76 cannot be applied to locate a tidal boundary, because the old
plan of survey that is registered or otherwise authoritative for the land
adopted a natural feature, but it is either:
· not possible to match the plan with the evidence on the land; or
· the feature is not in its natural location, because of sudden change to
the natural feature.
New Subdivision 3 - Locating tidal boundaries at law from first
registration of first new plan of survey
New section 78 (Application of subdivision 3)
New section 78 provides that subdivision 3 applies on and from registration
of a new plan of survey.
After commencement of the amendments a survey plan must not be
registered unless it complies with subdivision 3 or it is a reserved plan of
survey.
However, where land has been the subject of a multiple lot declaration
pursuant to section 93, the boundary must be located at the declared line
and the operation of the declaration may displace the operation of this
subdivision.
New section 79 (Special requirement to support the operation
of subdivision 3)
New section 79 sets out the requirement that the survey of a tidal boundary
must, to the greatest practicable extent, be consistent with the location at
law of the tidal boundary under Subdivision 3. This requirement applies
also to a plan of survey lodged but not registered before commencement.
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Natural Resources and Other Legislation Amendment Bill 2010
This subdivision operates to ensure a lot extended to Mean High Water
Springs is surveyed using the rules as outlined in section 80 or one of the
exceptions to the rule to locate the tidal boundary.
The provision sets out when a compiled plan may be used so that the tidal
boundary need not be resurveyed.
A compiled plan as defined in the Act is a plan of survey that uses
"compiled information" for all or part of the tidal boundary or non-tidal
watercourse boundary. Note that it is a more restrictive definition than the
term commonly used by the surveying profession which refers to a plan
prepared using compiled information in relation to searchable, registered
information and which is not limited to information about an ambulatory
boundary. This section provides that compiled information may be
obtained from the original plan of survey for the land that identified a
natural feature.
The provision prohibits the use of compiled information obtained from a
plan of survey where the tidal boundary was surveyed closer to the tidal
water than the natural feature adopted on the original plan.
Note that while this provision enables all or part of a tidal boundary to be
represented on a plan without a resurvey, the position of the boundary at
law under this subdivision is not affected by the fact that the tidal boundary
has not been resurveyed.
New section 80 (Original adopted natural feature rule (tidal))
New section 80 applies where:
· an old plan of survey, together with any associated material, clearly
adopted a natural feature to represent the tidal boundary; and
· the old plan of survey was the first plan of survey to be registered or
otherwise become authoritative and adopted a natural feature to
represent the tidal boundary.
If these conditions are satisfied, the adopted natural feature becomes the
boundary at law, taking into account the ambulatory boundary principles.
The section provides that the adoption of the line of intersection between a
tidal plane and the land (e.g. mean high water springs) cannot be used as
the natural feature for the location of the tidal boundary for the purposes of
this section.
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Although this line of intersection was recognised as a natural feature under
subdivision 2 (from commencement), it is not recognised for plans
registered after commencement. This ensures that any new survey
undertaken adopts the original adopted natural feature, which in most
cases, is located landward of mean high water springs. This protects and
maintains public access to foreshores and prevents the foreshore being
taken into private ownership.
For land granted to "high-water mark", if the original plan located the tidal
boundary at a natural feature (e.g. the edge of a sandy beach), on resurvey,
the tidal boundary is where the natural feature is now located, instead of
mean high water springs.
This rule applies even though a court may otherwise have found that, at law,
the boundary was in a different location. For example in the Svendsen case,
the plan of survey showed the boundary at the line that the surveyor
regarded as high-water mark, whereas the Court determined it to be at a
different location.
New section 81 (First exception for the original adopted natural
feature rule (tidal) (alternative natural feature exception))
New section 81 provides an alternative for the location of the tidal
boundary of land that was freehold at the time of commencement of these
provisions.
This new section only applies if there is more than one alternative natural
feature that complies with the first four criteria as set out in new section 72
(tidal boundary location criteria).
The surveyor must provide sufficient information to demonstrate that an
alternative natural feature exists which meets the first four tidal boundary
location criteria, which includes satisfying a public interest test embedded
in the third criterion. The surveyor must also consult with the registered
owner of the land before using this approach in a plan lodged for
registration.
If the alternative natural feature is adopted, then it forms the tidal boundary,
taking into account any change after registration arising from the
"ambulatory boundary principles" (defined in new section 62 of the SMIA,
the principles preserve common law rules for the movement of ambulatory
boundaries).
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New section 82 (Second exception for the original adopted
natural feature rule (tidal) (applied criteria exception))
New section 82 provides an exception to the original adopted natural
feature rule. This applies when the old plan of survey and the associated
material did not clearly adopt a natural feature as the location for the tidal
boundary.
The section provides that the tidal boundary is the natural feature or
anything else (for example a modification to the foreshore) that to the
greatest practicable extent complies with the all the boundary location
criteria under new section 72.
The section provides that the "ambulatory boundary principles" (defined in
new section 62 of the SMIA, the principles preserve common law rules for
the movement of ambulatory boundaries) may be considered when locating
the tidal boundary.
The operation of subsection 82(2) is displaced if a single lot declaration is
made about the location of the tidal boundary.
New section 83 (Third exception for the original adopted
natural feature rule (tidal) provision (chief executive single lot
declaration (tidal) exception))
New section 83 contains a head of power for the Chief Executive to declare
the tidal boundary to be a natural feature or anything else. This operates as
an exception to the original adopted natural feature rule in section 80.
A declaration may be made, if a first new plan of survey for the land has
been lodged, or deposited with a view to subsequent lodgement; and
· the evidence on the old plan of survey of the adoption of a natural
feature does not correspond with the evidence on the ground of a
natural feature; or
· a natural feature was adopted on the original plan of survey, but it is
now not possible to decide where the tidal boundary would have been
if the "ambulatory boundary principles" (defined in new section 62 of
the SMIA, the principles preserve common law rules for the movement
of ambulatory boundaries) are taken into account; or
· for other circumstances not mentioned above, it is not practicable to
apply the original adopted natural feature rule.
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A declaration may also be made if it can be determined that the surveyor
did not comply with the directions to surveyors current at the time that the
old plan of survey was prepared, and a line other than a natural feature was
adopted for representing the tidal boundary, so that the tidal boundary can
be characterised as "misdescription".
The tidal boundary is the natural feature or anything else declared by the
Chief Executive to be the boundary for the land, and the ambulatory
boundary principles may be taken into account in determining the location
of the boundary.
When a plan is lodged, or deposited with a view to future lodgement, the
Chief Executive or registrar may defer dealing with the plan for a
reasonable time to allow the Chief Executive to investigate whether a single
parcel declaration should be made or not, and how it should be made.
The Chief Executive must:
· take reasonable steps to obtain the views of any registered owner or
lessee of the land about the proposed declaration; and
· ensure that the location of the tidal boundary complies to the greatest
practicable extent with the requirements of the first three tidal
boundary location criteria.
The gazette notice may identify the location of the tidal boundary by
incorporating a map or plan held by the Chief Executive.
Any boundary declared by the Chief Executive retains the characteristics of
a tidal boundary, subject to gradual change.
A declaration decision may be subject to internal review and may be
appealed.
New Subdivision 4 - Locating tidal boundaries at law from
registration of subsequent new plan of survey
New section 84 (Application of sdiv 4)
New section 84 applies subdivision 4, which deals with the location at law of
a tidal boundary, on and from the registration of a subsequent new plan of
survey for the land.
The effect of this subdivision is that subdivision 3 is only applied once in
relation to any land.
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Note that if a multiple lot declaration is made in relation to the subject land,
this rule may be displaced.
New section 85 (Special requirement to support the operation
of subdivision 4)
New section 85 ensures that the representation of the tidal boundary on any
further plan of survey prepared for the land coincides to the greatest
practicable extent with the position of the tidal boundary at law, which is
where the boundary was located when the first new plan of survey were
registered.
The provision sets out when a compiled plan may be used for a subsequent
new plan of survey so that the tidal boundary need not be resurveyed. A
compiled plan as defined in the Act is a plan of survey that uses "compiled
information" for all or part of the tidal boundary or non-tidal watercourse
boundary. Compiled information is searchable, registered information.
Note that it is a more restrictive definition than the term commonly used by
the surveying profession, which refers to a plan prepared using compiled
information in relation to searchable, registered information and which is
not limited to information about an ambulatory boundary.
This section provides that a compiled plan of survey may be used if the first
new plan of survey was the result of a resurvey of the tidal boundary. In
this case, the subsequent new plan of survey may use information from the
new plan of survey.
A subsequent new plan of survey may be a compiled plan in relation to the
tidal boundary or any part of it, if the first new plan of survey was also a
compiled plan. In this case, the subsequent new plan of survey must use
the same information used in the first new plan of survey.
Note that if a compiled plan is used for all or part of the tidal boundary, the
position of the boundary at law under this subdivision is not affected by the
fact that the tidal boundary has not been resurveyed.
New section 86 (First new plan of survey adopted feature rule
(tidal))
New section 86 provides that any plan of survey registered after the first
new plan of survey must adopt the natural feature or other thing on which
the boundary in the first new plan of survey is based. The "ambulatory
boundary principles" (defined in new section 62 of the SMIA, the principles
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preserve common law rules for the movement of ambulatory boundaries)
may be taken into account in determining the location of the boundary.
New Subdivision 5 - Locating tidal boundaries at law on
bringing into existence of new source material
New section 87 (Application of sdiv 5)
New section 87 provides that subdivision 5 applies when new source
material is brought into existence.
This may occur when previously leasehold land is converted to freehold,
when land is granted after surrender, or when a lease or deed of grant for
State land is issued for the first time.
New section 88 (Special requirement to support the operation
of sdiv 5)
New section 88 ensures that the representation of the tidal boundary on any
plan of survey and associated material for the land coincides to the greatest
practicable extent with the position of the tidal boundary at law as provided
for in this subdivision.
New section 89 (New source material adopted feature rule
(tidal))
New section 89 provides that the rules in subdivisions 2 to 4 do not apply to
the land for which new source material is brought into existence.
The section provides that the source material may identify a natural feature
or other thing as the tidal boundary. If a natural feature is identified as the
boundary, then the effect of gradual change on it after the creation of the
source material may be taken into account in determining its location.
New subsection 89(3) provides that for land with new source material
covered by this subdivision, a line of intersection of a tidal plane with land
(such as Mean High Water Springs) may not be adopted as a natural feature
unless the land is, or is about to become indigenous land or a protected area
under the NCA.
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New subdivision 6 - Esplanades
New section 90 (Boundary of land with excluded or dedicated
esplanade - source material coming into force before
commencement)
New section 90 clarifies the existing common law in relation to esplanades
created by exclusion or esplanades created by reservation that have been
dedicated, before the commencement of these amendments, and codifies
long-standing surveying practice. It differentiates between the tidal
boundary of the esplanade, and the esplanade boundary between the
esplanade and the adjoining lot. This provision does not apply where the
land is exempted by the operation of subdivision 1.
The source material for land immediately adjoining an esplanade by
exclusion usually refers to the area of land included in the grant of the
parcel, and nominates a specific area for the esplanade that has been
excluded from the grant. In practice, the area of the esplanade by exclusion
is calculated when the land is surveyed.
The rules in subdivisions 2 to 4 apply to the tidal boundary of the
esplanade. The tidal boundary remains at the current adopted natural
feature of the land until a new plan of survey is registered for the land. If
there is an old plan of survey for the land which pre-dates the current
registered plan, after resurvey and registration of the new plan of survey,
the tidal boundary is located at the original adopted natural feature, or if
one of the exceptions in subdivision 3 applies, at the line determined by
that provision.
The esplanade boundary of the land is taken to have been fixed as if it were
a right line boundary, on the issue of the source material or the dedication
of the esplanade. It is located at the offset from the tidal boundary as
provided in the source material and on the plan of survey.
The net effect of this is that the esplanade boundary may be curvilinear in
form, is not depicted on a plan by annotating it with a bearing and a
measurement, and the location of the boundary remains in its original
location unaffected by gradual change. While the esplanade boundary is
determined as an offset from the tidal boundary, any change in the location
of the natural feature on which the tidal boundary is based, does not result
in a corresponding shift of the esplanade boundary of the land. The result
of these provisions is that if the esplanade has eroded, and even when part
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of the adjoining parcel has eroded, the esplanade boundary of the adjoining
parcel remains at its original location.
The section clarifies the situation where source material was issued without
a survey of the tidal boundary. In this case, the esplanade boundary is at
the offset stated in the source material from the location at law of the tidal
boundary at the time that the source material came into force.
New section 91 (Boundary of land with excluded esplanade or
dedicated esplanade - source material issued after
commencement)
New section 91 clarifies the existing common law in relation to esplanades
created by exclusion (the exclusion in the source material for a lot of land
for an esplanade) or esplanades created by reservation that have been
dedicated after these amendments commence. This provision does not
apply where the land is exempted by the operation of subdivision 1.
Subdivision 5 applies to the location of the tidal boundary of an esplanade.
At law, the tidal boundary is located at the natural feature or other thing
referred to in the source material issued in relation to the land, taking into
account gradual change.
The esplanade boundary of the land is located at the offset from the tidal
boundary as provided in the source material and on the plan of survey, and it
fixes as if it were a right line boundary. The esplanade boundary may be
curvilinear in form, is not depicted on a plan by annotating it with a bearing
and a measurement, and the location of the boundary remains in its original
location unaffected by the "ambulatory boundary principles" (defined in new
section 62 of the SMIA, the principles preserve common law rules for the
movement of ambulatory boundaries). While the esplanade boundary is
determined as an offset from the tidal boundary, any change in the location of
the natural feature on which the tidal boundary is based, does not result in a
corresponding shift of the esplanade boundary of the land. The result of these
provisions is that if the esplanade has eroded, and even when part of the
adjoining parcel has eroded, the esplanade boundary of the adjoining parcel
remains at its original location.
The section also clarifies the situation where source material was issued
without a survey of the tidal boundary. In this case, the esplanade
boundary is at the offset stated in the source material from the location at
law of the tidal boundary at the time that the source material or dedication
comes into force.
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New section 92 (Boundary of land subject to reservation of
esplanade, before dedication)
New section 92 clarifies the existing law in relation to esplanades created
by reservation where the esplanade has not been dedicated as a public road
and where the land is not exempted by the operation of subdivision 1.
Land in this category mainly includes land where a plan of survey has not
been registered, or where the depiction of the esplanade on the plan of
survey does not meet the statutory requirements in either section 96 of the
Land Act or section 362 in the Land Act 1967 for the dedication of road by
lodgement of a survey plan, and there is no separate dedication notice.
This section codifies long-standing surveying practice.
An esplanade by reservation is created when the source materials reserves a
specified area from the grant of a parcel of land, with the purposes of the
reservation being creation of an esplanade. This situation arises, because
an esplanade is treated as a category of road in the Land Act. However,
unlike a road reservation, the location of a reservation for an esplanade is
known because of its relationship to the high-water mark.
If the source material for the land was issued before commencement, the
tidal boundary for the land is determined by subdivisions 2 to 4 of the Act.
That is, the current adopted natural feature rule (or its exception) applies to
the tidal boundary until the registration of a new plan of survey, when the
original adopted natural feature rule (or one of its exceptions) applies.
If the source material was issued after commencement, subdivision 5
applies to the location of the tidal boundary of the land.
New Division 3 - Miscellaneous issues in the tidal environment
New Section 93 (Multiple lot declaration (tidal) provision)
New section 93 enables the Chief Executive to make a declaration about the
location of the tidal boundary for two or more lots of land. This power
would be used in circumstances where development in an area, such as
along the Brisbane river, have rendered it impossible to find any natural
feature. Such a declaration may be made if:
· no plan of survey has been lodged or deposited with a view to
lodgement;
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· a new plan of survey for one of the lots has been lodged or deposited
with a view to subsequent lodgement; or
· a new plan of survey has been registered for one of the lots.
· A declaration may be made by the Chief Executive only if:
· all of the land subject of the declaration was the subject of one old
plan of survey where the tidal boundaries of the lots were formed by
different lengths of the same natural feature adopted as the boundary;
and
· because of obliteration of the natural feature, it was now not possible
to make a meaningful correspondence between the old plan of survey
and evidence of the natural feature on the ground of the relevant lots.
When the next new plan of survey is registered, the tidal boundary is at law
the line on the ground that corresponds to the declared line. The location of
the declared boundary is taken to be fixed as if it was a right line boundary,
but the land retains a tidal boundary.
Before making a declaration, the Chief Executive must take reasonable
steps to obtain the views of any lessee or registered owner, e.g. the person
recorded in the freehold land register as the person entitled to the fee
simple interest in the lot. The gazette notice may refer to a map or plan held
by the Chief Executive for identifying the location of the tidal boundary. In
making a declaration, the Chief Executive must have regard to all the
evidence about the history of the location of the original adopted natural
feature reasonably available to him or her. The Chief Executive must also,
by referring to relevant evidence, ensure that the location of the tidal
boundary in the declaration is:
· not closer to the tidal water than the last known location of the original
adopted natural feature; and
· identical, in practical terms, to the last known location of the original
adopted natural feature, before its obliteration by sudden change.
Relevant evidence means historical evidence that is reasonably available to
the Chief Executive, and the results of analysis soil samples if these have
been taken.
The land subject of the declaration is taken still to have a tidal boundary
even though the boundary becomes fixed in its location. The Chief
Executive may defer dealing with the plan for a reasonable period to allow
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departmental investigations to take place before declaration of the
boundary.
Division 2, subdivisions 3 and 4 (locating tidal boundaries at law from
registration of first new plan of survey and subsequent plans of survey) do
not operate to the extent that they are inconsistent with this section.
Note that a declaration decision under this section may be subject to
internal review, and may be appealed.
New section 94 (No compensation for operation of div 2 or this
division)
New section 94 provides that a person is not entitled to compensation from
the State or anyone else under the SMIA, the Land Title Act compensation
provisions, relief under the Property Law Act 1974 or otherwise, for
deprivation of an interest of any type in land, or for loss or damage of any
kind arising from the operation of division 2 (tidal boundaries) or division
3 (miscellaneous issues in the tidal environment).
Subparagraph 94(a) rules out compensation arising from the relocation at
law of a tidal boundary on commencement and on the first resurvey after
commencement.
On commencement of the Bill the location of the ambulatory boundary
(tidal and non-tidal) will be located at the feature shown on the current plan
of survey. Before commencement, some landholders may have been
entitled at common law to resurvey closer towards the sea or river, thereby
increasing the size of their lot.
When a landowner with a tidal or non-tidal ambulatory boundary chooses
to resurvey their lot after the commencement of the proposed amendments,
the boundary may move, in some circumstances, to a different position
than that shown on their current survey plan. This provision explicitly
states that no compensation is payable will be included in the Bill. This
survey will only be undertaken at the choice of the owner.
Subparagraph 94(b) rules out compensation arising from the keeping of
registers by the Chief Executive or the registrar about the likely location of
a tidal boundary arising from the operation of division 2, subdivision 3 or
from a multiple lot declaration.
Whilst every effort will be made to ensure that notices are placed on title
warning that the boundary may move on resurvey, it is not possible to be
sure that every lot that may be affected has been identified.
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The rationale for this approach to compensation is set out in the General
Outline of the Explanatory notes, in the section titled "Consistency with
Fundamental Legislative Principles".
New Division 4 - Non-tidal boundaries
New Subdivision 1 - Preliminary
New section 95 (Non-application of subdivisions 2 to 4 to
particular land)
New section 95 provides that indigenous land, protected areas under the
NCA, and State forests are exempt from the application of new
subdivisions 2 to 4. Therefore, the boundaries of these areas do not change
upon commencement or upon a resurvey.
Land protected under the NCA includes national parks (scientific), national
parks, national parks (Aboriginal land), national parks (Torres Strait
Islander land), national parks (Cape York Peninsula Aboriginal land),
national parks (recovery), conservation parks, resources reserves and
nature refuges.
This land is dedicated for specific environmental and conservation
purposes and as such these amendments are not intended to affect these
categories of land.
However, the clause provides that, for the purposes of this Act, land
comprised of a coordinated conservation area, wilderness area, World
Heritage management area or international agreement area is not regarded
as a protected area under the NCA. These areas are not areas concerned
with land boundaries, rather they are "administrative areas" under the
SMIA and as such any movement in an ambulatory boundary caused by
this Bill will have no influence on these areas.
Should land cease to be land protected under the NCA or declared State
forests under the Forestry Act then the exception no longer applies.
New section 96 (Overview of subdivisions 2 to 6)
New section 96 provides an overview of the new subdivisions 2 to 6.
Subdivision 2 provides for the location of a non-tidal boundary
(watercourse) between commencement of the new provisions and
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registration of a new plan of survey. Generally, the non-tidal boundary
(watercourse) location is the natural feature adopted in the current
registered plan of survey although there are some circumstances where the
boundary must be located using criteria set out in new section 100.
Subdivision 3 provides for the location of a non-tidal boundary
(watercourse) of land from registration of the first new plan of survey (the
first survey plan registered after commencement of this Act). Generally,
this boundary is the natural feature that to the greatest practicable extent
complies with the non-tidal boundary (watercourse) location criteria.
Subdivision 4 provides for the location of a non-tidal boundary
(watercourse) of land from registration of any subsequent new plan of
survey. This is generally at the natural feature adopted as the non-tidal
boundary (watercourse) in the first new plan of survey for the land taking
into account any subsequent gradual change of the feature.
Subdivision 5 provides for the location of a non-tidal boundary
(watercourse) when new source material is issued in relation to the land.
Subdivision 6 provides for the location of a non-tidal boundary (lake) at
any time. This subdivision duplicates the existing provisions in the Water
Act which means that generally the boundary is the line of the outermost
extent of the bed and banks of the lake. This new provision dealing with
lakes is not intended to change the common law.
New section 97 (Operation of sdivs 2 to 4)
New section 97 provides that the operation of new subdivisions 2 to 4 about
the location at law of a non-tidal boundary (watercourse) prevails in the
event of any inconsistency between the provisions and the location of
non-tidal boundary (watercourse) as:
· represented on the applicable plan of survey; or
· described in any source material immediately before the
commencement of this division.
New section 98 (Noting of advice about operation of sdiv 3 or div
5)
New section 98 provides a discretion to the registrar of titles or the Chief
Executive (land) to annotate the freehold register or the leasehold register
to identify land where subdivision 3 or a multiple parcel declaration (see
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new section 120) would or is likely to result in a relocation of the non-tidal
boundary (watercourse) away from its current location.
No fee is payable in relation to making an annotation on the register as
provided for in this section.
This section does not impose any obligation on the registrar or the Chief
Executive to place a notation on the relevant register, or on anyone else to
take action allowed under this section.
New section 99 (Meanings of non-tidal boundary (lake) and
non-tidal boundary (watercourse))
New section 99 provides definitions for a "non-tidal boundary (lake)" and
"non-tidal boundary (watercourse)".
New section 100 (Non-tidal boundary (watercourse) location
criteria)
New section 100 provides the criteria that must be satisfied to identify a
non-tidal boundary (watercourse).
The non-tidal boundary (watercourse) must:
· be generally aligned with the path followed by the watercourse and be
a naturally occurring feature; and
· not be a transient feature, such as a bar, an in-stream island or a sand
or reed bank.
Subsection 100(3) requires that if the first two conditions can be satisfied,
then the boundary must be one of the following:
· the top of a bank;
· a particular point of change in the grade of a landform;
· a naturally occurring change in vegetation; or
· another feature of sufficient substance.
If subsection 100(3) cannot be satisfied, then the boundary must be a
depositional feature or scour mark.
If a depositional feature or scour mark cannot be identified, but it is
possible to identify a non-tidal boundary on the opposite bank of the
watercourse using these criteria, then the non-tidal boundary (watercourse)
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is the line that runs along the same level as the boundary on the opposite
side of the watercourse. This line is taken to be a natural feature for the
purposes of part 7.
New section 101 (Special regulation-making power to support
non-tidal boundary (watercourse) location
New section 101 provides for the making of a regulation to support the
application of the provisions of this division. The regulations may, through
text and diagrams, provide guidance on:
· applying the provisions of this division in varying environments and
in watercourses or sections of watercourses with varying profiles;
· identifying the occurrence of depositional features of scour marks and
illustrate how they may locate non-tidal boundaries (watercourse);
· understanding how a bench, bar, in-stream island sand or reed bank
may be recognised; and
· understanding how an anabranch may be recognised.
This section also prevents the invalidity of the regulation if it is capable of
providing greater certainty than the new provisions relating to non-tidal
boundary (watercourse) provided for in the Act.
New Subdivision 2 - Locating non-tidal boundaries
(watercourse) at law until registration of first new plan of
survey
New section 102 (Application of sdiv 2)
New section 102 explains that this subdivision provides for the location at
law of a non-tidal boundary (watercourse) in the period from the
commencement of this new division and ending on the registration of the
first new plan of survey for the land.
New section 103 (Current adopted natural feature rule (non-tidal)
provision)
New section 103 provides that until the registration of the first new plan of
survey after the commencement, the boundary at law is the natural feature
adopted in the currently registered or authoritative plan of survey together
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with any associated material for the plan of survey. The natural feature
may be a scour mark, top of bank or the edge of useable land.
The non-tidal boundary (watercourse) is located at the natural feature,
taking into account the application of the ambulatory boundary principles.
Subsection 103(2) provides that the natural feature may be a level of water
flow, but it may not be the notional middle line of the watercourse.
This section reflects the policy intent, which is that other than by gradual
change, no non-tidal boundary (watercourse) should move from the
location as shown on the currently registered plan of survey. Because of
this, a boundary based on the line of intersection of land with a particular
level of water flow is regarded as a suitable natural feature in this
subdivision. The location of the boundary does not change if the natural
feature is subject to sudden change.
On the other hand, a plan of survey which shows the middle line separating
the lands of owners on opposite sides of the watercourse is not sufficient
for the adoption of a natural feature. Very few plans of survey show such
boundaries, which were based on the old common law doctrine of "ad
medium filum aqua". However, that common law doctrine was displaced in
1910 by passage of the Rights in Water and Water Conservation and
Utilization Act 1910, and subsequent water legislation.
New section 104 (Current adopted natural feature rule
(non-tidal) exception provision)
New section 104 provides for the location of a non-tidal boundary
(watercourse), if the rule set out in new section 104 does not apply or
cannot be practicably applied because there is an authoritative plan for the
land that adopted a natural feature for the non-tidal boundary
(watercourse), but either:
· it is not possible to match the plan with the evidence on the land; or
· the feature is not in its natural location, because of sudden change to
the natural feature.
Examples of these circumstances that might make it impracticable to
identify a natural feature, includes installation of walls, jetties, ramps,
revetments or other structures.
The non-tidal boundary (watercourse) is located at the natural feature that
to the greatest extent complies with the requirements of the non-tidal
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boundary (watercourse) criteria, taking into account the "ambulatory
boundary principles" (defined in new section 62 of the SMIA, the principles
preserve common law rules for the movement of ambulatory boundaries).
If it is not possible to identify a natural feature that complies with the
non-tidal boundary (watercourse) location criteria, then it is located where
it would be expected to be located if the first new plan of survey were to be
registered for the land.
New section 105 (No shift of boundary towards watercourse)
New section 105 provides that, in the event that the application of the current
adopted natural feature (non-tidal) rule indicates that the boundary of a lot
would be located closer to the opposite side of the watercourse than
immediately before commencement, the boundary stays in the same place
as its location at law immediately before commencement, subject to the
"ambulatory boundary principles" (defined in new section 62 of the SMIA,
the principles preserve common law rules for the movement of ambulatory
boundaries).
The rationale for this provision includes:
· it would defeat the policy objectives for this Bill to compromise the
integrity of the water course by enabling boundaries to be located
further into the watercourse; and
· allowing a boundary to "move" further into the watercourse might
have native title implications as it could convert State land into
freehold.
New Subdivision 3 - Locating non-tidal boundaries
(watercourse) at law from registration of first new plan of
survey
New section 106 (Application of sdiv 3)
New section 106 provides that subdivision 3 applies on and from
registration of a new plan of survey.
For example, this subdivision operates to ensure a lot with an "extended"
boundary is resurveyed using the rules as outlined in new section 108 or
one of the exceptions in sections 109 and 110 to locate the non-tidal
boundary (watercourse). If a lot has been "extended" by resurvey into the
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boundary watercourse since the original survey, the boundary may be
located in a different place after the application of this rule.
If there is a multiple lot declaration relating to the land made pursuant to
division 5, it may displace the operation of this subdivision in relation to
that land.
New section 107 (Special requirement to support the operation
of sdiv 3)
New section 107 sets out the requirement that representation of a non-tidal
boundary (watercourse) on a plan of survey must be consistent to the
greatest practicable extent with the location at law of the non-tidal
boundary (watercourse) as provided for in Subdivision 3. This requirement
applies to a plan of survey lodged but not registered before
commencement.
A compiled plan may be a new plan of survey, if no part of the subdivision
on the plan intersects with the boundary derived from an earlier plan, and
the size and nature of the land and the length of the non-tidal boundary
makes it impracticable to resurvey the boundary
Note that while this provision enables all or part of a non-tidal boundary
(watercourse) to be represented on a plan without a resurvey, the position
of the boundary at law under this subdivision is not affected by the fact that
the tidal boundary has not been resurveyed.
New section 108 (Boundary location criteria rule (non-tidal)
provision
New section 108 provides the rule for locating a non-tidal boundary
(watercourse) on the first resurvey after commencement.
The new survey must place the boundary at the natural feature that, to the
greatest practicable extent, complies with the requirements of the non-tidal
boundary (watercourse) location criteria set out in section 100. The
"ambulatory boundary principles" (defined in new section 62 of the SMIA,
the principles preserve common law rules for the movement of ambulatory
boundaries) apply to the boundary.
If the resurvey according to this rule results in the non-tidal boundary
watercourse being located closer to the middle of the watercourse than
immediately before the registration of the first new plan of survey, then the
non-tidal boundary remains in the same place as it was located immediately
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before the registration of the first new plan of survey. The "ambulatory
boundary principles" also apply to the subsequent position of a boundary
determined in this way.
New section 109 (First exception for the boundary location
criteria rule (non-tidal) provision (chief executive single lot
declaration (non-tidal) exception))
New section 109 provides for the location at law of the non-tidal boundary
(watercourse) if the Chief Executive has by gazette notice made a single
parcel declaration about the location of the boundary. This operates as an
exception to the boundary location rule (non-tidal) in section 108.
The non-tidal boundary (watercourse) is the natural feature or anything else
declared by the Chief Executive to be the boundary for the land, and the
"ambulatory boundary principles" (defined in new section 62 of the SMIA,
the principles preserve common law rules for the movement of ambulatory
boundaries) may be taken into account in determining the location of the
boundary.
The Chief Executive may make a single parcel declaration only if a first
new plan of survey for the land has been lodged or deposited with a view to
subsequent lodgement, and it is not practicable to identify a natural feature
(for example where extensive development has occurred) for the purpose of
applying the boundary location criteria rule (non-tidal).
When a plan is lodged, or deposited with a view to future lodgement, the
Chief Executive or registrar of title may defer dealing with the plan for a
reasonable time to allow the Chief Executive to investigate whether a single
parcel declaration should be made or not, and how it should be made.
The Chief Executive must:
· take reasonable steps to obtain the views of any registered owner or
lessee of the land about the proposed declaration;
· ensure that the location of the non-tidal boundary (watercourse)
complies to the greatest practicable extent with the requirements of
the non-tidal boundary watercourse location criteria;
· consider all the reasonably available evidence about the history of the
watercourse, and ensure that the single parcel declaration does not
locate the boundary closer to the opposite side of the watercourse than
the last known location of the boundary.
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The gazette notice may identify the location of the non-tidal boundary
(watercourse) by incorporating a map or plan held by the Chief Executive.
Note that a declaration decision under this section may be subject to
internal review, and may be appealed.
New section 110 (Second exception for the boundary location
criteria rule (non-tidal) provision (previous sudden change))
New section 110 provides a second exception to the boundary location
criteria rule, when the natural feature adopted as the boundary was the
subject of sudden change at any time before the registration of a new plan
of survey. In this case, the non-tidal boundary (watercourse) is and remains
where it was located immediately before the registration of the first new
plan of survey. This is consistent with the "ambulatory boundary
principles" (defined in new section 62 of the SMIA, the principles preserve
common law rules for the movement of ambulatory boundaries).
New subdivision 4 - Locating non-tidal boundaries
(watercourse) at law from registration of subsequent new plan
of survey
New section 111 (Application of sdiv 4)
New section 111 applies subdivision 4, which deals with the location at law
of a non-tidal boundary (watercourse), on and from the registration of a
subsequent new plan of survey for the land. Note that the operation of this
subdivision could be displaced by a multiple lot declaration (non-tidal) under
division 5.
The effect of this subdivision is that subdivision 3 is only applied once in
relation to any land.
New section 112 (Special requirement to support the operation
of sdiv 4)
New section 112 ensures that the representation of the non-tidal boundary
(watercourse) on any further plan of survey prepared for the land coincides
to the greatest practicable extent with the position of the non-tidal
boundary (watercourse) at law, which is where the boundary was located
when the first new plan of survey was registered.
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Natural Resources and Other Legislation Amendment Bill 2010
The provision sets out when a compiled plan may be used for a subsequent
new plan of survey so that the non-tidal boundary need not be resurveyed.
A compiled plan as defined in the Act is a plan of survey that uses
"compiled information" for all or part of the non-tidal watercourse
boundary. Compiled information is searchable, registered information.
A compiled plan of survey may be used if the first new plan of survey was
the result of a resurvey of the non-tidal watercourse boundary. In this case,
the subsequent new plan of survey may use information from the new plan
of survey.
A subsequent new plan of survey may be a compiled plan in relation to the
non-tidal watercourse boundary or any part of it, if the first new plan of
survey was also a compiled plan. In this case, the subsequent new plan of
survey must use the same information used in the first new plan of survey.
Another requirement is that the location of the boundary on the new plan of
subdivision must not intersect with the location at law of the boundary.
Note that if a compiled plan is used for all or part of the tidal boundary, the
position of the boundary at law under this subdivision is not affected by the
fact that the tidal boundary has not been resurveyed.
New section 113 (First new plan of survey adopted feature rule
(non-tidal))
New section 113 provides that any plan of survey registered after the first
new plan of survey must adopt the natural feature or other thing on which
the boundary in the first new plan of survey is based. The ambulatory
boundary principles may be taken into account in determining the location
of the boundary if a natural feature constituted the boundary.
New Subdivision 5 - Locating non-tidal boundaries
(watercourse) at law on coming into force of new source
material
New section 114 (Application of sdiv 5)
New section 114 provides that subdivision 5 applies when new source
material is brought into existence.
This may occur when previously leasehold land is converted to freehold,
when land is granted after surrender, or when a deed of grant for State land
is issued for the first time.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 115 (Special requirement to support the operation
of sdiv 5)
New section 115 ensures that the representation of the non-tidal boundary
(watercourse) on any plan of survey and associated material for the land
coincides to the greatest practicable extent with the position of the
non-tidal boundary at law as provided for in this subdivision
New section 116 (New source material adopted feature rule
(non-tidal))
New section 116 provides that the rules in subdivisions 2 to 4 do not apply
to the land.
The section provides that the source material may identify a natural feature
or other thing as the non-tidal boundary (watercourse). If a natural feature
is identified as the boundary, then the effect of the "ambulatory boundary
principles" (defined in new section 62 of the SMIA, the principles preserve
common law rules for the movement of ambulatory boundaries) on it after
the creation of the source material will be taken into account.
New Subdivision 6 - Locating non-tidal boundaries (lake)
New section 117 (Application of sdiv 6)
New section 117 provides that subdivision 6 applies to the non-tidal
boundaries of lakes at any time.
Subdivision 6 is not intended to change the existing common law.
New section 118 (Special requirement to support the operation
of sdiv 6)
New section 118 ensures that the representation of the non-tidal boundary
(lake) on any plan of survey and associated material for the land coincides
to the greatest practicable extent with the position of the non-tidal
boundary (lake) at law as provided for in this subdivision.
New section 119 (Lake boundary rule)
New section 119 provides that the non-tidal boundary (lake) is the
outermost extent of the bed and banks of the lake. In determining the
location of the boundary, the "ambulatory boundary principles" (defined in
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Natural Resources and Other Legislation Amendment Bill 2010
new section 62 of the SMIA, the principles preserve common law rules for
the movement of ambulatory boundaries) may be taken into account.
New Division 5 - Miscellaneous issues in the non-tidal
environment
New section 120 (Multiple lot declaration (non-tidal) provision)
New section 120 provides a head of power for the Chief Executive (land) to
make a declaration about the location of the non-tidal boundary
(watercourse) that affects each of two or more lots.
The Chief Executive may make multiple lot declaration (non-tidal) even if
a new plan of survey has been lodged or deposited with a view to
lodgement or 1 or more new plans of survey have been registered for the
relevant land.
A declaration may be made by the Chief Executive only if:
· all of the land subject of the declaration was the subject of one old
plan of survey where the non-tidal boundaries of the lots were formed
by different lengths of the same natural feature adopted as the
boundary; and
· because of obliteration of the natural feature, it was now not possible
to make a meaningful correspondence between the old plan of survey
and evidence of the natural feature on the ground of the relevant lots.
When the next new plan of survey is registered for a lot, the non-tidal
boundary (watercourse) is at law the line on the ground corresponding to
the declared line. The declared boundary is taken to be fixed as if it is a
right line boundary. However, the land retains an ambulatory boundary.
Before making a declaration, the Chief Executive must:
· take reasonable steps to obtain the views of any lessee or registered
owner, e.g. the person recorded in the freehold land register as the
person entitled to the fee simple interest in the lot;
· consider all the relevant evidence to ensure that the single parcel
declaration does not locate the boundary closer to the middle of the
watercourse than the last known location of the boundary; and
· ensure that the location of the non-tidal boundary (watercourse) in the
declaration is not closer to the non-tidal water than the last known
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location of the original adopted natural feature, and identical, in
practical terms, to the last known location of the original adopted
natural feature, before its obliteration by sudden change.
The gazette notice may identify the location of the non-tidal boundary
(watercourse) by incorporating a map or plan held by the Chief Executive.
The Chief Executive may defer dealing with the plan for a reasonable
period to allow departmental investigations to take place before declaration
of the boundary.
Division 4, subdivisions 3 to 4 do not operate to the extent that they are
inconsistent with this provision.
Note that a declaration decision under this section may be subject to
internal review, and may be appealed.
New section 121 - (No compensation for operation of division 4
or this division)
New section 121 provides that a person is not entitled to compensation
from the State or anyone else under this Act, the Land Title Act
compensation provisions, the Property Law Act 1974 relief provisions or
otherwise, for deprivation of an interest of any type in land, or for loss or
damage of any kind, arising from the operation of division 4 (non-tidal
boundaries) or division 5 (miscellaneous issues in the non-tidal
environment).
In subparagraph 121(a) compensation is ruled out arising from the
application of the:
· current adopted natural feature rule (non-tidal) and exceptions to it;
· original boundary location criteria rule (non-tidal) and exceptions to
it; or
· a multiple lot declaration (non-tidal)
It is possible that the current adopted natural feature rule (non-tidal) could
have the effect of locating the non-tidal boundary (watercourse) further
from the water of the watercourse than its location at law immediately
before the commencement. For example, the adopted natural feature could
be the edge of useable land, while strictly speaking, the non-tidal boundary
was a particular level of flow in the watercourse.
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It is possible that that the boundary location criteria rule (non-tidal) could
have the effect of locating the non-tidal boundary (watercourse) further
from the water of the watercourse than its location at law as provided for
under division 4, subdivision 3 (first survey after commencement). For
example, on an application of the non-tidal boundary (watercourse)
location criteria, the non-tidal boundary (watercourse) could be a scour
mark, while strictly speaking, before the new plan of survey was registered,
the non-tidal boundary (watercourse) was at a lower level, having been a
particular level of flow in the watercourse.
In subparagraph 121(b), compensation is ruled out in relation to the
maintenance or not of the registers maintained by the Chief Executive and
registrar of titles in relation to any relation about the location of a non-tidal
boundary (watercourse) or a multiple lot declaration.
New Division 6 - Review of declaration decisions and appeals
New Subdivision 1 - Right of appeal
New section 122 - Right of appeal
New section 122 provides a right of appeal to a registered owner or lessee
who is given notice of a declaration decision. A declaration decision is a
decision of the Chief Executive to declare a tidal or non-tidal (watercourse)
boundary for a single lot or multiple lots under new sections 83, 94, 110 or
121.
New Subdivision 2 - Internal review of decisions
New section 123 - Appeal process starts with internal review
New section 123 provides that every appeal against a declaration decision
must be, in the first instance by way of an application for internal review to
the Minister.
New section 124 - Applying for review
New section 124 provides a period of 42 days in which a person may apply
for a review of a declaration decision that may be extended by the Minister.
The application for review must be in writing and state in detail the
grounds on which the applicant seeks review of the decision.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 125 - Decision on reconsideration
New section 125 requires the Minister, after reviewing the decision
appealed against, to make a further decision (the review decision), by
notice in writing confirming, amending or substituting a new declaration
decision. The Chief Executive must immediately give the applicant written
notice of the review decision.
New Subdivision 3 - Appeals
New section 126 - Who may appeal
New section 126 enables a person who has applied for the review of a
declaration decision and is dissatisfied with the review decision to appeal to
the Land court against the decision.
New section 127 - Procedure for an appeal to the court
New section 127 details the procedure for an appeal to the Land court about
a review decision on a declaration decision.
New section 128 - Powers of court on appeal
New section 128 provides that, on appeal, the Land court has the same
powers as the Chief Executive and details the powers of the court on
appeal.
New section 129 - Effect of decision on court of appeal
New section 129 sets out the effect of the decision of the Land court on
appeal. If the court refers the matter back to the Chief Executive with
directions, a new decision of the Chief Executive is not subject to review or
appeal. If the court substitutes another decision, the substituted decision is
taken to be the original declaration decision of the Chief Executive as if no
application for review or appeal had been made.
New section 130 - Evidentiary provisions for appeal
New section 130 provides evidentiary provisions applicable to an appeal.
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Natural Resources and Other Legislation Amendment Bill 2010
Insertion of new s 134 (Delegations)
Clause 216 inserts new section 134 which empowers the Chief Executive
to delegate his or her functions under the Act to an appropriately qualified
officer or employee of the department.
Amendment of schedule (Dictionary)
Clause 217 amends the dictionary by inserting a number of new definitions
to deal with the tidal boundary and non-tidal boundary schemes. It also
amends a section reference in the definition of an approved form.
Part 17 Amendment of Surveyors Act
2003
Act amended
Clause 218 provides that this part amends the Surveyors Act 2003.
Amendment of s 14 (Chairperson of board)
Clause 219 inserts extra provisions in section 14 to allow the Minister to
appoint a member of the board to fill a vacancy in the office of chairperson
(should such a vacancy occur during the currency of a chairperson's term
of appointment).
Replacement of s 15 (Term of appointment)
Clause 220 replaces section 15 and makes the term of appointment of
board members three years instead of two.
Amendment of s 19 (Vacation of office)
Clause 221 inserts a new provision which provides that if the board
member appointed as a cadastral surveyor employed in the department
leaves the department or, stops being a cadastral surveyor, his or her
position on the board is taken to be vacated.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 36 (Eligibility for registration or registration
endorsement--individuals)
Clause 222 amends section 36 by firstly removing one of the eligibility
requirements for an individual seeking a consulting endorsement - which
an individual intends to conduct a business providing surveying services.
The act of the individual applying for a consulting endorsement is
sufficient evidence of the intent to conduct a business. Furthermore an
employee applying for a consulting endorsement cannot comply with this
provision because it is the corporation he or she is employed by that is
conducting a business.
Secondly, the eligibility requirement relating to professional indemnity
insurance is expanded to cover the situation of an employee taking out
insurance cover. If the employee is covered by his or her employer's
insurance cover there is no need for him or her to take out individual cover.
Lastly, section 36 is amended by removing a transitional provision (a
reference to a repealed Act) that is no longer relevant.
Amendment of s 38 (Eligibility for registration and registration
endorsement--corporations)
Clause 223 amends section 38 by firstly removing one of the eligibility
requirements for a corporation seeking registration as a surveyor with a
consulting endorsement - which the corporation intends to conduct a
business providing surveying services. The act of the corporation applying
for registration is sufficient evidence of this.
Secondly, section 38 is expanded to include a requirement that a
corporation seeking registration as a surveyor with a consulting
endorsement employs, or has as one of its directors, an individual surveyor
with a consulting endorsement. A similar requirement for corporations
seeking other endorsements already exists and the new requirement will
ensure a corporation has the necessary skills to conduct a surveying
business.
Lastly, section 38 is amended by removing a transitional provision (a
reference to a repealed Act) that is no longer relevant.
Amendment of s 45 (Procedural requirements for application)
Clause 224 amends section 45 to align the requirements for applications
for a consulting endorsement with the amendments to section 36.
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Natural Resources and Other Legislation Amendment Bill 2010
See discussion on amendments to section 36 for the reasons underpinning
these amendments.
Amendment of s 46 (Additional requirements for application by
corporation)
Clause 225 amends section 46 to align the requirements for application for
registration of a corporation with the amendments to section 38.
See discussion on amendments to section 38 for the reasons underpinning
these amendments.
Replacement of pt 12, hdg (Transitional provisions)
Clause 226 omits the heading to Division 1 (Transitional references) and
inserts a new heading "Part 12 (Transitional and repeal provisions for Act
No 70 of 2003)".
Replacement of pt 13, hdg (Repeal)
Clause 227 omits the heading Part 13 (Repeal) and inserts a new heading
"Division 3 (Repeal)".
Insertion of new pt 13
Clause 228 inserts a new heading "Part 13 Transitional provisions for
Natural Resources and Other Legislation Amendment Act 2010".
New section 206 (Definitions for pt 13)
New section 206 provides definitions for the new part 13.
New section 207 (Existing application for registration or
renewal by corporation)
New section 207 provides that an application made by a corporation for
registration as a surveyor with a consulting endorsement before
commencement will be decided by the rules applicable in force
immediately before the commencement.
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Natural Resources and Other Legislation Amendment Bill 2010
New section 208 (Continuation of board members)
New section 208 provides for continuation of board members appointed
after 1 March 2010 but after the commencement. Upon commencement,
the member is taken to be appointed until 1 March 2013. This section also
provides for existing members of the board whose appointment would
otherwise expire on 29 October 2010. These board members are taken to
be appointed for a term that expires on 1 September 2011.
Amendment of sch 3 (Dictionary)
Clause 229 amends the dictionary of the Bill. The definition of
professional misconduct is expanded so that it includes surveys carried out
under supervision of a registrant, or a former registrant.
Part 18 Amendment of Torres Strait
Islander Cultural Heritage Act
2003
Act amended
Clause 230 provides that this part amends the Torres Strait Islander
Cultural Heritage Act 2003.
Amendment of s 34 (Native title party for an area)
Clause 231 amends the definition of the Torres Strait Islander native title
party for an area to put beyond doubt the identity of the native title party for
cultural purposes in the situation where there are two or more previously
registered claimants for an area. The amendment will put this issue beyond
doubt for all stakeholders.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 19 Amendment of Torres Strait
Islander Land Act 1991
Act amended
Clause 232 provides that this part amends the Torres Strait Islander Land
Act 1991.
Amendment of s 3 (Definitions)
Clause 233 amends the definitions in section 3 of the Act by omitting the
definition of "beds and banks". The definition referred to the Water Act,
Schedule 4. The changes made in this Bill to the criteria for determining
the ambulatory boundary for non-tidal land mean that these terms are no
longer relevant in determining the extent of the State's ownership of a
watercourse and have been omitted from the Water Act.
Amendment of s 17 (Beds and banks of watercourses and
lakes)
Clause 234 amends section 17 of the Act, which provides that
watercourses are "available State land" (land in which no person other than
the State has an interest) to remove the terms "beds and banks" of a
watercourse. This amendment reflects the fact that changes made in this
Bill to the criteria for determining the ambulatory boundary for non-tidal
land mean that these terms are no longer relevant in determining the extent
of the State's ownership of a watercourse.
Part 20 Amendment of Vegetation
Management Act 1999
Act amended
Clause 235 provides that this part amends the Vegetation Management Act
1999.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 7 (Application of Act)
Clause 236 amends section 7 (1)(b) of the Vegetation Management Act
1999 (VMA) to exempt additional national parks (national parks
(Aboriginal land), national parks (Torres Strait Islander land) and national
parks (Cape York Peninsula Aboriginal land)) from the VMA. These
additional national parks are adequately protected, with vegetation clearing
only allowable when it is conducted in accordance with the stringent
management principles already in place under the Nature Conservation Act
1992. This amendment reduces regulatory duplication and ensures all
national parks are uniformly exempt under the VMA. The structure of
section 7(1)(b) has been modified, with previous reference to a protected
area under section 28 of the Nature Conservation Act 1992 removed and
instead, each section 28 protected area and the additional national parks are
now inserted as a list.
Part 21 Amendment of Water Act 2000
Act amended
Clause 237 provides that this part amends the Water Act 2000.
Insertion of new ch 1, pt 1 hdg
Clause 238 inserts a new heading before section 1 of the Act, ""Part 1
Introduction".
Insertion of new ch 1, pt 2
Clause 239 inserts a new part 2 after section 4 of the Act. The part
clarifies the definition of watercourse and related elements.
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Natural Resources and Other Legislation Amendment Bill 2010
Part 2 Watercourses
New section 5 (Meaning of watercourse)
New section 5 replaces the existing definition of watercourse in Schedule 4
Dictionary. The main change is to clarify the lateral extents of the
watercourse as being the `outer' banks, previously referred to as `high
banks'.
The current definition of watercourse refers broadly to `bed and banks',
without clarifying which banks are included in the feature. In many
circumstances, a watercourse channel will have several banks on each side
of the bed, causing confusion as to the true lateral extent of the feature and
associated jurisdiction.
The key elements of the new definition are:
· `watercourse' is the channel of a river, creek or other stream between
the outer banks laterally and between upstream and downstream limits
longitudinally;
· a watercourse can be a natural channel or an artificial channel that has
changed the course of the watercourse (eg a diversion); and
· a watercourse can contain certain elements such as bars, benches and
in-stream islands, which differentiate it from a channel that merely
carries low flows.
· a watercourse cannot be a drainage feature that does not have certain
attributes in regard to sustainability of flow after rainfall events.
Diagram 2 -Location of watercourse in a valley setting.
Valley floor
Valley margin
Floodplain Valley
Valley terrace i
Watercourse
Hill
Hill
Flood runner
Bedrock
Cross-sectional view of a stream valley
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New section 5A (Meaning of outer bank)
New section 5A defines the outer bank feature which is fundamental in
determining the lateral extents of a watercourse. The definition refers to
the watercourse's location within the valley setting, using adjacent
floodplain and valley margin features to depict the lateral extent. This
recognises that watercourses are landscape features measured at the valley
scale, rather than as channels within a drainage feature. The key elements
of the definition are:
· an `outer bank' is where the channel meets any adjoining floodplain or
(in the absence of an adjoining floodplain) where scour marks or
depositional features indicate the highest elevation to which historic
flows have reached.
· where there is a floodplain on one side and not the other, the elevation
of the outer bank adjacent to the floodplain is used to identify the
outer bank on the other side of the channel. This is irrespective of any
scour marks or depositional features on the non-floodplain side.
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Natural Resources and Other Legislation Amendment Bill 2010
Diagram 3 Valley setting showing outer bank.
Floodplain
Valley margin
Outer bank
Outer bank
Bench
Scour mark or
depositional
Bench
Lower bank features
Sand or
gravel bar
Valley setting showing outer bank
New section 5B (Declaration of outer bank)
New section 5B provides power for the Chief Executive to declare by
gazette notice a natural feature to be an outer bank for a specific length of
watercourse in the following circumstances:
· where it is not reasonably practical to identify an outer bank by the
methods given in section 5A.
· where an identified outer bank is considered to be inadequate for the
exercise of jurisdiction and a more suitable location is justified.
Exercise of this power will allow jurisdictional certainty to be provided in
these circumstances, thereby reducing conflict and concerns.
Omission of s 21 (Beds and banks forming boundaries of land
are State property)
Clause 240 repeals section 21, which declares the bed and banks forming
boundaries of land to be State property. This repealed provision is no
longer required in the Water Act and has been placed in the Land Act,
which now deals with watercourse tenure issues. A new section 1171
provides for continuation of this section for actions arising before the
commencement of the amendments.
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Natural Resources and Other Legislation Amendment Bill 2010
Amendment of s 279 (Ownership and management of certain
quarry material)
Clause 241 makes minor amendments to section 279, which deals with the
ownership and management of certain quarry material. Cross-reference to
the Land Act is added in relation to quarry materials that are situated on
State property within a watercourse.
Amendment of s 967 (Approval for development under
Sustainable Planning Act 2009 is subject to approval under this
Act)
Clause 242 amends section 967, which requires a development approval
for taking from, or interfering with, a watercourse consequential to the
change of definitions in the Act that determine the extent of the State's
jurisdiction to manage a watercourse.
Insertion of new ch 8, pt 4B
Clause 243 inserts a new chapter 8, part 4B after section 1003A of the Act.
Part 4B Special provision for Condamine and Balonne
Resource Operations Plan
New Section 1003B (Condamine and Balonne Resource
Operations Plan amended)
New section 1003B provides for the finalisation of the Lower Balonne
provisions for the Condamine and Balonne Resource Operations Plan (CB
ROP). On commencement of this section, the CB ROP will be amended to
include the deferred aspect. The deferred aspect relates to the provisions
for the Lower Balonne Area, which were deferred from being made along
with the other provisions of the CB ROP in December 2008. The term
deferred aspect is defined for this section to mean the provisions for the CB
ROP included in the document called `Condamine and Balonne resource
operations plan amendment incorporating the Lower Balonne area'
approved by the Chief Executive on 5 March 2010. This document contains
the provisions that will be incorporated into the CB ROP by this section.
This provision makes it clear that the amendment of the CB ROP under this
section applies despite any other provision of the Water Act.
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Natural Resources and Other Legislation Amendment Bill 2010
This new section also expressly states that the CB ROP as amended under
this section is the resource operations plan for the Water Resource
(Condamine and Balonne) Plan 2004. This provides consistency with the
existing section 103 of the Water Act, which provides that on approval of a
resource operations plan, the resource operations plan is the resource
operations plan for the water resource plan it implements.
Subsection (4) makes it clear that the CB ROP, as amended under this
section, can be amended, replaced or repealed under the relevant Water Act
provisions for dealing with resource operation plans.
The terms CB ROP and deferred aspect are also defined for the purpose of
this section.
Amendment of s 1006 (Declarations about watercourses)
Clause 244 amends section 1006 of the Act which provides that a
regulation may declare, by reference to a natural or artificial feature or the
boundary of a parcel of land, the downstream or upstream limit, or both, of
a watercourse. The amendment inserts a new subsection (4) which
provides that if the regulation purports to declare a limit of a feature that is
not a watercourse, only that part of the regulation is void, leaving the
remainder of the regulation valid.
Amendment of s 1014 (Regulation-making power)
Clause 245 amends section 1014 of the Act, the regulation making power
consequential to the change of definitions in the Act that determine the
extent of the State's jurisdiction to manage a watercourse.
Insertion of new s 1014A
Clause 246 inserts a new section after section 1014 of the Act.
New section 1014A (Special regulation-making power to
support outer bank identification)
New section 1014A adds a special regulation making power to support the
identification of outer banks. Given the complexity of specifying the
lateral extents of watercourses in a range of stream and valley settings, the
ability to use diagrams to supplement descriptions will substantially
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enhance the interpretation and use of the new definitions. Such powers
permit regulations to include words and diagrams that:
· guide the application of the Act definitions in varying environments
and situations;
· give examples of scour marks and depositional features used to locate
outer banks in certain circumstances;
· give examples of floodplains used to locate outer banks in certain
circumstances; and
· give explanations of how beds, banks, bars, benches and in-stream
island features can be identified
Insertion of new ch 9, pt 5, div 14
Clause 247 inserts a new division 14 after section 1170 of the Act.
Division 14 Transitional provisions for Natural Resources and
Other Legislation Amendment Act 2010
New section 1171 (Continuing application of s 21)
New section 1171 adds transitional arrangements to preserve the effect of
section 21 (bed and banks forming boundaries of land to be State property)
in actions arising before the commencement of the amendments.
New section 1172 (Transition for jurisdictional change for
existing licence or permit)
New section 1172 relates to activities being undertaken in a watercourse
and on land adjoining the watercourse, for example a riverine quarrying
operation, at the time these amendments come into effect. That part of the
activity within watercourse should be authorised under the Act (such as a
licence or permit); whereas that part outside the watercourse would not
have required such authorisation.
If, as a result of these amendments, that part outside the watercourse is then
deemed to be within the watercourse, the person undertaking the activity is
required to apply for an appropriate authorisation under the Act to
continue. This situation could occur if an interpretation of the clarified
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definition of watercourse extended the lateral extents of the watercourse,
compared to the interpretation based on the previous definition.
This section automatically extends, for a six-month period after
commencement of this section, the authorisation to cover the part of the
activity that did not previously require an authorisation.
The new section also provides that during this period the person may apply
to extend the authorisation to cover the activity outside the watercourse for
a longer period. In the event that the application cannot be approved, the
person may request, on hardship grounds, to progressively phase out the
activity outside the watercourse over a period, not exceeding five years.
Amendment of sch 4 (Dictionary)
Clause 248 amends schedule 4 to remove and add definitions related to
watercourses and their related elements.
Subclause (2) amends the dictionary by adding a number of definitions
related to watercourses as follows:
· new definition of `bar', which is a natural short-term accumulation of
material (typically sand or gravel) within the stream bed, either beside
the lower banks or behind in stream obstructions (such as rocks and
debris logs). Bars are commonly altered and moved by shallow and
moderately deep flows.
· new definition of definition of `bed and banks' as it relates to a lake, to
clarify their extents.
· new definition of `bench', which is a natural accumulation of material
within the stream channel, often forming the boundary (or lower
bank) of the bed. Benches are relatively stable features, being
commonly altered by moderately deep and deep flows.
· new definition of `depositional feature', which is a natural
accumulation of fine material within the stream channel during a flow
event. These features can indicate the elevation of past flow events
and be used to determine the location of the outer bank.
· new definition of `downstream limit' to clarify the natural, artificial or
declared location of the limit.
· new definition of `drainage feature', which is a feature formed by a
concentration of overland flow and flows only in direct response to
rainfall. Examples include gullies and drainage depressions. Also, it
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has no sustained flows, which would create and support a riverine
environment. For a feature to be deemed to be a drainage feature, it
must satisfy all three criteria. For example, a feature that has
sustained flows but no evidence of a riverine environment (such as
riparian vegetation) is not a drainage feature and may be a
watercourse. Similarly, the absence of riparian vegetation along a
feature does not preclude the feature from being a watercourse.
· new definition of `floodplain' to clarify its use in determining the
outer bank of an adjoining watercourse.
· new definition of `in-stream island', which is a natural accumulation
of material (typically sand or gravel) within the stream channel, often
forming the boundary (or lower bank) of the bed. Instream islands are
relatively stable features, being commonly altered by moderately deep
and deep flows.
· new definition of `scour mark', which is a natural mark made in a
stream bank by the action of suspended sediments during flow events.
Marks can indicate the elevation of past flow events and be used to
determine the location of the outer bank.
· new definition of `upstream limit' to clarify the natural or declared
location of the limit.
Part 22 Repeal and consequential and other amendments
Act repealed
Clause 249 repeals the Forestry Plantations Queensland Act 2006. This
clause will take effect on a date to be fixed by proclamation in order to
allow for "winding up" type activities to be completed before the Act is
repealed.
Regulation repealed
Clause 250 repeals the Forestry Plantation Queensland Regulation 2006
which establish the State plantation forest for FPQ. This regulation will be
repealed upon assent.
Acts amended
Clause 251 provides that the schedule amends the Acts it mentions.
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Schedule Consequential amendments
The amendments effected by the schedule are as follows:
· Aboriginal Cultural Heritage Act 2003:
Clause 1 inserts a new definition into the Aboriginal Cultural
Heritage Act 2003 to provide, for the avoidance of doubt, that the
plantation licensee (or plantation sublicensee if applicable) is an
"occupier" of land for the purposes of that Act. This will ensure the
plantation licensee or plantation sublicensee is afforded the same
notice and consultation rights in respect of activities relating to
Aboriginal cultural heritage that other occupiers of land are afforded
under that Act. The State will continue to be the "owner" of State
forest land for the purposes of the Act.
· Biodiscovery Act 2004
Clause 1 omits subsection 14(2A) of the Biodiscovery Act 2004
(which effectively allows the chief plantation forestry officer to "veto"
the granting of an application for a collection authority under the Act
where the application relates to SPF) and inserts a new subsection
14(2A) which requires the Chief Executive to consult with the
relevant plantation licensee or plantation sublicensee where an
application for a collection authority relates to a SPF.
Clause 2 makes additional amendments to section 14(5) of the Act to
provide new definitions for the purposes of new section 14(2A).
· Environmental Protection Act 1994
Clause 1 amends section 579 of the Environmental Protection Act
1994 which provides that, in the event of damage or loss resulting
from the presence on land of a person complying with an
environmental requirement under that Act, the owner and occupier of
the land are eligible to be compensated for that damage or loss. The
amendment provides, for the avoidance of doubt, that the plantation
licensee or plantation sublicensee is an occupier of land for the
purposes of the provision, and therefore eligible to be compensated in
respect of a compensatable effect suffered by the plantation licensee
or plantation sublicensee. The section further provides that
compensation will be payable between the plantation licensee or
plantation sublicensee and the State (as owner of the land) as decided
by a court of competent jurisdiction.
· Geothermal Exploration Act 2004
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Clauses 1 to 3 add the plantation licensee as a category of
"landholder" under the Geothermal Exploration Act 2004. This has
the effect that the plantation licensee is afforded the rights held by
other landholders to be notified in relation to tender and application
processes for permits granted under the Act, and to be compensated
for damage to property caused by activities authorised under the Act.
The plantation licensee will be the "landholder" for land in the licence
area in conjunction with the State, who is the landholder for State
forest land for the purposes of the Act.
· Public Service Act 2008
Clause 1 omits the reference to FPQ in schedule 1 of the Public
Service Act 2008 which lists public service offices and their heads.
This amendment will take effect on a date to be fixed by proclamation
(after FPQ is dissolved).
· Queensland Heritage Act 1992
Clauses 1 to 3 provide that, for the purposes of the Queensland
Heritage Act 1992, the "owner" of land that is the licence area is the
State, the plantation licensee, and any plantation sublicensee. This
amendment has the effect that the plantation licensee and plantation
sublicensee, along with the State, will have the rights of an "owner" of
land under the Act which are currently afforded under this Act to
holders of similar occupation rights from the State, for example,
holders of mining interests.
· Recreation Areas Management Act 2006
Clauses 1 to 3 amend the Recreation Areas Management Act 2006 in
relation to two issues that are created by the grant of a plantation
licence over State plantation forest. Under this Act, land other than
"State land" may only be included in a recreation area if the "area
land-holder" enters into a recreation area agreement with the State for
its inclusion.
Under the Act in its current form, the licence area falls within the
definition of "State land", and can therefore be included in a
recreational area by the State unilaterally. Further, neither the
plantation licensee nor the plantation sublicensee falls within the
definition of "area land-holder".
The amendments remove land in the licence area from the definition
of "State land", and expressly include the plantation licensee as an
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"area land-holder" under the Act (along with the State). This will have
the effect that land in the licence area cannot become a recreation area
without a written agreement, and that the plantation licensee (along
with the State) is the relevant land-holder from whom the agreement
must be obtained.
The plantation sublicensee has not been included in the category of
"area land-holder" under these amendments. This is because the
existing categories of "area land-holder" in the Act do not extend to
right-holders analogous to the plantation sublicensee, for example,
lessees of freehold land and sub-lessees of leasehold land under the
Land Act 1994.
· Statutory Bodies Financial Arrangements Act 1982
Clause 1 omits subsection 6(1)(a) of the Statutory Bodies Financial
Arrangements Act 1982, removing a reference to FPQ in that
subsection. This amendment will take effect on a date to be fixed by
proclamation (after FPQ is dissolved).
· Water Act 2000
Clauses 1 to 3 insert the plantation licensee as a new category of
"owner" of land into the dictionary in schedule 4 of the Water Act
2000. Under the Act, owners of land hold certain rights and
obligations, including rights to hold water licences and to take water
for domestic purposes, and obligations to comply with moratorium
notices in respect of works for taking water. "Owners" of land are also
eligible to be compensated for damage to property caused by an
authorised officer exercising powers under that Act. Currently, the Act
does not contemplate the plantation licensee as an "owner" of land.
The amendments bring the plantation licensee into the contemplation
of the Act. The State will continue to be an owner of State forest land,
including the licence area, as the registered owner of that land.
The plantation sublicensee has not been included the category of
"owner" under these amendments. This is because the existing
categories of "owner" in the Act do not extend to right holders
analogous to the plantation sublicensee, e.g. lessees of freehold land
and sub-lessees of leasehold land under the Land Act 1994.
© State of Queensland 2010
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