1	Title
2	Commencement
3	Revocation
4	Interpretation
5	Modification of section 179 of Climate Change Response Act 2002: deferral of dates on which forest land treated as deforested
6	Modification of section 181F of Climate Change Response Act 2002: deferral of P90 offset date
7	EPA must reverse outcomes in certain cases
8	Statutory declarations
	Explanatory note
	Administrative Information

Order

1 Title

This order is the Severe Weather Emergency Recovery (Climate Change—Forestry) Order (No 2) 2023.

2 Commencement

This order is treated as having come into force on 1 April 2023.

3 Revocation

This order is revoked on the close of 1 January 2028.

4 Interpretation

(1)

In this order, unless the context otherwise requires,—

area 1 (approved) land has the meaning given in section 181 of the CCRA

area 2 (approved) land has the meaning given in section 181 of the CCRA

baseline date has the meaning given in section 181 of the CCRA

CCRA means the Climate Change Response Act 2002

directly affected area means any area in 1 or more districts of the territorial authorities specified in the definition of local authority in section 4(1) of the Severe Weather Emergency Recovery Legislation Act 2023

district has the meaning given in section 5(1) of the Local Government Act 2002

P90 offset application has the meaning given in section 181 of the CCRA

P90 offset date has the meaning given in section 181 of the CCRA

P90 offset release criteria has the meaning given in section 181 of the CCRA

P90 release criteria notice has the meaning given in section 181 of the CCRA

relevant period means the period commencing on 1 April 2023 and ending on 31 December 2024

relevant person,—

(a)

for the purposes of clause 5, means,—

(i)

in relation to pre-1990 forest land,—

(A)

the owner of the land; or

(B)

a person who, if an activity listed in Part 1 of Schedule 3 of the CCRA were carried out on the land, would be treated as the person carrying out the activity under section 180(2) of the CCRA; and

(ii)

in relation to post-1989 forest land, a person who is a participant in respect of the land under section 54(1)(b) of the CCRA because of an activity listed in Part 1 or 1A of Schedule 4 of the CCRA; and

(b)

for the purposes of clause 6, means a person responsible for submitting a P90 release criteria notice under section 181G of the CCRA in relation to land to which a declaration provided under clause 6 relates

severe weather event has the meaning given in section 4(1) of the Severe Weather Emergency Recovery Legislation Act 2023

significantly affected, in relation to forest land, means 1 or more of the following:

(a)

the land has been materially physically disrupted (for example, by slips or silt deposits):

(b)

the infrastructure needed to support establishment of forest species on the land (for example, fences) has been materially damaged:

(c)

access to the land has been materially disrupted (for example, by the need to carry out health and safety assessments before allowing access for workers, or due to damage to roads providing access to the land):

(d)

planting or establishment of forest species on the land has been materially disrupted or prevented, in particular by 1 or more of the following:

(i)

damage to young trees (either planted or located on the land, or located elsewhere within a directly affected area, and purchased for the purpose of planting on the land):

(ii)

damage to, or shortages in, the stock of young trees available for purchase for planting on the land:

(iii)

delays (other than minor delays) in the delivery of young trees for planting on the land, or the planting of young trees once delivered:

(iv)

any combination of the matters in subparagraphs (i) to (iii)

territorial authority has the meaning given in section 5(1) of the Local Government Act 2002.

(2)

A term used in this order that is defined in the CCRA, but not in this order, has the meaning given in the CCRA.

(3)

The modification of legislation by clauses 5 and 6 of this order does not affect the text of the legislation, but requires it to be read as if amended in the manner indicated in those clauses.

5 Modification of section 179 of Climate Change Response Act 2002: deferral of dates on which forest land treated as deforested

(1)

This clause applies in respect of a hectare of forest land if all of the following criteria are met:

(a)

the hectare is in a directly affected area:

(b)

the forest species on that hectare have been cleared:

(c)

during the relevant period,—

(i)

the date that is 4 years after the forest species on that hectare were cleared will occur; or

(ii)

the date that is 10 years after the forest species on that hectare were cleared will occur:

(d)

the hectare has been significantly affected by 1 or more of the severe weather events and, as a result, efforts to re-establish forest species on the hectare have been materially disrupted or prevented:

(e)

a relevant person has made and given to the EPA a statutory declaration confirming the matters in paragraphs (a) to (d).

(2)

In relation to land to which subclause (1)(c)(i) applies, section 179(1)(a) and (3) of the CCRA applies as if “4 years” were replaced with “7 years” in each place.

(3)

In relation to land to which subclause (1)(c)(ii) applies, section 179(1)(b) and (3) of the CCRA applies as if “10 years” were replaced with “13 years” in each place.

6 Modification of section 181F of Climate Change Response Act 2002: deferral of P90 offset date

(1)

This clause applies in respect of land—

(a)

in relation to which a P90 offset application has been submitted; and

(b)

that is area 1 (approved) land; and

(c)

for which the P90 offset date will occur during the relevant period; and

(d)

if the area 2 (approved) land with which the land is associated (for the purposes of the relevant P90 offset application) meets the criteria in subclause (2).

(2)

The criteria for the area 2 (approved) land are all of the following:

(a)

the land is in a directly affected area:

(b)

the land has been significantly affected by 1 or more of the severe weather events and, as a result, efforts to establish forest species on the land have been materially disrupted or prevented:

(c)

a relevant person has made and given to the EPA a statutory declaration confirming the matters in paragraphs (a) and (b).

(3)

Section 181F(5)(a) of the CCRA applies in relation to the land described in subclause (1) as if “4 years” were replaced with “7 years”.

(4)

The reference to the P90 offset date in section 179A(1)(b)(ii) of the CCRA must be read in respect of any land to which this clause applies as a reference to the P90 offset date as deferred by this clause.

7 EPA must reverse outcomes in certain cases

Application of clause

(1)

This clause applies if,—

(a)

in relation to land that is the subject of a declaration provided under clause 5,—

(i)

all the criteria in clause 5(1) are met; and

(ii)

during the relevant period, the event in subclause (2) occurs; or

(b)

in relation to land that is the subject of a declaration provided under clause 6,—

(i)

all the criteria in clause 6(1) and (2) are met; and

(ii)

during the relevant period, the event in subclause (3) occurs.

Triggering events

(2)

In relation to a hectare of forest land to which a declaration made under clause 5 relates, the land is treated as having been deforested under section 179(1)(a) or (b) of the CCRA (applied as if section 179 had not been modified by clause 5).

(3)

In relation to land to which a declaration made under clause 6 relates, the land described in clause 6(1), together with the area 2 (approved) land with which the land is associated, fails to meet any P90 offset release criteria under section 181F(1) of the CCRA (on a P90 offset date determined as if section 181F had not been modified by clause 6).

EPA must take reasonable steps to reverse outcome

(4)

The EPA must, for the purpose in subclause (7), take all reasonable steps to do either or both of the following (as may be appropriate in the circumstances):

(a)

restore the status of the land that is the subject of the relevant declaration as near as possible to the status it would have had if the relevant event in subclause (2) or (3) had not occurred:

(b)

restore a person described in subclause (8) as near as possible to the position they would have been in had the relevant event in subclause (2) or (3) not occurred.

(5)

However, the EPA may act under subclause (4) only in relation to—

(a)

the status of land as it relates to the emissions trading scheme under the CCRA; and

(b)

a person’s position with respect to the emissions trading scheme under the CCRA (for example, the EPA is not empowered to address adverse financial effects on a person that may be a secondary or an indirect result of their involvement with the emissions trading scheme).

(6)

The actions that the EPA may take include 1 or more of the following, along with any related actions:

(a)

treating any deforestation as if it had not occurred:

(b)

treating any notice, application, or emissions return given or made under the CCRA as if it had not been given or made (for example, a notice, application, or emissions return under any of sections 56, 59, 181G, 182F, and 186B of the CCRA):

(c)

treating the effects of any notice, application, or emissions return given or made under the CCRA as if the effects had not occurred (for example, treating any unit balance surrender as if it had not occurred and reimbursing any amount accordingly).

(7)

The purpose is to enable a person described in subclause (8) to benefit from the deferral of dates under clauses 5 and 6.

(8)

The persons in relation to whom the EPA may take an action under this clause are either or both of the following:

(a)

a person who, at the time the EPA takes the action, is a relevant person for the purposes of the clause under which the declaration is provided:

(b)

a person who,—

(i)

at the time of the event described in subclause (2) or (3), was a relevant person for the purposes of the clause under which the declaration is provided; and

(ii)

has provided written consent for the EPA to act in relation to them under this clause.

8 Statutory declarations

(1)

A declaration given to the EPA under clause 5(1)(e) or 6(2)(c) must be provided—

(a)

in the form prescribed by the EPA; and

(b)

in the same manner as if it were a notice provided under section 148 of the CCRA; and

(c)

no later than the dates set out in this clause (unless subclause (4)(b) applies).

(2)

A declaration under clause 5(1)(e) must be provided,—

(a)

in relation to land to which clause 5(1)(c)(i) applies, no later than—

(i)

the date that is 7 years after the forest species on the land were cleared; or

(ii)

if an emissions return relating to the land is submitted to the EPA before that date (and after the date that is 4 years after the forest species on the land were cleared), the date on which the return is submitted (or the date on which the first such return is submitted, if there is more than 1); and

(b)

in relation to land to which clause 5(1)(c)(ii) applies, no later than—

(i)

the date that is 13 years after the forest species on the land were cleared; or

(ii)

if an emissions return relating to the land is submitted to the EPA before that date (and after the date that is 10 years after the forest species on the land were cleared), the date on which the return is submitted (or the date on which the first such return is submitted, if there is more than 1).

(3)

A declaration provided under clause 6(2)(c) must be provided no later than—

(a)

7 years after the baseline date for the area 1 (approved) land; or

(b)

if a P90 release criteria notice is given before that date, the date on which the notice is given.

(4)

The EPA may do either or both of the following:

(a)

require that supporting information be provided with or in addition to a declaration (for example, information about the spatial extent of the area of the land that is the subject of the declaration):

(b)

accept a declaration provided later than the dates specified in this clause if the EPA considers it appropriate to do so in the circumstances.

(5)

Subclauses (2)(a)(ii) and (b)(ii) and (3)(b) do not apply in relation to an emissions return or a P90 release criteria notice that was submitted or given in the period commencing 1 April 2023 and ending on the date on which this order was made.

Rachel Hayward,
Clerk of the Executive Council.

Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order is made under section 7 of the Severe Weather Emergency Recovery Legislation Act 2023 (the SWERLA) and its effect is temporary. It is treated as having come into force on 1 April 2023 and is revoked on the close of 1 January 2028.

The order has 2 main effects. The first is to defer certain dates under the Climate Change Response Act 2002 (the CCRA) to allow foresters more time to establish, or re-establish, forest species on their land, where efforts to do so have been affected by the severe weather events (which are defined in the SWERLA).

The second is to give the Environmental Protection Authority (the EPA) the ability, if it should prove necessary, to take a range of actions that will enable foresters who meet the criteria to benefit from the additional time.

Deferral of dates

The provisions in the order about deferral of dates relate to sections 179 and 181F of the CCRA.

Section 179 of the CCRA provides that forest land must be treated as deforested if certain thresholds relating to the re-establishment of forest species on the land are not met at specified points in time after the land is cleared. If land is treated as deforested, it can lead to significant costs for the forester, because they will have to surrender units to pay for the emissions costs that result from the deforestation. The relevant thresholds must be met at 4 years, 10 years, and 20 years after the land is cleared.

If forest land will be due to meet the 4-year or 10-year threshold during the period starting on 1 April 2023 and ending on 31 December 2024 (the relevant period), and if the land meets the other criteria, then the effect of the order is to defer by 3 years the dates by which the thresholds in section 179 would otherwise have to be met. For example, for forest land that is due to meet the 4-year threshold on 1 November 2023 (and that meets the other criteria), the order defers the date until 1 November 2026.

The main criteria are that—

the land must be in a directly affected area; and
the land must have been cleared before the earliest of the severe weather events occurred; and
the land must have been significantly affected by 1 or more of the severe weather events, so that efforts to re-establish forest species have been materially disrupted or prevented; and
the forester must have given a statutory declaration confirming certain matters to the EPA.

The order does not have the effect of deferring any dates that fall outside the relevant period. For example, land that may qualify for a deferral of the date for the 4-year threshold will still need to meet the 10-year threshold on the usual date. Accordingly, foresters who take advantage of the deferral will have less than the usual gap between either their first and second deadlines, or their second and third deadlines (depending on whether the 4-year or 10-year date is deferred).

The order also does not apply any deferral to land that may be due to meet the 20-year threshold in the relevant period.

Section 181F of the CCRA relates to the concept of offsetting. Broadly, a forester can avoid emissions liability for deforesting pre-1990 forest land if they establish forest in another location that meets a range of criteria. The forest in the other location has to be established to a certain level within 4 years of the clearing of the pre-1990 forest land. The 4-year deadline is called the P90 offset date.

Foresters who have been seeking to establish forest species on that category of land in the affected areas are likely to be facing the same issues in relation to the effects of the severe weather events as foresters who are working towards meeting thresholds under section 179. Accordingly, the order applies equivalent criteria to extend the P90 offset date for that category of land by 3 years.

Requirement for EPA to reverse outcomes

Some foresters may already have become liable due to the effects of section 179 or 181F of the CCRA, or may become so before they have had an opportunity to take advantage of the effects of this order. Accordingly, the order also requires the EPA (if the relevant criteria are met) to take all reasonable steps to—

restore the status of land as near as possible to the status it would have had if the relevant events leading to the forester’s obligations and liability under those sections had not occurred; and
restore a person as near as possible to the position they would have been in if the relevant events leading to their obligations and liability under those sections had not occurred.

The powers conferred on the EPA in that regard are additional to those that the EPA has under the CCRA. Examples of the actions that the EPA may take in exercising those powers include the following:

treating any deforestation as if it had not occurred:
treating any notice or application made under the Act as if it had not been made:
treating any unit balance surrender as if it had not occurred (including reimbursing any amounts accordingly).

However, the EPA may act only for the purpose of enabling a forester to benefit from the deferral of dates at which the order is directed.

Statement of reasons

This statement of the Minister’s reasons for recommending the making of this order is published in accordance with section 10 of the Severe Weather Emergency Recovery Legislation Act 2023 (the SWERLA).

The Minister of Climate Change (the relevant Minister) is satisfied that the order—

is necessary or desirable for 1 or more purposes of the SWERLA; and
is no broader than is reasonably necessary to address the matters that gave rise to the order; and
does not breach section 11 of the SWERLA; and
does not limit the rights and freedoms in the New Zealand Bill of Rights Act 1990.

Order is necessary or desirable for 1 or more purposes of SWERLA and is appropriate

The relevant Minister is satisfied, for the following reasons, that the order is—

necessary or desirable for 1 or more purposes of the SWERLA; and
appropriate.

The order addresses the issue that, if forest species are not re-established within the time frames set out in the Climate Change Response Act 2002 (the CCRA) or a P90 offset forest is not established by the relevant P90 offset date, the forester is liable to surrender New Zealand units for the deforested area. The number of units per hectare of deforestation depends on the species, location, and age of the forest. However, based on recent prices, this could cost around $60,000 per hectare.

The order is designed to meet the purpose of the SWERLA as outlined in section 3(2)(b) by enabling legislation to operate more flexibly to take account of the severe weather events. A flexible approach is preferred, because the severe weather caused significant damage and disruption to the forest land within the affected regions, as well as to the infrastructure needed to support establishment of forest species. It also affected access to land and caused disruption throughout the forestry sector (for example, because of damage to nurseries).

By creating this flexibility, the order also contributes to other purposes of the SWERLA. For example, by relieving foresters of their immediate surrender obligations, the order—

facilitates the restoration and improvement of the economic well-being of affected persons (section 3(1)(a)(v)); and
provides for economic recovery (section 3(1)(b)).

CCRA does not provide options to address challenges at which order is directed

Consideration was given to using existing mechanisms under the CCRA to mitigate the effects of the severe weather on foresters’ ability to establish or re-establish forest species. However, those options would not achieve the outcomes sought. For example,—

consideration was given to using the exemption powers in section 60 or 60A of the CCRA to provide relief to foresters from the costs of deforestation. However, those provisions are not appropriate because they can only exempt landowners or participants from the liability for deforestation, rather than provide more time to re-establish the forest. Orders made under section 60 or 60A also will not be able to be made in a timely manner, so, even if the deforestation decisions were able to be reversed sometime in the future, the cost of unit surrenders would have already been incurred by the participants or landowners:
the existing CCRA provisions for temporary adverse events (TAE) also do not cover this situation. That is because the TAE provisions only apply to post-1989 forest land and must meet criteria before application (see section 193B). One of the criteria is that the land must be affected land. Affected land is defined in section 193A(1) and includes the requirement that “the event results in each hectare of land ceasing to have forest species on it that have, or are likely to have, tree crown cover of more than 30%”. The land this order is directed at would not meet that criterion because it would have already been cleared before the relevant event took place:
the CCRA also contains provisions that apply to land where a natural event permanently prevents the re-establishment of forest on the land, for example, a landslide removes the soil down to bed-rock. Those provisions will not address cases where it is still possible to re-establish forest on the land, but the natural events have disrupted the ability to achieve this within a specific time frame (as is the case with the relevant severe weather events).

Changes to the CCRA using the normal parliamentary process were also considered, but this also was determined not to be an appropriate mechanism for the challenges faced by foresters because the changes needed could not be delivered in a timely manner.

Order not broader than reasonably necessary

The Minister is satisfied that the order is not broader than is reasonably necessary for the following reasons:

the order limits the application of the extended time frame to those people whose ability to re-establish forest species on their land has been disrupted by the severe weather. This is achieved through definitions in clause 4 that detail the areas where the impacted forest land must be located (definition of directly affected area), the timing of when the unmodified tests under the CCRA would apply (definition of relevant period), and the relevant impacts of the severe weather on foresters’ ability to establish or re-establish forest species on the land (definition of significantly affected). Those definitions are applied in the operative clauses to determine whether land should have the extension applied to it:
the relevant period is defined to accommodate the planting seasons in 2023 and 2024, as these are the ones most likely to have been disrupted by the severe weather events. When a forest is being established or re-established there is typically a 2-to-3-year process, with land preparation and exotic seedlings being ordered in year 1, an initial planting of seedlings in year 2, and then infill planting (where seedlings have died) in year 3. With the damage to land and nurseries, it is probable that many areas have been reset to year zero in the forest establishment timeline:
the statutory declaration (referred to in clause 8 and required by clauses 5(1)(e) and 6(2)(c)) is intended to act as a means to ensure that the application of the order is limited to only those who have been affected. If a person makes a false declaration about the impact of the severe weather events on their ability to establish or re-establish forest, they will be subject to penalties for providing a false declaration. The land will also be treated as deforested (or the relevant P90 offset criteria will be treated as not having been met) so the unit surrender liabilities will become due.

Other preconditions satisfied

The following preconditions for recommending the making of an order have also been satisfied:

the draft order has been reviewed by the Severe Weather Events Recovery Review Panel:
the draft order has been provided to the Regulations Review Committee:
the relevant Minister has had regard to the recommendations and comments provided by those bodies, and the order and this statement of reasons have been amended to address those recommendations and comments:
the engagement process under section 9 of the SWERLA has been complied with.

Issued under the authority of the Legislation Act 2019.

Date of notification in Gazette: 7 September 2023.

This order is administered by the Ministry for the Environment.