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Forestry (Amendment) Act 1997

Commencement: 7 October 1997

REPUBLIC OF VANUATU

FORESTRY (AMENDMENT) ACT
NO. 11 OF 1997

Arrangement of Sections

1. Amendment of section 1 of Chapter 147.
2. Amendment of section 11.
3. Insertion of new section 11A of the Act.
4. Insertion of new section 12A.
5. Insertion of new section 14A.
6. Amendment of section 17.
7. Insertion of new section 17A.
8. Amendment of section 18.
9. Insertion of new section 19A.
10. Insertion of new section 21A.
11. Amendment of section 27.
12. Amendment of section 28.
13. Insertion of new section 28A.
14. Amendment of section 32.
15. Amendment of section 33A.
16. Insertion of new section 33B.
17. Amendment of section 34.
18. Commencement.

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Assent: 12/09/97
Commencement: 07/10/97

FORESTRY (AMENDMENT) ACT
NO. 11 OF 1997

An Act to amend the Forestry Act [CAP. 147].

BE IT ENACTED by the President and Parliament as follows: -

AMENDMENT OF SECTION 1 OF CHAPTER 147

1. The Forestry Act [CAP. 147] in this Act referred to as the "principal Act" is amended in section 1:-

(a) by inserting after the definition of "clearing operations" the following new definition:-

""Department" means the Department of Forests of the Government of the Republic of Vanuatu";

(b) by inserting after the definition of "Minister" the following new definition:-

""mobile sawmill" means any type of "sawmill or any timber producing machine that is designed to be set up and moved from one location to another and includes all portable or "walkabout" type sawmills and any chain saw minimills";

(c) by inserting after the definition of "rural land" the following new definition:-

""sandalwood operation" means the purchasing or trading of sandalwood and the processing and exporting of sandalwood or sandalwood oil or any sandalwood product";

(d) by deleting the definition of "utilization operations" and substituting the following definition:

"utilisation operations" means any activity carried out for the purpose of or in association with the sale or processing of timber including tree felling and log preparation, construction of skid tracks and log landings, skidding, log scaling, loading and hauling of logs, mobile sawmilling, surveying, construct and grading of any road or track, construction of any watercourse crossing and extraction and spreading of any gravel coral or rock onto any road or tract;"

(e) by inserting after the definition of "utilisation operation" the following new definition:-

""utilisation operations agreement" means an agreement referred to in section 11(1) of this Act."

(f) In the definition of "wood using plant" by inserting after the words "wood using plant means a" the words "sawmill, mobile sawmill,".

AMENDMENT OF SECTION 11

2. (1) Section 11 of the principal Act is amended in subsection (1):-

(a) in the first line by inserting words "Any person", the words " who holds a timber licence or"

(b) in the second line by inserting after the words "to be carried out", the words "and who does not hold a valid permit to cut trees";

(c) in lines two and three by deleting the words "such application", and substituting therefore the words "the commencement of any utilisation operation".

(2) The following new subsection is inserted immediately after subsection (2):-

"(2A) Any person who is not the owner of the land on which utilization operations are to be carried out and who carries out utilization operations on such land without an approved utilisation operations agreement or a valid permit to cut trees commits an offence and is liable upon conviction to a fine not exceeding VT 500,000."

(3) The following new subsection is inserted immediately after subsection (2A):-

"(2B) Where in the opinion of the Minister a person has committed an offence against subsection (2A) the Minister may impose a penalty of not more than VT 200, 000 if more than 10 trees have been cut, and not mare than VT 50, 000 if 10 or less trees have been cut, on the offender".

(4) After subsection (3) there shall be added the following new subsection:-

"(6) If it appears to the Minister either before or after he has given his approval under subsection (2) of this section that the utilisation operations agreement does not adequately protect the interest of the land owners or that there is any error in the utilisation operations agreement he may, after taking such steps as he thinks fit to bring to the notice of any person likely to have an interest in the land or agreement his intention so to do and giving every such person an opportunity to be heard, require the Director to reconsider any fresh claims by land owners or the licensee and or correct the error:

Provided that the Minister may without such notice require the Director to correct the utilisation operations agreement whenever such correction is agreed in writing by all parties to the agreement.

(7) The Minister may with the writtent consent of the parties to a utilisation operations agreement extend the duration of the agreement for up to one year beyond the original period of the agreement without the need to renegotiate or reapprove the agreement.

(8) Upon the expiry of a utilisation operations agreement the holder of the timber licence may request the authorised representatives of the owners of the land to renegotiate and sign the agreement for a further period of up to 10 years and provided that the holder of the timber licence has met the conditions of the previous agreement the land owners shall not unreasonably refuse to renew the agreement.

(9) The authorised representatives of the land owners being themselves the signatories to the utilisation operations agreement and or the holder of the timber licence may request the Minister in writing to cancel a utilisation operations agreement provided they can establish that the conditions of the agreement have been seriously breached by the other party or parties.

(10) On receiving a written request to cancel any utilisation operations agreement, the Minister may require the Director to carry out a proper investigation into any alleged violations of the utilisation operations agreement contained in the request.

(11) On completion of his investigation the Director shall submit a report on his findings to the Minister and the Minister after considering the report may cancel a utilisation operations agreement.

(12) If the Minister consents to the transfer of a timber licence from one person to another any valid utilisation operations agreements held under the timber licence shall also be transferred to the new holder of the timber licence unless all parties to a particular utilisation operations agreement agree in writing not to transfer the utilisation operations concerned."

INSERTION OF NEW SECTION 11A OF THE ACT

3. After section 11 of the principal Act insert the following new section:-

''PERMIT TO CUT TREES

11A. (1) A forest officer authorised in that behalf by the Director may with the consent or the owner of the land issue a permit to the holder of a valid timber Licence to cut trees on land which is net currently subject to a utilisation operations agreement.

(2) Such a permit shall be in the prescribed form and shall authorise the felling of up to 10 trees or up to 100 trees and shall include any special conditions that the forest officer considers necessary to protect the environment or to comply with the Land owners request."

INSERTION OF NEW SECTION 12A

4. After section 12 of the principal Act, insert the following new section:-

"MEMORANDUM OF AGREEMENTS

12A. (1) Any person who has entered into a utilisation operations agreement in accordance with section 11 (1), and who also holds or intends to hold a timber licence in accordance with section 12 of this Act, shall enter into a memorandum of agreement with the Minister.

(2) The memorandum of agreement shall specify the obligations of the licence holder and those of the government relating to the utilisation operations which may include the following where appropriate:

(a) timber licence details;

(b) processing facility requirements;

(c) road construction and maintenance requirements;

(d) infrastructure development requirements;

(e) employment conditions and requirements;

(f) minimum royalty requirements;

(g) payment of import and export duties requirements;

(h) environmental control and management requirements;

(i) reforestation requirements; and

(j) dispute resolution procedure requirements.

(3) a memorandum of agreement shall be valid for a period of not less than 5 years.

(4) Any person who fails to enter into a memorandum of agreement commits an offence."

INSERTION OF NEW SECTION 14A

5. After section 14 of the principal Act insert the following new section:-

"MOBILE SAWMILLING OPERATIONS

14A. (1) The Minister shall by order provide for the owners of all mobile sawmills to register their mobile sawmills with the Department.

(2) An application for a mobile timber licence shall be in the prescribed form

(3) The Minister may by order ban or restrict the import and or sale of mobile sawmills in Vanuatu or impose any conditions that he considers proper in order to control the number of mobile sawmills operating in Vanuatu.

(4) The Minister may require the Director to limit the number of mobile sawmill timber licences issued to operate in any part of Vanuatu in accordance with the principles of sustainable forest management.

(5) No person may operate a mobile sawmill that is used to produce timber that is intended to be sold or otherwise traded without first obtaining a mobile sawmill timber licence.

(6) Where in the opinion of the Minister a person has committed an offence against subsection (5), the Minister may impose a penalty of VT 20,000 on the offender where a chain saw minimill has been use, and VT 100,000 where a larger mobile sawmill has been used.

(7 ) The Director may grant or renew a mobile sawmill timber licence to any person for a period of up to years subject to a deposit of a bankers guarantee with the Department and the payment of any fees and charges that the Director may determine.

(8) The mobile sawmill timber licence shall be subject to such general conditions as may be prescribed and to such special conditions as the Director may determine.

(9) The Director may suspend or cancel a mobile sawmill timber licence for any breath of the conditions of the licence or non payment of the required fees and or charges."

AMENDMENT OF SECTION 17

6. (1) Section 17 of the principal Act is amended by renumbering the existing provision as subsection "(1)".

(2) After the existing provision, insert the following new subsection (2):-

"(2) Notwithstanding subsection (1), the Minister may cancel a timber licence where the holder of the timber licence commits a fundamental or serious breach of any Memorandum of Agreement with the government."

INSERTION OF NEW SECTION 17A

7. After section 17 of the principal Act insert the following new section:-

"SUSPENSION OF UTILISATION OPERATIONS

17A. The Director may suspend utilisation operations in any area when he is satisfied that there is a serious dispute over Land ownership or where the licensee fails to comply with the requirements imposed by the Director including the provisions of the Code of Logging Practice."

AMENDMENT OF SECTION 18

8. Section 18 of the principal Act is amended in subsection (1) by deleting "VT 10,000" and substituting "VT 100,000".

INSERTION OF NEW SECTION 19A

9. After section 19 of the principal Act insert the following new section: -

"POWER OF MINISTER TO SPECIFY MINIMUM LOG ROYALTIES

19A. (1) The Minister may, from time to time, by order determine minimum log royalties to be paid far different species or grades of logs in different parts of Vanuatu.

(2) Whenever the Minister determines new minimum royalties those rates so determined shall be paid for all logs harvested unless all the parties who have signed a utilisation operations agreement agree in writing to maintain the royalties at the previous rate."

INSERTION OF NEW SECTION 21A

10. After section 21 of the principal Act insert the following new section:-

"CODE OF LOGGING PRACTICE

21A. (1) The Minister may require the Director to prepare Code of Logging Practice which shall apply to all licensed utilisation operations in Vanuatu.

(2) The Director shall during the preparation of the Code of Logging Practice consult with any relevant persons or bodies who may be affected by the Code of Logging Practice.

(3) The Code of Logging Practice may relate but shall not be limited to any of the following matters:-

(a) the protection of the environment and promotion of forest development consistent with the principles of sustainable development;

(b) the planning of utilisation operations;

(c) the processes involved in harvesting timber or the construction of roads and other works in association with the harvesting of timber;

(d) the protection of non-timber forest values;

(e) the selection of silvicutural regimes;

(f) the measurement and ownership of logs;

(g) the supervision of utilisation operations;

(h) the health and safety of forest workers;

(i) the training of forest workers.

(4) The Minister may by regulations prescribe the Code of Logging Practice.

(5) The Minister may approve amendments to the Code of Logging Practice following recommendations from the Director and consultation with any relevant persons or bodies who may be affected by the amendments.

(6) Any holder of a timber licence who fails to comply with the provisions of the Code of Logging Practice in any utilisation operation commits an offence.

(7) Any person who is convicted of an offence against subsection (6) shall be liable upon convictions to a penalty of not more than VT 500, 000 for a first offence, not more than VT 750,000 for a second offence and not more than VT 1,000,000 and cancellation of the timber licence for a third offence."

AMENDMENT OF SECTION 27

11. Section 27 of the principal Act is amended:

(a) in subsection (2)(a) by deleting the words "the Minister" and substituting the words "the Director or Minister;"

(b) in subsection (2)(a)(ii) by deleting the word "and";

(c) by adding the following new paragraphs after paragraph (iii):-

"(iv) as fees for timber licences, permits or utilisation operations agreement or registration of wood using plants or mobile sawmills; and

(v) as sandalwood management charge or sandalwood licence fee or other sandalwood fees and charges."

(d) in subsection (3):-

(i) in paragraph (a) by deleting the word "and" appearing at the end of that paragraph;

(ii) in paragraph (b) by deleting the full stop at the end of that paragraph, and substituting; a semi colon;

(iii) by adding the following new paragraphs after paragraph (b):-

"(c) the administration of timber licences, the control of utilisation, operations, and the collection and monitoring of information on forest resources and their utilisation;"

(d) the conduct of forest research, forest extension and forest conservation programs;

(e) the control and monitoring of sandalwood operations;

(f) the training of forest officers and forest workers;

(g) for any capital assets required to carry out forest programs; and

(h) for any payment associated with international cooperation in forestry.";

(e) by adding after subsection (3) the following new subsection:-

"(4) The Minister upon receiving written advice from the Director may make payments from the Forestry Fund to a local government council or any community group for any services provided by the council or the community group in relation to the activities governed by this Act, or in partial recognition of the natural resources utilised from within the local government council region, or for the implementation of any other development works associated with forestry."

AMENDMENT OF SECTION 28

12. Section 28 of the principal Act is amended:-

(a) in subsection (2):-

(i) by deleting the word "such" in the first line thereof and substituting the words "determined by the Minister and may either be a";

(ii) by deleting the words "utilized as may be prescribed" in the second line thereof and substituting the words "utilized or a fixed amount based on the volume allowable under the timber licence".

(b) by adding after subsection (3) the following subsection:-

"(4) The Minister may require the Director to grant a refund of part or the whole of reforestation charges paid by a timber licensee in a given year upon receiving evidence that areas subject to utilisation operations have been adequately reforested or that the licensee has established and maintained the required level of plantations of commercial timber species during that year."

INSERTION OF NEW SECTION 28A

13. After section 28 of the principal Act insert the following new section:-

"SANDALWOOD MANAGEMENT CHARGE

28A. (1) There shall be a sandalwood management charge payable on all sandalwood cut during the course of sandalwood operations.

(2) The sandalwood management charge as provided for in subsection (1) shall either be a percentage of the purchase price of the sandalwood or a fixed amount per kilogram as prescribed by the Minister."

AMENDMENT OF SECTION 32

14. Section 32 of the principal Act is amended:-

(a) by deleting "VT 100,000" and substituting "VT 1,000,000"; and

(b) by deleting the figure and word "6 months" and substituting the figure and word "3 years."

INSERTION OF NEW SECTION 33A

15. Section 33A of the principal Act as amended shall, further be amended in subsection (2) by inserting immediately after the words "from the species cocos nucifera," the words "except with the approval of the Council of Minister in special cases such as the absence of any local market, a demonstrated higher return to landowners and or the government, or the inability to process a particular species in Vanuatu, up to 20 percent of the licensed volume may be exported as logs or flitches in a year."

INSERTION OF NEW SECTION 33B

16. After section 33A insert the following new section:-

"SANDALWOOD OPERATIONS

33B. (1) No person may carry out sandalwood operations without first obtaining a sandalwood licence.

(2) The Minister may grant or renew a sandalwood licence to any person for a period of up to 10 years subject to the deposit of a bankers guarantee with the Director and the payment of a sandalwood management charge and any other fees and charges that the Minister may prescribe.

(3) The sandalwood licence shall be subject to such general conditions as may be prescribed and to such special conditions as the Minister may impose in respect of that licence.

(4) The Minister may suspend or cancel a sandalwood licence for any breach of licence conditions or non payment of the required fees and charges.

(5) The Minister may after considering advice from the Director declare by notice a sandalwood season by specifying the period during which sandalwood can be cut and traded.

(6) The Minister shall specify by order the maximum quantity of sandalwood that can be harvested in any year consistent with the principle of sustainable forest management.

(7) The Director may call tenders for the right to purchase quantities of sandalwood from the whole or parts of Vanuatu.

(8) The Minister may by order establish minimum prices for various grades of sandalwood."

AMENDMENT OF SECTION 34

17. Section 34 of the principal Act is amended in subsection (2) paragraph (i) by deleting "VT 50,000" and substituting "VT 500,000."

COMMENCEMENT

18. This Act shall come into force on the date of it publication in the Gazette.

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