B24-0682
2. Consistent with other emergency legislation2, the SWERL Act created the ability to
issue Orders in Council to modify other legislation to achieve the purposes of the
SWERL Act. Emergency legislation is created to give the ability to override primary
legislation through secondary legislation, they are created in response to specific
‘events’; are limited to reacting to those events; and have defined end dates. They
include checks, balances, and safeguards on their use, tailored to the specific event.
3. Two orders temporarily modifying the Climate Change Response Act 2002 (CCRA)
were made:
a) the first order3 extended the deadlines by which Emissions Trading Scheme
(ETS) participants must submit notices and emissions returns, and extended the
deadlines by which ETS participants must meet unit surrender obligations; and
b) the second order4 extended the time for people to establish or re-establish forest
species on their land, where the efforts to do so have been significantly affected
by the 2023 severe weather events and, as a result, efforts have been materially
disrupted or prevented.
The SWERL Act requires that the orders must be kept under review to ensure they are stil
needed to meet the purposes of the SWERL Act.
4. The SWERL Act establishes that the Minister responsible for the legislation being
modified is the
relevant Minister. The relevant Minister recommends the Order in
Council, and also has responsibility to keep under review all orders they have
recommended (section 12 of the SWERL Act).
5. As the legislation being modified is the CCRA, the relevant Minister is the Minister of
Climate Change. The Minister of Forestry has an interest in this issue as the forestry
sector is directly affected by the Orders and the Ministry for Primary Industries is
responsible for administering the ETS for forestry.
6. The SWERL Act sets out a statutory test that the relevant Minister must follow for any
order being made (Section 8(1)). This test must also be met for review of orders
(Section 12 of the SWERL Act). The relevant Minister must
a) not recommend an order unless they:
i.
are satisfied that the order is necessary or desirable for one or more
purposes of the SWERL Act; and
i.
are satisfied that the extent of the order is not broader (including
geographically broader in application) than is reasonably necessary to
address the matters that gave rise to the order; and
ii.
have regard to the Severe Weather Events Recovery Review Panel’s5
recommendations and any comment on the order from the Regulations
Review Committee.
2 For example the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016 and Canterbury Earthquake
Recovery Act 2011.
3 Severe Weather Emergency Recovery (Climate Change – Forestry) Order 2023.
4 Severe Weather Emergency Recovery (Climate Change – Forestry) Order (No 2) 2023.
5 A specially created panel under the SWERL Act.
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7. Both orders meet the purpose of the SWERL Act by supporting the operation of other
legislation (the CCRA) or enabling it to operate more flexibly, to take account of the
severe weather events (see section 3(2)(b) of the SWERL Act). By creating this
flexibility the orders also contribute to other purposes in the SWERL Act, for example
the second order ‘facilitates the restoration and improvement of the economic well-
being of affected persons’ (section 3(1)(a)(v)). It does this by relieving affected
foresters from the immediate, and significant, unit surrender obligations of the land
being deemed deforested in 2023 or 2024.
8. The orders are reviewed by the relevant Minister who must be satisfied that the orders
are still needed to meet the purposes of the SWERL Act and are no broader than
necessary. If they are not satisfied of this, they can make the decision to revoke the
order.
Severe Weather Emergency Recovery (Climate Change – Forestry) Order 2023 (order
one)
9. Order one provided extensions to unit surrender deadlines and emissions returns to
allow forestry participants impacted by the 2023 severe weather events more time to
meet their obligations, while stil maintaining the integrity of the ETS.
Order one extended the deadlines for emissions returns due in 2023
10. In 2023, all post-1989 forestry participants needed to submit final emissions returns for
the 2018-2022 mandatory emissions return period by 30 June 2023. The order
extended this deadline until 20 November 2023 and automatically applied to
participants with forest land in, or who lived in, the areas impacted by the 2023 severe
weather events (directly affected areas)6.
11. Te Uru Rākau - New Zealand Forest Service received approximately 770 emissions
returns during the extension period, out of approximately 3,900 emissions returns.
Order one is no longer needed, but is revoked on 31 December 2024
12. Order one is revoked on the close of 31 December 2024. This date was set to provide
a buffer to manage possible ‘edge cases’ of the use of the order.
13. Al participants who could use Order one have done so, and this order is no longer
needed to meet the purposes of the SWERL Act. However, we recommend that no
action is taken and order one is left to expire as planned at the end of 2024.
6 Directly affected area means any area in one or more districts of the territorial authorities specified in section
4(1) of the SWERL Act.
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Severe Weather Emergency Recovery (Climate Change – Forestry) Order (No 2) 2023
(order two)
Order two is still needed to provide relief from the effects of the 2023 severe weather.
14. Order two has two main effects:
a) al ow those whose land may be deemed deforested in 2023 or 2024 up to three
years more time to establish or re-establish forest species on their land, where
efforts to do so have been affected by the 2023 severe weather events; and
b) to give the Environmental Protection Authority7 the ability to take a range of
actions8 that wil enable foresters who meet the criteria to benefit from the
additional time (to allow the implementation of the first effect).
The CCRA deems deforestation to occur at set timeframes, order two allows more time to
achieve these thresholds
15. If a forest is registered or cleared, it must meet stocking and forest growth thresholds
at four years, ten years, and 20 years after clearing. If a forest fails to meet these
stocking and forest growth thresholds the CCRA deems the land deforested, and the
participant is subject to significant deforestation liabilities9.
16. If the forester fails to surrender units, they also face penalties. While the CCRA allows
some scope to reduce penalties for failing to surrender units for small forestry
participants10, all other forestry participants are subject to a penalty of three times the
value of the units they fail to surrender11. There is no scope to reduce this penalty.
17. Order two provides flexibility for participants whose land has been impacted by the
2023 severe weather events, to spread the cost of re-establishing forest over a few
years, and ensures they aren’t subject to penalties that could be considered unduly
harsh given the circumstances.
18. To be eligible for the three-year extension to the threshold tests at four years or
ten years after clearing12, the participants land must be located within a directly
affected area, efforts to establish or re-establish forest land must have been
significantly affected by the 2023 severe weather events and the deforestation date
must fall between 1 April 2023 and 31 December 2024.
7 Certain functions and powers exercisable by the Environmental Protection Authority under Order two have
been delegated to the Ministry of Primary Industries.
8 For example, cancel an ‘in-processing’ emissions return on affected land so there are no surrender liabilities.
9 Section 179 of the CCRA
10 In section 134AA of the CCRA, small forestry participants are participants with annual average unit
obligations of less than 25,000 units this is equivalent to around 40 ha of pre-1990 forest land.
11 Section 134 of the CCRA
12 The risk of someone being subject to the 20-year test in 2023 or 2024 was deemed very low, and an
extension of three years would not have enabled them to meet this.
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Recommendations
26. It is recommended that you:
a)
Note that the Severe Weather Emergency Recovery Legislation Act 2023
requires the
relevant Minister to keep Orders in Council which affect the
legislation they are responsible for under review;
NOTED
NOTED
Hon Simon Watts
Hon Todd McClay
Minister of Climate Change
Minister of Forestry
b)
Note there are two Orders in Council which temporarily modify the Climate
Change Response Act 2002 (CCRA), meaning the Minister of Climate Change
is the relevant Minister for these orders.
NOTED
NOTED
Hon Simon Watts
Hon Todd McClay
Minister of Climate Change
Minister of Forestry
d)
Agree to take no action to revoke the Severe Weather Emergency Recovery
(Climate Change – Forestry) Order 2023, which expires on 31 December 2024.
YES / NO
Hon Simon Watts
Minister of Climate Change
e)
Note that the Severe Weather Emergency Recovery (Climate Change –
Forestry) Order (No 2) 2023 is still in use, and revoking would undermine the
purpose of the SWERL Act;
NOTED
NOTED
Hon Simon Watts
Hon Todd McClay
Minister of Climate Change
Minister of Forestry
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f)
Agree to continue, and not revoke, the Severe Weather Emergency Recovery
(Climate Change – Forestry) Order (No 2) 2023.
YES / NO
Hon Simon Watts
Minister of Climate Change
Simon Mandal-Johnson
Hon Simon Watts
Manager ETS Policy
Minister of Climate Change
Ministry for the Environment
/ / 2024
Sam Keenan
Hon Todd McClay
Deputy Director-General
Minister of Forestry
Te Uru Rākau – New Zealand Forest Service
/ / 2024
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