Final north east nsw rfa



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109The Commonwealth will:


109.1Not prevent enterprises obtaining, using or exporting the quantities of timber, Woodchips or Unprocessed Wood products sourced from the Upper North East and Lower North East regions in accordance with this Agreement;

109.2Maintain accreditation of New South Wales’ Forest Management System for the Upper North East and Lower North East regions as agreed to be amended in this Agreement as set out in clause 52 providing any changes to the system are consistent with the provisions of this Agreement.


Compensation

110The Parties agree that:


110.1If to protect the Environment and Heritage Values in native forests and in connection therewith the protection of:

  1. CAR Values; or

  2. National Estate Values; or

  3. World Heritage Values; or

  4. Wild Rivers

the Commonwealth takes any Action during the period of this Agreement which is inconsistent with any provision of this Agreement and a foreseeable and probable consequence of which is to prevent or substantially limit:

  1. the use of land which is not included within the CAR Reserve System for Forestry Operations which, immediately before the announcement of the proposed Commonwealth Action, are being undertaken or were intended to be undertaken at any time or the use of land which is not included within the CAR Reserve System or of land within that system but not within a Dedicated Reserve in which mineral exploration and mining is prohibited pursuant to a statutory licence, permit or authority permitting those Mining Operations or Extractive Operations which was in force immediately prior to the announcement of the proposed Commonwealth Action; or,

  2. the sale or commercial use of Forest Products sourced from land which is not included within the CAR Reserve System or the first sale or first commercial use of Mining Products or Extractive Materials sourced from land which is not included within the CAR Reserve System or land within that system but not within a Dedicated Reserve in which mineral exploration and mining is prohibited for a purpose for which, immediately prior to the announcement of the proposed Commonwealth Action, they had been intended to be sold or used commercially at any time; or,

  3. the construction on land which is not included within the CAR Reserve System of roads being built or intended to be built, immediately before the announcement of the proposed Commonwealth Action, where those roads’ primary purpose is for the transportation of Forest Products sourced from land which is not included within the CAR Reserve System,

the Commonwealth will pay compensation to the State in accordance with the remaining provisions of clauses 110.2 to 110.20.

110.2Subject to:



  1. clauses 110.3, 110.4, 110.5, 110.6, 110.8, 110.9, 110.10, 110.11 and 110.12 the compensation to be paid by the Commonwealth to the State in accordance with clause 110.1 in relation to the prevention by Commonwealth Action of the use of land for Forestry Operations or prevention by Commonwealth Action of the sale or commercial use of Forest Products is the amount of the reasonable loss or damage sustained by reason of that prevention, calculated as at the time at which the prevention referred to in clause 110.1 occurred, by any person in any of the following classes of person:

  1. the Owner of the land or of the Forest Products on the land;

  2. any person who, prior to the announcement of the proposed Commonwealth Action but not in anticipation of that Action, entered into a contract with the Owner of the land or of the Forest Products on the land or with any person mentioned in sub-paragraph (iii) below for the carrying out of Forestry Operations on the land; and

  3. any person who, prior to the announcement of the proposed Commonwealth Action but not in anticipation of that Action, entered into a contract with the Owner of the land or of the Forest Products on the land to purchase the Forest Products on the land.

  1. clauses 110.3, 110.4, 110.5, 110.6, 110.7, 110.8, 110.10, 110.11 and 110.12 the compensation to be paid by the Commonwealth to the State in accordance with clause 110.1 in relation to the prevention by Commonwealth Action of the use of land for Mining Operations or Extractive Operations or the first sale or first commercial use of Mining Products or Extractive Materials is the amount of the reasonable loss or damage sustained by reason of that prevention, calculated as at the time at which the prevention referred to in clause 110.1 occurred, by any person carrying on Mining Operations or Extractive Operations on the land pursuant to a statutory licence, permit or authority permitting those operations which was in force immediately prior to the announcement of the proposed Commonwealth Action.

  2. clauses 110.3, 110.6, 110.8, 110.9, 110.11and 110.12 the compensation to be paid by the Commonwealth to the State in accordance with clause 110.1 in relation to the prevention by Commonwealth Action of construction of a road is the amount of reasonable loss or damage sustained by reason of that prevention, calculated as at the time at which the prevention referred to in clause 110.1 occurred, by any person who, immediately before the announcement of the proposed Commonwealth Action, was contracted to construct that road.

110.3No amount of compensation is payable in the event of any loss or damage being sustained which would have been so sustained regardless of the Commonwealth Action. No compensation is payable hereunder in respect of any additional areas included pursuant to this Agreement in the CAR Reserve System.

110.4The State warrants that no claim will be made in respect of areas where Forestry Operations or Mining Operations or Extractive Operations would not have been permitted by this Agreement and that any claims will be certified by it as being or not being in respect of such areas and as having been assessed by the State in this regard.

110.5The State warrants that no claim will be made in respect of Forest Products or Mining Products or Extractive Materials which would not have been available for sale or commercial use under this Agreement and that any claims will be certified by it as being or not being in respect of such Products and as having been assessed by the State in this regard.

110.6The State undertakes to supply to the Commonwealth on request information, including as to areas protected by prescription, required by the Commonwealth for the purposes of considering claims under this clause.

110.7To the extent that clause 110.2(b) relates to loss or damage in respect of an exploration licence or assessment lease, that clause is to be read as providing for compensation to be payable only:


  1. in respect of the part of the area to which that licence or lease relates that is affected by the Commonwealth Action; and

  2. up to the loss in market value of that licence or lease resulting from the prevention of the Mining Operations or Extractive Operations.

110.8Any claim made by the State hereunder is to be notified in writing within six months after the loss or damage is sustained.

110.9For the purposes of clauses 110.1(e) and (g), the intention to conduct Forestry Operations, or the intention to construct roads is to be established on the basis of contracts, documentation of management history or other records establishing clear intent and in existence immediately prior to the announcement of the proposed Commonwealth Action.

110.10For the purposes of clause 110.1(f), the purpose for which there was an intention to sell or use commercially is to be established on the basis of contracts, documentation of management history or other records establishing clear intent and in existence immediately prior to the announcement of the proposed Commonwealth Action.

110.11No compensation is payable under clause 110.2 in relation to any loss or damage which the person who sustained the loss or damage might have avoided by taking reasonable steps in mitigation including by the making of alternative contractual arrangements which would have avoided or reduced that loss or damage.

110.12Clause 110.2 does not apply so as to entitle the State to recover compensation more than once in respect of the same loss or damage.

110.13The initial procedure in relation to a claim for compensation under this clause is as follows:



  1. a person who claims to have sustained loss or damage for which compensation is payable may lodge an initiating claim with the State;

  2. on receiving a claim, the State must make a corresponding claim for compensation to the Commonwealth;

  3. the State is to make the claim for compensation by a notice in writing to the Commonwealth which indicates the amount claimed, for whom the claim is made, the area to which it relates and gives detailed particulars of the basis for the claim, and of the manner in which it has been calculated;

  4. where there is a dispute concerning a claim for compensation, or on or before the expiry of 30 days after the receipt of the claim, the Commonwealth notifies the State that it does not accept the amount claimed, then either Party may serve a notice of dispute under clause 10;

  5. in the event that the amount of compensation payable in response to a claim has not been agreed in the dispute resolution process for which clauses 10 to 14 provide, or the Commonwealth fails to pay the agreed amount of compensation to the State within 60 days of agreement (for reasons other than lack of the necessary appropriation), the Parties hereby refer the claim to arbitration;

  6. an arbitration under this Agreement is to be conducted in accordance with the provisions of the Commercial Arbitration Act 1984 (NSW) which are, to the extent permitted by the Judiciary Act 1903 (C’wlth) and the Commonwealth constitution, incorporated by reference into this Agreement.

110.14The procedure in relation to any arbitration required by reason of the provisions of clause 110.13 is as follows:

  1. The Parties must meet to appoint an arbitrator within seven days of an unsuccessful mediation.

  2. If the Parties are unable to agree on the appointment of an arbitrator, either of them may refer the matter to the President of the Law Council of Australia, or equivalent officer of such body as in future may have the functions of the Law Council of Australia, with a request that that person appoint an arbitrator.

  3. At an arbitration under this clause:

  1. the Parties are entitled to representation by a legal practitioner qualified to practice in any State or Territory of Australia;

  1. the arbitrator may order the Parties to discover any relevant documents prior to the hearing;

  2. the arbitrator may order the Parties to exchange proofs of evidence of witnesses (whether expert or not) prior to the hearing;

  3. the arbitrator may, in accordance with the Commercial Arbitration Act 1984 (NSW), inform himself or herself, in relation to any matter in such manner as the arbitrator thinks fit; provided that if the arbitrator takes advice from any person who is not a Party to this Agreement as to the matters in issue, the arbitrator must provide the Parties with an opportunity to:

  1. make submissions on the matter in which the advice is to be taken;

  2. make submissions on the identity of the person from whom the advice is to be taken;

  3. make submission on the substance of any advice given before making any decision on the issue on which the advice is taken.

110.15Unless the Commonwealth appeals the decision of the arbitrator under the Commercial Arbitration Act 1984 (NSW), and subject to clause 110.18, the Commonwealth undertakes to pay the State the amount of any award made by an arbitrator under clause 110.14 as a debt due to the State, within 60 days of the award.

110.16Except where the State is the person who sustained the relevant loss or damage, any payment of compensation made by the Commonwealth to the State in accordance with this clause will be paid to and received by the State as trustee for the person who sustained the relevant loss or damage.

110.17Subject to clause 110.18(b), where the State receives monies as a trustee pursuant to clause 110.16, it will pay those monies to the person who sustained the relevant loss or damage within 30 days.

110.18(a) Where the Commonwealth has agreed to pay compensation to the State under this clause, or an award of compensation has been made under clause 110.14 as a result of arbitration, and the Commonwealth claims that events have since taken place which have the result that the compensation so agreed or awarded no longer reflects the actual loss or damage that has been or will be sustained, the Commonwealth may by notice in writing to the State, decline to pay that compensation.



  1. If a notice under paragraph (a) is delivered after the State has received the compensation so agreed or awarded, but before the State has paid it to the person who sustained the relevant loss or damage, the State will not pay the compensation to that person.

  2. If a notice under paragraph (a) is delivered, the Parties will attempt to agree the amount of the compensation which the Commonwealth should pay, and -

  1. in default of agreement, will first seek to resolve the dispute by dispute resolution under clauses 10 to 14; and

  2. in the event that the dispute is not so resolved, or the Commonwealth fails to pay the agreed amount of compensation to the State within 60 days of agreement (for reasons other than lack of the necessary appropriation), hereby refer the claim for compensation to arbitration in accordance with the Commercial Arbitration Act 1984 (NSW).

  1. Subject to paragraph (e) of this clause, where an arbitration takes place in accordance with sub-paragraph (c)(ii), clauses 110.14 and 110.15 of this Agreement apply to that arbitration and to any amount awarded in that arbitration.

  2. If, following the observance of paragraph (c) of this clause, it is determined by agreement or award that the Commonwealth should pay a reduced amount of compensation to the State, the State will within 30 days of that determination -

  1. repay to the Commonwealth the amount by which the compensation paid to it by the Commonwealth is reduced; and

  2. pay the balance of the compensation to the person who sustained the relevant loss or damage.

  1. If, following the observance of paragraph (c) of this clause, it is determined by agreement or award that the amount of compensation previously paid to the State is correct the State will within 30 days of that determination pay to the person who sustained the relevant loss or damage the amount of the compensation previously paid to it by the Commonwealth.

110.19Where the State:

  1. has received monies as a trustee pursuant to clause 110.16; and

  2. has made all reasonable endeavours to pay the monies to the person who sustained the relevant loss or damage; and

  3. but has been unable to do so within six months of receiving payment

the State shall repay to the Commonwealth at the expiry of that period the monies so received.

110.20In this clause



  1. “Action” means

  1. the commencement of legislation or subordinate legislation; and

  2. administrative action which is taken pursuant to legislation or subordinate legislation, or otherwise than in accordance with such legislation.

  1. “Owner” means

  1. in relation to land

  1. the owner of any estate or interest in that land, including the Crown in right of the State; and

  2. any statutory corporation which has the power to carry on Forestry Operations or Mining Operations or Extractive Operations, as the case may be, on the land for profit.

  1. in relation to Forest Products or Mining Products or Extractive Materials, as the case may be, the owner of any interest in those products.
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