Genetic Resources State of Western Australia

State of Western Australia

Conservation and Land Management Act

32. Department of Conservation and Land Management

For the purposes of this Act, there shall be established under the Public Service Act 1978 as a department of the Public Service of the State a department to be known as the Department of Conservation and Land Management.

33. Functions of Department

(1) The functions of the Department are, subject to the direction and control of the Minister --

(a) to manage land --

(i) to which this act applies; or

(ii) which becomes subject to the management of the Department under subsection (2), and the associated forest produce, fauna and flora;

(b) to provide the Commission, the Authority, the Council, the Marine Authority and the Marine Committee with such assistance as they may reasonably require to perform their functions;

(c) to promote and encourage the development of the forest production requirements of the State, and to undertake any project or operation for that purpose;

(ca) to promote and encourage the use of flora for therapeutic, scientific or horticultural purposes for the good of people in this State or elsewhere, and to undertake any project or operation relating to the use of flora for such a purpose;

(d) to be responsible for the conservation and protection of flora and fauna throughout the State, and in particular to be the instrument by which the administration of the Wildlife Conservation Act 1950 is carried out by the Executive Director pursuant to section 7 of that Act;

(da) to promote and facilitate public recreation, in accordance with this Act, on land to which this Act applies;

(db) to be responsible for the permanent preservation of the plant collections of the Western Australian Herbarium and to care for and extend those collections;

(dc) to promote the conservation of water, as to both quantity and quality, on land referred to in paragraph (a)

(e) to carry out or cause to be carried out such study or research of or into --

(i) the management of land to which this Act applies;

(ii) the conservation and protection of flora and fauna;

(iii) the taxonomy of flora and introduced plants; and

(iv) any other matter related to a function of the Department, as the Minister may approve;

(f) to provide advice to, or undertake work for or jointly with, and to supply services or facilities to, any department, public or private body or other person, whether in the State or elsewhere if the Minister is of the opinion that the provision of that advice or the undertaking of that work is in the public interest;

(g) upon request by the Minister to whom the administration of the Land Administration Act 1997 is committed, to advise him on the reservation, alienation, and disposal of Crown land in rural areas under that Act.

(2) Upon the recommendation of the Minister and the Minister referred to in subsection (1) (g), the Governor may place under the management of the Department any Crown land within the meaning of the Land Administration Act 1997 or land --

(a) reserved under Part 4 of that Act, but the care, control and management of which are not placed with any person under that Act; or

(b) reserved, but not vested in any person, under any other Act.

(3) The management of land referred to in subsection (1) (a) (i) and the associated forest produce, flora and fauna shall be carried out --

(a) where there is a management plan for the land, in accordance with that plan; or

(b) where there is for the time being no such plan --

(i) in the case of nature reserves and marine natural reserves, in such a manner that only necessary operations, within the meaning in section 33A (1) are undertaken;

(ii) in the case of national parks, conservation parks, marine parks and marine management areas, in such a manner that only compatible operations, within the meaning in section 33A (2), are undertaken; or

(iii) in any other case, in accordance with the provisions of section 56 applicable to the land.

[(4) deleted]

(5) Nothing in subsection (1) shall be read as limiting the functions of the commission, the Authority or the Marine Authority under sections 19, 22 and 26B respectively.

(6) To promote and encourage the use of flora for therapeutic, scientific or horticultural purposes mentioned in subsection (1) (ca) the Minister and the Executive Director may enter into an agreement with another person under which the Minister and the Executive Director agree to exercise the powers under the Wildlife Conservation Act 1950 and this Act to grant, issue or refuse licenses or permits to take or remove forest produce or other flora in a manner that has the effect to conferring on the other person an exclusive or preferential right to take or remove forest produce or other flora referred to in the agreement from land (other than private land) referred to in the agreement.

(7) The exercise of powers in accordance with an agreement under subsection (6) is valid and effective.

(8) In subsection (1) (ca) and subsection (6) "use" includes use or development on a commercial basis, and in subsection (6) "private land" has the same meaning as it has in the Wildlife Conservation Act 1950.

[Section 33 amended by No. 20 of 1991 s.21; No. 49 of 1993 s.7; No. 5 of 1997 s.21; No. 31 of 1997 ss.15(14) and 141.]

33A. Definition of "necessary operations" etc.

(1) In section 33 (3) (b) "necessary operations" means those that are necessary for the preservation or protection of persons, property, land, waters, flora or fauna, or for the preparation of a management plan.

(2) In section 33 (3) (b) "compatible operations" means --

(a) necessary operations as defined in subsection (1); and

(b) operations approved by the Minister as being in his opinion compatible with the purposes for which the park or management area is managed under this Act.

(3) Before any proposed operation is approved by the Minister under subsection (2) (b) --

(a) the proposal shall be publicly notified by the Executive Director in the manner specified in section 57 (2) (a), (b) and (c); and

(b) an opportunity shall be given for written submissions on the proposal to be made in accordance with section 58, as if the proposal were a proposed management plan.

(4) Subject to this section, the Minister may, under section (2) (b), approve the proposal with or without modifications and may attach conditions to his approval.

(5) The Minister may at any time revoke, or amend the terms or conditions of, an approval under subsection (2) (b).

[Section 33A inserted by No. 20 of 1991 s.22; amended by No. 5 of 1997 s.22.]

34. Powers of Executive Director

Subject to this Act and the Public Service Act 1978, the Executive Director has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of the functions of the Department.

34A. Business undertakings

(1) The powers conferred by section 34 include power for the Executive Director, for or in connection with schemes for the establishment, management, or utilization of tree plantations or for or in connection with a project or operation undertaken for a purpose mentioned in section 33 (1) (ca) --

(a) to form, promote or establish, or participate in the formation, promotion or establishment of, any business undertaking;

(b) to subscribe for, invest in or otherwise acquire, and to dispose of shares, units or other interests in, or debentures or other securities of, a business undertaking;

(c) to enter into any partnership or arrangement for sharing of profits;

(d) to acquire, hold and dispose of real and personal property;

(e) to manage, or participate in the management of, a business undertaking;

(f) to exercise any power conferred on or available to the Executive Director in connection with a business undertaking, including power to appoint or hold office as a director or other office-holder of a business undertaking;

(g) to enter into an agreement to do anything authorized by this section; and

(h) to do anything incidental to the exercise of a power conferred by this section.

(2) The approval of the Treasurer is required to the exercise of any power referred to in subsection (1) unless the power is exercised under section 34B.

(3) In subsection (1) "business undertaking" means any person, corporation, trust, joint venture, government agency or other entity engaging or intending to engage in any scheme, project or operation referred to in subsection (1).

[Section 34A inserted by No. 76 of 1988 s.6; amended by No. 49 of 1993 ss.5 and 8.]

34B. Timber sharefarming agreements

(1) The powers conferred by sections 34 and 34A include power for the Executive Director to enter into, or enter into and carry out, whether as a principal or an agent, a timber sharefarming agreement in respect of any land with the owner of that land.

(2) For the purposes of this section a timber sharefarming agreement is an agreement --

(a) by which the right to establish, maintain and harvest, or the right to maintain and harvest, or the right to harvest, a crop of trees on land is acquired --

(i) by the Executive Director;

(ii) by another person through the Executive Director acting as an agent; or

(iii) by the Executive Director and by another person through the Executive Director acting as agent;

and

(b) which provides for rights, obligations and powers relating to --

(i) payment of money or the giving of other consideration by, or the division of the crop or the proceeds of the crop between, the parties to the agreement; and

(ii) access to the land and, where appropriate, the undertaking of work or the provision of facilities thereon by those parties.

(2a) A timber sharefarming agreement may also contain other matters in addition to those referred to in subsection (2).

(2b) The references in subsection (2) (a) to the harvesting of a crop of trees include reference to the harvesting of forest produce from the crop, and the references in subsection (2) (b) to the crop include reference to forest produce from the crop.

(3) The Executive Director shall not enter into any agreement under this section with the lessee or licensee of any land unless the owner of the freehold, and any person occupying the land with the consent of the owner of the freehold, has given approval in writing to the agreement.

(4) The right acquired as referred to in subsection (2) (a) is a profit a prendre and an interest in the land to which the right relates and, except as otherwise provided or permitted under this Act, has all the attributes of a profit a prendre including, but not limited to, assignability.

(4a) Subsection (4) has effect despite any rule of law or equity to the contrary and has effect even if the right acquired as referred to in subsection (2) (a) is accompanied by an obligation to exercise that right.

(4b) If the right acquired as referred to in subsection (2) (a) is assigned or otherwise disposed of --

(a) the Executive Director or other person assigning or disposing of the right is no longer required to carry out obligations under the timber sharefarming agreement;

(b) the timber sharefarming agreement continues to be a timber sharefarming agreement for the purposes of this section even if the person to whom the right passes is not the Executive Director and does not acquire the right through the Executive Director acting as an agent.

(4c) Without limiting subsection (4), a timber sharefarming agreement may be registered as a profit a prendre under the Transfer of Land Act 1893.

(5) The obligations and restrictions that bind the owner of any land under a timber sharefarming agreement that is registered under the Transfer of Land Act 1893 are binding also on his heirs, executors, administrators and successors in title, except to the extent that the agreement otherwise provides.

(6) Where a timber sharefarming agreement in respect of any land is registered under Transfer of Land Act 1893 and bears the written consent of a mortgagee or chargee of the land whose mortgage or charge was registered before the timber sharefarming agreement, the estate or interest of the owner of the land passing to and vesting in a purchaser on a sale by the mortgagee or chargee is subject to the timber sharefarming agreement.

(6a) The Executive Director may enter into a contract with any person for the doing by that person of anything that the Executive Director is authorized or required to do under a timber sharefarming agreement.

(7) A timber sharefarming agreement is not a lease or license to which section 20 of the Town Planning and Development Act 1928 applies.

(7a) The Executive Director may --

(a) exercise rights under or in relation to a timber sharefarming agreement;

(b) sell or otherwise dispose of forest produce obtained under a timber sharefarming agreement.

(8) In subsections (1), (5) and (6) "owner" includes a lessee or licensee.

[Section 34B inserted by No. 76 of 1988 s.6; amended by No. 66 of 1992 s.5; No. 49 of 1993 s.6.]

35. Department may be remunerated

Any arrangement may be made by the Executive Director for the provision of advice, performance of work or supply of services or facilities by the Department may, with the approval of the Minister, provide for an agreed amount by way of payment to the Executive Director for the advice, work or services or the use of the facilities.

[Section 35 inserted by No. 20 of 1991 s.23.]