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Emissions Trading Scheme

Published: 23rd July 2019

Author: John Sheddan, Sheddan Pritchard Law Ltd

Published in: Fineprint Issue 79

Implications for owners of forestry blocks
New Zealand’s Emissions Trading Scheme (ETS) was established by the Climate Change Response Act 2002. The ETS was created as the vehicle for New Zealand to meet its obligations for the reduction of greenhouse gas (GHG) emissions under the Kyoto Protocol. The purpose of the ETS is to achieve a reduction in GHG emissions through emissions trading. Emissions trading is the exchange of carbon credits between those parties with surplus credits and those who are required to contribute credits as compensation for their production of GHG emissions.

Although the ETS affects nearly all New Zealanders in some way, it has significant impact if you are buying or selling forestry blocks, and/or own a forestry block. The first part of this article focuses on the implications of buying and selling of forestry lots, or land destined to be planted in forests. The second part gives you some background on the ETS, New Zealand’s obligations under the Kyoto Protocol and this country’s acceptance of the Doha Amendment.

Buying land with trees
Buying land with forestry lots is a serious business. As well as the usual due diligence you would undertake in buying any rural property, you need to determine the status of the trees under the ETS. There are a number of tree-type issues you need to think about.

Were the trees planted pre-1990 or post-1989? Do the tree lots fall within the ETS? If so, are the accumulated carbon credits included in the purchase? Are there any forestry rights on the land? Is there a replanting obligation, if or when the trees are harvested? Can the trees be replanted with similar cropping trees or must the land, due to its nature, be removed from production and be planted in permanent forest with trees such as natives like totara, or exotics such as redwoods? As the future landowner, all these obligations are likely to fall on you to manage.

Tax
You will also need to think about the taxation implications relating to your purchase of a forestry lot.

Planting established for shelter purposes, beautification, or erosion control, is likely to be incidental tax-wise and does not bear special consideration.

Established tree lots planted for harvest, however, create special tax considerations and you will need some professional advice on how to deal with this.

Trees planted for harvest, called ‘standing timber’, create a taxable activity on realisation, for example, harvest or sale. On harvest, the profit – after the deduction of expenses – is taxed.

Deductible costs include the purchase cost of the trees if the land the trees are on has been purchased after planting. As a result, as the purchaser you will want to ensure that the value of the trees on purchase is as high as possible.

If you’re the vendor, however, you will want to have the market value of trees as low as possible as this profit is taxable on settlement. Vendors must note that the sale triggers an immediate tax liability.

It’s vital to understand the implications of tree lots in the negotiation of any sale and purchase from both a taxation viewpoint and to ensure all the legal i’s are dotted and the t’s are crossed. The sale and purchase agreement must address the trees and their agreed values, or the valuation mechanism. If this is not done satisfactorily, the vendor or purchaser could be left with an unforeseen tax problem.

Inherent risks of forestry
Harvesting forestry lots brings its own challenges. It is one of New Zealand’s most hazardous occupations requiring specialist machinery and skills. Health and safety during harvest is of major concern.

Forestry harvest may result in land slips or water runoff, including soil or prunings and harvest debris (called slash). Environmental and infrastructure damage may result downstream as a result of systematic clearing of the land, particularly in light of the violent weather extremes that New Zealand is now experiencing. It may take some years before the roots of new plantings mature to sufficiently bind the land that the original trees have been harvested from.

The National Environmental Standards for Plantation Forestry (NES-PF) came into effect on 1 May 2018 and aim to address these environmental risks of forestry. Under the NES-PF harvesting your tree lot may require resource consent due to the risk to the environment of land instability post-harvest. The NES-PF applies to any forest of at least one hectare that has been planted for commercial purposes and will be harvested. There may also be additional resource consent requirements associated with forestry activities; you should check with your local authority.

Why bother with forestry?
Having read the above, you may ask yourself why you would invest in a forestry block? To put it simply, planting and owning eligible forestry allows the forest owner to collect and sell carbon credits, effectively providing an ongoing income stream.

As well, you can satisfy yourself that you are helping New Zealand (and indeed the world) reduce its GHG emissions under its obligations under the ETS, about which we have some broad brushstroke background below.

New Zealand’s role
The United Nations Framework Convention on Climate Change (UNFCCC) was ratified in 1994. This was followed by the Kyoto Protocol in 1997 that established legally binding obligations on participating signatories to reduce their GHG emissions; its first commitment period ran from 2008–2012. The second period runs until 2020 and was established under the Doha Amendment, which New Zealand accepted in 2015.

Each UNFCCC signatory country elected limits for their emissions and has determined goals within their capacities, known as Nationally Determined Contributions (NDCs). New Zealand’s NDC target is to reduce its GHG emissions by 30% below 2005 levels by 2030 by:

1. Reducing greenhouse emissions
2. Planting more trees, and
3. Buying surplus reductions from other countries to offset New Zealand’s GHG emissions.

The ETS puts a price on carbon to act as a disincentive to emit – the incentive is to plant trees.
The measurement of carbon emissions is the New Zealand Unit (NZU); one NZU is the equivalent of one tonne of GHG. At the time of writing, the government caps one NZU at NZ$25.

The objective is that carbon producing industries must reduce or minimise their production. If these industries cannot achieve a significant reduction in gas emissions, they must purchase and contribute sufficient NZUs to offset their carbon production – the outcome being that each producer is carbon neutral. Currently agriculture is not included in the ETS (although it has a reporting requirement). Its participation (or lack of) is currently a topic for much discussion as agriculture is estimated to contribute nearly 50% of New Zealand’s GHG emissions.
In the forestry sector, NZUs produced annually from eligible forest areas may be sold to those GHG-producing industries that are obligated to compensate for their GHG emissions. Planting and owning eligible forestry allows a forest owner to collect and sell the carbon credits, effectively providing an ongoing income stream from mature trees. To assist New Zealand in meeting its GHG reduction obligations and boost regional economies, the government has instigated the One Billion Trees Programme, with a goal of planting one billion trees by 2028.

Forests are good for us
We all need to play our part in reducing this country’s GHG emissions and making our environment better for ourselves and our children. Planting trees goes a long way to help New Zealand meet its international agreements.

If you are considering buying a forestry block, intending to establish a plantation, or are selling your trees, do talk with us and your accountant early on.

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