NEW ZEALAND Aquaculture legislation to confirm original intent of aquaculture law reform and help industry develop

Two bills amending aquaculture legislation to confirm the original intent of aquaculture law reform and help the industry develop in New Zealand were introduced to Parliament by Environment Minister Trevor Mallard.

“The Aquaculture Legislation Amendment Bill will clarify the intent of the original aquaculture reform legislation, which was that applications for aquaculture activities were only to be made in Aquaculture Management Areas (AMAs) in operative regional coastal plans,” said Trevor Mallard.

“The Aquaculture Legislation Amendment Bill (No 2) amends legislation to facilitate the creation of new aquaculture management areas (AMAs), address issues relating to invited private plan changes, enable experimental aquaculture, provide for aquaculture agreements in transitional processes under the old Fisheries legislation, support environmental monitoring and other technical amendments relating to the 2004 aquaculture reforms.

“The issues with existing legislation have arisen from a May 2006 decision of the Environment Court, in the case of SMW Consortium Limited v Tasman District Council.

“Without the amendments contained in these two bills, applications for aquaculture activities would be able to be made before AMAs were defined in regional coastal plans. This was not the intention when the aquaculture legislation was first developed.

“The bills will correct problems with the current law and improve operation for businesses, iwi and local government.

“Aquaculture has immense potential to help transform New Zealand’s economy in an environmentally sustainable way. New Zealand’s farmed fish and shellfish production is now worth $390 million a year and there is an industry strategy in place for that to rise to a billion dollars by 2025.

“It is therefore vital that the intent of the original aquaculture law reform is confirmed and that research and innovation in the industry is facilitated by allowing experimental aquaculture to take place outside AMAs,” Trevor Mallard said.

Aquaculture Legislation Amendment Bill

The Aquaculture Legislation Amendment Bill will amend the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, the Resource Management Act 1991, the Fisheries Act 1996 and the Maori Commercial Claims Settlement Act 2004.

The bill:

• Clarifies the policy intent of the aquaculture reforms by ensuring that applications for the occupation of the coastal marine area for aquaculture activities cannot be made unless they relate to AMAs in operative regional coastal plans.

• Cancels any applications that were made after 9 May 2006, the date of the SMW decision, that do not relate to AMAs in operative regional coastal plans. Note that no applications have been made since this date.

• Freezes those applications made between 1 January 2005 and 9 May 2006 and only allows them to be processed if the area covered by the application becomes an AMA in an operative regional coastal plan. If the area covered by the application does not become an AMA within ten years of commencement of the bill, these applications will be cancelled.

• Clarifies that AMAs can be created in three ways:
- by developing a regional coastal plan that provides for AMAs under the Resource Management Act 1991; or
- by the interim AMA process set out in the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004; or
- by deeming marine farms approved under old legislation as AMAs under section 45 of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.

• Clarifies various provisions of the aquaculture legislation relating to non-aquaculture activities in AMAs, the obligation to provide new space to iwi, and the assessment of areas of AMAs that are already subject to an existing marine farm approval.

Aquaculture Legislation Amendment Bill (No 2)

The Aquaculture Legislation Amendment Bill will amend the Resource Management Act 1991, the Fisheries Act 1996, the Maori Commercial Aquaculture Claims Settlement Act 2004 and the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.
As well as the points outlined in the press statement, the bill also does the following:
• Provides for the opportunity for negotiation of an aquaculture agreement with relevant commercial fishers, in circumstances where a permit would previously have been declined due to its undue adverse effect on commercial fishing. If agreement is reached with the commercial fishers, the applicant will be granted the marine farming or spat catching permit under the Fisheries Act 1983. This may allow for development of space that would otherwise be declined.

• Other technical amendments address issues such as the timeframes for the review of deemed consents and detail on allocation of space to the trustee under the Maori Commercial Aquaculture Claims Settlement Act.

• The bill will give certainty to the invited private plan change (IPPC) process which is emerging as the preferred means for councils to progress AMA development. The process has been hindered somewhat by the lack of clarity about whether, and on what grounds, councils can manage competition between overlapping or conflicting requests for plan changes.

• The bill enables councils to hold an expression of interest process to identify spatial overlaps. Where overlaps are identified, competing interests will be given a period to negotiate with each other to resolve the competition. Where negotiation fails, a financial tender will be used to choose between competing expressions of interest that relate to the same space. The bill also makes it more explicit that if a council does not use an expression of interest process, they can still choose between competing requests.

• The bill enables experimental aquaculture to take place outside of AMAs in operative regional coastal plans, subject to resource consent being granted and an assessment of any undue adverse effects on fishing.

• This bill also provides that environmental monitoring (using marine organisms to monitor the state of the marine environment) is not an aquaculture activity and is therefore not limited to AMAs in operative regional coastal plans.