Resource Management (Aquaculture Moratorium Extension) Amendment Bill Government Bill 2003 No 97-2 Commentary As reported from the Primary Production Committee Recommendation The Primary Production Committee has examined the Resource Management (Aquaculture Moratorium Extension) Amendment Bill and recommends by majority that it be passed with the amendments shown. Introduction The current moratorium on coastal permit applications for new aquaculture space will expire on 25 March 2004. Extending the moratorium is deemed necessary to ensure that benefits from the proposed reform of aquaculture law, which has not progressed as quickly as expected, are not undermined by new applications made before the reform is enacted. Extending the moratorium until 31 December 2004 A majority of us agree with clause 5, which has the effect of extending the aquaculture moratorium until the close of 31 December 2004. The intention of the delay is to enable more clarity around the outcomes and implications of the foreshore and seabed issue and to give regional councils more time to develop aquaculture management areas. The current moratorium expires on 25 March 2004 and an extension is therefore necessary. We accept, as did the greater number of submitters, the importance of resolving issues relating to recognition of Maori interests in marine farming and complexities surrounding the transitional elements of the aquaculture reform process. The new legislation needs to be sound and to give some certainty about the wider regime governing planning in coastal marine areas. We acknowledge the concerns expressed by some submitters that an extension will delay development of the aquaculture industry. We have been advised that only a single extension is envisaged. Some submitters are doubtful that the additional timeframe of 9 months will be sufficient to: o o resolve the foreshore and seabed issue enact the aquaculture reform legislation o implement plans for aquaculture management areas by regional councils. The moratorium provides an early expiry mechanism to enable areas to be available and the transitional aspects of the main reform seek to ensure that existing zones and planning provisions are recognized as aquaculture management areas, where this is appropriate without having to go through the whole planning process. We understand that a number of regions are developing aquaculture management areas under existing planning processes. Removing time constraints on the Minister of Conservation Clause 6, as introduced, amends section 150C of the Resource Management Act 1991. It removes the time limit of 20 working days within which the Minister of Conservation must make a recommendation about the early expiry of the moratorium for a specified area as requested by a regional council. We agree with the submitters who opposed the removal of the time limit and recommend that clause 3(b) and clause 6 be amended so that the time limit in section 150C be extended to 40 working days. We accept that the Department of Conservation has a good record of working within time limits under the Resource Management Act and that the Minister of Conservation is under a duty to act without unreasonable delay. However, we concur with the views expressed to us by submitters and the previous Primary file:///t /_Kim/bills/PDFs/updated/20030972.txt (1 of 6) [2/03/2004 12:30:41 p.m.]
Production Committee that there should be a time constraint on the Minister to exercise his administrative decision-making power. We consider 40 working days, with the opportunity for a further 40 working day extension, is a reasonable timeframe to allow a proper assessment of a regional council's request to be made and for the Cabinet paper process to be completed. Reviving certain lapsed coastal permits Clause 7 inserts new section 150G into the Resource Management Act to revive certain lapsed coastal permits issued in the period between 1 June 1995 and 1 August 2003. To develop an area a marine farmer must have both a coastal permit (a type of resource consent) under the Resource Management Act and either a marine farming permit or spat catching permit under the Fisheries Act 1983. Under the Resource Management Act resource consents lapse if they are not `given effect to' within 2 years of being granted. Consequently, a number of coastal permits for marine farming have lapsed because applications for permits under the Fisheries Act have yet to be determined. The moratorium has created problems for coastal permit holders seeking to extend their lapsed permits. Failure to resolve these could cause large losses for some and create unnecessary conflict and disruption. Clause 7 provides that the making of an application for a marine farming permit or spat catching permit under the Fisheries Act will be deemed to be giving effect to the coastal permit. These provisions would apply only to coastal permits for marine farming granted between 1 June 1995 and 1 August 2003. Some coastal permits that have lapsed will not be revived. We agree that the issue raised by the Auckland Regional Council needs to be addressed. The council noted that clause 7 only saved consents under one provision of the Resource Management Act and that in order to operate, marine farms needed one or more other Resource Management Act consents. We recommend that the wording of new section 150G(1)(b) be amended to include all consents for aquaculture activities in the coastal marine area instead of just those for the occupation of coastal space. The consents for aquaculture activities that are revived will be limited to those directly related to a farm that has consent for occupation. Issues outside the scope of the bill Submitters raised several issues that are outside the scope of the bill which relate to the more general aquaculture reform. Concerns about aspects of main aquaculture reform Many submitters raised issues about the main aquaculture reform and wanted further discussion of the main reform legislation during the proposed extension. Key areas of concern related to: o tenure and obtaining authorisations to continue farming once existing and proposed grand-parented consent terms end o definition of aquaculture management areas in regional coastal plans including public objections slowing the process and the costs of planning to councils o lack of incentives to initiators of private plan changes that propose aquaculture management areas. We understand that the main aquaculture reform legislation is still being developed and issues are under discussion with the aquaculture industry and Local Government New Zealand. In addition the planned foreshore and seabed legislation may mean that some aspects of aquaculture reform are revised to ensure compatibility with that legislation. Role of the Minister of Conservation Some submitters questioned the Minister of Conservation's role in coastal planning and whether the Minister was the appropriate Minister to be file:///t /_Kim/bills/PDFs/updated/20030972.txt (2 of 6) [2/03/2004 12:30:41 p.m.]
making the recommendation for early expiry of the moratorium. Our understanding is that the Minister's role in this matter relates to the Minister's role in the Resource Management Act. Under the Resource Management Act the Minister approves coastal plans, resource consents for restricted coastal activities and issues the coastal policy statement. As the early expiry decision is similar to the decision to approve a coastal plan, it is more appropriate for the Minister of Conservation than the Minister for the Environment or the Minister of Fisheries to make the decision. Transition to the new aquaculture regime A number of submitters commented on the transition to the new aquaculture regime with some seeking support for encouraging councils to seek early expiry of the moratorium. The early expiry provisions of the Resource Management (Aquaculture Moratorium) Act allow for applications that are on hold under the moratorium to be progressed. The mechanism can target particular areas where plan provisions are adequate and can be used to target particular areas (and hence applications) where the planning issues can be addressed. Early expiry does not mean that an application will necessarily be approved. This allows consideration of held-over applications. Land-based aquaculture One submitter requested early repeal of the Fresh Water Fisheries Regulations, which apply to land-based aquaculture. The moratorium does not affect land-based aquaculture and the issues raised by the submitter relate to obtaining resource consents under existing Resource Management Act and Fisheries Act processes instead. Appendix Committee process The Resource Management (Aquaculture Moratorium Extension) Amendment Bill was referred to the committee on 10 December 2003. The closing date for submissions was 2 February 2004. We received and considered 32 submissions from interested groups and individuals. We heard 19 submissions. Hearing of evidence took 3 hours 24 minutes and consideration took 1 hour 48 minutes. We received advice from Ministry for the Environment, the Ministry of Fisheries and the Department of Conservation. Committee membership Hon David Carter (Chairperson) Janet Mackey (Deputy Chairperson) Clayton Cosgrove Hon Harry Duynhoven Gerrard Eckhoff Ian Ewen-Street Phil Heatley Hon Dover Samuels R Doug Woolerton. Hon David Benson-Pope Resource Management (Aquaculture Moratorium Extension) Amendment Bill Government Bill Contents 1 Title Part 1 file:///t /_Kim/bills/PDFs/updated/20030972.txt (3 of 6) [2/03/2004 12:30:41 p.m.]
Preliminary provisions 2 Commencement 3 Purpose Part 2 Amendments to principal Act 4 Lapsing of consent 5 Interpretation 6 Earlier expiry of moratorium in relation to specified areas 7 New heading and section 150G inserted Certain coastal permits continued 150G Certain coastal permits issued in period from 1 June 1995 to 1 August 2003 continued The Parliament of New Zealand enacts as follows: 1 Title (1) This Act is the Resource Management (Aquaculture Moratorium Extension) Amendment Act 2003. (2) In this Act, the Resource Management Act 1991 1991 No 69 is called "the principal Act". Part 1 Preliminary provisions 2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent. 3 Purpose The purpose of this Act is--- (a) to extend to 31 December 2004 the moratorium on the granting of coastal permits for aquaculture activities; and (b) to {repeal} [extend] the time limit within which the Minister of Conservation must make a recommendation for the earlier expiry of the moratorium in relation to specified areas as requested by regional councils; and (c) in relation to coastal permits [for aquaculture activities] granted during the period from 1 June 1995 to 1 August 2003, to--- (i) provide that they are given effect to when a marine farming permit or spat catching permit is applied for under the Fisheries Act 1983; and file:///t /_Kim/bills/PDFs/updated/20030972.txt (4 of 6) [2/03/2004 12:30:41 p.m.]
(ii) continue in force those that have lapsed. Part 2 Amendments to principal Act 4 Lapsing of consent Section 125 of the principal Act is amended by adding the following subsection: "(3) This section is subject to section 150G." 5 Interpretation Section 150A of the principal Act is amended by repealing paragraph (b)(i) of the definition of moratorium, and substituting the following subparagraph: "(i) 31 December 2004; or". 6 Earlier expiry of moratorium in relation to specified areas (1) Section 150C(1) of the principal Act is amended by omitting the words "the date that is 2 years after the commencement of the Resource Management (Aquaculture Moratorium) Amendment Act 2002", and substituting the expression "31 December 2004". Struck out (unanimous) ======================================================================= (2) Section 150C(3) and (4) is repealed. ======================================================================= New (unanimous) ----------------------------------------------------------------------- (2) Section 150C(3) of the principal Act is amended by omitting the expression "20", and substituting the expression "40". ----------------------------------------------------------------------- 7 New heading and section 150G inserted The principal Act is amended by inserting, after section 150F, the following heading and section: "Certain coastal permits continued "150G Certain coastal permits issued in period from 1 June 1995 to 1 August 2003 continued "(1) This section applies to coastal permits issued--- "(a) in the period beginning on 1 June 1995 and ending with the close of 1 August 2003; and "(b) for the occupation of an area in the coastal marine area for the purpose of aquaculture activities[, and for any activity related to that occupation]. "(2) A coastal permit is given effect to when the holder of the permit file:///t /_Kim/bills/PDFs/updated/20030972.txt (5 of 6) [2/03/2004 12:30:41 p.m.]
applies under section 67J or section 67Q of the Fisheries Act 1983 to the chief executive of the Ministry of Fisheries for a marine farming permit or a spat catching permit over the same area. "(3) A coastal permit that has lapsed under section 125 before 1 August 2003 is deemed not to have lapsed if, before the coastal permit lapsed under section 125, the holder of the coastal permit had applied under section 67J or section 67Q of the Fisheries Act 1983 to the chief executive of the Ministry of Fisheries for a marine farming permit or a spat catching permit over the same area." Legislative history 2 December 2003 Introduction (Bill 97-1) 10 December 2003 First reading and referral to Primary Production Committee file:///t /_Kim/bills/PDFs/updated/20030972.txt (6 of 6) [2/03/2004 12:30:41 p.m.]