New Zealand: Nela Conference 2002 - Aquaculture: Creating More Problems Than It Is Solving?

A New Zealand Perspective on Regulatory and Planning Issues
Last Updated: 20 December 2002

Paper by Karen Price, Partner and Mark Sly, Solicitor (NZ and Qld) Minter Ellison Rudd Watts, Auckland

In New Zealand, as elsewhere, aquaculture presents a tremendous challenge for regulatory and planning agencies, and as a consequence, also for the industry itself. Marine farms and farming areas now cover very large areas, and move further off-shore as technology advances. The speed and extent of development are far beyond what can have been envisaged when aquaculture was first legislated for in the 1960s,1 and deficiencies in the current legislative regime caused the Government to impose a two year moratorium on the granting of coastal permits for aquaculture activities in March this year,2 to operate while reform proposals were under consideration.

Considered as an "activity" (with a statutory presumption that resource consent will be required), aquaculture has a wide range of effects on the environment,3 including ecological values, natural character, landscape and amenity values, navigation and public access, wild (extractive) fisheries, and tangata whenua (Maori cultural) values. Such ‘individual’ effects aside, one of the key substantive difficulties for regional councils in New Zealand has been how to assess and manage cumulative effects associated with multiple marine farm installations. Again, the pace and magnitude of development appear to have far outstripped the information base necessary for that assessment in particular, and in November 2001 the Cabinet agreed that measures for the reform of the aquaculture management regime were essential. Consultation on reform policy proposals proceeded from that time.

Notwithstanding predictable industry opposition to the moratorium, all stakeholders are anxious to enable aquaculture to increase its contribution to the economy, whilst not undermining the fisheries management regime and Treaty of Waitangi settlements, and ensuring its adverse effects are properly managed.

The New Zealand experience provides a strong example of the difficulties faced by regulatory authorities, communities and a developing industry in providing for an activity at a time when expansion pressures are not managed by a fully informed and integrated decision-making process. Against that background, this paper outlines the manner in which aquaculture development has been approached in New Zealand to date, discusses the difficulties that have been identified, and summarises the response formulated by the Government.

THE RESOURCE MANAGEMENT ACT 1991 REGIME

Prior to the enactment of the Resource Management Act 1991 (RMA), marine farming tenures were issued by way of lease or licence from the Crown, under the Marine Farming Act 1971. The RMA revoked the provisions of that Act relating to the issuing of new leases and licences, but provided for existing approvals to continue under transitional provisions.

The RMA extended regional council planning areas to include the land and sea from mean high water springs to the 12 mile seaward limit, terming that area the Coastal Marine Area. Regional councils were required to prepare regional coastal plans relating to the coastal marine area under their jurisdiction, and to provide for marine farming where considered appropriate. Among other things, these plans are intended to regulate the activities that may take place in the coastal marine area, and to take into account effects marine farming may have on the environment. Broadly speaking, this is consistent with the shift in thinking the RMA was designed to usher in; being "effects-based" planning, rather than prescriptive, "activity-based" planning.

Subsequently, a 1993 amendment to the Fisheries Act 1983 provided that no person could establish a new marine farming venture unless they had obtained a marine farming permit under that Act. However, a permit could not be issued unless the applicant already held a resource consent (or consents), or certificate of compliance,4 from the relevant regional council. Misgivings about this duplication have formed part of the background to current reform mechanisms, which are designed to result in an integrated approach to coastal planning, aquaculture development and fisheries management. Reform proposals are covered in more detail later in this paper.

AQUACULTURE DRIVERS

The by-line for this section of the 2002 Conference is "Aquaculture: Creating more problems than it is solving?", which begs the question: what problems does aquaculture solve? As industry pundits note, demand for seafood products continues to rise, and at a time when the world’s traditional wild catch fisheries have reached, or will shortly reach their maximum sustainable yields. In fact, industry sources estimate that the annual shortfall in fishery products is approximately 30 million tonnes worldwide on current combined wild / farmed yields.

First, expanded aquaculture clearly has the potential to redress this shortfall, and at the same time to contribute to the sustainable management of wild fishery stocks. In fact, the New Zealand Aquaculture Council suggests that production from aquaculture is projected to overtake the "capture fishery" by 2020.

Further, because aquaculture must by its nature occur in relatively undeveloped coastal areas5 which are also effectively "rural", local employment opportunities in key aquaculture areas are significant at a micro level. The rapid rise of aquaculture is also reflected in its contribution to the national economy. For example, export sales were NZ$27m in 1989, and $210m in 2000,6 and are projected to reach $568m by 2010 and over $1b by 2020. By that time, it is also estimated that an additional 9,000 full time employment opportunities will have been created.7

The domestic economic drivers are therefore readily apparent, although the worldwide contribution aquaculture will make to meeting fishery product demands does perhaps remain to be seen. Further, although the Aquaculture Council claims that the financial and employment returns require "only 0.1% of New Zealand’s territorial waters", that figure could translate to approximately 44,600 square kilometres, depending on which base figure is used. Although it is unlikely that the Aquaculture Council intended to refer to such a large domain, the area involved is substantial, particularly when confined to coastal and near-coastal areas.

Secondly, properly developed and managed, aquaculture is a ‘sustainable’ industry. That is particularly so in comparison with wild catch fisheries. History shows that many key fisheries have been over-exploited to dangerous levels, with the Northern Hemisphere cod fishery providing perhaps the most salient illustration of this. Equally, much is still not known about many wild fishery species, deep sea species life cycles and population bases in particular. In contrast, although there remain some significant information ‘gaps’ in relation to the effects of aquaculture, marine farming stacks up as far more predictable, and therefore manageable, in sustainability terms. Thirdly, and as a result, the expansion of aquaculture may relieve some of the pressure on wild fishery stocks, and so allow those to recover.

Ultimately, however, whilst industry and government officials are keen to facilitate aquaculture development, there are also clear environmental imperatives which they, and other stakeholders, agree need to be addressed.

WHAT "PROBLEMS" ARE CREATED?

One of the key (and most pressured) areas of aquaculture development in New Zealand is at the top of the South Island – the Nelson / Marlborough area, which includes the clean, deep water Marlborough Sounds. It is hardly surprising, therefore, that some of the key RMA case-law has dealt with regional coastal plan provisions and resource consent applications in this area.8

These cases, and much of the discussion surrounding current reform initiatives, deal with the following key (coastal) planning issues:

  • Allocation of space in the coastal marine area;
  • Effects on the environment;
  • Zoning considerations;
  • Wild catch fishery conflicts; and
  • Procedural uncertainties.

Allocation of space in the coastal marine area

Although property rights in relation to land exist independently of the RMA, and are governed by separate statutory and common law mechanisms, space in the coastal marine area is allocated for occupation by regional councils acting as agents for the Crown. However, partly because that space is "free", the lack of defined allocation standards has led to what the Ministry for the Environment has termed a ‘gold rush’.

This ‘gold rush’ occurred due to a combination of three related factors. First, the default rule for the allocation of space in the coastal marine area is ‘first-in first-served’,9 in that the first application in time has priority.10

Secondly, and as noted, space in the coastal marine area is ‘free’ for the most part. That is, although the RMA does empower regional councils to make and levy coastal occupation charges,11 the majority of current coastal planning instruments do not incorporate relevant provisions. Accordingly, the bulk of applicants for coastal occupation permits have only had to meet the cost of preparing and lodging an application in order to gain ‘priority’ for coastal space. Preparing and lodging applications is of course not necessarily a cheap undertaking, but the incentive has been for applicants to lodge documentation quickly, and without either a thorough assessment of environmental effects or consultation with potentially affected parties.

Thirdly, there has been no limit on the amount of space in the coastal marine area that an individual applicant could apply for, as until the current reform proposals were under consideration, it was not clear whether limiting the amount of space that could be applied for was lawful under the RMA’s "effects-based" regime. As such, at the time the moratorium was imposed in March this year, there were marine farm applications relating to over 47,000 hectares of coastal space in the processing queue. (That figure is all the more notable by comparison with the 10,000 hectares of marine farms already in place).

This gold rush naturally placed the relevant regional councils in a difficult position, given that they had neither the resources nor the experience to deal with applications in such volume, or which raised issues and effects that appeared far more complex than when the aquaculture industry was in its infancy.

The only alternative to ‘first-in first served’ under the RMA was "coastal tendering", but that can only be activated by the Crown, acting through the Minister of Conservation. Part VII of the RMA enables the Minister of Conservation to effect a moratorium on coastal occupation applications where "there is, or is likely to be, … competing demands for the use of [the] area…".12 Were that done, the Minister could then set up a tendering regime to deal with the competing demand. However these coastal tendering provisions have never been used – primarily because, by the time the Minister is in a position to form a view that there is "likely" to be competing demand for coastal space, applications for the relevant resource consents will almost always have already been made. Tendering at that stage would obviously be too late, because it could not apply to the existing applications which led to the Minister’s decision being made.

As a result, although competition for space in the coastal marine area has for obvious reasons been fierce in the most ‘popular’ marine farming areas, regional councils have lacked clear and coherent mechanisms for allocating that space in a manner that is fair to applicants, and appropriate in terms of avoiding, remedying or mitigating the environmental effects which result.13

Effects on the environment

As well as resource consent to occupy the coastal marine area, New Zealand marine farming applicants also require consents for coastal structures, coastal discharges, disturbing the sea bed and other aspects of the aquaculture activity. The nominal effects on the environment of these activities are relatively widely known, although the nature and degree of them in individual cases naturally varies.

A recent decision of our Environment Court illustrates the full range of effects at play, and also addresses the key point that although separate effects may be minor in themselves, cumulatively they can be significant enough to warrant the regional council (and the Court itself on appeal) declining to grant the resource consent(s) sought.

In Kuku Mara Partnership (Forsyth Bay) v Marlborough District Council,14 the Environment Court considered a deep water mid-bay application proposed to cover a 42 hectare area. In reaching its decision to decline the consents sought, the Court heard evidence on the following effects:

  • Ecological:

  • Current attenuation;
  • Benthic (sediment disposition, organic enrichment, spread of disease);
  • Marine processes (phytoplankton growth, shell drop, degradation of coastal water quality, and alteration to foreshore and seabed);
  • Bird life (cormorant feeding grounds);
  • Marine mammals (seals, dolphins, whales);

  • Natural character, landscape / seascape and amenity:

  • Relevant whether or not the environment has already been "modified" by human intervention)15;
  • Views from land and from the sea;

  • Navigation and access:

  • Health and safety (navigational routes, sheltered anchorages, night navigation, tourist vessels, water skiing, recreational fishing, and seabed cable routes);
  • Public access to the coastal marine area;

  • Cumulative effects.

Many pages of the Court’s decision are devoted to discussion of each effect, although those relating to public access and ‘cumulative effects’ are of the most interest for the purposes of this discussion.

As noted above, space in the coastal marine area is ‘free’. A key reason for that is that unhindered public access to our coastal resources is of great importance to New Zealanders. It is recognised in Principle 5 of the New Zealand Coastal Policy Statement, which provides that the coastal marine area is public open space, and is expected to generally be available for free public use and enjoyment.16 At the same time, the pressure on the coastal marine area in terms of marine farm occupation has reinforced the fact that such occupation ‘alienates’ space otherwise available to the general public for its ‘use and enjoyment’.

Accordingly, as more coastal space is ‘removed’ from the public side of the ledger, particularly in a country the size of New Zealand, public access issues assume greater importance in tandem with concerns about the mechanics of allocating space in the coastal marine area.

Turning to cumulative effects, the first point is that, as detailed by the Environment Court in Kuku Mara Partnership, these are effects that will, not may, occur. They may be as a result of the gradual build up of consequences, or arise by combination with other effects to create an overall composite effect. Accordingly, effects that may not in themselves be major or sufficiently adverse may, over time and in combination with other effects, combine to be significant.

The second, and currently more important point is that there is a general lack of information about the cumulative effects of marine farming. Experts cannot predict the effect of large-scale marine farming on ecological values; the biggest uncertainty being the effect on the "carrying capacity" of the marine environment, in terms of the phytoplankton needed to sustain it. Because phytoplankton populations are subject to natural variations, effective monitoring of marine farming effects requires baseline information about the nutrient and its ebb and flow. Naturally, it takes time to accumulate baseline information, and further time to process and interpret it. To date, regional councils have not possessed this ‘knowledge’, and have been significantly handicapped in their consideration of aquaculture consent applications as a result.

Naturally, these difficulties have further complicated the task faced by regional councils in reaching, and then justifying planning decisions, and the Environment Court itself is only starting to come to grips with the wider planning issues. As a result, caution has at times prevailed,17 and in the Golden Bay Marine Farmers case, it was determined that marine farming should only proceed 50 hectares at a time in each zoned block, and that the results of monitoring ecological triggers should determine whether and how far farmed areas should be permitted to expand in future.

Ultimately, regional councils, the Environment Court, applicants and the relevant Ministries alike have been, and for some time will no doubt continue to be faced with both procedural and substantive concerns about environmental effects and how they are to be assessed. At the present time, however, it is clear that lack of information about cumulative effects has played an important role in the Government’s decision to effect a moratorium, and to propose reform measures.

Zoning considerations

An additional factor in the moratorium decision was that, for the most part, aquaculture has not been confined to discrete zones. In some coastal planning instruments for example, aquaculture is a "discretionary activity" in most of the coastal marine area. Because no clear direction is given by such categorisation, this approach has been termed ‘ad hoc’ in some quarters.

A stark contrast is thus struck with the approach taken by submitters to the proposed coastal plan in the Tasman District (adjacent to Marlborough). Those submitters advocated discrete zones for aquaculture, with "prohibited activity" status everywhere else. That approach was initially disputed by the regional council itself, and illustrates a general reluctance to accept the idea of zoning and prohibited activity status outside the zones.

Contrastingly, economic evidence led in cases on land had established that zoning for industrial activities (for example) can have significant costs, because the relevant council will rarely, if ever, have optimum information to determine where given activities can take place most efficiently at any given point in time. Equally, prohibited activity status is seen as raising the stakes, because it makes zoning highly inflexible.

However, the Court in Golden Bay Marine Farmers did conclude that zoning discrete "Aquaculture Management Areas" with prohibited activity status outside these areas was appropriate, and directed the regional council to draft appropriate amendments to its proposed regional coastal plan. This approach was justified in part by the presumptions in the RMA that the coastal marine area should be retained for public use and enjoyment, and that matters such as ecological values and natural character / amenity values are worthy of protection because of the high value attributed to them by the community.

Leading in to the current reform proposals, it is clear that considering zoning issues has forced the Environment Court to make difficult decisions, partly on the basis of economic evidence, and in particular about how much space is needed for a commercially ‘viable’ marine farming industry. The Court had to look at commercial factors to determine the size of the zones, including production targets and the area estimated to be required to meet them at various distances from the shore.

Wild catch fishery conflicts

A further factor in the reform process is the conflict between aquaculture and fishing interests. In some parts of the wider Nelson / Marlborough area, concerns about natural character, landscape and visual amenity meant aquaculture should not take place close to the shore. However, proposed planning requirements that would locate aquaculture ventures off-shore placed marine farming in conflict with the wild scallop fishery in particular. These conflicts with wild fisheries relate to both spatial conflicts, ‘ecological’ conflicts (shell drop (and deposition of other material) onto the seabed, nutrient flow and the attraction of predator species such as seals in particular), and ‘concerns’ about the potential use of marine farms to disguise disposal of illegally harvested wild fish, and the spread of disease or pests from marine farm stocks.

However, due to the requirements of permit processes under the Fisheries Act, the Environment Court decided in the Golden Bay Marine Farmers case that it could not consider impacts on the scallop fishery. That was on the basis that those impacts are properly considered later when a marine farming permit or spat catching permit is applied for under the Fisheries Act. Obviously, this result is not ideal in terms of an holistic approach to assessment of environmental effects. It also creates uncertainty for the aquaculture industry in that, even when the RMA process is complete, there is no guarantee that a marine farming permit will be obtained under the Fisheries Act 1983; the final key factor leading to the moratorium, and reform proposals.

Procedural uncertainties

Because the allocation and sustainability of fisheries resources is addressed under fisheries legislation, and the sustainability of natural resources is addressed under the RMA, the resulting ‘two permit process’ can produce decisions that are unsatisfactory from marine farming, fishing, and environmental perspectives. As noted, regional councils allocate coastal space for marine farms and related uses (activities) under the RMA, and marine farmer applicants must subsequently also obtain a permit under the Fisheries Act before they are able to commence marine farming activity. Again, the decision under the Fisheries Act is made after resource consents are issued, and it deals with the impact of the proposed farm on fishing and the sustainability of any fisheries resource.

The central issue is thus that parallel decision-making processes have not allowed the full range of options for use of space in the coastal marine area to be considered by the decision-makers. Ideally, the approvals process should consider and assess effects on the environment, and the interests of coastal communities, marine farmers and wild catch fisheries at one time.

Under the present regime, however, regional councils are unable to consider the impacts of aquaculture development on fishing and fisheries resources for utilisation purposes under the RMA process. As a result, they are unable to weigh up all of the competing uses of the coastal marine area. The fact that councils do not have regard to all information relating to impacts on fisheries when considering applications for aquaculture development therefore increases the likelihood of conflict arising between aquaculture developers and wild catch fishers when applicants get to the marine farm permit process under the Fisheries Act. That is because it is only at that stage that regard can be had to the location of fishing grounds.

There is accordingly significant potential for uncertainty and cost duplication because each process deals with the ecological impacts of fishing, when ideally they should only be considered once, by specialist bodies. This affects not only marine farming applicants, but also other groups in the community with an interest in the use of coastal marine area space and agencies with responsibilities for planning.

Concerns about duplication of effects assessment, cost burdens, combined with the need for an holistic approach to coastal space allocation issues have therefore played an integral part in the call for reform.

THE GOVERNMENT’S RESPONSE – REFORM PROPOSALS

Having considered the above issues and concerns, the Government agreed that existing processes under the RMA, the Marine Farming Act and the Fisheries Act fail to provide an integrated planning and decision-making framework that can manage issues relating to the carrying capacity of marine ecosystems, whilst also allowing greater national benefit to be realised from the allocation and use of space in the coastal marine area. In particular, as noted above, the interface between the RMA and the Fisheries Act prevents regional councils from considering the impact aquaculture development may have on wild catch fisheries.

Accordingly, a moratorium was placed on marine farm applications to give regional councils ‘breathing space’ to prepare for the new regime that will be created by aquaculture reforms intended to be introduced into parliament before the end of the year. Options for reform have been under consideration at government level since the 1990s, and the Government determined that a two-year moratorium was appropriate, in that it would:

  • prevent councils being inundated with applications before the reforms take effect; and
  • allow councils time to create Aquaculture Management Areas in their coastal plans.

Prior to the moratorium coming into effect, the Government approved in principle six aquaculture reform policy papers (in November 2001). Broadly, the papers sought decisions on:

  1. Changing the interface between the RMA and fisheries legislation so that regional councils are required to consider all environmental effects, including the impact marine farming has on the aquatic environment and the use and sustainability of fisheries resources, when they are providing for aquaculture in regional coastal plans;
  2. Streamlining the application and environmental assessment process for new marine farms by providing a single-permit approval process to be operated under the RMA;
  3. Providing regional councils with greater powers to manage and control the development of aquaculture by requiring marine farm developments to take place within clearly defined Aquaculture Management Areas (AMA);
  4. Providing regional councils with additional rule-making powers to deal with competition for coastal space between all activities, including the power to limit the amount of coastal space that can be applied for within an AMA;
  5. Providing tendering provisions for regional councils to tender for the right to apply for coastal permits, including those for individual marine farm sites within each AMA, as the default mechanism for the allocation of coastal space;
  6. Providing for regional councils to retain 50% of the tender money to provide appropriate planning incentives and for use in improving the management of the coastal marine area.

The foundation of these suggested reforms is the proposal to collapse parallel processes into one. However, because regional councils do not currently have sufficient skills and knowledge to enable them to be the sole agency considering all of the environmental impacts of aquaculture, a key element of the proposed reform to streamline the application process for new marine farms is to have the Ministry of Fisheries (and other agencies) provide more input at the start of the planning process when AMAs are identified for new marine farm development.

Under the current regime, the Minister of Fisheries may provide guidance to regional councils. The Minister must be consulted on fisheries management and the management of aquaculture in the development of regional coastal plans, although detailed advice on the impact of new marine farm developments on the sustainability of fisheries is commonly provided on a site-by-site basis through the marine farming permit regime. Under the proposed reforms, this advice will be provided to councils earlier on in the RMA process, when AMAs are established.

In terms of AMA establishment, the Government’s view is that the current approach to coastal planning needs to be modified in order to better reflect the public open space presumption in the coastal marine area. It proposes a more prescriptive planning approach to make it clear that occupation of coastal space is to be properly controlled. While the RMA already contains a presumption against allowing occupation of coastal space, a minor amendment to the RMA is intended to ensure that the law on this point is clear. Strengthening this presumption in law will thus ensure that occupation of coastal space is controlled properly by regional coastal plan provisions, including appropriate rules and zones. In addition, provision will be made in the law for aquaculture development to occur only within an AMA. (That restriction may later be extended to other occupations, but is not currently proposed).

Further, AMAs are intended to be for specified types of aquaculture (such as long line shellfish, caged fish, or spat catching). Where possible, performance standards are to be defined and the specified type of aquaculture within these zones may be a "controlled activity".18 Marine farming applicants will then know where they could apply for consents to occupy, and that the consent will be approved subject to conditions. In turn, this is intended to mean greater certainty in terms of RMA outcome for all parties, and avoid some of the stresses being felt by the community (including disenchantment with the planning process), and the transaction costs involved with considering applications on a case-by-case basis. Other stakeholders (including wild catch fishers and the community) would also have their interests considered at the regional coastal plan preparation stage, and so not need to make submissions on a series of applications lodged in the coastal marine area. At the same time, in order for an AMA to be effective, the use of the area outside the AMAs for aquaculture must be prohibited. The prohibited areas, effectively aquaculture exclusion areas, mean other users of the coastal marine area are protected from continual incremental expansion of marine farming installations.

Lastly, the reforms propose that within the AMAs, new rules and mechanisms will be put in place to allocate the available coastal space. As discussed earlier, under the current regime, regional councils must process the first application received for a given area, even if this covers all of the available space. Options for future allocation within AMAs include balloting or tendering. From the Government’s perspective, tendering areas within AMAs has the advantage of identifying the highest valued use, whilst also generating revenue. For that reason, it proposes that within AMAs tendering would be the default approach to allocation of coastal space for private use. Any alternatives to tendering in AMAs would need to be established through provisions in the relevant regional coastal plan.

Further, any tender would be for the right to lodge an application for a resource consent. Beyond that, the AMA would give greater certainty, particularly where controlled activity status is possible. Regional coastal plans would also indicate the likely conditions that would be applied, including the term of any resource consent19 and, in limited circumstances, whether the site would be subject to re-tender at the end of the term. Any tender money would be returned if the applicant’s application for a resource consent is not granted.

Broadly, tendering is therefore intended to be an instrument to implement regional coastal plan provisions, and it is intended that regional councils would run the tender process. The legislation would provide that where a regional council establishes an AMA, it must allocate the right to apply for consent to occupy blocks of a size determined by the council within the AMA by tender. Either coastal plans or the tender documents will indicate whether the intent is to re-tender the block at end of a specified period, and regional councils will be given guidance on re-tendering and any Treaty of Waitangi implications that has. In the event that areas are intended to be provided as part of Treaty settlements, this would be done through specific legislation implementing the individual settlement concerned.

CONCLUSION

In summary, it is clear that the rapid expansion of aquaculture in New Zealand has created significant problems for regulatory authorities, applicants, and potential submitters alike. Deficiencies in the mechanisms for allocating space in the coastal marine area, together with a slowness in fully appreciating differences between land-based and coastal marine planning issues have contributed to a ‘gold rush’ halted only by the imposition of a moratorium. Difficulties in scientific predictions on the effect of large-scale marine farming on coastal ecological values have also proven to be an obstacle to integrated, and fully informed decision-making.

The Government’s response seeks to address these issues in a single reform package, with the objectives of:

  • Equitable distribution of the inshore fishery resource;
  • Conserving fisheries resources;
  • Reducing conflict among maritime user groups and fishery user groups;
  • Avoiding undermining the Treaty of Waitangi Fisheries Deed of Settlement;
  • Recognising the legitimate rights of commercial and customary fisheries stakeholders; and
  • Ensuring that the adverse effects of aquaculture are properly managed.

The proposed reform package comprises a more prescriptive, managed approach to aquaculture activities, and will incorporate guidance from central government agencies on how to limit the cumulative environmental effects of marine farming.

There is no doubt that a more streamlined, efficient, and informed application process is necessary. However, whilst the proposals provide clearer direction to, and responsibilities for the regulatory agencies involved, it remains to be seen how those proposals will in practice resolve existing difficulties in allocating space in the coastal marine area, and then managing the activities that occur in areas set aside. One aspect of the process that has not yet attracted much attention is the fact that putting in place the envisaged regional coastal plan provisions is likely to take several years, especially given past experience with finalising such plans through hearings before regional councils and the Environment Court. Aquaculture industry figures have already expressed concern that the Government has put the brakes on a developing industry too hard, and further complaints about delay and cost must be expected in the future

Nevertheless, the present initiatives are a step in the right direction, and are the result of several years of review and consideration. It is therefore to be hoped that regional councils move forward pro-actively with their new powers and responsibilities (when those are settled and enacted), and that appropriate support is given to them by the Government.

Acknowledgment

The authors acknowledge the use of material available on the Ministry for the Environment’s website in the preparation of this paper, and recommend the link below to readers interested in reviewing the full reform proposals in particular.

Bibliography

Resource Management Act ("Salmon"), Auckland, Data Services Ltd, 1991

Resource Management, Wellington, Brooker’s 1991.

Internet Sites

Ministry for the Environment: www. mfe.govt.nz/management/aquaculture.htm

Ministry for Fisheries: www.fish.govt.nz

Trade New Zealand: www.tradenz.govt.nz

New Zealand Seafood Industry: www.seafood.co.nz

Footnotes

1 The Rock Oyster Farming Act 1964, and the Marine Farming Act 1968.

2 Pursuant to the Resource Management (Aquaculture Moratorium) Amendment Act 2002 passed on 25 March 2002.

3 "Environment" is defined in the Resource Management Act 1991 as including:

(a) Ecosystems and their constituent parts, including people and communities; and

(b) All natural and physical resources; and

(c) Amenity values; and

(d) The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.

4 Certificates of compliance confirm that activities are "permitted", and may be undertaken without resource consent.

5 Even so, currently, an oyster farming area in the northern part of the North Island is under threat of closure due to poorly managed sewage discharges to the coastal marine area. Faecal coliform and related bacterial counts are such that both the local industry and individual livelihoods are at stake.

6 Albeit that this figure represents only 0.28% of GDP. However, it forms a significant proportion of total New Zealand fisheries exports, which were NZ$1.48b in 2000. Source; Trade New Zealand.

7 Source; "Vision 2020", New Zealand Aquaculture Council Inc.

8 See, for example, Golden Bay Marine Farmers v Tasman District Council, W 42/01, Environment Court, 27 April 2001; and Kuku Mara Partnership (Forsyth Bay) v Marlborough District Council, W 25/02, Environment Court, 16 July 2002 respectively.

9 The same ‘rule’ operates in relation to all resources under the RMA.

10 Determined by the New Zealand Court of Appeal in Fleetwing Farms Limited v Marlborough District Council [1997] 3 NZLR 257; [1997] NZRMA 385.

11 Since a 1997 amendment to the RMA.

12 Section 152(4)(a) of the RMA.

13 The purpose of the RMA, stated in section 5 of the Act, requires applicants and functionaries to "promote the sustainable management of natural and physical resources" by avoiding, remedying or mitigating adverse effects on the environment.

14 W 25/02, 16 July 2002. Marlborough District Council was the respondent, rather than a regional council, as it is a "unitary authority" – it performs the role and functions of both a district and a regional council under the RMA.

15 Harrison v Tasman District Council [1994] NZRMA 193; Trio Holdings v Marlborough District Council, (1996) ELRNZ 353.

16 "Access" has the added dimension of access by Tangata Whenua to their traditional seafood harvesting areas. See Aqua King Ltd (Anakoha Bay) v Marlborough District Council, W 71/97, Environment Court, 30 June 1997.

17 Possibly, but not expressly, in accordance with "the precautionary principle".

18 That is, approval (resource consent) must be granted, subject only to the regional council’s discretion to impose conditions in certain defined categories.

19 Resource consents cannot be granted for a period in excess of 35 years under the RMA; section 123.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions