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Aquaculture Aquaculture reform
Aquaculture Management Areas (AMAs)
Introducing Aquaculture Management Areas (AMAs)
Minister of Conservation's intervention power
Undue adverse effects test (UAE)
Introducing Aquaculture Management Areas (AMAs)
What is an AMA?
An AMA is an area zoned specifically to allow for marine farms – no new aquaculture will be allowed if it is not inside an AMA. AMAs will be defined, mapped and described in the regional coastal plans developed by each regional and unitary council. A resource consent is required for every marine farm in an AMA.
AMAs allow regional and unitary councils to manage and balance some of the competing demands for water space - for example, the sheltered waters needed for marine farms are also popular as anchorages. Once an AMA is established, other activities will only be allowed inside it if they are compatible with aquaculture.
How are AMAs established?
New AMAs must be specified in each regional and unitary council’s regional coastal plan. This process can be initiated in two ways, either by:
- The council, or
- Through a private plan change. Private plan changes can be either “normal” or “invited”
The process for changing a regional coastal plan to create a new AMA is the same as already provided for in the First Schedule of the Resource Management Act 1991 (RMA), with one addition - there is an additional test under the Fisheries Act, to ensure that creating an AMA won’t cause undue adverse effects on commercial, recreational or customary fishing. The test is undertaken by the Ministry of Fisheries and more information is available here.
As part of its plan change process, the council must follow the normal requirements, such as consultation and considering environmental effects.
Finally, the Minister of Conservation must approve the regional coastal plan before it becomes operative.
Once the plan is operative, councils can allocate space in the new AMA.
To help ease the introduction of the new aquaculture legislation, nearly all existing marine farms are automatically deemed as AMAs. More on this below.
How do the deemed AMAs work?
The law automatically makes all existing marine farms AMAs, except when these farms are in areas where the regional coastal plan specifically prohibits marine farming. Marine farms in prohibited areas can continue until their consent expires, but they will not be able to get a new consent. Consents have a maximum term of 35 years.
Activities allowed in an AMA will match those specified as “permitted” in the regional coastal plan or proposed regional coastal plan. For example, the plan may “permit” certain marine species to be farmed, but not others.
What role does the Minister of Conservation have?
The Minister of Conservation has three opportunities to get involved in the process to create a new AMA.
First, the council needs to consult with the Department of Conservation to establish whether the proposed AMA includes any areas of significant conservation value, or whether there is anything of relevance in the New Zealand Coastal Policy Statement. Second, the Department can (but does not have to) make a submission on the proposal. Third, the Minister of Conservation has the final say on whether a new AMA will be established, as the Minister is responsible for approving regional coastal plans, including any changes or variations to those plans.
As well as the above responsibilities, the Minister of Conservation also has special roles in creating interim AMAs and allocating space within an AMA.
The Minister also has a Power of Direction.
Can the Minister of Conservation veto proposals in the regional coastal plan?
The Minister of Conservation gives the final approval to a regional coastal plan, plan change or variation. However, the Minister cannot just arbitrarily veto plans. The Department operates under a policy of 'no surprises' and will work with councils to flag any contentious issues when the planning process begins, and as it moves through its different stages. Also, the grounds for refusing to approve plans are limited to matters on which the Minister made a submission to the Environment Court.
Private plan changes
Tell me about the invited private plan change
There are two types of private plan change – one is called “invited”, the other is referred to as “normal”.
The aquaculture reform allows councils to “invite” prospective marine farmers to undertake a private plan change to create a new AMA. If an “invited private plan change” is successful, the proponent benefits by being given a preferential allocation of space.
Under the “normal” private plan change route, where the council has not invited the proposal, there is no guarantee that the proponent will receive space.
A second difference between the two processes is that, in the invited private plan change, councils can first identify and notify areas where marine farming is specifically not allowed – “excluded areas”. The council can then invite requests for plan changes. Depending on who applies, the council can adopt any request or part thereof, or combine a number of requests.
Whether an “invited” or a “normal” private plan change, the normal statutory process for a plan change applies. The applicants of the plan change pay the costs.
What are excluded areas?
Excluded areas are basically ‘no go’ areas for marine farming. They give the aquaculture industry and community certainty about where a proposal for an AMA is more likely to succeed.
Excluded areas could include places with existing structures (such as marinas or ports), navigation lanes, or areas of high conservation or landscape value.
Before the council notifies excluded areas, it must carry out consultation with the public in the same way it would consult for a proposed plan change.
Do excluded areas have an expiry date?
Excluded areas exist only for the purposes of the invited private plan change. Once the invited private plan change process is complete, the excluded areas no longer exist. This means that the council will need to reconsider what areas to exclude the next time it wants to invite private plan changes.
Changes to AMAs
How are AMAs changed?
Plan changes or reviews can modify or remove AMAs. This follows the same public process as for creating an AMA. If the modification involves shifting the AMA, or increasing its size or intensity, the process will also include the Undue Adverse Effects on fishing activity test.
Existing marine farmers have some protection against changes – if an AMA is removed from the plan, the affected farmer can continue farming until their coastal permit expiries. However, they would not be able to renew their coastal permit.
I just want a small extension to my farm. Do I need to go though a plan change process?
If a proposal to increase the size of a farm falls outside of an established AMA, a plan change is required. However, plan changes for smaller areas are generally simpler, quicker and less expensive than plan changes for larger areas. Groups of marine farmers seeking small extensions to their individual farms could also combine their plan changes so that there is a single plan change dealing with multiple extensions, meaning that costs are shared.
Do I need a plan change to change the species being farmed?
The conditions of the AMA are subject to the provisions of the plan. If a plan specifies that the particular species is not permitted in a particular AMA, then a plan change will be needed. If the plan allows a species to be farmed, then the marine farmer can seek a variation in their consent conditions to allow them to farm that species. If the plan is silent on whether a particular species can be farmed, then the marine farmer should be able to seek a variation to their consent conditions. It does, however, depend on what else the plan says. Marine farmers should approach their council or seek legal advice in this situation.
Allocating space
How is space in new AMAs allocated?
Between 20 and 40 percent of new space in an AMA will be used as Treaty settlement space for AMAs created by the council or through a normal private plan change.
The council then allocate authorisations in the remaining space. The authorisation gives the holder the ability to apply for a coastal permit for that particular area.
The default mechanism for allocating space is tendering; however, the council can specify another allocation mechanism in its coastal plan.
For invited private plan changes, the proponent of the plan change receives a preferential allocation of space. A maximum of twenty percent of the new space created will still be used as Treaty settlement space.
I’ve been allocated space. Can I start farming?
The council allocates authorisations to apply for a coastal permit over a particular area. A coastal permit is still required before any marine farming operations can begin. This requirement also applies to Treaty settlement space or space created through an invited private plan change.
Does holding an authorisation guarantee me a coastal permit?
No. The council would still need to go through the normal resource consent process, and there is a chance that a consent could be declined. However, the chances of the resource consent being declined would be low, as the consideration of environmental effects would have been done at the AMA stage.
My coastal permit is expiring soon. Will the council put that space up for tender?
The default under the RMA is that the existing consent holder’s application would be considered before all others, subject to some additional criteria. A council can change this default through its plan – and it could specify a new allocation method for space occupied by existing marine farms.
However, there are several hurdles a council must cross before this could happen. Any plan change must go through public consultation, and through any Environment Court appeal.
The RMA also specifies that the council can only change the default where it is “necessary” to provide for an allocation method and if it is “appropriate”. This is a high threshold and indicates to the council that changing the default should be done cautiously and sparingly.
I’ve got an authorisation, but I no longer need it. Can I sell it?
Authorisations can be transferred to any other person. The transfer does not take effect until the regional council receives written notice.
How long are authorisations valid for?
Authorisations are valid for 2 years. An application for a coastal permit must be made within that time period.
What happens to the tender money?
The tender money is split 50:50 between the regional council and the Crown. The regional council must use its share for resource management purposes in the coastal marine area. The Crown’s share goes into the Crown Bank Account.
The tender money will be returned to the marine farmer if an authorisation lapses.
Minister of Conservation's intervention power
What is the intervention power used for?
The RMA gives the Conservation Minister power to intervene in the allocation of coastal space, including that involving aquaculture. The Minister is able to:
- direct how a council intends to allocate marine farming space – through its regional coastal plan
- prevent space from being allocated
- direct the maximum term of a coastal permit, and
- direct that a specific site be allocated to the Crown.
The Minister’s intervention power enables the Crown to give effect to Government policy in the coastal marine area.
How will the Minister use the intervention power?
The Minister’s power of intervention is exercised through an Order in Council. An Order in Council giving effect to the intervention power is made by the Governor General on the recommendation of Cabinet.
When would the intervention power be used?
If the Minister wants to intervene in how the council allocates space for marine farming, this occurs either before the plan is notified, or when it is finally approved. The intervention power is not subject to the RMA First Schedule process.
If the Minister wants to prevent space from being allocated, or to direct that a specific site is allocated to the Crown, this happens before the council begins its formal allocation round.
The Minister cannot use the intervention power to affect existing consents during the term of that consent.
Undue adverse effects test
What is the Undue Adverse Effects (UAE) test?
The UAE test looks at whether a proposed AMA would have an undue adverse effect on customary, recreational or commercial fishing. The assessment is made by the Ministry of Fisheries (MFish) under the Fisheries Act 1996.
The UAE test is done before the proposed plan is notified. MFish has six months to make a decision on the test, provided no additional information is needed.
What will the Ministry of Fisheries consider when making a decision?
In deciding whether a proposed AMA will have an undue and adverse effect on fishing, MFish will consider:
- the location of the AMA in relation to areas where fishing is carried out
- the effect of the AMA on any particular fishery, including the proportion of the fishery likely to become affected
- the degree to which aquaculture activities within the AMA will lead to the exclusion of fishing
- the extent to which fishing for particular species in the AMA can be carried out in other places
- the extent to which the AMA will increase the cost of fishing
- the cumulative effect on fishing of this proposal when combined with existing and/or former aquaculture activities.
What happens if an area of the AMA is deemed to have an undue adverse effect on customary, recreational or commercial fishing?
If part of a proposed AMA is found to have an undue adverse effect on customary or recreational fishing, then it will be deleted from the proposal.
If part of a proposed AMA is found to have an undue adverse effect on commercial fishing, these areas are 'tagged' (see below for more information on ‘tagging’). Anyone who wants to farm in the AMA must first get agreement from affected fishers before the area can be allocated under the RMA. See Aquaculture agreements for more information.
Does that mean that marine farming in customary fishing reserves, such as mataitai reserves or taiapure, is not allowed?
When it assesses a proposed AMA that includes all or part of a customary fishing reserve, MFish will determine whether there is any marine farming activity that would not have an undue adverse effect on customary fishing. Its decision will depend on the nature of the customary use in the area and the nature of the proposed aquaculture.
Aquaculture agreements
What is a tagged area?
A tagged area is space where MFish has determined that marine farming will have an undue adverse effect on commercial fishing. These areas will be identified in the regional coastal plan. If any person wants to farm in these areas, they must first seek the agreement of the affected fishers.
Can marine farms be located in tagged areas?
Yes, provided 90 per cent of all affected fishers agree. This threshold reduces the chances of a single fisher “holding out” and blocking aquaculture in an area. The marine farmer must ask the High Court for consent to proceed in relation to those people who did not agree. MFish must notify the regional or unitary council that agreement has been reached before the council can accept an application for a coastal permit or allocate the area in some other way.
Will the Ministry of Fisheries identify the fishers that need to give their agreement in "tagged" areas?
Yes, MFish will provide applicants with a list of affected fishers in tagged areas.
How long does an area remain "tagged"?
If an agreement is reached for all or part of the "tagged" area, then the area covered by the agreement reverts to being a normal part of the AMA.
If no agreement is reached within the time allowed (see below), then the "tagged" area is automatically removed and will not form part of the AMA.
How will agreements with affected fishers be reached in "tagged" areas?
The law does not prescribe how agreements will be reached. It will be up to the marine farmer and the fisher. MFish provides an approval form for marine farmers and fishers to register their agreement.
How long will interested parties have to reach agreement with fishers?
Once the council announces it intends to allocate space in a ‘tagged’ area, interested parties have six months to reach agreement with affected fishers. An interested party can also seek a three-month extension from MFish if it is considered necessary to complete an agreement.
Can I appeal the results of an UAE test?
The UAE test can be appealed to the High Court within three months from when the decision is publicly notified. Judicial review of the process is also possible – again within three months.
Where can I get more information?
The Ministry of Fisheries is responsible for the UAE test and aquaculture agreements.
Interim AMAs
What is an interim AMA?
Interim AMAs are designed to help regional and unitary councils whose previous work to create marine farming zones was interrupted by the aquaculture reform. Interim AMAs give councils a shortcut to establish AMAs if they had identified an area and notified their proposed regional coastal plan before the Aquaculture Reform Act came into force on 1 January 2005. These councils can now apply to the Minister of Conservation to have the relevant areas declared interim AMAs. Interim AMAs may become a proper AMA once MFish has conducted the undue adverse effects test and made any necessary modifications.
Last updated: 30 August 2006
