Aquaculture regulation before the Aquaculture Reform Act
Until 1991 (when the RMA was passed), permits for marine farming were issued by Fisheries authorities solely for farming and spat-catching activities. There was a two-year period between 1991 and 1993 when a resource consent could authorise occupation and the placement of marine farming structures, but there was no legislative provision allowing fish stock to be taken and held on those structures, or harvested from them. In 1993, the amendment to the Fisheries Act 1986 enforced a dual permitting system, requiring an RMA coastal permit from councils first (for occupation, structures and, if necessary, discharges), and then a marine farming or spat-catching permit under the Fisheries Act.
Under the Marine Farming Act 1971 the Ministry of Fisheries had the power to take forfeiture action against marine farms that breached the conditions on their lease or licence (typically if abandoned, undeveloped or in a state of disrepair). The Fisheries Act does not include a provision for forfeiture action, and neither does the RMA. Instead, councils have the responsibility for managing any adverse effects under the RMA and the ability to take enforcement action against consent holders who breach their consent conditions.
The Government instituted a moratorium on new marine farm consents at the end of 2001 to abate the large number of applications for marine farm space that were over-burdening the previous legislative and planning framework. There is still a backlog of such marine farming applications from the date of the moratorium, and these are being processed under the old legislative system.
Aquaculture reform legislation
The aquaculture reform legislation sought to create a more integrated aquaculture management regime in New Zealand, balancing economic development, environmental sustainability, Treaty of Waitangi obligations and community concerns. The reforms reduced the dual permitting system to a one-step process managed under the RMA, giving councils full responsibility for managing aquaculture in their regions.
The aquaculture reform legislation created a new process for aquaculture planning under the RMA. New marine farms can now only be established in areas specifically zoned for that use in regional coastal plans. These areas are called aquaculture management areas, often referred to as AMAs. The establishment of aquaculture management areas in regional coastal plans is by a plan change undertaken in accordance with the first Schedule of the RMA; i.e. involving a full public process. Plan changes to establish aquaculture management areas can be initiated by regional or unitary councils, or by private interests.
Existing marine farm leases and licences issued under the Marine Farming Act or a marine farming or spat-catching permit issued under the Fisheries Act have been deemed to be RMA coastal permits by transitional provisions.20 The transitional provisions also deem the areas with deemed coastal permits to be aquaculture management areas.
The roles and responsibilities of regional and unitary councils have been clarified. They are responsible for managing all the environmental effects of marine farming, including any effects on fisheries and other marine resources through the RMA process. There are also new provisions relating to the allocation of space in the coastal marine area.
Before the reform of the legislation, individual applications for new marine farms were assessed in terms of their effects on fishing and fisheries resources (i.e. the wider ecosystem) through an undue adverse effects test under the Fisheries Act. The reform legislation has narrowed the scope of the undue adverse test to customary, recreational and commercial fishing, and the test is undertaken on the proposed aquaculture management area as part of the aquaculture management area planning process before it is publicly notified (not on individual consent applications).
The aquaculture reform legislation also addressed Treaty of Waitangi claims to commercial aquaculture after 21 September 1992 by allocating 20% of new space and 20% of “pre-commencement space” to iwi. Pre-commencement space is space that was granted between 21 September 1992 and 31 December 2004, and includes space consented to after 31 December 2004 if the consents were applied for under the old legislation. The aquaculture reform legislation allows the Government to meet its obligation for 20% of pre-commencement space in three ways:
- it can require an additional 20% from new space where the plan change to establish the aquaculture management area was council initiated, or
- it can purchase existing marine farming space from 1 January 2008 onwards, or
- from January 2013 any remaining obligation to iwi can be covered by a financial equivalent.
Resource Management Act
The Resource Management Act 1991 aimed to create an integrated and legal framework for the management of environmental effects from all uses of land, air, fresh and marine waters, with the purpose of “promoting the sustainable management of natural and physical resources”. Sustainable management of natural and physical resources, as defined in the purpose of the Act, means managing the use, development and protection of natural and physical resources in a way, or at a rate, that enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while:
- sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations;
- safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
- avoiding, remedying and mitigating the adverse effects of activities on the environment.
The aim of the Act is permissive rather than prescriptive in the sense that the use and development of resources is permitted provided that the environmental outcomes are acceptable and sustainable.21
From a risk management perspective the RMA has given rise to a government agency (the Environmental Risk Management Authority), whose business is to assess the environmental impacts and risks of hazardous substances, as well as to a substantial body of case law and advisory documentation for councils from government departments such as the Ministry for the Environment and the Department of Conservation. This activity substantially reduces the risk of a council making a wrong decision with respect to consenting conditions, or the allocation of aquaculture management areas.
The creation of a new aquaculture management area, whether a council-initiated plan change or from a private plan change, is undertaken in accordance with the First Schedule of the RMA, involving a full public process. In some regions there is fierce competition for the use of space in the coastal marine area, and it is realistic that aquaculture management area creation could take five years or more.
All consents for marine farming are now under the RMA. Deemed coastal permits and new consents will have a finite consent duration, although the underlying aquaculture management area remains in the regional coastal plan unless specifically removed. Before the consent expires, the marine farmer will need to apply for a new consent. The holder of a deemed coastal permit from a former lease or licence has one preferential right of application for a further term of occupation under section 49 of the Transitional Act.
The RMA also provides a preferential right of application to the incumbent so long as the permit was in force at the time of application, applies to an area located in an aquaculture management area, and complies with section 124 of the RMA.
New Zealand Coastal Policy Statement
The New Zealand Coastal Policy Statement (NZCPS) is the only mandatory national policy statement under the RMA. The purpose of the NZCPS is to state policies to achieve the purpose of the RMA – to promote the sustainable management of natural and physical resources – in relation to the coastal environment of New Zealand.
The NZCPS sets out policies regarding the management of natural and physical resources in the coastal environment. Local authorities are required by the RMA to give effect to the NZCPS through their plans and policy statements. Resource consent decision-makers must also have regard to relevant NZCPS policies.
The Department of Conservation is currently reviewing the NZCPS as part of the statutory requirement under the RMA. Part of this review will give consideration to whether and how the NZCPS contributes to the Government’s goals for aquaculture by directly or indirectly addressing aquaculture activities. Another significant area of review is developing coastal water quality standards that may reduce the risks to aquaculture operations from coastal water contamination.
One of the key approaches being considered for this work is to use a risk assessment approach similar to that advocated in this report.
Regional coastal plans
Each regional council and unitary authority must prepare a regional coastal plan. Coastal plans are the only mandatory regional plans under the RMA. In the case of unitary authorities, the regional coastal plan may be part of the district plan. The rules within regional coastal plans define what type of activities can take place in that region’s coastal marine area, including types of marine farming. New aquaculture management areas are established as a plan change in accordance with Schedule 1 of the RMA and will be developed and consulted upon by councils or private interests accordingly.22
The Government’s aquaculture implementation team has almost completed a guide to aquaculture provisions in regional coastal plans.23 This guide provides support and advice on the aquaculture reform and its implications for new aquaculture provisions in regional coastal plans prepared under the RMA.
Local Government Act 2002
The Local Government Act 2002 is a key piece of reform relating to the powers and intent of local authorities. The Act states the purpose of local government as being:
- to enable democratic local decision-making and action by, and on behalf of, communities; and
- to promote the social, economic, environmental, and cultural wellbeing of communities, in the present and for the future.
Section 14 of the Act establishes a number of principles relating to the role and performance of local authorities. Those with particular relevance to sustainable development of resources are noted below:
- a local authority should ensure prudent stewardship and the efficient and effective use of its resources in the interests of its district or region; and
- in taking a sustainable development approach, a local authority should take into account:
- the social, economic, and cultural well-being of people and communities; and
- the need to maintain and enhance the quality of the environment; and
- the reasonably foreseeable needs of future generations.
The Sector Strategy states that aquaculture is an industry that sets out to be sustainable in the long term. In applying these Local Government Act principles to the resource consents for aquaculture activity, local authorities must finely balance consent conditions so social and economic wellbeing goals are achievable. They must also consider coastal communities where environmental quality may be at stake.
The Local Government Act gives specific direction to councils on collaboration to achieve outcomes:
- a local authority should collaborate and co-operate with other local authorities and bodies as it considers appropriate to promote or achieve its priorities and desired outcomes, and make efficient use of resources.
The wishes of Maori with respect to aquaculture and the special consultative provisions of both the Local Government Act and the Aquaculture Reform legislation also bring with them interesting aspects of consent provisioning to meet their specific requirements.
For plan changes to establish new aquaculture management areas, the Ministry of Fisheries undertakes an assessment of undue adverse effects (UAE) of proposed aquaculture management areas on recreational, customary and commercial fishing. This is called an aquaculture decision. Councils request the Chief Executive of the Ministry of Fisheries to make an aquaculture decision before publicly notifying a proposed plan change to establish an aquaculture management area. The Ministry of Fisheries has six months to make this decision, with a further three months during which the decision-making process can be contested (i.e. a judicial review). The Ministry of Fisheries can have input into aquaculture consent processes as a submitter if the consent application is publicly notified.
The Ministry of Fisheries also maintains a register of all freshwater and marine farms to track the movement of farmed products. The register keeps information such as the name of the fish farmer; the location and boundaries of the fish farm, and the species of fish, aquatic life or seaweed that may be farmed.
Other regulatory and legislative considerations
Maritime New Zealand guidelines
Maritime New Zealand has developed guidelines for the aquaculture industry and consent authorities on navigation-related matters. These guidelines cover the lighting and marking of marine farm structures in designated aquaculture management areas, but do not cover the location of designated aquaculture management areas. It is the responsibility of councils to ensure that existing and new aquaculture management area locations do not result in marine farms becoming navigational hazards, and to monitor farms for ongoing compliance. This makes up a significant component of councils’ compliance monitoring of marine farms.
New Zealand Food Safety Authority
The New Zealand Food Safety Authority (NZFSA) sets standards, regulations and specifications for human health acceptability for all commercial shellfish products for sale from New Zealand waters. Standards are implemented through sampling of harvested shellfish and routine testing of farm environments. This is a user-pays service to the industry, which delivers proof of market acceptability. The regulations and specifications were developed in 2006 and represent an exacting standard, which means that New Zealand shellfish products meet or exceed the food safety requirements of markets worldwide.
NZFSA can also classify areas as restricted or prohibited from harvesting shellfish due to the potential for human health impacts from waterborne contaminants. These classifications can be long term due to site conditions, or short term due to events (e.g. NZFSA sets the site-specific restrictions on harvesting due to rainfall events). The prohibited classification has never been imposed on an existing marine farm site.
This Act, administered by local authorities, provides for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings.
While at first it may not be apparent that there is a link between coastal marine aquaculture and this Act, a visit to any part of the industry will show quite clearly the operational importance of buildings. Onshore these include warehouses, processing plants, equipment stores, workshops and offices. In the case of finfish farms, the structures in the water may include living quarters. Future structures, especially if further offshore, may also include sizeable building structures to support their operations.
The Building Act has made new building or modifications more demanding, and it is taking longer to get them authorised. The risks related to the timing of new marine farm businesses now have an added planning complexity with the workings of this Act.
20 Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, sections 10, 20, 21 and 45.
21 MAF 2002. The Role of On-Farm Quality Assurance and Environmental Management Systems (QA/EMS) in Achieving Sustainable Agriculture and Sustainable Land Management Outcomes.
22 Instructive examples include Marlborough District Council’s zoning of the Marlborough Sounds (see http://www.marlborough.govt.nz/rma/imagemap_template.cfm) and Northland Regional Council’s aquaculture management area proposals (see http://www.nrc.govt.nz/upload/1850/Aquaculture%20Timeline% 20(Jun%2007).jpg).