New Zealand Legislation: Acts
Acts are laws made by Parliament
Reprint
as at 28 September 2008
| Public Act | 2004 No 109 |
| Date of assent | 21 December 2004 |
| Commencement | see section 2 |
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.
A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.
This Act is administered by the Ministry for the Environment.
Repeal of Marine Farming Act 1971 and transitional provisions relating to repeal
17 Holder of deemed coastal permit to be treated as holder of fish farm registration pending registration by chief executive
27 Order of processing applications and request for aquaculture decision in relation to aquaculture management area or interim aquaculture management area
29 Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive
31 Application to register as fish farmer to be declined if marine farming permit or spat catching permit declined
Transitional provisions relating to end of moratorium under Resource Management Act 1991
Interim aquaculture management areas
44 Interim aquaculture management area becomes aquaculture management area following aquaculture decision
Deemed aquaculture management areas
Existing applications and coastal permits
Pre-moratorium and pre-commencement applications for coastal permits
51 Regional council must request aquaculture decision if application for coastal permit declined or withdrawn
57 Regulations [Expired]
This Act is the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.
(1) Section 33 comes into force on a date to be appointed by the Governor-General by Order in Council.
(2) The rest of this Act come into force on 1 January 2005.
The purpose of this Act is—
(a) to repeal the Marine Farming Act 1971 and provide for transitional matters relating to the repeal; and
(b) to repeal certain provisions in Part 4A of the Fisheries Act 1983 and provide for transitional matters relating to the repeal; and
(c) to provide for transitional matters relating to the ending of the moratorium under the Resource Management Act 1991.
(1) This Act is arranged as follows:
(a) sections 6 to 17 repeal the Marine Farming Act 1971 and deal with transitional matters arising from the repeal:
(b) sections 18 to 33 repeal certain provisions in the Fisheries Act 1983 (relating to marine farming) and deal with transitional matters arising from the repeals:
(c) sections 34 to 54 deal with transitional matters relating to the ending on 31 December 2004 of the moratorium established under the Resource Management (Aquaculture Moratorium) Amendment Act 2002 on the granting of coastal permits for aquaculture activities:
(d) sections 55 to 58 deal with some general matters.
(2) The arrangement of this Act does not necessarily enable certain situations and the relevant provisions to be readily identified.
(3) The table at the end of this section refers to certain situations and the relevant provisions in a different order based on arranging situations in a sequence in which they are likely, in practice, to occur.
(4) The purpose of this section is to present alternative arrangements for ease of reference, and nothing in this section limits or affects the other provisions of this Act.
| Situation | Section | |
|---|---|---|
| Pre-moratorium resource consent applications | 50 (Pre-moratorium and pre-commencement applications for coastal permits not subject to moratorium) | |
| 51 (Regional council must request aquaculture decision if application for coastal permit declined or withdrawn) | ||
| 20 or 21 (Marine farming permits and certain spat catching permits deemed to be coastal permits) | ||
| 24 (Objections to decisions made under sections 20(3) and 21(3)) | ||
| 28 (Lapsing of parts of coastal permit) | ||
| 29 (Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures on coastal marine area) | ||
| 52 (Areas excluded from interim aquaculture management area or aquaculture management area) | ||
| Pre-commencement early uplift applications | 46 (Pending applications where moratorium ends before 31 December 2004) | |
| Pending applications when moratorium ends on close of 31 December 2004 | 47 (Pending applications where moratorium ends on close of 31 December 2004) | |
| Holder of a coastal permit issued under the Resource Management Act 1991 and a marine farming permit issued under the Fisheries Act 1983, both in force at commencement of this Act | 20 (Marine farming permits deemed to be coastal permits) | |
| 24 (Objections to decisions made under sections 20(3) and 21(3)) | ||
| 28 (Lapsing of parts of coastal permit) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures in coastal marine area) | ||
| 29 (Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive) | ||
| 32 (Levies) | ||
| Holder of a coastal permit issued under the Resource Management Act 1991 and a spat catching permit issued under section 67Q(2) of the Fisheries Act 1983, both in force at commencement of this Act | 21 (Certain spat catching permits deemed to be coastal permits) | |
| 24 (Objections to decisions made under sections 20(3) and 21(3)) | ||
| 28 (Lapsing of parts of coastal permit) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures in coastal marine area) | ||
| 29 (Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive) | ||
| 32 (Levies) | ||
| Existing application for new permit under Fisheries Act 1983 or change of conditions of permit under Fisheries Act 1983 | 27 (Order of processing applications and request for aquaculture decision in relation to aquaculture management area or interim aquaculture management area) | |
| 25 (Completion of certain matters pending at commencement of Act) | ||
| 20 or 21 (Marine farming permits and certain spat catching permits deemed to be coastal permits) | ||
| 24 (Objections to decisions made under sections 20(3) and 21(3)) | ||
| 28 (Lapsing of parts of coastal permit) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures in coastal marine area) | ||
| 29 (Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive) | ||
| 30 (Application to register fish farmer deferred pending decision on permit) | ||
| 31 (Application to register as fish farmer to be declined if marine farming permit or spat catching permit declined) | ||
| 32 (Levies) | ||
| 52 (Areas excluded from aquaculture management area or aquaculture management area) | ||
| New applications for new permits under Fisheries Act 1983 | 26 (Applications after commencement of Act) | |
| 27 (Order of processing applications and request for aquaculture decision in relation to aquaculture management area or interim aquaculture management area) | ||
| 20 or 21 (Marine farming permits and certain spat catching permits deemed to be coastal permits) | ||
| 24 (Objections to decisions made under sections 20(3) and 21(3)) | ||
| 28 (Lapsing of parts of coastal permit) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures in coastal marine area) | ||
| 29 (Holder of deemed coastal permit to be treated as holder of fish farmer registration pending registration by chief executive) | ||
| 30 (Application to register fish farmer deferred pending decision on permit) | ||
| 31 (Application to register as fish farmer to be declined if marine farming permit or spat catching permit declined) | ||
| 32 (Levies) | ||
| 52 (Areas excluded from interim aquaculture management area or aquaculture management area) | ||
| Surrender of permits under Fisheries Act 1983 | 25(4) (Completion of certain matters pending at commencement of Act) | |
| Review of permits under Fisheries Act 1983 | 25(5) (Completion of certain matters pending at commencement of Act) | |
| Holder of a lease or licence issued under the Marine Farming Act 1971 in force at commencement of this Act (including forfeiture) | 8 (Application) | |
| 10 (Leases and licences deemed to be coastal permits) | ||
| 12 (Approvals under Harbours Act 1950) | ||
| 16 (Certain matters to be completed under principal Act) | ||
| 13 (Mortgages and charges) | ||
| 14 (Subleases and sublicences) | ||
| 53 (Off-site farms) | ||
| 56 (Restriction on erection of structures in coastal marine area) | ||
| 17 (Holder of deemed coastal permit to be treated as holder of fish farm registration pending registration by chief executive) | ||
| 49 (Preferential right for deemed permit holder to apply for coastal permit for occupation) | ||
| Existing application to change conditions of lease or licence issued under the Marine Farming Act 1971 | 15 (Applications to extend term) | |
| 16 (Certain matters to be completed under principal Act) |
(1) In this Act unless the context otherwise requires, aquatic life, fish, fishing, and seaweed have the same meaning as in section 2(1) of the Fisheries Act 1996.
(2) In this Act, the commencement of this Act means 1 January 2005.
In sections 7 to 17, the Marine Farming Act 1971 is called “the principal Act”
.
The principal Act is repealed.
(1) Sections 9 to 17 apply to every lease or licence that—
(a) has been executed under the principal Act; and
(b) is in force immediately before the commencement of this Act.
(2) For the purposes of sections 9 to 17, a variation of a lease or licence made under section 13 of the principal Act and in force immediately before the commencement of this Act is to be treated as a condition of the lease or licence.
In sections 10 to 17, unless the context otherwise requires, deemed coastal permit means a lease or licence that is deemed to be a coastal permit under section 10(1).
(1) On and from the date specified in subsection (2), each lease and licence is deemed to be a coastal permit granted under the Resource Management Act 1991.
(2) For the purposes of subsection (1), the date is—
(a) the commencement of this Act; but
(b) if section 16 applies, the date on which the application referred to in that section is determined.
(3) A deemed coastal permit is subject to the same conditions as applied to the lease or licence immediately before the date specified in subsection (2).
(4) The consent authority may, within 12 months after the commencement of this Act,—
(a) commence a review of a deemed coastal permit, including the conditions of the permit; and
(b) if it considers it necessary to do so, vary, add, or delete conditions for the purpose of making the conditions consistent with the Resource Management Act 1991.
(5) In exercising the power in subsection (4), the consent authority—
(a) may do so on its own initiative or after a request from the holder of the permit; but
(b) must not amend the species or area covered by the permit.
(6) To avoid doubt, a review under subsection (4) is a review of consent conditions for the purposes of section 120 of the Resource Management Act 1991.
(7) Sections 23 and 24 apply to a decision made by a consent authority under subsection (4), and that provision applies accordingly with all necessary modifications.
(8) A deemed coastal permit is to be treated as if it had been granted for a term of 20 years beginning on the commencement of this Act.
(9) A deemed coastal permit is to be treated as if it—
(a) authorises the holder to undertake aquaculture activities in the area specified in the lease or licence concerned to the extent consistent with the lease or licence as in force immediately before the date specified in subsection (2); and
(b) includes all the coastal permits that would otherwise have been required under sections 12 and 14 of the Resource Management Act 1991 to undertake those activities; and
(c) includes all the coastal permits that would otherwise have been required under section 15 of the Resource Management Act 1991 to undertake those activities to the extent that they were being undertaken at the commencement of this Act.
(10) Subsection (11) applies if, immediately before the date specified in subsection (2),—
(a) a variation has been made under section 13(1) or (3) of the principal Act to a lease or licence which authorises the farming of species of fish, aquatic life, or seaweed not authorised before the variation; and
(b) the holder of the lease or licence has not begun to farm the species of fish, aquatic life, or seaweed that the variation applies to.
(11) The holder of the lease or licence must not begin farming the species of fish, aquatic life, or seaweed referred to in subsection (10)(b) if doing so would have, or is likely to have, effects that are more adverse in character, intensity, or scale than the effects of farming the species of fish, aquatic life, or seaweed that the lease or licence applied to immediately before the variation.
(12) However, subsection (11) does not apply if the holder of the lease or licence is authorised to farm the species of fish, aquatic life, or seaweed concerned by—
(a) a permission that is deemed to be a coastal permit by section 384 of the Resource Management Act 1991; or
(b) a coastal permit granted under the Resource Management Act 1991; or
(c) a variation granted before 1 October 1991.
The chief executive of the Ministry of Fisheries must, within 3 months after the commencement of this Act, provide to each regional council details of the relevant leases and licences to which section 8 applies.
(1) Subsection (2) applies if a person holds—
(a) a deemed coastal permit; and
(b) an approval under section 178(1)(b) of the Harbours Act 1950 to erect structures for aquaculture activities that is—
(i) deemed to be a coastal permit under section 384 of the Resource Management Act 1991; and
(ii) in force immediately before the commencement of this Act.
(2) The deemed coastal permit referred to in subsection (1)(b)—
(a) becomes part of the deemed coastal permit referred to in subsection (1)(a) and subject to section 10; and
(b) lapses as an approval under the Harbours Act 1950.
(1) A lease or licence that, immediately before the commencement of this Act, is subject to a mortgage registered under section 15(2) of the principal Act continues, on and from the commencement of this Act, to be subject to the mortgage.
(2) A mortgage referred to in subsection (1) is to be treated as if it were a charge over a coastal permit, and section 122(3) and (4) of the Resource Management Act 1991 applies accordingly.
(3) If a mortgage referred to in subsection (1) is registered under the Personal Property Securities Act 1999, within 1 year after the commencement of this Act, no fee is payable for the registration.
A sublessee or sublicensee of a lease or licence that is subject to a sublease or sublicence immediately before the commencement of this Act must be treated as a person acting under a resource consent with the permission of the consent holder.
(1) An application to extend the term or period of a lease or licence under section 13(2) or (4) of the principal Act, made but not determined before the commencement of this Act, is cancelled.
(2) Subsection (1) does not apply to an application to extend the term or period of a lease or licence, if the lease or licence has expired before the commencement of this Act.
(1) An application to vary a lease or licence under section 13 of the principal Act, made but not determined before the commencement of this Act, must be continued and determined under the principal Act as if this Act had not been enacted.
(2) If a controlling authority has taken action to forfeit a lease or licence under section 14 of the principal Act, but the forfeiture has not been completed or discontinued before the commencement of this Act, then—
(a) the forfeiture may be completed or discontinued under the principal Act after the commencement of this Act; but
(b) until the forfeiture has been completed or discontinued, the other provisions of sections 9 to 15 and section 17 do not apply to the lease or licence.
(3) This section applies subject to section 15.
(1) The holder of a deemed coastal permit must be treated as a registered fish farmer under Part 9A of the Fisheries Act 1996 for the space that the deemed coastal permit relates to.
(2) Within 12 months after the commencement of this Act, the chief executive must register the holder of the deemed coastal permit as a fish farmer under section 186V of the Fisheries Act 1996 without an application or payment of the prescribed fee.
In sections 19 to 33, the Fisheries Act 1983 is called “the principal Act”
.
Amendment(s) incorporated in the Act(s).
(1) This section applies to every marine farming permit that—
(a) has been granted under section 67J of the principal Act; and
(b) is in force immediately before the commencement of this Act.
(2) On and from the commencement of this Act, each marine farming permit is deemed to be a coastal permit granted under the Resource Management Act 1991 for the species of fish, aquatic life, or seaweed and area referred to in the permit and on the same conditions as applied to the permit immediately before the commencement of this Act.
(3) The consent authority may, within 12 months after the commencement of this Act,—
(a) commence a review of the conditions of a coastal permit referred to in subsection (2); and
(b) if it considers it necessary to do so, vary, add, or delete conditions for the purpose of making the conditions consistent with the Resource Management Act 1991.
(4) In exercising the power in subsection (3), the consent authority—
(a) may do so on its own initiative or after a request from the holder of the permit; but
(b) must not amend the species or area covered by the coastal permit.
(5) To avoid doubt, a review of conditions under subsection (3) is a review of consent conditions for the purposes of section 120 of the Resource Management Act 1991.
(6) A coastal permit referred to in subsection (2) does not, of itself, authorise the holder to occupy a coastal marine area.
(1) This section applies to every spat catching permit that—
(a) has been granted under section 67Q(2) of the principal Act; and
(b) is in force immediately before the commencement of this Act.
(2) On and from the commencement of this Act, every spat catching permit is deemed to be a coastal permit granted by a consent authority under the Resource Management Act 1991 for the species of fish, aquatic life, or seaweed and area referred to in the permit and on the conditions as applied to the permit immediately before the commencement of this Act.
(3) The consent authority may, within 12 months after the commencement of this Act,—
(a) commence a review of the conditions of a coastal permit referred to in subsection (2); and
(b) if it considers it necessary to do so, vary, add, or delete conditions for the purpose of making the conditions consistent with the Resource Management Act 1991.
(4) In exercising the power in subsection (3), the consent authority—
(a) may do so on its own initiative or after a request from the holder of the permit; but
(b) must not amend the species or area covered by the coastal permit.
(5) To avoid doubt, a review of conditions under subsection (3) is a review of consent conditions for the purposes of section 120 of the Resource Management Act 1991.
(6) A coastal penult referred to in subsection (2) expires on the same date as the coastal permit that relates to the spat catching permit that is deemed by subsection (2) to be a coastal permit.
(7) A coastal permit referred to in subsection (2) does not, of itself, authorise the holder to occupy a coastal marine area.
The chief executive of the Ministry of Fisheries must, within 3 months after the commencement of this Act, provide to each regional council details of the relevant marine farming permits and spat catching permits to which sections 20 and 21 apply.
Section 36 of the Resource Management Act 1991 applies in relation to the functions of a consent authority under sections 10, 20, and 21 as if a review under any of those sections were a review under section 128 of the Resource Management Act 1991.
(1) The holder of a permit referred to in section 20(3) or section 21(3) has a right to object to a consent authority in respect of the consent authority's decisions made under those provisions.
(2) Sections 357(5) to (8) and 358 of the Resource Management Act 1991 apply in relation to an objection under this section.
(1) If a person to whom subsection (2) applies makes an application to which subsection (3) applies, the application must be continued and completed under the principal Act as if this Act had not been passed.
(2) This subsection applies to a person who holds—
(a) a coastal permit granted under the Resource Management Act 1991 to occupy a coastal marine area for a marine farming or spat catching activity; or
(b) a certificate of compliance granted under that Act to occupy a coastal marine area for marine farming or spat catching.
(3) This subsection applies to the following applications if received before but not determined at the commencement of this Act:
(a) an application under section 67J of the principal Act for a marine fanning permit:
(b) an application under section 67Q(2) of the principal Act for a spat catching permit:
(c) an application under section 67K of the principal Act to change or cancel any of the conditions of a marine farming permit or a spat catching permit, or to add new conditions to the permit.
(4) A notice of surrender under section 67O of the principal Act forwarded before but not processed at the commencement of this Act must be processed as if this Act had not been passed.
(5) A review under section 67P of the principal Act that has not been completed at the commencement of this Act must be completed as if this Act had not been passed.
(6) On and from the date on which a matter referred to in this section is completed under the principal Act,—
(a) section 20 applies to the permit if it is a marine farming permit granted under section 67J of the principal Act:
(b) section 21 applies to the permit if it is a spat catching permit granted under section 67Q(2) of the principal Act.
(7) For the purposes of subsection (6), sections 20 and 21 apply as if every reference in those sections to the commencement of this Act were a reference to the date on which the application was granted.
(1) Despite section 19, a person may (after the commencement of this Act) apply for a marine farming permit or a spat catching permit under the principal Act if—
(a) the person holds—
(i) a coastal permit to occupy a coastal marine area for the purpose of marine farming or spat catching; or
(ii) a certificate of compliance to occupy a coastal marine area for marine farming or spat catching; and
(b) the application is—
(i) under section 67J of the principal Act for a marine farming permit for the same area and the same species of fish, aquatic life, or seaweed that the coastal permit or certificate of compliance relates to; or
(ii) under section 67Q(2) of the principal Act for a spat catching permit for the same area and the same species of fish, aquatic life, or seaweed that the coastal permit or certificate of compliance relates to.
(2) The application must be made and determined under the principal Act as if this Act had not been passed.
(3) If the application is for a marine farming permit and the application is granted, section 20 applies to the permit as if every reference in that section to the commencement of this Act were a reference to the date on which the application was granted.
(4) If the application is for a spat catching permit and the application is granted, section 21 applies to the permit as if every reference in that section to the commencement of this Act were a reference to the date on which the application was granted.
(1) This section applies in relation to an aquaculture management area or an interim aquaculture management area in respect of which there are—
(a) 1 or more applications for permits under section 67J or section 67Q(2) of the principal Act; and
(b) a request for an aquaculture decision under section 186D of the Fisheries Act 1996.
(2) The applications for permits and request for an aquaculture decision must be dealt with in the following order:
(a) first, any application for a permit received before the request for the aquaculture decision:
(b) second, the request for an aquaculture decision:
(c) third, any application for a permit received after the request for an aquaculture decision.
(1) This section applies to the following permits held by the same person:
(a) a marine farming permit or spat catching permit that is deemed to be a coastal permit under section 20 or section 21; and
(b) a coastal permit granted under the Resource Management Act 1991 that—
(i) is in force immediately before the commencement of this Act; and
(ii) applies to the area or part of the area and 1 or more of the species of fish, aquatic life, or sea-weed that the permit referred to in paragraph (a) relates to.
(2) If the permits do not apply to the same species of fish, aquatic life, or seaweed, then the coastal permit referred to in subsection (1)(b)—
(a) has effect only in relation to the species of fish, aquatic life, or seaweed that the permit referred to in subsection (1)(a) applies to; and
(b) is to be treated as having lapsed in relation to the species of fish, aquatic life, or seaweed that the permit referred to in subsection (1)(a) does not apply to.
(3) If the permits do not apply to the same area, then the coastal permit referred to in subsection (1)(b)—
(a) has effect only in relation to the area that the permit referred to in subsection (1)(a) applies to; and
(b) is to be treated as having lapsed in relation to the area that the permit referred to in subsection (1)(a) does not apply to.
(1) The holder of a deemed coastal permit under section 20 or section 21 must be treated as a registered fish farmer under Part 9A of the Fisheries Act 1996 for the space that the deemed coastal permit relates to.
(2) Within 12 months after the commencement of this Act, the chief executive must register the holder of the deemed coastal permit as a fish farmer under section 186V of the Fisheries Act 1996 without an application or payment of the prescribed fee.
(1) The chief executive must not grant or decline an application under section 186S of the Fisheries Act 1996 to register a fish farmer if—
(a) the applicant has a resource consent to use the space concerned as a fish farm that was granted—
(i) before the commencement of this Act; or
(ii) under an application to which section 50 applies; and
(b) the applicant—
(i) has not made an application under section 67J or section 67Q(2) of the Fisheries Act 1983 for the area, or part of the area, to which the resource consent relates; or
(ii) has made an application under section 67J or section 67Q(2) of the Fisheries Act 1983 for the area, or part of the area, to which the resource consent relates, but the chief executive has not granted or declined the application.
(2) If the applicant makes or has made an application under section 67J or section 67Q(2) of the Fisheries Act 1983 and the application is granted, the chief executive may proceed to grant or decline the application under section 186S of the Fisheries Act 1996 to register the applicant as a fish farmer.
(3) This section does not prevent the chief executive from granting or declining an application under section 186S of the Fisheries Act 1996 if the applicant has had an application under section 67J or section 67Q(2) of the Fisheries Act 1983 granted in respect of other space and this section does not otherwise apply in relation to that space.
(1) The chief executive must decline an application under section 186S of the Fisheries Act 1996 to register a fish farmer if the applicant—
(a) has made an application under section 67J or section 67Q(2) of the Fisheries Act 1983 for the area or part of the area to which the resource consent relates; and
(b) the chief executive has declined the application.
(2) This section does not prevent the chief executive from granting or declining an application under section 186S of the Fisheries Act 1996 if the applicant has had an application under section 67J or section 67Q(2) of the Fisheries Act 1983 granted in respect of other space.
(1) Subsection (2) applies to a levy or fee under the Fisheries (Cost Recovery Levies for Fisheries Services) Order 2004 payable by the holder of—
(a) a marine farming permit under section 67J of the Fisheries Act 1983; or
(b) a spat catching permit under section 67Q(2) of the Fisheries Act 1983.
(2) A levy or fee that is, immediately before the commencement of this Act, payable but unpaid remains payable even though the permit is deemed to be a coastal permit under section 20 or section 21.
(1) The Freshwater Fish Farming Regulations 1983 (SR 1983/278) are revoked.
(2) All licences granted under the Freshwater Fish Farming Regulations 1983 are revoked.
(3) Section 2(1) of the Fisheries Act 1996 is amended by repealing paragraph (b) of the definitions of fish farm and fish farmer.
(4) Sections 186ZA and 301 of the Fisheries Act 1996 are repealed.
(5) On and from the commencement of this section the holder of a fish-farm licence immediately before the commencement of this section is to be treated as if the holder were registered as a fish farmer under section 186S of the Fisheries Act 1996.
(6) The chief executive must, within 12 months after the commencement of this section, register without an application or payment of the prescribed fee the holder of a fish-farm licence under the Freshwater Fish Farming Regulations 1983 immediately before the commencement of this section as a fish farmer in respect of the space that the licence relates to.
(7) An application for a fish-farm licence under regulation 6 of the Freshwater Fish Farming Regulations 1983 made but not determined at the commencement of this section must be treated as if it were an application to register as a fish farmer under section 186R of the Fisheries Act 1996.
In sections 35 to 54, the Resource Management Act 1991 is called “the principal Act”
.
In sections 36 to 54,—
aquaculture decision means a determination or reservation
chief executive means the chief executive of the Ministry of Fisheries
determination, in relation to an interim aquaculture management area, means a decision by the chief executive that he or she is satisfied that the interim aquaculture management area will not have an undue adverse effect on fishing or on the sustainability of fisheries resources
interim aquaculture management area—
(a) means a coastal marine area described in an Order in Council made under section 150C of the principal Act or section 36 of this Act; but
(b) does not include a coastal marine area described in paragraph (a) if the area is an aquaculture management area under section 44 of this Act
reservation, in relation to an interim aquaculture management area, means a decision by the chief executive that he or she is not satisfied that the interim aquaculture management area will not have an undue adverse effect on fishing or on the sustainability of fisheries resources.
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister of Conservation, declare a coastal marine area described in the order to be an interim aquaculture management area.
(2) The Minister must not make a recommendation unless—
(a) the regional council concerned has requested the Minister to make the recommendation; and
(b) a regional coastal plan or proposed regional coastal plan—
(i) has, before the commencement of this Act, been notified under clause 5 of Schedule 1 of the principal Act; and
(ii) applies to the coastal marine area to be described in the Order in Council; and
(c) the Minister is satisfied that he or she has received adequate information to base a recommendation on; and
(d) the Minister is satisfied that—
(i) the regional coastal plan or the proposed regional coastal plan provides for aquaculture activities as a controlled or restricted discretionary or discretionary or non-complying activity in the area that the request relates to; and
(ii) the provisions of the plan or proposed plan adequately address the adverse effects (including cumulative effects) on the environment (other than fisheries resources) of the occupation of a coastal area and of aquaculture activities.
(3) The Minister must make a recommendation under subsection (1) within 3 months after receiving a request if the Minister is not prevented by subsection (2) from making the recommendation.
(4) For the purposes of subsection (3), section 37 of the principal Act applies, with all necessary modifications, as if the Minister were acting as a consent authority.
(1) A regional council may request the chief executive to make an aquaculture decision in relation to an interim aquaculture management area.
(2) However, a regional council must not make a request in relation to an area to which section 39(a), (b), or (c) applies.
(1) Within 6 months after receiving a request for an aquaculture decision under section 37, the chief executive must—
(a) make a determination; or
(b) make a reservation; or
(c) make 1 or more determinations or reservations or both in relation to different parts of the area.
(2) The chief executive may request the regional council that requested the aquaculture decision and any person whose interests may be affected to provide him or her with further information about the effects that the interim aquaculture management area would have on access to or displacement of fishing or the sustainability of fisheries resources.
(3) For the purposes of subsection (1), the period beginning on the day when a request for further information is made and ending on the day when the information is provided is excluded from the 6-month period referred to in subsection (1).
(4) Before making an aquaculture decision, the chief executive must—
(a) consult the persons and organisations that the chief executive considers represent the classes of persons having a customary, commercial, or recreational fishing interest in the interim aquaculture management area; and
(b) consider any submissions made by those persons and organisations.
(1) The chief executive must not make an aquaculture decision if the decision would apply to an area for which—
(a) a coastal permit under the principal Act authorises occupation for the purposes of an aquaculture activity; or
(b) a deemed coastal permit under section 10 or section 20 or section 21 is in force; or
(c) an application for a coastal permit under the principal Act to occupy a coastal marine area for the purpose of an aquaculture activity has been made but not determined.
(2) However, subsection (1)(c) does not apply to the following applications:
(a) applications to which section 150B(2) of the principal Act applies:
(b) applications made in the period beginning on 1 January 2005 and ending with the close of 9 May 2006.
Section 39(1)(c): amended, on 28 September 2008, by section 4(1) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 39(2): added, on 28 September 2008, by section 4(2) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
In deciding whether to make a determination or reservation, the chief executive must have regard only to the following matters:
(a) the effect of the interim aquaculture management area on—
(i) the biological diversity of the aquatic environment:
(ii) the productivity and biological abundance of fisheries resources:
(iii) habitats of known significance for fisheries management:
(b) the location of the interim aquaculture management area in relation to areas in which fishing is carried out:
(c) the effect of the interim aquaculture management area on fishing of any fishery, including the proportion of any fishery likely to become affected:
(d) the degree to which aquaculture activities within the interim aquaculture management area will lead to the exclusion of fishing:
(e) the extent to which fishing for a species in the interim aquaculture management area can be carried out in other areas:
(f) the extent to which the interim aquaculture management area will increase the cost of fishing:
(g) the cumulative effect on fishing of any previous aquaculture activities.
(1) An aquaculture decision must—
(a) be in writing; and
(b) define the areas that are subject to the decision; and
(c) provide reasons for the decision; and
(d) if the decision is a determination based on a rule in a regional coastal plan or proposed regional coastal plan that relates to the character, intensity, or scale of occupation of the interim aquaculture management area by aquaculture activities,—
(i) specify the rule; and
(ii) state that the rule may not be revoked or amended until the chief executive makes a further aquaculture decision in relation to the area affected by the revocation or amendment; and
(e) be notified to the regional council.
(2) If the chief executive makes a reservation, the reservation must also include—
(a) whether the reservation relates to customary, recreational, or commercial fishing or a combination of them; and
(b) if the reservation relates only to commercial fishing, the stocks and areas concerned, specifying any stocks subject to the quota management system, any stocks or species specified in Schedules 4C and 4D, and any stocks for species not subject to the quota management system; and
(c) any other matters required by regulations to be included.
(3) The chief executive must—
(a) publicly notify the fact that he or she has made a determination or reservation; and
(b) in the notice published for that purpose, include—
(i) the information specified in subsections (1) and (2); and
(ii) information about where a copy of the determination or reservation can be obtained.
(1) The following persons may appeal to the High Court against an aquaculture decision:
(a) the regional council that requested the aquaculture decision:
(b) any person consulted or who ought to have been consulted under section 38(4):
(c) any person who has an interest in the decision greater than the public generally.
(2) An appeal must be filed within 3 months after public notification of the aquaculture decision.
(3) The High Court may confirm or modify the aquaculture decision appealed against or substitute a different aquaculture decision.
Any person wishing to seek, under Part 1 of the Judicature Amendment Act 1972, judicial review of an aquaculture decision must do so within 3 months after the public notification of the decision.
(1) If the chief executive makes an aquaculture decision under section 38, the regional council must amend the regional coastal plan and any proposed regional coastal plan as follows:
(a) in the case of a determination, by noting on the plan the details of the determination:
(b) in the case of a reservation,—
(i) by noting on the plan the details of the reservation; and
(ii) if the reservation relates to the sustainability of fisheries resources or effects on customary or recreational fishing, by deleting from the plan the area or areas that the reservation relates to.
(2) However, if, when the aquaculture decision is made under section 38, an interim aquaculture management area is in a regional coastal plan, the regional council must comply with sections 9 to 12 of the Maori Commercial Aquaculture Claims Settlement Act 2004 before it complies with subsection (1).
(3) Schedules 1 and 1A of the principal Act do not apply to an amendment made under subsection (1).
(4) On and from the date on which the regional council complies with subsection (1), the interim aquaculture management area becomes an aquaculture management area.
(1) This section applies—
(a) to a coastal permit—
(i) that has been deemed to be a coastal permit under any of sections 10, 20, or 21; but
(ii) only to the extent contemplated by section 28; and
(b) subject to section 53.
(2) This section does not apply in respect of any space identified in a regional coastal plan or proposed regional coastal plan at the commencement of this Act as space in which aquaculture activities authorised by the coastal permit are prohibited.
(3) The area to which a coastal permit that this section applies to is deemed to be an aquaculture management area for the purposes of the principal Act and, if the relevant plan is not operative, the relevant plan must be treated as if it were operative.
(4) The deemed aquaculture management area is subject to the provisions of the regional coastal plan or proposed regional coastal plan that apply to the area.
(5) An area that is deemed to be an aquaculture management area by this section ceases to be an aquaculture management area if a plan that applies to the area becomes operative after the commencement of this Act and does not provide for the area to continue to be an aquaculture management area.
(1) This section applies to an application—
(a) that section 150B(2) of the principal Act applies to; but
(b) only to the extent that it relates to an area that an Order in Council made under section 150C(1) of the principal Act applies to.
(2) At the end of the moratorium, a consent authority must—
(a) resume processing an application; and
(b) process and determine the application under rules in the regional coastal plan, and in any proposed regional coastal plan, as at the end of the moratorium.
(3) For the purposes of subsection (1), rules in a proposed regional coastal plan include any rule prohibiting an activity if the plan has been notified under clause 5 of Schedule 1 of the principal Act.
(4) Subsection (3) applies subject to section 20 of the principal Act.
(1) This section applies to an application—
(a) that section 150B(2) of the principal Act applies to; but
(b) only to the extent that it relates to an area for which the moratorium expires on the close of 31 December 2004.
(2) After the end of the moratorium, a consent authority must resume processing an application; but only if and to the extent that the application relates to a regional coastal plan that provides for an aquaculture management area and the application relates to the aquaculture management area.
(3) An application referred to in subsection (2) must be processed and determined under the rules in the regional coastal plan and any proposed regional coastal plan at the time the consent authority resumes processing the application.
(4) However, a consent authority must not grant a coastal permit to occupy space for aquaculture activities in an aquaculture management area that is subject to a reservation relating to commercial fishing, except to a person specified in a notice given by the chief executive under section 186ZK of the Fisheries Act 1996 as the holder of an aquaculture agreement under that Act.
(5) An application is deemed to be cancelled on and from the date on which a proposed regional coastal plan is notified under clause 5 of Schedule 1 of the principal Act after the commencement of this Act if and to the extent that the application relates to an area covered by the plan and the plan provides for aquaculture management areas, but it does not include the area that the application relates to.
(6) An application is deemed to be cancelled on and from 31 December 2014 to the extent that, by that date,—
(a) no proposed regional coastal plan covering the area that the application relates to has been notified under clause 5 of Schedule 1 of the principal Act; or
(b) a proposed regional coastal plan covering the area that the application relates to has been notified under clause 5 of Schedule 1 of the principal Act, but the plan contains no aquaculture management areas.
(7) This section—
(a) prevails over Part 7A of the principal Act; but
(b) applies subject to the Maori Commercial Aquaculture Claims Settlement Act 2004.
(8) In this section, aquaculture management area does not include an area that is deemed to be an aquaculture management area under section 45.
(1) This section applies to a coastal permit if—
(a) the application for the permit was notified during the moratorium but before the commencement of the Resource Management (Aquaculture Moratorium) Amendment Act 2002; or
(b) the consent authority decided, during the moratorium but before the commencement of the Resource Management (Aquaculture Moratorium) Amendment Act 2002, not to notify the application for the permit.
(2) However, this section does not apply to a coastal permit for aquaculture activities that relates to a coastal marine area that, immediately before the moratorium, was subject to—
(a) a coastal permit; or
(b) a marine farming lease or licence under the Marine Farming Act 1971.
(3) No person may do anything under a coastal permit until the moratorium has expired in relation to the area that the permit relates to.
(4) At the end of the moratorium, a regional council may—
(a) review the conditions in a coastal permit; and
(b) amend the conditions so that they comply with the rules in the regional coastal plan and any proposed regional coastal plan that apply at the end of the moratorium.
(5) If a coastal permit relates to a restricted coastal activity, section 119A of the principal Act applies in relation to the amendment of conditions under subsection (4)(b).
(6) At the end of the moratorium,—
(a) no person may carry on any aquaculture activities under a coastal permit in any area in which aquaculture is prohibited; and
(b) the coastal permit ceases to have any effect and is deemed to be cancelled.
(7) For the purposes of section 125 of the principal Act, the commencement date of a coastal permit is the later of—
(a) the day after the date on which the moratorium ceases to apply to the coastal permit; or
(b) the day after the date on which the regional council notifies the holder of the permit of the result of a review under subsection (4).
(8) Sections 357 and 358 of the principal Act apply to a decision by a regional council to amend conditions under subsection (4).
(1) Subsection (2) applies if—
(a) a person holds a lease or licence that is deemed to be a coastal permit by section 10; and
(b) the deemed coastal permit relates to an area in an aquaculture management area; and
(c) the person is giving effect to the deemed coastal permit.
(2) No person, other than the permit holder, may apply for a coastal permit to occupy the area that the deemed coastal permit relates to.
(3) However, subsection (2) does not apply if—
(a) the permit holder consents in writing to the application; or
(b) the coastal permit has expired and—
(i) the holder of the permit has not applied for a new coastal permit to occupy the same area to undertake an aquaculture activity; or
(ii) the holder of the permit has applied for a new coastal permit for the same area and the application has been refused and all appeals against the refusal have been withdrawn or dismissed; or
(c) the coastal permit has lapsed under section 125 of the principal Act; or
(d) the coastal permit has been cancelled under section 126 of the principal Act; or
(e) the coastal permit has been surrendered under section 138 of the principal Act.
(4) This section does not limit or affect section 124 of the principal Act.
(1) Subsection (2) applies to an application for a coastal permit under the principal Act to occupy a coastal marine area for aquaculture activities if the application—
(a) was made before the commencement of this Act; and
(b) is not subject to section 150B(2) of the principal Act; and
(c) has not been determined or withdrawn before the commencement of this Act.
(2) An application to which this subsection applies must be determined under the principal Act as if the Resource Management Amendment Act (No 2) 2004 had not been passed.
(3) A person who has made an application that subsection (2) applies to may apply, or continue with an application, for a marine farming permit under section 67J of the Fisheries Act 1983 or a spat catching permit under section 67Q(2) of that Act if the application under that Act relates to all or part of the area, and 1 or more of the species of fish, aquatic life, or seaweed, that the application that subsection (2) applies to relates to.
(4) An application under subsection (3) lapses if the application to which subsection (2) applies is—
(a) withdrawn; or
(b) declined and any appeal in relation to the declined application has been unsuccessful or withdrawn.
(5) If an application that subsection (2) applies to is granted, the application under subsection (3) must be determined under the Fisheries Act 1983 as if this Act had not been passed.
(6) If the application is for a marine farming permit and the application is granted, section 20 applies to the permit as if every reference in that section to the commencement of this Act were a reference to the date on which the application was granted.
(7) If the application is for a spat catching permit and the application is granted, section 21 applies to the permit as if every reference in that section to the commencement of this Act were a reference to the date on which the application was granted.
(1) This section applies to—
(a) an application for a coastal permit to occupy a coastal marine area for aquaculture activities if the application—
(i) is made before the commencement of this Act; and
(ii) is not subject to section 150B(2) of the principal Act; and
(iii) relates to part of an interim aquaculture management area; and
(iv) has been declined or withdrawn:
(b) a coastal permit if—
(i) it was granted under an application to which paragraph (a)(i) to (iii) applies; and
(ii) no marine farming permit or spat catching permit has been issued in relation to the coastal permit; and
(iii) the coastal permit—
(A) lapses under section 125 of the principal Act; or
(B) expires and the holder of the permit is not entitled under section 124 of the principal Act to continue to operate under the coastal permit; or
(C) is cancelled under section 126 of the principal Act; or
(D) is surrendered under section 138 of the principal Act.
(2) The regional council to which the application was made or which granted the coastal permit must request an aquaculture decision for the part of the interim aquaculture management area concerned.
(3) Sections 38 to 44 apply to the request.
Section 51(1)(a)(iii): amended, on 28 September 2008, by section 5(1) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 51(2): amended, on 28 September 2008, by section 5(2)(a) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 51(2): amended, on 28 September 2008, by section 5(2)(b) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 51(3): substituted, on 28 September 2008, by section 5(3) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
(1) This section applies to an application for—
(a) a marine farming permit under section 67J of the Fisheries Act 1983:
(b) a spat catching permit under section 67Q(2) of the Fisheries Act 1983.
(2) If the chief executive of the Ministry of Fisheries has declined an application to which this section applies, whether before or after the commencement of this Act, the regional council must delete from an interim aquaculture management area any area to which the application applies.
(3) If the chief executive of the Ministry of Fisheries has granted an application to which this section applies, whether before or after the commencement of this Act, the area to which the application relates is to be treated as if the chief executive had made a determination under section 38 of this Act in relation to it and section 44 applies accordingly.
Section 52 heading: amended, on 28 September 2008, by section 6(1) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 52(2): substituted, on 28 September 2008, by section 6(2) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
Section 52(3): substituted, on 28 September 2008, by section 6(2) of the Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92).
(1) This section applies to a deemed coastal permit under any of sections 10, 20, or 21 for which the actual space is not the authorised space.
(2) The holder of a deemed coastal permit may, within 2 years after the commencement of this Act, apply in writing to the consent authority to amend the permit to reflect the actual space.
(3) An application under this section must include—
(a) the description, to a standard approved by the consent authority, of the actual space; and
(b) the description of the authorised space; and
(c) an assessment of the adverse effects on the environment of the activity in the actual space, and of moving the activity to the authorised space (including the effects of moving the activity and the effects of the activity in the authorised space); and
(d) the reasons for and against amending the permit to reflect the actual space.
(4) Section 92 of the principal Act applies, with all necessary modifications, to an application under this section as if it were an application for a resource consent.
(5) After considering an application under this section and consulting the chief executive about it, the consent authority must—
(a) amend the deemed coastal permit as requested by the consent holder; or
(b) decline to amend the permit and require the consent holder to move the activity to the authorised space.
(6) Section 120 of the principal Act applies to a decision of the consent authority under subsection (5) as if the decision were a decision on a review of consent conditions.
(7) A deemed coastal permit amended under this section must not authorise the holder of the permit to occupy a space greater than the authorised space.
(8) A consent authority must advise the chief executive of its decision under subsection (5).
(9) As soon as practicable after receiving the advice under subsection (8), the chief executive must amend the fish farmer registration that the advice relates to.
(10) Sections 357(5) to (8) and 358 of the principal Act apply to a decision of the consent authority under subsection (5).
(11) Section 36 of the principal Act applies to the functions of the consent authority under this section as if an application to amend a deemed coastal permit were an application for resource consent.
(12) In this section,—
actual space means the space in relation to which the deemed coastal permit is being exercised
authorised space means the space specified in the deemed coastal permit.
(1) This section applies to deemed coastal permits to which section 53 applies.
(2) A consent authority may review a deemed coastal permit to the same extent and within the same time as if the holder of the permit had applied under section 53(2).
(3) For the purposes of subsection (2), section 53(5) to (12) applies with all necessary modifications.
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister of Fisheries, make regulations cancelling, on any coastal permit authorising the occupation of the coastal marine area for an aquaculture activity, conditions requiring the holder of the coastal permit to keep or provide accounts, records, returns, and information.
(2) Regulations made under subsection (1) apply only to coastal permits to which this Act applies.
A coastal permit does not authorise the erection of any structure for the purpose of an aquaculture activity unless—
(a) the area to which the coastal permit relates is in an interim aquaculture management area or an aquaculture management area; or
(b) the holder of the coastal permit also holds 1 of the following in respect of the area to which the coastal permit relates:
(i) a marine farming permit issued under section 67J of the Fisheries Act 1983; or
(ii) a spat catching permit issued under section 67Q(2) of that Act.
[Expired]
Section 57: expired, on 1 January 2007, by section 58.
Section 57 expires on the close of the earlier of the following dates:
(a) on a date to be appointed by the Governor-General by Order in Council; or
(b) 31 December 2006.
1General
2Status of reprints
3How reprints are prepared
4Changes made under section 17C of the Acts and Regulations Publication Act 1989
5List of amendments incorporated in this reprint (most recent first)
This is a reprint of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004. The reprint incorporates all the amendments to the Act as at 28 September 2008, as specified in the list of amendments at the end of these notes.
Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.
Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.
A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/legislation/reprints.shtml or Part 8 of the Tables of Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.
Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.
A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.
In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:
•omission of unnecessary referential words (such as “of this section”
and “of this Act”
)
•typeface and type size (Times Roman, generally in 11.5 point)
•layout of provisions, including:
•indentation
•position of section headings (eg, the number and heading now appear above the section)
•format of definitions (eg, the defined term now appears in bold type, without quotation marks)
•format of dates (eg, a date formerly expressed as “the 1st day of January 1999”
is now expressed as “1 January 1999”
)
•position of the date of assent (it now appears on the front page of each Act)
•punctuation (eg, colons are not used after definitions)
•Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly
•case and appearance of letters and words, including:
•format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)
•small capital letters in section and subsection references are now capital letters
•schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly
•running heads (the information that appears at the top of each page)
•format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).
Aquaculture Reform (Repeals and Transitional Provisions) Amendment Act 2008 (2008 No 92)
Aquaculture Reform (Repeals and Transitional Provisions) Act 2004: section 58