Marine and Coastal Area (Takutai Moana) Act 2011

  • This version was replaced on 16 January 2019 to make a correction to section 23(3) under section 25(1)(j)(iv) of the Legislation Act 2012

Schedule 1 Resource consents and controls in protected customary rights area

ss 55(5), 56(5)

Part 1 Matters relevant to applications

1 Determination of adverse effects

In determining whether a proposed activity will, or is likely to, have an adverse effect on the exercise of a protected customary right, a consent authority must consider the following matters:

(a)

the effects of the proposed activity on a protected customary right; and

(b)

the area that the proposed activity would have in common with the relevant protected customary rights area; and

(c)

the degree to which the proposed activity must be carried out to the exclusion of other activities; and

(d)

the degree to which the exercise of a protected customary right must be carried out to the exclusion of other activities; and

(e)

whether an alternative location or method would avoid, remedy, or mitigate any adverse effects of the proposed activity on the exercise of the protected customary right; and

(f)

whether any conditions could be included in a resource consent for the proposed activity that would avoid, remedy, or mitigate any adverse effects of the proposed activity on the exercise of the protected customary right.

2 Written approval

(1)

This clause applies if—

(a)

a protected customary rights group gives written approval under section 55(2) for a resource consent for a proposed activity; and

(b)

the proposed activity, if carried out under the resource consent, would have the effect of preventing, in whole or in part, the exercise of a protected customary right.

(2)

The protected customary rights group must acknowledge in writing that the resource consent, if granted, would have the effect described in subclause (1)(b).

(3)

Both the written approval given under section 55(2) and the written acknowledgement required by subclause (2)—

(a)

form part of the application for the resource consent for the proposed activity; and

(b)

if a resource consent is granted, form part of the resource consent for that activity.

(4)

An approval given by a protected customary rights group is not able to be revoked.

3 Process if grant of resource consent has effect of cancelling protected customary right

(1)

If the effect of carrying out an activity under a resource consent granted in the circumstances contemplated by clause 2 would be permanently to cancel a protected customary rights order or agreement, in whole or in part,—

(a)

the protected customary rights group must apply, as the case requires,—

(i)

to the High Court under section 111 to vary or cancel the order; or

(ii)

to the responsible Minister to vary or cancel an agreement; and

(b)

a decision by the consent authority to grant a resource consent for the proposed activity is of no effect until the application referred to in paragraph (a) has been—

(i)

determined by the High Court under section 111 and all appeal rights have been pursued, and registered under section 114; or

(ii)

agreed to by the responsible Minister as if it were an application for an agreement to which sections 95, 96, and 114 apply.

(2)

If the High Court or the responsible Minister, as the case requires, declines an application to cancel a protected customary rights order, the relevant resource consent must be treated as if it were declined by the consent authority.

4 Assessment of effects of exercise of protected customary rights

(1)

An enforcement officer authorised in writing for the purpose by a local authority may do any of the following for the purpose of assessing the effects on the environment of the exercise of a protected customary right:

(a)

carry out surveys, investigations, tests, or measurements:

(b)

take samples of any water, air, soil, or vegetation:

(c)

enter or re-enter land (except a dwelling house).

(2)

These powers may be exercised—

(a)

at any reasonable time; and

(b)

with or without assistance, vehicles, appliances, machinery, or equipment reasonably necessary for the purpose.

Part 2 Controls on exercise of protected customary rights

Power to impose controls

5 Power to impose controls

(1)

The Minister of Conservation may impose controls (including terms, standards, and restrictions) on the exercise of a protected customary right, but only if the Minister considers that—

(a)

the exercise of a protected customary right has, or may have, a significant adverse effect on the environment; and

(b)

the controls—

(i)

will not prevent the exercise of the right; and

(ii)

are reasonable and, in the circumstances, not unduly restrictive; and

(iii)

are necessary to avoid, remedy, or mitigate any significant adverse effects of the exercise of the right on the environment.

(2)

However, the Minister of Conservation must not impose controls on the exercise of a protected customary right under subclause (1) unless the Minister—

(a)

has received a copy of an adverse effects report under clause 12 or carried out his or her own adverse effects assessment and completed a report on that assessment; and

(b)

has consulted with the relevant protected customary rights group and the Minister of Māori Affairs.

(3)

The Minister may seek any other relevant information and views before imposing controls.

(4)

The Minister of Conservation must not undertake an assessment under this clause if, before he or she has begun an assessment, the relevant regional council notifies the Minister of Conservation under clause 9 that it is carrying out an adverse effects assessment of the protected customary right in accordance with clause 8.

(5)

The Minister of Conservation must give written notice of his or her decision to carry out an adverse effects assessment under this clause not later than 5 working days after making that decision to—

(a)

the relevant regional council; and

(b)

the relevant protected customary rights group.

6 Matters relevant to consideration

The Minister of Conservation, when considering whether to impose controls on the exercise of a protected customary right,—

(a)

must have regard to—

(i)

the effects on the environment of exercising the right; and

(ii)

any adverse effects report received by the Minister in relation to the exercise of the right; and

(iii)

the views expressed by the persons with whom the Minister has consulted; and

(iv)

any other relevant information and views that the Minister has received; and

(b)

may have regard to—

(i)

any relevant national policy statement:

(ii)

the New Zealand coastal policy statement:

(iii)

the relevant regional policy statement or proposed regional policy statement:

(iv)

any relevant plan or proposed plan.

7 Timing and giving of notice

The Minister of Conservation must—

(a)

decide whether to impose controls on the exercise of a protected customary right no later than 60 working days after—

(i)

receiving an adverse effects report on the matter from the regional council; or

(ii)

giving notice under clause 5(5) that the Minister will be carrying out his or her own assessment; and

(b)

give written notice of his or her decision, and the reasons for it, to—

(i)

the relevant regional council; and

(ii)

the relevant protected customary rights group; and

(iii)

the Minister of Māori Affairs; and

(iv)

the chief executive.

Adverse effects assessment and reporting

8 Adverse effects assessment

(1)

For the purpose of imposing controls on the exercise of a protected customary right under this Part, a regional council must, if directed by the Minister of Conservation at any time, and may of its own initiative in the circumstances set out in subclause (3),—

(a)

carry out an adverse effects assessment of the effects on the environment of exercising a protected customary right in its region; and

(b)

complete, and give to the Minister, an adverse effects report based on that assessment.

(2)

If a regional council is directed under subclause (1), it must begin the adverse effects assessment not later than 5 working days after receiving the direction.

(3)

If a regional council has not been notified by the Minister of Conservation that the Minister intends to carry out his or her own adverse effects assessment, the regional council may, of its own initiative, carry out an adverse effects assessment of, and prepare an adverse effects report on, the exercise of the protected customary right.

(4)

However, the regional council may only carry out an assessment if—

(a)

it begins the assessment, for any reason, not later than 20 working days after a protected customary rights order or an agreement is registered under section 114; or

(b)

at any time after the expiry of the 20 working day period referred to in paragraph (a), it considers that the effects of exercising the protected customary right on the environment are, or are likely to be, materially different from those effects considered when, whichever is the later,—

(i)

the controls were last imposed; or

(ii)

the controls were last reviewed under this schedule.

9 Notification

(1)

A regional council must give written notice regarding an adverse effects assessment in relation to the exercise of a protected customary right if—

(a)

it decides to carry out an adverse effects assessment under clause 8(3); or

(b)

in the period between the date that the relevant protected customary rights order or an agreement is registered and 20 working days after that date, it decides not to carry out an adverse effects assessment; or

(c)

it is directed by the Minister of Conservation under clause 8(1) to begin an adverse effects assessment.

(2)

The written notice must be given to the Minister of Conservation and the relevant protected customary rights group.

(3)

Written notice given under subclause (1) must be given—

(a)

for an assessment required by the Minister of Conservation under clause 8(1), not later than 5 working days after receiving a direction from the Minister:

(b)

for an assessment under clause 8(4)(a) or (b), not later than 5 working days after deciding to carry out an adverse effects assessment:

(c)

for a decision referred to in subclause (1)(b), not later than 25 working days after the protected customary rights order or agreement is registered.

10 Process and relevant considerations for adverse effects assessment

A regional council, in carrying out an adverse effects assessment under this Part,—

(a)

must seek the views of the relevant protected customary rights group; and

(b)

may seek any other relevant information; and

(c)

must have regard to—

(i)

the effects on the environment of the exercise of a protected customary right; and

(ii)

any relevant information and views it has received; and

(d)

may have regard to—

(i)

any relevant national policy statement:

(ii)

the New Zealand coastal policy statement:

(iii)

its regional policy statement or proposed regional policy statement:

(iv)

any relevant plan or proposed plan.

11 Adverse effects report

(1)

A regional council must complete its adverse effects assessment and adverse effects report no later than 40 working days after giving notice of the assessment under clause 9.

(2)

The regional council must include in that report—

(a)

details of the protected customary right and the effects on the environment of its exercise; and

(b)

an outline of the information received and any views expressed by the relevant protected customary rights group; and

(c)

whether it considers that the exercise of the protected customary right has, or may have, a significant adverse effect on the environment; and

(d)

its recommendations (if any) to the Minister of Conservation on any controls it considers the Minister of Conservation should impose under clause 5(1); and

(e)

the reasons for any recommendations.

12 Report to Minister of Conservation and protected customary rights group

No later than 5 working days after completing an adverse effects report, a regional council must give a copy to the Minister of Conservation and the relevant protected customary rights group.

Review of controls

13 Review

The Minister of Conservation may—

(a)

review, in accordance with clauses 14 and 15, controls imposed on the exercise of a protected customary right; and

(b)

after reviewing the controls,—

(i)

confirm them; or

(ii)

revoke them; or

(iii)

revoke them and impose new controls (which may include some or all of the reviewed controls).

14 Procedure for review

(1)

If the Minister of Conservation reviews controls under clause 13, he or she must either—

(a)

request the regional council—

(i)

to carry out an adverse effects assessment; and

(ii)

prepare an adverse effects report under clauses 8 to 12; or

(b)

notify the regional council that the Minister will carry out an adverse effects assessment under clause 5(5).

(2)

Clauses 5 to 7

(a)

apply (with all necessary changes) to a review of controls imposed by the Minister of Conservation; and

(b)

are to be read, in relation to a review, as if all references in those clauses to controls imposed by the Minister of Conservation on the exercise of a protected customary right were references to controls on that right imposed or confirmed by the Minister after a review.

15 Timing of review

(1)

The Minister of Conservation—

(a)

may review the controls imposed on the exercise of a protected customary right at any time; and

(b)

must carry out a review of those controls if the protected customary rights group requests a review in writing.

(2)

A protected customary rights group may request a review only if—

(a)

at least 2 years have passed since the controls were imposed or since they were last reviewed; or

(b)

the protected customary rights group considers, on reasonable grounds, that the effects of the exercise of a protected customary right on the environment are, or are likely to be, materially different from those effects considered when, whichever is the later,—

(i)

the controls were last imposed; or

(ii)

the controls were last reviewed under this Part of this schedule.