Part 1
Amendments to Aquaculture Reform (Repeals and Transitional Provisions) Act 2004
Clause 3 provides that this Part amends the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.
Clause 4 amends section 10 which provides for certain leases and licences under the Marine Farming Act 1971 to be deemed coastal permits.
The amendments—
clarify when leases and licences that are subject to discontinued forfeiture become deemed coastal permits:
provide that the 12 month period for reviewing conditions of deemed coastal permits starts from when a lease or licence is deemed to be a coastal permit:
clarify the rights of objection against decisions about the review of conditions.
Clause 5 amends section 20 which provides for certain marine farming permits under section 67J of the Fisheries Act 1983 to be deemed coastal permits. The amendments—
provide that the 12 month period for reviewing conditions of deemed coastal permits starts from when a permit is deemed to be a coastal permit:
clarify the rights of objection against decisions about the review of conditions.
Clause 6 amends section 21 which provides for certain spat catching permits under section 67Q(2) of the Fisheries Act 1983 to be deemed coastal permits. The amendments parallel those made by clause 5.
Clause 7 repeals section 24. This is a consequential amendment arising from the amendments made by clauses 5 and 6.
Clause 8 amends section 25, which provides for certain applications under the Fisheries Act 1983, to be determined under that Act as if the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 had not been passed. The amendment is a drafting amendment to make section 25 subject to new section 25A inserted by clause 9.
Clause 9 inserts new sections 25A and 25B.
New section 25A applies to applications that section 25(1) applies to and that have not been determined as at the commencement of this Part of the Bill. The purpose of the new section is to defer an application being declined if the application does not meet the “undue adverse effects”
test but only in relation to commercial fishing. In such a case, a 6 month period is provided for the lodgement of an aquaculture agreement. If an aquaculture agreement is lodged within that time, the chief executive of the Ministry of Fisheries may grant the application.
New section 25B contains supplementary provisions for the purpose of new section 25A relating to obtaining further information and rights of appeal or objection.
Clause 10 amends section 26 which provides when applications for marine farming and spat catching permits can be made after the commencement of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004. The amendment inserts a new provision making section 26 subject to new section 26A.
Clause 11 inserts new sections 26A and 26B which relate to applications to which section 26 applies and which contain provisions that parallel those in new sections 25A and 25B.
Clause 12 amends section 27 which provides for the order in which certain applications and requests are to be processed. The amendment includes a reference to requests for aquaculture decisions under section 37.
Clause 13 amends section 45 which deems certain coastal permits to be aquaculture management areas. The purpose of the amendments is to clarify that those areas cease to be, or are modified as, aquaculture management areas only by regional coastal plans that expressly provide for that and that are notified after the commencement of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 or after the date which the coastal permit is deemed to be an aquaculture management area (if that occurs after the commencement of the that Act).
Clause 14 amends section 48. This is a technical drafting amendment.
Clause 15 amends section 50 to make it subject to new section 50A inserted by the next clause.
Clause 16 inserts new sections 50A and 50B which relate to certain applications referred to in section 50(3). The new section contains provisions that parallel those in new sections 25A, 25B, 26A, and 26B, inserted by clauses 9 and 11.
Clause 17 amends section 53 which provides for applications to amend deemed coastal permits to reflect the actual space they occupied. The amendments extend the period for making applications for 12 months after the Bill is passed and make technical changes to the appeal rights against decisions on application.
Clause 18 adds a Schedule to the principal Act. The Schedule contains additional provisions relating to aquaculture agreements for the purposes of new sections 25A, 26A, and 50A.
Part 2
Amendments to Fisheries Act 1996
Clause 19 provides that this Part amends the Fisheries Act 1996.
Clause 20 amends section 186C to insert a definition of expermential aquaculture activities. It incorporates the definition from the Resource Management Act 1991 as inserted by clause 32.
Clause 21 inserts a new section 186DA which applies to requests for aquaculture decisions made at the same time by persons requesting changes to a regional coastal plan or proposed regional coastal plan in response to invitations under section 165Z(1) or new section 165ZFA(1) of the Resource Management Act 1991.
The new section provides for the chief executive to make aquaculture decisions in the order agreed by the persons making the requests. If there is no agreed order, then the requests are processed according to the extent of their impact on fishing, but if the chief executive does not have sufficient information to do this, then the order is to be determined by ballot.
Clause 22 amends section 186S which deals with granting or declining applications to register a fish farmer. The amendment allows the chief executive to decline an application if the activity proposed by the applicant is the subject of an exemption under section 186Q.
Clause 23 amends section 186ZF which specifies the fishers whose consent is necessary for an aquaculture agreement. The amendments are technical changes relating to the time at which the persons whose consent is necessary is to be determined.
Clause 24 amends section 186ZI which specifies the period within which aquaculture agreements are to be lodged with the chief executive. The amendments are technical changes arising from the amendments made by clause 23.
Clause 25 amends section 186ZL which provides for certain memorials to be entered on the appropriate register under the principal Act. The amendments are technical changes.
Clause 26 inserts a new subpart 5 in Part 9A. New subpart 5 comprises new sections 186ZM to 186ZP which provide for applications to the chief executive for initial evaluations and assessments about the effect on fishing of proposals to undertake experimental aquaculture activities in certain areas. These new sections should be read in conjunction with the new sections inserted in the Resource Management Act 1991 by clause 63 which provides for the grant of coastal permits for experimental aquaculture activities.
Part 4
Amendments to Resource Management Act 1991
Clause 31 provides that this Part amends the Resource Management Act 1991.
Clause 32 amends section 2(1) which contains definition of terms. The amendments—
Clause 33 amends section 10 which protects certain existing uses in relation to land. It excludes from its application any use of land restricted under section 12. The amendment adds references to section 12A and new section 12C.
Clause 34 amends section 12 which specifies activities in the coastal marine area that are not to be done unless allowed by a rule in a regional coastal plan or proposed regional coastal plan or by a resource consent. The amendment clarifies that section 12(2)(a) does not apply to anything to which section 12A and new section 12C apply.
Clause 35 amends section 12A which contains restrictions on aquaculture activities in the coastal marine area and on other activities in aquaculture management areas. The amendments—
insert a new subsection (1A) which precludes applications for coastal permits authorising aquaculture activities except in an aquaculture management area in a regional coastal plan or under new subpart 4 of Part 7A (as inserted by clause 63):
clarify that coastal permits for aquaculture activities granted before the commencement of the Bill are to be treated as granted for the purpose of subsection (1)(b).
Clause 36 inserts new section 12C which prohibits a person from occupying a coastal marine area for experimental aquaculture activities unless authorised by coastal permit granted in accordance with new subpart 4 of Part 7A as inserted by clause 63. However, the new section does not apply to occupation for experimental aquaculture activities authorised by or under section 12A.
Clauses 37 and 38 consequentially amend sections 16 and 18 to insert references to new section 12C.
Clause 39 amends section 36 which authorises a local authority to fix certain charges. The amendment adds a new provision referring to certain matters relating to expressions of interest which are provided for in new sections 165ZFA to 165ZFI as inserted by clause 61.
Clauses 40 and 41 consequentially amend sections 43 and 87 to insert reference to new section 12C.
Clause 42 amends section 123 which specifies the duration of resource consents. The amendment provides that a coastal permit authorising experimental aquaculture activities that would otherwise contravene new section 12C is any period, not exceeding 5 years specified in the consent or, if no period is specified, 5 years.
Clause 43 amends section 124 which provides for the continuation of a resource consent while an application for a new consent is being processed. The amendment provides that the section does not apply to coastal permits for experimental aquaculture activities granted under new section 165ZK as inserted by clause 63.
Clause 44 amends section 125 which specifies when resource consents lapse. The amendment parallels the amendment made by clause 43 and provides that no application can be made to extend the period of a permit granted under new section 165ZK.
Clause 45 amends section 135 which provides for the transferability of coastal permits. The amendment precludes the transfer of permits for experimental aquaculture activities granted under new subpart 4 of Part 7A.
Clause 46 amends section 165A to clarify the definition of available space.
Clause 47 consequentially amends section 165C to insert reference to section 12A and new section 12C as inserted by clause 36.
Clause 48 amends section 165J which precludes applications for coastal permits for aquaculture activities in an aquaculture management area that is subject to a reservation in relation to commercial fishing unless an applicant holds an aquaculture agreement. The amendment provides an exception for coastal permits granted under new subpart 4 of Part 7A.
Clause 49 amends the heading to subpart 2 of Part 7A so that is reads “Invited private plan changes”
.
Clause 50 inserts a new section 165VA which provides that—
it is a general outline of subpart 2 of Part 7A and is not to limit or affect the meaning of the other sections of the subpart.
this subpart provides for regional councils to invite requests for a change to a regional coastal plan or proposed regional coastal plan to establish an aquaculture management area.
a regional council may invite requests by public notice—
before a regional council invites requests or expressions of interest for a change to a regional coastal plan or proposed regional coastal plan, the regional council must consider whether it should identify areas in the coastal marine area as excluded areas.
if the regional council decides that it should identify excluded areas, then before doing so it must comply with the consultation requirements in clauses 3 and 3B of Schedule 1.
a regional council must not invite requests or expressions of interest in relation to excluded areas.
a regional council cannot invite requests under section 165Z or expressions of interest under new section 165ZFA in relation to the same coastal marine area at the same time.
the purpose of inviting expressions of interest (as opposed to inviting requests for plan changes at the outset) is to enable a regional council to identify and resolve competition for the same space in the coastal marine area due to overlapping proposals for the establishment of aquaculture management areas.
if a regional council invites expressions of interest,—
(c) to the extent that that process does not resolve overlapping expressions of interest, then the regional council must invite the persons concerned to submit tenders and accept the highest tender. However, the regional council must use an alternative process if the alternative process is fair and reasonable and it has been adopted using the special consultative procedure in the Local Government Act 2002.
a person whose expression of interest has been accepted may request a plan change within the time specified in the notice under new section 165ZFI.
a regional council must process a request in accordance with section 165Z whether the request is made—
Clause 51 inserts a new heading “Excluded areas”
above section 165W.
Clause 52 makes drafting changes to section 165X consequential on the new provisions for expressions of interest as inserted by clause 61.
Clause 53 inserts a new heading “Limitations on requests and expressions of interest”
above section 165Y.
Clause 54 substitutes a new section 165Y which takes into account the new provisions for expressions of interest as inserted by clause 61.
Clause 55 inserts a new heading “Invitations to request change”
above section 165Z.
Clause 56 amends section 165Z(1A) consequential on the new provisions for expressions of interest inserted by clause 61, and to clarify the interrelationship between the section and section 165W.
Clause 57 repeals section 165ZB(2) and (3), and relocates and updates them in a new section 165ZBA inserted by clause 58.
Clause 59 makes drafting changes to section 165ZE.
Clause 60 makes drafting changes to section 165ZF.
Clause 61 inserts new heading “Expressions of interest”
and new sections 165ZFA to 165ZFI after section 165ZF. The general scheme of these provisions and their relationship with the provisions relating to invited private plan changes is set out in relation to clause 50.
Clause 62 amends section 165ZH which provides for an application for a coastal permit by an existing holder of certain coastal permits to be processed before other applications for the same space. The amendment excludes the section applying to coastal permits granted under new subpart 4 of Part 7A as inserted by clause 63.
Clause 63 inserts a new subpart 4 in Part 7A (comprising new sections 165ZK to 165ZQ) to provide for experimental aquaculture activities in the coastal marine area in areas that are not in an aquaculture management area in a regional coastal plan.
New section 165ZK provides for a consent authority to grant such permits.
New section 165ZL requires applications for coastal permits for experimental aquaculture activities to include a research proposal explaning why occupation of the coastal marine area, to the extent and period applied for, is reasonably necessary to undertake experimental aquaculture activities.
New section 165ZM lists a number of circumstances in which a consent authority must not grant a coastal permit for experimental aquaculture activities. An instance that applies to all applications is that a consent authority must decline an application unless the consent authority has received a notice from the chief executive of the Ministry of Fisheries that an assessment under new section 186ZO of the Fisheries is not required or, after an assessment, that the chief executive is satisfied that the application will not have an undue adverse effect on fishing.
New section 165ZN precludes a coastal permit for experimental aquaculture activities authorising occupation of more than 2 hectares of the coastal marine area.
New section 165ZO requires an application for a coastal permit for experimental aquaculture activities not to be processed if the area it relates to becomes an aquaculture management area in a regional coastal plan.
New section 165ZP clarifies that if, after a coastal permit for experimental aquaculture activities is granted, the area it relates to becomes an aquaculture management area in a regional coastal plan, then the permit does not lapse and is to be treated as having been granted for the purposes of new section 12C.
New section 165ZQ clarifies that Part 6 of the principal Act applies (subject to this subpart) to applications for coastal permits under the subpart to coastal permits granted under this subpart.
Clauses 64 to 68 make consequential drafting amendments to sections 165ZF, 330, 330A, 338, and 341.
Clause 69 amends section 401A which provides for transitional coastal occupation changes. The amendments defer the requirement for a regional coastal plan that is notified to include provisions relating to coastal occupation charges (if the plan does not already deal with charges) until 12 months after a new New Zealand Coastal Policy Statement has been published in the Gazette after the commencement of the Bill.