Aquaculture Legislation Amendment Bill (No 3)

21 New heading headings and sections 44A to 44N inserted

• The following heading headings and sections are inserted after section 44:

  “Allocation of authorisations to trustee

  “44A Overview of sections 44B to 44L

  • “(1) The purpose of sections 44B to 44L is to provide a process for allocation to the trustee of authorisations in respect of 20% of any space in an interim aquaculture management area in respect of which the chief executive has made a determination or a reservation relating to commercial fishing for stocks subject to the quota management system.

    “(2) Sections 44B to 44D provide a negotiating period for the persons specified in section 44B(2) to try to reach an agreement about the allocation of authorisations in respect of the space.

    “(3) Sections 44E to 44H provide a process for allocation of authorisations in respect of the space, if the persons specified in section 44B(2) have failed to reach agreement.

    “(4) Sections 44E to 44H apply only to the extent that an agreement is not entered into by the persons specified in section 44B(2) within the required period.

    “(5) Section 44I to 44L deal with the lodging of aquaculture agreements by the trustee and when authorisations allocated to the trustee lapse.

  “44B Notifications of period to negotiate and enter into agreement about 20% space

  • “(1) A regional council that is required to comply with this section under section 44(1) must notify the persons specified in subsection (2) that they have the period specified in subsection (3) to negotiate to enter into an agreement identifying 20% of the space referred to in section 44A(1) for allocation to the trustee.

    “(2) The persons who must be notified under subsection (1) are—

    • “(a) the trustee; and

    • “(b) any person who has applied for a coastal permit in relation to the space referred to in section 44A(1).

    “(3) The period for negotiation is 6 months beginning on the day after the date on which the persons specified in subsection (2) are notified under subsection (1).

    “(4) The period of 6 months specified in subsection (3) may, before the period expires, be extended by the regional council for a further 3 months if the regional council is satisfied that—

    • “(a) reasonable steps have been taken to reach an agreement; and

    • “(b) more time is required to reach an agreement.

  “44C Trustee to notify iwi aquaculture organisations of notice received from regional council

  • “(1) The trustee must, as soon as practicable after receiving a notice under section 44B, notify iwi aquaculture organisations (in accordance with subsection (2) or (3), as the case may require) that it has received the notice.

    “(2) If the notice received by the trustee relates to a regional coastline or harbour in respect of which the trustee has not made its determination as to settlement assets allocation entitlements under the Maori Commercial Aquaculture Claims Settlement Act 2004, then, in the notice given under subsection (1), the trustee must undertake to negotiate, on behalf of the iwi aquaculture organisations for all the iwi in relation to the regional coastline or harbour to which the space referred to in section 44A(1) belongs, an agreement (subject to their subsequent approval) with the other persons specified in section 44B(2) on the 20% of the space referred to in section 44A(1) in respect of which authorisations are to be issued to the trustee.

    “(3) If the notice received by the trustee relates to a regional coastline or harbour in respect of which the trustee has made its determination as to settlement assets allocation entitlements under the Maori Commercial Aquaculture Claims Settlement Act 2004, then, in the notice given under subsection (1), the trustee must seek instructions from all the iwi aquaculture organisations with an interest in the authorisations in accordance with the determination of settlement assets allocation entitlements as to whether—

    • “(a) the iwi aquaculture organisations themselves intend to negotiate an agreement; or

    • “(b) the iwi aquaculture organisations authorise the trustee to negotiate on their behalf.

  “44D Position at conclusion of negotiations

  • “(1) If, at the conclusion of the period for negotiations, there is no agreement, the regional council must proceed to comply with section 44E.

    “(2) If, at any time before the conclusion of the period for negotiations, there is an agreement that is in writing, signed by the parties to it, and delivered to the regional council, then the regional council—

    • “(a) is not required to comply with section 44E; and

    • “(b) must allocate to the trustee authorisations for the agreed space, in accordance with the agreement, as soon as practicable after receiving the agreement.

    “(3) In subsection (2), parties means,—

    • “(a) where the trustee has not made its determination as to settlement assets allocation entitlements,—

      • “(i) the trustee in order to confirm that the agreement has been entered into by the iwi aquaculture organisations for all the iwi in relation to the regional coastline or harbour to which the space referred to in section 44A(1) belongs; and

      • “(ii) the iwi aquaculture organisations referred to in subparagraph (i); and

      • “(iii) any applicant for a coastal permit in the space referred to in section 44A(1):

    • “(b) where the trustee has made its determination as to settlement assets allocation entitlements,—

      • “(i) the trustee in order to confirm that the agreement has been entered into by all the iwi aquaculture organisations with an interest in the authorisations, in accordance with the determination of settlement assets allocation entitlements; and

      • “(ii) the iwi aquaculture organisations referred to in subparagraph (i); and

      • “(iii) any applicant for a coastal permit in the space referred to in section 44A(1).

    “(4) For the purposes of this section, any space referred to in section 44A(1) must be treated as available for allocation of authorisations under the agreement.

    “(5) An application to which section 47A of this Act or section 150B(2) or 165BC of the principal Act applies is cancelled to the extent that the space to which it applies is agreed space, on and from the date of the agreement.

  “44E Allocation of authorisations to trustee

  • “(1) A regional council that is required to comply with this section under section 44D(1) must, by public notice, identify 20% of the space referred to in section 44A(1) for allocation to the trustee.

    “(2) The identified space must be representative of all the space in the space referred to in section 44A(1).

    “(3) The regional council must allocate to the trustee authorisations for the identified space as soon as practicable after the date on which the space is identified.

    “(4) For the purposes of this section, any space in the space referred to in section 44A(1) must be treated as available for allocation of authorisations.

    “(5) If the space referred to in section 44A(1) includes space that is subject to a reservation relating to commercial fishing for stocks subject to the quota management system, the representative space allocated to the trustee must include 20% of the space that is subject to the reservation and that is representative of all the space referred to in section 44A(1) that is subject to the reservation.

    “(6) In identifying whether space is representative for the purposes of this section, a regional council must have regard to—

    • “(a) the overall productive capacity of the space referred to in section 44A(1); and

    • “(b) the provisions of any regional coastal plan or proposed regional coastal plan that relate to the space referred to in section 44A(1).

    “(7) An application to which section 47A of this Act or section 150B(2) or 165BC of the principal Act applies is cancelled to the extent that the space to which it applies is identified space, on and from the date the identified space was publicly notified under subsection (1).

    “(8) This section applies subject to sections 44F and 44G.

  “44F Space to be allocated must be of economic size

  • “(1) The space identified under section 44E must be of an economic size.

    “(2) However, if it is not possible for a regional council to comply with subsection (1), the regional council must identify space that is of an economic size even though the space is not representative.

    “(3) However, if it is not possible for a regional council to comply with subsection (2), the regional council must identify space that comprises a single area.

    “(4) Space identified under subsection (2) or (3) must not have less than average productive capacity compared with the space referred to in section 44A(1) that it was originally intended to be representative of.

  “44G Allocation of authorisations to trustee in relation to staged developments and harbours

  • “(1) For the purposes of section 44E, if the space referred to in section 44A(1) includes space in a staged development or a harbour, then,—

    • “(a) to comply with section 44E(1), the public notice given by the regional council must identify 20% of the space referred to in section 44A(1) separately for each stage of the staged development or harbour; and

    • “(b) to comply with section 44E(2), that space must be representative of space referred to in section 44A(1) available at each stage of the staged development or harbour; and

    • “(c) to comply with section 44E(3), the regional council must allocate to the trustee authorisations for that space.

    “(2) The identification of space in a staged development under section 44E(1) is to be treated as an interim identification, and any necessary adjustments may be made at the time that authorisations for the space for that stage are made available for applications for coastal permits or allocation of authorisations.

    “(3) If the space to which a staged development applies is not made available for the allocation of authorisations or applications for coastal permits, the regional council must not allocate authorisations for that space to the trustee.

    “(4) In this section,—

    “harbour means a harbour listed in Schedule 2 of the Maori Commercial Aquaculture Claims Settlement Act 2004

    “staged development means provision in a regional coastal plan or the principal Act for space to become available for application for coastal permits or allocation of authorisations on a date later than the operative date of the regional coastal plan.

  “44H Appeal to Environment Court against regional council's decision

  • “(1) The following persons may appeal to the Environment Court against a decision of a regional council under any of sections 44E, 44F, and 44G:

    • “(a) an applicant for a coastal permit in the identified space:

    • “(b) an iwi aquaculture organisation:

    • “(c) a recognised iwi organisation:

    • “(d) any other person who has an interest in aquaculture activities in the region concerned greater than the public generally.

    • “(b) the trustee:

    • “(c) an iwi aquaculture organisation or recognised iwi organisation for an iwi in relation to the regional coastline or harbour to which the space referred to in section 44A(1) relates.

    “(2) An appeal under this section must be filed within 15 working days after the public notice is given under section 44E(1).

    “(3) The Environment Court may confirm, amend, or cancel the decision of the regional council appealed against.

  “44I Application for coastal permits for occupation of space referred to in section 44A(1) subject to reservation relating to commercial fishing for stocks subject to the quota management system

  • “(1) This section applies to agreed space or identified space if—

    • “(a) authorisations for the space have been allocated to the trustee under section 44D(2)(b) or 44E; and

    • “(b) the agreed or identified space is subject to a reservation relating to commercial fishing for stocks subject to the quota management system.

    “(2) The only person who may apply for a coastal permit to occupy the agreed space or identified space for aquaculture activities is the holder of—

    • “(a) an authorisation for the space; and

    • “(b) an aquaculture agreement registered under section 186ZH of the Fisheries Act 1996.

  “44J Time within which iwi aquaculture organisation may lodge aquaculture agreement if trustee not authorised to enter into aquaculture agreement

  • “(1) This section applies if—

    • “(a) authorisations for space have been allocated to the trustee under section 44D(2)(b) or 44E; and

    • “(b) the space is subject to a reservation relating to commercial fishing for stocks subject to the quota management system; and

    • “(c) the trustee has not been authorised to enter into an aquaculture agreement under section 44K.

    “(2) The trustee must notify in writing the chief executive of the Ministry of Fisheries as soon as practicable after—

    • “(a) the trustee has recognised iwi aquaculture organisations for all the iwi with an interest in the authorisations; and

    • “(b) the trustee has determined the entitlements for all those iwi in relation to the regional coastline or harbour to which the space referred to in section 44A(1) belongs.

    “(3) The chief executive must, as soon as practicable after receiving the notice under subsection (2), notify in writing the trustee and every iwi aquaculture organisation and the regional council concerned of the receipt of the notice.

    “(4) An iwi aquaculture organisation must lodge an aquaculture agreement in respect of any agreed or identified space that is subject to a reservation in relation to commercial fishing for stocks subject to the quota management system within 6 months after the date of the notice given by the chief executive under subsection (3).

    “(5) Subpart 4 of Part 9A of the Fisheries Act 1996 applies to an aquaculture agreement referred to in subsection (4) with the following modifications—

    • “(a) section 186ZF(2) applies to the persons specified in that subsection as at 5 pm on the date of the notice given by the chief executive under subsection (3):

    • “(b) section 186ZI(1)(b) applies as if it referred to 6 months after the date of the notice given by the chief executive under subsection (3).

  “44K Time within which trustee may lodge aquaculture agreement on behalf of all recognised iwi aquaculture organisations concerned

  • “(1) This section applies if—

    • “(a) authorisations for space have been allocated to the trustee under section 44D(2)(b) or 44E; and

    • “(b) the agreed or identified space is subject to a reservation relating to commercial fishing for stocks subject to the quota management system.

    “(2) The trustee must notify in writing the chief executive of the Ministry of Fisheries as soon as practicable after—

    • “(a) the trustee has recognised iwi aquaculture organisations for all the iwi in relation to the regional coastline or harbour to which the aquaculture space belongs; and

    • “(b) all the iwi aquaculture organisations referred to in paragraph (a) have authorised the trustee to enter into an aquaculture agreement on behalf of all the iwi aquaculture organisations.

    “(3) The chief executive must, as soon as practicable after receiving the notice, notify in writing the trustee and every iwi aquaculture organisation and the regional council concerned of the receipt of the notice.

    “(4) An aquaculture agreement in respect of any of the agreed or identified space that is subject to a reservation in relation to commercial fishing for stocks subject to the quota management system must be lodged within 6 months after the date of the notice given by the chief executive under subsection (3).

    “(5) Subpart 4 of Part 9A of the Fisheries Act 1996 applies to an aquaculture agreement referred to in subsection (4), with the following modifications—

    • “(a) section 186ZF(2) applies to the persons specified in that subsection as at 5 pm on the date of the notice given by the chief executive under subsection (3):

    • “(b) section 186ZI(1)(b) applies as if it referred to 6 months after the date of the notice given by the chief executive under subsection (3).

  “44L When authorisations allocated to trustee lapse

  • “(1) Section 165R of the principal Act does not apply to authorisations allocated under this Act.

    “(2) However, an authorisation allocated under this Act does lapse if—

    • “(a) a regional coastal plan provides that all aquaculture activities are prohibited activities in the space that is subject to the authorisation; or

    • “(b) the authorisation is for space that is subject to a reservation relating to commercial fishing for stocks subject to the quota management system and no aquaculture agreement is lodged in respect of the space within the time required by section 44J or 44K, as the case may be.

    “(3) If an authorisation allocated under this Act is transferred and (as a result of the transfer) it ceases to be a settlement asset, the authorisation lapses 2 years after the date on which the holder gives a notice of transfer of the authorisation to the regional council under section 165Q of the Resource Management Act 1991.

  “Gazetted aquaculture areas

  “44M Areas that become aquaculture management areas before commencement of Part 1 of Aquaculture Legislation Amendment Act (No 3) 2010 to be treated as Gazetted aquaculture areas

  • “(1) An area of the coastal marine area that became an aquaculture management area under section 44 as in force before the commencement of Part 1 of the Aquaculture Legislation Amendment Act (No 3) 2010 is deemed to be a Gazetted aquaculture area.

    “(2) To avoid doubt, sections 44 and 44A to 44L do not apply to an area described in subsection (1).

    “(3) As soon as practicable after the commencement of Part 1 of the Aquaculture Legislation Amendment Act (No 3) 2010, the chief executive must, by notice in the Gazette, identify and describe all the aquaculture management areas deemed to be Gazetted aquaculture areas by this section.

    “(4) Subsection (1) does not apply to an area of the coastal marine area—

    • “(a) in relation to which the chief executive of the Ministry of Fisheries granted an application for a marine farming permit under section 67J of the Fisheries Act 1983; and

    • “(b) which became an aquaculture management area under section 52(3).

    “(5) To avoid doubt, subsection (4) does not affect the application of section 186G(a) of the Fisheries Act 1996 or section 107F(2) of the Resource Management Act 1991 to the area referred in that subsection.

  “44N Further provisions relating to Gazetted aquaculture areas

  • “(1) A regional council may amend a regional coastal plan or proposed regional coastal plan to reflect an aquaculture decision under section 38 or a Gazetted aquaculture area, and Schedule 1 of the principal Act does not apply to the amendment.

    “(1) A regional council must amend a regional coastal plan or proposed regional coastal plan—

    • “(a) to remove any interim aquaculture management area or any space from an interim aquaculture management area that is subject to a reservation for—

      • “(i) customary fishing, recreational fishing, or commercial fishing for stocks that are not subject to the quota management system:

      • “(ii) commercial fishing for stocks that are subject to the quota management system and an aquaculture agreement has not been lodged within the required time:

    • “(b) to change any references to any space in an interim aquaculture management area that becomes a Gazetted aquaculture area to clarify that the space is now space in a Gazetted aquaculture area:

    • “(c) if an aquaculture management area is deemed by section 44M to be a Gazetted aquaculture area, to change any references to the aquaculture management area to refer to a Gazetted aquaculture area:

    • “(d) if an aquaculture management area has not been deemed by section 44M to be a Gazetted aquaculture area, to remove any reference to the area being an aquaculture management area.

    “(2) The regional council must notify the chief executive before a proposed regional coastal plan becomes operative under the principal Act if the plan provides that all aquaculture activities are prohibited activities in any space in a Gazetted aquaculture area.

    “(3) As soon as practicable after receiving a notice under subsection (2) the chief executive must publish a notice in the Gazette that—

    • “(a) amends the Gazetted aquaculture area by removing any area in which all aquaculture activities will be prohibited activities (or if aquaculture activities will be prohibited activities in the whole Gazetted aquaculture area, notifies that the Gazetted aquaculture area no longer exists); and

    • “(b) takes effect from the operative date of the plan.

    “(4) Schedule 1 of the principal Act does not apply to an amendment made under subsection (1).”