Thames–Coromandel District Council and Hauraki District Council Mangrove Management Bill

Thames–Coromandel District Council and Hauraki District Council Mangrove Management Bill

Local Bill

278—2

As reported from the Governance and Administration Committee

Commentary

Recommendation

The Governance and Administration Committee has examined the Thames–Coromandel District Council and Hauraki District Council Mangrove Management Bill and recommends that it be passed with the amendments shown.

Introduction

This is a local bill sponsored by the Thames–Coromandel District Council and the Hauraki District Council. It seeks to empower the two councils to prepare a mangrove management plan or plans for the coastal area of their districts.

This bill was put forward by the councils as both were concerned that managing the expansion of mangroves under the Resource Management Act 1991 (RMA) was expensive and time consuming. This bill would help by providing for the management of mangroves through a plan developed under the Local Government Act 2002.

Proposed amendments

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Changing the title of the bill

The submissions we received about the bill indicated that mangrove expansion and management has mostly become a problem in Whangamatā harbour. We therefore consider that the bill should only apply to Whangamatā harbour, which falls under the jurisdiction of the Thames–Coromandel District Council.

We recommend narrowing the bill so that it only applies to the Thames–Coromandel District. This would necessitate removing reference to the Hauraki District Council in the title clause 1.

Definitions in the bill

Definitions for the bill are set out in clause 3. We recommend the following amendments to the definitions in the bill.

Restricting the bill to Whangamatā Harbour

We recommend restricting the definition of “council” to mean only the Thames–Coromandel District Council. We also recommend inserting a definition for “Whangamatā harbour” as defined in the mangrove management plan.

Definition of “mangrove management activity”

We consider that the definition of “mangrove management activity” in the bill as introduced is weighted toward mangrove removal. We recommend including protection and maintenance of mangrove vegetation in the definition to make it more balanced.

The definition of “mangrove management activity” also includes reference to whole tree removal and maintenance dredging. Submitters commented that dredging could cause many other problems and result in the removal of other species. We recommend removing reference to both whole tree removal and maintenance dredging. Further, we recommend specifying that any mechanised removal of mangroves would only be allowed with mechanised hand-held tools.

Aligning definitions with the Resource Management Act

We recommend including definitions for “amenity”, “effect”, “Iwi Authority”, and “New Zealand Coastal Policy Statement”, and specifying that the definition for these terms should be the same as under the specified sections of the RMA.

Significant changes recommended

We recommend significant changes to the bill to restrict its application, align it with RMA processes, and respond to the extensive concerns expressed by submitters. Our recommended changes entail deleting clauses 4 to 8 from the bill as introduced, and inserting new clauses 4 to 10, and a Schedule with 9 clauses.

New purpose clause

We consider that the content of clause 4 in the bill as introduced would be more appropriate as the purpose of a mangrove management plan, rather than as the purpose of the legislation as a whole.

We recommend inserting a new clause 4 as the purpose clause, stating that the purpose of the bill is to enable the development of a mangrove management plan.

Application of other enactments

In the bill as introduced, clause 8(2) provides that the council would not be required to comply with any other legislation in carrying out a mangrove management activity. We consider that this provision is far too broad and should be removed. In fact, there are important laws and regulations that should apply to mangrove management, for example health and safety legislation and Treaty legislation.

The main objective of the bill is to enable a mangrove management plan to be put in place without following the regional coastal plan-making process required under the RMA. We recommend inserting new clause 5 to specify that, unless expressly stated, the RMA would not apply.

Purpose of a mangrove management plan

We recommend inserting new clause 6, setting out what the purpose of a mangrove management plan would be. It is similar to clause 4 in the bill as introduced, but we consider that our proposed new clause 6 is more balanced because of the changes we have recommended to the definition of mangrove management activity.

Process for preparing a plan

Clause 6 in the bill as introduced sets out the process for preparing and adopting a mangrove management plan. In our amended version, new clause 7 and a Schedule would set out this process. New clause 7 would still require the establishment of a committee to prepare a draft plan. However, we consider that the committee must include specific representatives.

Our proposed new clauses 7(2)(a) and 7(2)(b) would require the committee to include at least one representative each from the Thames–Coromandel District Council and the Waikato Regional Council. While the Thames–Coromandel District Council would ultimately be the council that adopts the plan, we consider it important for the Waikato Regional Council to also be represented on the committee. The regional council has a key role in coastal management. Including it on the committee would help to provide consistency between the mangrove management plan and the regional coastal plan.

New clause 7(2)(c) would require that the committee include at least one member with scientific or ecological expertise. We consider the inclusion of this expertise important, as there are a number of ecological issues associated with mangrove removal.

Clause 6(2) in the bill as introduced would require that at least one iwi representative be included on the committee. We consider that this representation should be decided through agreement between iwi and the council. Our proposed new clause 7(2)(d) would require that the relevant iwi authorities and the Thames–Coromandel District Council agree on what would be sufficient iwi representation.

New clause 7(3) would require a representative from the Department of Conservation to be invited onto the committee. We consider that this would help provide better alignment with the RMA.

New clause 7(4) provides that provisions relating to the preparation, approval, adoption, and review of a plan would be set out in the Schedule. We consider that a schedule is the more appropriate place for these types of provisions.

Clarifying the relationship of the bill with the RMA and the Local Government Act

Some sections of the RMA and Local Government Act are relevant to the bill. We consider that applying them would provide greater clarity on how the bill operates and make it more robust.

Our proposed new clause 8 is about the effect of the plan and its relationship with the regional policy statement and regional plan. New clause 8(3) sets out that section 17 of the RMA (duty to avoid, remedy, or mitigate adverse effects) would apply to people exercising functions under this legislation.

Our proposed new clause 8(6) specifies that a mangrove management plan must be prepared in accordance with the Local Government Act and would have the effect of other plans prepared under that Act.

New clause 9 proposes provisions relating to monitoring, enforcement, and compliance. Subclause 1(a) would give the council the power to enforce a plan as if it were a district plan. Our proposed new clauses 9(2)(a) and 9(2)(b) specify that section 38 and Part 12 of the RMA would apply in relation to clause 9(1)(a).

Sunset clause

We consider that this bill should only be a temporary measure for managing mangroves, and that in the long term the regional coastal plan should be responsible for managing mangroves. Therefore, we recommend inserting new clause 10. This would mean that the legislation would be repealed after 5 years. If a plan was in place at that time, it would be revoked and the regional coastal plan would then apply to mangrove management activities.

New Schedule

We recommend inserting a Schedule to the bill with provisions relating to the preparation, approval, adoption, and review of a mangrove management plan.

Content of a plan

Clauses 1 to 3 in the new Schedule specify the content of the mangrove management plan.

The provisions in clause 1 are similar to those in clause 5(4) of the bill as introduced. However, we recommend inserting clause 1(f) which would require the plan to give effect to the New Zealand Coastal Policy Statement. We consider that this would provide better alignment with the RMA, and ensure consistency with the policy objectives that apply to coastal management in other areas.

Protecting customary rights

We consider that the plan must not have an adverse effect on protected customary rights. Our proposed clause 2(1) in the Schedule stipulates that a plan must not include rules that have an adverse effect on customary rights protected under the Marine and Coastal Area (Takutai Moana) Act 2011. This clause is essentially the same as section 85A of the RMA. We also recommend including clauses 2(2), 2(3), and 2(4). These set out that, if a protected customary rights group considers that a rule in the plan does not comply with section 85A of the RMA, it could apply to the Environment Court and ask for a change to the rule.

Disposal of mangroves

We consider it important for this legislation to ensure that mangrove disposal is done in an environmentally acceptable manner. Our proposed clause 3(b) would require that mangroves be disposed of outside the coastal marine area.

Committee’s functions

Clauses 4 and 5 in the Schedule set out what the committee’s functions would be.

Clause 4(2)(a) would require the committee, in preparing the draft mangrove management plan, to complete an assessment of environmental effects in accordance with specific sections in the RMA. Clause 4(2)(b) would require the committee to consider where mangroves contribute to coastal ecosystems or protect the coast from erosion. We consider that these provisions would ensure that the committee considers environmental effects as part of its preparation of a plan, and particularly any environmental benefits that mangroves may be providing.

Participation of iwi or Māori organisations

We consider that, where other legislation would provide for the participation of iwi or Māori organisations in decision-making about an RMA plan relating to the Whangamatā harbour, those participation provisions should apply here. We therefore recommend including clause 5 in the Schedule to provide for this.

Requirement for Minister of Local Government’s approval of plan

The draft mangrove management plan is prepared under the Local Government Act. We recommend including clause 7 in the Schedule to require the Minister of Local Government, in consultation with the Minister of Conservation, to approve the draft plan before it can be adopted by the council. We consider that this ministerial oversight would provide an additional check on the council’s powers. The required consultation with the Minister of Conservation would also provide more alignment with the regional coastal plan change process under the RMA.

Appendix

Committee process

The Thames–Coromandel District Council and Hauraki District Council Mangrove Management Bill was referred to the Local Government and Environment Committee of the previous Parliament on 9 August 2017 and was reinstated with this committee in the current Parliament. The closing date for submissions was 23 February 2018. We received and considered 163 submissions from interested groups and individuals. We heard oral evidence from 41 submitters at hearings in Thames and Wellington.

We received advice from the Department of Internal Affairs and the Ministry for the Environment.

Committee membership

Brett Hudson (Chairperson)

Ginny Andersen

Kanwaljit Singh Bakshi

Hon Jacqui Dean

Paul Eagle

Hon Peeni Henare

Jamie Strange

Dr Jian Yang

Hon Scott Simpson participated in some of this item of business.