Aquaculture Reform Bill

I have an amendment to this particular part that I would like to put before the Committee. It relates to the exorbitant time frames these reforms allow for decisions to be made by regional councils, by the Chief Executive of the Ministry of Fisheries, and by the Minister of Conservation. On their own, the decision time-frames for each of these particular actors in the process of allowing an aquaculture marine area to proceed seem fine, although one would have to ask why it takes 6 months for the Chief Executive of the Ministry of Fisheries and others involved in the process to make a decision. The officials came to us and said that 6 months is the time it takes to gather together all the information, to talk to submitters, to process the information, to go back to submitters, to work through all the science, then to come back with clear, concise, and reasoned answers. So we took their word for it.

But if we add that 6 months to another 3 months for the regional councils to make their decisions, to have appeals, and to go through further processes, we see that the process from go to whoa to set up an aquaculture management area, right through to awarding consents, can take many years indeed. So I would like to present an amendment to clause 145 regarding the Chief Executive of the Ministry of Fisheries making a decision on an aquaculture management area. I commend officials for the sensible decision to have the Ministry of Fisheries involved early on in the process of setting up an aquaculture management area. A regional council goes to the Ministry of Fisheries and says: “We’d like an aquaculture management area in this particular bay, of this size. What do you think—will it affect commercial fishers?”. The Chief Executive of the Ministry of Fisheries looks at it, goes through this process over 6 months, then says: “Yes, it will affect commercial fishers. Yes, the effect is adverse. Yes, it is a significant adverse effect.”, or that there is no effect whatsoever, or that it is somewhere in-between.

My concern is that the chief executive, in taking 6 months, can actually go back to the regional council and say that more information is required to make a rational decision. That is not a bad thing; in fact, it is common sense. Clause 145(1A) states that the chief executive may request more information from the regional council. But clause 145(1B) states: “… 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 …”. That means that the time from when the request for further information goes out to when the information comes back is added to the 6-month period. My amendment would insert new clause 145(1C): “A regional council may reject the call to provide further information and have the decision stand solely on the information already provided.” In other words, a regional council can elect to say to the Minister of Fisheries: “No, we won’t provide you with more information. That is our choice. We would rather you made the decision on the information already provided, and if it’s a negative decision, so be it.”

Why I say that is that when, under the Resource Management Act process, councils endlessly come back for more information, the clock stops and time drags on. They go back through the process, more information is requested, the clock stops, and time drags on. Then yet more information is requested. The difficulty is that in a regional council process, or even in an Environment Court process, going back for further information can be genuine, because further information is needed to make a rational decision, but sometimes it is a way of slowing down the process, stalling a decision, and putting it on the back-burner, because it is all too hard. I see no reason why, in this case, a regional council cannot say: “We have provided as much information as we can. It’s very costly to provide further information. In our view we have provided enough information for you to make a decision. Could you please make a decision on merit, based on the information we have already provided. We’ll take the punt. If you turn down the application for an aquaculture management area, well, so be it, but we’d rather have the decision resolved as soon as possible.”

So I put it to the Committee that we insert that new clause. It does not take away from the fact that the chief executive still has 6 months to decide. It does not take away from the fact that he might request new information. It does not take away from the fact that the regional councils might choose to provide that information, which would be the sensible course. But it does give the regional councils an opportunity to say: “We’d rather that you made a decision based on the information we have already given you.” That seems reasonable to me, and I hope members of the Committee will support my amendment to add new clause 145(1C). It reads: “A regional council may reject the call to provide further information and have the decision stand solely on the information already provided.” That amendment will be voted on at the end of the debate on this part.

Interestingly enough, we also have issues around clause 140—which I will not be providing amendments to—regarding the revocation of the Freshwater Fish Farming Regulations. There was a huge sigh of relief from freshwater fish farmers when they learnt that the regulations tying them down were to be dropped, but they are concerned that they will have to face a new set of regulations in the future. They asked the select committee why that was. The answer that came back from the officials, whom I would like to acknowledge today, was a sensible answer. There are two reasons. One is that a degree of regulation is needed so that we can police fisheries sensibly. I talked about pāua yesterday. We do not know whether someone farming pāua has got it legally or illegally. We do not know whether someone claiming to have received pāua from a fish farmer has received it legally or illegally, or, indeed, has received it from that farmer. We need a way to track that, and to keep fish fees accountable. We need a degree of policing regulation, and that seems fair.

The other good argument that came forward regarded biosecurity and traceability. Freshwater fish farmers on land need a degree of biosecurity protection as well. We do not want our markets to be up in arms because in some way we have had a biosecurity breach overseas that has reflected on our aquaculture industry. So there has to be a degree of traceability when it comes to freshwater fish farming regulations—and I have been drifting into the land-based aquaculture argument, as well. That seems fair enough to us. We understand why there is revocation of the Freshwater Fish Farming Regulations. We understand why new regulations are coming into force to cover those farmers. We understand that land-based aquaculture farmers need a fair degree of regulation when it comes to policing, compliance, and biosecurity, and also in regard to discharges. Land-based farmers often take in water—it often is sea-water species, if a sea-water species is being farmed—and that sea-water is then discharged, and under the Resource Management Act a permit to discharge is needed.

So I do not think our aquaculturists can argue that they can be completely free of regulations, nor should they be. I understand the revocation clause and I understand why other regulations have to be put in place under the auspices of this particular Act.

One of the issues that concerned marine farmers was their ability to alternate between species on their farms. They felt they should be able to vary between green-lipped mussels, blue mussels, Pacific oysters, rock oysters—well, perhaps not rock oysters—and so on, according to the economics of farming at the time. Their analogy was that they wanted to be able to operate in the way that a land farmer does—alternating between sheep, cattle, deer, pigs, goats, or whatever—and the members of the Primary Production Committee agreed with them. We thought there was a good argument for marine farmers to have a degree of flexibility.

The only conditions we put on it were, first, that they had to apply, when they originally got their consent, to farm multiple species; once their applications were approved they could move between species. The other constraint we put on it was that they could do it only amongst filter-feeding fish. We were very aware that fin-fish farming uses a considerable amount of additional supplementary feed, so there are problems in terms of waste material, the effluent from the fish themselves, and the fact that a species like salmon consumes something like four times its own body weight in fish that is imported, usually from South America. While it may be highly profitable locally, it is totally unsustainable on a global scale.

I want to move to the transitional provisions in Part 7. The existing holders of leases and licences for marine farms are deemed now to have coastal permits for another 20 years, from the date of the passage of this Act. That will be very good news for existing farmers. It will give them certainty for 20 years, obviously. But where application is made for a new aquaculture management area space or an expansion of existing farms, there will be some problems, and that is where the transitional provisions apply. A regional council that wishes to enlarge an aquaculture management area will invite the Chief Executive of the Ministry of Fisheries to make an aquaculture decision. In the past, the obtaining of a fisheries permit after a resource consent has been granted has been a source of huge frustration for marine farmers. They have their consent and they are ready to go; they wait for their fisheries permit, and they wait, and they wait. There is no time limit on how long they have to wait. We have heard of examples that were just outrageous—of farmers waiting for many years. This bill is trying to bring forward the input from the Ministry of Fisheries in the process, so that when somebody applies for a coastal permit he or she gets approval—or not—from both the ministry and the local council.

What we are doing, though, is putting very strict guidelines on the activities of the Chief Executive of the Ministry of Fisheries. I have to say that general confidence in the Ministry of Fisheries amongst fishers, and others, is low. I hope things will change. The ministry has a new chief executive, and maybe the culture will change. But, my having said that, we have decided that strict time lines and objectives need to be laid out, so we have said that in deciding whether to make a determination, or a reservation, about an aquaculture decision, the chief executive can have regard to only three things. They are the effect of the aquaculture marine area on, first, the biological diversity of the aquatic environment; second, the productivity and biological abundance of fisheries resources; and, third, habitats of known significance for fisheries management. The bill also specifies that the aquaculture decision must be very explicit in terms of the species affected, and whether commercial, recreational, or customary fishers are affected.

We have also been very clear that we are putting a time limit on the chief executive, and the time limit is 6 months. Over and above that, we have also allowed for an appeal to the High Court. Anybody who has made an application, or the chief executive, or the council, can appeal to the High Court on matters of substance. It is not just matters of process, which is what used to apply in terms of judicial review; matters of substance can now be sent to the High Court.

These transitional provisions are excellent. I think they give marine farmers a degree of certainty that they have not had in the past. A lot of them have said that they would go overseas.

I am happy to take a call on Part 7. This part, of course, provides for transitional matters relating to the ending of the moratorium under the Resource Management Act of 1991. It has taken 4 long years for this moratorium to be finally lifted, in, I think, early January. For 4 years, the potentially most exciting industry that this country has come up with in recent years has been held in abeyance, held back, champing at the bit to get on with it, because of the procrastination of this Government and its inability to have a little vision, owing to its concern about what might happen around the coast. Now we must, therefore, apply hugely stringent rules to the transitional matters relating to the end of this moratorium.

It seems to me that if we really take a hard, cold, calculating look at what has happened around the coast in terms of the loss of our biodiversity, the loss of our aquatic life, we see that it is not the marine farmer, it is not the aquaculture industry, that has caused any problems for the district councils or regional councils. It is, in fact, more likely to be members of the public who have caused problems. It is those who strip the coast bare of shellfish with bits of piano wire. It is those who jump in their fizz-boats and go out for a bit of recreational boating—and why should they not? Often as not, the boat goes from one area to another, and transfers an unwanted organism from one area to another. Those problems have caused huge angst to this country. For example, the ballasts of ships cause more harm to our biodiversity and our coastal waters than anything a marine farmer could throw up. Marine farming is essentially a static industry. It does not move from place to place. We have just had problems in some South Island rivers caused by, apparently, fishermen who, unbenownst to them, had transferred unwanted organisms on their fishing gear—on their rods, their boots, their clothing, or whatever. So why do we not have transitional requirements that apply to those people? They have caused more problems than anything that the aquacultural industry could possibly come up with.

I find it quite distressing when I look at the number of transitional requirements. An authoritarian attitude is being taken by the regional councils, on a constant basis, towards this fledgling industry. It has to survive, it has to grow, and, yes, it will make the odd mistake from time to time. For goodness’ sake, there is no effort without error. If the Government thinks it can manage the risk of new organisms entering our systems and our coastal waters by regulation and control, I tell it that it will not work. Certainly, by educating people and by getting through to the recreational users we have a greater chance of ensuring that our coastal waters remain as good as they possibly can.

The Minister and this bill must recognise that the problem is not the marine industry, and it is not aquaculture; the problem comes more from those outside the industry, as I said earlier, especially from ships coming in and discharging ballasts. Has the Government applied regulation and controls around that aspect? Ships and pleasure boats coming in from the Islands, for example, may bring in unwanted organisms. Where is the control that the regional councils should be applying over those individuals or boating organisations, rather than their applying control over the marine-farming industry? It seems to me that the marine-farming industry is being used as the whipping boy. We are adding huge compliance costs on to that industry, which is struggling to survive under this Government.

As we move towards the concluding stages of the debate in the Committee stage of the Aquaculture Reform Bill, I ask the Committee to take note of Part 7, “Aquaculture reform (repeals and transitional provisions)”, because it is a very important part that ensures that this legislation proceeds and works. I want the Committee also to note the considerable changes that have occurred to it through the select committee process. I raise that point because it is an absolute truth that the legislation as presented to the House was totally unworkable. It is a shame that the Minister of Fisheries, the Hon David Benson-Pope, who is the Minister in the chair, is not prepared to stand and take calls to address questions about this part. He should be explaining how he ever ticked off legislation that was so poorly drafted it was totally unworkable.

💬 Clayton Cosgrove: That’s a bit rough.

Clayton Cosgrove, who sat on the Primary Production Committee but who has not been prepared to take even one call, now interjects and says that my comments are a bit rough. I suggest to Clayton Cosgrove that he should get out the notes he made at the select committee. He will find that the majority of the changes made—

💬 Ian Ewen-Street: I thought he was asleep.

I will not comment on that. If Clayton Cosgrove gets out his notes and has a look at the significant amount of change that occurred throughout the select committee process, he will see much of it is in this part.

One of the important issues presented to the select committee was the district plan for the Tasman area. It is an area of New Zealand that would be eminently suitable to aquaculture, but it is one that has been tied up in the Environment Court, I think I am right in saying, for almost a decade. Submitters came to us and said they were nearly at the end of a huge process. They said they were waiting now for a judgment from the Environment Court, and this legislation, as drafted by the Hon David Benson-Pope, would mean that all that work, and the hundreds and thousands of dollars they had spent, would be completely nullified. So the select committee has had to tidy up the work of the Hon David Benson-Pope yet again, and we have had to make a significant amendment to clause 153(4) to ensure that when the Environment Court rules on the Tasman Bay situation, which we understand is imminent, all the work and process that have occurred over the last 10 years are not nullified by this legislation.

I want to move on to the deletion of clause 120. When this legislation left the desk of the Minister of Fisheries, it contained a clause that stated that in the future all salmon farmers would have to apply for another consent in order to feed fish.

💬 Sandra Goudie: A tax rort!

My colleague Sandra Goudie says that it is a tax rort, and I am sure that more costs would have been associated with it. The important thing is that those salmon farms have been operating for years. We visited one on a select committee tour, in order to make ourselves familiar with the exercise. There is an operation in the Marlborough Sounds worth millions of dollars, and what it does is to corral the salmon into cages and then, logically, it has to feed them so that they will grow. But the Minister did not seem to realise that part of the process of salmon farming is to feed the salmon. He suddenly suggested sending the farmers away to obtain another consent. What a nonsense that was from David Benson-Pope! It is absolute proof to me that he has not bothered even to go and look at how a salmon farm works. The good news is that the select committee was able to delete clause 120 entirely, and that we have tidied up an inconsistency—a technical illegality—by making a minor amendment to clause 117.

I now want to move to the issue of all coastal permits being extended, with the passing of this legislation, for one 20-year period. I want to take some time to talk about that provision, because the workability of the 20-year extension was raised with us by one submitter, Akaroa Salmon. Effectively, its concern was that all the permits would roll over on exactly the same day in 20 years’ time, once the law was enacted, and it wondered whether the local authorities would be able to handle that. The select committee took note of Akaroa Salmon and the submission it received from Tom Bates, because he is one of the most respected salmon farmers in New Zealand. He is a man who can be described as a true Kiwi battler. He does not have a big operation. It is nowhere near the size of that of King Salmon in the Marlborough Sounds. Akaroa Salmon is a relatively small operation that has been built on Tom Bates’ ingenuity and his commitment to the industry. I pay tribute to Tom Bates in the debate today, because he typifies what aquaculture can do for this country, if only we can get legislation enacted that allows it to happen. With regard to the argument raised by Tom Bates and his co-submitter Peter Cotton—both of those arguments were about the ability of councils to cope with all the renewals on the same day in 20 years’ time—I think that given 20 years to prepare for it, local authorities will actually be able to cope. So we are not recommending an amendment with regard to that issue.

I move now to another important change we have had to make, which goes to the issue of off-site marine farms. I refer to clause 159. The select committee was staggered to find that, in many cases, existing marine farms are not operating according to the coordinates of their original approval. They have moved—some maybe inadvertently, and some maybe quite deliberately. We now need to ensure that we pass legislation that corrects that and makes sure that the area of an existing farm at the moment becomes the authorised area for its continued existence. Submitters then raised the issue that if councils or the Ministry of Fisheries had allowed those farms to operate incorrectly and in the wrong positions, who should pay the costs of making sure that we right those particular inaccuracies? We have recognised that there will be costs. In fact, I think the Northland Regional Council said there would be significant costs. I think the committee was of the opinion, at the end of the day, that although there will be costs, they will not be very significant. But in order to make sure that we get that particular aspect right, we have changed the legislation to give councils the opportunity to initiate changes that correct inaccuracies. If we had left that to the individual farmers, in some cases they might have seen a correction as necessary and worthwhile—and that was the way the bill was drafted—but in other cases individual aquaculturalists might have decided that because they had got away with inaccuracies for the last 5 years they would continue to get away with them, and they would not have moved to tidy them up. I think that yet another valuable change made by the select committee was to allow the councils to initiate a change in that situation.

Those are certainly the major points that spring to mind immediately. But, as I said earlier, anybody who is prepared to study what the select committee has returned to Parliament in Part 7 will see that the select committee as a whole worked very hard to change this part. The real question that arises is why the bill was so poorly presented, and why it caused the industry so much angst, in the first place. The only possible answer is that, as many people have said in the Chamber in the last couple of days as we have debated aquaculture reform, aquaculture is a very complex industry, and it requires a competent Minister. I certainly hope Helen Clark is listening on the ninth floor to this debate, and that she will take the opportunity to try—and I know it will be a desperate thing—to find somebody within the Labour Party ranks who is confident enough to handle fisheries. Harry Duynhoven has just put his hand up.

💬 Sandra Goudie: Impossible.

Sandra Goudie says it is impossible. Well, the industry deserves better than David Benson-Pope. That is the main thing—the industry deserves better than the Minister it has now. The Minister may be good at driving civil union bills through Parliament—that may be his real interest in life—but certainly he has shown that he does not have a lot of ability when it comes to managing the fisheries of New Zealand.

I move, That the question be now put.

Part 7 is Mr Hodgson’s shame. This is the part that one goes through mechanically. [Interruption] He is not the Minister in the chair, no, but I ask members to remember he was the Minister who kicked all this legislation off—the former Minister who said that aquaculture was running wildly out of control.

💬 Hon David Carter: Yes, the “Minister for Moratoriums”.

The “Minister for Moratoriums” said aquaculture was wildly out of control and the councils did not know what they were doing, so we should all have a breather, and we would get a logical, rational structure. He said we would get something in place that everyone could understand, so that the industry could step forward confidently. Well, when I read Part 7—and this is the first time I have read it—I find that it is an absolute catalogue of shame. It is stuffed full of interim solutions, reservations, and opportunities to second-guess and undermine. The clear property rights that it should establish are clearly not available, and Part 7 recites the reasons for that.

I know that the Minister is not taking calls here, but Mr Carter’s very interesting speech referred to the specific requirement in clause 20 to obtain a permit for feeding or for the discharge of contaminants.

💬 Hon David Carter: 120.

Clause 120. Where has that clause gone?

💬 Hon David Carter: Unnecessary.

So it has been cleaned out completely. I congratulate the Primary Production Committee on that. It is very rare to see a whole tissue of nonsense removed entirely, without someone trying to save face by putting something back in to cover it. I take it, then, that the Government does not have a back-door way of getting at the same objective as that of the conditions that were dealt with in the feeding and discharge of contaminants clause. Although the table that appears in clause 111 sets out a process, when I looked through it I could not see where the contaminants assessment came in. But maybe it comes, by implication, under the requirement for a resource management consent.

Certainly, after going through the transitional provisions, the deeming provisions, and the attempt to bring all that within one context, it seems clear that either the legislation was over-ambitious in the first place or there has been a change of objective, whereby it is now thought to be easier to leave people as they were. All the various lobby groups and interest groups, and in particular the private fishers or non-commercial fishers whom the Government keeps talking about in this legislation, are left to face a continual temptation to be affronted, to keep negotiating, and to constrain and limit the aquaculture areas, without the legislation imposing on or giving aquaculture permit owners the best long-term incentive to look after their environment, which is the right to take the residual benefit that goes with perpetual, genuine freehold title.

When I see the opportunities under this part for the Minister to intervene, for forfeitures, for variations, and for changes through the registration processes, it is very evident to me that this is a very different kind of asset for farmers to invest in from genuine property. With genuine property, people get the benefit of looking after the property. They get the benefit of the improvements they make, and they get the detrimental effect of ruining an area—of ruining the environment they are in. We can draw on the common law—which over the years has filtered itself—concepts of nuisance. This legislation has to rely instead on an inspectorate process—on a process of prescribing in advance what people can and cannot do, and of filtering everything through experts who wield extraordinary powers. I have just been looking, in the Regulations Review Committee, at a set of regulations to deal with contaminants in an animal food chain. What strikes me there is the same point that comes through in this part of the bill: there is a view that people will only behave themselves if they are told what to do.

I move, That the question be now put.