Aquaculture Reform Bill

I want to raise a number of points on Part 1. Now that the purpose of the bill has been split according to the subdivision of the legislation, as we go to its final stages in the next few days under urgency, I start by asking some questions of the Minister in the chair, the Hon David Benson-Pope. I want some satisfaction as to the justification for clause 4A(b), which is the clause that empowers the Minister of Conservation to direct regional councils in relation to the allocation of space in the coastal marine area. The reason I am concerned is that this legislation starts a process that sets a precedent by which the responsibility for aquaculture is, significantly, being passed to regional councils. I have no problem with that. They are the local authorities that have the ability to determine where best to create aquaculture management areas, but, having passed the authority to regional councils, the next thing this Government did was to straightaway insert a clause that gives the Minister of Conservation the right to veto.

I say to the Minister that that fundamentally destroys the philosophy of the legislation. We are trying to take an industry with huge potential out of the clutches of a moratorium that was imposed, then extended, because the Government was bereft of ideas for giving the industry a chance to develop. Then we came up with legislation that gave the industry a significant chance to get back on the case and develop and promote before too many of our best brains in aquaculture fled across the Tasman or to South America—to Chile, and countries like that—as we heard via the submissions process.

However, as we do that, the first thing this Government does is to say that while it is giving the opportunity to regional councils, it will rein them in with another check that means that at any time it can, via the Minister of Conservation, stop the process. One might not be too worried about that, given some of the Ministers of Conservation we have had in the past, but if we go to an MMP election and, God help us, the Greens are in a position of deciding who the Minister of Conservation is to be, could the industry live with Nandor Tanczos being the Minister of Conservation and having the right to veto every application for aquaculture? That is the sort of nonsense that could develop out of this legislation.

Our fisheries spokesperson, Phil Heatley, will be moving an amendment to delete clause 4A(b). I see no justification at all for the Minister of Conservation having those veto powers. This legislation gives every opportunity for fisheries to be involved, as they should be. It gives every opportunity for the Minister of Conservation to be involved via the Resource Management Act process, and I have no problem with that. But, having gone through the community Resource Management Act process, to give the Minister of Conservation yet another opportunity gives the industry no satisfaction at all that we are passing legislation today that will give it the opportunity to progress. That is the first point I want the Minister to comment on.

For my second point I want flick to Subpart 2, “Privately initiated plan changes”, in Part 7A inserted by clause 21. I ask the Minister to explain and to assure the Committee that the promotion of significant changes in that area by the select committee will enhance the system of giving the operators currently in the industry, who want to move relatively minor private plan changes to expand their operations, a fair opportunity to do so under this legislation. Those are the questions I want answered.

I too would like to draw to the Committee’s attention the influence that the Department of Conservation will have over this aquaculture industry. When I look at the bill, I see that it is titled the Aquaculture Reform Bill, but under the Department of Conservation it will become the “Aquaculture Restriction Bill”. It is not a bill designed to ensure that aquaculture gets its fair share; it is designed to ensure that the Department of Conservation gets what it wants, then everybody else can have what is left over.

I am sure the Committee can see from the clauses in Part 1 that the hands of Kevin Smith from the Minister of Conservation’s office are all over the bill. The Royal Forest and Bird Protection Society has got its way again under this Minister’s advocacy. He has buckled to the Minister of Conservation and to the determination—driven, I guess, by the Royal Forest and Bird Protection Society—to ensure that 10 percent of our coastal space goes to reservations and marine reserves. That is the expressed policy of the Royal Forest and Bird Protection Society. That is what Kevin Smith wants, and under Chris Carter’s stewardship, what Kevin Smith wants, Kevin Smith gets. That is why this bill is so bad.

I have no problem with reserves—none at all. The ACT party has no problem with reserves; indeed, they are needed. We probably need quite a number of small reserves throughout this country. ACT is not opposed to conservation, but if the Department of Conservation and the Minister had an ounce of integrity, the Minister would have said to the Minister of Fisheries that the department had identified certain areas as being valuable and asked him please to ensure that they were well identified and that the public had a chance to comment on them before the bill went through. That would have been a fair and reasonable process. As it is, we now have a situation whereby every time new applicants want to put an application in and go marine farming, they will have to deal with the Department of Conservation and the Royal Forest and Bird Protection Society first.

They will not deal with the Ministry of Fisheries or the regional councils in the first instance; they will have to consult with the Department of Conservation and give whatever concessions it wants.

The real issue for me, certainly, is the advocacy role that the Department of Conservation has in this area. In some respects I cannot blame it, because statute requires it to advocate for conservation. But it is surely the duty of the members of this Parliament to advocate for the industry—for the exporters who give us a living in this country. It is not the Department of Conservation or any other department that ensures the health and wealth of this country; it is the people who get out there and do the work.

This bill, through the Department of Conservation, will make life for the producers of this country—the marine farmers—even more difficult. There are bureaucratic structures and a time lapse. I see in the bill that applicants have to give the Department of Conservation 4 months’ notice. Every application will, time and time again, drag out to the 4-month period. Any applicants in the aquaculture industry overseas would have their ropes in the ground and their buoys locked up, or whatever they do. The industry would be up and running within 4 months. As it is in New Zealand, the application will go in and nothing will happen for 4 months until the Department of Conservation has had a look around to see whether the seabed is suitable for its needs.

I raise a point of order, Mr Speaker. I seek your guidance on the fact that the Minister in the chair has now changed from the Hon David Benson-Pope to the Hon Harry Duynhoven. We are seeking answers to questions. Mr Duynhoven sat with us on the Primary Production Committee. Is it appropriate for him, as a select committee member, now to sit in the Minister’s chair in the Committee stage?

The CHAIRPERSON (H V Ross Robertson): I thank the member for that. That is a decision for the Hon Harry Duynhoven to make.

I will put six amendments to the Committee this afternoon on Part 1 that will deal with three broad areas. One area is to do with the degree of interference that the Minister of Conservation can have in the establishment of marine-farming space. The second major area is around the right of first refusal process, which we can see unwinding due to unnecessary hoops that incumbent marine farmers will have to jump through. The third general area is to do with the ability of the Minister to revisit treaty settlements. I will put those amendments to members, and I will take three calls to talk about them.

The first amendment is to new section 165I(1)(b)(i), inserted by clause 21, to omit the word “necessary” and substitute the word “essential”. Under this proposed legislation, incumbent marine farmers can get a right of first refusal to continue marine farming in a space if they have been good tenants. But, if they have been there for 20 years, they are an incumbent, they have spent a fortune on establishing their business on and off the water, they have employed staff and have 10 or 20 working for them, they have done a good job in the industry, they have been good environmentally, and they have undertaken good industry practice, it is absurd that after 20 years they would have to move out of that space and that someone else—another marine farmer—could come and farm in that space in their place.

Why would one legislate for that? That is absolutely absurd. An incumbent should have a right of first refusal to continue in that space. That is all to do with investment. Why would marine farmers continue to invest if they knew that they would be shifted out after 20 years and that some competitor—a fly-by-nighter—would take their space?

So National is saying that right of first refusal is a good idea. But we know that under this bill—it states so in clause 165I—regional councils can, if “necessary in the circumstances of the region”, not allow an incumbent marine farmer to stay there, and allow a competitor to come in and take the farmer’s space, investment, staff, and everything. National is saying that the word “necessary” is not a high enough test. If regional councils think they can do that just if it is “necessary”, then that word is far too broad to allow them to do that. National will substitute the word “essential”. If regional councils see something as essential for the benefit of the region or for its circumstances, then they can re-tender the space—not if they see it as necessary, but as essential. That raises the bar. Regional councils will have to give a very good reason indeed before they can kick out an incumbent and bring a fly-by-nighter into that space. I will move that amendment, and I trust that members will vote for it.

The second amendment, also regarding incumbency, is to remove altogether clause 165ZF(1)(c) inserted by clause 21, which requires marine farmers to marine farm in an area under industry good practice. That sounds fine on the surface. I am sure people listening in would think that it seems fair that marine farmers should undergo industry good practice. The problem with it is that no one has defined what “industry good practice” is. It is vague and subjective. Not only that, but the technology in marine farming is moving so swiftly, with such investment in technology, that “good practice” will change over time. So saying to regional councils that they can decline to renew a consent because a marine farmer is not following industry good practice is, as I said, too vague, too subjective, and too subject to shifts in technology. If industry good practice were defined, that would be fair enough, but, in our view, we should omit that clause.

Clause 165ZF provides that if a marine farmer is not a good tenant, he or she should not get a renewal, and lays out what criteria the Minister or the regional council will look at in regard to breaches that have occurred while the tenant has been marine farming for a period of 20-odd years. The council will look at: “(a) the number of any breaches that have occurred; and (b) the seriousness of the breach; and (c) how recently the breach occurred; and (d) the subsequent behaviour of the applicant after enforcement action.” That clause should be omitted, not because we celebrate breaches to a consent, or bad behaviour by marine farmers—in particular, environmentally—but if a marine farmer is farming in a space, and does not uphold the terms of his or her consent, so that there is a breach and environmental damage, then the farmer should be nailed at the time. If it is as serious and as continuous as that, it has such an effect on the neighbours—whether they are recreational fishers, boaties, other marine farmers, or commercial fishers—the farmer should be nailed and pulled up on it at the time. Councils should not wait until consents have run out and then say to farmers that they will not renew them because of something that happened back in the 1970s. Those farmers should have been nailed at the time. So we will move an amendment providing that that clause be omitted.

So those are the amendments I have spoken to. They are all about certainty for the industry. We say that regional councils need to have right of first refusal in their minds, and there can be no right of first refusal for a marine farmer only if it is not just “necessary” but “essential” for the region for that to be the case; that “industry good practice” is far too vague and subjective, will not keep up with technology, and should not be a barrier to the right of first refusal; and that if a marine farmer is under constant, serious breach of his or her consent, he or she should be nailed at the time, rather than there being something that comes up years and years later when a renewal is sought.

There might even be a situation where a marine farmer who had been warned because of a breach of his or her consent, had no idea that the regional council viewed it so seriously until that farmer came to a renewal process and was told that he or she would not even be allowed to continue, even though he or she had invested millions. If the farmer had been told at the time when the breach occurred that it was so serious that the council was thinking of taking away the right to marine farm, that would be better. The farmer could clean up his or her act, it would be better for the environment, it would be better for the neighbours, and it would be better for the marine farmer and his or her staff.

But to suggest that years and years later, a regional council will haul up a history that it never policed at the time, and suddenly say to a marine farmer that his or her investment ends there and it cannot continue, is absurd. People wanting to follow good environmental practice would always pull up a breach at the time and deal with it. Marine farmers would be given the opportunity to clean up their acts, so to speak. They would not be pursued after that time.

I am very pleased to follow Mr Heatley, because he and I come from a district where marine farming is important and significant. This year there are 149 marine consents of various types in Northland. Ninety Mile Beach is the most significant source of mussel spat in New Zealand. Recently a consent was given for a spat farm in Whāngāpē. Last of all, in the identification of potential sites of great influence for this country, Marlborough and Thames-Coromandel were just ahead of Northland. Therefore, I am pleased to be able to speak on Part 1 on behalf of New Zealand First. We have waited impatiently for many, many months and years to get to this point.

I assure the Committee that the issues raised by Mr Heatley have been in the minds of regional councils such as Northland’s for many, many months. There is nothing in the criteria and the steps set out in clause 4A, “Purpose”, that I find irregular or unusual. When reading paragraph (b), which states: “to empower the Minister of Conservation to direct regional councils”, one is aware of the fact that the Minister of Conservation has such powers now. That Minister has such powers under the Resource Management Act in relation to marine activity, which this matter is part of, and, therefore, it does not seem unusual that the Minister of Conservation should be part of this process—he or she hitherto always has been. As those of us looking at the Marine Reserves Bill know, there is dual ministerial duty over marine reserves at present, by both the Minister of Fisheries and the Minister of Conservation.

I see nothing here that we could not proceed with now in regard to my region. The criteria for councils to follow for defined coastal plans, in terms of the effects on coastal space, and so on, which are outlined in subparagraphs (i) to (vi) of clause 4A, are normal practice in regard to plans. Surely we are aware of the fact that if there are to be changes, there is an orderly process and procedure for doing just that. Other parts of the bill set out how that should be done. There are certain criteria for publicly notified plans, to ensure that they are all identified, that the public are made aware of them, and that they are part of public consultation. If there is to be a private plan procedure, then, again, there will be public notification, and all the issues set out in clause 4A will be carefully defined in that plan. So I see nothing irregular or unusual there at all.

But I wish the Minister in charge of the bill, David Benson-Pope, was in the chair, because there are problems in regard to Ministry of Fisheries’ farms and sites up to this point, as many of them have not been under careful monitoring or care. When we went through Northland looking at the proposed marine areas, we saw some disgusting evidence in Kerikeri and other places of abandoned or would-be abandoned sites of a historic nature that were all under the Ministry of Fisheries.

One of the issues that concerns many councils is who will be responsible for that clean-up. Did the Government’s Ministry of Fisheries, when it gave out those allocations, take care to monitor and to provide for the very issues that Mr Heatley raised? In other words, was there, over the years, such a lack of care and attention that abatement notices should have been placed upon those sites or licences—abandoned or not—but, instead, nothing was done? It is of grave concern that although any council will be able to work through the defined plans outlined here, at the end of that exercise we still will find that although recently awarded council sites—in Northland there have been 35 since 1992—have been monitored and closely analysed, many earlier sites were not.

I am not blaming any Government ministry or department; I am merely saying that there is a real situation out there now of sites that were poorly looked after and that could be very easily identified, but that could be part of productive industry in the future. They would be subject to planning, but before that could be implemented, there would need to be a dramatic change to, and clean-up of, those sites.

The second issue that I want very quickly to look at, and that I will come back to in some detail, is that we heard some discussion earlier with regard to clause 21 and its effect on Māori and treaty issues—so-called. I certainly want to take a further call to develop that at some length.

I would like to start by making a small correction to what my colleague Phil Heatley said. He described incumbent farmers as having a right of first refusal to occupy the space again once their leases had run out. That is not strictly true. What they do have is the right to apply for a consent to the space they presently occupy. A right of first refusal, in effect, means a right of occupation in perpetuity, and I do not think we want to give people the impression that that is what those farmers have.

This bill is really about aquaculture management areas and how they are established. It was the intention of the ministry, as I understand it, to flag to regional councils some years ago that aquaculture management areas would have to be established in their areas. So those councils that had aquaculture management areas or big marine-farming areas, like Marlborough, Waikato, and Northland, have actually done quite a bit of work in establishing aquaculture management areas. I believe that they will simply take their existing farms and deem them to be aquaculture management areas.

There was some concern that smaller councils, or councils that had no real aquaculture activity, had not been doing their job properly and had not been creating aquaculture management areas, so it was interesting to hear from the smaller councils. I particularly remember that the Gisborne District Council, I think it was, said that it was the guardian of its ratepayers’ money, that it had had no applications from anybody to do aquaculture in its area, and that it felt it would be simply wasteful for it to use ratepayers’ money to create an aquaculture management area that maybe nobody would use, so it would leave it to the private plan change to cater for anybody who wanted to create an aquaculture management area.

Once those areas have been established, if somebody wants to create a new aquaculture management area there are several routes that can be taken. The main one is a private plan change. An individual farmer or a number of farmers can band together and say they want to expand out of the aquaculture management area into another area. Normally that is an excluded zone, so changing the plan is actually a much higher hurdle to leap over than gaining the original resource consent, which process led to the boom-and-bust sort of scenario we have had under the present regime. We in the select committee were concerned that if those people were successful in creating a new plan change, and had gone to the effort of doing that, the council would then tender the space, which is what the original legislation said, and those people’s efforts would amount to nothing if someone else came along with deeper pockets. So we finally resolved that people instituting a private plan change will get 80 percent of the area they have applied for and been granted—the other 20 percent, obviously, will go to Māori.

There was another little wrinkle in that scenario, though: if the council initiated a plan change, all the water space with the exception of the allocation to Māori would be tendered. There was a possibility that people would apply to have a private plan change, that it would then be taken over by the council, and that the council, in effect, would make it a council-initiated plan change. We were concerned that people who applied for the private plan change would, again, be left empty-handed, so there is a statement in the legislation that private initiators will get 80 percent of the space they apply and get approval for—though that does not take away the ability of the council to have more space than that.

In terms of incumbents, present farms are deemed to be aquaculture management areas and they will get resource consents or permits for 20 years. At the expiry of that time the leases expire, and the farmers have the opportunity to reapply for coastal occupation permits. They will have to fulfil a couple of obligations. First of all, the council must not be going to change the plan and stop that area from being an aquaculture area in the future. Second, and probably more important, is the fact that we are requiring or encouraging marine farmers to play fair—to do the right thing by both their community and the environment—so that they do fulfil the terms of their resource consents. There have to be fairly severe breaches of the resource consents, as Mr Heatley said, for them not to be granted. People have to have been convicted of some major breach, rather than their just being served an abatement notice by the local council. There could be somebody on the council who had a bit of a grudge against the incumbent.

I will touch on two things I want to bring to the attention of the Committee. One is with regard to a regional council’s activities in relation to its duty to act efficiently, and the other is something to do with tender money.

In section 165I, inserted by clause 21, there is a duty on a regional council to adopt the most efficient and effective allocation mechanism. I have thought about this. The Primary Production Committee discussed it and made a number of amendments. The section states: “… a regional council must—(a) have regard to—(i) the reasons for and against adopting the proposed method;”. So the council is to act out its role very fairly and squarely, so that nobody can say he or she was not heard or did not have the opportunity to contribute. The regional council will also have regard to “(ii) the principal alternative means available;”. The select committee then struck out—I think, appropriately—“(b) be satisfied that the adoption of the proposed method is the most appropriate for allocation …”. We discussed that, and it became very evident from the submitters that it did not really meet what they were asking for. So now we have got the wording down to what is in section 165I(1)(b)(i), which requires that the council be satisfied that the proposed method is “necessary in the circumstances of the region;”. That has a great deal more impact than what was there before.

💬 Hon David Carter: Is the member sure of that?

I am absolutely sure. Also, subparagraph (ii) states: “the most appropriate for allocation in the circumstances of the region,”. As the regional council deals with that, it will, I believe, bring about the most efficient and effective allocation that meets the concerns of farmers and applicants to become farmers.

The other matter I want to touch on is section 165U, “Tender money”, inserted by clause 21. When the select committee asked why the Minister would have 50 percent of the tender money, and the regional authority would have 50 percent, the actual response was that it was a judgment call—if I remember right. There is no basis for that, except that we note that when the regional council receives its 50 percent, it must use its money entirely for the purposes of this Act in coastal marine areas in its region. So I see this bill as promoting the outcome that the money collected through the tendering process go back to address the local regional council’s concerns—multiplication, exploration, and all the rest—in setting up the marine areas they need for potential farmers in the region. I think the bill is, in these regards, very clear and explicit, and I think we need to realise that there is no way that one can be double-minded as to what could happen with this money.

It is pleasing to see the Minister of Fisheries back in the chair, although I was looking forward to asking the Minister for Transport Safety a number of reasonably curly questions on this legislation. Like a lot of members who have spoken, I am concerned about the power the Department of Conservation has. Notwithstanding the comments made by the honourable member Jim Peters, who has a great deal of knowledge in this area, I suggest that clause 4A is not the sort of clause that is usually placed in legislation such as this.

Let us look at Minister Carter, the current Minister of Conservation—or, more accurately, at “Minister Smith”, the former conservation director of the Royal Forest and Bird Protection Society, who makes the decisions in the Minister’s office—or at whoever may be the Minister of Conservation in the future under an MMP coalition with the Green Party if, God forbid, the Labour Party were ever in a position to form another Government. Let us look at what might come of that. Of course, we will not have as Minister the very good member Ian Ewen-Street, who actually has some interest in this area and spent some time on the Primary Production Committee, because he is retiring from Parliament. We will have somebody like Nandor Tanczos or Sue Bradford from the Green Party potentially ending up as the Minister of Conservation.

💬 Jill Pettis: Shane, you are blinding us with your brilliance.

I ask the senior Government whip, who is chirping away over there, to take a call and tell me that that will not be so—to rule it out absolutely. Her colleague the Hon Jim Sutton, the Minister of Agriculture, certainly will not. We have put it to him a number of times, and he certainly has not ruled out Sue Bradford as the next Minister of Agriculture or Minister of Conservation.

Let us look at what this legislation will do in terms of the power of veto it gives to the Department of Conservation. To start off, through an Order in Council the Minister of Conservation can prevent, or impose conditions on, proposed allocation of space. On the surface, that does not sound too bad, if there is a responsible Minister. But, as I said, the chances of that happening are not great, at all. The department gives effect to Government policy on the ability to include the Treaty of Waitangi clauses in allocating space. So there is a second issue that may or may not cause some kind of humbug there. The department can also, under the Resource Management Act, submit an individual consent or objection—that is, the Department of Conservation or its Minister, or “Minister Smith”, whom I have spoken of, could put in a private objection through the Resource Management Act process. If that fails—if the department still has not killed the aquaculture proposal, which clearly would be the objective of that group, based on its track record thus far—then it can effectively veto an allocation at the last hurdle, under the guise of giving effect to Government policy. I ask the Minister in the chair to take a call and put to bed the fears of those who submitted to the very good Primary Production Committee with those concerns. I am sure he will have a view on that.

I also ask the Minister to take a call to explain how the aquaculture management areas process will work, in a practical sense, with the Department of Conservation having so much power over it. I say to the Minister that, given the track record of the Department of Conservation so far—its “preservation at all costs and to hell with business” sort of approach—the department will kill any proposed aquaculture management area or any proposed aquaculture investment that may be put forward. I also ask that the Minister take a call to explain to those who may be interested in investing millions of dollars in this industry why they would even bother to go through that process when there is so much uncertainty about the likely outcome.

This industry, particularly with the huge developments in technology that are taking place, potentially could be one of this country’s biggest export industries. It is a growing industry. There is huge opportunity looking forward. With the kind of power of veto that is given to the department under this legislation, why would people even bother to come to New Zealand and look at the proposal? They would look at other opportunities internationally and find that anywhere else in the world, potentially, they could have an easier go at it.

In my earlier contribution, I raised questions with the Minister regarding the power of the Minister of Conservation under clause 4A(b). I now want the Minister to take note of new section 165O, inserted by clause 21, concerning the power of the Minister of Conservation, because it is even more dramatic, or more draconian, than the clause I referred to earlier. We have here legislation that gives the Minister of Conservation the ability to affect Government policy. If Government policy was all about the genuine promotion of the aquaculture industry, then I would be completely satisfied. But submitter after submitter came to the Primary Production Committee and said that although they hoped the select committee would be able to tidy up the mess around security of tenure, they were equally focused on, and concerned about, the power of the Minister of Conservation.

As a number of my National Party colleagues have already said, at the moment the power of the Minister of Conservation rests in the hands of one Kevin Smith, the Royal Forest and Bird Protection Society man in the Minister’s office. What about after the election? God forbid that this occurs, but if Sue Kedgley were to become the Minister of Conservation—

💬 Ian Ewen-Street: Very good call.

Ian Ewen-Street says that that would be a very good call. I am not so sure about that. We have seen reports in the paper over the last 24 hours that Sue Kedgley says it is bad to eat strawberries. Here we are, a week away from Christmas, and the Green Party has a policy that it is bad to eat strawberries. Why is it important for the Minister to be concerned about that? What if the next thing she says is that green-lipped mussels are bad for us? We could then have the Minister of Conservation—who could be Sue Kedgley—saying we should not eat mussels. For God’s sake! I say to the Minister that under this legislation the power exists for that to become Government policy and to stop aquaculture in its tracks.

So if the Government is not putting those provisions in the legislation for good reason, it should take them out. It should support the amendments that will be advanced by Phil Heatley, the excellent fisheries spokesperson for the National Party, and get rid of new section 165O. It should listen to the submissions of the likes of the New Zealand Law Society, which told the select committee that in terms of all the legislation it has made submissions on, that provision was as draconian as any provision it has ever seen. Submissions like that need to be taken note of, yet the Minister in the chair, David Benson-Pope, will not justify why a provision like that in new section 165O(2)(a) needs to be in the legislation.

I also want to refer to new section 165W and the subpart associated with private plans. This legislation allows an avenue whereby aquaculturalists who want to expand their operations can do so by means of a private plan change. But the industry said to us that if it goes down that path, it must gift 20 percent of the space to Māori. That is fundamentally wrong. Why should an industry player have to go through the process, at huge cost, of promoting a private plan change, and then lose 20 percent of the space to Māori? Not only do aquaculturalists lose 20 percent and bear all the associated costs but Government policy is even more stupid than that. What benefit is it to Māori to pick up 20 percent of all the little private plan changes around the Marlborough Sounds? The answer is that it is of no value to them, at all.

Those are the two points that I want the Minister to answer. I see the Chairperson is indicating that we have to get closer to the debate. He should pick up the legislation and look at it, because he would see that that is in Part 1. New section 165W starts off new Subpart 2, “Privately initiated plan changes”. What privately initiated plan changes are all about is that people who want to expand their operation will have to go through a process with the local council and, if they are successful, they will then lose 20 percent of the space to Māori. That is wrong. The Minister, David Benson-Pope, can sit in his chair if he wants, but I call on him to stand today and justify that. Why should an industry player have to pay the costs associated with going through a private plan change, and then gift 20 percent of the space to Māori?

I make no apology, and neither does the Government—nor would, I think, most New Zealanders—for including in this bill statutory powers for the Minister of Conservation and also for local government to ensure that those privileges—and privileges they are, to have use of the public domain and public common space—are properly safeguarded. Having said that, I know the previous speaker is only too aware that much of what he is saying is not quite as close to actual fact as it might be, given his familiarity as the chair of the Primary Production Committee with a lot of the issues.

In terms of what is happening around this legislation, I can do no better than to read out the statement that was released today by the chairman of the New Zealand Aquaculture Council, Callum McCallum, who stated, among other things, that: “The bill as reported back now is a summary of a huge amount of effort from industry, Government, and officials, and from regional councils. Industry has sought law changes that will support and encourage existing investment in New Zealand aquaculture and will create the right environment to allow sustainable development of New Zealand aquaculture towards the industry targets of $1 billion export annually, and so on.”

I am delighted that the industry has the vision that is so palpably lacking on the Opposition benches. I am delighted that because of the extensive cooperation between the parties involved, such as the Ministry for the Environment, the Department of Conservation, the Ministry of Fisheries, local government, the industry, and also some members in this Chamber—though notably not from the National Party—we are now in the position to take the moratorium off, as the National Party asked me to at the start of the year, and to unleash the amazing potential that exists in this industry.

I would like to take a call with regard to new section 165U, “Tender money”. There has been a lot of nonsense spoken about this particular issue—about the fact that this is public space and, therefore, we should give regional councils and the Government the right to charge whatever they like. Let us just think for a moment or two about some other industries in this country that use a public resource. What about the use of fresh water by Meridian Energy, Genesis Power, and Mighty River Power? Those companies use a public resource. Do they tender for the use of that water? I do not think so. So why do we not apply a consistent standard right across the board, and say that everybody who uses a public resource should tender for it? Well, that does not happen. For example, all the natural gas and oil reserves are public property and resources, so why, in many cases, do the oil and gas companies not have to tender to drag those particular valuable commodities out of the ocean floor? What is the difference between those companies and somebody who, in many cases, puts up vast amounts of capital, goes through an extraordinarily elongated process to get a resource consent, possibly even has to compete with the Department of Conservation in tendering for a particular space, and then finds that he or she is being whacked with a huge rental for the use of that space?

The Government is totally ignoring the fact that there is unemployment, and that there is a very valuable use of that capital by an export industry. The aquaculture industry is potentially a multibillion-dollar industry, yet the Government and regional councils are saying that they will charge for the use of that public resource. Well OK, if the Government and regional councils are to do that, then they should do it right across the board, and apply it to Solid Energy, as well. Solid Energy takes vast amounts of coal, which is a public resource, out of the ground, so why do we not get it to tender for its use of coal, which is our resource? This measure is an inconsistency, and it is an example of how poorly the Minister in the chair, the Hon David Benson-Pope, has thought through some of the fundamental issues. The tendering process does allow for the best use. If we did have to tender for all public resources, then we would end up with the highest use possible, and that is not a bad system.

I draw the Committee’s attention to the use of the public resource we call “fish”. We have a quota management system that is absolutely brilliant in comparison with anything else that we could have in terms of allocating that public resource, but we can imagine what would happen if somebody with quota had to re-tender every few years for it. We would probably find that the Department of Conservation, with its $300 million or $400 million allocation—as it probably will be next year—could outbid everybody and leave everything alone, while we just try to eke out a living back on the land, if we are still allowed to do that under that department, as well.

So I really cannot see why we have a tendering system whereby a marine farmer’s application has to go through a very, very elongated process—a process that will cost the farmer tens of thousands, if not, hundreds of thousands, of dollars—only for the farmer to be then faced with having to re-tender for space when it becomes available after the 20-year process. There will be regional councils that could be potentially controlled totally by the Green Party, by that time. My God! We have only to quickly visualise that scenario to recognise what an appalling situation it would be. Where in this bill does it state that a regional council must accept the highest tender? As often as not, when something is tendered there is a statement: “The highest or any tender not necessarily accepted.” So now there is another process whereby a regional council could veto an application.

A great many marine farms happen to be in the Marlborough Sounds, which is a beautiful area that I represent at this time. Colin King will be the next MP for that area. He is a great guy. He is a farmer; a good hands-on farmer, who knows what it means to work. If he were the Minister in the chair, he would get up and speak for more than 1½ minutes. This Minister, the Hon David Benson-Pope, could manage only 1½ minutes. I was timing him—1½ minutes, and he did not get it right. I have to ask what this Minister actually knows about this bill. This is a big test for him. All he could do was stand up and quote a press release from the Aquaculture Council. Well, the council said the bill is better now—but it could not have become any worse, I tell the Minister. It absolutely could not have been any worse. It was an absolute shambles, because what started off as a vision to try to get this country’s aquaculture industry growing at the rate that it should be growing turned into a moratorium under this Government, and it was bogged down.

The Ministry of Fisheries, the Department of Conservation, and local government were all fighting about what should happen, but who on earth was representing the aquaculture industry? It was not this Minister, or the Minister before him, the Hon Pete Hodgson. Who was standing up for the aquaculture industry? Of course, the Government says that this is better—because the original bill was just a mess. What the industry wanted was a one-stop shop. It does not have that. What it wanted was some finality and to be able to get on and practise the business that it knows about and that it has built in this country. The marine farmers of Marlborough built a fantastic industry without a huge amount of Government interference, and with that they were the highest-income earners for that region. They had an industry growing at a rate of 20 percent.

I ask the Minister what the growth rate is now. Does he know? It is zero percent. There has been absolutely no growth, while the rest of the world is growing at 30 percent. This industry has been brought to a standstill by this Government. Of course the Aquaculture Council says that it wants to get on with it, it is happy, and it wants things to move ahead. Of course, it had to put a huge amount of work into it. It always surprises me that bureaucrats manage to get it so wrong. These industry people work in the field every day, but some bureaucrats in Wellington have never actually been to a marine farm. I remember when the Primary Production Committee came down to Marlborough—we finally got them out of Wellington—and its members were all looking around and asking where the marine farms were. They had the impression that they were wall to wall across the Sounds, which of course they are not. But what I have to ask under Part 1—and I want the Minister to answer this; he started to answer it before and he did not go any further—is if a private plan change occurs for a private person, and 80 percent goes to him and 20 percent goes to Māori, why on earth would Māori want just a little patchwork here, there, and everywhere?

💬 Hon David Benson-Pope: It has changed. The member should read the bill.

It has not changed. The Minister does not understand the private plan change. If we look at Marlborough where a lot of people have their individual farms, which will become aquaculture management areas, if they make a change then 20 percent will go to Māori. Why would Māori want just little patchwork areas here and there? I cannot see that. Who will be the Māori who would get that? There are eight iwi in Marlborough, and I ask which would be the relevant hapū. How will they sort that out?

The provisions of the bill relating to aquaculture management areas and the 20 percent space to Māori came from the belief that Māori did not get a fair go in Marlborough. Māori have 30 percent of the marine farms in Marlborough at this point in time. If they get another 20 percent under this bill, they would have a total of 50 percent. Where did this idea come from, originally, that they did not get a fair deal in Marlborough? That is not the case. Marlborough has a unitary authority, and that was a really big breakthrough in local government. A lot of other areas should consider doing that. It makes it easier for Marlborough to be progressive in the developing of aquaculture management areas.

The industry was desperate for first right of refusal. These are the men and the women who have been out there forging an industry for New Zealand, and it is a wonderful industry with a very healthy product.

The Minister owes the Committee the respect to explain some of the complex issues contained in Part 1. I want to focus particularly on something said by my good colleague David Carter, the chair of the Primary Production Committee. As chair he has some detailed knowledge of this bill; I confess that I do not—I am just reading the bill as it is in front of us. What I think deserves clarification is the issue around the new sections inserted by clause 21, starting probably at about new section 165X. The Primary Production Committee, by majority, inserted a whole new section 165Y, going through to section 165Z, and to 165ZA.

I would like the Minister to focus on those sections in particular, because they relate to where an individual seeks a change. It seems that the select committee suggested that the word “plan” should be dropped and it has suggested “request for change”. As I understand it, these sections cover changes to areas that are covered by aquaculture. What is important is what exactly is meant here. There have been allegations that if an individual seeks a change—and the individual is going through all the expense of seeking the change—and should a council grant that change, 20 percent of any area would be allocated to Māori.

I think the Minister spoke to the Chair, Ross Robertson, to indicate that that may not be covered by this part—if I correctly interpreted the Chair’s hand signals. They were such that he wanted my good colleague David Carter to come back to this part of the bill. What is troubling me, though, is that it seems that this part does refer to this issue. I draw the Minister’s attention to new section 165ZA, “Acceptance of request or part of request for change”, which all goes back to section 165X and the issue of request for changes. What it actually states under subsection (1) is: “If the regional council accepts the request under clause 25(2)(b) of the First Schedule, the council must specify that the person or persons who requested the plan change are to receive an authorisation under section 165ZB for 80 percent of the available space in the aquaculture management area.” It seems to me that the difference between 80 percent and 100 percent is 20 percent. The question is: what happens to the other 20 percent? Is that the 20 percent that is being actually withheld and allocated to Māori, or is that in addition to 20 percent that has already been required to be allocated to Māori? This is what I believe that listeners deserve to be advised on, and I would appreciate if the Hon Damien O’Connor would take a call—and I think he is one of the better Ministers in this Labour Government. I have to confess that I think he is actually a darn sight better Minister than the Hon David Benson-Pope.

But the public does deserve to know what this means. Does it mean that where a change is requested—an additional area, perhaps; say an existing aquaculture farmer, for want of a better word, has sought a change and been able to expand his or her operations, and goes into a new area—in accepting this request the council has to allocate only 80 percent? Will that remaining 20 percent be allocated to Māori? Is that totally separate? If not, where does that 20 percent go? Or is that 20 percent in addition to an overall 20 percent allocation that is being made to Māori out of aquaculture allocations in New Zealand? Because we hear it said, from those who have been on the Primary Production Committee, that, in fact, to bring Māori up to 20 percent overall, 40 percent of new allocations could be going to Māori.

I just think that the public of New Zealand deserves an explanation because clearly these clauses I am referring to refer to changes. They refer to what someone will have to go through and pay for if he or she is seeking an expansion to an existing aquaculture area. We deserve to know, because it is not clear from the new sections. Does this mean, if there is a new area to be allocated to an existing farm, and he or she goes through the aquaculture operator, or through the cost of seeking it, 20 percent of that new area will be allocated to Māori?

I would like to agree with my learned colleague on what has been said in the Committee about the atrocious nature of the amount of aquaculture space being accorded to Māori through the process of this bill, when I note that there is no justification for it, because aquaculture has existed only in the last 40-odd years. So really where is the premise on which that allocation has been based? I think it is disgraceful. I note that the Greens think it is a logical sequence of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. I cannot understand why they would support that—or actually, perhaps I can; it is the type of thing they would support. But why should they? If this is something that is new and did not exist in 1888, or whatever, why should they be accorded that particularly, or especially? Why will they have that ongoing advantage—and not only that, the advantage of having authorities or organisations under the Tax Act that pay only 19.5c tax in the dollar? So there is no level playing field when it comes to their operations in regard to other operations, which are managed by other organisations that do not have that exemption.

I shall resume my discussion on the 20 percent gift. In essence, that is exactly what it is—a 20 percent gift to Māori if one applies for a plan change to undertake aquaculture marine farming in an area. [Interruption] Does that come under the definition of koha? Well, it does, because a koha is a gift, and that is a 20 percent gift. We have already had the brain drain as a result of the huge delay in this legislation coming to some form of finalisation. People have gone overseas to establish marine farming in other countries. So we have had a brain drain in that regard. Why would people want to even bother looking at marine farming further in New Zealand if they now have to give a 20 percent gift of that area they are applying for when they apply for a plan change? As we know, if they want to establish a new area they have to go through a plan change under the Resource Management Act, and that is after they have applied for authorisation from the Ministry of Fisheries.

First, they have to apply to the Ministry of Fisheries for an authorisation. When they get that they then apply for their plan change. Imagine if a farmer on land had to give up 20 percent of his or her farm if he or she applied for a consent or a plan change! That would be absolutely unthinkable. I cannot understand why the Government has gone anywhere near this when, as I said before, aquaculture is a new industry for New Zealand. It has not been historic, or been part of the lifestyle or the culture of anybody before 1920 at the very least. It has been suggested that aquaculture has been around for about 40 years, but certainly in the last 10. It has been a significant advance in innovation in our marine area, but then of course it became absolutely stifled by the delays in coming to some sort of finalisation.

We are appalled that there will be that 20 percent gift, and by the time it is added up, it will be looking like 40 percent. When one has to go through the processes that one has to go through, the Department of Conservation can make life very difficult and add incredible cost to the whole process. The department can be an objector under the Resource Management Act.

The CHAIRPERSON (H V Ross Robertson): We are talking to Part 1.

We are talking about private plan changes under the Resource Management Act in Part 1. This whole section refers to the Resource Management Act and also crosses into all the other sections. However, as we know, the Resource Management Act is a pretty dreadful document when it comes to applying for anything. Of course, the proposed amendments by this Government will make it incredibly worse, especially when it is affording iwi authorities just about the same status as local authorities. When people apply for a plan change I do not think they will be prepared for the amount of time and money involved to go through that process. It will take only one or two applications for the whole thing to grind to a halt yet again. We have seen that on land and we will see that on water; people will halt the process to such a degree that the activity will be driven off shore. People will not want to invest, yet again, in another industry that has huge potential.

I move, That the question be now put.

I particularly wanted to raise the issue that has been raised by other speakers in this short debate with regard to new section 165C(1)(aa) and new section 165C(2A), in clause 21. They refer directly to the issue of the so-called Māori allocation. I want to establish the exact position of New Zealand First.

In the first reading debate I raised the issue of the 20 percent threshold. As a caucus we carefully went back through this issue as it became more and more clear that 20 percent would be set down as the threshold. When I started to look at why that should be, I came to the Treaty of Waitangi (Fisheries Claim) Settlement Act, which has already been much quoted in the Chamber this afternoon. I found that a memorandum signed by the Crown and Māori set the level at 20 percent. At that time the National Government—and I was hoping Dr Nick Smith would be here, because he was here at that time—did a most extraordinary thing. It moved the first reading, second reading, Committee stage, and third reading all at once because it was so keen to implement that newly discovered threshold of 20 percent. Therefore, when I heard the Hon Nick Smith say earlier that the 20 percent allocation was based on race, I reflected back to 1992 and saw very, very clearly that that allocation had been set then with regard to the narrow issue of fisheries.

When I went one stage further and looked at the material and documentation brought to the House at that time, I found that it was very difficult, as has been already stated by one member, to see whether that was so. But, in reality, I believe that the National Party should have credit for its Government’s far-sighted move back then, which, by the way, was opposed by I Peters and W Peters. It was a very far-sighted move on its part. Rather than go back in time as the Hon Nick Smith did, it is far better to see that that threshold is one that we have come to understand—unwillingly on our part—should stand in this legislation. The National Government at the time, with the Hon Doug Kidd and the Hon Doug Graham, set it down. By the way, other members of the House who were here at that time have verified for me that although it was not formally discussed, it was mentioned in caucus and in relevant discussions at the time. That has come from members of the then select committee.

💬 Hon David Carter: No, that’s wrong.

The member who has called out that is wrong was not here at the time; he does not know exactly what we are referring to, so his “wrong” is right!

I want to say very firmly again that what the National Government did right back in 1992 has clarified for New Zealand First members where we should stand in 2004. In so doing, we know that there are immense complications in this matter when it comes to Māori iwi having to resolve what should be, in my mind, a hapū and whānau issue. But we accept the bill because we also accept that it gives a huge economic and social opportunity to the country, but particularly to my region of Northland. The process, with regard to aquaculture management areas being identified, of setting aside a 20 percent piecemeal allocation for Māori is a very small concession to pay on the part of would-be marine farmers in regard to their total ability to have investment and have a future such as we know this industry can achieve.

I move, That the question be now put.