Aquaculture Legislation Amendment Bill (No 3)

This part makes changes to the Fisheries Act 1996, which is the principal statute governing the management of New Zealand’s fisheries resources. The impact of aquaculture on fishing is managed through the process known as the undue adverse effects—or UAE—test. The bill as reported back by the Primary Production Committee places emphasis on agreements being reached between aquaculture applicants and commercial fishing quota holders. However, the bill in its present form does not necessarily enable the best-value use of the coastal marine area between commercial fishing and aquaculture. If a proposed aquaculture activity will have an undue adverse effect on commercial fishing, the aquaculture activity can proceed only with the consent of quota holders, even if the proposed marine farm would deliver much greater returns. Supplementary Order Paper 265 therefore proposes further changes to provide for a better balance between the interests of wild catch commercial fishing and those of aquaculture. The principal amendment is to clause 46, to insert new sections 186ZN to 186ZR into the Fisheries Act 1996. This is about better balancing the interests of commercial fishing quota holders with those of marine farmers.

The existing Fisheries Act 1996 protections for non-quota management stocks and for customary and recreational fishing remain unchanged. The changes introduced by the Supplementary Order Paper will, firstly, provide that independent arbitration may be sought if agreement cannot be reached; secondly, require the independent arbiter to determine whether the aquaculture activity has materially more value to New Zealand than the commercial fishing in that space; and, thirdly, provide for a methodology to be established in regulations to determine the value of the proposed aquaculture activity, the affected commercial fishing, and the compensation payable.

In addition to the amendments I have already indicated, I have tabled an additional minor technical amendment to Supplementary Order Paper 277.

This has been one of the most confounding aspects of this reform: how to strike the balance in terms of the undue adverse effects test between quota owners who obviously need considerable access to parts of the ocean to harvest their fish, and those who want to exploit that portion of the coastal environment to grow something arguably of greater value than the scattered number of trevally, snapper, blue cod, or whatever the case might be.

One of the most egregious examples of where aquaculture development has been held hostage can be found in the Tasman area. This reform and this set of changes arguably crimp or narrow—certainly deflate—the expectations of quota owners, and potentially narrow the application of what their quota rights actually entitle them to. The very important point that is made here is that all the industry will not agree with this, but there will be an opportunity for those who are quota holders, quota owners, etc. to enjoy a level of compensation. One hopes, however, that that compensation will not be excessive, because at the end of the day what I think has been correctly captured in this small portion of the reform is that having a quota to fish is having an entitlement to extract something from the ocean. It is not having an entitlement to an excusive level of possession to parts of the ocean. That might happen where a tai-ā-pure or a Māori mātaitai seafood reserve is created, or, indeed, a new fish farm, which is an idea that has taken a long time to materialise, unfortunately, but is a great idea. So we will be supporting this portion of the Aquaculture Legislation Amendment Bill (No 3).

I make reference to the fact that there are some liberal references in Part 2 to the High Court. It is obvious that in the tradition of fisheries politics, the fishing industry, and the application of regulation to the fishing industry, much of what we are currently talking about will wend its way, unfortunately, to the High Court, because it is a very litigious area. But the main point of why we are very keen to support it is that it is finally going to give a process that recognises the rights of quota owners, but to a point, and it does not inhibit the expansion of marine farming and aquaculture, which arguably is going to generate for “New Zealand Inc.” a greater return. For those reasons, Part 2 is supported by members on this side of the Chamber.

I will take a brief call on the Aquaculture Legislation Amendment Bill (No 3) just to say once again, as my colleague the Hon Shane Jones just said, that this bill received very emotional submissions from a number of submitters to the Primary Production Committee, particularly from recreational fishers and from customary fishers.

I think this bill is a balancing act in terms of trying to protect the quota holders as well as take into account the wishes and the concerns of recreational fishers and customary fishers. As has been said before, there is opportunity for those who feel aggrieved to take their case to the High Court. Since 2003 there have been only about 10 cases that have gone through this process over concerns about undue adverse effects. I think only two of those cases have been upheld.

With those few words, we support this change in the bill in terms of the undue adverse effect on the quota holders. Also at the same time we make a note of the fact that the other fishers are also concerned about this particular clause. Thank you.

The question was put that the following amendment in the name of the Hon Phil Heatley to the proposed amendment set out on Supplementary Order Paper 277 in his name to section 186ZIA(4)(b) in clause 43A be agreed to:

to omit “makes a determination under section 186ZP(5)” and substitute “a determination under section 186ZP(5)”.

Amendment to the amendment agreed to.

The question was put that the amendments as amended set out on Supplementary Order Paper 277 in the name of the Hon Phil Heatley to the proposed amendments to Part 2 set out on Supplementary Order Papers 264 and 265 in his name be agreed to.

Amendments to amendments agreed to.

The question was put that the amendments as amended set out on Supplementary Order Papers 264 and 265 to Part 2 in the name of the Hon Phil Heatley be agreed to.

Amendments as amended agreed to.