Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill

Right. Good morning, members. The committee is resumed. Last night, when we were considering the bill, we were debating Part 1. I’ve got the run sheet here of the questions and the engagement that were being asked for last night. We’re still on Part 1 and the question is that Part 1 stand part.

Thank you very much, Madam Chair. I would just like to bring to the Minister’s attention that the question I asked last night was around his wont, desire, to have an aquaculture bill. He didn’t answer my question last night when I brought up the fact that the process was quite rushed, that people didn’t have much time to submit, and I asked the question as to why he didn’t take the time, allow a longer period of consultation in order for him, perhaps, to be able to develop the aquaculture bill that he so desires to do. I look forward to the answer from the Minister with regards to that.

I also have another question. It is in regards to the time frame allowed for consultation and the very quick report-back date for this bill. If you will indulge, I may just quote a couple of submitters. There was some real concern from submitters about the very quick, short consultation period, and in particular from iwi. For example, I would be interested in hearing the Minister’s thoughts on the expectations as a Te Tiriti partner in so far as this consultation period has gone, and, therefore, the final bill that’s come to the House that we’re debating now and the changes that weren’t made as a result of this very short consultation period—where we’ve had 1,100 submitters, a thousand were opposed, and perhaps not feeling quite listened to. I’d be really interested in the Minister’s thoughts on this. For example, Ngāi Tahu talked about the fact that “the engagement … has fallen well short of Cabinet guidelines and our expectations as a Te Tiriti partner.” Also, Waikato-Tainui have mentioned that “While the Government has committed in its coalition agreement to deliver longer durations for marine farming permits, it has also committed to honour the undertakings in Treaty of Waitangi settlements. This proposal is a clear breach of that commitment.”

I would like to hear from the Minister, again, around his desire for the aquaculture bill that he could have had if he had extended this period out, and, therefore, also allowed proper consultation from all of New Zealanders and including iwi Māori, who feel that they haven’t been given that opportunity and it is a bit of a breach as far as Te Tiriti obligations go. So I’d really like to hear from the Minister about that, please.

Kia orana, Madam Chair, thank you. When we left off last night, there were still a number of questions that the Minister had not yet addressed. The three that I have on my list that I have put to him—one is just to serve as a reminder. Why is there a need to reference appeal rights within the legislation? That’s contained within new section 165ZFHH(2).

The second was around the limitations on only one review of a permit and the impact that that might have in relation to a review of a further condition to take place within the two-year period. So this is where you’re only allowed, as I understand it, one opportunity for a review, if that follows through the process, around a condition, but if within a two-year period there is a further issue with perhaps one of the other conditions that relate to a permit, whether that door is closed for the purpose of a review. That is new section 165ZFHI(3)(b).

Then the other one which is still of great interest is the status of a surrendered permit—so this was about a replacement permit. In the circumstance where activities operating under a replacement permit, if that permit was surrendered because the applicant had decided to take up the opportunity to have the permit extended, what is the status of a surrendered permit? Is it that it just lies dormant and can be reactivated in some way? Why not just use the word that the permit is “cancelled”. It’s about the status of that. Those are the three questions that I’m keen to get a response for from the Minister.

I want to turn to the Amendment Paper in my name, which is Amendment Paper 57. This relates to new section 165ZFHI(4) inserted by clause 4. It’s specifically around the ability for territorial authorities or consent authorities, more specifically, to, effectively, recover some of the costs. Now, the Minister has said that he believes that these costs should be borne by the consent authority. That means that those are costs that are to be borne by the ratepayers. It is the Minister and the Government, effectively, lumping on to ratepayers of this country an additional cost, once the director-general has determined that a review can take place. This Amendment Paper seeks to find some balance between full cost recovery and the full cost being borne by the ratepayers. I’m interested to hear the Minister’s thoughts on Amendment Paper 57, which says that “Despite section 36”, which is a section that relates to costs, “a consent authority may recover costs of a review undertaken under this subpart, subject to the following criteria”, and there are two.

The first is that the costs need to be considered as fair and reasonable, and there is much case law around the country as to what fair and reasonable might be considered as, but that is the first criteria that must be engaged if there are costs to be recovered. The second, and this was raised as a possibility through the select committee process, is to actually have the costs capped at a maximum level. Instead of a consent authority saying that actually, “No, we’ll recover part of it.”, or whatever it might be, what my Amendment Paper does is effectively sets the maximum so that any costs that would be recoverable would not exceed 50 percent of the total costs incurred.

It’s also worth noting, for the Minister, that they are not either/or; both of those components need to be engaged in order for the costs to be recovered. They need to be fair and reasonable or they need to be up to 50 percent. This is saying, actually, if you look at the costs that have been incurred or may be incurred, that they are considered as fair and reasonable in the circumstances, and also that they won’t exceed more than 50 percent; so that even if the costs do run higher than that, it means that the ratepayers are not out of pocket for some costs. I’ll leave those with the Minister and come back to some of the other issues.

Thank you very much and greetings, everyone, for what will, no doubt, be an illuminating morning. On the question of costs—

💬 Hon Jo Luxton: No doubt.

—there, no doubt, will be opportunities in the future for the director-general to alert future Governments as to whether or not these enlarged fears that are being spread around the Chamber this morning have any substance. From my perspective, the policy work behind this bill, those fears are groundless. The reason why the ratepayers and the council will meet the costs of an intervention in the legal, rightful business of a marine farmer is because they will know that it has to be of a particularly egregious nature because they’re going to pay for it themselves. In the event that they decide that the condition problem is of such a magnitude that they need to spend the ratepayers’ money, they will also consult and seek the authority of the director-general as a further discipline.

New Zealand is saddled with far too many cases where relatively narrow-minded local government officials are interfering in the rightful business of entrepreneurs and the marine-farming industry. This particular rod of discipline is overdue. The ratepayers know that they benefit from having industry in their regions. The industry, based on risk, multiplies a whole host of benefits every day it remains in business. The dividend enjoyed by the ratepayers is the presence of that industry. Before anyone interferes in this very innocuous, harmless industry called aquaculture, there is an extremely high threshold they must pass.

On the question of the surrendering, you may have worked out that I am not surrendering in terms of my advocacy for this bill. This bill provides an opportunity for a marine farmer to enjoy the permit they already have extended till 2050, at the latest; or if they’re involved in a process to adjust elements that comprise their entitlements within that defined area, they can’t have two permits at once. Our side of the House doesn’t believe in double-dipping. The surrendering option enables the applicant to come back and enjoy the 20 to 25 years security, and it simply provides clarity that you can’t be involved with two permits at the same time.

💬 Tangi Utikere: So it’s cancelled.

Now, on the question—I say again: this bill cancels no permits; this bill breathes life into the entrepreneurial endeavour, the risk-taking ability, and the commitment to double our exports over the next 10 years. That’s the ideological, philosophical purpose of this bill. Where an applicant is already in a process at the point at which this bill is enacted, you only have one permit.

My point in relation to one review on a permit: the review, if such an additional review is required and there is an egregious failure, like the member from the Green Party contemplated last night with fish farming—a highly profitable activity, happens all over the world: Chile, Norway, other parts of the world, but here in little New Zealand, we catastrophise these points in the ocean that are the size of a beauty spot, but, no we’re not allowed to do it. This bill is getting rid of all of that ideology. We are going to focus through here where there are cases where there may be a serious threat, such as an unwanted biological presence—there are other pieces of legislation to deal with that.

We’ve had far too many unnecessary, superfluous, and worrisome interventions from local government interfering with the rightful business of employers and investors in the marine-farming industry, and today they have their champion in the matua.

Thank you, Madam Chair, thank you very much. We do appreciate the florid rhetoric of the Minister, but we also would love to get some solid answers on some quite legitimate questions. I thought there was quite a valuable comment from my colleague Lawrence Xu-Nan who said that a beauty spot can too be carcinogenic, and we need to be aware of which ones to watch out for.

Now, I have a very specific question to pick up on a comment the Minister made yesterday. It was a reference to his love of seabed mining in Taranaki—something the Minister raised yesterday. I wanted to question the Minister: how does he balance the diverse interests in that commons that he rightfully acknowledged yesterday when there are tensions between not just ecological values or visual values, but also commercial activities? Taranaki being a good example, but there are similar instances in other parts of the country—many similar instances. In Taranaki, to clarify, we have a situation where the seabed miners want to rip up tens of millions of tonnes of seafloor to extract supposed minerals. It has been fiercely opposed—as the Minister, I’m sure, would know—by the fishing industry for 10 years because it is seen by the commercial wild fisheries industry to be a direct threat to their industry.

Most recently, another opposition has come in from the offshore wind industry, because they say they will be unable to build their windfarms if the seabed has been so disturbed that it has lost its stability. These are three competing commercial activities. How and who is it to make the determinations about how to balance these tensions of use of the marine space, which is a commons, if there is simply a dictate from central government to say, “We are going to extend all of these marine farms without consideration of the other interests in that marine coastal environment.”? That’s a question for the Minister: how are you going to balance those different tensions?

I note, very well-articulated by the Marlborough District Council—his favourite regional council—“The allocation of public space in the coastal marine area is no easy feat, requiring a strategic approach to balance the competing demand for this common resource.” Now, specifically regarding Marlborough, described eloquently in their submission, “with its drowned river valleys, and the open coastline of the East Coast of South Marlborough. This coastal area contains scenic landscapes, high levels of indigenous biodiversity, as well as a diverse range of recreational, commercial, and cultural uses.” Who is it to make the determination about how to allocate these resources if not the local people, the regional councils, those representatives of the locals? If we are to impose dictates from on high from central government that override the ability of those regionally elected representatives to make determinations on how to balance these different interests, surely we are in big trouble. Because how is this House best able to determine all of the nuances of the interests that exist in a space such as Marlborough or Taranaki?

In its submission, the council concludes that “It is fundamentally unsound to have both central and local government attempting to allocate the same coastal marine area”. I would like to ask the Minister: how does he reconcile that fundamental tension? Is he absolutely content to impose the will of central government—it is not localism—on those regional councils?

My second point is another very important one to do with aquaculture management areas. This is a very excellent solution that Marlborough has come up with over years to deal with the challenges of marine farms. Now, in 2016, the Marlborough Aquaculture Review Working Group sought to assist the council with how to deal with the extent of their marine farm activity. Just reminding us that we have half of all of New Zealand’s marine farms in Marlborough and 80 percent of the total commercial value of marine farming is in Marlborough, so we should be paying attention to this region—[Time expired]

CHAIRPERSON (Barbara Kuriger): I’m going to let Mr Abel pose his question, but I don’t want to see this be a speech or a five-minute call. I want to see the question relating to Marlborough as you had already started on.

Thank you, Madam Chair. Just to clarify what the aquaculture management areas are, they’re called, simply, Variation 1. They allow for a seaward movement or adjustment of the existing marine farm to the aquaculture management area. This adjustment is enabled through a controlled activity status for reconsenting existing marine farms within an aquaculture management area. The reallocation of the majority of inappropriate marine farms to an aquaculture management area (AMA)—I will speak about any inappropriate marine farms in another call. Marine farmers, therefore, have certainty of tenure through Variation 1. It articulates where aquaculture is appropriate and implements the requirements of the New Zealand coastal policy statement and the RMA in Marlborough.

Now, Variation 1 disincentivised marine farmers from moving seaward into AMAs to provide for Variation 1. In this legislation, they’re saying, “The blanket extension provided by the Bill has the very real potential to undermine Variation 1”, and these variations strike the “balance of enabling Marlborough’s marine farming to continue to thrive while at the same time ensuring sensitive coastal areas and habitats, many of which are regionally and nationally significant, are protected.” So here it is, Marlborough has at great lengths sought to solve the challenges. Marine farmers, therefore, have certainty of tenure through Variation 1, which is what the Minister is concerned about.

I’d like the Minister, if he would, to respond to that question about the impact of this blanket extension on the option of aquaculture management areas in Variation 1, as well as my earlier question on how it is to manage these diverse interests in the marine space if not through the knowledge of the local regions. Kia ora.

Let’s be really clear: the allocation of space, the utilisation of the commons, is already subject to central and local government interactions. Aquaculture allocation—i.e., entitlements—are guided by the New Zealand Coastal Policy Statement. That wretched creature is a feature of central government. Sadly, in the vast majority of New Zealand, it impedes the economic monetisation of our boundless coastal environment—something I hope to change in the near future. It is not correct to say this is exclusively an area where local representatives have the ultimate authority. They are guided by guardrails created by central government. An additional guardrail with neon lights will be passed by this Parliament very shortly—that’s the first thing.

On the question of how do you manage vexed areas such as Taranaki, I’m the first to admit that there has been a historic level of friction between quota owners and applicants wanting to extract vanadium, titanium, and a host of other very valuable rare earth minerals from the bed of the sea. A national conversation is most certainly needed, because we have surrendered to a tiny minority of loud, shrill, ill-informed voices who have weaponised not only tikanga Māori but have weaponised the anxieties that people have at a time when New Zealand has very few options other than to engage in trade-off politics and use mother Nature’s bounty—i.e., the iron sands off the coast of Taranaki.

I look forward to playing a key role as the Minister of natural resources, but today I’m here as the steward of this bill in my fisheries role. There is already a host of opportunities in regional New Zealand to balance what’s in the coastal policy statement, driven by the Department of Conservation, what’s in regional coastal policy statements, what’s in regional coastal plans. The effect of those plans has been to chill, undermine, and freeze economic development in the coastal environment.

Coming back to Marlborough, there is nothing to stop future applicants using this much-vaunted new approach. But people who already have their permits will be spared the ordeal of having to spend hundreds of thousands of dollars in these processes in Marlborough—highly weaponised—and employment is going to trump privilege enjoyment.

I move, That debate on this question now close.

I just want to signal here that we are getting closer to the closure of this debate. I watched last night and this morning and I do see that the Minister has progressively worked his way through answering the questions. I am going to take a couple more questions from people who have been waiting for a little while—burning questions—but I want to see new questions. I’m going to go first to Jo Luxton. Then I’m going to go to Tangi Utikere. Then we’ll see what develops from there, but we’re getting very close to the end.

Thank you very much, Madam Chair. I want to question the Minister around the “Process applying to review” new section 165ZFHL. Now, the Minister, he talked before about the marine farms, aquaculture farms—it’s commons area. Therefore, no one specifically owns a piece of it as you would a piece of land.

Within the process applying to review—let’s say it’s gone through the process of the council wanting to review the consent; the director-general’s given the sign off on that. Then in this particular clause here, Minister, it talks about the people who will be notified. Now, I don’t see general public here; there is a specific list of people who will be notified. But, Minister, given that these aquafarms are in commons and given the fact that the review will have to be paid for by the council, therefore paid for by the ratepayers, how is it democratic for ratepayers—putting aside your thoughts around nimbyism; let’s pretend this isn’t nimbyism happening here—other ratepayers who have an actual real interest in this? Why are they excluded from being notified? Why is this not going to be publicly notified, given that they will be the ones footing the bill for this review that has gone through the process of being reviewed? How can this be a democratic process?

Is this not just—for a Minister who talks about getting everything out of Wellington and out into the regions—sucking back decision making to Wellington?

Thank you, Madam Chair, and thank you to the Minister, the Hon Shane Jones, for addressing a couple of the questions. There is still the issue of the reference to the appeal rights inclusion in the legislation, which the Minister has not addressed, and also I am yet to have a response from the Minister about his view on Amendment Paper 57, which is on the Table and has been available in the public domain for the last couple of weeks. I would be keen to hear the Minister’s thoughts on that.

I want to turn my focus now to new section 165ZFHK, and this is about the concurrence of the director-general (D-G). Now, our position is that we don’t agree that the director-general should be involved in this particular way, but if that is going to be set aside by the Parliament and the director-general is involved, I do have some questions that relate to the role that the director-general would undertake. In particular, when we’re looking at that proposed new section, subsection (2)(a) talks about the need for the D-G to make a decision either to concur with the consent authority or otherwise. The question that I have for the Minister, firstly, is how will the director-general be guided in making those determinations? Surely there must be some form of framework or ability for the director-general to consider various aspects, otherwise it would change depending on director-general to director-general. The question is around scope, really, and what guidance would be provided for the D-G to be able to exercise those—whether that’s something that’s suggested might be within regulation or not.

Further in that section, it talks about a particular time frame for the director-general to receive information in reaching a determination. Now, OK, what’s consistent with the Resource Management Act is that there is an ability for time frames to be extended if there is a need for further information to be provided. What’s not clear in this section, however, is that whilst there might be a time frame for getting the information to the director-general to be able to make a determination on a review, there doesn’t appear to be any time frame for the director-general to make a determination. It’s one thing in the process of receiving information—and, OK, it’s quite clear about working time frames, as to when that information would arrive—but I invite the Minister to comment on the ability for a time frame within which the director-general will make a decision. Now, that is important because, further on this particular part, there are time frames set for when decisions need to be made on a review, but it seems to be absent of time frames that relate to the director-general to be able to make a decision. So I will leave that with the Minister.

The other area that I do want to touch on—I understand that my colleague Mr Bennett actually has an interest in asking a question on one part of new section 165ZFHL, so I won’t, in the interest of time, delve into that. The issue that I do have is on new section 165ZFHM. This is about the time frame relating to when a decision needs to be made. The Primary Production Committee has changed the wording from “beginning” to “initiating” the review. My question to the Minister is: how is initiation described?

It could be that, if you begin a review, that’s very clear—when the green light has been given to the consent authority to undertake the review. It would seem, to me, that that’s when the time starts ticking. Now, initiating a review—are we talking about when the consent authority first lodges something with the director-general? Is it the point when the director-general makes the determination that a review can go ahead or not? Is it extended by the 20 working days because the director-general makes a determination that they need more information? There is a clear change in the wording from “beginning” to “initiating”, and my question is: what does “initiating” mean in the context of a process for determining whether a review is successful?

If a review is not to be undertaken, that’s a moot point, clearly, but “initiating” is what? I think that’s important. Is it the date that the application is received? Is it the date that the director-general makes the decision or determination? Is it the date that the notification exists? They are important considerations that I’d appreciate from the Minister.

Extraordinary, we’re now talking about the rights of initiation. Obviously, the authority to undertake a review of conditions depends on the concurrent authority being exercised by the director-general. Nothing is legal until such time both parties have agreed that there is a case for—within the two-year period—such an exercise to take place. It is beyond cavil in terms of the clear meaning of the law.

In relation to who ought to be invited or entitled to have a say in relation to either an appeal in the event that someone is offended by the effects of this inquiry within a two-year period, I think you should contemplate it in the sense of the law of propinquity—i.e., how close are you to the effects of the decision? We don’t want this business where these are cafe-sipping people from Ponsonby who can muck around in the Tai Tokerau, wander down to other earthy parts of regional New Zealand and have a say about a highly localised, relatively modest issue. For those reasons, the law clearly states a limited number of people are entitled to be nosy parkers.

Now, this is an extraordinarily longstanding failure of resource management law. It’s provided an opportunity for people to claim standing. In actual fact, the likelihood of them being impacted by the decision is remote. But then they get involved, they frustrate the local development outcomes of an area, and those types of meddlesome activities are stripped away by this bill—all gone. There’ll be no more of these interfering urbanites undermining the resilience of regional New Zealand.

So that reflects the policy intent, and I hope to see, when the select committee eventually reports back my beloved fast-track initiative, a similar standard. No more standing for these self-appointed guardians like Greenpeace lecturing the rest of the world as to how we should live. Their capacity to influence regional development through aquaculture and marine farming needs to be narrowed and we don’t want any mutinous activities such as what Sea Shepherd did in America undermining the rights of the fishing industry in New Zealand. We’ve had enough of that. That’s what’s been hobbling our country.

Now, in respect of appeal rights, the law as contemplated here is very clear. No one is stripping away the ability of someone to take an appeal in the event statutory authority is exercised. We are putting a discipline in. You’re not going to exercise statutory authority just because a number of people who have exaggerated the importance of a landscape value to the point that it’s swamping the need of New Zealanders to be in employment. If you’ve got any doubt about that, look at the closure of industries and manufacturing plants today due to the distant corporate ambitions of people who are soon to feel the wrath of our Government.

I move, That debate on this question now close.

The question is that Tangi Utikere’s amendments to Part 1 set out on Amendment Paper 54 be agreed to.

The question is that Tangi Utikere’s amendments to Part 1 set out on Amendment Paper 55 be agreed to.

The question is that Steve Abel’s amendment set out on Amendment Paper 59 be agreed to.

The question is that Steve Abel’s amendment set out on Amendment Paper 62 be agreed to.

The question is that Darleen Tana’s amendment set out on Amendment Paper 74 be agreed to.

Steve Abel’s amendment set out on Amendment Paper 60 is out of order as being the same as an amendment previously not agreed.

Darleen Tana’s amendment set out on Amendment Paper 79 is out of order as being the same as an amendment previously not agreed.

The question is that Tangi Utikere’s amendment set out on Amendment Paper 57 be agreed to.

The question is that Tangi Utikere’s amendments set out on Amendment Paper 56 be agreed to.

Steve Abel’s amendments set out on Amendment Paper 61 are out of order as being the same as amendments previously not agreed.

The question is that Steve Abel’s amendment to Part 1 set out on Amendment Paper 58 be agreed to.

The question is that Darleen Tana’s amendment set out on Amendment Paper 78 be agreed to.

The question is that Darleen Tana’s amendment set out on Amendment Paper 80 be agreed to.

Darleen Tana’s amendment set out on Amendment Paper 77 is out of order as being the same in substance as an amendment previously not agreed.

Darleen Tana’s amendments set out on Amendment Papers 75 and 76 are out of order as being the same as amendments previously not agreed.

The question is that Steve Abel’s amendments set out on Amendment Paper 63 be agreed to.