Our advice on the proposed reforms
22. As the Trustee of the Māori Fisheries and Aquaculture Settlements, our response has largely focussed on matters of principle and the anticipated effect of the provisions within these Bills on the ongoing reciprocal relationship Māori have with Tangaroa and the associated implications on the settlements. We have had an opportunity to review draft responses from the Freshwater Iwi Leaders Group, the Rock Lobster Industry Council, Pāua Industry Council, and Fisheries Inshore through their joint submission, and Aquaculture New Zealand and have referred to parts of these responses and submissions throughout.
23. We note that our response to these Bills has been drafted with incredibly compressed timeframes, and our response focuses on the following key high-level matters within the Bills that fail to align with the approach stated above:
i. Inclusion of a ‘use’ outcome in the coastalmarine area (CMA) is required;
ii. Upholding Treaty Settlements- including the Māori Fisheries and Commercial Aquaculture settlements in this reform;
iii. Managing fishing, and its effects under the new regime; and
iv. Successful implementation of resource management reform requires Te Tiriti compliant representation and resourcing to achieve partnership
24. While we have focused on these high-level issues, as the Trustee for the Settlements we have undertaken a clause-by-clause analysis of the fisheries and aquaculture provisions and proposed amendments in Appendix One to ensure alignment with the Settlements.
25. We also lend our support and reinforce key issues identified by several other submitters, whose kaupapa align closely with ours.
outcome in the Coastal Marine Area is required
26. We note that one of the Government’s reform objectives is to “protect and where necessary restore the natural environment, including its capacity to provide for the well-being of present and future generations.”6 It is encouraging to see that these Bills promote a more focused approach in protecting and restoring the environment, working to develop enduring solutions that extend beyond current environmental challenges and consider the full scope of the environment mai i ngā maunga ki te moana (from the mountains to the sea).
27. We recognise that the system outcomes in clause 5 of the NBEB will act as significant drivers of the newresourcemanagementregime,giventhatallplanningunderboththatstatuteandtheSPB must provide for those outcomes so as to assist in achieving the purpose of the NBEB. One of the two foundational purposes of the bill is to recognise and uphold te Oranga o Te Taiao, with each system outcome to provide for this.
7
‘
’
Inclusion of a
use
6 NBE Bill, Explanatory note
28. However, in itscurrent form the bill fails to recognise and uphold te Oranga o Te Taiao throughout the resource management regime, particularly in more operative and technical aspects of the Bill. Aside from the fact that clause 5 includes a number of proposed outcomes that may be in conflict, without any hierarchy or mechanism for weighing or balancing them, there is a critical omission in relationto thesystem outcomes sought for theCMA thatfails to recognise Te Oranga o Te Taiao,particularlyinrecognisingtheintrinsic relationshipbetweeniwi,hapūandtetaiao.
29. The proposed system outcomes do not provide for use of the coastal marine area and its resources in any way. System outcomes that specifically relate to the CMA are:
i. the protection or, if degraded, restoration, of the ecological integrity, mana, and mauri of the coastalenvironment (cl.5(a)(i)(B)); and
ii. the protection or, if degraded, restoration, of the natural character of the coastal environment (including the coastal marine area)(cl.5(a)(iii).
30. In addition, four other system outcomes will be relevant to the CMA, despite not referring to it explicitly:
i. the recognition of, and making provision for, the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga (cl.5(e)).
ii. the protection of protected customary rights and recognition of any relevant statutory acknowledgement (cl.5(f)).
iii. the conservationof culturalheritage(cl.5(g)); and
iv. the ongoing and timely provision of infrastructure services to support the well -being of people and communities (cl.5(i)).
31. Of these, only subclauses (e), (f) and (i) relate to use of the CMA and marine resources in any way and only subclause (e) could be interpreted as providing for some commercial use including fishing and aquaculture.
32. The lack of a ‘use’ outcome in relation to the CMA can be contrasted with the other foundational purpose of the NBE Bill, to ‘enable the use, development and protection of the environnment’ as well as the outcomes related to land -based primary production where use is expressly provided for by the following terrestrial system outcomes:
i. well-functioning urban and rural areas that are responsive to the diverse and changing needs of people and communities in a way that promotes the use and development of land for a varietyof activities,including … primaryproduction (cl.5(c)(i)); and
ii. the availabilityof highly productive land for land-based primaryproduction (cl.5(d)).
Recommendations
33. The result is that thesystem outcomes to be achieved on land areset out in a manner thatrequire a balance between protection and use/development, whereas outcomes for the CMA are almost entirely limited to protection. While we support the inclusion of protection outcomes in the CMA, as we too have serious concerns for the health of the marine environment and the consequential impact on the wider relationship between iwi and Tangaroa, Te Ao Māori does not embrace a view that its relationship with Tangaroa is to create permanent non-use. Rather the opposite,
8
with our kaitiaki responsibilities being to ensure mauri by balancing that use and resting areas on a temporary basis if and where there are concerns.
34. The CMA is, in a Māori worldview, a space in which commercial activities can and should take place, with most of those activities having a long history for iwi. It is important to recognise sustainable utilisation thatcurrently occurs in the CMA that should not be negatedby this reform. Further, the Crown has a Treaty duty to recognise iwi/hapū use and management practices and to enable the exercise of rangatiratanga and kaitiakitanga over their fisheries and other marine taonga (both commercial and non- commercial) including aquaculture. In its current form the Bill does not meet thatstandard.
35. Therefore, we strongly recommend that clause 5 of the NBEB must be amended to provide for appropriate development and use of the CMA and marine resources, in the following terms:
i. (x) enable sustainable utilisationof the coastalmarine area and marineresources
36. Without a system outcome in terms such as this, the legitimate and fundamental interests of Iwi in sustainable commercial fishing and aquaculture will not be provided for in the new regime nor will the Bill allow for other legitimate commercial use including ports. That surely cannot be the intent of Parliament.
Upholding Treaty Settlements - including the Māori Fisheries and Commercial Aquaculture Settlements in this reform
37. The Government has stated that these reforms will not affect the integrity of its Treaty Settlements with Māori. While there are several references to Treaty settlements in various clauses of the Bill, we recommend that the proposed system outcomes should explicitly incorporate the Crown’s responsibility to uphold the integrity, intent and effect of all Treaty settlements, and that this can be ensured through the inclusion of a further system outcome in the following terms:
i. (x) protecting and uphold the integrity, intent and effect of Treaty settlements
38. As we noted at the beginning of this response, the Māori Fisheries and Aquaculture Settlements are among contemporary mechanisms which aim to reflect the special and reciprocal relationship that Iwi, hapū and whānau have with Tangaroa. The settlements are integral parts of New Zealand’s Treaty settlement framework and, in recognising and providing for Māori rights and entitlements with respect to fishing and commercial aquaculture, are vital aspects of New Zealand’s marine resource management regime. The legislation for both settlements including the mechanisms involved with each, are central to these settlements and must be respected and not over-written by a more generic statute unless and except where this is expressly requested by the relevant iwi and hapū in a particular area.
39. We echo the position taken by the Freshwater Iwi Leaders Group in their submission on the Bills, “that the nature and effect of Treaty settlements should have been foundational to the creation of the system, not viewed and addressed as incidental, consequential or transitional matters” as
9
they are now being treated through this reform process.7
40. In the first reading of the NBEB, it was acknowledged that “Treaty settlements will be fully upheld and carried over.”8 Despite this, the transitional, savings and related provisions for upholding and carrying over Treaty settlements in both Bills focuses on grievance based historic/ landbased Treaty settlements and appear to have failed to appropriately consider the Māori Fisheries and Aquaculture Settlements. This is a significant oversight, particularly given the proposed increased scope through the Bills to regulate fishing (if those proposals in the Bills are accepted and passed).
41. The definition of “Treaty settlement”9 in the Bills includes a “Treaty settlement Deed”10 , and therefore arguably includes the Māori Fisheries Settlement (through the Maori Fisheries Deed). Although MCACSA should come within the Bills’ definition of “Treaty settlement Act” being “any other Act that was enacted before the commencement of this clause and that provides redress for Treaty of Waitangi claims”11, confusion has occurred in the past regarding the status of the Aquaculture Settlement asa ‘Treaty settlement’ given it has no corresponding Deed.
42. Nevertheless, the Māori Fisheries Settlement and Māori Commercial Aquaculture Settlement are unique contemporaryTreatysettlements,and it is crucialthat they are upheld andcarriedthrough into the new resource management regime.
43. A specific reference to the Māori Fisheries Settlement and Māori Commercial Aquaculture Claims Settlement needs to be included in the definition of Treaty settlements to ensure that these settlements are included in the Schedule 2 transitional processes of both Bills, and that Te Ohu Kaimoana has status to participate in the transitional process alongside the iwi beneficiaries of those settlements.
44. Accordingly, we recommend the following amendment to the definition of Treaty settlement Act in Schedule 2 of each of the Bills as follows:
i. Treaty settlement Act means…
“(b) any other Act that was enacted before the commencement of this clause and that provides redress for Treaty of Waitangi Claims, including an Act that provides collective redress or participation arrangements for claimant groups whose claims are, or are to be, settled by another Act (including the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Māori Commercial Aquaculture Claims Settlement Act 2004 and the Maori Fisheries Act 2004.”
45. Alternatively, if the Crown and the Select Committee are of the view that both the Māori Fisheries and Aquaculture Settlements have been comprehensively considered through the development of the Bills, and therefore are explicitly captured within the proposed definitions as they stand, this needs to be communicated to Te Ohu Kaimoana and/or explicitly noted in the Select
7 Freshwater Iwi Leaders Group Submission, page 7
8 Hansard, Minister for the Environment Hon David Parker, Natural and Built Environment Bill First Reading, 22 November 2022.
9 NBE Bill, Schedule 2, clause 2.
10 Ibid.
11 NBE Bill, Schedule 2, clause 2.
10
CommitteeReport.
46. In any event,we recommendthe following amendmentsto the definitions in Schedule 2:
“Te Ohu Kai Moana Trustee Limited means the company established in accordance with section33 of the Māori Fisheries Act 2004”; and
“Takutai Trust means the Māori Commercial Aquaculture Settlement Trust established by section 34 of the Māori Commercial Aquaculture Claims Settlement Act 2004”
47. Further, we recommend the following amendments to clause 4(5) of Schedule 2 of each Bill by adding the following new text subclauses 5(d) and 5(e):
“Te OhuKai Moana Trusteelimitedfor the Treatyof Waitangi(FisheriesClaims) Settlement Act1992 and the MaoriFisheriesAct (2004); and
TakutaiTrust for the Māori CommercialAquaculture Claims Settlement Act.”
48. Finally, we look forward to engagement with the Crown alongside MIOs and IAOs, through the Schedule 2 process to ensure that not only the settlements but also their original ‘integrity, intent and effect’ is appropriately upheld and carried over into the new resource management regime.
Managing fisheries, and its effects under the new regime
49. Fisheries resources in New Zealand waters (including freshwater habitats and the 200nm exclusive economic zone are primarily managed under the Fisheries Act 1996. The overarching purpose under that Act is “to provide for utilisation of fisheries resources while ensuring sustainability”12. The Fisheries Act provides a comprehensive and integrated fisheries management framework that applies to all aquatic life including marine, estuarine and freshwater habitats.
50. That framework provides tools required to respond appropriately to the effects of fishing while protecting and giving effect to Treaty rights and interests through its recognition of the Fisheries Settlement including the ability to manage customary non-commercial fishing. The Fisheries Act is the regime to manage fishing that iwi and Māori endorsed as part of the Māori Fisheries Settlement. That view was taken noting the other regimes that could affect fishing at the time.
51. The Fisheries Act does not have the ability to manage the effect of other non -fishing activities on fisheries and fisheries habitats – that has largely been the responsibility of regional councils under the RMA in the territorialsea/CMA. Te ao Māori recognises the interconnectedness of all things, not only the whakapapa relationships betweenMāori and their atua,whenua and moana, but the interconnectedness of the environment, ki uta ki tai – from the mountains to the sea.
52. We recognise the direct influence land-based activities such as the level of sediments, nutrients and other contaminants including forestry slash which enter the coastal environment has on the
12 Fisheries Act 1996, Section 8, clause 1
11
quality of fisheries habitats and coastal waters, and the broader health of Tangaroa. We consider that the management of these types of effects on fisheries habitats has been inadequate under the RMA, and we see little in the Bills that is likely to significantly improve the quality of fisheries’ habitats and coastalwaters.
53. The 2019 decision of the Court of Appeal in Attorney-General v The Trustees of the Mōtītī Rohe Moana Trust (the Mōtītī Decision) confirmed the power of regional councils to make rules under the RMA that restrict or prohibit fishing activities in the CMA, if needed to protect indigenous biodiversity in certain circumstances. This is a seminal judgment as, previously, the Crown and regionalcouncils had operated as if regionalcouncils did not have that power (i.e. that the power rested solely under the Fisheries Act 1996 not the RMA). This is a significant and important change because such decisions could undermine the rights of Iwi and Māori guaranteed under the Māori Fisheries Settlement with the changeddecision-makers having no legislative guidance on the importance of maintaining the integrity of the settlement, or guidance from the Crown as a Treaty partner.
54. Notwithstanding that the Mōtītī decision aimed to provide clarity on the interface between the Fisheries Act and the RMA, subsequent planning processes have demonstrated that the ‘in principle’ determination has resulted in considerable uncertainty and it is proving costly for parties involved. In our response to the NBEB exposure draft we noted that the RMA reform process provided an opportunity to simplify the resource management regime by removing duplication with the Fisheries Act. However, the NBEB in its current form has failed to do this, in fact the levels of duplication across both management regimes has increased in the new bills, with the inclusion of controls to fishing.
Recommendations
55. We remain of the view that the Fisheries Act is the appropriate legislative tool to manage fishing. The use of mechanisms under the Fisheries Act aligns with the agreements made under the Māori Fisheries Settlement and better provides for the ability to ensure protection of biodiversity through appropriate controls on fishing while still enabling levels of customary commercial and non- commercial use consistent with that protection. There are also obligations in the Fisheries Act currently to ensure that adverse effects on the aquatic environment from fishing are avoided, remedied or mitigated (See section 8 of the Fisheries Act).
56. The existing tools in the Fisheries Act should be better utilised so that the perceived gap that the NBE Bill is attempting to fill, can be resolved through the proper use of the existing tools in the Fisheries Act. Coupled with the approach that Te Ohu Kaimoana advocates for in Te Hā o Tangaroa, that would result in better outcomes for the environment, including the right to sustain ourselves through fishing. In that regard,our strong preference is that fisheries and its effects are managed under the Fisheries Act and the duplication removed.
57. However, should the Select Committee determine that both the Fisheries Act and the Bills should regulate fishing, Te Ohu Kaimoana’s expectation is that Māori fishing rights, the Māori Fisheries Settlement and the Treaty of Waitangi (Fisheries Settlement) Act 1992 must be upheld and protected. The final Bills should containanexplicit requirement for decision-makersto assess the effects of their policies, plans and consent decisions on the rights protected by Te Tiriti
12
settlements, including the Māori Fisheries Settlement and the MCASCA when making fisheries management decisions under the RMA.4
58. Further, it is crucial that clear lines and boundaries exist between the management under both Acts, so as to improve certainty and reduce the likelihood of disputes such as that seen in the Northland Proceedings.13 Specifically, the NBE Bill needs to be amended to clarify the scope of overlap between the NBEB and the Fisheries Act, and it is also crucial that if both the NBEB and Fisheries Act are to assist in the management of activities in the CMA, there must be sufficient interface provisions across the statutes.
59. Our recommendations below mirror the ‘alternative solution’ offered by the Rock Lobster Council, the Pāua Industry Council and Fisheries Inshore New Zealand in their joint submission.
60. Specifically, we propose amendments to clause 124(9) restriction which act to provide for ‘an objective,factualjustification for theinclusion of rulesabout fishing in a plan’14 thatarelacking in the bills drafting presently. We propose:
i. Controls on fishing should be able to be applied only in discrete areas for which significant biodiversity values have been identified and included in the plan This is consistent with the ‘indicia’ which the Court of Appeal suggested may provide objective guidance when assessing whether a given control would contravene RMA s.30(2) –
i.e.:
ii. Scope: a control aimed at indigenous biodiversity is likely not to discriminate among forms or species;
iii. Scale: the larger the scale of the control the more likely it is to amount to fisheries management;
iv. Location: the more specific the location and the more significant its biodiversity values, the less likely it is that a control will contravene RMA s 30(2);
v. Rules must relate to the adverse effects of fishing, not to any other type of effects (e.g., trivial effects or positive effects); and
vi. The nature of controls that may be placed on fishing should only be prohibition – if a rule were to require a resource consent to be obtained for a fishing activity, that would amount to council involvement in fisheries management.
61. Further, we consider there must be a clearer interface and requirement that decision-makers consider measures applied or able to be applied under the other statute to provide for integrated decision making. Currently the drafting does not adequately mirror the Fisheries Act requirements - while decision-makers under the Fisheries Act must have regard to planning documents under the Bills (including the NPF), decision-makers under the Bills have no equivalent provision requiring them to have regard to fisheries planning documents or regulations. An equivalent provision ensures that management of fisheries effects under the Fisheries Act can be complemented by mechanisms under the Bills and not undermined. It would also ensure that the fisheries and aquaculture settlements continue to be upheld through this regime.
13
13 Bayof IslandsMaritime ParkIncorporatedvNorthlandRegional Council [2022] NZEnvC228 14 Paua Industry Council Joint Submission, page 14
62. Further, the final Bill should contain an explicit requirement for decision-makers to assess the effects of their policies, plans and consent decisions on the rights protected by Te Tiriti settlements, including the Fisheries Settlement and the MCASCA when making fisheries management decisions under the RMA ensuring these rights are upheld across the regime.
63. We recommend that the drafting of Clause 107 - Considerations relevant to preparing and changing plans – be amended by adding two new matters to subclause (2) which a Regional Planning Committee (RPC)must have particular regard when preparing an NBE plan, as follows:
I. Management plans and strategies prepared under other Acts
II. instruments made under the Fisheries Act 1996 relating to ensuring sustainability, or the conservation, management, or sustainability of fisheries resources (including instruments relating to taiāpure, mahinga mātaitai, or other non-commercial Māori customary fishing).
Successful implementation of resource management reform requires Te Tiriti compliant representation and resourcing to achieve partnership
64. Te Ohu Kaimoana are supportive of the intent of the reforms in providing new pathways for partnership for iwi and hapū in the development of the new resource management regime
65. We do, however, have concerns around the quality of this engagement and its ability to meet the threshold for enabling a Te Tiriti partnership.
66. The current provisions for participation at the National and Regional levels (including the National Planning Framework (NPF) and representation on Regional Planning Committees (RPC)) are inadequate to ensure that the reforms are consistent with the principles of Te Tiriti. We support the position that Māori should be represented through iwi and hapū and should have 50/50 representation in appointments at all levels. Anything less than this does not represent a partnership and therefore is not consistent with Te Tiriti
67. Even if membership and representation is 50/50, it is essential that the participation of the NPF and RPC does not usurp the mana of iwi and hapū to exercise their rangatiratanga
68. Te Ohu Kaimoana is seeking a commitment from the Crown to the deliberate development of capability building at the iwi and hapū level to coincide throughoutthe 10-year transitionprocess. This must be accounted for, both through specific Bill provisions, and in successive budgets, to ensure that the reform succeeds and the requirements under Schedule 8 of the NBE are met.
69. Further, adequate resource must also specifically be provided for iwi and hapū to engage in the transitional process provided under Schedule 2 of the NBE Bill. This includes capacity to engage with the Crown, and capacity and expertise to renegotiate the respective settlements. This includes for iwi, hapū, and settlement entities like Te Ohu Kaimoana
Te Tiriti representation in the Development of the National Planning Framework
70. The National Planning Framework will play a significant role in the new resource management
14
system, and it is not an overstatement to say that the success (or otherwise) of the new resource management system largely depends on the quality of the NPF.
71. Presently, the Bills are lacking crucial details on the operation of the reformed system, with the NPF to provide this subsequent to the enactment of the Bills. Given this context, it is increasingly crucial that the NPF is co-designed with iwi and hapū, in accordance with Te Tiriti.
72. The centrality of the National Planning Framework to the system means iwi and hapū as Te Tiriti partners must have direct input into its development. This cannot be left in the current state where a privileged position is provided in legislation over iwi and hapū for a National Māori Entity that does not have a process for accountability to iwi and hapū.
A role for Te Ohu Kaimoana
73. Further to this, we recommend there is a support role by Te Ohu Kaimoana to iwi and hapū as part of this process. The intent of this is not to usurp the mana of iwi and hapū being engaged as Treaty partners in the national and regional planning process. However, we consider there is a role for us in this space alongside iwi and hapū to ensure the Māori Fisheries and Aquaculture settlements are enhanced or maintained through the development of the NPF.
74. Te Ohu Kaimoana has a specific function and purpose as the trustee of the Māori Fisheries and Aquaculture Settlements, and on behalf of our iwi beneficiaries to analyse and advocate on coastal and marine issues. Our involvement alongside iwi and hapū in this process will ensure appropriate safeguards across the NPF exist that protect the Māori Fisheries and Aquaculture settlements, iwi and hapū interests in the coastal marine area and their relationship with Tangaroa. This supports the requirement to give effect to the principles of Te Tiriti and commitments by Ministers’ to protecting and upholding TreatySettlements.
75. While we have largely focused on aspects of the Bills that relate directly to the responsibilities of Te Ohu Kaimoana under the Māori Fisheries and Aquaculture Settlements, we have also been working closely with other parties, and there are several aspects of their submission that we would like to support and reinforce.
76. The Freshwater Iwi Leaders Group submission provides a comprehensive analysis of the Bills, and we support, in particular its analysis and recommendations in relation to:
i. Support for the inclusion of the concept of Te Oranga o te Taiao and elevation of consideration for the principles of Te Tiriti. We also hold their concerns that while the intent is clear in the Bills that the principles of Te Tiriti are to be given effect and Te Oranga o te Taiao is to be recognised and upheld throughout the regime, those standards are not reflected in the more operative and technical aspects of the Bills. We agree that additional work is required to ensure that the Bills operationalise their stated intent with respect to Te Tiriti and Te Oranga o Te Taiao across the entire resource management system.
ii. We also share their concern regarding the National Māori Entity and agree it should
15
be removed from the Bills If it is not removed from the Bills, we agree that the appropriate role for this entity is to provide an auditing function and the remit of this entity as described currently in the Bills extends beyond its stated purpose.
77. We note our position varies from the FILG submission in relation to clause 71, which provides that a regionalplanning committee must amend a plan if a plan rule duplicatesor conflicts with a frameworkrule. A plan rule is determined to conflict with a framework rule if:
a) The plan rule is more stringent than the framework rule and the framework rule does not expressly say that a plan rule may be more stringent;or
b) The plan rule is more lenient than the framework rule and the framework rule does not expressly say that a plan rule may be more lenient.
78. The FILG submission opposes the first limb of this test, instead stating that local communities should be able to make more stringent rules when local circumstances demand that. We generally support this position, however, there are specific circumstances in relation to the management of marine aquaculture that requires us to differentiate our position. The National Environmental Standards for Marine Aquaculture (NES-MA), in effect, set a ‘ceiling’ or upper limit on the kind of rules that can apply rather than a ‘floor, except where existing aquaculture is in an “inappropriate” area. If it were possible to set more stringent or restrictive rules in each region, then the purpose of the NES-MA would be defeated. While this is a limited circumstance, it is important to differentiate our position on this point.
79. The NZ Rock Lobster Council, the Pāua Industry Council and Fisheries Inshore New Zealand have also shared their joint submissions with us. We agree with their analysis that there is a lack of clarity in theNBE billat present regarding the marine biodiversityprovisions, in particular the lack of clarity in both the intent and effect of these provisions. We further support their recommendation that appropriate marine knowledge, experience and expertise is required when decisions are being made in relation to the CMA, including in the development of the NPF, NBE plans and Regional Spatial Strategies.15
Discrete amendments required to provide for the Māori Fisheries and Aquaculture Settlements
80. While ensuring the proper provision for upholding the intent of the Māori Fisheries and Aquaculture Settlements through the process set out in Schedule 2 of the NBEB is dealt with earlier in our response, there are several specific amendments to the Bills that are required to ensure that:
i. The provision for some forms of aquaculture being a permitted activity does not compromise Crown obligationsto iwi under MCACSA, the Marine and Coastal Area Act 2011, andNgā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019;
16
15 Paua Industry Council Joint Submission, page 3
ii. Protections be provided for the rights and entitlements provided through the Māori Fisheriesand Aquaculture Settlements - these could be expressedin a similar manner to the drafting provided to recognise customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011; and
iii. The current mechanicsproviding for the MāoriAquaculture Settlement under the RMA are maintained or improved.
81. We have populated the table below (Appendix 1) with a clause by clause analysis on discrete amendments that are required to provide for the Māori Fisheries and Aquaculture Settlements. While we have touched on some of these in the body of this response, the table contains a number of important technical amendments for the Bill to ensure alignments with the settlements. We are happy to discuss these recommendations should further clarification on the technical detail be required.
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Appendix One: Table of proposed amendments
Part one: Natural and Built Environments Bill – Recommendations on Aquaculture and Fisheries Settlement Related Provisions
Clause Effectof Clause
Part1:Purpose and preliminary matters
2 – Commencement Clause 2 provides for delayed commencement for the Regional Planning Committee (RPC) composition process.
Pursuant to Clause 2(6), an Order in Council made on the recommendation of the Minister for the Environment and the Minister for Māori Crown Relations – Te Arawhiti may bring into force the provisions to enable the RPC composition process in Schedule 8 to be initiated for a region.
The Ministersmay make recommendationsaboveonly if:
(b) amendments to the relevant Treaty settlement legislation, agreed with the relevant governance entities, have been enacted; or
(c) relevant iwi or hapū have reached agreement on the transitioning of existing Mana Whakahono ā Rohe and Joint Management Arrangements; or
(d) 2 yearshas elapsedsince the NBE Bill receivedtheRoyal Assent.
Recommend that clause 2(6)(d) is amended to allow for 3 years, as it is unlikely that the Crown will have capacity to complete the process referred to in subclause 6(a) within 2 years in respect of all Treaty Settlements (including the Māori Fisheries and Aquaculture Settlements)
18
Discussion /Recommendation
Subpart 1 Purpose and related matters
4 – Tiriti o Waitangi Provides that all persons exercising powers and performing functions and duties under this Act must give effect to the principles of te Tiriti o Waitangi.
5 – System outcomes
In achieving the purpose of the NBA, there are a number of system outcomes that the NPF and all plans must provide for, including:
(e) the recognition of, and making provision for, the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga.
Strongly support, however we note Freshwater Iwi Leaders Group (FILG) recommendations that there is need for this to follow through more strongly in otherprovisions.
System outcomes to be achieved on the land balance protection and use/development, whereas outcomes for the Coastal Marine Area (CMA) effectively relate to protection only. While protection of the takutai moana from environmental harm must be a bottom line, the outcomes must also recognise that the CMA is used for a range of activities, including commercial activities.
The proposed system outcomes also omit explicit protection of Treaty settlements, and similar Crown commitments.
Recommend that further system outcomes be added:
“(x) enabling sustainable utilisation of the coastal marine area and marine resources” and
“(xx) protecting and uphold the integrity, intent and effect of Treaty settlements”
Subpart 2 Other preliminary matters
7– “Aquaculture activities”
Effectively the same as the currentRMAdefinition
Because current and proposed definitions requires the aquatic life to be in the “exclusive and continuous possession or control” of the farmer and “distinguished and kept separate from” wild populations, certain aquaculture-like activities are excluded e.g. ‘ranching’ kina or sea cucumbers. No amendment is recommended at this point, but this should be addressed through the Tiriti Settlement reconciliation process provided for in Schedule 2 of the
19
7 – “environment”
Defines “environment”as meaning,as the context requires,
(a) the natural environment:
(b) people and communities and the built environment that they create:
the social, economic, and cultural conditions that affect the matters stated in paragraphs (a) and (b) or that are affected by those matters
Bill.
Definition is quite different from RMA and deliberately excludes ‘amenity values’ and ‘aesthetic conditions’; this could make aquaculture consenting easier but limit iwi/hapū ability to oppose consents insensitive areas,e.g.those viewed from marae (though cultural and historic heritage provisions minimise this risk).
Visual architects in different parts of the country argue that marine farms do or do not (not consistent) disturb natural characteristics of the environment.
7–“highly vulnerable biodiversity area”and “HVBA”
7-“mahinga mātaitai”, “mātaitai”
Have the meaning given to themin cl.555
Definitions are the same as in the RMA
7-“space” The definition of “space” has been omitted from the Bill. However, Schedule 15 will amend the Maori Commercial Aquaculture Claims Settlement Act 2004 to refer to clause 7 for this definition.
Part3: National planning framework
Subpart 2—Environmental limits and targets
52 – Matters to be considered when deciding to set limits or targets regionally or nationally, or for
Requires the Minister to consider whether a proposed limit or target would directly affect a customary marine title CMT group, consider what is most appropriate for that group; and to consider any relevant CMT planning document preparedby such a group under s.85 of the Marine and Coastal (Takutai Moana) Act 2011.
Typographical error as the term in cl.555 is “area of highly vulnerable biodiversity”. See also comments re: cls.555ff below.
The terms “mahinga mātaitai” and “mātaitai” are not used elsewhere inthe Bill. See recommendationbelowre: SPE cl.24.
Reinstate the definition of space used in the RMA:
“space, in relation to the coastal marine area, means any part of the foreshore, seabed, and coastal water, and the airspace above the water”
This consideration should also be extended to the holders of rights/entitlements under the Fisheries Settlement and Aquaculture Settlement as well as other Treaty settlements not otherwise provided for.
Recommend that this provision be amended by adding a further subclause:
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specific management units
58 – National planning framework must provide direction on certain matters
“c) In deciding whether to set an environmental limit or target in the national planning framework or whether to prescribe requirements for setting an environmental limit or target, consider whether the limit or targetwould directly affect rights and entitlement under a Treaty settlement and (if they agree that it would) consider what is most appropriate for that group ”
The NPF must include content that provides direction on specified matters. Recommend that thisshould include directiononthe providing for the Crown’s obligations under the Aquaculture Settlement: “(f) how the Crown’s obligations to iwi under the Māori Commercial Aquaculture Claims Settlement Act 2004 are to be provided for.”
Subpart 6—Giving effect to nationalplanning framework
71 – Regional planning committee must amend plan if plan rule duplicates or conflicts with framework rule
81 – Specific matters that national planning framework may prescribe
This clause provides that an RPC must amend a plan or proposed plan if a plan rule duplicates or conflicts with a rule in the NPF without using a process in Schedule 7.
Supported, noting that this position diverges from that of the FILG submission. Not allowing regional rules to be more restrictive than national rules is necessary in order, for example, to maintain the effect of the National Environmental Standard on Marine Aquaculture in providing a degree of certainty for re-consenting existing farms.
Pursuant to Clause 81(a), the NPF may include framework outcomes and policies relating to how decision makers must recognise and provide for the protection of protected customary rights (PCR) and the exercise of those rights.
This should include CMT andextendto rightsandentitlements under Treaty Settlements.
Recommend thatsubclause (a) beamended as follows:
“include framework outcomes and policies relating to how decision makers must recogniseandprovide for
(i) the protection of customary marine title and protected
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94 – Responsible Minister Describes the roles of the Minister for the Environment and Minister of Conservation in relation to “the preparation, change, or review of the national planning framework”
customary rights;
(ii) rights and entitlement under Treaty Settlements.” the exercise of those rights;
Provide for better integrationbetween managementunder the new regime, the Fisheries Act 1996 and MCACSA by requiring consultationwith the Minister(s) responsiblefor those Acts. The Minister for Oceans and Fisheries is responsible for achieving the purpose of the Fisheries Act, which is to provide for the utilisation of fisheries resources while ensuring sustainability. This role is directly relevant to achieving the outcomes of the Bill in relation to the coastal marine area. The Minister for Oceans and Fisheries is also responsible, on behalf of the Crown, for upholding the integrity of the Māori Fisheries Settlement. The responsible Minister should be required to consult the Minister for Oceans and Fisheries in relation to any matter related to the NPF that has implications for fisheries management or the Māori Fisheries Settlement.
Add:
“(5) The responsible Minister must consult the Minister Responsible for Fisheries or the Minister Responsible for Aquaculture before exercising or performing a power or function conferredby this Part or Schedule 6 that relates to a provision that has implications for fisheries management under the Fisheries Act 1996 or for the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 or the Maori Commercial Aquaculture Claims Settlement
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Part4: Natural and built environment plans
105 – What plans may include (1)(f) explicitly provides that a plan may “include provisions that manage the effects of fishing in the coastal marine area” and crossreferences cl.124(9) (see below).
This overlap with the Fisheries Act 1996 is unnecessary. It directly duplicates the Minister for Oceans and Fisheries’ responsibilities under section 8 of the Fisheries Act 1996. The effects of this clause together with clause 124(9) are highly uncertain. This level of uncertainty will likely impede the preparation of NBE plans and has the potential to detrimentally impact on the exercise of customary, non-commercial fishing rights, and the value of iwi rights and interests under the Fisheries Settlement. Existing tools in the Fisheries Act should be better utilised so that the perceived gap that the NBE is attempting to fill, can be resolved through the proper use of the existing tools in the Fisheries Act. Recommend that subclause (1)(f) be deleted. Alternatively, amend as follows:
“(1)(f) that managethe adverse effects of fishing ...”
105 – What plans may include (1)(f) explicitly provides that a plan may “include provisions that manage the effects of fishing in the coastal marine area” and crossreferences cl.124(9) (see below).
This overlap with the Fisheries Act 1996 is unnecessary It directly duplicates the Minister for Oceans and Fisheries’ responsibilities under section 8 of the Fisheries Act 1996. The effects of this clause together with clause 124(9) are highly uncertain. This level of uncertainty will likely impede the preparation of NBE plans and has the potential to detrimentally impact on the exercise of customary, non-commercial fishing rights, and the value of iwi rights and interests under the Fisheries Settlement. Existing tools
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Act 2004.”
113 – Plan must require all permitted aquaculture activities to be registered with consent authority
Aquaculture which is permitted activity must be registered with the relevant consent authority through a permitted activitynotice.
in the Fisheries Act should be better utilised so that the perceived gap that the NBE is attempting to fill, can be resolved through the proper use of the existing tools in the Fisheries Act.
Recommend that subclause (1)(f) be deleted.
Alternatively, amend as follows:
“(1)(f) ...that managethe adverse effects of fishing ...”
In order to ensure compliance with the Aquaculture Settlement between the Crown and iwi, a copy of any permitted activity notice for any aquaculture activities must be provided to the Minister Responsible for Aquaculture, Te Ohu Kaimoanaand all IAOs of that region by the relevant consent authority.
Recommend thatclause 113 be amendedby adding:
“(2) The relevant consent authority must send a copy of every permitted activity notice for aquaculture activities to the Minister responsible for aquaculture, the Maori Commercial Aquaculture Settlement Trust and all Iwi Aquaculture Organisations of the Region.”
115 – Aquaculture zones
Allows plans toprescribe aquaculture zones.
Looks very much like a return to pre-2011 provision for AMAs, which begs the question, why wasthat planning option never taken up and what would be different now?
Supportedin principle, but:
Amend to add:
“(1A) Aquaculture zones may be created for the purpose of
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119
Requires RPCs to identify activities that will have, or are likely to have, more than a minor adverse effect on the relationship of a CMT group to their CMT area
providing for space to be used for meeting the Crown’s obligations under section 9 of the Māori Commercial Aquaculture Claims Settlement Act 2004.”
And:
“(3(ba) [A plan that contains aquaculture zones must … (a) Include provisions that ensure an aquaculture zone is principally for aquaculture activities.”
And, note that amendments to MCACSA will be sought through the Schedule 2 process to ensure that space within an aquaculture zone is treated as anticipated new space, triggering entitlements under that Act and regional agreements.
This should include PCR and extend to rights and entitlements under Treaty Settlements.
“(1) A regional planning committee must undertake an assessment of activities to identify activities that will have, or are likely to have, more than a minor adverse effect on the relationship of:
(a) a customary marine title group to their customary marine title area;
(b) the holders of protected customary rights to the area in which those rights are exercised; and a group guaranteed rights and entitlements under a Treaty settlement to the area covered by that settlement.”
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– Activities affecting relationship of customary marine title
120 – Imposition of coastal occupation charges
Effectively rolls over s.64A, RMA re: coastal occupation charges,including exempting holders of PCR or CMC.
Coastal occupation charges are opposed in principle as implying a Crown ownership interest in the CMA. If retained, aquaculture activities undertaken in space that is a settlement asset should be exempt in the same way as CMT/PCR.
Add:
“(6A) a coastal occupation charge must not be imposed on the holder of a resource consent for aquaculture activities in an area covered by an authorisation issued under section 13 of the Maori Commercial Aquaculture Claims Settlement Act 2004.”
121 - Rules relating to aquaculture zones
What aquaculture zone rules may provide for is expressed in general terms, rather than as a list of matters that may be provided for (as in the pre-2011 RMA).
Difficult to see what this clause adds to cl.115.
Clause 121 duplicates clause 115(2). Suggest deletion as is unnecessary duplication.
124 – Limitations applying to making of rules relating to water and coastal marine area
Subclause 124(3) Prescribes the kinds of aquaculture that cannot be a permitted activity:
(a) any commercial aquaculture that will occupy a space that is not currently the subject of a coastal permit authorising aquaculture activities
(b) any aquaculture activity that will occupy a space that is not the currently the subject of a coastal permit authorising an aquaculture activity unless the space is subject to an aquaculture zone decision.
Subclause 124(9) provides that, despite the power to control the effects of fishing (see re: cl.105 above), a plan must not include rules that place controls on taking, allocating or enhancing fisheries
While Te Ohu supports non-commercial aquaculture associated with customary activities, space not currently subject to a coastal permit for aquaculture would be new space in terms of the Aquaculture Settlement if the new activity requires a resource consent, but not if it is a permitted activity (unless definitions are changed in that Act). Allowing aquaculture to be a permitted activity in this circumstance negates iwi entitlements under the Settlement.
Recommend that “commercial” be deleted from subclause (3)(a) and subclause (3)(b) be deleted entirely as contrary to the intent of the Maori Commercial Aquaculture Claims Settlement Act2004.
If the select committee doesn’t agree with the above or it agrees to make amendments to the MCACSA to provide that a permitted
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resources in the CMA for the purposes of managing fishing or fisheries resources controlled under the Fisheries Act 1996.
activity notice for aquaculture activities creates settlement entitlements as if it were a resource consent]
Te Ohu takes the view that the constraint on rules that place controls on fishing contained in subclause 124(9) are inadequate to address the concerns raised above in relation to Clause 105(1)(f).
130 – When rules have legal effect
Cl.130(4)(e) a rule in a proposed plan that relates to aquaculture activities has immediate legal effect
This would require aquaculture rules in proposed plans having immediate effect in consenting processes conducted under the RMA during the transitional phase, however, the machinery does not appear to have been included to achieve that.
Add a consequential amendment to amendment to s.43AAC RMA so that the definition of “proposed plan” includes a plan under the NBA.
144 – Plan or proposed plan must be updated to reflect changes to aquaculture settlement areas
If an Aquaculture Settlement Area (ASA) is created or amended the regional planning committee must amend the plan or proposed plan maps to show that.
This requires a regional planning committee to amend aquaculture settlement areas if changes are made.
Part 5: Resource consenting and proposals of national significance
Subpart 4 Notification of applications for resource consent
201 – Determination of whether person is affected person or
Prescribes how decision makers are to determine who are affected persons for the purposes of notification, including any affected PCR or CMT groups.
Supported,but recommend this should got further byrequiring that the plan describe the effect of the ASA, i.e. that no application for a resource consent can be made without the agreement of the iwi of the region unless it is for an activity that is complementary to aquaculture:
“(a) amend any aquaculture settlement area shown on the plan or proposed plan map to reflect any changes made by the notice and to explain the effect of the aquaculture settlement area;”
Extendto give the same considerationgroupswho’srightsand entitlements under a Treaty settlement might be affected:
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person from whom approval required
223 – Consideration
of resource
application
consent
Sets out the matters consent authorities must consider when deciding a resource consent application, including, if the proposed activity is in an area within the scope of a planning document prepared by a CMT group under MACA: having regard to any matters relevant to the NBA that are set out in that planning document.
“[(2)(f) determine whether there are any…] (iii) affected holders of rights and entitlements under a Treaty settlement.”
The same consideration should be given to plans prepared under the Fisheries Act 1996, and under customary fishing regulations, especially if the expanded powers to regulate fishing are retained in the Bill, then:
“[(2) The consent authority must have regardto]
(x) the extent to which the activity is consistent (or not) with any fisheries plans or instruments made under the Fisheries Act 1996 relating to ensuring sustainability, or the conservation, management, or sustainability of fisheries resources (including instruments relating to taiāpure, mahinga mātaitai, or other noncommercial Maori customary fishing).”
230 – Applications to undertake aquaculture activities
Among other things, this clause requires resource consent applications to undertake aquaculture to be copied (by the local authority) to the Chief Executive of the Ministry of Fisheries.
Add an equivalent obligation to copy Te Ohu and iwi of the region information on all consent applications for aquaculture activities so that compliance with the Aquaculture Settlement can be monitored:
“(3) The consent authoritymust
(a) unless the application is returned under section 174(2), forward a copy of the application to the chief executive, the Maori Commercial Aquaculture Settlement Trust and all Iwi Aquaculture Organisations of the Region as soon as is reasonably practicable; and forward any information or report obtained in relation to the
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Subpart 11 Miscellaneous provisions
370 – Limited notification of application or notice
For resource consent applications ‘called in’ by the Minister which are not to be publicly notified,the EPA must still identify and notify affected persons, including affected PCR or CMT groups
application under section 183, section 339, or clause 88 or 91 of Schedule 7 to the chief executive, the Maori Commercial Aquaculture Settlement Trust and all Iwi Aquaculture Organisations of the Region as soon as is reasonably practicable; and
(c) if the application is notified, provide the chief executive, the Maori Commercial Aquaculture Settlement Trust and all Iwi Aquaculture Organisations of the Region with a copy of the submissions as soon as is reasonably practicable after the closing date for submissions.
As re cl.201 above, the same standard should apply to holders of Treaty settlement rights and entitlements:
“
[(1) If the Minister decides not to require the EPA to publicly notify an application or a notice, the Minister must, in relation to the activity…
(b) identify any affected protected customary rights group or affected customary marine title group]
(c) identify any affected holders of rights and entitlements under a Treaty settlement.”
(3) The EPA must give limited notification of the application or notice to an affected protected customary rights group, or affected customary marine title group or affected holders of rights and entitlements under a Treaty settlement even if the national
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Part7 – Coastal Matters
Subpart 1 - Occupation of common marine and coastal area
429 – Interpretation and relationship of subpart with rest of Act
Provides that, in this Part “Minister means the Minister of Conservation”.
planning framework or a plan precludes public or limited notification of the application or notice.”
In this Part (except Subpart 4 – Coastal Tendering) the majority of the number of references are, or should be, to the Minister responsible for aquaculture.
Amend definition to read:
“Minister means the Minister of Conservation responsible for aquaculture”
Where clarity is required, make specific reference to the Minister responsible for aquaculture.
431 – Applications in relation to aquaculture settlement
areas
Pursuant to clause 431(2)(b), consent authoritycan only grant a coastal permit authorising an activity other than aquaculture in an aquaculture settlement area after consultation with Te Ohu and iwi in the region.
Support.
435
– Offer of authorisations
for activities in common marine and coastal area in accordance with plan
438 – Power to give directions relating to allocation of
Among other things, requires councils to give prior notice to “the Minister” before offering authorisations via tender or another allocation method.
Should be Minister responsible for aquaculture or both Ministers.
Allows “the Minister” to direct a regional council:
(a) not to proceedwith a proposed allocationof authorisations;or
Should be Minister responsible for aquaculture or both Ministers.
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authorisations for space provided for in plan
(b) in proceeding with a proposed allocation of authorisations, to give effect to specified matters, for purposes including “to assist the Crown to comply with its obligations under the Maori Commercial Aquaculture Claims Settlement Act 2004.”
439 – Regional council or regional planning committee may request use of allocation method
Provides for a regional council or RPC to request the Minister to approve allocation of authorisations by public tender or another method
Recommend an amendment to the following effect (exact drafting will depend on whether the definition of “Minister” for this Part is amended as recommended above:
439(2) The council or committee may request the Minister of Conservation or the Minister responsible for Aquaculture if the request relates to aquaculture activities to approve allocation by public tender of authorisations or another method of allocating authorisations for the space in the common marine and coastalarea.
441-444 – Allocation of authorisations by tender or another method
Provisions deal with approval by the Minister of a plan to allocation authorisations by tender or another method and implementation of that
Provisions deal with approval by the Minister of a plan to allocation authorisations by tender or another method.
For consistency with cl.4, the obligation to consider the Crown’s ability to give effect to obligations under MCACSA should be stronger than “have regard”; suggest they be replaced with “recognise and uphold”
455 – Regional council or planning committee may request suspension of applications to
Expands regional council ability to request power to suspend receipt of applications to circumstances related to biosecurity concerns
Supported.
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occupy common marine and coastal area for purposes of aquaculture activities
456 – Minister responsible for aquaculture may suspend receipt of application
463-464 – Directions to process and hear applications together
New power empowering the Minister responsible for aquaculture to suspend receipt of applications on their own initiative.
Supported.
These clauses deal with the requirements and contents of a direction to process and hear applications for aquaculture, pursuant to a request from a regional council under cl.461.
Subpart 3 Aquaculture zones
478 – Aquaculture zones subject to quota management system
If a proposed aquaculture zone is likely to result in an undue adverseeffect (UAE)oncommercialfishing for a QMS species, and no aquaculture agreement or compensation declaration is registered within the prescribed period, the UAE decision is rescinded and an applicant for resource consent in the zone will have to seek a new UAE decision (and obtain an agreement or declaration in order to proceed).
Includes the definition: “QMS part of aquaculture zone” means the part ofthe aquaculture zone that issubject to a reservation related to fishing for any stock in the quota management system
References here must be to the Minister responsible for aquaculture, as that is the Minister the cl.461 request is made to, and the Minister of Conservation is specifically referred to in these clauses.
Similar to the equivalent pre-2011 RMA provision, except that the area subject to the UAE reservation is not deleted if no agreement/declaration is obtained, but rescinded, so that a consent applicant in the zone can apply for the assessment to be re-done. This seems appropriate, so no changes are recommended.
The defined term “QMS part of aquaculture zone” is confusing the entire aquaculture zone, whether subject to a reservation or not, remains subject to the QMS.
Recommended amendment to subclause (7):
“QMS reservation part of aquaculture zone”
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562(2) – Criteria for identifying Highly Vulnerable Biodiversity Areas
We mirror the position taken in the Joint submission by the fishing industry on the biodiversity provisions included in subpart 3 of the Bill Namely, that the biodiversity provisions across subpart 3 as they are currently drafted lack clarity on their intent as well as their effect. It is difficult to provide a comprehensive analysis and our subsequent position on these provisions in their current drafted form.
Significant policy concerns and uncertainties remain with the drafting of these provisions, we support the amendments proposed in the joint submission from the fishing industry, namely that the provisions for SBAs and HVBAs- in so far as they apply within the CMA should be reconsidered and require further policy development and consultation with affected parties.
If these provisions are to remain in the Bill, we support the specific recommendations the joint submission makes on pages 22 and 23 of their submission which aim to clarify the effects and intent of these provisions.
Again, we mirror the analysis from the Joint submission by the Fishing Industry, namely, that as above there is a lack of clarity on the intent and effect of these provisions. Specifically, the relationship between HVBAs and SBAs is unclear, the scope of recognition of HVBAs is unclear and their interaction with other policies and legislation in the CMA is also unclear.
As above: significant policy concerns and uncertainties remain with the drafting of these provisions, we support the amendments proposed in the joint submission from the fishing industry, namely that the provisions for SBAs and HVBAs- in so far as they apply within the CMA should be reconsidered and require further policy development and consultation with affected parties.
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Subpart 3 – Places of national importance, including places of significant biodiversity and areas of highly vulnerable biodiversity
559 – Protection of places of national importance
If SBAs and HVBAs continue to be included in the Bill, we mirror the recommendations of the fishing industry on pages 22 and 23 of their submission
563 – Limits to activities within HVBAs
As above: we mirror the analysis from the Joint submission by the Fishing Industry, namely, that as above there is a lack of clarity on the intent and effect of these provisions. Specifically, the relationship between HVBAs and SBAs is unclear, the scope of recognition of HVBAs is unclear and their interaction with other policies and legislation in the CMA is also unclear.
As above: significant policy concerns and uncertainties remain with the drafting of these provisions, we support the amendments proposed in the joint submission from the fishing industry, namely that the provisions for SBAs and HVBAs- in so far as they apply within the CMA should be reconsidered and require further policy development and consultation with affected parties.
If SBAs and HVBAs continue to be included in the Bill, we mirror the recommendations of the fishing industry on pages 22 and 23 of their submission.
Part12 - Miscellaneous provisions
826(1)(f) and (h) –How money collected from market-based allocation methods must be applied
Provides that money collected through the use of market- based allocation methods (which don’t apply to allocation of coastal space under Part 7 of the Bill) must be applied to specified matters, including:
(f) increasingthe capabilityand capacity of Māori and local government:
(h) addressingMāori rightsand interests.
We would expect a similar regime would apply to money raised through coastal occupation charges and tendering or other mechanism in Part 7.
851-852 –Regulations amending plans in
Effectively carries over the current powers under ss.360A and 360B of the RMA, adding an explicit requirement to consider any impact
While we support this being in place, it is not clear that the powers extend to include both operative and proposed plans or variations-
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relation to aquaculture activities and allocation processes and Conditions to be satisfied before making such regulations
on holders of CMT and a power for the Minister to act as decision maker on allocation.
we recommend that the legislation makes clear that it covers all these dimensions.
While the Bill provides that decision-makers under the Act must give effect to the principles of the Treaty, local government is not the Treaty partner and does not have responsibility for honouring settlements.
The prospective nature of the Settlement Act (which provides iwi with space, assets, or cash representative of 20% of new aquaculture space or a combination) is a vehicle intended to enable Māori to be early and meaningful participants in the industry. There are regional coastal plans that are currently in their final stages of review that will not enable iwi to take up any settlement obligations as space. Any reform must provide an ongoing ability of the Crown to deliver this in a timely manner.
We also recommend the clauses enable the Minister to have the ability to consider and decide on a related resource consent application at the same time as the change in a plan (as is possible currently for Councils). That would mean that a holistic look at both the policy and its implementation could be taken so that any approval and its conditions are fully aligned. Different decisionmakers can lead to a disjunct between policies and their implementation.
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Schedule 2: Transitional, savings, andrelatedprovisions forupholding Treaty settlements,NHNP Act,andother arrangements
Interpretation Defines “Treaty settlement” as provisions of a Treaty settlement Act or Treaty settlement deed that relate to the exercise of a power or the performance of a function or duty under the RMA.
Defines “Treaty settlement Act” as an Act listed in the Treaty of Waitangi Act 1975 and any other Act that provides redress for Treaty of Waitangi claims.
This definition is too narrow in two respects:
• It may not capture wider implicationsof the RMA reforms on existing Treaty settlements – an existing Treaty settlement may not relate to the exercise of a power under theRMA but the new NBA may impacton the intent and/or integrity of that settlement.
• The Treatyof Waitangi(Fisheries Claims) SettlementAct 1992 and the Māori Commercial Aquaculture Claims Settlement Act 2004 are not explicitlyincluded (and the latter is not underpinned by a Treaty settlement deed that might otherwise be incorporated).
Recommend that this clause be amended to explicitly include the Fisheries Settlement and Aquaculture Settlement and avoid confusion as to the extent of RMA interaction with settlements:
“Treaty settlement means provisions of a Treaty settlement Act or Treaty settlement deed and includes the Treaty settlements given effect by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Maori Commercial Aquaculture Claims Settlement Act 2004that relate to the exercise of a power or the performance of a function or duty under the Resource Management Act 1991”
4 – Process for upholding Treaty settlements, NHNP Act and other arrangements
Requires the Crown to uphold the integrity, intent and effect of Treaty settlements, including by negotiating necessary amendments to settlements with each “relevant party”, defined as the relevant PSGE; in relation to the NHNP Act, ngā hapū o Ngāti Porou; and in relation to Mana Whakahono ā Rohe and Joint
See above re: cl.2 and timeframe for completion of this process.
Consistent with recommended amendments to clause 2 of the Schedule, the definition of a relevant party must be amended to include Te Ohu, in its capacity as trustee of the Fisheries Settlement and Aquaculture Settlement: “[(5) In this clause, relevant partymeans, ]
36 2 –
Management Agreements, the iwi/hapū authority/representative group that is party to that arrangement.
Schedule 6: Preparation, change, andreview of national planning framework
4 – NPF proposal relating to coastal marine area
If a proposed NPForchange to an NPF contains provisions that apply to any part of the CMA, the ‘Responsible Minister’ must seek and consider the views of the customary marine title groups on the register.
(a) in relation to a Treaty settlement, the post-settlement governance entity or trustee for the Treatysettlement…”
To ensure that impacts on the Fisheries Settlement and Aquaculture Settlement are fully considered in the earliest stages of planning, the Minister of Fisheries, Minister responsible for aquaculture and Te Ohu should also be consulted:
“[If the NPF proposal contains provisions that apply to the whole or part of the coastal marine area, the responsible Minister must seek and consider the views of:
(a) the customary marine title groups on the register;]
(b) the Minister of Fisheries;
(c) Minister responsible for aquaculture;and
Te Ohu Kai Moana and the Maori Commercial Aquaculture SettlementTrust.
16 – Responsible Minister and National Māori Entity may be heard
The Responsible Minister and National Māori Entity (NME) have a right to be heard at a board of inquiry hearing regardless of whether they made a submission.
Noting the FILG submission opposing all provisions relating to the NME, to the extent the hearing relates to a CMA matter, Minister of Fisheries and Minister responsible for aquaculture should also have an automatic right to be heard:
“The responsible Minister, Minister of Fisheries and the Minister responsible for aquaculture National Māori Entity each have a right to be heard at a board of inquiry hearing (regardless of whether they made a submission).”
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Schedule 7: Preparation, change, andreview of national and builtenvironment plans
Part 1 – Plandevelopment
22 –Consultation during preparation of plan
There is a requirement for RPCs various parties in the preparation of a plan, including “iwi authorities of the region” and customary marine title groups in the area.
Recommend addition:
“[(2) If a proposed plan or plan change relates to the coastal marine area,the regionalplanning committee—
(a) must consult with
(i) the Minister responsible for aquaculture in relation to the management of aquaculture activities; and
(ii) the Minister of Oceansand Fisheries in relationto fisheries management;]
(iii) Te Ohu Kai Moana and the Maori Commercial Aquaculture SettlementTrust;
(b) doesnot have to consult either Minister in relation to minor plan changes, and
(c) must consult with customary marine title and protected customary title groups in the area.
Note- we seek the deletion of 2 (b) due to its alignment with section 360- and advocate that either Ministers should be consulted with in relation to minor plan changes.
31– Planning committee tonotify proposed plan
Each RPC must provide a copy of its proposed plan and associated evaluation report to the Ministers of Environment and Conservation, local authorities and iwi authorities in the region.
Tothe extent a proposed plan deals with the CMA, acopy of it, and associated evaluation should also be provided to the Minister of Fisheries, Minister responsible for aquaculture and Te Ohu:
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Part 3 – Independent hearings panels process 93 – IHPs established for each region
Sets out the skills, knowledge and experience members appointed to Independent Hearing Panels must (collectively), including in relation to te Tiriti o Waitangi and its principles; local kawa and tikanga and mātauranga of the iwi and hapū in the region.
“[(1) If a regional planning committee decides to proceed with a proposed plan, it must provide a copy of the proposed plan and the associated evaluation report to—
(a) the Minister for the Environment; and]
(ab) the Minister responsiblefor aquaculture;and
(ac) TeOhu Kai Moana and theMaori CommercialAquaculture Settlement Trust; and …
(b) (e) iwi authoritiesinthe region.
The prescribed skills, knowledge and experience do not include the subject of coastal resources and processes. Recommend the additionof:
“[(20) The Chief Environment Court Judge must appoint members who collectively have skills, knowledge, and experience of ]
(g) freshwaterquality, quantity,and ecology; and (ga) coastal resources and processes;
Schedule 15 – Amendments toOther Legislation
Part 3 – Amendments to Resource Management Act 1991
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…”
85A –Plan or proposed plan must be updated to reflect changes to aquaculture settlement area
New section requiring that aquaculture settlement areas (and changes to aquaculture settlement areas) must be shown on regional plan or proposed plan maps
The intent of this is supported, but the RMA already contains a s.85A (and 85B), so this new provision must be 85AA or85C.
165I, 165U, 165UA, 165W, 165X and 165YA
Amendments consequential to the expansion of powers under s.360A allowing the Minister to act as the decision maker for allocation of authorisations
Brings the expansion of these provisions (to include biosecurity concerns and suspension at the initiate of the Minister) from cls.455-460 into the RMA
Supported
Supported 165ZB-165ZE –suspension of applications to occupy common marine and coastal area for purposes of aquaculture activities
Sections360A and 360B
Amendments to Maori Commercial Aquaculture Claims Settlement Act 2004
Amend thesesections in line with cls.851 and 852
These amendmentsaresupported.
Amendment to s 4 Incorrect cross reference in definition of ‘authorisation’. Amend to read:
“In section 4, definition of authorisation, replace “section 165C of the Resource Management Act 1991” with “section 429 of the Natural and Built Environment Act 2022” .
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Amendment to s 4 As noted in relation to clause 7, the definition of ‘space’ refers to clause 7 of Natural and Build Environment Act 2022; however, clause 7 does not include such a definition.
Amendment to s 50(6)
Incorrect cross reference.
Add in a definition of ‘space’.
Amend to read:
“In section 50(6), replace “sections 135 and 165M of the Resource Management Act 1991” with “sections 286 and 440 of the Natural and Built Environment Act 2022””
Part Two: Spatial Planning Bill – Recommendations on Aquaculture and Fisheries Settlement Related Provisions
Clause Effectof Clause
6 – Protected customary rights in the coastal marine area
Requires all persons exercising powers and performing functions and duties under the SPA to recognise and provide for the protection and exercise of protected customary rights (as defined in the MACA Act.
Unclear why this doesn’t also extend to customary marine title under the MACA and suggest the rights and entitlementsof iwi under the Treaty settlements including the Fisheries and AquacultureSettlements.
Discussion /Recommendation
Recommend cl.6 be amendedas follows:
“All persons exercising powers and performing functions and duties under the SPA must recognise and provide for the protection and exercise of customary marine title and protected customary rights (as defined in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011) and of rights and entitlements flowing from Treaty settlements.”
18 – Contents of regional spatial strategies: other matters of sufficient significance
This clause sets out the criteria by which Regional Planning Committees are to determine whether matters are of sufficient significance that they should be dealt with in a Regional Spatial Strategy
In order to better address the effects of land-based activities on coastal marine environments, the following amendments is recommended:
[A matter is of sufficient significance for the purposes of section 16(1)(c)(ii) if the regional planning committee considers
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20 –Statutory acknowledgements attached to regional spatial strategies
Requires that statutory acknowledges created by Treaty settlements be attached to, as treated as part of, regional spatial strategies
that the matter meets 1 or more of the following criteria:]
“(ba) the matter relates to land or freshwater uses that have an adverse effect on the coastalmarine area”
This mirrorsthe recommendationin the CFF submission.
Recommend that the same apply to aquaculture settlement areas:
“
(2A) Every aquaculture settlement area declared by a notice issued under section 12 of the Maori Commercial Aquaculture Claims Settlement Act 2004 must be shown in, and treated as part of, the regional spatial strategy for that region.
(4) However, an aquaculture settlement area shown in a regional spatial strategy is not subject to the processes applying under this Act for the preparation of a strategy that provide for a strategy to be amended,reviewed,or renewed.”
24– General considerations: instruments
Sets out matters to be considered by regional planning committees, including (cl.24(3)(ii)) plans prepared under MCACSA.
Recommend thatclause 24 beamended toadd:
“(3)(a)(iii) “fisheries plans or instruments made under the Fisheries Act 1996 relating to ensuring sustainability, or the conservation, management, or sustainability of fisheries resources (including instruments relating to taiāpure, mahinga mātaitai, or other noncommercial Maori customary fishing).”
This mirrorsthe recommendationin CFF submission.
36 – Minister responsible for Maori Commercial
An RPC must notify the Minister responsible for the administration of the Maori Commercial Aquaculture Claims
This should be expanded to ensure that the Minister responsible for the Fisheries Settlement canalso participate:
“A regional planning committee must notify the Ministers
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Aquaculture Claims Settlement Act 2004 must be notified
Settlement Act 2004 of the opportunities for the Minister to participate in a process adopted under section 30.
responsible for the administration of the Maori Commercial Aquaculture Claims Settlement Act 2004 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 of the opportunities for the Minister to participate in a process adopted under section 30.”
Schedule 2 –
Transitional, savings, and related provisions for upholding Treaty settlements, NHNP Act, and other arrangements
Schedule 4
Repeats the Crown commitment and process set out in Schedule 2 of the NBE Bill
Recommendations as perSchedule 2 of the NBE Bill above.
Meaning of interested parties “statutory bodies with functions that are affected by any of the instruments in the planning system that are referred to in section 4.”
This would appeartoincludeTe Ohuin itscapacityas Trustee of both Settlement Trusts. No changerecommended
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Appendix Two: Te Hā o Tangaroa kia ora ai tāua
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