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)

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

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: 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

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

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

113 – Plan must require all permitted aquaculture activities to be registered with consent authority 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.

Aquaculture which is permitted activity must be registered with the relevant consent authority through a permitted activitynotice.

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

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.”

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 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: 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

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

Part7 – Coastal Matters

Subpart 1 - Occupation of common marine and coastal area

429 – Interpretation and relationship of subpart with rest of Act planning framework or a plan precludes public or limited notification of the application or notice.”

Provides that, in this Part “Minister means the Minister of Conservation”.

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 authorisations for space provided for in plan

Should be Minister responsible for aquaculture or both Ministers.

(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 occupy common marine and coastal area for purposes of aquaculture activities

Supported.

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”

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.

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- 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.

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, ]

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).”

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:

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

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” .

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

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

Aquaculture Claims Settlement Act 2004 must be notified 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.”

Settlement Act 2004 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