June 2013 Māori Law Review
Māori in the seafood sector (fisheries and aquaculture) – the year in review
Justine Inns, partner at Ocean Law, reviews Māori involvement in the seafood sector.
Overview
There can be no debate about the key role kaimoana (seafood) occupies for Māori culture; it plays a part in many tribal histories, identities and political allegiances (and enmities). Therefore it is not surprising that litigation over the expression of rights to harvest kaimoana should have a long history. Over recent decades, pan-iwi settlements in respect of fisheries and marine aquaculture have had the effect of cementing a place for iwi in the New Zealand seafood sector.
If there is an overall theme that permeated the year for Māori in the commercial seafood sector, it could be described as the continued ‘mainstreaming’ of iwi interests into the wider sector. Allegations of mistreatment of crew aboard Foreign Charter Vessels (FCVs), resulting in proposed changes to the make-up and operation of the deepwater fishing fleet, have forced some iwi to take a greater interest in the manner in which the quota holdings are caught. To the extent this leads to a more active participation in the sector, it is likely to prove a long term positive.
While the implementation of changes to the Māori Commercial Aquaculture Settlement enacted in 2011 are still in their early stages, a similar pattern is emerging. For iwi to fully realise the benefits of that settlement, they will be – to some extent – reliant on marine farmers developing new operations and thus creating settlement entitlements. Approaching that equation as passive recipients of such entitlements is likely to return far less benefit than iwi engaging actively with other marine farming interests and seeking out opportunities to progress developments and settlement entitlements hand in hand.
Background
The Māori Fisheries Settlement
The Māori Fisheries Settlement was concluded in two steps, with the interim settlement effected by the Māori Fisheries Act 1989 (MFA89) resulting from the introduction of the property rights-based Quota Management System (QMS); this had the dual effect of highlighting the unresolved status of customary Māori fishing rights and excluding part-time fishers (many of whom were Māori) from receiving allocations of quota.
Following the landmark case Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680; (1986) 6 NZAR 114, (which held that s 88(2) Fisheries Act 1983 (FA83) had effectively preserved Māori fishing rights) and the decisions in New Zealand Maori Council v Attorney-General (8/10/87, Grieg J, HC Wellington, CP553/87) and Ngai Tahu Maori Trust Board v Attorney-General (2/11/87, Grieg J, HC Wellington, CP559/87; CP610/87; CP614/87), in which the High Court considered the effect of the promulgation and operation of the QMS on those Māori rights. The Court concluded that it was arguable that s 88(2) of the FA83 made the Treaty of Waitangi directly enforceable in an active rather than passive sense (for the purpose of securing rights, not merely a defence). Taking the view that the guarantees of Article II of the Treaty in respect of fisheries directly conflicted with the proprietary nature of the quota rights created by the FA83, the High Court issued a series of injunctions preventing the Minister of Fisheries bringing any further species under the QMS. In response, as so as to allow implementation of the QMS to continue, the MFA89 was passed as part of an interim settlement. The effect of the interim settlement was to require the Government to purchase 10% of quota for all species then under the QMS, to be transferred to a Commission which would hold it in trust for Maori.
Negotiations by the Crown and Māori negotiators, given impetus by the proposed sale of a 50% interest in New Zealand’s largest fishing company, Sealord Group Limited (SGL), led to a final settlement enshrined in a 1992 Deed of Settlement and implemented through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (TOWFCSA). The settlement had four key features:
- 20% of quota for all species introduced to the QMS after 1992 would be set aside for iwi, in addition to the 10% of species introduced earlier provided for by the MFA89;
- The Crown provided funding for the Treaty of Waitangi Fisheries Commission to purchase a 50% share in SGL on behalf of iwi;
- Section 88(2) of the FA83 was repealed and replaced by s 10 of the TOWFCSA, so that all taking or possession of fish had to be in accordance with the provisions of the FA83 or any regulations made under it; and
- The TOWFSCA also provided for non-commercial customary fishing rights and interests, and for Māori participation in the management and conservation of fisheries, by requiring the Crown to introduce legislation empowering the making of regulations to recognise and provide for customary (non-commercial) food gathering and the “special relationship” between tāngata whenua and places of importance for customary food gathering, including tauranga ika and mahinga mātaitai.
Customary fishing is currently administered primarily under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), and the Fisheries (South Island Customary Fishing) Regulations 1999. In areas where those regulations are yet to be implemented, customary fishing is conducted under regulations 27 and 27A of the Fisheries (Amateur Fishing) Regulations 1986.
The impact of the Fisheries Settlement on customary rights was recently discussed in Ministry for Primary Industries v Benson (12/11/12, DC Thames, CRN12075500243), in which defendants charged with taking fish illegally claimed to be exercising customary rights. They argued that, as they were not registered members of an iwi authority who signed the 1992 Deed of Settlement, s 10 of the TOWFCSA did not apply to them. The Court held, consistent with a line of authority beginning with Manukau v Ministry of Fisheries (29/7/98, Salmon J, HC Auckland, M984/97), the TOWFSCA applied to non-signatories as well as signatories to the Deed and was therefore binding on the defendants.
The enactment of the TOWFCSA was followed by a decade of debate, dispute and litigation in respect of the scheme that should be adopted for division and allocation of the settlement assets between iwi. The result was the Māori Fisheries Act 2004 (MFA04), which reconstituted the Treaty of Waitangi Fisheries Commission as Te Ohu Kai Moana (Te Ohu). The MFA04 provides for quota to be allocated to iwi on the basis of a combination of coastline and iwi population, necessitating agreement between neighbouring iwi as to the length of their respective coastlines. Shares in SGL and other fishing enterprises that had been acquired by the Commission were retained in Aotearoa Fisheries Limited (AFL), with iwi receiving ‘income shares’ in that company, entitling them to a share of its dividends. The MFA04 also introduced a number of minimum standards of governance, accountability and representation that iwi entities would have to meet in order become a Mandated Iwi Organisation (MIO) and receive their share of settlement assets.
Māori Commercial Aquaculture Settlement
The Māori Commercial Aquaculture Settlement had a rather different and more truncated history. Farming of mussels began in the Marlborough Sounds and the Hauraki Gulf in the 1970s. By the late 1990s, farmed species included oysters, salmon and paua and the industry had expanded to the extent that Regional Councils were struggling to manage demand for water space. In 2001, the government proposed a new regime based on the concept that development of aquaculture would take place only within Aquaculture Management Areas (AMAs) defined by Regional Councils through their planning documents under the Resource Management Act 1991 (RMA).
Iwi organisations referred these proposals to the Waitangi Tribunal, particularly concerned that rights to use space in AMAs would be sold by tender, creating a system of quasi-property rights not unlike those involved in the QMS. In its 2002 report, Ahu Moana: The Aquaculture and Marine Farming Report (2002, Wai 953), the Tribunal found the government proposals to constitute a breach of the Treaty and recommended that, before introducing legislation, the Crown should consult and negotiate with Māori on processes for investigating the nature and extent of the Māori interest in marine farming and for protecting that interest and preserving the Crown’s capacity to meet its Treaty obligations in the short term (at 76-77 of the report).
The challenge of developing a process to ‘investigate the nature and extent of Māori interests in marine farming” was soon overtaken by the decision of the Court of Appeal in Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA), in respect of foreshore and seabed; another case that also had its genesis in iwi concerns over the expansion of the aquaculture industry. In the acrimonious environment that followed, the government decided that provision for Māori interests should form part of its proposed reforms of aquaculture but that consultation was not required, as the matter constituted ‘unfinished business’ from the 1992 Fisheries Settlement and could be settled on the same basis.
The result was the Maori Commercial Aquaculture Claims Settlement 2004 (MCACSA), which shares a number of features with the MFA04 and the TOWFCSA that preceded it:
- Iwi with a coastal rohe (area) would be entitled 20% of all new space (in AMAs) created after 1 January 2005 and the equivalent of 20% of space created between 21 September 1992 and 1 January 2005 (pre-commencement space entitlements). Claims in respect of space created prior to 21 September were left to be dealt with through the iwi-by-iwi negotiation of settlements of historic claims;
- In order to receive their share of settlement assets, iwi would have to establish Iwi Aquaculture Organisations (essentially MIOs, mandated to receive and manage aquaculture assets) and agree coastline lengths with neighbouring iwi;
- Until assets were transferred to iwi, they would be held in a separate trust (the Māori Commercial Aquaculture Settlement Trust, known as the Takutai Trust) administered by Te Ohu.
The Aquaculture Settlement differed from the Fisheries Settlement in one key respect, by not addressing any customary, non-commercial component of Māori rights.
Iwi aspirations for the Aquaculture Settlement, and indeed the New Zealand aquaculture industry as a whole, were to be thwarted by one thing: Regional Councils demonstrated little, if any, interest in developing AMAs and none materialised (except in the Tasman District and the Firth of Thames in the Waikato region, where planning for AMAs was already well-advanced prior to the 2004 reforms). The first response to this was seen in 2009, when the Crown concluded an ‘early’ settlement with iwi of Te Wai Pounamu and Coromandel in respect of their pre-commencement entitlements’ cash payment of $97M. Similar settlements followed in respect of other regions and others are still in process.
A further reform of aquaculture legislation was undertaken in 2011, scrapping the idea of AMAs in favour of a return to managing applications for space on a ‘first come, first served’ basis, though with new tools allowing councils and the responsible Minister to intervene in situations of high demand. This presented significant problems for the Aquaculture Settlement, however, as authorisation (conferring an exclusive right to apply for coastal permits) for space in AMAs was the fundamental ‘currency’ of the settlement.
The 2011 amendments to the MCACSA presented the Māori entitlement to 20% of new space (or the equivalent) but introduced new mechanisms for delivery of that entitlement, focused primarily on the ‘regional agreements’ model that had worked well in respect of pre-commencement entitlements. Regional agreements may include, as deliverables, space, cash or anything else that is agreed between the Crown and iwi with coastal interests in the relevant region and may be based on anticipated new aquaculture development, not just ‘new space’ that has already been created.
To facilitate the negotiation process and ensure that potentially suitable space remains available for use in a regional agreement to be protected, the Minister was given a new power to declare space in the coastal marine area as being required to meet settlement obligations (Aquaculture Settlement Areas), by notice in the Gazette. Applications for coastal permits in such Gazetted areas can be made only by, or with the permission of, the relevant iwi. If regional agreements are not concluded within prescribed timeframes, the ‘default option’ will see authorisations for Gazetted areas transferred to Te Ohu/iwi, along with financial compensation, if necessary, to reflect the greater costs likely to be incurred in applying for coastal permits in such areas, as compared to AMAs. If insufficient authorisations are available, a financial equivalent will be transferred to the trustee as settlement of the Crown’s new space obligations.
Several areas have been Gazetted under these provisions in the Marlborough Sounds and one in Akaroa Harbour. No regional agreements have yet been concluded.
Discussion
The economic state of the sector
The New Zealand seafood industry operates within the world's fourth largest Exclusive Economic Zone (EEZ), covering 4.4M km2 of ocean, and produces about 1% the world's fish catch. Around 650,000 tonnes of seafood are harvested from New Zealand's coastal waters and EEZ each year. Almost 63% of this harvest is mid- and deep-water fish, 12% pelagic (deep water), 10% inshore species (including shellfish) and 15% is from aquaculture. The sector is New Zealand’s fifth-largest export earner, with annual revenue of just over $1.5B and provides 26,000 jobs.
Iwi/Māori are said to own approximately 50% of fisheries quota through iwi, AFL and other companies. Three iwi/Māori owned (or part-owned) companies are among the five largest fishing companies in the country: AFL, SGL (50% Māori ownership) and Ngāi Tahu Fisheries Settlement Limited (100% Ngāi Tahu-owned).
Being a predominantly export-driven sector, seafood businesses suffered in 2012 from the twin impediments of depressed global commodity markets and a continuing high exchange rate against most major trading currencies. In addition, improvements in depleted ground fish stocks in the Northern Hemisphere have increased the supply of whitefish to European markets in which New Zealand hoki competes. A recovery in Chilean-farmed salmon production (after disease problems) has increased competition with New Zealand-farmed salmon (NZ Ministry for Primary Industries, Situation and Outlook for Primary Industries Update, December 2012, page 11).
The result has been static, or slightly decreased, returns despite increased production of some species. Forecasts are for little improvement in this overall picture for the next 1-2 years, at least. Despite the decreased or static returns, AFL is making a ‘special one-time taxable bonus share issue to its shareholders, paid over and above the ordinary dividend (Te Ohu Annual Report 2012, page 35).
Commercial fisheries developments
The dominant issue for the fishing industry in 2012 drew national attention, with newspaper headlines talking of ‘slave ships’, rife with abuse, operating in New Zealand waters and largely dependent on iwi ACE (Annual Catch Entitlement – the annual tonnage of catch allocated to quota owners). The reality – while troubling – was somewhat less salacious, but the damage had already been done to New Zealand’s international reputation and the government took decisive action.
FCVs, foreign-owned and -operated vessels chartered (hired) by New Zealand companies to catch their ACE, have been part of the New Zealand industry since the early 1990s. Over the past decade or so, FCVs have made up around 50% of New Zealand’s deepwater fleet, but 80-99% of the catching capacity is of some low-value, high-volume species, such as squid, due to lower operating costs arising from factors such as exemptions from import duties in the vessels’ home countries. FCVs utilise foreign workers, who require Immigration approval to work in New Zealand. FCV arrangements are almost invariably time charters, whereby boats and crew come as a package.
Allegations of mistreatment of crew – primarily that crew are paid less than the New Zealand minimum wage – first arose in 2010. The government responded by appointing a Ministerial Inquiry Panel to investigate these allegations in late 2011-early 2012. The Panel concluded that, notwithstanding that the issues did not appear to be as widespread as had been reported, a number of improvements could be made in terms of government oversight and control.
There was even less truth to the stories suggesting that FCVs were predominantly fishing iwi-owned ACE, with Te Ohu estimating that iwi ACE could make up no more than a maximum of 17% of the catch of such vessels (Media release ‘Foreign Charter Vessel Bill threatens value of Maori Fisheries’, 15 February 2013). The regime under which FCVs operate is of vital interest to iwi, however, with no iwi operating their own deepwater fishing boats and only one New Zealand fishing company not using FCVs to harvest deepwater fisheries. In order for iwi to generate the best sustainable returns from their deepwater quota they require the continued operation of FCVs under a robust and defensible regime.
For these reasons, an Iwi Leaders’ Group (the FCV ILG) was mandated by the national Iwi Chairs’ Forum to engage with Ministers on proposals to radically reform the system under which FCVs and, to some extent, all New Zealand commercial fishing vessels, operate. Engagement centred on a number of Cabinet decisions, based on recommendation of the Ministerial Inquiry Panel, taken in May 2012 including both higher standards in respect of employment conditions for crew on FCVs (most particularly by requiring that all crew are paid in cash or into New Zealand bank accounts) and improved systems for auditing and monitoring compliance with those standards. The fundamental policy change adopted by Cabinet, however, was that every vessel operating in New Zealand fisheries waters must be flagged as a New Zealand ship from 1 May 2016.
A vessel’s ‘flag’ is roughly equivalent to a person’s nationality or the passport they travel on. A vessel’s ‘flag state’ has jurisdiction over it, wherever in the world it is operating. The decision to exclude vessels that are not New Zealand-flagged was driven by a desire to ensure that New Zealand has full jurisdiction over all vessels in its fisheries waters (including the exclusive economic zone).
The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill, which had its First Reading in Parliament in February 2013, would give effect to this policy decision as well as significantly expanding the powers and discretion of the Chief Executive of the Ministry for Primary Industries (MPI) over registration of fishing vessels so that the Chief Executive could:
- Refuse, or impose conditions on, the registration of vessels (foreign-owned vessels only initially, but all vessels from 1 May 2016) on the basis of a perceived risk of potential breach of fisheries, employment or safety standards. Currently, only fisheries-related issues can be considered under s.103 of the FA96, with the emphasis on an operator’s past history of compliance or non-compliance; and
- Suspend or, ultimately, cancel the registration of any vessel on the basis of a risk of breach of fisheries, employment or safety standards. These powers would apply to New Zealand-owned vessels immediately on enactment. Currently, there is no power to suspend registration, and registration can only be cancelled at the initiative of the Chief Executive only:
- if a vessel is forfeit to the Crown as a result of conviction for serious fisheries offences; or
- in the case of FCVs only, as a result of proven breaches of the Minimum Wage Act or Wages Protection Act.
The FCV ILG expressed concern that these measures would adversely impact on the value of the Fisheries Settlement assets (quota) owned by iwi as a result of reductions in the total number of ships in the deepwater fleet (reducing competition to purchase ACE), increased compliance costs putting downward pressure on ACE prices and decreased certainty discouraging investment (See, for example, the issues raised in the submission on the Bill from Te Rūnanga o Ngāi Tahu).
Reports from the FCV ILG to the Iwi Chairs’ Forum make it clear that its engagement with Ministers has not ameliorated these concerns and it encouraged iwi to make submissions on the Bill (See, for example, submissions made by Ngāti Kahungunu Iwi Incorporated and Kahungunu Asset Holding Company, Te Rūnanga a Iwi o Ngāpuhi, Te Rūnanga o Ngāi Tahu, as well as the submission by Te Ohu. Te Ohu Annual Report 2012, Te Ohu Kaimoana/Māori Fisheries Trust, pages 10-11.) The Primary Production Select Committee is due to report back to Parliament on the Bill by 21 June 2013.
Mandated Iwi Organisation recognition and operation
Meanwhile, iwi continue the work of ensuring they meet the standards required to become a MIO – only two of the 57 iwi or iwi groupings recognised under the MFA04 were yet to achieve this status by the end of 2012 – and of concluding ‘coastline agreements’ with neighbouring iwi. Te Ohu reports that coastline agreements have been concluded in respect of more than 50% of the country’s coastline (though, to be fair, uncontested coastline around the bulk of the Ngāi Tahu and Ngāti Kahungunu rohe make up the bulk of this) and are in progress in respect of the remainder (Annual Report 2012, Te Ohu Kaimoana/Māori Fisheries Trust, pages 10-11).
Re Tuhoe Charitable Trust Board [2012] NZHC 1952 is the first reported example of an iwi authority making use of 2011 amendments to the MFA04 which established a process for MIO status to be transferred from one entity to another. Tuhoe sought to have that status transferred from the Tuhoe Fisheries Charitable Trust to the Tuhoe Charitable Trust as part of a consolidation of its tribal affairs. Without the 2011 amendments (ss.18A to 18F of the MFA04), the transfer of settlement assets from one entity to another would be treated as an alienation of those assets, triggering the protective provisions of the MFA04 which would otherwise require an offer for sale to other iwi and to Te Ohu.
It’s worth noting that other iwi have also faced the need to transfer their MIO status, particularly as a consequence of establishing a post-settlement governance entity (PSGE), but have found a different solution. Sections 132-135 of the Ngāti Porou Claims Settlement Act 2011 deem that iwi’s PSGE, Te Rūnanganui o Ngāti Porou (Te Rūnanganui) to be recognised as its MIO, in place of its predecessor entity, Te Rūnanga o Ngāti Porou. Section 136 of that Act goes further, and exempts Te Rūnanganui from the need to hold elections every three years (in accordance with Kaupapa 1(1) of Schedule 7 of the MFA04), in favour of a requirement to hold elections at least once every four years.
In contrast, Te Rūnanga o Ngāti Hine (TRONH) is seeking to withdraw from the Joint MIO of Ngāpuhi, Te Rūnanga ā Iwi o Ngāpuhi (TRAION) with a view to establishing their own MIO, largely as a result of TRONH’s opposition to the mandating process adopted by TRAION in respect of the negotiation and settlement of historic treaty of Waitangi claims for all of Ngāpuhi (known as the Tūhoronuku proposal). The withdrawal process is proving slightly problematic for TRONH. Although TRONH originally made an application to the Māori Land Court to rule on aspects of the dispute over the withdrawal process concerning Fisheries Settlement assets under s 20 of the MFA04, and that original application continues in the MLC, TRONH have come up against issues withdrawing in relation to non-Fisheries Settlement assets. TRONH applied to the MLC seeking orders in the form of declarations relating to the decision to withdraw from TRAION and the impact of that decision on the Tūhoronuku proposal. After the MLC dismissed that application, TRONH appealed it to the Maori Appeal Court (MAC). In Te Runanga o Ngati Hine v Te Runanga a Iwi o Ngapuhi (2013) Māori Appellate Court, MB 89 the MAC upheld the MLC’s findings that:
- The withdrawal of TRONH from TRAION under s.20 of the MFA04 only relates to Fisheries Settlement matters. The MAC made the observation that neither the relevant legislation nor the TRAION Trust Deed expressly addresses withdrawal for purposes other than MFA04.
- The jurisdiction of the MLC is statute-based. Withdrawal under s.20 of the MFA04 is limited to Fisheries Settlement purposes and does not extend the Court’s jurisdiction to rule on the Tūhoronuku proposal. It was noted by the MAC that the Court does have jurisdiction under s.30 of Te Ture Whenua Maori 1993 to make orders relating to representation of Māori groups, but that this section was not relied on by TRONH in its application.
The MAC also observed at [56] that
…nothing we have determined has rendered the actions of TRAION and its trustees immune from scrutiny. The Trustees have obligations to act in accordance with the Trust Deed, and their actions remain subject to the oversight of the High Court as a matter of Trust Law.
The MFA04 limits the scope for an iwi/hapū to withdraw from the representation of a Joint MIO to four cases:
- Ngāpuhi/Ngāti Hine
- Ngāti Kahungunu/Rongomaiwahine
- Te Kotahitanga o Te Arawa/10 constituent iwi
- The Hauraki Māori Trust Board/12 constituent iwi.
While it is clear that Ngāpuhi/Ngāti Hine issues have some way to go yet, it remains to be seen whether the withdrawal process will be triggered in the other cases.
Non-commercial fisheries
Implementation of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), and the Fisheries (South Island Customary Fishing) Regulations 1999 continued to be hampered, particularly in the North Island, by shortcomings in the regulations’ dispute resolution processes. Application of the regulations to a given area depends upon tāngata tiaki/kaitiaki being appointed for that area, but the regulations do not provide an effective mechanism for resolving objections to nominations for appointment. There are currently 377 tāngata tiaki/kaitiaki appointments under the Kaimoana Regulations as well as two appointments of committees. Sixty one of these appointments were made in 2012, along with five replacement appointments. Under the South Island regulations, 135 tāngata tiaki/kaitiaki have been appointed to manage general customary food-gathering areas, and ten appointed to manage mahinga mātaitai/mātaitai reserves (see below). It should be noted that in some cases, tāngata tiaki/kaitiaki might be appointed to manage more than one area, or a general area and a mātaitai reserve.
Notwithstanding these problems, the network of mātaitai reserves, customary fishing areas in which no fishing is allowed except with the permission of the appointed tāngata tiaki/kaitiaki, expanded from 24 to 29 in the course of 2012. In the courts, Ngāti Ruahine v Bay of Plenty Regional Council [2012] NZRMA 523 (HC) explored the relationship between customary fishing rights recognised under the FA96 and decisions made under the RMA. Ngāti Ruahine appealed against the Environment Court upholding a decision of the Bay of Plenty Regional Council to grant consent for port dredging works. The iwi argued, unsuccessfully, that the Council and the Court failed to have particular regard to a mātaitai reserve (established under reg 23 of the the Fisheries (Kaimoana Customary Fishing) Regulations 1998) as expression of the Crown’s continuing obligations to Ngāti Ruahine under the Treaty in their decision-making.
Section 200(1) of the FA96 creates an exception to the usual power of a warranted fishery officer to enter a place for the purposes of his/her role under the Act, in respect of any Māori reservation constituted by or under the Māori Affairs Act 1953. Matene v Ministry for Primary Industries [2013] NZHC 397 was an unsuccessful appeal against conviction for possessing undersized pāua and taking excess pāua in breach of the relevant recreational fishing regulations. The appellant submitted that all land in New Zealand is reserved for tāngata whenua Māori and all other land titles are null and void; the MLC documents describing the land entered by the fishery officer in this case as Māori freehold land (and therefore not exempted from his right of access) should not have been admitted without calling a witness. The first ground of appeal was based on Lands Claim Ordinance (Sess 1, No 2), 9 June 1841 and Ngāti Apa v Attorney-General [2003] 3 NZLR 643. The High Court, in dismissing the appeal, held that neither the Ordinance nor Ngāti Apa supported the appellant’s proposition that there was only one form of title to land in New Zealand and that all land is reserved for tāngata whenua Māori. As the appellant had not objected to the Informant's proposal to produce stamped duplicate documents issued by the MLC without calling a witness, those documents were admissible as proof the relevant land was Māori freehold land and no useful purpose would have been served by requiring a witness from the MLC to produce title documents from Court records. It should be noted that even if the appellant in this case had been on a Māori reservation, that would not have constituted a defence to the charges, but simply meant that the fishery officer could not have entered the reservation.
Aquaculture
In 2012, the government continued to demonstrate its support for aquaculture development by adopting an Aquaculture Strategy and Five-year Action Plan to Support Aquaculture. This followed the adoption of a revised New Zealand Coastal Policy Statement (NZCPS) in 2010 which, for the first time, included a policy specifically dealing with aquaculture. Calling on Regional Councils to “recognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities” by inter alia including in regional planning documents provision for aquaculture activities in appropriate places in the coastal environment (Policy 8, New Zealand Coastal Policy Statement, effective date 3 December 2010, Department of Conservation).
The new NZCPS was followed by the major legislative reforms of aquaculture referred to above, which did away with the AMA regime, as well as various other amendments to the RMA. The adoption of the Aquaculture Strategy and Five year Action Plan to Support Aquaculture, released in April 2012, can be seen as the third plank of the government efforts on this front. The Strategy and Plan do not have any legal effect per se, explicitly recognising that sector growth must be “industry-led” and that local authorities remain responsible for individual planning and resource consenting decisions. Within these parameters, however, central government agencies have a number of roles and responsibilities to fulfil.
The intent of the Strategy and Plan is that all nine central government agencies with core roles and responsibilities in respect of aquaculture will carry these out in such a way as to promote a series of identified objectives in support of sustainable aquaculture development. Somewhat uncharacteristically for such documents, the Action Plan included performance measures and it is these measurable targets allowing the industry to assign government a pass/fail mark in five years’ time, which give the Strategy and Plan some real substance.
One of those measurable targets is that, by 2016, “80% of regional coastal plans include aquaculture provisions in accordance with the policies in the NZCPS”. In support of this objective, relevant government agencies are directed to work with local authorities to identify opportunities for aquaculture growth, with the further target of having 4,000 ha of new aquaculture space developed by 2016. If achieved, this goal would translate into an iwi entitlement to 800ha of useable aquaculture space – or the equivalent in cash or some other agreed form.
Notwithstanding these various steps taken by the government to give effect to its support for aquaculture, the Environment Court’s decision in Port Gore Marine Farms v Marlborough District Council [2012] NZEnvC 72 demonstrates the continuing tension between developmental and protective objectives in the NZCPS. The case involved unsuccessful appeals by mussel farm operators against decisions by the Marlborough District Council not to grant new coastal permits for existing marine farms. The decision is also notable for acting as a reminder of the lack of security of tenure held by marine farms, with coastal permits having to be re-applied for at the expiry of their term, notwithstanding the common reference to these as renewals.
A key factor in the Council and Court decisions to refuse consents related to the status of Port Gore as an “outstanding natural landscape”, albeit not an unmodified one, and the greater protection indicated for such landscapes in the NZCPS. It is also worth noting that permits to allow the continuing operation of the mussel farms in question was declined even though operators proposed to substantially modify the design of the farms so that the majority of infrastructure associated with them would be below the surface of the water, thereby significantly reducing their visual impact.
The Marlborough Sounds was also the focus of the other major legal development of 2012 in respect of aquaculture. New Zealand King Salmon (NZKS) has long had aspirations to expand its operations in the Sounds, including in areas in which salmon farming was a prohibited activity under the Marlborough Sounds Resource Management Plan (MSRMP). The company elected to advance these aspirations through the RMA’s provisions for “call in” of decisions involving matters of national significance, with decision-making on such matters now administered through the Environmental Protection Agency.
The applications were in respect of nine sites, only one of which was in an area in which salmon farming was permitted under the MSRMP. The applications therefore comprised plan changes with concurrent applications for resource consent in respect of eight sites (such a concurrent process being allowed for under s 165ZN of the RMA, enacted as part of the 2011 reforms), with a further resource consent application alone in respect of the ninth site.
NZKS’ application was determined by the Minister of Conservation to be of national significance and a Board of Inquiry was appointed by the Minister for the Environment to consider and determine it. That Board released its final decision on 22 February 2013.
In summary the Board’s decision was to:
- Allow the plan change and consent applications for four of the sites. The draft report and decision sets out the terms of the plan change and conditions of the resource consents;
- Decline the plan change request and consent applications for four other sites; and
- Decline the resource consent application for the ninth site.
The Board’s decision gives extensive consideration to the complicated matrix of legislation, plans and policies relevant to such a decision, including: the RMA, the NZCPS, the Marlborough Sounds Regional Policy Statement, the MSRMP, the Nelson-Marlborough Conservation Management Strategy and at least one iwi management plan. To the extent that the provisions of the various statutory plans and policy statements did not always agree with each other, the Board found it necessary to make “judgment … as whether the instrument as a whole has been given effect to” (Full report and decision of the Board of Inquiry: New Zealand King Salmon - Requests for plan changes and applications for resource consents at [1180]).
Much of the focus of submitters, and thus of the Board’s decision, was on the issues of natural character and landscape. The Board accepted that the structures necessary for finfish farming had visual impacts on landscapes and seascapes and described an outstanding natural landscape as being “usually so obvious in general terms that there is no need for expert analysis. Landscape does not require precise definition. It is an aspect of the environment and includes natural and physical features and social and cultural attributes.” Adverse effects on landscape and natural character were relevant factors in the Board’s decision to decline several of the sites. Ultimately, the Board took the view that granting all of the sites would not give effect to the statutory provisions in respect of natural character, landscape, Māori cultural or ecological values as the overall cumulative effects would be too high.
The Board did, however, approve a site in Port Gore on the basis that its effects on the outstanding natural character and landscape values of the area would be outweighed by the fact that the site would play an important risk management role for NZKS due to its isolation from other sites in the Sounds. This is interesting for its contrast with the Port Gore Marine Farms v Marlborough District Council decision referred to above, in which the Environment Court refused to re-consent mussel farms in the same area largely on landscape grounds.
The Board’s decision has been appealed to the High Court by parties, including the Environmental Defence Society.
The year ahead
In response to the Government’s ‘Business Growth Agenda’, MPI has adopted a target of doubling the value of primary sector imports by 2025. This goal, referred to as the ‘Export Double’, is an ambitious one and it remains to be seen how it will play out in the Ministry’s regulatory and operational decisions over coming years. Certainly, MPI’s Briefing to Incoming Ministers (following the January Cabinet reshuffle which saw Hon Nathan Guy take over as Minister for Primary Industries) noted that increasing productivity would be a key focus in increasing seafood export values (Briefing for Incoming Ministers 2013, 28 February 2013). If this focus is to influence Ministry/Ministerial decisions, it could lead to increases to Total Allowable Commercial Catches for some species and relaxation in some regulatory constraints, for example, on catch methods.
The Ministry has also endorsed the Aquaculture industry’s even more ambitious target of increasing export revenues from $400M to $1B by 2025 and can be expected to continue to roll out its Five-year Action Plan to Support Aquaculture. Timeframes for concluding regional agreements between the Crown and iwi, in respect of aquaculture entitlements in some regions or to release settlement areas subject to Gazette notices, will begin to run out, thus giving the 2011 reformulation of the Aquaculture Settlement its first real test.
