Progress on aquaculture law reform - Pete Hodgson
Hon Pete Hodgson
Thursday, 24 July 2003, 9.30am Speech Notes
Progress on aquaculture law reform
[Opening address to combined AGMs & conference of the NZ Marine Farming Association, NZ Mussel Industry Council, and Marlborough Shellfish Quality Programme, Rutherford Hotel, Nelson]
Thank you for the invitation to speak today. The programme for your conference looks good and I'm sure the next two days will be time well spent for you.
This is an important time for aquaculture. There's a lot going on both in and out of government.
I'm sure the foreshore and seabed issue, aquaculture law reform and progress with marine farm applications are very much on your minds. So let me give you an update on all of these.
The Court of Appeal's decision affirming the Maori Land Court’s jurisdiction over customary claims to foreshore and seabed will be well known to you by now.
I think it is important to recall that this decision has no immediate consequences for anyone's access to coastal space. It has potential consequences, if the Maori Land Court was to find in favour of a customary claim for foreshore or seabed, but this has not happened.
I say this not to belittle the issue, but to stress there is no cause for anger or panic. I think it is worth stressing that because there is some very ugly politics being played on this issue. Claims that Maori are bent on kicking Pakeha off the beaches are nothing more than a contemptible effort to create racial tension for the sake of capturing the limelight.
The Court of Appeal's decision was unexpected. It does raise the novel possibility that if a Maori claim to customary rights over a section of foreshore and seabed was established to the Maori Land Court's satisfaction, and if those rights were then successfully converted to customary title, Maori could then assert exclusive ownership rights over coastal space that do not currently exist.
It is right that we confront this possibility seriously and consider what it might mean, what the consequences might be, how it fits with our values as a nation. In government, our objective is to clarify how the public and Maori customary interests in coastal space can both be satisfied. We do not begin with the assumption that they are mutually exclusive. We refuse to set this up as a contest between Maori and Pakeha that only one can win.
Recognition of the customary rights of indigenous people, in certain circumstances, is a feature of English common law that we have inherited. We share this inheritance with other Commonwealth nations, such as Australia and Canada. Customary rights do not derive from the Treaty of Waitangi, as some participants in the current debate apparently believe. Their legal whakapapa is longer than that.
Extinguishing Maori customary rights is not an option. That would simply be a profound injustice, a denial of rights that have been recognised in law as long as this nation has been ruled by law. But defining the nature and extent of these rights is, in many areas, a work in progress. That is the nature of common law rights. We have precedents and principles to follow, but choices to make about how they can be satisfied.
We also have precedents and principles to guide us in clarifying the public interest. New Zealanders have always enjoyed access to, and use of, the foreshore and seabed. They rightly expect that to continue. The seafood industry has access to coastal space and marine resources, in return for which it makes a substantial contribution to the nation's wealth. You rightly expect that to continue.
There will have to be legislation to settle this matter. The existing law has thrown up the questions and it is up to Parliament, not the Courts, to deliver the answers.
The exact form of that legislation is still being determined, but it will ensure that private, exclusive titles are not created over what has always been regarded as the public domain. At the same time it will protect Maori customary rights. These goals are not mutually exclusive because exclusive title is not the only way to recognise a customary right. Public ownership, after all, is not the only way in which we recognise and cater for the public interest.
I am involved with the group of ministers and Maori MPs working on this matter and I can tell you we are close to producing a proposal for consideration by Cabinet and then public consultation. Your industry will certainly have the opportunity to have its say and I am sure you will not miss the opportunity.
Inevitably, aquaculture law reform is linked to the foreshore and seabed issue. Both are about access to coastal space, so we need to make sure we move forward on both with a clear understanding that they are consistent.
There is now an undeniable risk that the legislation required for the aquaculture reforms might not be introduced in August, as planned. I am not relaxed about that: on the contrary, I am doing my best to make sure we can still get the aquaculture legislation passed by the time the moratorium on new resource consents lifts next March. My colleagues are very conscious of this goal.
I am optimistic that we will get there, but we are cutting it fine and I know we could overshoot. We won't know for a few weeks yet. If we do run into timing problems, we will have to legislate to extend the moratorium, as there is no provision in the existing law to do that. This is a moratorium we could not avoid, not one we wanted – and not one we want to extend. Any extension would be for a clearly limited period, measured in months not years.
It is very important to me to get these reforms through. Aquaculture has huge growth potential, but it is hamstrung by the messy regulatory regime we are replacing.
The objectives for the reforms are still very clear in our sights.
We want environmentally sustainable development. We want to give the public certainty about where there will not be aquaculture and the industry certainty about where it will be. We want to preserve the Crown’s capacity to provide for Maori Treaty interests and obligations. We want to provide for development in a way that recognises the rights of existing fishers. We want a bright, certain future for this remarkable industry.
To achieve these things, growth in the sector needs to be planned and well-managed. No one wants to resume the headlong scramble for new water space and the ad hoc development that have plagued the industry in recent years.
AMAs should be designed by regional councils to be flexible enough to provide for a wide range of marine farming activities.
The new regime will retain the requirement, currently in the Fisheries Act, for marine farming to avoid undue adverse effects on fishing or the sustainability of any fisheries resource. But the impact on individual developments will be significantly reduced, because the fisheries considerations will be folded into the beginning of the process to establish an AMA, rather than being left until the end of the consent and permit process as they are now. No longer will new marine farming ventures be required to clear two separate approval hurdles, namely the resource consent followed by the fisheries permit.
Any parts of a proposed AMA that are determined to have an undue adverse effect on customary or recreational fishing will not proceed. But any parts that would have an undue adverse effect on commercial fishing will be able to proceed if quota holders and marine farm applicants can reach an agreement over the site. This too will be an improvement on the current situation, in which all marine farming deemed to have an undue adverse impact on commercial fishing must be declined by law – irrespective of whether an agreement could have been struck. I understand you will be spending some time discussing this aspect of the reforms tomorrow.
Many of you will have a keen interest in progress on the backlog of marine farm applications and I'm pleased to be able to say that it is now being steadily whittled down.
The Ministry of Fisheries currently has around 194 applications on the books, 168 of which are in the Marlborough Sounds.
One of the reasons for the current backlog has been processing delays caused by the poor standard of ecological information submitted in support of applications. This has meant that the Ministry has had to go back to applicants for more information.
To help applicants and research providers understand the type of ecological investigation and standard of information necessary, the Ministry developed the fisheries resource impact assessment guide last year. It sets out the standard of information the Ministry needs to determine whether the application would have an undue adverse effect on the sustainability of fisheries resources. This is particularly important in the Sounds, where marine farming is already widespread and the cumulative effects on the sustainability of fisheries resources require careful consideration.
The recent move to gather ecological information area by area, rather than one application at a time, is also a significant advance. Already I think this has clear potential for achieving faster assessment of applications, decreased research costs, good translation into AMAs, reduced competition between neighbouring farmers, increased opportunity for mitigation of effects, less litigation, and the opportunity to improve management and relations with other groups outside marine farming.
Let me close with a plug for aquaculture as a driver of improved environmental standards, because it is a point I think is missed too often.
Not only does marine farming take pressure off our wild fisheries, but it demands the highest environmental standards for its own success. High water quality and hygiene standards are essential, as all of you will be well aware. This industry, when it works best, brings environmental and economic interests together. I like to keep that in mind when I think about its future, which I'm convinced is very bright indeed.