www.aquaculture.govt.nz

Legislation

This section briefly describes the old legislative regime for marine farming development (which still applies to some applications via special transitional arrangements that allow them to continue to be processed under the old law) and the new regime that replaced it in 2005.

It also outlines the range of other regulations, codes and standards that can apply to aquaculture operations in New Zealand.

Old regime

Until the beginning of 2005, marine farm applicants were required to obtain two types of permits from different government agencies in order to establish and operate a marine farm.  The dual permitting system required applicants to first gain a resource consent under the Resource Management Act (1991) (RMA) from the relevant regional council (and depending how large the farm was, may have required approval from the Minister of Conservation), and then a permit from the Ministry of Fisheries under the Fisheries Act (1983).   Many of the existing marine farms in New Zealand were approved under this dual permitting system. 

A marine farming applicant would first apply to their local regional council for a resource consent for occupation and any other permits necessary under the RMA (e.g. permits for structures, disturbance of the seabed, or discharges, if required). An assessment of environmental effects was required to show the environmental effects of the activity would not be significant.  The council process considered the social (e.g. amenity values, recreational use), cultural, and environmental effects of the proposed marine farm.  During this process, it is very likely that the general public were also consulted and could have a say in whether the farm should be approved.  The activity would also have to be considered against relevant rules in the regional coastal plan and the New Zealand Coastal Policy Statement. 

After obtaining a resource consent, an applicant would be granted a marine farming permit under the Fisheries Act (1983) if potential effects on fishing and the environment (fisheries resources) were considered to not be ‘unduly adverse’ (known as the Undue Adverse Effects test).  The Undue Adverse Effects test considered the potential effects on commercial, recreational, and customary fishing and potential effects on fisheries resources such as water quality, waste discharge, plankton uptake, nutrient availability, pest and disease introduction, structures supporting new communities, local population genetics, and effects on other associated species.

Applicants needed to submit an independent scientific report to the Ministry of Fisheries outlining potential environmental effects of their proposed farm (a Fisheries Resource Impact Assessment - FRIA -report). Additionally, the public was again consulted on their views (by the Ministry of Fisheries) and asked to provide any additional relevant information not already provided by the applicant.

Under both permitting processes, there was an opportunity for legal review.  In the case of the resource consent, the decision could be appealed to the Environment Court.  In the case of the marine farming permit, there was an option for judicial review of the process by which the decision was reached.

Only after being successful in their application for both a resource consent and a marine farming permit could a marine farmer begin operating at their site.

Prior to the dual permitting system, marine farming was managed under the Marine Farming Act 1971, which was repealed by the new aquaculture legislation introduced on 1 January 2005, except for some transitional provisions.

There are still large numbers of marine farms that were originally authorised by a lease or licence under the Marine Farming Act 1971, particularly oyster farms.

In issuing a lease under the Marine Farming Act 1971, the assessment had to consider a number of matters, including the effect of the farm on navigation, commercial fishing, recreational or scientific use of the area, public interest and the interests of any adjoining land owner. In most instances, the leases or licences of these farms were deemed by the new legislation to be coastal permits and deemed to be Aquaculture Management Areas (AMAs).

New regime

A new regime governing marine aquaculture was introduced on January 1st, 2005. An increasing demand for aquaculture space highlighted the need for a more controlled planning regime and better integration between coastal planning and aquaculture management.  The new legislation ensures that effects on existing users and the environment are still thoroughly considered in the process of establishing new marine farms.

The main change is that aquaculture is now mostly managed within the RMA, with the intent of providing a single, streamlined process for planning and authorising marine farming.  Regional councils are responsible for deciding what locations and species are appropriate for aquaculture in their regions. New aquaculture can now only occur in AMAs defined in regional coastal plans.

The Ministry of Fisheries contributes early in the AMA process by testing for any undue adverse effects on commercial, recreational and customary fishing (the Undue Adverse Effects test) before an AMA can be established. The community and fishing interests are consulted at this stage.  The Ministry of Fisheries gives its approval if no undue adverse effects are identified, or it may decide that parts of the proposed AMA should be removed to mitigate effects on fishing.

Following the Undue Adverse Effects test on fishing, the area of the proposed AMA that was approved by the Ministry of Fisheries must then be publicly notified as a change to the regional coastal plan under the RMA, to get the area formalised as an AMA.  The regional council considers environmental, social and cultural effects of the proposed AMA and there is opportunity for the community to provide submissions and have a say in whether the AMA should be approved.

Applicants are required to obtain a resource consent for marine farming activities from their regional council once the AMA is approved, but they no longer must apply for the subsequent fisheries permit under the Fisheries Act as well. 

The new legislation also acknowledges an obligation to provide Maori (indigenous people of New Zealand) with assets equivalent to 20 per cent of the existing space created since 21 September 1992 (called pre-commencement space) and 20 per cent of any new space allocated in AMAs in future. 

Māori Involvement

Māori (indigenous people of New Zealand) are major participants in the national aquaculture industry already and they have an important role in the continued development of the sector.  

The Treaty of Waitangi, signed in 1840, is an agreement between Māori and the British Crown. It established British law in New Zealand while at the same time guaranteeing Maori authority over their land and culture, including rights in the coastal marine area.  When the aquaculture reform legislation of 2004 was developed (see Legislation section above), the Waitangi Tribunal found that the reforms should support the principles of the Treaty as “Māori have an interest in marine farming that forms part of the bundle of Māori rights in the coastal marine area” (Waitangi Tribunal report Wai953).

Claimants of this Waitangi Tribunal claim (Wai953) negotiated a settlement with the Crown over the issue. This settlement is provided for under the Māori Commercial Aquaculture Claims Settlement Act 2004.

In line with the 1992 Fisheries Settlement, the obligations of the new Act commit the Crown to providing iwi (local Maori tribes) with assets equivalent to 20% of the existing space created since 21 September 1992 (called pre-commencement space) and 20% of any new space allocated in AMAs in future. If actual marine farming space is not available to meet the pre-commencement space settlement obligation, the Crown is responsible for either buying existing farms or making the financial equivalent available to iwi. Under the new legislation these assets are to be transferred to iwi through the Takutai Trust. The Takutai Trust is administered by Te Ohu Kai Moana Trustee Ltd as Trustee of the Aquaculture Settlement.

Visit the Māori Development  section of this website to learn more.

Other regulations, codes and standards

As well as the Resource Management Act 1991, Fisheries Act 1996, Aquaculture Reform (Repeals and Transitional provisions) Act 2004, and Maori Commercial Aquaculture Claims Settlement Act 2004, New Zealand marine farmers can also be subject to other regulations, such as: