Opinion piece by Helen Campbell
The first shots have been fired in this government’ s plans to reduce costs and make processes easier for those in the aquaculture (marine) industry and to exponentially expand aquaculture activities and to ignore the current and future impacts of these activities on the marine environment. The cannon used for these shots is enshrined in the Resource Management Act 1991 – check out sections 360A-360C. [This was passed in 2011 and introduced the Minister of Aquaculture into the RMA.]
These sections, which enable the government through an Order In Council (an “Executive” decision), to amend regional coastal plans, by regulations, without public notification or the ability to appeal to the Environment Court, as has been in the past required by Schedule 1 of the Resource Management Act.
The National Environment Standard (NES) for Marine Aquaculture is the first salvo to be fired in a “priority” range of changes the government intends to make to the aquaculture processing regime. Still to come are proposals for industry growth outside of existing space, and/or creation of new space, which are likely to follow the same framework.
The NES deals, in particular, with reconsenting process and biodiversity matters. The proposal will replace existing regional coastal plans and change second generation plans currently under preparation. These changes will not follow Schedule 1 of the Act – that is, no public input will be possible. While the legislation states that proposed regulations “will continue to give effect” to the New Zealand Coastal Policy Statement as well as any regional policy statement, it is clear that aspects for the former – such as strategic planning, biodiversity, natural character, natural landscapes and features, have only been given token if any recognition. Councils currently reviewing policy documents including regional policy statements will be required by the Ministry for Primary Industries, the Minister of Aquaculture, and the Department of Conservation to comply with the political moves, again with no notification or rights to appeal.
The proposed NES overrides the (current) 2010 New Zealand Coastal Policy Statement (NZCPS) and significant recent case law that has emphasised the importance of the objectives and policies of the NZCPS; including requirement for “appropriate activities in appropriate places”.
These legislative changes constitute a significant loss in the democratic processes that are inherent in the Resource Management Act (RMA) and will undoubtedly mean that the purpose of the Act will be undermined and that natural and physical resources, including marine ecosystems, degraded for future generations.
Issues to consider include lack of adequate information or direction on:
• Relationship between the NZCPS 2010 and the NES/regulations e.g. the recent Supreme Court case (and other decisions) emphasise the need for adverse effects on Outstanding Natural Features and Landscapes (Policy 15) to be avoided. This Supreme Court case and other case law shows that the values of landscape must be assessed as if existing structures were not in the site under consideration. This directive also relates to Outstanding Natural Character (Policy 13) and Biodiversity, ecosystems and habitats etc. (Policy 11). No existing farms, until this decision, have been assessed in accordance with this.
Strategic planning: This often is not dealt with in the planning stages; and a “strategy” the occupation of space by marine farms is effectively privatisation of the “commons”. The specific impacts of marine farming whether it is shellfish or “fed” fish is not, despite the discussion documents protests, adequately know: there is a huge “knowledge gap” which has been acknowledge by various agencies including the Ministry for Primary Industries, and proven by case law.
Policy 7 (2) NZCPS requires the identification by councils of the coastal processes, resources and values that are either under threat or at significant risk from adverse cumulative effects with thresholds (zones, standards and targets) to be set in plans (or specification of acceptable limits) to assist in determining when activities causing cumulative effects are to be avoided. These effects of course need to consider all impacts on the coastal marine area: e.g. urban activities including development, fishing and dredging, forestry sedimentation, climate change etc. as well as actual aquaculture activities including those associated with feeding and harvesting.
The “connectivity” of ecosystems within the marine environment is still largely unknown. No information on the state of strategic planning throughout NZ has been assessed by the Ministries involved in this exercise. Without this crucial information no extension in the terms of the current farms should be permitted, but should continue to be assessed as discretionary activities with public/community/iwi/scientific input.
• Adaptive management – many consents are granted with condition that allows for adaptive management: in active adaptive management, managers design practices so as to discriminate between alternative models, and thus reveal the “best” management action. This sometimes involves testing practices that differ from “normal”, in order to determine how indicators will respond over a range of conditions. In passive adaptive management, managers select the “best” management option, assuming that the model on which the predictions are based is correct. Both passive and active adaptive management require careful implementation, monitoring, evaluation of results, and adjustment of objectives and practices. Active adaptive management usually allows more reliable interpretation of results, and leads to more rapid learning.
• Existing and “deemed” permits – many consents have been granted or extended by a process that involved no public consultation either through consent applications or planning processes. Many of these decisions were made on an ad hoc basis, encouraged by the years of ad hoc consideration of how to best handle the legislation that consents should be “permitted” under. This has meant that the “appropriateness” of a particular farm in a particular site may never have ever been assessed. Much has changed in the marine environment since the 1970’s and change is the one constant that can be depended on in the marine environment. No environmental limits or “carrying capacity” of the environment has been contemplated in the NES; despite the objective!
• “Inappropriate areas for aquaculture”: The NES states that the public, once the regulations are in place, will be able to participate in 2nd generation plan changes on where councils should assign areas as being “inappropriate” for marine farming….. but if the NES is in place and councils must make plan changes that comply with the regulations then all of the existing farms will already have “restricted discretionary” status which is tantamount to being able to stay in perpetuity! No public/community involvement.
• “Certainty”: The NES has been written to provide “certainty” for the aquaculture industry and its investors, but not for the general public over an area of the public domain that cannot be “owned”. The discussion document admits that public input has been useful but then proceeds to exclude just those opportunities.
• Effects on biodiversity – “token” points relate to management practices to minimise (not avoid) “marine mammal and seabird interactions – particularly entanglement, but not habitat exclusion”! The resting, feeding and breeding places of for instance seabirds are ignored, as well as areas for fishing breeding e.g. elephant fish. All “restricted discretionary activities and Categories 3 & 4 (change to fed finfish species) only require “management practices” to minimise marine mammal and seabird “interactions” – not avoidance.
• Effects on benthos – again token words relate to “reefs and biogenic habitats” and “benthic values and the seabed” with qualifiers added such as “significant”. The vulnerability of certain areas of other areas/habitats/ecosystems is ignored.
• Ability to have “more stringent or lenient activity classification”. This statement is very questionable…. and singularly unhelpful. When and how does a council make such a decision when its” rights” have been overcome by this NES and there is no Schedule 1 process to get public/scientific input? Again the assumptions are made that plans adequately identify import “values” and “characteristics”.
• Sites of “particular importance” to the industry. No indication of what criteria will be used for identification of such sites or what rights do the public have for objection? The example given, Wainui Bay, Golden Bay has been subject to many objections over many years, is in an area of ONFL, and is outside of AMAs established in Golden Bay as a consequence of a significant enquiry and Environment Court case. An appeal against a plan change to make these a “controlled” activity – that is no decline is possible, is currently underway.
Go to https://www.mpi.govt.nz/news-and-resources/consultations/proposed-national-environmental-standard-for-marine-aquaculture/ for the Discussion Document and proposed regulations. Read the proposals. Submissions are due by 5pm, Tuesday 8 August 2017.
Helen Campbell is a Friends of Nelson Haven & Tasman Bay committee member with an interest RMA coastal planning issues