Proposed National Environmental Standard (NES) for Marine Aquaculture: NZCA submission

Submission date: 8 August 2017

1. The Legislative Basis for the New Zealand Conservation Authority submission

The New Zealand Conservation Authority (NZCA) was established under the Conservation Act 1987.

The NZCA has a range of powers and functions, under the Conservation Act 1987, as well as under other conservation related legislation. Under the Conservation Act, Section 6C (2) (c), the NZCA has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.” This includes the function to advise on national initiatives, policies and strategies affecting public conservation resources.

One of the functions of the NZCA is to investigate any nature conservation or other conservation matters it considers are of national importance and to advise the Minister or the Director- General of Conservation, as appropriate. The NZCA views the National Environmental Standard for Marine Aquaculture to be a conservation matter of national importance given the marine environment is public space, the use of which is an important issue for many New Zealanders. The NZCA views New Zealand’s marine biodiversity and ecological health of the coastal environment to be a significant conservation issue; and supports the establishment of further marine protected areas (and a wider diversity of these) as one pathway to enhance both.

Following the logic of the above powers and functions, the NZCA has decided to submit on the Proposed National Environmental Standard (NES) for Marine Aquaculture. 

2. NZ Coastal Policy Statement (NZCPS) 2010

The NZCA is a strong supporter of, and advocate for, the NZ Coastal Policy Statement 2010.

The NZCA believes this National Policy Statement, under the RMA 1991, provides clear Objectives and Policies about how New Zealand’s coastal environment is to be managed. The NZCPS places a great deal of emphasis on the protection of the coastal environment and ecosystems, preservation of natural character of the coastal environment and protection of natural features and landscape values.  It also provides direction on maintaining and enhancing public access to and recreational opportunities of the coastal environment.

Objectives 1,2,3,4 & 7 of the NZCPS align with the conservation responsibilities and role of the NZCA.

The NPS places considerable emphasis on the avoidance of significant adverse effects of activities in the coastal environment and requires the mitigation and remediation of adverse effects.

The 2014 Supreme Court Decision, EDS vs The NZ King Salmon Company Ltd, reinforced the significance of the Objectives and Policies of the NZCPS and implied the NZCPS emphasis on avoidance is non-negotiable, given it has been through an extensive public process, and that it is an integral part of PT 2 of the RMA 1991 and decision making around planning and resource consents.  

The NZ Coastal Policy statement 2010 has driven the NZCA’s Polices on:

• Coastal Management Principles; and
• Marine Principles

 copies of which are appended to this submission.

The NZCA conclusion is the Proposed NES Marine Aquaculture comes up short in terms of the preservation and protection Objectives and Policies of the NZCPS.

3. General Comments on the RIS and NES Marine Aquaculture

The NZCA acknowledges the need for the NES Marine Aquaculture given the looming bottle neck of existing Coastal Permits requiring to be re-consented in the near future. As the New Zealand aquaculture industry grows and diversifies, the potential adverse effects of aquaculture on marine mammals, seabirds, and other aspects of marine biodiversity may become more significant.

The NZCA strongly supports the emphasis being placed on the mandatory requirement of on-farm Biosecurity Management Plans, and the associated compliance and enforcement provisions. We also support the requirement that they are kept up to date and current. Consistency of approach to marine biosecurity across New Zealand is vital and the pathways management concept reinforces this thinking.

The NZCA notes that under the NES, the replacement consents will become non-notified restricted-discretionary consents with limited discretion, within environmental limits. There are two main concerns with this approach:

• the removal of the New Zealand public’s ability to submit on applications to replace consents even though these farms occupy public space and essentially have an exclusive right, for the term of the consent, over that public space.
• the limits of discretion associated with the restricted- discretionary consent is not supported by any national environmental bottom lines and standards. This is essential for an NES, as without environmental bottom lines and standards, national consistency in approach sought by the “national standard” will not be achieved. Regional Coastal Policy statements will continue to attempt to set environmental bottom lines and standards and these will be haphazardly drawn up and are likely to continue to be different for every region of New Zealand, as they are now. This is viewed as a major flaw with the proposed NES.  Detailed environmental bottom lines and standards are needed, such as water quality parameters, minimum water flow rates where appropriate, defined sedimentation rates over time, indicator species health, etc.

The NZCA is of the view the proposed NES places little importance on:

• Policy 21 - enhancement of water quality,
• Policy 22- sedimentation; and,
• Policy 23 – discharge of contaminants in the NZCPS.

In fact, it is worryingly silent on these matters. It provides no guidance for managing the significant adverse effects that can occur due to marine farming activity on water quality and sedimentation, or from the discharge of contaminants. These are of course some of the important matters for which environmental bottom lines and standards are required to be spelt out in the NES. Without environmental bottom lines and standards that must be achieved, Policies 11 (biodiversity), 13 (preservation of natural character), 14 (restoration of natural character) and 15 (natural features and natural landscapes) of the NZCPS will be much more difficult to implement.

The document provides some discussion on the status of marine farming activities, arguing many Regional Coastal Plans have discretionary and non-complying Rules which causes uncertainty for marine farm operators. The NZCA’s view is that the discretionary and non-complying status assigned for marine farming activity at some locations reflects a precautionary approach, as neither the marine environment or the effects of the farming activity on these environments was not well understood at the time of Plan writing. Thus, this has been a responsible, reasonable and logical approach.  The move to have the status of most marine farms as restricted -discretionary or controlled is concerning, as although more is now known about some marine ecosystems, the information may not be at a level to make informed decisions about the effects of marine farms on those ecosystems.

Public input to coastal management is to be largely restricted to the Plan development stage under the proposed NES. The NZCA does not support this aspect of the NES. Plans are not usually written with absolute certainty around the adverse effects of activities such as marine farming, as information is incomplete. It is often at the Resource Consent stage that more detailed information is provided about the marine environment, including the ecosystem, and the level of adverse effects is quantified. Members of the public need to retain the right to have a say at the Resource Consent stage, given the marine environment is public space. Many local spaces in the marine environment have special value for local people and have been widely utilised by the public over long periods of time.  While the NZCA understands the commercial imperatives for marine farming, the proposal to have non-notified Resource Consent processes is unfair and inequitable. Public input to Resource Consents needs to be retained as far as possible. The public have much to offer about places within the marine environment in terms of the values and historic use of such areas.

Options Analysis:

The NZCA notes the preferred option is an NES with complementary measures. The NZCA understands the logic of the arguments supporting this option, but has some reservations about the detail of the proposed NES.

4. Specific Comments on The Proposed NES Marine Aquaculture

The NZCA notes the key driver of the proposed NES is to provide for re-consenting of existing consents, species changes for existing farms, and Biosecurity Management Plans. We note it does not provide for the growth of existing space or new space.

Specific Comments:

Re-consenting

Clause 88 – proposes a restricted discretionary status and non- notification of most marine faming consents and Councils could make the status controlled. Either way – the public are likely to be shut out of process, as discussed above. We do not support this approach, especially if there are known adverse effects of a particular farm on the marine environment.

Clause 89 – the definition of affected parties is too narrow – confined to Tangata Whenua with Statutory Acknowledgement. The importance of public input is discussed above.

Clause 90 – limit of discretion is far too narrow in terms of significant adverse effects and adverse effects on the marine ecosystem. Marine ecosystems are more than seabed features, marine mammals and sea birds.

Clause 91 – defines other effects to be considered if supplementary feeding is to be used, which is good BUT the NES does not set any standards to be met, for instance, in terms of the effects on water quality, the benthic environment under farms and appropriate mixing zones. 

Clause 93 – the management of cumulative effects of multiple farms where there is no zoning should be spelt out in the NES. This however is difficult given the NES has no quantitative environmental bottom lines and standards. The management of cumulative effects of multiple farms should have a time/trend component. And, this should be reflected in the standards.

Future Planning.

Clause 95 – the proposed discretionary Rule for “inappropriate areas” for marine farming in a Regional Coastal Plan is not a high enough status of activity – non-complying and prohibited should be used for such areas. The activity status for “inappropriate areas” should be set at the Plan stage at a more stringent activity status than discretionary. We also note the NES does not state if an activity status higher than restricted-discretionary requires a notified consent. It should spell this out clearly so the New Zealand public know there is an opportunity for input where marine farming is being applied for in “inappropriate areas”.

Biosecurity Plans and Pathway Management Plans

NZCA strongly supports this initiative. On-farm biosecurity and the “bigger picture” Pathway Management Plans are essential for a sustainable industry and preservation and protection of marine ecosystems. 

5. Summary of concerns about the NES Marine Aquaculture:

The NES needs to more closely reflect and adhere to the NZCPS 2010 and there should be no weakening of the Objectives and Policies in the NZCPS 2010.

The NES must include a full suite of environmental bottom lines and standards. It lacks integrity without clearly defined bottom lines and standards.

Public input at the Plan development stage AND the Resource Consent stage is important and should be retained as:

• Marine farms occupy public space
• The public has a view and adds value to the Resource Consent decision making process.

6. Further Consultation

The NZCA would welcome the opportunity to meet with MPI or MFE officials to further discuss any of the matters raised in this submission. 

Background to the NZCA

The New Zealand Conservation Authority was established by the Conservation Act 1987, with members appointed by the Minister of Conservation. It has a range of functions, but primarily acts as an independent conservation advisor to the Minister and the Director-General of Conservation.

The NZCA’s role has, in the past, been seen to be largely as a strategic advisor, but it has a growing role as an objective advocate on matters of national significance and interest in the conservation arena and, more recently, as a “board” to provide high quality independent advice to the Department of Conservation on its strategic direction and performance.

Current membership of the New Zealand Conservation Authority

In consultation with the Minister for Maori Development:

• Mita Harris of Kerikeri
• Rauru Kirikiri of Wellington

In consultation with the Minister of Tourism:

• Warren Parker of Rotorua

In consultation with the Minister of Local Government:

• Jan Riddell of Winton

On the nomination of Te Runanga o Ngai Tahu:

• Sandra Cook of Otautau

On the recommendation of Royal Forest and Bird Protection Society of New Zealand:

• Gerry McSweeney of South Westland and Arthurs Pass

On the recommendation of Federated Mountain Clubs of New Zealand:

• David Barnes of Lower Hutt

On the recommendation of the Royal Society of New Zealand:

• Mick Clout of Auckland

From public nominations:

• Mark Brough of Aria
• Mark Christensen of Christchurch
• Robyn Jebson of Okarito
• Tony Lepper of Alexandra