Heatley Phil: Aquaculture Reform Bill — Second Reading Instructions to Committee In Committee 
Heatley Phil: Aquaculture Reform Bill — Second Reading Instructions to Committee In Committee 
[Volume:622;Page:17706] 
PHIL HEATLEY (National—Whangarei) 
: 
 I will put six amendments to the Committee this afternoon on Part 1 that will deal with three broad areas. One area is to do with the degree of interference that the Minister of Conservation can have in the establishment of marine-farming space. The second major area is around the right of first refusal process which we can see unwinding due to unnecessary hoops that incumbent marine farmers will have to jump through. The third general area is to do with the ability of the Minister to revisit treaty settlements. I will put those amendments to members and I will take three calls to talk about them. 
The first amendment is to new section 165I(1)(b)(i) inserted by clause 21 to omit the word “necessary” and substitute the word “essential”. Under this proposed legislation incumbent marine farmers can get a right of first refusal to continue marine farming in a space if they have been good tenants. But if they have been there for 20 years they are an incumbent they have spent a fortune on establishing their business on and off the water they have employed staff and have 10 or 20 working for them they have done a good job in the industry they have been good environmentally and they have undertaken good industry practice it is absurd that after 20 years they would have to move out of that space and that someone else—another marine farmer—could come and farm in that space in their place. 
Why would one legislate for that? That is absolutely absurd. An incumbent should have a right of first refusal to continue in that space. That is all to do with investment. Why would marine farmers continue to invest if they knew that they would be shifted out after 20 years and that some competitor—a fly-by-nighter—would take their space? 
So National is saying that right of first refusal is a good idea. But we know that under this bill—it states so in clause 165I—regional councils can if “necessary in the circumstances of the region” not allow an incumbent marine farmer to stay there and allow a competitor to come in and take the farmer’s space investment staff and everything. National is saying that the word “necessary” is not a high enough test. If regional councils think they can do that just if it is “necessary” then that word is far too broad to allow them to do that. National will substitute the word “essential”. If regional councils see something as essential for the benefit of the region or for its circumstances then they can re-tender the space—not if they see it as necessary but as essential. That raises the bar. Regional councils will have to give a very good reason indeed before they can kick out an incumbent and bring a fly-by-nighter into that space. I will move that amendment and I trust that members will vote for it. 
The second amendment also regarding incumbency is to remove altogether clause 165ZF(1)(c) inserted by clause 21 which requires marine farmers to marine farm in an area under industry good practice. That sounds fine on the surface. I am sure people listening in would think that it seems fair that marine farmers should undergo industry good practice. The problem with it is that no one has defined what “industry good practice” is. It is vague and subjective. Not only that but the technology in marine farming is moving so swiftly with such investment in technology that “good practice” will change over time. So saying to regional councils that they can decline to renew a consent because a marine farmer is not following industry good practice is as I said too vague too subjective and too subject to shifts in technology. If industry good practice were defined that would be fair enough but in our view we should omit that clause. 
Clause 165ZF provides that if a marine farmer is not a good tenant he or she should not get a renewal and lays out what criteria the Minister or the regional council will look at in regard to breaches that have occurred while the tenant has been marine farming for a period of 20-odd years. The council will look at: “(a) the number of any breaches that have occurred; and (b) the seriousness of the breach; and (c) how recently the breach occurred; and (d) the subsequent behaviour of the applicant after enforcement action.” That clause should be omitted not because we celebrate breaches to a consent or bad behaviour by marine farmers—in particular environmentally—but if a marine farmer is farming in a space and does not uphold the terms of his or her consent so that there is a breach and environmental damage then the farmer should be nailed at the time. If it is as serious and as continuous as that it has such an effect on the neighbours—whether they are recreational fishers boaties other marine farmers or commercial fishers—the farmer should be nailed and pulled up on it at the time. Councils should not wait until consents have run out and then say to farmers that they will not renew them because of something that happened back in the 1970s. Those farmers should have been nailed at the time. So we will move an amendment providing that that clause be omitted. 
So those are the amendments I have spoken to. They are all about certainty for the industry. We say that regional councils need to have right of first refusal in their minds and there can be no right of first refusal for a marine farmer only if it is not just “necessary” but “essential” for the region for that to be the case; that “industry good practice” is far too vague and subjective will not keep up with technology and should not be a barrier to the right of first refusal; and that if a marine farmer is under constant serious breach of his or her consent he or she should be nailed at the time rather than there being something that comes up years and years later when a renewal is sought. 
There might even be a situation where a marine farmer who had been warned because of a breach of his or her consent had no idea that the regional council viewed it so seriously until that farmer came to a renewal process and was told that he or she would not even be allowed to continue even though he or she had invested millions. If the farmer had been told at the time when the breach occurred that it was so serious that the council was thinking of taking away the right to marine farm that would be better. The farmer could clean up his or her act it would be better for the environment it would be better for the neighbours and it would be better for the marine farmer and his or her staff. 
But to suggest that years and years later a regional council will haul up a history that it never policed at the time and suddenly say to a marine farmer that his or her investment ends there and it cannot continue is absurd. People wanting to follow good environmental practice would always pull up a breach at the time and deal with it. Marine farmers would be given the opportunity to clean up their acts so to speak. They would not be pursued after that time.