Fisheries Amendment Act 2011

1: Title
This Act is the Fisheries Amendment Act 2011.
2: Commencement
This Act comes into force on 1 October 2011.
3: Principal Act amended
This Act amends the Fisheries Act 1996 2011-10-01 Fisheries Act 1996
4: Interpretation
1: Section 2(1) aquaculture management area
2: Section 2(1) regional council
a: has the same meaning as in section 5 of the Local Government Act 2002; and
b: includes a unitary authority within the meaning of that Act .
5: Application of Resource Management Act 1991
1: Section 6
2: Subsection (1) does not—
a: prevent a regional council from taking into account the effects of aquaculture activities on fishing or fisheries resources when carrying out its functions under section 30(1)(d) of the Resource Management Act 1991; or
b: prevent any coastal permit authorising aquaculture activities from being granted.
2: The definition of fishing sector section 6(3)
6: Heading to subpart 1 of Part 9A amended
The heading to subpart 1 aquaculture management areas coastal permits
7: Interpretation
1: Section 186C determination reservation
2: Section 186C application for a coastal permit
a: means an application for a coastal permit under section 88 of the Resource Management Act 1991; and
b: includes—
i: an application for a change or cancellation of condition of a coastal permit under section 127 of that Act; and
ii: a notice of intention to review conditions under section 128 of that Act coastal permit determination regional council reservation .
8: New sections 186D to 186GB substituted
Sections 186D to 186G
186D: Chief executive may seek information or consult certain persons for purposes of making aquaculture decision
1: After receiving a copy of an application for a coastal permit forwarded by a regional council to the chief executive under section 107F
a: the applicant for or the holder of the coastal permit:
b: any fisher whose interests may be affected:
c: persons and organisations that the chief executive considers represent the classes of persons who have customary, commercial, or recreational fishing interests that may be affected by the granting of the coastal permit or change to, or cancellation of, the conditions of the coastal permit.
2: For the purposes of subsection (1)
a: may set a date by which information must be provided and may grant 1 or more extensions of that date if he or she considers it necessary to do so; and
b: is not required to consider or take into account any information received after that date or extended date (as the case may be).
3: Before making an aquaculture decision under section 186E subsection (1)
4: For the purposes of subsection (3)
a: may set a date by which the consultation is to be completed and may grant 1 or more extensions of that date if he or she considers it necessary to do so; and
b: is not required to consider or take into account any submissions made for the purposes of the consultation received after that date or extended date (as the case may be).
186E: Chief executive to make aquaculture decision
1: Within 20 working days after receiving a request for an aquaculture decision from a regional council under section 114 of the Resource Management Act 1991, the chief executive must—
a: make a determination; or
b: make a reservation; or
c: make 1 or more determinations or reservations or both in relation to different parts of the area to which the request relates.
2: One or both of the following periods are excluded from the period of 20 working days specified in subsection (1)
a: a period during which the chief executive is undertaking consultation under section 186D(3)
b: a period during which the chief executive is, in compliance with section 186F(1)
3: In making an aquaculture decision, the chief executive must have regard to—
a: information held by the Ministry of Fisheries; and
b: information supplied, or submissions made, to the chief executive under section 186D(1) or (3)
c: information that is forwarded by the regional council; and
d: any other information that the chief executive has requested and obtained.
4: For the purposes of this section, the chief executive is not required to consider or take into account any information received after receiving the request for an aquaculture decision.
5: Subsection (4) section 186D(2) and (4)
186F: Order in which requests for aquaculture decisions to be processed
1: The chief executive must make aquaculture decisions in the same order in which the requests for the decisions are received.
2: For the purposes of subsection (1)
3: If 2 or more requests for aquaculture decisions are received at the same time from the same regional council, the chief executive must make aquaculture decisions in the order specified by the regional council under section 114(5)
4: For the purposes of subsections (1) to (3)
5: The chief executive may make aquaculture decisions in a different order from that required by subsections (1) to (3)
186G: Provision of fisheries information relating to stock
For the purposes of this subpart and subpart 4, the chief executive may, by notice in the Gazette
186GA: Aquaculture decisions must not be made in relation to certain areas
The chief executive must not make an aquaculture decision in relation to—
a: an area—
i: that is or was subject to a lease, licence, marine farming permit, or spat catching permit that was deemed under section 10, 20, or 21 of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 to be a coastal permit granted under the Resource Management Act 1991; and
ii: where, since the date on which the lease, licence, marine farming permit, or spat catching permit was deemed to be a coastal permit, aquaculture activities have been continuously authorised under that permit or another permit granted under the Resource Management Act 1991; or
b: an area that is or was subject to the coastal permit referred to in section 20A
c: an area that is in a Gazetted
d: an area that is subject to a coastal permit to which section 114 (6)
186GB: Matters to be considered before aquaculture decision made
1: In making an aquaculture decision, the chief executive must have regard only to the following matters:
a: the location of the area that the coastal permit relates to in relation to areas in which fishing is carried out:
b: the likely effect of the aquaculture activities in the area that the coastal permit relates to on fishing of any fishery, including the proportion of any fishery likely to become affected:
c: the degree to which the aquaculture activities in the area that the coastal permit relates to will lead to the exclusion of fishing:
d: the extent to which fishing for a species in the area that the coastal permit relates to can be carried out in other areas:
e: the extent to which the occupation of the coastal marine area authorised by the coastal permit will increase the cost of fishing:
f: the cumulative effect on fishing of any authorised aquaculture activities, including any structures authorised before the introduction of any relevant stock to the quota management system.
2: If a pre-request aquaculture agreement has been registered under section 186ZH in relation to the area that the coastal permit relates to, the chief executive must not have regard to the undue adverse effects on commercial fishing in respect of any stocks covered by the pre-request aquaculture agreement when having regard to the matters specified in subsection (1)
9: New section 186H substituted
Section 186H
186H: Requirements for aquaculture decision
1: An aquaculture decision must—
a: be in writing; and
b: define the areas that are subject to the decision; and
c: provide reasons for the decision; and
d: be notified to—
i: the regional council that requested the decision; and
ii: the holder of the coastal permit that the decision relates to; and
iii: the persons and organisations who supplied information to the chief executive under section 186D(1)
iv: the persons and organisations consulted by the chief executive under section 186D(3)
2: The fact that an aquaculture decision has been made and where a copy can be obtained must be—
a: notified in the Gazette
b: made accessible via the Internet.
3: If the chief executive makes a determination, the determination may—
a: specify any condition of the coastal permit that is material to the decision and that relates to the character, intensity, or scale of the aquaculture activities; and
b: state that the condition may not be changed or cancelled until the chief executive makes a further aquaculture decision in relation to the area affected by the change or cancellation.
4: If the chief executive makes a reservation, the reservation must also include—
a: whether the reservation relates to customary, recreational, or commercial fishing, or a combination of them; and
b: if the reservation relates to commercial fishing, the stocks and areas concerned, specifying any stocks subject to the quota management system and any other stock not subject to the quota management system; and
c: any other matters required by regulations to be included.
5: The chief executive must include, in the notification under subsection (1)(d)
a: the information specified in subsections (1)(b) and (c), (3), and (4)
b: information about where a copy of the determination or reservation can be obtained.
10: Section 186I repealed
Section 186I
11: Judicial review of aquaculture decision
1: Section 186J 3 months after the public notification of the decision 30 working days after the notification of the decision under section 186H(2)(a)
2: Section 186J
2: The chief executive must notify the relevant regional council of—
a: any proceedings brought to seek judicial review of an aquaculture decision; and
b: the result of those proceedings, including any appeals.
12: Heading to subpart 4
The heading to subpart 4 and compensation declarations
13: New section 186ZD substituted
Section 186ZD
186ZD: Interpretation
In this subpart, unless the context otherwise requires,— aquaculture agreement compensation declaration sections 186ZN and 186ZQ pre-request aquaculture agreement section 186ZM
14: New section 186ZE substituted
Section 186ZE
186ZE: Registers of aquaculture agreements, pre-request aquaculture agreements, and compensation declarations
1: The chief executive must keep—
a: a register of aquaculture agreements; and
b: a register of pre-request aquaculture agreements; and
c: a register of compensation declarations.
2: Sections 186K(2) to (6), 186L, and 186M apply, with all necessary modifications, to each register.
15: New section 186ZF substituted
Section 186ZF
186ZF: Quota owners whose consent is necessary for aquaculture agreement
1: An aquaculture agreement lodged with the chief executive for registration must—
a: contain the consents required under subsection (2)
b: be accompanied by information showing that each registered quota owner has had a reasonable opportunity to consider whether to consent.
2: The consents required are, for each stock specified in a reservation in relation to commercial fishing for stocks subject to the quota management system,—
a: the consents of the registered quota owners of the stock holding not less than 75% of the quota shares for the stock; and
b: to the extent that the consents referred to in paragraph (a)
3: After an aquaculture agreement is registered, no person whose consent is contained in the agreement may revoke the consent, but the consent and the aquaculture agreement itself come to an end when the coastal permit to which they relate comes to an end, unless the coastal permit is replaced by a new permit in accordance with section 165ZH of the Resource Management Act 1991.
4: For the purposes of this section, subsection (2) section 186H(2)(a)
16: High Court may consent to aquaculture agreement on behalf of non-consenting persons
1: Section 186ZG(1) (a), (b), or (c)
2: Section 186ZG(2)
17: Lodging aquaculture agreements with chief executive for registration
Section 186ZH(3)(a) fisher quota owner
18: New section 186ZHA inserted
The following section is inserted after section 186ZH
186ZHA: Lodging compensation declarations with chief executive for registration
1: If a compensation declaration lodged with the chief executive for registration does not comply with this subpart, the chief executive must—
a: return the declaration to the person who lodged it or another person whom the chief executive considers is entitled to receive it; and
b: provide reasons to the person to whom the declaration is returned as to why the declaration has not been registered.
2: If a compensation declaration lodged with the chief executive for registration complies with this subpart, the chief executive must—
a: register the declaration in the register of compensation declarations kept by the chief executive; and
b: notify the person who lodged it, or another person whom the chief executive considers is entitled to receive notification, that the declaration has been registered.
3: In deciding whether to register a compensation declaration, the chief executive is entitled to rely on the information in the declaration as sufficient evidence that compensation has been provided to quota owners in accordance with sections 186ZN and 186ZQ
19: Period within which aquaculture agreements must be lodged for registration
1: Section 186ZI(1)(a) ; and and be accompanied by the prescribed fee; and
2: Section 186ZI(1)
b: within 6 months after the notification of the reservation under section 186H(2)(a)
3: Section 186ZI(2)(a) consent of all fishers whose consent is consents
4: Section 186ZI(4) ; and
c: the period beginning with the day on which proceedings are brought seeking judicial review of the chief executive's aquaculture decision and ending on the day on which the proceedings are finally disposed of.
5: Section 186ZI(5)
20: New section 186ZIA inserted
The following section is inserted after section 186ZI
186ZIA: Period within which compensation declaration must be lodged for registration
1: A compensation declaration must be lodged with the chief executive for registration—
a: on the approved form and be accompanied by the prescribed fees; and
b: within 6 months after the date of the notification of the reservation under section 186H(2)(a)
2: However, the chief executive may give a person a further 3 months to lodge a compensation declaration if the chief executive is satisfied that—
a: the person has taken reasonable steps to provide compensation to quota owners in accordance with sections 186ZN and 186ZQ
b: the person requires further time to provide the compensation.
3: An extension of time may be granted under subsection (2) only—
a: once to a person in respect of aquaculture activities in the same area; and
b: if the person concerned applies in writing to the chief executive not later than 1 month before the expiry of the 6-month period specified in subsection (1)(b).
4: The period of 6 months referred to in subsection (1)(b)
a: any extension of time granted under subsection (2); and
b: the period beginning on the day on which arbitration proceedings are commenced and ending on the day on which the arbitrator makes a determination under section 186ZP(5) section 186ZP(6)(a) or (b)
c: the period beginning with the day on which proceedings are brought seeking judicial review of the chief executive's aquaculture decision and ending on the day on which the proceedings are finally disposed of.
21: No proceedings to be taken against chief executive
Section 186ZJ(1) or section 186ZI , 186ZHA 186ZIA 186ZM
22: Chief executive must notify regional council of certain matters
1: Section 186ZK(2)(c) or section 186ZIA
2: Section 186ZK(2)(d) or compensation declarations aquaculture agreements
3: Section 186ZK(2)(d) or section 186ZIA
4: Section 186ZK(2)(e) or compensation declarations aquaculture agreements
5: Section 186ZK(2)(f) or compensation declarations aquaculture agreements
6: Section 186ZK(2)
g: the name of the person who made a compensation declaration registered by the chief executive and the area the declaration relates to.
23: Memorials
1: Section 186ZL
1: Subsection (2) applies if the chief executive makes a reservation in relation to commercial fishing for stocks subject to the quota management system under section 186E
2: Section 186ZL(2) on the date of the notification under section 186H(2)(a)
3: Section 186ZL(3)(a) in relation to commercial fishing for stocks subject to the quota management system reservation
4: Section 186ZL(3)(b) , or compensation declaration, aquaculture agreement
5: Section 186ZL(3)(c) or a declaration agreement
6: Section 186ZL(3)(c) the allocation of space in the area subject to the reservation for aquaculture activities aquaculture activities being undertaken in the area subject to the reservation
7: Section 186ZL
4: A memorial recorded in a register under subsection (2) must be cancelled on the expiry of the period specified in section 186ZI(1)(b) 186ZIA(1)(b) 186ZIA(4)
8: Section 186ZL(5)
24: New headings and sections 186ZM to 186ZR inserted
The following heading and section are inserted after section 186ZL Pre-request aquaculture agreements
186ZM: Pre-request aquaculture agreements
1: A person who has applied for a coastal permit to undertake aquaculture activities in the coastal marine area may, before a regional council makes a request under section 114 of the Resource Management Act 1991 for an aquaculture decision in relation to the coastal permit, lodge a pre-request aquaculture agreement in relation to the area covered by the application with the chief executive for registration.
2: The pre-request aquaculture agreement must be in the approved form, be accompanied by the prescribed fee, and—
a: relate to 1 or more stocks subject to the quota management system; and
b: contain the consents required under subsection (3) to the exclusion of the stock from consideration by the chief executive when making an aquaculture decision in relation to the area covered by the application if the coastal permit is granted; and
c: be accompanied by information showing that each registered quota owner had a reasonable opportunity to consider whether to consent.
3: A pre-request aquaculture agreement must contain, as at 5 pm on the day before the date on which the agreement is lodged for registration, the consent, for each stock included in the agreement, of the registered quota owners of the stock holding not less than 75% of the quota shares for the stock.
4: A person who wishes to lodge a pre-request aquaculture agreement with the chief executive for registration must, at least 20 working days before lodging the agreement, give notice of the person’s intention to lodge the agreement—
a: to each quota owner of stock that is included in the agreement; and
b: by a notice published in a newspaper circulating in the locality of the proposed coastal permit the agreement relates to.
5: After a pre-request aquaculture agreement is registered, no person whose consent is contained in the agreement may revoke the consent, but the consent and the aquaculture agreement itself come to an end—
a: if the application for the coastal permit they relate to is declined or withdrawn; or
b: if the application is granted, when the coastal permit to which they relate comes to an end, unless the coastal permit is replaced by a new permit in accordance with section 165ZH of the Resource Management Act 1991.
6: Sections 186ZH and 186ZK apply with any necessary modifications as if references to an aquaculture agreement were references to a pre-request aquaculture agreement and references to section 186ZF section 186ZM
7: A quota holder for a stock, which is the subject of a registered pre-request aquaculture agreement, who did not consent to the agreement is entitled to receive from the applicant in proportion to the quota holder's shareholding of the stock equivalent entitlements and benefits (whether financial or otherwise), to those that were agreed between the applicant and the persons who consented to the agreement.
8: The High Court may make such orders or give such directions as it thinks fit for the purposes of subsection (7).
9: An order or direction under subsection (8) must not prevent or delay the chief executive making an aquaculture decision. Compensation
186ZN: Compensation to be provided by coastal permit holder to affected quota owners if aquaculture agreement not lodged
1: This section applies if—
a: the chief executive has, in relation to a coastal permit, made a reservation in relation to commercial fishing of quota management stock; and
b: the holder of the coastal permit has not lodged an aquaculture agreement in respect of the stock before the expiry of the period specified in section 186ZI(1)(b) section 186ZI(2)
2: If the holder of the permit wishes to undertake aquaculture activities authorised by the permit, the holder must provide to each affected quota owner compensation for the loss of value of the owner's affected quota as determined by an arbitrator appointed in accordance with section 186ZO
3: In subsection (2), quota owner Gazette section 186H(2)(a)
186ZO: Submission to arbitration
1: The holder of a coastal permit may submit to an arbitrator a request to determine the amount of compensation to be provided under section 186ZN
2: For the purposes of the arbitration, an arbitrator is to be appointed—
a: by agreement between the holder of the coastal permit and all the quota owners; but
b: if they cannot agree, then by the President of the Arbitrators and Mediators Institute of New Zealand Incorporated or a person authorised by the President.
186ZP: Arbitrator to determine preliminary question about economic value of proposed aquaculture activities
1: Before determining the compensation to be provided to quota owners or a class of quota owners, an arbitrator must first determine the question in subsection (2).
2: The question is: which of the following is of materially greater economic value to New Zealand:
a: the proposed aquaculture activities; or
b: the fishing in relation to which the chief executive has made a reservation.
3: The arbitrator must determine the question on the basis of data and analysis provided by—
a: the holder of the coastal permit; and
b: the quota owners concerned.
4: In determining the question, the arbitrator must follow the methodology specified in any regulations made under section 186ZR(1)(a)
5: The arbitrator must determine the compensation payable to quota owners if the arbitrator determines the question in favour of the proposed aquaculture activities.
6: The arbitrator must not determine the compensation payable to quota owners if the arbitrator—
a: determines the question in favour of the fishing in relation to which the chief executive has made a reservation; or
b: decides that the question cannot be determined one way or the other.
186ZQ: Determination of compensation
1: In determining the compensation to be awarded to quota owners, an arbitrator must follow the methodology specified in any regulations made under section 186ZR(1)(b)
2: For the purposes of section 186ZR(3)(a)(ii)
3: The level of compensation provided under subsection (1) must be the same for each quota share for each quota stock.
4: The compensation awarded under subsection (1) must—
a: be provided to the persons holding quota for the fish stock subject to the reservation; and
b: be provided only to quota owners as defined in section 186ZN(3)
5: If, after the arbitrator has made an award, the holder of the coastal permit decides not to proceed with the aquaculture activities, then the holder of the permit must pay the quota owners' reasonable costs and expenses, as determined by the arbitrator, for participating in the arbitration.
186ZR: Regulations relating to compensation
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing—
a: a methodology for determining the question in section 186ZP(2)
b: for the purposes of section 186ZQ
2: The methodology prescribed under subsection (1)(a) must set out the type of data and analysis required for determining whether the proposed aquaculture activities or the fishing in respect of which the chief executive has made a reservation is of greater economic value to New Zealand.
3: The methodology prescribed under subsection (1)(b) must—
a: provide for compensation to be calculated in proportion to the impact on fishing, including—
i: increased fishing costs and any consequential disruption costs as a result of the proposed aquaculture activities, including a sum by way of solatium to fishing interests for any adjustments required as a result of the impact of the aquaculture activities; and
ii: any complementary uses that might exist for the site in accordance with any submissions made under section 186ZQ(2)
iii: the loss in value of affected quota, but only in relation to that part of the relevant average annual catch that is estimated would be reduced if the proposed aquaculture activities were to proceed; and
b: provide for the calculation of compensation to be based on the size of the affected quota holding and the corresponding loss of quota value, including by reference to any recent transfers of the quota or associated annual catch entitlement.
25: General regulations
Section 297(1)
ma: without limiting paragraph (m), prescribing fees and charges payable under this Act in respect of the functions of the chief executive in relation to aquaculture activities or proposed aquaculture activities in the coastal marine area: .
26: Requirements applying generally to applications and requests under this Act
Section 305B(3) or a pre-request aquaculture agreement for registration under section 186ZM section 186ZH
27: Amendments to Fisheries Regulations
1: The Fisheries (Commercial Fishing) Regulations 2001 Schedule 1
2: The Fisheries (Registers) Regulations 2001 Schedule 2 2011-10-01 Fisheries (Commercial Fishing) Regulations 2001 Fisheries (Registers) Regulations 2001