Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

NO

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

Regulatory Impact Statement: Extending the duration of existing marine farm consents, Ministry for Primary Industries, 4 April 2024.

A Regulatory Impact Statement was presented to Cabinet with the Cabinet paper on this policy (April 2024).

The Regulatory Impact Statement will be proactively released and available via the following links, subsequent to introduction to the House, given their Budget-sensitive classification.

https://environment.govt.nz/what-government-is-doing/cabinet-papers-and-regulatory-impact-statements/

http://www.treasury.govt.nz/publications/informationreleases/ris

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

NO

The Regulatory Impact Statement (RIS) identified above did not meet the threshold for receiving an independent opinion on the quality of the RIS from the RIA Team based in the Treasury.

The RIS was assessed by a joint Ministry for the Environment and Ministry for Primary Industries RIA panel.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

YES

The Regulatory Impact Statement was completed prior to:

-       the inclusion of an optional review of consent conditions in the Bill; and

-       the change from a 25-year extension of consent duration to a 20-year extension, but not beyond 2050.

Officials consider that a consent conditions review will improve all options included in the Regulatory Impact Statement. A consent conditions review provides some mitigation to concerns raised by councils, environmental-non-governmental organisations, Te Ohu Kaimoana and iwi that an extension of consent duration may perpetuate outdated consent conditions to the detriment of the environment.

The optional review of consent conditions allows for consent authorities to investigate, review, add or change consent conditions on any resource consent that is extended by the Bill. It is a one-off bespoke conditions review that is optional for councils and has these features:

·         must be initiated within 24 months of the extension;

·         applies only to consents extended in duration under this legislation;

·         must not amend the duration, species or area covered by the consent;

·         is not cost-recoverable by the council;

·         can only proceed with the concurrence of the Ministry for Primary Industries’ Director-General, which is an agreement at the start of the review that the review can proceed with an agreed scope;

·         does not remove the existing default mechanisms under the RMA for reviewing conditions of consents;

·         follows a streamlined process with no ability to hold hearings;

·         allows for notification (with ability to make a submission) to iwi organisations (this includes iwi authorities as defined in the RMA, post-settlement governance entities, Ngā Hapū o Ngāti Porou, and hapū and iwi that are party to Mana Whakahono ā Rohe under the RMA), and rights and title holders under the Marine and Coastal Area (Takutai Moana) Act 2011 where the marine farm consent is within their rohe; and

·         limits appeal rights on the review outcomes to the consent holder and any party who was notified of the review and made a submission.

Officials consider that the inclusion of a cap on the extension to 31 December 2050 will partially mitigate concerns raised that an extension will result in substantial delays in reconsenting processes without the ability to consider environmental changes over this time.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

(a) The Regulatory Impact Statement was limited in its analysis of costs and benefits based on the information and data available. In terms of direct benefits to the aquaculture industry, the Bill will reduce the time and expense of replacement consenting processes and limit subsequent court appeals for consent holders over a 20-year period. Officials estimate that reconsenting costs range from $20,000 to over $100,000 depending on the scale, location, and number of consented activities (additional costs apply if a hearing is required or when appeals are lodged). Officials estimate the sector could be facing consenting costs of over $6 million for marine farm consents due to expire by the end of 2024. Industry have indicated that the average time for reconsenting nationally is six months. The Bill is expected to reduce these costs and provide flow-on benefits including increased industry confidence and investment in assets, innovation and improved productivity.

There will be a one-off cost to consent authorities to update their records to implement the extension as councils must update the expiry date on consents extended under the Bill. If consent authorities opt to review consent conditions, they will bear the costs of the review. The costs and benefits of reviews has not been estimated.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be affected by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

The Ministry for Primary Industries did not identify any inconsistencies between the Bill and New Zealand’s international obligations.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Officials undertook targeted engagement over a week with Treaty partners including Post-Settlement Governance Entities and Iwi Aquaculture Organisations on the proposed policy to extend the duration of marine farm consents. Iwi concerns regarding implications for the rights and interests of Māori were summarised in the advice provided to Cabinet and reflected in the Treaty Impact Analysis (as part of the Regulatory Impact Statement). Te Arawhiti has been consulted in the development of the policy and the Bill.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

An assessment against the Bill of Rights Act 1990 is in progress. Advice provided to the Attorney-General by the Ministry of Justice is expected to be available on the Ministry of Justice’s website upon introduction of the Bill. Such advice, or reports, will be accessible on the Ministry’s website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

NO

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

(b) The Bill creates rights of appeal for the review of extended consent conditions. This includes rights of appeal for the consent holder and all notified groups that submit on the review of consent conditions on extended consents. 

The Bill does not remove the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal). However, groups may claim that by delaying reconsenting by 20 years, the Crown is bypassing default reconsenting processes, including rights of appeal.

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice was consulted in the preparation of the Cabinet Legislation paper. The Ministry of Justice noted the importance to natural justice of affected people being given the opportunity to appeal decisions. The Ministry noted that when appeal rights are narrowed, affected people may seek to use other legal avenues to enable the courts to consider their concerns. This can be as time-consuming and resource intensive as an appeal without achieving the benefits of an appeal such as confirmation, modification or reversal of the original decision and/or clarification of the law. This feedback was included in the Cabinet Legislation paper.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

NO

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

The Ministry for Primary Industries spent one week in February 2024 consulting with aquaculture industry representatives, consenting authorities, Treaty partners including Iwi Aquaculture Organisations and Post-Settlement Governance Entities, Te Ohu Kaimoana, and environmental non-governmental organisations. The proposal consulted on was a 25-year extension to marine farm consents in the coastal marine area. Later, the proposal was amended to a 20-year extension (not beyond 2050), with an optional conditions review.

A summary of feedback received during this engagement is in the Regulatory Impact Statement.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

NO

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

NO

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

NO

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

The Bill provides new decision-making powers to the Director-General of the Ministry for Primary Industries through the concurrence role on the review of conditions. The Director-General of the Ministry for Primary Industries will have the power to decide whether a review of conditions for extended consents is undertaken and agree to its scope, for a 24-month window from the Bill’s commencement date within which reviews are enabled.

The concurrence of the Director General of the Ministry for Primary Industries provides a check that reviews of consent conditions are consistent with the purpose specified in the Bill.

The purpose specified in the Bill is to allow councils to review, add or amend consent conditions to better promote the sustainable management of natural and physical resources in relation to the marine farm without preventing the consent holder from continuing to carry out the consented aquaculture activity.