Hansard and Journals

Hansard (debates)

Content provider


Information
Date: 14 December 2004
Related documents
Parliamentary Debates (Hansard) for Tuesday, 14 December 2004 Aquaculture Reform Bill

Aquaculture Reform Bill — Second Reading, Instructions to Committee, In Committee

[Volume:622;Page:17686]

Aquaculture Reform Bill

Second Reading

Hon DAVID BENSON-POPE (Minister of Fisheries) : I move, That the Aquaculture Reform Bill be now read a second time. The Aquaculture Reform Bill amends the Resource Management Act 1991 and the Fisheries Acts of 1983 and 1996 to secure a sustainable future for New Zealand’s aquaculture industry. It defines aquaculture’s place in the marine environment, and addresses shortcomings in poorly integrated coastal planning, aquaculture, and fisheries management regimes. The bill balances economic development, environmental sustainability, and community concern.

A significant aspect of the bill is that it resolves the unfinished business of the 1992 fisheries settlement. The bill provides for full and final settlement of post-1992 iwi claims to commercial aquaculture in the coastal marine area. The bill deals with the spatial aspects that were left unfinished by the fisheries settlement.

The bill as reported back now includes a number of important changes. I thank the Primary Production Committee for its suggestions; I believe that those will improve the bill.

It is recognised that the existing dual regime under the Resource Management Act and the Fisheries Act could not cope with the overload of marine-farming applications. It also led to higher processing costs, delays, and poor environmental results. The bill addresses those issues and lifts the uncertainty that has hung over the aquaculture industry since the 1980s. It has taken a lot of work and consultation. Much of the bill’s form is a direct result of considerable consultation with industry and local government.

Let us be clear about what this bill means for the aquaculture industry. The bill makes the Resource Management Act the main legislation for managing aquaculture. That will enable councils to effectively manage aquaculture, and encourage the aquaculture industry to develop in a sustainable way. Under the reforms, new aquaculture will take place in aquaculture management areas, which regional councils will implement through their coastal plans or which can be initiated by a private plan change. Aquaculture management areas will be created by the plan change process. Affected parties and the public will have a say over where aquaculture should be allowed to take place. Industry can initiate a facilitated private plan change, and if successful will have preferential allocation of space. All marine farms with existing coastal permits to occupy space will be deemed to be aquaculture management areas unless those areas are identified in the plan or proposed plan as being unsuitable for aquaculture. Existing farms under a Resource Management Act regime will continue for the life of their coastal permits.

The bill contains transitional provisions to move the existing marine-farming authorisations granted under the Fisheries Act or Marine Farming Act into the new regime. Marine Farming Act farms will have Resource Management Act consents for 20 years, with one right of extension at the end of that period, provided that the farm remains in an aquaculture management area. Marine farmers will no longer require a marine-farming permit under the Fisheries Act 1983. Their activity will be managed through the coastal permit under the Resource Management Act. Marine farmers will be recognised for the work they undertake in developing plan changes. We also want to provide greater certainty for existing marine farmers on the renewal of a consent. When a marine farm resource consent expires, if the farm is still within an aquaculture management area and the operation remains similar, the incumbent’s application will be considered first. Where the existing farmer is using the space properly, we want to provide that he or she continues to do so.

Certainty brings benefits both to the industry and to the community. However, we do not believe that rights in perpetuity are appropriate for what is, after all, public space. The bill seeks to balance competing interests, providing protections for fishing under the quota management system with an undue adverse effects test. The select committee has recommended provision of an opportunity for court review of any decisions made under that test, and in the interests of transparency and, ultimately, fairness I agree that that is an important addition.

Part 5 addresses Māori interests in marine farming. It provides iwi with, where possible, an allocation of an area equivalent to 20 percent of the total marine-farming space allocated since 1992, and with 20 percent of any new marine-farming space. This proposal is a full and final settlement of Māori claims to commercial marine-farming space post - September 1992. That represents a sound basis for Māori and the marine-farming sector to move forward. The select committee has recommended that iwi are allocated areas that are more manageable, with fewer isolated blocks. That allocation model better fits with the planning process for developing and allocating aquaculture management areas. Initially, marine-farming space allocated to Māori will be provided to Te Ohu Kai Moana Trustee Ltd to hold for direct allocation to iwi—those same iwi that are entitled to receive an allocation of inshore fisheries quota under the 1992 deed of settlement. Te Ohu Kai Moana Trustee Ltd will hold those settlement assets separately from the assets it holds in trust under the Maori Fisheries Act.

It is clear that aquaculture was deliberately left out of the 1992 fisheries settlement by the then Government, and that it has remained the unfinished business of that agreement. This bill has emerged from considerable consultation with industry and stakeholders. Feedback we have received to date from industry has been hugely positive, especially in recent days, with both the Marine Farming Association and the New Zealand Aquaculture Council saying they look forward to the lifting of the moratorium. This bill supports, clarifies, and defines aquaculture’s place in the marine environment, and provides for the sustainable growth of the aquaculture industry in New Zealand. I am delighted to commend it to the House.

Hon DAVID CARTER (National) : This legislation extends the Treaty of Waitangi grievance industry for generations to come. National will, of course, oppose the Aquaculture Reform Bill, and it will do so principally on that basis. The legislation, without principle and without negotiation, gives Māori 20 percent of aquaculture space.

Hon Annette King: What did you do with the Fisheries Bill?

Hon DAVID CARTER: I will tell the member about the Fisheries Bill, if she gives me a minute.

Not only does the Aquaculture Reform Bill give Māori 20 percent but, over the next 10 years, the Government is instructing councils to gift to Māori up to 40 percent of all aquaculture space about to be created. The important point is that when Māori submitters came before the Primary Production Committee, the whole lot of them said that the bill will not settle any grievance. Not one Māori submitter said to us that this was settlement. All of them said that there has been no negotiation, but here the Labour Government is trying to settle what it sees as a grievance simply by gifting to Māori, without discussion or negotiation. Those submitters left us in no doubt at all that the bill will provide no full and final settlement.

Why give Māori 20 percent or 40 percent? That is the important question I ask the Minister. The answer the Labour members gave us at the select committee was that this bill was unfinished business associated with the 1992 deed of settlement. We took the opportunity of asking the officials to give the select committee any proof that the business was unfinished and had been deliberately left to one side during the 1992 negotiation, as the Minister has just claimed.

Phil Heatley: Was there any proof?

Hon DAVID CARTER: We asked for the proof, and it finally came back from the officials that there was no written record, at all, as to whether the business was unfinished. But help was on the way. Māori submitters told us they had the proof and would table it. We waited days and days and days for the proof.

Phil Heatley: Did it come?

Hon DAVID CARTER: It never came—from any Māori submitter. Help was finally on the way. The Hon Dover Samuels stuck his hand up and said that in 1992 he had been one of the negotiators, which was news to the select committee, and he then promised to table documentary evidence that the aquaculture industry had had the claims associated with the 1992 settlement put to one side. To date, we are still waiting for the Hon Dover Samuels to table any evidence, at all.

I take the opportunity of reading one paragraph from the 1992 deed of settlement signed between the Crown and Māori. Paragraph 5.1 states: “Māori agree that this Settlement Deed, and the settlement it evidences, shall satisfy all claims, current and future, in respect of, and shall discharge and extinguish, all commercial fishing rights and interests of Māori, whether in respect of sea, coastal or inland fisheries (including any commercial aspect of traditional fishing rights and interests), whether arising by statute, common law (including customary law and aboriginal title), the Treaty of Waitangi, or otherwise, and whether or not such rights or interests have been the subject of recommendation or adjudication by the Courts or the Waitangi Tribunal.” That is absolute, clear evidence that everybody who signed that document in 1992 accepted that it was full and final.

I took the opportunity of talking to two former National Party colleagues, Sir Douglas Graham and the Hon Doug Kidd. Both those Ministers, who were intimately involved in the discussion, say that there was no unfinished business associated with aquaculture. That is their clear memory of those discussions. Yet the Labour Government comes along and, without principle or any justification at all—apart from trying to curry favour with Māori associated with the seabed and foreshore—is gifting to Māori up to 40 percent of aquaculture. I say to the Minister that generations to come will still be debating the Treaty of Waitangi and the grievances associated with it, and this legislation does nothing to help.

I turn my comments to the bill itself. In 10 or 11 years in this House, I do not recall a bill coming before a select committee that was as incompetently prepared as this one from the new Minister of Fisheries the Hon David Benson-Pope. It was so incompetent that it simply would not work. Let us consider the first major issue the committee had to grapple with, and that was the issue of security of tenure for existing marine farmers. It was as if the Minister had never bothered to get in a boat and go and have a look at some of these things, because he would then know that in the case of some of the salmon farms, millions of dollars are invested. The bill as it originally appeared before the committee meant that come the end of farmers’ permits to occupy the space, they had no rights of first refusal unless their council agreed to it.

What aquaculturalist would invest millions of dollars in an industry unless such a simple issue as security of tenure was addressed? That was the greatest issue presented to us at the select committee, and I am pleased to say that the committee members and the officials worked hard to achieve what is now in the bill as reported back today. The aquaculturist now has the right of first refusal, provided he or she has operated in a satisfactory situation, unless in the exceptional circumstance that the council needs to consider another way. The feedback I have seen from the industry is that that is a vast improvement on what was presented to the select committee. That improvement came about because of the way the committee worked. It had nothing to do with the incompetence of the Minister, the Hon David Benson-Pope.

The second point that needs to be made in this debate is the time constraint the select committee was under. We had 4 months from the time the bill was introduced in the House. Ministers have had years to prepare the legislation. The Minister’s earlier response had been to impose a further moratorium, but when he finally decided to table a bill, he gave 3 or 4 weeks for submitters to prepare submissions for the committee, and then he gave something like a month for the committee to hear submissions and a month to consider the legislation. I thank the officials for their work. Those guys worked 7 days a week to help get the Minister and his hopeless, incompetent Government out of that mess. I also pay tribute to the select committee secretariat for their work. I thank Bob Bunch, Mary Hay, and Steven Mitchell for their huge commitment in working with the committee to right the mess.

The select committee achieved a large number of changes through the legislation, and I will certainly take the opportunity of speaking to those during the laborious Committee stage we will enter into shortly. But I want to say that the most telling line of submission before the select committee concerned the way it is becoming increasingly easier for New Zealand aquaculturalists to take their expertise to other countries. Countries like South America and Australia welcome the expertise of New Zealand aquaculturalists and make it easy for them to operate in their countries, whereas this Government has been putting in place, in front of the aquaculturalist, more and more bureaucracy and more and more encumbrances to developing an industry that has huge potential for the country.

The legislation has been hugely improved. I thank the select committee members who worked with me through that process. Some of them clearly got more involved in the process than others, but at the end of the day, despite the time constraint, the 141 submissions, the 34 hours of hearings, and the 34 hours of deliberation, the bill has been reported back in substantially better form than it was before it came before the select committee.

JANET MACKEY (Labour—East Coast) : It is with some relief, I think we would all agree, that this bill is being reported back and is going to be debated before the Christmas break. I agree with the chairperson of the Primary Production Committee that the schedule was very tight; not so much for the members of the select committee but certainly for the officials, who were sent away to get more and more information, and for the clerk and support staff of the committee, who worked round the clock and weekends to ensure we would be able to see this bill go through the remainder of its passage through the House before Christmas.

I think the bill has certainly changed in the course of its time with the select committee, but that is the reason we have select committees. A committee is given a bill, and there is then an opportunity for the industry to comment. I thank those members of the industry who provided their time as expert advisers to the committee. This bill is testimony to the effectiveness of a good select committee process. I thank the chairperson of the select committee, because he showed a real commitment to improving the legislation and to working constructively rather than politically, to ensure that we brought back better legislation to the House—legislation that certainly now has a lot of support from the industry.

There were a number of issues that the committee considered vitally important to pass, and I am sorry to hear that the National Party will not be supporting this legislation. I think its members will be in a very small minority of New Zealanders in doing so. Certainly, the industry wants to see this bill passed. Its members want to see it passed for the reason that we need to create some certainty in the industry. There was a comment about people going overseas. I was certainly impressed by what Australia is doing to encourage New Zealand aquaculturists to take their skills and their investment to Australia and to set up their businesses over there. Many of those people realise the advantage of fish farming in New Zealand, and it is important that this bill is passed so that we can create some certainty in an environment in which, as the chairman said, people are investing millions of dollars.

There was a real problem created by the need to provide 20 percent of the fishery for Māori, and that was that Māori would end up with small, 20-percent pieces of the coastline. That would have been neither economic nor practicable, and there would have been no guarantee that the areas they got would be any good for fish farming, anyway. So I welcome the changes that have been made in that area.

I acknowledge that there are, perhaps, still some concerns in the industry, and I think there are still some concerns among select committee members, over a number of issues. I acknowledge the concern that has been expressed over the private sector paying for treaty settlements. I think that that does create a precedent. However, I would probably challenge people to find any other way in which to deal with that issue. Unlike the National Party, the Government believes that it as a matter of good faith, and in the spirit of the fisheries settlement, Māori are entitled to 20 percent of that fishery. We can take that down to the letter of the law, we can ask for proof, and we can do whatever we want, but, in the spirit of that settlement, I believe that it is absolutely appropriate that Māori are ensured 20 percent of the fishery. I acknowledge those submitters who have expressed concern over the private sector effectively paying for that settlement by applying for 100 percent and receiving 80 percent of the application. However, I also say it is perhaps a moot point, given that an application is not ownership. I do not think anyone can put in an application for a fisheries permit with any certainty that that application will be granted, so we are hardly taking away from people something that they already own. But I do acknowledge the costs associated with the preparation for putting in an application.

The other concern that I think may require the attention of this House sometime in the future—and it will be up to local government to ensure that it does not—is the ability of some smaller local authorities to manage their role in the fishery. That is certainly the case with coastal plans and with some of the skills and expertise that will be required. I know that smaller councils, like my own, came to the select committee and acknowledged that it was really beyond them. They did not have a lot of intention of doing anything, actually, and that concerned me because this legislation will rely very much on the expertise and management ability of local authorities to do their job, and to do it well. I do not think we came out of the select committee process with any confidence that the smaller councils would manage that well.

I welcome this bill coming back to the House. It is a year since we passed the extension to the moratorium. At that time there was a lot of political chest-beating and huffing and puffing over the Government’s inability to come back with legislation to manage this very complex fishery. I congratulate the Minister of Fisheries and his staff, and I congratulate the officials, who have come back to Parliament with legislation that I believe is an excellent beginning to the management of this fishery. I fully expect that in the future we may need to trim the bill or deal with certain issues that arise, but the industry certainly welcomes this bill and so does the Government.

R DOUG WOOLERTON (NZ First) : New Zealand First will support this bill, and in doing so I want to thank the chairman of the Primary Production Committee, David Carter, my fellow members of the committee—although it is sometimes doubtful whether I should do that—and, of course, the officials, without whom we would be completely lost.

New Zealand First believes that while the moratorium has been on the aquaculture industry we have been losing hard-won markets in overseas countries—markets that have been lost to other countries, namely Australia, South American countries, and such like. So it is great that this bill is before us and shows a pathway ahead. I want to mention some of the issues that were somewhat contentious in the bill and give people our views on those issues.

Firstly, this bill is about allocating space. It is about allocating space on the commons or in public areas. It does not concern anyone that our ACT colleagues could say there should be a lease in perpetuity, which is what they say in their minority report. The bill does not say there can be ownership by fee simple because it does not concern land; it is on the foreshore and seabed where this activity takes place. This is, in short, private gain on public space, so it needs to be cared for and needs prescriptive legislation around it of a special kind, and this legislation does that.

When we are talking about 20 percent of new space for Māori, it is simply misleading to talk about 40 percent of space for Māori. Whatever happens in the new space, whether 40 percent of that is allocated to Māori, at the end of the day—and people should be quite clear about this—Māori will receive 20 percent of space. Never mind where all these things came from—the Government of the day has decided that 20 percent will be allocated to Māori. It has said that upfront, and that will happen.

It is interesting, though, to consider where that 20 percent figure came from. That figure came as a precedent from the previous National Government when it passed the Fisheries Bill. That bill, I might tell members—and my colleagues will speak more about this later—was passed not through a select committee but through this House in a great hurry—a hurry that makes this look like a walk in the park. So let us not forget that.

In actual fact, what will happen with this new space—bearing in mind that many of the aquaculture management areas that this bill sets up have not been defined; some have, but many have not—is that some of the costs of application will come off the present players in the industry, but the space will not. So it is facetious to be talking about space coming off other people. In actual fact, in most cases, extra water space will be allocated. Nobody will know whether that is the case or whether it is not, and I am sure the councils that are charged with the responsibility of administering this bill will not be saying so. But in actual everyday terms, more space will be allocated, and that is where the 20 percent for Māori will come from. So there will be minimal cost to the present players and, dare I say it, minimal cost to the country.

It is time we had a bill like this, because when a new industry comes to New Zealand—an industry that brings in hundreds of millions of dollars—it is something we want to encourage, but where and how it happens is very, very important. There has been significant angst and significant argument over the original setting-up of aquaculture in this country, and this bill, although not faultless, will go a very long way towards fixing all of that. Security of tenure, as I have mentioned before, was a problem. As the chairman of the select committee has said to the House, that has been largely fixed up in this bill by giving present players in the industry first right of refusal—or right of first refusal, which I am told is a different thing, but I will not bother to try to work that out.

Phil Heatley: The Green member will explain.

R DOUG WOOLERTON: Thank you. New Zealand First is in favour of this bill. We will support the amendments, and we will support the bill becoming law as quickly as possible.

GERRARD ECKHOFF (ACT) : I suspect that the marine farming industry will breathe something of a sigh of relief that, at long last, the industry can start to proceed. But I also suspect that when they listen to this debate over the next few hours, or however long it takes, and recognise the huge problems that they will face in the future, they will see this bill as something of a dual-edged sword.

I note that the chairman of the New Zealand Aquaculture Council, Callum McCallum, wants to say a big thankyou to the Government, its officials, and everybody involved in this legislation. I cannot help but wonder how long he will be thanking the Government for, because his press release states that he has the Minister’s “direct assurances” that the complexities of this 214-page bill will be applied by the Government in a practical, supportive way that respects investment commitments to date. What on earth does that mean? It will not be the Government’s role, once this bill is passed, to do anything at all; it will be up to the regional councils to decide what will happen with the aquaculture industry in the future. I have not the slightest doubt that this 214-page bill will become an albatross around the neck of the industry.

In this second reading debate I can perhaps do no worse than refer to the ACT minority report. This is the summation of the way my party feels about this bill. We recognise that this industry has the potential to be one of New Zealand’s greatest export earners, given our massive coastlines and our creative, innovative people within the industry. But this Government appears to have decided to restrict, control and confine the industry, in the name of goodness knows what. Timorous attitudes will get this industry nowhere. The ACT party believes that this reform bill will hinder the development of this important industry and prevent it from achieving its fullest potential.

Security of tenure—Mr Woolerton has already spoken about this—has to be the biggest single issue I was faced with during my time on the Primary Production Committee. Regretfully, I was not there for all the meetings, but I constantly advocated that there should be a lease in perpetuity. The reason for that is very simple. I have seen what happens to short-term leases in industries based on land, for example. If one gives a short-term lease, one will get a short-term solution, and one will get long-term problems from that form of tenure. Security of tenure is vital because this industry requires multimillions of dollars for investment both now and in the future. Nobody will invest in this industry—well, nowhere near their potential—with the short-term approach the Government has taken.

A submitter from, I think, Blenheim said that five people from the industry have already gone to Australia because they will not put up with what this bill dishes out to them. They said that in Australia there are about four pages of regulations and requirements. In New Zealand, by comparison, there are about 400 pages, I suspect—it is huge—and the industry does not even know what the regional councils will dish up to it in the future. The industry has been given 20 years’ security by this bill. The 20-year period is nothing but a blink of an eye in terms of establishing oneself, one’s industry, one’s offshore infrastructure, one’s business associations, and one’s markets overseas. Twenty years is a meaningless period of time. In fact, in many instances it takes generations to establish industries.

That is why I and the ACT party unrepentantly advised that this industry should have a lease in perpetuity—a perpetual right of renewal, subject to some predetermined environmental considerations. We do it for land. Why can we not do it for the ocean? We have to. I suspect that in the future there will be amendments that actually recognise this point, as was the case many years ago when we had short-term pastoral leases. The farmers of those days said that if they were not going to get their leases back they would become an extractive industry. They could not care less. Then it all changed, of course, and became hugely sustainable once that clause was removed—once the industry had a lease in perpetuity.

Mr Carter has already alluded to the issues surrounding the allocation to Māori. The 1992 Waitangi fisheries settlement was stated to be full and final. What is it about the words “full and final” that the Minister of Fisheries does not really understand? That is clear and absolute, and there has been no presentation of fact or document to prove otherwise. The select committee did ask for that information to be presented. It was not presented. What was presented, and what I received, was advice from Crown Law on this issue. Now, I thought that it would be a pretty fair way of determining the veracity or otherwise of the Minister’s claim that 20 percent of the space should go to Māori under the 1992 Treaty of Waitangi fisheries settlement. The advice we received from Crown Law consisted of three blank pages, where its opinion was withheld. Why? What possible justification can the Minister or Crown Law have for withholding that perfectly valid information? It is totally and utterly inappropriate for an office of the Government—the Crown Law Office—to withhold valuable information if that information would have assisted our select committee in getting this bill right. That, surely, is the purpose of the bill. It is to establish, at this early stage of the industry, the ground rules, so that the industry can progress in a sensible and reasoned fashion. But that will not happen for another very important reason, and that is because of the powers that this bill gives to the Department of Conservation.

The bill essentially gives the Department of Conservation the power of veto. Why I say it is so terribly important to remove the department out of this whole process is that it has already stated that its intended policy is to ensure that 10 percent of the coastline goes into marine parks. So along comes the fishing industry, the mussel farmers, or whoever it might be, and the department will say: “Oh, this looks like a nice spot for one of our marine reserves. Permission declined.” It will not be the Ministry of Fisheries that runs this industry; it will be the Department of Conservation. Its tentacles have stretched right throughout industry in this country, and certainly throughout primary-based industry. I note John Tamihere is nodding in agreement with me, and I am delighted to see that. I am sure that next year—if or when he is back—he will be reining in that department. However, it is totally and utterly inappropriate to give a Government department like the Department of Conservation the power of veto. It has a power of advocacy, which is also quite wrong, and I can only lament that the future of this industry will be tied inevitably with the Department of Conservation.

IAN EWEN-STREET (Green) : The Greens support this bill. Until now the marine farming industry in this country has been a very successful one. Most people do not know it, but in Marlborough alone the aquaculture industry earns more for the province than the famous wine industry does. It is an industry that has been characterised by a boom-and-bust mentality in applications for water space, but also by delays in the clash between the Resource Management Act and the Fisheries Act, and it has been characterised by moratoria.

This legislation was designed to get around that. It was designed to create aquaculture management areas, where people could apply for marine space within the aquaculture management area, and they could not apply in the exclusion zones outside the aquaculture management area. It took officials something like 3 years to write the bill. As others have said, about 4 weeks were given for submissions, and then the Primary Production Committee had about a month to hear submissions and another month to consider. The timescale was not good. However, although we perhaps have not made a silk purse out of a sow’s ear, I think we have done an extremely good job in changing what was unworkable legislation into something that is very workable. It is a credit to all the people who have worked so long and hard to get it to where it is today. I would like to pay particular credit to the officials—a couple of whom are here today—plus our select committee officials, and all the members of the select committee, led by David Carter, the chair.

Madam DEPUTY SPEAKER: I am sorry to interrupt the member, but members should not be standing up and talking in the Chamber. Please be seated.

IAN EWEN-STREET: I think they were standing to applaud, were they not?

I think that the main problem before this legislation came into being was the clash of cultures between the essentially community-based Resource Management Act and the essentially centrally based legislation of the Fisheries Act, and the different cultures of the groups that administered those two different Acts. This bill is trying to put the control of aquaculture into the hands of the community; in other words, through the regional councils under the auspices of the Resource Management Act. The Ministry of Fisheries will still have input at a very early stage. So rather than somebody going to the council, getting a resource consent, and then sometimes waiting for years to get a fisheries permit, it is all done in one step under this bill.

The aquaculture management areas are designed so there are areas in our sheltered waterways that are suitable for marine farming and for which people can apply for space, and the exclusion zones are all those areas other than the aquaculture management areas, where people cannot apply for space. Having said that, it is possible for people to apply for space in the exclusion zones by initiating a plan change with the local council. That is a much higher hurdle than the resource consent as it is at the moment.

As others have mentioned, one of the main issues of contention in the bill as it was originally tabled was security of tenure. The bill provided that when an existing marine farmer had a lease that expired, that space would go to tender. In other words, it would go to the highest bidder. One does not have to be a rocket scientist to work out that it would not have taken very long for tendered space to always finish up in the hands of those people with the most money and, almost inevitably, they would be the big corporates. It was clearly an unworkable idea. On the one hand, marine farmers said: “What we want most of all is security of tenure. We want the right of renewal in perpetuity.” Members of the committee said: “No, this is public open space. This is commons, from which you are trying to derive private profit. It is not appropriate for you to have a permanent right of renewal. Look at what has happened with the high country leases—we had to buy them back.” On the other hand, there is the underlying reality that this is a biophysical process. There are physical limits to how many marine farms we can have in an area. It is not about simply allocating space; it is about asking whether marine farmers will be able to operate in that space.

The compromise that we have come to, which I think is a very good compromise, is that instead of the water space being tendered, the incumbent farmer has the right to make an application for a resource consent first. In other words, that farmer’s application is heard first. If that application is successful, the farmer gets a renewal of the lease for another 20 years. If the farmer’s application is unsuccessful, then other things kick in, and at that point it could go to tender or other applications could be received. There are a couple of instances where the person who is an incumbent will not get the right to make the first application. One of those instances is where the council decides that the area where the farm is will no longer be considered an aquaculture management area. In other words, the council has changed the plan and the area is no longer suitable for aquaculture. At that point the incumbent farmer says: “Right, that’s it. I’m out of here.” The farmer has no recourse, and there is certainly no compensation to be paid. The other instance in which the farmer may not have the right to apply first for renewal of the consent is where he or she has not complied with the existing resource consent conditions. If the farmer has been convicted of some kind of unsatisfactory behaviour, then he or she is deemed not to be suitable in terms of their specific resource consent.

What the bill now states is that the people not only have to comply with their resource consent, but also have to comply with the industry standards. At the moment industry standards—[Interruption]

Madam DEPUTY SPEAKER: When a member is speaking at the back of the Chamber, it is really quite rude for members to interject across there. I call the member to order.

IAN EWEN-STREET: I understand how the Minister gets quite excited.

The incumbent farmers basically have to be good, corporate citizens. There is no formal statement that this is an industry standard, but what we are intending, and hoping I guess, from the passage of this legislation, is that the industry will get together and form its own voluntary standards, because the last thing people want is for their space, which has become a valuable commodity, to be taken from them and tendered to somebody else.

The other really contentious issue, I suppose, in this legislation is the 20 percent of new marine space that will go to Māori. In essence, the Government is trying to say that 20 percent of any new space that is created in an aquaculture management area is to go to Māori, plus any existing space that was created between 1992—the year of the deed of settlement for fisheries—and the present, also has to go to Māori. That was intended to be on a willing buyer, willing seller basis, so that if incumbent farmers wanted to sell and move on or to retire or whatever, then the Government would move in, buy farms, and allocate that to Māori. The problem, as we foresee it, is that insufficient space will come up in a sufficiently short period of time for Māori to get 20 percent of that space. What the bill is allowing for is that Māori get 20 percent of the new space, plus it may be that there is another 20 percent, or up to 20 percent, of that new space to take account of the 20 percent from the existing space that is unable to be allocated to them.

We are also aware that if existing marine farmers want to extend their farms, then the new space they are occupying would be treated as new space and 20 percent of that would go to Māori. This sounds fine, but if there are farms dotted around the Hauraki Gulf, the Marlborough Sounds, or wherever, we will finish up with tiny little patches of marine farms that have been allocated to iwi Māori. It becomes absolutely unworkable as they are uneconomic units. What we are trying to do is to encourage councils to aggregate these small areas so that iwi Māori have their space in a particular area, in an area that is representative of the productivity of the rest of the space that has been allocated from 1992 until the present. The Greens are happy to support the bill.

BERNIE OGILVY (United Future) : I rise on behalf of United Future in the second reading of this bill to state that we will be voting for it, and we would love to see it become law as soon as possible. There are very good reasons for us to do this, which I hope to elaborate on in the second reading, and if not then, certainly in the Committee stage and the third reading. The reasons we are voting for this bill are very simple. As incredible as it seems, the Primary Production Committee and officials, after we had heard from all the submitters, were able to turn the lemon that we had before us into a glass of lemonade. This bill is not 100 percent perfect, but it is certainly 90 to 95 percent operational. In a world where getting it right seems to be problematic, this is, by and large, an enabling bill to get this industry up and running again.

The bill, as it came to the select committee, was a bit of a shocker, and some submitters noted that very clearly. As I listened to some of the conclusions they made, it was obvious there was really a great need for change to take place. The submitters had only 4 weeks to do what they could do, whereas the drafters of the bill, on their side, probably had something like 4 years to do this.

Out of all those submissions, the objections raised have, by and large, been answered fully in this rewritten bill—those issues have been addressed, and I want to take a bit of time to just go through some of those that caused concern. For instance, submitters stated that aquaculture needed to be treated under the Resource Management Act like any other activity, such as farming, and not prohibited, and not even put on a par with, say, nuclear waste. Now that has been accepted in this rewritten bill, and I am very happy to support it because of this sort of change.

The overwhelming number of submitters stated that many of the current problems in the bill were there because there had been a lack of listening by officials in the past, and therefore the moratorium was put into place to try to steady the ship. There was a plea to the officials: “Please, do not make the same mistake again.” That, I believe, has been accepted in this bill, and makes us satisfied in that sense to vote for this second reading.

We heard from an industry that had pioneered over some 20 years of work. It had very little hope that certainty would be available to it through the bill as originally proposed, but now that has been provided through the rewriting of this bill. The problem with lack of continuity of tenure has been satisfied. Now every person has 20 years of tenure and the first right to continue to operate. In farming language, that really means almost as if farmers can continue for ever and a day, as long as they maintain the rules, the regulations, and the strictures that have been placed on aquaculture management areas by local councils. So as they keep farming, they can be assured they will continue in the industry. That satisfied the submitters, and we are very happy that that has been adjusted in this rewritten bill.

The original bill was seen to set up possible fights between other marine players. For instance, recreational and commercial fishers could have been fighting with farmers for years, as they have done in the past. In some people’s minds, it was therefore improbable that the undue adverse effects test would work, especially on occasions when certain fishers would hold out on, and renege against agreeing between themselves. Now this has been put aside. The bill now has a common-sense solution. It has used the 90 percent rule that applies with sharemarket takeovers, and so this is now a very, very excellent addition to the bill.

We heard from submitters about the extraordinary time that had been taken in the past to get applications to the farming stage—we heard from some people that it took up to 9 years—and tremendous costs were incurred by farmers. We also heard in submissions that over $10 million was set aside in the Nelson-Marlborough area alone, and that that had really crippled both the attitudes of people and their desire to go into further farming. They were once bitten, twice shy, I suppose. They were suspicious that this legislation would not give them freedom. The only people they could see making good on this were the lawyers.

This bill now, as it sits in its rewritten form, I believe strips away that fear so those people can progress forward. So that is a very good addition to the whole bill. Certainty was needed, not only for the farmer, but for the lending institutions. Certainty has been put into this bill so that companies and investors can invest knowing what the rules are, as it were. Labour can be satisfied. Exports can flourish. This bill in its rewritten form provides business certainty.

Many submitters said that a public tendering process, with no compensation for the intellectual property established, could unjustly wipe the years of hard work from them, as farmers, overnight. It was their plea that the parties that had created the wealth should not have to tender for it. That injustice has now been resolved along common law principles in this particular rewritten bill.

Some submitters said they feared that bigger companies were waiting to pounce, to buy out the small ones that had no option but to sell if this legislation was passed, unchanged, through this House. They now have the power to raise their confidence, they have certainty behind them, incentives have been placed on local councils through this legislation to provide the aquaculture management areas, and now their fears in that regard have been resolved. Private aquaculture management areas can now be established. The industry actually asked for that, in submissions, and has been heard in that process.

United Future looks forward to this bill becoming law to help business in New Zealand. Our business friendliness is in sharp contrast to that which we have just heard from both the National and ACT parties today. Honestly, how can those parties look aquaculture farmers in the eye and ask for their votes? Speakers from those parties in this House have put farmers down by being more ideological than in line with what the legislation actually offers, which is now a fantastic business opportunity awaiting everybody. I was amused today with Dr Brash’s mathematics in his press release. If that is the way a Governor of the Reserve Bank does his sums, then that would signal a rapid change of governors, but I will deal more with that in the Committee stage, as time is not with me at this point. I add and reiterate that United Future will be pleased to see this legislation move forward and become law.

JOHN TAMIHERE (Labour—TamakiMakaurau) : I rise to commend the Aquaculture Reform Bill and its second reading to the House. In doing so I shall map out firstly the way in which this Government approaches many macroeconomic issues. As we have demonstrated, whether it is in the telecommunications industry or with regard to roads, Tranz Rail, air transport, or the reformulation of our Stock Exchange, we are a very business-friendly Government that is very supportive of Kiwi endeavour. This legislation with regard to aquaculture management areas is merely another litmus test that this Government will pass. I am grateful that we have received the support of New Zealand First, of the Greens, and of United Future on this wonderful legislation. It is about unleashing Kiwi potential in a new and dynamic way. No one has written the best manual on that, but this is one of the best possible attempts to do so in legislation in a long time, and I am grateful to the Opposition parties that are supporting the Government. The bill entertains for the very first time spatial rights in the seabed and foreshore areas.

Hon David Carter: Not the first time.

JOHN TAMIHERE: Yes, it does, to the extent that all communities, whether they are local communities acting through local authorities under the Resource Management Act, or whether they are Māori, Pākehā, or from Timbuctoo, all have, quite clearly, been given a range of security in their opportunity to get into, and finance, the business of aquaculture. They have been given certainty, and as usual, they have been given closure.

I am interested in, and somewhat intrigued by, some of the comments from National Party speakers. What I am intrigued about is that they practice one of the worst forms of selective amnesia this Parliament has ever seen. What is that selective amnesia? They have forgotten that one Douglas Montrose Graham cut the “Treaty of Wellington” in 1992. He had no process going through any select committee phase, and no robust consultation process—nothing. He dropped the bill into this House, and just rammed it through. At the end of the day that process might well have been fraught, but members of the Opposition continue to practise that selective amnesia. They cannot remember Jim Bolger or Douglas Montrose Graham setting in place the legal and statutory framework that we are obliged to follow. In the event that we did not follow due legal process in terms of our constitution, and in the event that we practised amnesia to the extent that the National Opposition members do, surely one would have to go gaga and take a one-way ticket to Kurdistan.

I tell David Carter, and his erstwhile colleague from Whangarei that no one can remember the name of, that when they get up on their feet to talk about the 20, 40 or 60 percent of the quota for Māori, we should explore that for one little moment. Douglas Montrose Graham cut a deal. Right now proceedings in the Court of Appeal in New Zealand have been adjourned sine die, because Douglas Montrose Graham and James Bolger were directed to negotiate a settlement with Māori. That is our court speaking. Not only did our court speak but Parliament spoke. The previous National Government drove legislation through that stated it did not know what would come into the quota management system, but whatever did, Māori were to get 20 percent of it. Giving Māori 20 percent then freed up the whole of the quota management system. It was a world first, and that was great. Today we hear from National and ACT party members that they want to recant that. They want to recant all the things their leadership did in those days, in terms of the 20 percent that was to go to Māori. They do not want that. They do not accept that this is unfinished business, and that this legislation does exactly what Douglas Montrose Graham and the Hon Jim Bolger portended. The framework is in place, this is unfinished business, and this Government cannot change an agreement that was executed between Māori and the Crown and enacted in legislation.

I might say that the Hon David Carter voted for 20 percent. He did not know what it meant, but he said that 20 percent, or whatever the amount was, would go to Māori. That is exactly what is happening right now. The member for Whangarei, whom no one can remember—

Clayton Cosgrove: Plonker.

JOHN TAMIHERE: Whatever. He will get up very shortly and prattle off that Māori will be getting 40, 50, or 60 percent. Māori, as usual, will get 20 percent, because that was the deal that was struck by the previous National Government and it is one that we will continue to accede to. We will not overturn an agreement between Māori and the Crown that was executed as a deed of settlement and brought into this Parliament. There is a comment on and a description for that. I am not allowed to use it for the National Party, of course.

I conclude by commending the Minister of Fisheries for the fine effort he has made in bringing this legislation to the House. But because I am a good Labour MP and we are coming toward the end of the year, the Christmas season and the like, I say it is always good to remember the workers. Whether they are from the Primary Production Committee or the Ministry of Fisheries, or whether they are our officials, our messengers, or our security staff in this building, we honour and acknowledge them, and pay them tribute for bringing forward a wonderful piece of work. I regret the mean-spirited nature of the Tories over there on the Opposition benches, unably supported by the ACT party. Kia ora.

PHIL HEATLEY (National—Whangarei) : I say to the House that it should not be deceived by members on the Labour benches. This 20 percent allocation of aquaculture space to Māori has always been a quid pro quo for the seabed and foreshore deal. When the deal blew up in Labour’s face, Labour figured that it could throw to Māori 20 percent of the aquaculture space and Māori would be satisfied with that. How patronising and how condescending can one get! That is why National will oppose this bill. Labour figured that it would do a dirty deal, but the marine farmers who are out there working today, Māori and others alike, will pay the price for that. The moratorium will be lifted once the bill is passed, and it is about time for that to be done. The industry has been hamstrung for too long, with moratorium after moratorium being used as a solution rather than a tool. Marine farmers from across this country have been invited to Australia and to South America to set up camp there, and some have. Fortunately, others have stayed here, in the hope that finally a bill would be brought to the House that would solve the majority of their problems.

I also acknowledge the work of the Primary Production Committee. Through the select committee process we changed what had been a dog of a bill into a much-improved bill. We have changed significant aspects of the bill, but National still opposes it on a number of fronts. Firstly, as I mentioned at the beginning of my speech, there is the issue of horse-trading with Māori. Labour thought that if it chucked 20 percent of marine space to Māori they would go away feeling very satisfied indeed, and would not kick up a fuss over the seabed and foreshore issue. That is patronising and condescending. Now, we discover that it could be up to 40 percent of new marine-farming space, because the promise of 20 percent of aquaculture space to Māori may never be fulfilled. Marine farmers may not give up their current space, and therefore 20 percent may not become available for Māori. So the top-up has to come from new space—anything up to 40 percent of it. Interestingly, most Māori submitters did not acknowledge this bill as a settlement. There are several reasons for that. Firstly, there was no negotiation with Māori over 20 percent of the aquaculture space. Secondly, there is no deed of settlement over the aquaculture space to point to, unlike the fisheries settlement of 1992 where there was a deed. Therefore, many Māori submitters are already dissatisfied, because of that lack of a negotiated deed of settlement. They are concerned they will receive space they would not have chosen for themselves: patches of random space, uneconomic space, and small space. That sets the scene for another revisiting of aquaculture-space settlements.

I direct the House’s attention to the Ngati Awa Claims Settlement Bill, which is the last bill on today’s Order Paper. Under clauses 118 and 119 of that bill Ngāti Awa is to receive 5 percent of the aquaculture space through preferential tendering, and that is over and above the 20 percent figure. Ngāti Awa has its own separate little settlement. That bill is on the Order Paper in Parliament right now. So we have the Aquaculture Reform Bill giving Māori 20 percent of the aquaculture space and the Ngati Awa Claims Settlement Bill giving Ngāti Awa another 5 percent. That is without mentioning Ngā Rauru Kītahi and NgātiRuanui, which get aquaculture space in their own settlement bills, Ngāti Tama, which gets 10 percent of the aquaculture space in its own settlement bill, and NgāiTahu, which in 1998 received 10 percent of the aquaculture space in its settlement bill. Therein lies the problem. The National Party does not see a solution in this bill whereby we will put an end to treaty claims in aquaculture.

We also have unanswered questions as to how the interests of aquaculture will be balanced with commercial fishing interests. Certainly, National supports greater interaction between the two sectors. There has to be a timely, fully transparent, and cost-effective process to follow—namely, commercial fishers talking to marine farmers and marine farmers talking to commercial fishers about their aspirations in a particular area, reaching a transparent and cost-effective agreement, and then moving forward. National is unsure how regional councils will be able to quantify or qualify aquaculture’s effect on fishing—effects such as those on spawning and stock development. We do not know how they are going to do it. We hope regional councils can do that, because we want aquaculture to move ahead. In reality, regional councils will have to employ very smart scientists and researchers in order to ensure they have the best advice on how to address that issue.

Our third major concern is the right of first refusal for an incumbent marine farmer. National members on the select committee fought hard, and it was a big win for us, to get the gains we achieved. But we are still quite concerned that incumbent marine farmers will get priority over newcomers, due to their pre-existing investment. Contrary to David Benson-Pope’s statements made in the media, commercial aquaculturists have never asked for space in perpetuity—not ever. They have never asked for a right of renewal; they have never felt that public space should be in their hands forever. They have only ever asked for the right of first refusal—that they have first dibs at renewal if they have been good tenants. Yet in order to gain renewal they will have to follow industry-good practice, and no one has defined that. It will change with changes in technology. Marine farmers now discover that regional councils may tender out occupied space, if they feel it is necessary. We are not quite sure what the test will be, in terms of being “necessary”. We certainly have reservations about whether those requirements and tests are sufficiently robust to provide the certainty that incumbents need for their investment.

In the Committee stage I will be submitting various amendments to this bill. They will also deal with the ability of the Department of Conservation to intervene in the whole process and issue a veto as an objector under the Resource Management Act—the Minister of Conservation being able to veto the process. We need changes to this legislation in order to provide certainty for this fledgling industry.

CLAYTON COSGROVE (Labour—Waimakariri) : As a member of the Primary Production Committee, I rise to support this bill. As I kick off my brief call, it is fair to say that this bill came to the select committee with a high degree of contention and with some major issues. But the committee—apart from the member who preceded me—in the spirit and nature of its work, got through those matters, and I think we have brought a substantial, quality bill back to the House.

I want to correct a couple things put forward by Mr Heatley, the well-known, so-called member from Whangarei. The first—and he is right in this—is that one of the major issues in the bill was the perceived lack of security of tenure by industry players. Contrary to Mr Heatley’s submission to the House, that has been fixed, and he knows it. Existing marine farmers, unless the aquaculture management area is changed, get the first right to apply, if they have been good citizens and have not breached their consents. Effectively, unless the plan is changed, they get the first option. Of course, Mr Heatley conveniently forgot to make that point. What we heard from the National Party was the usual stir-up on race. Somebody should tell Mr Heatley and Mr Carter that Don Brash tried that in Ōrewa, and it worked for 5 minutes. Now the tables have turned, and the people have told Don Brash to wake up. Mr Heatley said that he fought hard in the select committee. Well, if he fought hard in the committee, then he fought harder than Don Brash did over the issue of the foreshore and seabed.

The committee visited a number of marine farmers in Clevedon, Auckland, and Blenheim, including people like Callum McCallum who contribute a huge amount through both their fish-processing factories and their aquaculture farms. They are battling Kiwis—great business people—who, as Mr Ewen-Street said, contribute much to the economy. It would be fair to say that in Blenheim, when the Minister was down there recently and met with aquaculture people subsequent to this bill coming back from the select committee, peace had broken out in respect of this bill. I think that, in general, most aquaculture farmers are pleased with the content of the bill, especially in relation to the security-of-tenure issue, which is most important to them.

I also join in congratulating the officials, the staff, and the clerks who worked tirelessly on this bill. We had an interesting hearings process. A number of our members developed some new skills towards the waterfront in Auckland, especially Mr Woolerton. I am sure he knows what I mean. But the process was a very good one. It was open, and, in the spirit and tradition of the Primary Production Committee, in a non-partisan way we have brought a solid bill back to the House. I support it.

Hon Dr NICK SMITH (National—Nelson) : After hearing that contribution from Clayton Cosgrove, I now know why Kate Wilkinson will be the next member of Parliament for Waimakariri. At heart, this bill is against everything that Trevor Mallard, the so-called Coordinating Minister, Race Relations, promised. Supposedly, at the beginning of the year this Government was going to eliminate all race-based politics. That is what we were told, but this bill is proof that Labour is more interested in buying votes than in being fair to all New Zealanders. This bill is all about two very different standards of citizenship. With this bill, a public resource worth hundreds of millions of dollars is being allocated to a group of people, based on race. The National Party—

John Tamihere: Based on rights.

Hon Dr NICK SMITH: I suppose it is the same sorts of rights Mr Tamihere thought he had to the $200,000 golden handshake that he promised he would not take; the same sorts of rights he believed he had to a car paid for by the Wairapeira Trust, when he already had a car provided by—

The ASSISTANT SPEAKER (H V Ross Robertson): I am sorry to interrupt the honourable member, but I refer members on my right to Speaker’s ruling 56/1(1), which states that interjections are to be rare and reasonable. They should not be a running commentary. If members want to make a speech, they can take the next call.

Hon Dr NICK SMITH: This bill reinforces everything that New Zealanders dislike about this Labour Government. It is saying that if people are non-Māori New Zealanders—

Mark Peck: National down!

Hon Dr NICK SMITH: One of the reasons Mr Peck has decided to throw away his seat in Invercargill is that he knows that the people there do not want to live in a country where the opportunities to create wealth are based on race, not fairness. Trevor Mallard promised there would be complete race neutrality in the policies of this Labour Government. There is anything but that in this bill.

Let us reflect back on the history of the fisheries settlement in 1992, the provisions of which were absolutely comprehensive. The settlement was to satisfy all claims, current and future, in respect of all commercial-fishing rights. This deed of settlement defines commercial-fishing rights as those that require a fishing permit under the Fisheries Act. If we look up what the Fisheries Act requires in terms of aquaculture, we note that to have an aquaculture farm a person requires a fishing permit. There can be no question at all that the 1992 settlement involved aquaculture, yet no member of the Government has been able to explain why the gravy train has been reopened. Under Labour, full and final settlements do not mean full and final. Labour is happy to reopen the chequebook if it suits its political agenda.

Darren Hughes: What did the judge say about this man?

Hon Dr NICK SMITH: Members opposite want to get into all sorts of irrelevancies, because they cannot defend what they are doing in this regard. [Interruption]

I raise a point of order, Mr Speaker. Since I have been on my feet I have faced a continuous barrage of interjections. I have heard three in the last minute in respect of what members opposite claim was a conviction. That is factually incorrect, and it has been clarified by you on many occasions.

Mr SPEAKER: The matter would not have been in Hansard in that regard, and I was trying to help the member out. Now that he has drawn attention to the matter, there will be no further interjections on it.

Hon Dr NICK SMITH: If we go back to the 1992 settlement, we will see, as I have carefully explained, that it did include aquaculture, because it was full and final settlement of all matters, yet members opposite have reopened the chequebook. Let us ask the question why they have done that. Well, it is actually very simple. When the foreshore and seabed issue arose, the Government got itself into difficulty. It lost one of its Māori MPs, then searched out as to how it could buy back some support. So in April the Government suddenly got extremely generous about throwing away rights that should have been shared by all New Zealanders, and providing them exclusively for Māori. I say again that that is a tragedy. It is a tragedy because all New Zealanders should have an equal right to apply for and develop marine farms in this country. To have a race-based system under this Labour Government, whereby people of one ethnicity have different rights, is quite simply wrong.

I also want to reflect on another botched process by the Minister, Mr David Benson-Pope. Only last week we were in urgency dealing with legislation that was being rushed through under that Minister, and here we are back in the House again, once more in urgency, dealing with matters promoted by that same Minister. The tragedy is that the aquaculture industry was put under a moratorium by this Government a long 4 years ago. During the 1990s, under National’s careful stewardship, we saw—

Government Members: Ha, ha!

Hon Dr NICK SMITH: I will put my record on it. I ask members: do you know how much the aquaculture industry expanded—

Mr SPEAKER: Do not bring me into the debate, please.

Hon Dr NICK SMITH: You are so finicky with me, Mr Speaker, and so inadequate with every—

Mr SPEAKER: The member will now resume his seat. His speech is terminated. I am not having that sort of rudeness.

Hon Dr Nick Smith: That’s what I am talking about.

Mr SPEAKER: The member will now leave the Chamber.

Hon Dr Nick Smith withdrew from the Chamber.

MARK PECK (Labour—Invercargill) : During the course of that debate Jen McCutcheon knocked on another 200 doors. She is looking extraordinarily well placed to be the next member for Nelson. I must say that the House is looking forward to a real member of Parliament for Nelson, particularly one who will be a member of the Government. [Interruption] I can tell members that Wayne Harpur will fly in this place. He has my support as the new, vibrant member for Invercargill. I support the second reading of this bill.

Amendments recommended by the Primary Production Committee by majority agreed to.

A party vote was called for on the question, *That the Aquaculture Reform Bill be now read a second time.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 37	New Zealand National 27; ACT New Zealand 9; Māori Party 1.
Bill read a second time.

Instructions to Committee

Hon Dr MICHAEL CULLEN (Leader of the House) : I move, That it be an instruction to the Committee of the whole House on the Aquaculture Reform Bill that it take the bill part by part.

A party vote was called for on the question, *That the motion be agreed to.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 36	New Zealand National 27; ACT New Zealand 9.
Motion agreed to.

Hon Dr MICHAEL CULLEN (Leader of the House) : I move, That it be an instruction to the Committee of the whole House on the Aquaculture Reform Bill that it have the power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 322.

Motion agreed to.

In Committee

Part 1 Resource Management Act 1991

Hon DAVID CARTER (National) : I want to raise a number of points on Part 1. Now that the purpose of the bill has been split according to the subdivision of the legislation, as we go to its final stages in the next few days under urgency, I start by asking some questions of the Minister in the chair, the Hon David Benson-Pope. I want some satisfaction as to the justification for clause 4A(b), which is the clause that empowers the Minister of Conservation to direct regional councils in relation to the allocation of space in the coastal marine area. The reason I am concerned is that this legislation starts a process that sets a precedent by which the responsibility for aquaculture is, significantly, being passed to regional councils. I have no problem with that. They are the local authorities that have the ability to determine where best to create aquaculture management areas, but, having passed the authority to regional councils, the next thing this Government did was to straightaway insert a clause that gives the Minister of Conservation the right to veto.

I say to the Minister that that fundamentally destroys the philosophy of the legislation. We are trying to take an industry with huge potential out of the clutches of a moratorium that was imposed, then extended, because the Government was bereft of ideas for giving the industry a chance to develop. Then we came up with legislation that gave the industry a significant chance to get back on the case and develop and promote before too many of our best brains in aquaculture fled across the Tasman or to South America—to Chile, and countries like that—as we heard via the submissions process.

However, as we do that, the first thing this Government does is to say that while it is giving the opportunity to regional councils, it will rein them in with another check that means that at any time it can, via the Minister of Conservation, stop the process. One might not be too worried about that, given some of the Ministers of Conservation we have had in the past, but if we go to an MMP election and, God help us, the Greens are in a position of deciding who the Minister of Conservation is to be, could the industry live with Nandor Tanczos being the Minister of Conservation and having the right to veto every application for aquaculture? That is the sort of nonsense that could develop out of this legislation.

Our fisheries spokesperson, Phil Heatley, will be moving an amendment to delete clause 4A(b). I see no justification at all for the Minister of Conservation having those veto powers. This legislation gives every opportunity for fisheries to be involved, as they should be. It gives every opportunity for the Minister of Conservation to be involved via the Resource Management Act process, and I have no problem with that. But, having gone through the community Resource Management Act process, to give the Minister of Conservation yet another opportunity gives the industry no satisfaction at all that we are passing legislation today that will give it the opportunity to progress. That is the first point I want the Minister to comment on.

For my second point I want flick to Subpart 2, “Privately initiated plan changes”, in Part 7A inserted by clause 21. I ask the Minister to explain and to assure the Committee that the promotion of significant changes in that area by the select committee will enhance the system of giving the operators currently in the industry, who want to move relatively minor private plan changes to expand their operations, a fair opportunity to do so under this legislation. Those are the questions I want answered.

GERRARD ECKHOFF (ACT) : I too would like to draw to the Committee’s attention the influence that the Department of Conservation will have over this aquaculture industry. When I look at the bill, I see that it is titled the Aquaculture Reform Bill, but under the Department of Conservation it will become the “Aquaculture Restriction Bill”. It is not a bill designed to ensure that aquaculture gets its fair share; it is designed to ensure that the Department of Conservation gets what it wants, then everybody else can have what is left over.

I am sure the Committee can see from the clauses in Part 1 that the hands of Kevin Smith from the Minister of Conservation’s office are all over the bill. The Royal Forest and Bird Protection Society has got its way again under this Minister’s advocacy. He has buckled to the Minister of Conservation and to the determination—driven, I guess, by the Royal Forest and Bird Protection Society—to ensure that 10 percent of our coastal space goes to reservations and marine reserves. That is the expressed policy of the Royal Forest and Bird Protection Society. That is what Kevin Smith wants, and under Chris Carter’s stewardship, what Kevin Smith wants, Kevin Smith gets. That is why this bill is so bad.

I have no problem with reserves—none at all. The ACT party has no problem with reserves; indeed, they are needed. We probably need quite a number of small reserves throughout this country. ACT is not opposed to conservation, but if the Department of Conservation and the Minister had an ounce of integrity, the Minister would have said to the Minister of Fisheries that the department had identified certain areas as being valuable and asked him please to ensure that they were well identified and that the public had a chance to comment on them before the bill went through. That would have been a fair and reasonable process. As it is, we now have a situation whereby every time new applicants want to put an application in and go marine farming, they will have to deal with the Department of Conservation and the Royal Forest and Bird Protection Society first.

They will not deal with the Ministry of Fisheries or the regional councils in the first instance; they will have to consult with the Department of Conservation and give whatever concessions it wants.

The real issue for me, certainly, is the advocacy role that the Department of Conservation has in this area. In some respects I cannot blame it, because statute requires it to advocate for conservation. But it is surely the duty of the members of this Parliament to advocate for the industry—for the exporters who give us a living in this country. It is not the Department of Conservation or any other department that ensures the health and wealth of this country; it is the people who get out there and do the work.

This bill, through the Department of Conservation, will make life for the producers of this country—the marine farmers—even more difficult. There are bureaucratic structures and a time lapse. I see in the bill that applicants have to give the Department of Conservation 4 months’ notice. Every application will, time and time again, drag out to the 4-month period. Any applicants in the aquaculture industry overseas would have their ropes in the ground and their buoys locked up, or whatever they do. The industry would be up and running within 4 months. As it is in New Zealand, the application will go in and nothing will happen for 4 months until the Department of Conservation has had a look around to see whether the seabed is suitable for its needs.

Hon DAVID CARTER (National) : I raise a point of order, Mr Speaker. I seek your guidance on the fact that the Minister in the chair has now changed from the Hon David Benson-Pope to the Hon Harry Duynhoven. We are seeking answers to questions. Mr Duynhoven sat with us on the Primary Production Committee. Is it appropriate for him, as a select committee member, now to sit in the Minister’s chair in the Committee stage?

The CHAIRPERSON (H V Ross Robertson): I thank the member for that. That is a decision for the Hon Harry Duynhoven to make.

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.

JIM PETERS (NZ First) : I am very pleased to follow Mr Heatley, because he and I come from a district where marine farming is important and significant. This year there are 149 marine consents of various types in Northland. Ninety Mile Beach is the most significant source of mussel spat in New Zealand. Recently a consent was given for a spat farm in Whāngāpē. Last of all, in the identification of potential sites of great influence for this country, Marlborough and Thames-Coromandel were just ahead of Northland. Therefore, I am pleased to be able to speak on Part 1 on behalf of New Zealand First. We have waited impatiently for many, many months and years to get to this point.

I assure the Committee that the issues raised by Mr Heatley have been in the minds of regional councils such as Northland’s for many, many months. There is nothing in the criteria and the steps set out in clause 4A, “Purpose”, that I find irregular or unusual. When reading paragraph (b), which states: “to empower the Minister of Conservation to direct regional councils”, one is aware of the fact that the Minister of Conservation has such powers now. That Minister has such powers under the Resource Management Act in relation to marine activity, which this matter is part of, and, therefore, it does not seem unusual that the Minister of Conservation should be part of this process—he or she hitherto always has been. As those of us looking at the Marine Reserves Bill know, there is dual ministerial duty over marine reserves at present, by both the Minister of Fisheries and the Minister of Conservation.

I see nothing here that we could not proceed with now in regard to my region. The criteria for councils to follow for defined coastal plans, in terms of the effects on coastal space, and so on, which are outlined in subparagraphs (i) to (vi) of clause 4A, are normal practice in regard to plans. Surely we are aware of the fact that if there are to be changes, there is an orderly process and procedure for doing just that. Other parts of the bill set out how that should be done. There are certain criteria for publicly notified plans, to ensure that they are all identified, that the public are made aware of them, and that they are part of public consultation. If there is to be a private plan procedure, then, again, there will be public notification, and all the issues set out in clause 4A will be carefully defined in that plan. So I see nothing irregular or unusual there at all.

But I wish the Minister in charge of the bill, David Benson-Pope, was in the chair, because there are problems in regard to Ministry of Fisheries’ farms and sites up to this point, as many of them have not been under careful monitoring or care. When we went through Northland looking at the proposed marine areas, we saw some disgusting evidence in Kerikeri and other places of abandoned or would-be abandoned sites of a historic nature that were all under the Ministry of Fisheries.

One of the issues that concerns many councils is who will be responsible for that clean-up. Did the Government’s Ministry of Fisheries, when it gave out those allocations, take care to monitor and to provide for the very issues that Mr Heatley raised? In other words, was there, over the years, such a lack of care and attention that abatement notices should have been placed upon those sites or licences—abandoned or not—but, instead, nothing was done? It is of grave concern that although any council will be able to work through the defined plans outlined here, at the end of that exercise we still will find that although recently awarded council sites—in Northland there have been 35 since 1992—have been monitored and closely analysed, many earlier sites were not.

I am not blaming any Government ministry or department; I am merely saying that there is a real situation out there now of sites that were poorly looked after and that could be very easily identified, but that could be part of productive industry in the future. They would be subject to planning, but before that could be implemented, there would need to be a dramatic change to, and clean-up of, those sites.

The second issue that I want very quickly to look at, and that I will come back to in some detail, is that we heard some discussion earlier with regard to clause 21 and its effect on Māori and treaty issues—so-called. I certainly want to take a further call to develop that at some length.

IAN EWEN-STREET (Green) : I would like to start by making a small correction to what my colleague Phil Heatley said. He described incumbent farmers as having a right of first refusal to occupy the space again once their leases had run out. That is not strictly true. What they do have is the right to apply for a consent to the space they presently occupy. A right of first refusal, in effect, means a right of occupation in perpetuity, and I do not think we want to give people the impression that that is what those farmers have.

This bill is really about aquaculture management areas and how they are established. It was the intention of the ministry, as I understand it, to flag to regional councils some years ago that aquaculture management areas would have to be established in their areas. So those councils that had aquaculture management areas or big marine-farming areas, like Marlborough, Waikato, and Northland, have actually done quite a bit of work in establishing aquaculture management areas. I believe that they will simply take their existing farms and deem them to be aquaculture management areas.

There was some concern that smaller councils, or councils that had no real aquaculture activity, had not been doing their job properly and had not been creating aquaculture management areas, so it was interesting to hear from the smaller councils. I particularly remember that the Gisborne District Council, I think it was, said that it was the guardian of its ratepayers’ money, that it had had no applications from anybody to do aquaculture in its area, and that it felt it would be simply wasteful for it to use ratepayers’ money to create an aquaculture management area that maybe nobody would use, so it would leave it to the private plan change to cater for anybody who wanted to create an aquaculture management area.

Once those areas have been established, if somebody wants to create a new aquaculture management area there are several routes that can be taken. The main one is a private plan change. An individual farmer or a number of farmers can band together and say they want to expand out of the aquaculture management area into another area. Normally that is an excluded zone, so changing the plan is actually a much higher hurdle to leap over than gaining the original resource consent, which process led to the boom-and-bust sort of scenario we have had under the present regime. We in the select committee were concerned that if those people were successful in creating a new plan change, and had gone to the effort of doing that, the council would then tender the space, which is what the original legislation said, and those people’s efforts would amount to nothing if someone else came along with deeper pockets. So we finally resolved that people instituting a private plan change will get 80 percent of the area they have applied for and been granted—the other 20 percent, obviously, will go to Māori.

There was another little wrinkle in that scenario, though: if the council initiated a plan change, all the water space with the exception of the allocation to Māori would be tendered. There was a possibility that people would apply to have a private plan change, that it would then be taken over by the council, and that the council, in effect, would make it a council-initiated plan change. We were concerned that people who applied for the private plan change would, again, be left empty-handed, so there is a statement in the legislation that private initiators will get 80 percent of the space they apply and get approval for—though that does not take away the ability of the council to have more space than that.

In terms of incumbents, present farms are deemed to be aquaculture management areas and they will get resource consents or permits for 20 years. At the expiry of that time the leases expire, and the farmers have the opportunity to reapply for coastal occupation permits. They will have to fulfil a couple of obligations. First of all, the council must not be going to change the plan and stop that area from being an aquaculture area in the future. Second, and probably more important, is the fact that we are requiring or encouraging marine farmers to play fair—to do the right thing by both their community and the environment—so that they do fulfil the terms of their resource consents. There have to be fairly severe breaches of the resource consents, as Mr Heatley said, for them not to be granted. People have to have been convicted of some major breach, rather than their just being served an abatement notice by the local council. There could be somebody on the council who had a bit of a grudge against the incumbent.

BERNIE OGILVY (United Future) : I will touch on two things I want to bring to the attention of the Committee. One is with regard to a regional council’s activities in relation to its duty to act efficiently, and the other is something to do with tender money.

In section 165I, inserted by clause 21, there is a duty on a regional council to adopt the most efficient and effective allocation mechanism. I have thought about this. The Primary Production Committee discussed it and made a number of amendments. The section states: “… a regional council must—(a) have regard to—(i) the reasons for and against adopting the proposed method;”. So the council is to act out its role very fairly and squarely, so that nobody can say he or she was not heard or did not have the opportunity to contribute. The regional council will also have regard to “(ii) the principal alternative means available;”. The select committee then struck out—I think, appropriately—“(b) be satisfied that the adoption of the proposed method is the most appropriate for allocation …”. We discussed that, and it became very evident from the submitters that it did not really meet what they were asking for. So now we have got the wording down to what is in section 165I(1)(b)(i), which requires that the council be satisfied that the proposed method is “necessary in the circumstances of the region;”. That has a great deal more impact than what was there before.

Hon David Carter: Is the member sure of that?

BERNIE OGILVY: I am absolutely sure. Also, subparagraph (ii) states: “the most appropriate for allocation in the circumstances of the region,”. As the regional council deals with that, it will, I believe, bring about the most efficient and effective allocation that meets the concerns of farmers and applicants to become farmers.

The other matter I want to touch on is section 165U, “Tender money”, inserted by clause 21. When the select committee asked why the Minister would have 50 percent of the tender money, and the regional authority would have 50 percent, the actual response was that it was a judgment call—if I remember right. There is no basis for that, except that we note that when the regional council receives its 50 percent, it must use its money entirely for the purposes of this Act in coastal marine areas in its region. So I see this bill as promoting the outcome that the money collected through the tendering process go back to address the local regional council’s concerns—multiplication, exploration, and all the rest—in setting up the marine areas they need for potential farmers in the region. I think the bill is, in these regards, very clear and explicit, and I think we need to realise that there is no way that one can be double-minded as to what could happen with this money.

SHANE ARDERN (National—Taranaki-King Country) : It is pleasing to see the Minister of Fisheries back in the chair, although I was looking forward to asking the Minister for Transport Safety a number of reasonably curly questions on this legislation. Like a lot of members who have spoken, I am concerned about the power the Department of Conservation has. Notwithstanding the comments made by the honourable member Jim Peters, who has a great deal of knowledge in this area, I suggest that clause 4A is not the sort of clause that is usually placed in legislation such as this.

Let us look at Minister Carter, the current Minister of Conservation—or, more accurately, at “Minister Smith”, the former conservation director of the Royal Forest and Bird Protection Society, who makes the decisions in the Minister’s office—or at whoever may be the Minister of Conservation in the future under an MMP coalition with the Green Party if, God forbid, the Labour Party were ever in a position to form another Government. Let us look at what might come of that. Of course, we will not have as Minister the very good member Ian Ewen-Street, who actually has some interest in this area and spent some time on the Primary Production Committee, because he is retiring from Parliament. We will have somebody like Nandor Tanczos or Sue Bradford from the Green Party potentially ending up as the Minister of Conservation.

Jill Pettis: Shane, you are blinding us with your brilliance.

SHANE ARDERN: I ask the senior Government whip, who is chirping away over there, to take a call and tell me that that will not be so—to rule it out absolutely. Her colleague the Hon Jim Sutton, the Minister of Agriculture, certainly will not. We have put it to him a number of times, and he certainly has not ruled out Sue Bradford as the next Minister of Agriculture or Minister of Conservation.

Let us look at what this legislation will do in terms of the power of veto it gives to the Department of Conservation. To start off, through an Order in Council the Minister of Conservation can prevent, or impose conditions on, proposed allocation of space. On the surface, that does not sound too bad, if there is a responsible Minister. But, as I said, the chances of that happening are not great, at all. The department gives effect to Government policy on the ability to include the Treaty of Waitangi clauses in allocating space. So there is a second issue that may or may not cause some kind of humbug there. The department can also, under the Resource Management Act, submit an individual consent or objection—that is, the Department of Conservation or its Minister, or “Minister Smith”, whom I have spoken of, could put in a private objection through the Resource Management Act process. If that fails—if the department still has not killed the aquaculture proposal, which clearly would be the objective of that group, based on its track record thus far—then it can effectively veto an allocation at the last hurdle, under the guise of giving effect to Government policy. I ask the Minister in the chair to take a call and put to bed the fears of those who submitted to the very good Primary Production Committee with those concerns. I am sure he will have a view on that.

I also ask the Minister to take a call to explain how the aquaculture management areas process will work, in a practical sense, with the Department of Conservation having so much power over it. I say to the Minister that, given the track record of the Department of Conservation so far—its “preservation at all costs and to hell with business” sort of approach—the department will kill any proposed aquaculture management area or any proposed aquaculture investment that may be put forward. I also ask that the Minister take a call to explain to those who may be interested in investing millions of dollars in this industry why they would even bother to go through that process when there is so much uncertainty about the likely outcome.

This industry, particularly with the huge developments in technology that are taking place, potentially could be one of this country’s biggest export industries. It is a growing industry. There is huge opportunity looking forward. With the kind of power of veto that is given to the department under this legislation, why would people even bother to come to New Zealand and look at the proposal? They would look at other opportunities internationally and find that anywhere else in the world, potentially, they could have an easier go at it.

Hon DAVID CARTER (National) : In my earlier contribution, I raised questions with the Minister regarding the power of the Minister of Conservation under clause 4A(b). I now want the Minister to take note of new section 165O, inserted by clause 21, concerning the power of the Minister of Conservation, because it is even more dramatic, or more draconian, than the clause I referred to earlier. We have here legislation that gives the Minister of Conservation the ability to affect Government policy. If Government policy was all about the genuine promotion of the aquaculture industry, then I would be completely satisfied. But submitter after submitter came to the Primary Production Committee and said that although they hoped the select committee would be able to tidy up the mess around security of tenure, they were equally focused on, and concerned about, the power of the Minister of Conservation.

As a number of my National Party colleagues have already said, at the moment the power of the Minister of Conservation rests in the hands of one Kevin Smith, the Royal Forest and Bird Protection Society man in the Minister’s office. What about after the election? God forbid that this occurs, but if Sue Kedgley were to become the Minister of Conservation—

Ian Ewen-Street: Very good call.

Hon DAVID CARTER: Ian Ewen-Street says that that would be a very good call. I am not so sure about that. We have seen reports in the paper over the last 24 hours that Sue Kedgley says it is bad to eat strawberries. Here we are, a week away from Christmas, and the Green Party has a policy that it is bad to eat strawberries. Why is it important for the Minister to be concerned about that? What if the next thing she says is that green-lipped mussels are bad for us? We could then have the Minister of Conservation—who could be Sue Kedgley—saying we should not eat mussels. For God’s sake! I say to the Minister that under this legislation the power exists for that to become Government policy and to stop aquaculture in its tracks.

So if the Government is not putting those provisions in the legislation for good reason, it should take them out. It should support the amendments that will be advanced by Phil Heatley, the excellent fisheries spokesperson for the National Party, and get rid of new section 165O. It should listen to the submissions of the likes of the New Zealand Law Society, which told the select committee that in terms of all the legislation it has made submissions on, that provision was as draconian as any provision it has ever seen. Submissions like that need to be taken note of, yet the Minister in the chair, David Benson-Pope, will not justify why a provision like that in new section 165O(2)(a) needs to be in the legislation.

I also want to refer to new section 165W and the subpart associated with private plans. This legislation allows an avenue whereby aquaculturalists who want to expand their operations can do so by means of a private plan change. But the industry said to us that if it goes down that path, it must gift 20 percent of the space to Māori. That is fundamentally wrong. Why should an industry player have to go through the process, at huge cost, of promoting a private plan change, and then lose 20 percent of the space to Māori? Not only do aquaculturalists lose 20 percent and bear all the associated costs but Government policy is even more stupid than that. What benefit is it to Māori to pick up 20 percent of all the little private plan changes around the Marlborough Sounds? The answer is that it is of no value to them, at all.

Those are the two points that I want the Minister to answer. I see the Chairperson is indicating that we have to get closer to the debate. He should pick up the legislation and look at it, because he would see that that is in Part 1. New section 165W starts off new Subpart 2, “Privately initiated plan changes”. What privately initiated plan changes are all about is that people who want to expand their operation will have to go through a process with the local council and, if they are successful, they will then lose 20 percent of the space to Māori. That is wrong. The Minister, David Benson-Pope, can sit in his chair if he wants, but I call on him to stand today and justify that. Why should an industry player have to pay the costs associated with going through a private plan change, and then gift 20 percent of the space to Māori?

Hon DAVID BENSON-POPE (Minister of Fisheries) : I make no apology, and neither does the Government—nor would, I think, most New Zealanders—for including in this bill statutory powers for the Minister of Conservation and also for local government to ensure that those privileges—and privileges they are, to have use of the public domain and public common space—are properly safeguarded. Having said that, I know the previous speaker is only too aware that much of what he is saying is not quite as close to actual fact as it might be, given his familiarity as the chair of the Primary Production Committee with a lot of the issues.

In terms of what is happening around this legislation, I can do no better than to read out the statement that was released today by the chairman of the New Zealand Aquaculture Council, Callum McCallum, who stated, among other things, that: “The bill as reported back now is a summary of a huge amount of effort from industry, Government, and officials, and from regional councils. Industry has sought law changes that will support and encourage existing investment in New Zealand aquaculture and will create the right environment to allow sustainable development of New Zealand aquaculture towards the industry targets of $1 billion export annually, and so on.”

I am delighted that the industry has the vision that is so palpably lacking on the Opposition benches. I am delighted that because of the extensive cooperation between the parties involved, such as the Ministry for the Environment, the Department of Conservation, the Ministry of Fisheries, local government, the industry, and also some members in this Chamber—though notably not from the National Party—we are now in the position to take the moratorium off, as the National Party asked me to at the start of the year, and to unleash the amazing potential that exists in this industry.

GERRARD ECKHOFF (ACT) : I would like to take a call with regard to new section 165U, “Tender money”. There has been a lot of nonsense spoken about this particular issue—about the fact that this is public space and, therefore, we should give regional councils and the Government the right to charge whatever they like. Let us just think for a moment or two about some other industries in this country that use a public resource. What about the use of fresh water by Meridian Energy, Genesis Power, and Mighty River Power? Those companies use a public resource. Do they tender for the use of that water? I do not think so. So why do we not apply a consistent standard right across the board, and say that everybody who uses a public resource should tender for it? Well, that does not happen. For example, all the natural gas and oil reserves are public property and resources, so why, in many cases, do the oil and gas companies not have to tender to drag those particular valuable commodities out of the ocean floor? What is the difference between those companies and somebody who, in many cases, puts up vast amounts of capital, goes through an extraordinarily elongated process to get a resource consent, possibly even has to compete with the Department of Conservation in tendering for a particular space, and then finds that he or she is being whacked with a huge rental for the use of that space?

The Government is totally ignoring the fact that there is unemployment, and that there is a very valuable use of that capital by an export industry. The aquaculture industry is potentially a multibillion-dollar industry, yet the Government and regional councils are saying that they will charge for the use of that public resource. Well OK, if the Government and regional councils are to do that, then they should do it right across the board, and apply it to Solid Energy, as well. Solid Energy takes vast amounts of coal, which is a public resource, out of the ground, so why do we not get it to tender for its use of coal, which is our resource? This measure is an inconsistency, and it is an example of how poorly the Minister in the chair, the Hon David Benson-Pope, has thought through some of the fundamental issues. The tendering process does allow for the best use. If we did have to tender for all public resources, then we would end up with the highest use possible, and that is not a bad system.

I draw the Committee’s attention to the use of the public resource we call “fish”. We have a quota management system that is absolutely brilliant in comparison with anything else that we could have in terms of allocating that public resource, but we can imagine what would happen if somebody with quota had to re-tender every few years for it. We would probably find that the Department of Conservation, with its $300 million or $400 million allocation—as it probably will be next year—could outbid everybody and leave everything alone, while we just try to eke out a living back on the land, if we are still allowed to do that under that department, as well.

So I really cannot see why we have a tendering system whereby a marine farmer’s application has to go through a very, very elongated process—a process that will cost the farmer tens of thousands, if not, hundreds of thousands, of dollars—only for the farmer to be then faced with having to re-tender for space when it becomes available after the 20-year process. There will be regional councils that could be potentially controlled totally by the Green Party, by that time. My God! We have only to quickly visualise that scenario to recognise what an appalling situation it would be. Where in this bill does it state that a regional council must accept the highest tender? As often as not, when something is tendered there is a statement: “The highest or any tender not necessarily accepted.” So now there is another process whereby a regional council could veto an application.

Dr LYNDA SCOTT (National—Kaikoura) : A great many marine farms happen to be in the Marlborough Sounds, which is a beautiful area that I represent at this time. Colin King will be the next MP for that area. He is a great guy. He is a farmer; a good hands-on farmer, who knows what it means to work. If he were the Minister in the chair, he would get up and speak for more than 1½ minutes. This Minister, the Hon David Benson-Pope, could manage only 1½ minutes. I was timing him—1½ minutes, and he did not get it right. I have to ask what this Minister actually knows about this bill. This is a big test for him. All he could do was stand up and quote a press release from the Aquaculture Council. Well, the council said the bill is better now—but it could not have become any worse, I tell the Minister. It absolutely could not have been any worse. It was an absolute shambles, because what started off as a vision to try to get this country’s aquaculture industry growing at the rate that it should be growing turned into a moratorium under this Government, and it was bogged down.

The Ministry of Fisheries, the Department of Conservation, and local government were all fighting about what should happen, but who on earth was representing the aquaculture industry? It was not this Minister, or the Minister before him, the Hon Pete Hodgson. Who was standing up for the aquaculture industry? Of course, the Government says that this is better—because the original bill was just a mess. What the industry wanted was a one-stop shop. It does not have that. What it wanted was some finality and to be able to get on and practise the business that it knows about and that it has built in this country. The marine farmers of Marlborough built a fantastic industry without a huge amount of Government interference, and with that they were the highest-income earners for that region. They had an industry growing at a rate of 20 percent.

I ask the Minister what the growth rate is now. Does he know? It is zero percent. There has been absolutely no growth, while the rest of the world is growing at 30 percent. This industry has been brought to a standstill by this Government. Of course the Aquaculture Council says that it wants to get on with it, it is happy, and it wants things to move ahead. Of course, it had to put a huge amount of work into it. It always surprises me that bureaucrats manage to get it so wrong. These industry people work in the field every day, but some bureaucrats in Wellington have never actually been to a marine farm. I remember when the Primary Production Committee came down to Marlborough—we finally got them out of Wellington—and its members were all looking around and asking where the marine farms were. They had the impression that they were wall to wall across the Sounds, which of course they are not. But what I have to ask under Part 1—and I want the Minister to answer this; he started to answer it before and he did not go any further—is if a private plan change occurs for a private person, and 80 percent goes to him and 20 percent goes to Māori, why on earth would Māori want just a little patchwork here, there, and everywhere?

Hon David Benson-Pope: It has changed. The member should read the bill.

Dr LYNDA SCOTT: It has not changed. The Minister does not understand the private plan change. If we look at Marlborough where a lot of people have their individual farms, which will become aquaculture management areas, if they make a change then 20 percent will go to Māori. Why would Māori want just little patchwork areas here and there? I cannot see that. Who will be the Māori who would get that? There are eight iwi in Marlborough, and I ask which would be the relevant hapū. How will they sort that out?

The provisions of the bill relating to aquaculture management areas and the 20 percent space to Māori came from the belief that Māori did not get a fair go in Marlborough. Māori have 30 percent of the marine farms in Marlborough at this point in time. If they get another 20 percent under this bill, they would have a total of 50 percent. Where did this idea come from, originally, that they did not get a fair deal in Marlborough? That is not the case. Marlborough has a unitary authority, and that was a really big breakthrough in local government. A lot of other areas should consider doing that. It makes it easier for Marlborough to be progressive in the developing of aquaculture management areas.

The industry was desperate for first right of refusal. These are the men and the women who have been out there forging an industry for New Zealand, and it is a wonderful industry with a very healthy product.

Dr the Hon LOCKWOOD SMITH (National—Rodney) : The Minister owes the Committee the respect to explain some of the complex issues contained in Part 1. I want to focus particularly on something said by my good colleague David Carter, the chair of the Primary Production Committee. As chair he has some detailed knowledge of this bill; I confess that I do not—I am just reading the bill as it is in front of us. What I think deserves clarification is the issue around the new sections inserted by clause 21, starting probably at about new section 165X. The Primary Production Committee, by majority, inserted a whole new section 165Y, going through to section 165Z, and to 165ZA.

I would like the Minister to focus on those sections in particular, because they relate to where an individual seeks a change. It seems that the select committee suggested that the word “plan” should be dropped and it has suggested “request for change”. As I understand it, these sections cover changes to areas that are covered by aquaculture. What is important is what exactly is meant here. There have been allegations that if an individual seeks a change—and the individual is going through all the expense of seeking the change—and should a council grant that change, 20 percent of any area would be allocated to Māori.

I think the Minister spoke to the Chair, Ross Robertson, to indicate that that may not be covered by this part—if I correctly interpreted the Chair’s hand signals. They were such that he wanted my good colleague David Carter to come back to this part of the bill. What is troubling me, though, is that it seems that this part does refer to this issue. I draw the Minister’s attention to new section 165ZA, “Acceptance of request or part of request for change”, which all goes back to section 165X and the issue of request for changes. What it actually states under subsection (1) is: “If the regional council accepts the request under clause 25(2)(b) of the First Schedule, the council must specify that the person or persons who requested the plan change are to receive an authorisation under section 165ZB for 80 percent of the available space in the aquaculture management area.” It seems to me that the difference between 80 percent and 100 percent is 20 percent. The question is: what happens to the other 20 percent? Is that the 20 percent that is being actually withheld and allocated to Māori, or is that in addition to 20 percent that has already been required to be allocated to Māori? This is what I believe that listeners deserve to be advised on, and I would appreciate if the Hon Damien O’Connor would take a call—and I think he is one of the better Ministers in this Labour Government. I have to confess that I think he is actually a darn sight better Minister than the Hon David Benson-Pope.

But the public does deserve to know what this means. Does it mean that where a change is requested—an additional area, perhaps; say an existing aquaculture farmer, for want of a better word, has sought a change and been able to expand his or her operations, and goes into a new area—in accepting this request the council has to allocate only 80 percent? Will that remaining 20 percent be allocated to Māori? Is that totally separate? If not, where does that 20 percent go? Or is that 20 percent in addition to an overall 20 percent allocation that is being made to Māori out of aquaculture allocations in New Zealand? Because we hear it said, from those who have been on the Primary Production Committee, that, in fact, to bring Māori up to 20 percent overall, 40 percent of new allocations could be going to Māori.

I just think that the public of New Zealand deserves an explanation because clearly these clauses I am referring to refer to changes. They refer to what someone will have to go through and pay for if he or she is seeking an expansion to an existing aquaculture area. We deserve to know, because it is not clear from the new sections. Does this mean, if there is a new area to be allocated to an existing farm, and he or she goes through the aquaculture operator, or through the cost of seeking it, 20 percent of that new area will be allocated to Māori?

SANDRA GOUDIE (National—Coromandel) : I would like to agree with my learned colleague on what has been said in the Committee about the atrocious nature of the amount of aquaculture space being accorded to Māori through the process of this bill, when I note that there is no justification for it, because aquaculture has existed only in the last 40-odd years. So really where is the premise on which that allocation has been based? I think it is disgraceful. I note that the Greens think it is a logical sequence of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. I cannot understand why they would support that—or actually, perhaps I can; it is the type of thing they would support. But why should they? If this is something that is new and did not exist in 1888, or whatever, why should they be accorded that particularly, or especially? Why will they have that ongoing advantage—and not only that, the advantage of having authorities or organisations under the Tax Act that pay only 19.5c tax in the dollar? So there is no level playing field when it comes to their operations in regard to other operations, which are managed by other organisations that do not have that exemption.

SANDRA GOUDIE: I shall resume my discussion on the 20 percent gift. In essence, that is exactly what it is—a 20 percent gift to Māori if one applies for a plan change to undertake aquaculture marine farming in an area. [Interruption] Does that come under the definition of koha? Well, it does, because a koha is a gift, and that is a 20 percent gift. We have already had the brain drain as a result of the huge delay in this legislation coming to some form of finalisation. People have gone overseas to establish marine farming in other countries. So we have had a brain drain in that regard. Why would people want to even bother looking at marine farming further in New Zealand if they now have to give a 20 percent gift of that area they are applying for when they apply for a plan change? As we know, if they want to establish a new area they have to go through a plan change under the Resource Management Act, and that is after they have applied for authorisation from the Ministry of Fisheries.

First, they have to apply to the Ministry of Fisheries for an authorisation. When they get that they then apply for their plan change. Imagine if a farmer on land had to give up 20 percent of his or her farm if he or she applied for a consent or a plan change! That would be absolutely unthinkable. I cannot understand why the Government has gone anywhere near this when, as I said before, aquaculture is a new industry for New Zealand. It has not been historic, or been part of the lifestyle or the culture of anybody before 1920 at the very least. It has been suggested that aquaculture has been around for about 40 years, but certainly in the last 10. It has been a significant advance in innovation in our marine area, but then of course it became absolutely stifled by the delays in coming to some sort of finalisation.

We are appalled that there will be that 20 percent gift, and by the time it is added up, it will be looking like 40 percent. When one has to go through the processes that one has to go through, the Department of Conservation can make life very difficult and add incredible cost to the whole process. The department can be an objector under the Resource Management Act.

The CHAIRPERSON (H V Ross Robertson): We are talking to Part 1.

SANDRA GOUDIE: We are talking about private plan changes under the Resource Management Act in Part 1. This whole section refers to the Resource Management Act and also crosses into all the other sections. However, as we know, the Resource Management Act is a pretty dreadful document when it comes to applying for anything. Of course, the proposed amendments by this Government will make it incredibly worse, especially when it is affording iwi authorities just about the same status as local authorities. When people apply for a plan change I do not think they will be prepared for the amount of time and money involved to go through that process. It will take only one or two applications for the whole thing to grind to a halt yet again. We have seen that on land and we will see that on water; people will halt the process to such a degree that the activity will be driven off shore. People will not want to invest, yet again, in another industry that has huge potential.

Hon MARK BURTON (Minister of Defence) : I move, That the question be now put.

JIM PETERS (NZ First) : I particularly wanted to raise the issue that has been raised by other speakers in this short debate with regard to new section 165C(1)(aa) and new section 165C(2A), in clause 21. They refer directly to the issue of the so-called Māori allocation. I want to establish the exact position of New Zealand First.

In the first reading debate I raised the issue of the 20 percent threshold. As a caucus we carefully went back through this issue as it became more and more clear that 20 percent would be set down as the threshold. When I started to look at why that should be, I came to the Treaty of Waitangi (Fisheries Claim) Settlement Act, which has already been much quoted in the Chamber this afternoon. I found that a memorandum signed by the Crown and Māori set the level at 20 percent. At that time the National Government—and I was hoping Dr Nick Smith would be here, because he was here at that time—did a most extraordinary thing. It moved the first reading, second reading, Committee stage, and third reading all at once because it was so keen to implement that newly discovered threshold of 20 percent. Therefore, when I heard the Hon Nick Smith say earlier that the 20 percent allocation was based on race, I reflected back to 1992 and saw very, very clearly that that allocation had been set then with regard to the narrow issue of fisheries.

When I went one stage further and looked at the material and documentation brought to the House at that time, I found that it was very difficult, as has been already stated by one member, to see whether that was so. But, in reality, I believe that the National Party should have credit for its Government’s far-sighted move back then, which, by the way, was opposed by I Peters and W Peters. It was a very far-sighted move on its part. Rather than go back in time as the Hon Nick Smith did, it is far better to see that that threshold is one that we have come to understand—unwillingly on our part—should stand in this legislation. The National Government at the time, with the Hon Doug Kidd and the Hon Doug Graham, set it down. By the way, other members of the House who were here at that time have verified for me that although it was not formally discussed, it was mentioned in caucus and in relevant discussions at the time. That has come from members of the then select committee.

Hon David Carter: No, that’s wrong.

JIM PETERS: The member who has called out that is wrong was not here at the time; he does not know exactly what we are referring to, so his “wrong” is right!

I want to say very firmly again that what the National Government did right back in 1992 has clarified for New Zealand First members where we should stand in 2004. In so doing, we know that there are immense complications in this matter when it comes to Māori iwi having to resolve what should be, in my mind, a hapū and whānau issue. But we accept the bill because we also accept that it gives a huge economic and social opportunity to the country, but particularly to my region of Northland. The process, with regard to aquaculture management areas being identified, of setting aside a 20 percent piecemeal allocation for Māori is a very small concession to pay on the part of would-be marine farmers in regard to their total ability to have investment and have a future such as we know this industry can achieve.

Hon DOVER SAMUELS (Minister of State) : I move, That the question be now put.

A party vote was called for on the question, *That the question be now put.*
Ayes 70	New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.
Noes 50	New Zealand National 27; New Zealand First 13; ACT New Zealand 9; Māori Party 1.
Motion agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 4A be agreed to:

to omit paragraph (b).

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 21 be agreed to:

to omit from subparagraph (i) of new section 165I(1)(b) the word “necessary” and substitute the word “essential”.

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 21 be agreed to:

to omit paragraph (a) of new section 165O(2).

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 21 be agreed to:

to omit paragraph (b) of new section 165O(2).

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 21 be agreed to:

to omit paragraph (c) of new section 165ZF(1).

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the following amendment in the name of Phil Heatley to clause 21 be agreed to:

to omit subclause (2) of new section 165ZF.

A party vote was called for on the question, *That the amendment be agreed to.*
Ayes 36	New Zealand National 27; ACT New Zealand 9.
Noes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 319 in the name of the Hon David Benson-Pope to Part 1 be agreed to.

A party vote was called for on the question, *That the amendments be agreed to.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 37	New Zealand National 27; ACT New Zealand 9; Māori Party 1.
Amendments agreed to.

A party vote was called for on the question, *That Part 1 as amended be agreed to.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 37	New Zealand National 27; ACT New Zealand 9; Māori Party 1.
Part 1 as amended agreed to.

Part 2 Fisheries Act 1996

The CHAIRPERSON (H V Ross Robertson): The question now is that Part 2, which includes clauses 36 to 53 and debate on schedule 2A, stand part.

Hon DAVID CARTER (National) : We move on to another very important part of the legislation, whereby we amend the Fisheries Act 1996 and develop a system that recognises the ever-competing interests of aquaculture with the other uses of coastal space. The Primary Production Committee was inundated with submissions from people who were concerned about the Ministry of Fisheries’ role, particularly with regard to the undue adverse effects test. I can sympathise with the submitters. They have had years and years of management—or more correctly mismanagement—by the ministry. There was a distinct lack of confidence that Part 2 could, if enacted, be competently carried out.

I have become very familiar with the legislation, and I think this is one aspect of it that the bureaucracy has got right. The bureaucracy has acknowledged that there would be competing interests for aquaculture space. Having accepted that, it has tried to develop a mechanism whereby the most economic use of space will come to the fore over a period of time, and I support that. As we got into the debate, it was clear that when aquaculture was proposed as a use there were three sectors of rights that could be adversely affected: customary fishing rights, recreational fishing rights, and commercial fishing rights. Most of the committee members were of the opinion that if customary fishing rights and recreational fishing rights were to be severely affected, then aquaculturists had to consider finding somewhere else to go. There was an interesting debate around the possibility of a conflict of interest between existing commercial fishers and a proposed aquaculture use. That is an interesting issue, when we consider the property rights that are being conveyed on to commercial fishers via the quota management system.

I would also like to pick up on the comments made by Jim Peters earlier in the debate, when he talked about the 1992 deed of settlement. I say to him that the 1992 settlement was very explicit about what it was for. It was a settlement to enable quota management to occur, and a settlement of all issues regarding commercial fishing, whether it was on shore, offshore, or coastal fishing. Therefore, it quite clearly included aquaculture. But it was also a settlement whereby at that stage, in recognition of Māori interests in commercial fishing, 20 percent of all the species that were to go into quota would go to Māori. The National Party has no objection to that, at all. In clarifying what Mr Jim Peters said, let me say that we certainly object to the folklore that has developed at present around unfinished business, but I will talk about that at later stages.

With regard to the undue adverse effect test, that acknowledges that if the Ministry of Fisheries recognises that an application for aquaculture will severely impact on commercial fishing rights, then we have to develop a process whereby there can be some settlement of that. The legislation as it has come back from the select committee goes a long way towards doing that. The first hurdle the committee had to overcome was a distinct recognition that a property right was associated with people who own quota. In my personal view that was not a problem, but I think many members on the select committee had a problem in grappling with the importance of that property right. Once we had achieved recognition that there was a property right, then the ministry test had to judge whether the property right was affected adversely enough, and we discussed through the select committee processes whether undue adverse effect and the wording associated with that was a strong enough test. At the end of the day, I accept what the officials told us—that the test was severe enough—and I hope that proves to be the case.

The undue adverse effect must be significant. However, the solution to the recognition by the Ministry of Fisheries that there is an undue adverse effect is a process of negotiation between the commercial fisher whose property right is affected and the proponent of aquaculture. The bill as it came before the select committee was, in the opinion of the committee members, unworkable, in that the proponent of aquaculture had to obtain 100 percent agreement from all affected commercial fishing property-right owners. After long deliberations, and with considerable input from the submitters who appeared before us, the possibility of getting 100 percent agreement became a threshold that was too high for the select committee to accept. We therefore developed a significant change in that area, whereby a 90 percent acceptance on the part of each and every quota holder by quantum is enough for the test to be satisfied.

We then dealt with the issue of the remaining minority 10 percent. The Green member Mr Ewen-Street—who, I must say, put an extremely large amount of work into this legislation, and I thank him for that—was of the opinion that maybe that 10 percent had had the opportunity to come to an agreement and, if it had not, that was simply tough luck. In my opinion that was miles too tough. In many cases, it is actually relatively easy to get 90 percent agreement between quota holders, because one is dealing with only a couple of them. Maybe some people who own a limited amount of quota would be in that 10 percent group. They have a right to some satisfaction, and through the select committee process a mechanism was developed whereby they will be paid out. It is a little like the takeover situation that occurs regularly on the stock exchange now, whereby once an acceptance has been reached with 90 percent of shareholders, the remaining 10 percent of shareholders are compulsorily wiped out. The select committee has provided a mechanism whereby the people who own the remaining minority 10 percent of quota interest at least have the protection of the High Court. The High Court has the opportunity to measure whether the amount of compensation being paid to the other 90 percent of quota holders is a fair and reasonable amount.

I think that the select committee has come up with a vast improvement to the legislation as it was originally submitted to the House, and that the officials have developed a mechanism that well and truly recognises the competing interests. But at the end of the day it is a matter of the most economic use of the space for New Zealand incorporated, and that comes down to who can make the most money out of any particular spot. In saying that, I have little doubt that if one measures that on a hectare-by-hectare basis, then, because of its intensity, aquaculture will win the day. Having said that, I say that a property right is a property right, and that if quota owners are significantly affected, then they must be compensated to an extent that makes it worthwhile for them to give away their property rights in order to allow aquaculture to develop.

I think that is the major change that has been developed in Part 2. There are a number of other minor changes that I want to take the opportunity to speak to through the Committee debate, but I look forward to hearing the Minister’s answers to the questions I have raised. I note we now have the third Minister in the chair, the Hon Marian Hobbs. We hope she understands the bill somewhat better than the Minister does. He clearly does not understand it at all. That was shown by his answers to an earlier point in Part 1, which I will take the opportunity of re-raising in Part 5, regarding the 20 percent and the patchwork-quilt effect.

GERRARD ECKHOFF (ACT) : I refer to paragraph (b) of clause 36A, “Purpose”, which states: “require all fish farmers to be registered under the Fisheries Act 1996;”. I have a very simple question for the Minister in the chair, the Hon Marian Hobbs: why? It is not a difficult question. Why do we not require all farmers on land, for example, to be registered? The principles of farming are pretty much the same in both contexts. Why do we not require everybody to be registered, and have a huge Big Brother to keep an eye on things? Why do fish farmers need to be registered? Once they have been allocated space in an aquaculture management area, why on earth should they then have to be registered under the Fisheries Act 1996? What useful purpose will that serve? Will it determine whether a fish farmer is a good, a bad, or a mediocre fish farmer? What are the sanctions—

Simon Power: A sufficient fish farmer?

GERRARD ECKHOFF: Exactly. What are the sanctions if someone is deemed to be a poor feeder of fish or a bad fish farmer? The mind starts to boggle. Will the Animal Welfare Act be invoked against fish farmers if they do not feed their fish adequately? What is the purpose of that measure? Why are we adding more bureaucratic structures to the industry, when they are not needed?

I can only assume that it is all part of a bureaucratic structure that ensures that everybody is registered and accounted for. We will have people poring over information to ensure that everyone is registered and up to date. That raises an interesting question: are fish farmers to be registered on a yearly basis, or a 5-yearly basis? How often are they to be registered? And what happens if they let their registration lapse? What will occur then? What sanctions will there be against fish farmers if they are deemed to be unregistered? One finds the situation is quite extraordinary, when one thinks about it. I ask those questions of the Minister in the chair, the Hon Marian Hobbs, who seems to be busy with her Christmas cards and is not overly interested in this debate. [Interruption] I withdraw and apologise to the Minister. She is actually doing some writing. It is nice to know that that is keeping the Minister occupied. I am not really getting an answer on that matter.

The other issue is that of fishers unduly affected by the proposed aquaculture agreements—the management areas—and of persons who wish to undertake aquaculture activities in their area. Let me inform the Committee of the comments made by the New Zealand Aquaculture Council, which essentially said that the undue adverse effects test on fishing that is to be carried out by the Ministry of Fisheries uses a process that, to marine farmers and fishers, is not transparent. The council said that the process cannot be appealed on substance, but only via judicial review, and that there is also an option for an aquaculture agreement to be entered into with affected fishers, although every quota holder and every fishing-permit holder in the area must agree. I understand that that has been altered somewhat and that there is now a provision for 90 percent acceptance, which, of course, is perfectly reasonable. However, I can foresee a time when even that change will not be sufficient. The New Zealand Aquaculture Council believes that the provision is unrealistic and unworkable. I cannot see an opportunity for even a 90 percent agreement to occur in many areas. So what will happen when we get a Mexican stand-off type of situation? As far as I can see, there is no mechanism in the bill that will enable some movement to occur.

IAN EWEN-STREET (Green) : Under the present legislation, if people want to establish a marine farm they have to get resource consent and then go to the Ministry of Fisheries for a fishing permit. This legislation proposes that those two steps be amalgamated into one, so that the input from the Ministry of Fisheries is much earlier in the decision-making process. If a council wants to declare, or to increase the area of, an aquaculture management area, it invites the chief executive officer of the Ministry of Fisheries to make an aquaculture decision about whether there is an undue adverse effect on quota holders or other fishers—and it is not just quota holders; it is people who have fishing permits for non-quota species, as well. The hurdle to jump over is actually quite high. The chief executive officer has to say, firstly, that there is an effect, secondly, that it is an adverse effect, and, thirdly, that it is an undue adverse effect. As the bill was reported to us, if the chief executive officer said that yes, there was an adverse effect—in other words, said no to the council—it was a “black box” decision. The council invited the Ministry of Fisheries to make a decision and, if it said no, that was the end of it. There was no recourse except for, perhaps, judicial review.

We did two things at the Primary Production Committee, and I think they were very positive steps. First, we allowed people to appeal the chief executive’s decision to the High Court on matters of substance as well as process, so that substantive issues could go to the High Court. Second, we provided that the alternative the applicant has is to seek the aquaculture decision that my colleagues have described, whereby the person who is seeking to have a marine farm goes to the affected fishers, whether they are quota holders or permit holders, and seeks their agreement, whether by paying them money or by some other agreement—

Dr Lynda Scott: That’s bribery.

IAN EWEN-STREET: No, it is a commercial decision; it is not bribery. The applicant seeks their agreement to allow aquaculture in that space. I need to point out that we are not talking about fin-fish species—the migratory or the mobile species that can just swim away. If fishers have a quota for kahawai, tuna, or something like that, it is very unlikely to be affected by a marine farm. The kinds of species that we are talking about are the sedentary ones. I guess that species like scallops and oysters are the main ones, but it also applies to crayfish and other relatively immobile species like that. Those quota holders and permit holders have to be consulted by the people who want to get the aquaculture management area, whether it is by the council or the individual applicant.

My colleague David Carter said that I was a bit tough on the people who were left out when the agreement of 90 percent of the affected people was reached. My argument at the time was that if the applicant for a marine farm had been around to everyone and had got the agreement of 90 percent of the affected people, we did not really want the last 10 percent to hold out just for a better price. My argument was that they had had their opportunity, and that they could either accept the price that was offered or miss out completely. On reflection, I think I was wrong in making that call originally—I think it was a bit tough. But I do think that the remaining 10 percent of affected people should not have an incentive to hold out. Those people should get the same price as the other 90 percent—the average price—or a price that is equivalent to what they got. The fall-back position, if no price can be agreed on, is recourse to the High Court.

BERNIE OGILVY (United Future) : As we are aware, to make aquaculture a realistic occupation and business we had to make changes. There was a need for changes to the Fisheries Act 1996, and Part 2 relates to that. I want to just touch on two or three things. This whole part, in the way it has ended up, is very workable and worthwhile, and I think the industry will be a lot stronger for it.

One of the things that came across very early related to section 186E, “Chief executive to make aquaculture decision”, in clause 41. Originally, that provision stated that the chief executive had to make aquaculture decisions “as promptly as was reasonable in the circumstances,”. The select committee saw fit to put a deadline on that, rather than to allow him just to go on and on. The submitters told us many, many times about a sort of death by no answer, and they did not want that again. So we put in “Within 6 months”. I thought that was a good threshold of time within which everybody could put in requests. It would allow time for everybody to examine and put some legs to this legislation, with particular reference to the fisheries part of it.

The second thing I make reference to relates to the undue adverse effect on fishing. A number of speakers have made reference to that. It really is the hub of certainty for commercial fishers, who have been alluded to and talked about, but I recall that the chief executive has to ensure that customary fishers as well as recreational fishers are satisfied. The undue adverse effect test is put in so that everyone can ensure he or she is covered and is not neglected in the negotiations or the inquiry to have an aquaculture management area. My friends the recreational fishers are very, very happy that there is room for them to state their case and have the chief executive stand by and apply that test to the entire process of establishing an aquaculture management area.

We think that, with regard to the undue adverse effect test, if the elements illustrated in new section 186G(a) to (f), inserted by clause 41, are not picked up by the regional councils and the chief executive, then they are failing in their duty. By the councils and the chief executive applying those things as their duty, the aquaculture farming industry should go ahead without as much default as in the past. So this is good legislation.

The last provision I make reference to is section 186ZD, “Fishers whose consent is necessary for aquaculture agreement”, which relates to the owners of commercial fish quota. That has been spoken about before. When the bill came to us initially, the proposals were fairly weak and draconian, and possibly left a no-win situation for everybody. The present bill gives a clear 90 percent quota arrangement. If people cannot meet that, then the 10 percent can be bought out, as in a stock exchange parallel. But there is a process beyond that; if people wish to appeal, they can. I think the High Court process that has been put in place strengthens this Fisheries Act and makes the position certain for everybody within the industry.

So I am glad that Part 2 has been modified and strengthened from the provisions we first saw. I think we have taken account of the views of virtually all of those who objected by way of submissions.

PHIL HEATLEY (National—Whangarei) : I have to say that the issues regarding undue adverse effects and how commercial-fishing interests meet—and in many cases collide with—aquacultural interests were of intense interest to us on the Primary Production Committee. We had quite robust discussions with submitters as they presented their views.

On the one hand, aquaculturalists came forward and said, on the whole, that although they acknowledged that commercial-fishing interests have a part to play in the marine area—which is clearly obvious—they felt that the powers given to commercial fishers in terms of thwarting aquaculture were far too tough. On the other hand, commercial fishers, on the whole, put forward their property rights and their concern that aquaculture should not develop too rapidly and too well in too many areas such as to impede commercial fishing, particularly where sustainable commercial-fishing takes are proven and have been consistent over time. The committee members listened to those contrary views. We had robust discussions with proponents of both sides of the debate and came to some agreement, as outlined in the clauses before us now.

However, there are still some unanswered questions on how aquaculture interests will be balanced with commercial-fishing interests into the future. National Party members support greater interaction between the two sectors. Together, they must have timely, fully transparent, and cost-effective processes in order to come to some conclusion about the future of both in a particular area. The process as it stands is a split one. Marine farmers came to the ministry many years ago and said that the two-stage process whereby they got a fisheries permit under the Fisheries Act then a resource consent under the Resource Management was too time consuming, exhausting, and costly. They needed a one-stop shop. I know that the ministry looked hard at giving them a one-stop shop. It has not come up with a one-stop shop, but with a process that is probably as close to it as one can get.

If we explore the clauses here, we discover that the process is still in two stages. The regional councils will look at the environmental effect that aquaculture may have on commercial fishing, and the Ministry of Fisheries will look at what spatial restrictions aquaculture places on commercial fishing. When the regional councils go to the ministry for an aquaculture decision, it will simply ask how the spatial element of an aquaculture management area will affect commercial fishers. How will it affect the access of commercial fishers to their fishery? One can imagine that with highly mobile fish stocks such as kahawai, as I think the Green member mentioned, or snapper, or with those fish that are way offshore where there is no aquaculture issue, such as tuna and that type of thing, a marine farm will not have too much spatial impact. The fish are mobile; they will simply go elsewhere and be caught elsewhere. There is not much argument around that. But with largely immobile species, such as crayfish or scallops, or species that are inshore where marine farms are likely to be, such as flounder or mullet, there will be some sort of spatial impact on commercial-fishing interests.

The Ministry of Fisheries has to make that decision, but it is restricted solely to that spatial element. It has no say on what environmental effects marine farms might have on commercial fishing, at all.

Dr LYNDA SCOTT (National—Kaikoura) : I wish to follow on from where my very good colleague Phil Heatley finished off and talk about the undue adverse effects of aquaculture on fishing. In the Marlborough Sounds, at the moment the farms are really quite small in relation to what is being proposed with deep-sea farming. Deep-sea farming is quite experimental and as yet has not really been trialled because of the moratorium, but it is the next big step for marine farming in New Zealand. If it goes ahead and proves to be successful, those undersea farms will not have a visual impact but they could take up a large amount of space. If they do, we will see more effect on the actual fisheries process.

Marine farmers are happy at this time to see some finality so that their industry can move ahead, but they certainly are not happy that a one-stop shop process has not been delivered by this Government. That was the other major issue they wanted. The first issue was first right of refusal, so that those who had invested in the industry could maintain their business; the second was a one-stop shop. Those who have been around the aquaculture industry will know that the process at the moment, whereby people have to go through a Resource Management Act process then through a fisheries permit process, is extremely frustrating. The Ministry of Fisheries was taking over 2 years to process applications for just small—in some cases—extensions to marine farms, and, during that time, the resource consents under the Resource Management Act would run out. When the Government extended the moratorium, it had to pass special legislation to capture those people who had gone to the time, trouble, and effort to get a new resource consent only to find that, because of the process through the Ministry of Fisheries, it had run out.

When they rang up and asked questions they were charged $200 an hour. That was the charge-out fee with which the ministry tried to stop angry, frustrated marine farmers from ringing up and asking what the ministry was doing. When I wrote to the Minister of Fisheries about the issue, he said he had offered the ministry more resources, and it had said it did not need them—that it could cope. Two years later, it is having to put in a whole lot more staff to deal with these permits.

Members can understand an industry that was growing at 20 percent and is now growing at 0 percent becoming extremely frustrated. The men and women who forged an industry and developed it for New Zealand, and who were way ahead of the game—way ahead of Chile and other areas, like Australia—have been basically stalled at the gates of the 21st century. They are pleased to see this bill being debated tonight, but they are not pleased that they still do not have just one process. They have to go through the Resource Management Act process for a consent, but the Ministry of Fisheries can still stop a process from going forward. It can look at the spatial effects and stop the process if it feels there is an undue adverse effect on fishing.

I know that the recreational fishers in the Sounds will be happy. We love those marine farms, because there are always lots of snapper around them—but I should not give away the places where everyone should go and fish. The main effect will be on the commercial fishermen, and they will have concerns about large spatial areas, because they want to be able to fish in that space themselves. However, aquaculture does make a lot of money for Marlborough—it was our highest income-earner—and it could make a huge amount of money for New Zealand. But the fact is that Australia and Chile are now getting into the game in a very big way, and we have lost quite a lot of our intellectual capital to those countries because people have been so frustrated by this Government.

DIANNE YATES (Labour—Hamilton East) : I move, That the question be now put.

R DOUG WOOLERTON (NZ First) : Part 2 of the bill, as previous speakers have said, is all about the tensions that exist for competing space—

Simon Power: Tensions is a big word.

R DOUG WOOLERTON: Tensions is the word—in public land. We are talking about the water column and the sea bed. We are talking about what people can do in it, what its most profitable use is, and also, to a degree, what is fair and how one goes about that. If it were perpetual lease, as proposed by the ACT party, one could just tell other people to go away. If it were fee simple, one could tell them to go away: “This is mine, and we don’t want to have anything to do with you.” But because it is not, a mechanism needed to be worked out, and I think that those of us on the Primary Production Committee, at least, have agreed that we have come up with the best we possibly can. We think it is fair, we think it serves the commercial imperatives that are inherent in this business, and we think that it is as good as we can get for the environment. Those are the things we have to worry about, and those are the things that make it such a difficult business. When we are talking about other marine life and fish—scallops, oysters, flounder, and other fish that hang around in the shallows—

Shane Ardern: Making my mouth water.

R DOUG WOOLERTON: Exactly.

Dr Lynda Scott: I’d rather be fishing.

R DOUG WOOLERTON: I cannot speak because my mouth is watering so much. All those things must be taken care of. I will go back to the fact that one of the reasons New Zealand First supports this bill is that it is balanced, and it does all those competing things and takes all those interests into account. We believe that it does a very difficult job well. That is why we support it.

Hon MARIAN HOBBS (Minister for the Environment) : I move, That the question be now put.

PHIL HEATLEY (National—Whangarei) : I will continue on from my previous speech regarding the tension between the interests of commercial fishers and the interests of marine farmers. I pointed out that the Ministry of Fisheries, in making an aquaculture decision, is to be focused only on spatial issues; that is, how a marine farm, or an aquaculture management area, will spatially affect commercial fishing interests—how much commercial fishers will be displaced from a particular area by marine-farming activity so that they no longer have access to a fishing resource. We were particularly interested in submitters who talked about scallops, simply because there is an enhancement programme in which the farmers seed scallops, they grow, and recreationalists have access to those scallops, as do the commercial fishers. There is a concern that that enhancement programme could seriously be affected by marine farms and the industry developing excessively in that area. That was a good point made to us by submitters. Also, inshore fisheries representatives, such as flounder fishers, put up a good case, as did others that would be affected.

The regional council, on the other hand, takes an aquaculture decision and lays upon it consideration of the effect that marine farms have on commercial fishing with regard to environmental impacts. Those environmental impacts might somehow affect water quality—because, clearly, if marine farming in any way deteriorates water quality, and that affects the fish, that will have an adverse affect on commercial fishing. If marine farms in some way are affecting spawning or stock development, then that will adversely affect the fishery and commercial fishers, as well.

We raised a particular concern at the select committee, and we have raised it again here tonight—perhaps the Minister in the chair, David Benson-Pope, would like to take a call on it—which is the issue of regional councils actually having the ability to measure the environmental impacts on commercial fish species. We know that the Ministry of Fisheries often subcontracts research to the National Institute of Atmospheric and Water Research on the environmental effects on commercial fishing species in various areas around New Zealand, but where are regional councils to get that skill base from? Are they going to contract out? They will have to, because currently no regional council in New Zealand—even Northland Regional Council, which is far in the lead when it comes to aquaculture development and research—has staff skilled in that area. [Interruption] The Minister suggests that the Ministry of Fisheries will be contracting to regional councils—

Hon David Benson-Pope: The Ministry of Fisheries will be providing that support.

PHIL HEATLEY: The Minister chipped in to suggest that the Ministry of Fisheries will be supplying that service to regional councils. Well, I hope that the Minister’s assurance does come to pass. Regional councils certainly do not have the staff, skills, scientists, or research base at the moment to measure the environmental effects on spawning, on stock development, on whole fishery development, on the interaction between various fisheries, aquaculture, and marine farms, and so on and so forth.

So I thank the Minister for that, and I put it to the Committee that there is a promise there from him as the Minister of Fisheries that his ministry will be available to regional councils, and I hope that that is the case. My concern is that if all the regional councils, or a fair number of them, come to the ministry all at one time, I hope that it has the ability to meet that scientific need. Certainly, there will be a demand for that, as required in this legislation.

RODNEY HIDE (Leader—ACT) : The ACT party is against this bill. It is a bill that shows how the Government and—after hearing Doug Woolerton speak—New Zealand First lack vision of what aquaculture could achieve through the years ahead in New Zealand. It also shows how they lack insight into what an industry needs so that it can develop. It is very, very simple. Members should try to imagine—I would not expect the Minister in the chair to understand this, but I would expect Mr Doug Woolerton to appreciate it—a dairy farm operating under rules like these. They should try to imagine developing the farming industry on land under rules like these.

R Doug Woolerton: Dairy farmers have twice as many rules as there are in here, my friend. You wouldn’t have a clue.

RODNEY HIDE: Doug Woolerton calls out and says: “Hang on—the dairy industry has twice as many rules as the aquaculture industry has.” Well, we are not about defending those rules for dairy farmers; we are about getting rid of them. But here is the thing: dairy farmers at least have some security of tenure on the land and some security of tenure on their investments.

It is true to say that the socialist Government David Benson-Pope and Dover Samuels represent is marauding dairy farmers’ land, and other farmers’ land, with their “right to roam” legislation, which I see that New Zealand First supports. We have tried this experiment before in New Zealand, and it failed. We tried this experiment in the high country of New Zealand.

Hon Dover Samuels: When?

RODNEY HIDE: Yes, we did. I know that Dover Samuels would not know, but I expect other members to know. When the high country of New Zealand was put out at short lease like this, what was the result? It was a failure of investment, of over-grazing, and of the destruction of the land. That is what happens when farmers do not have secure title.

We have an enormous coastline and vast ocean resources out to the 200-mile limit for deep-sea farming. If we had a Government—indeed, a Parliament—that had some vision for what New Zealand could achieve in this country with aquaculture, we would not be debating this bill; we would be debating something far, far better. Its basis would be secure property rights for aquaculturists, just like those rights provided so that farming can develop in New Zealand. Mr Samuels should try to imagine these rules applying back in 1840 to the farmers who cut farms out of the bush of New Zealand. They would not have done it. They would not have invested and they would not have worked to develop their markets. Can we not learn from that lesson? Dover Samuels sits over there, but he would not apply these rules to his wonderful motel in Matauri Bay, because he would want to have secure property rights. He will not work away in an industry in which, potentially, he will lose his rights after a few years—where the Government can come along at any time and change the rules.

This bill lacks insight into what an industry needs to develop, and it lacks vision. It lacks the vision of what this country could achieve by looking ahead 10 or 20 years. I think that in the future, when aquaculture around the world is a standard way of rearing and harvesting fish, New Zealanders will look back at this legislation and wonder what Parliament was thinking of. How dopey could it be to repeat the mistake that had already been made on the land in the high country of New Zealand? Just as we look back on what was done in the high country, we can ask how the Government could create such a perverse set of incentives that would fail to see an industry take off. Well, that is what David Benson-Pope’s legacy to New Zealand is. I know that Dover Samuels has such a short-term horizon that he just thinks this is funny. However, here we are standing at the dawn of a wonderful industry that could do so much for our country.

Hon DOVER SAMUELS (Minister of State) : I move, That the question be now put.

Hon DAVID CARTER (National) : Is it not interesting that the two calls taken by the Labour member who sat on the Primary Production Committee, the Hon Dover Samuels, have both been to close the debate down? That was the member who promised to table documents before the select committee that set out the unfinished business, yet we are still waiting.

I shall talk specifically to two parts of the bill: section 186G and then section 186E, inserted by clause 41. It is section 186G that proves the point of having a robust select committee hearing, because this provision is all about the matters that must be considered before an aquaculture decision is made. I will not read them all out, because that would take too long, but Minister David Benson-Pope had originally included in the list of those matters, under paragraph (g), “any other matter that the chief executive considers relevant.” Well, members can imagine the response we got from the industry. There was enough of a test regarding the undue adverse effect that has to be gone through to establish equity between commercial fishers and a proponent of aquaculture, but in that provision we were meant to give the ministry carte blanche to consider any matter at all. It did not have to be justified before it made an aquaculture decision that put that aquaculture proponent into huge difficulty.

I have to say that submissions were unanimous in that regard. I cannot think of one in favour of the provision. Maybe we had one from the Environment and Conservation Organisations of New Zealand, from the Royal Forest and Bird Protection Society, or from somebody who may have been saying that it should remain, but there certainly was not any relevant submission arguing that it should not be deleted. So in that regard the select committee resolutely argued and agreed, and I thank Dover Samuels for his intermittent attendance at the committee, when he too may not have been aware that we argued successfully for section 186G(g) to be deleted.

The other thing I want to speak about is the way the Minister, David Benson-Pope, presented the legislation to the select committee. The chief executive of the Ministry of Fisheries was required to make an aquaculture decision but, under the legislation proposed by the incompetent Minister, he had as long as he wanted to make that decision. So a proponent for aquaculture would come along with a proposal and would have to go through the process of having it checked to see whether there was an undue adverse effect, and then the Ministry of Fisheries could sit on that proposal absolutely forever.

As was said earlier in the debate, there was not a lot of confidence in the Ministry of Fisheries. That could be related to the Minister, or it could be related to past history within the industry, which would equally be absolutely excusable. But, again, the select committee worked hard to ensure that there was a time limit within which the Ministry of Fisheries had to act. That time limit is 6 months. Some people argued that it should be less. Why should the ministry not get off its chuff, do the work, and come up with a decision? I was one of those who felt that there had to be a reasonable period of time, because too often I have seen in bureaucracy that if the decision is hard to make and the clock is ticking, then the easiest thing in the world for the bureaucrats is just to put a rejection through and have the proposal not proceed. So I think the select committee has come up with something workable.

The issue then arose as to whether, if there is insufficient information, the ministry should be able to go back and seek more information. The select committee supported that. In the event that that happens, the legislation as it is now reported back means that, for the ministry officials themselves, the clock stops ticking. So there is a 6-month time frame, and if at any time throughout that process the ministry says it genuinely does not think it has enough information, then it goes back to the proponent, and the clock goes on hold.

JILL PETTIS (Senior Whip—Labour) : I move, That the question be now put.

A party vote was called for on the question, That the question be now put
Ayes 70	New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.
Noes 49	New Zealand National 27; New Zealand First 13; ACT New Zealand 9.
Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 319 in the name of the Hon David Benson-Pope to Part 2 be agreed to.

A party vote was called for on the question, That the amendments be agreed to
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 36	New Zealand National 27; ACT New Zealand 9.
Amendments agreed to.

A party vote was called for on the question, That Part 2 as amended be agreed to
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 37	New Zealand National 27; ACT New Zealand 9; Māori Party 1.
Part 2 as amended agreed to.

SIMON POWER (Senior Whip—National) : I raise a point of order, Mr Chairperson. I notice that the size of Parts 3 and 4 is, shall we say, a bit on the tight side—that is one way to describe it. I wonder whether it would assist the Chair, and perhaps the Government whips, if we were able to minimise the number of calls on these two parts, for obvious reasons—largely, that we are dealing with only five clauses between the two parts. I note that Part 5, which deals with Māori commercial aquaculture claims settlement, is a substantial part of the legislation. Although this is probably technically out of order, just to assist you, Mr Chairperson, I advise that the Opposition will take a minimal number of calls on Parts 3 and 4 but I seek your indulgence in going through Part 5, as a substantial part of the bill.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution and just say that that is entirely up to the member. Of course, when it comes to closures, that is a matter for the Chair to decide, but I am sure that what the member has made obvious will be taken into consideration.

R DOUG WOOLERTON (NZ First) : Speaking to the point of order, Mr Chairperson, I just offer New Zealand First’s cooperation. We would be happy to put Parts 3 and 4 without debate.

The CHAIRPERSON (H V Ross Robertson): Of course, that is up to the Committee. The member must—

Ian Ewen-Street: Seek leave.

The CHAIRPERSON (H V Ross Robertson): That is a matter for the member himself to decide.

Part 3 Conservation Act 1987

Hon DAVID CARTER (National) : I certainly want to speak to Part 3, “Conservation Act 1987”, which contains clauses 54 and 55 and the consequential amendments. I want to do so for two reasons, because this part is unique in two ways. First of all, amongst 141 submissions we got no submissions on this part at all. To date we have been debating all the controversial parts of the legislation, with reams and reams of submissions received from people who knew that the Minister had made a mess of the legislation. Finally, we come to a little bit in the middle of the bill—Part 3, “Conservation Act 1987”—with only two clauses, and, lo and behold, even the industry had nothing to complain about in this regard.

But this part of the legislation is also unique in another respect. Since the debate has started, the Minister has had to table four separate detailed Supplementary Order Papers, because of his incompetence, and not one of them has to correct clauses 54 and 55. So I want to take the opportunity to thank the Minister. Good on him; he has finally got one part right—the only part in 200 pages of legislation that he can say he presented to the Parliament with any competence at all.

While I congratulate the Minister, that is a dreadful record. The Minister of Fisheries, who is meant to be in charge of the aquaculture reform legislation, presents to Parliament 240-odd pages that are a diabolical mess, and causes the select committee to work for, I think, 34 hours of deliberation—34 hours of hearing submissions. And here we finally come across a little snippet in Part 3 whereby we find two clauses that the industry had no objection to and, more important, two clauses that the Minister has not had to bring a Supplementary Order Paper into the Committee for us to correct his incompetence with.

The Minister might like to tell members how he got Part 3, “Conservation Act 1987”, so right, when it is not even his portfolio area, yet he got every other part of the bill into one unholy mess. I do not think that the credit can go to Chris Carter—I do not think so. I think the credit does not go to the Minister, either. I think that this is one where officialdom has done well.

Simon Power: No!

Hon DAVID CARTER: I think that it is. I do not think that David Benson-Pope even realised—[Interruption] Ian Ewen Street mentions that I should wash my mouth out, but I think we have to realise that in legislation like this, if somebody gets something right, it is fair to acknowledge it. That is the purpose of the Committee stage of the House. So in amongst—

Hon Member: If they had a decent chair!

Hon DAVID CARTER: Well, Darren Hughes is saying that the chair is at fault—the chair is at fault, because there are two clauses in the bill that did not require altering through a select committee. So that is the chair’s fault! Well, I say to Darren Hughes that he is a new member and he will not be here for much longer, because Nathan Guy is out there tonight. He is door-knocking in Ōtaki. He will be here and he will be an excellent member. Everybody says he will be an excellent member, because they have expressed a lot of disappointment with Darren Hughes. But Darren Hughes will realise, when he reminisces on his short parliamentary career, that one does not blame the chair of a select committee when two clauses out of a couple of hundred come back unchanged. That is not something one praises the chair of the select committee for, and it is certainly not something one blames the select committee chair for. It means that somebody presented that little part of the bill to the Hon David Benson-Pope, and that little part was right. So I say to the Minister, congratulations on doing that, at least.

PHIL HEATLEY (National—Whangarei) : I also rise to discuss in detail clauses 54 and 55 in Part 3, “Conservation Act 1987”. Members will recall that this legislation is to be cut into seven different bills. One of them will be in relation to the Conservation Act 1987 specifically, which is represented by Part 3 of this bill. Clause 55(2) proposes to substitute section 26ZG(2)(c) of the Conservation Act, which provides: “(c) The taking, holding, possession, sale, or disposal of any freshwater fish under the authority of the Fisheries Act 1983, the Marine Farming Act 1971, or any regulations made under either of those Acts.” The new section 26ZG(2)(c) will provide: “(c) the taking, holding, possession, sale, or disposal of freshwater fish under the authority of—(i) the Fisheries Act 1983, the Marine Farming Act 1971, or any regulations made under either of those Acts; or (ii) the registration of a fish farmer under Part 9A of the Fisheries Act 1996.”

That is what this clause does. It repeals those provisions relating to the taking, holding, possession, sale, or disposal of freshwater fish, and replaces them with those provisions in clause 55. Why this is of interest to the marine farming and aquaculture sector is simply that the Fisheries Act 1983, the Marine Farming Act, and a third Act, the Fisheries Act 1996, all impinge on freshwater fish, which may or may not be farmed, may be wild, or may be somehow in an aquaculture business. All those Acts impinge on those species.

So under this reform bill, there is a bringing together of the taking, holding, possession, sale, or disposal regulations under that one provision. Those reforms bring it all together. Having it spread out amongst the Fisheries Act 1983, the Marine Farming Act, the regulations under those Acts, and also Part 9A of the Fisheries Act 1996 made it all the more confusing. This is why we have general support from the industry on this. We have support from regional councils, the Department of Conservation, those on the Primary Production Committee, and officials, as well. There was no argument on it. It is nice to come across a provision in this reform bill where there is no controversy and there are no last-minute changes. As the Hon David Carter pointed out, it is something we can, indeed, agree with.

It is interesting that through the course of this debate the Department of Conservation has come under a fair bit of flack, because of the amount of interference that it can have in marine farming under this reform legislation. We know that it can effectively veto the allocation of marine-farming space at the last hurdle if the department’s officials do not succeed as objectors to the consent being granted, or succeed as objectors to the original aquaculture management area. So after the department has a go at the aquaculture management area that the regional council is keen to set up and it fails, and after having a go at the resource consent that the individual farmer applies for and it also fails there, the department can then have another slap at getting a veto in the end.

GERRARD ECKHOFF (ACT) : I would like to take a short call on Part 3. I am not sure I agree with Mr Heatley that clause 55 is a non-controversial clause. Clause 55(2) states that section 26ZG(2) of the Conservation Act is to be amended by repealing paragraph (c) and substituting the following paragraph: “(c) the taking, holding, possession, sale, or disposal of freshwater fish under the authority of—(i) the Fisheries Act 1983, the Marine Farming Act 1971, or any regulations made under either of those Acts;”. Well, it has just occurred to me while I was sitting listening to the debate to ask the Minister, for example—and I would ask him to take a call on this—where sea-run trout sit in this particular aspect. Are they freshwater fish or saltwater fish? Which category do they come under?

If people decide that farming them is an appropriate thing to do, and some sea-run trout are found in their salmon cage, will the full weight of the law descend on those people? It is a perfectly reasonable question. Salmon swim up rivers. They are freshwater fish, we might say, but they spend a huge amount of time at sea, as well. Are they freshwater fish or saltwater fish? I think those questions are perfectly fair and reasonable to ask, given the fact that there is a horrendous penalty for anybody who dares to challenge the monopoly rights of Fish and Game, for example. Part 3 is really all about the fact that Fish and Game does not want anybody to farm fish that have huge commercial value. Of course, salmon have an enormous commercial value, and they are farmed, but sea-run trout are certainly not allowed to be farmed.

I ask whether they are freshwater fish or saltwater fish, for I am not sure, and I do not have that knowledge. Maybe some member in the Chamber, or an official, knows. Indeed, the Minister, who is meant to know all about this bill, should take a call to tell us exactly how this specific clause relating to the Conservation Act 1987 applies to sea-run trout. I see that the Minister is engaged in heavy conversation, and is studiously ignoring this particular question. It is perfectly relevant. Can the Minister please explain why, or how, it is a silly question? It is perfectly reasonable for a marine farmer to look at farming sea-run trout in one of these aquaculture management areas. I ask why that could not, or should not, be done, if in fact there is a first-rate market for them.

One of the problems we have with this particular bill that this Minister totally fails to understand is that flexibility is part of this whole industry. If one particular fish species that is being farmed is not providing the commercial returns that farmers need, then the marine farmers need to be able to change from that species to another species, to develop a market, and to make some dollars for themselves. That will possibly be outlawed shortly by this Government, as well. Making money for oneself is not an acceptable process, it seems to me, in terms of the thinking of this particular Government, so it tries to stop marine farmers from doing what I think is a perfectly sensible thing. I can only ask this Minister to give me the answer to this question of whether sea-run trout are classified as freshwater fish. It is a perfectly reasonable question, and I yield my speaking slot to the Minister so that he can take a call to tell me the answer.

SANDRA GOUDIE (National—Coromandel) : I am delighted to speak to this rather significant Part 3, which relates to the Conservation Act. An interesting question has been raised by Gerrard Eckhoff. Clearly, the nod from the Minister signified that sea-run trout is defined as freshwater fish, so it cannot be farmed in the sea. That raises concerns around how far the Government wants to go with this issue.

We read in clause 55(2) about the “taking, holding, possession, sale, or disposal of freshwater fish under the authority of—” the Fisheries Act or the Marine Farming Act, or “the registration of a fish farmer …”. The reference to “fish farmer” reminds me of the previous provision that looked at the giving of authority. First of all, the fish farmer has to go to the Ministry of Fisheries for that authority, but either a resource consent or a certificate of compliance is required before that farmer can continue. But one does not have to have either of those things to be a fish farmer, if one has a customary rights order. One does not have to have a certificate of compliance or a resource consent, if one has a customary rights order. I would have thought that was a double standard. Given that, largely, it will be Māori who are customary rights holders, compared with anybody else, I definitely see that as a double standard and as the creating of an advantage for one group of persons over others who are required to go through the resource consent or compliance certificate process to be registered farmers as identified under Part 3. So we keep going back to the registration of fish farmers under Part 3. I am just reiterating the parameters by which fish farmers are established. I think it is absolutely amazing that we do have that double standard, and that someone with a customary rights order can become a fish farmer without having a certificate of compliance or resource consent.

Perhaps the Minister would like to take a call to clarify the situation in regard to that, and whether it is actually appropriate. He is obviously declining to comment on that one. I think it is a significant issue, and if I had had time when debating the previous part, I would have gone into it more fully.

I just bring members back to the registration of fish farmers, as identified in Part 3, and ask people to think about the preference in law that is being provided here for customary rights holders, who will be predominantly Māori—I cannot think of any instance that the case might be otherwise. They do not need a resource consent or a compliance certificate, if they have a customary rights order. In my view, that is absolutely atrocious. The same parameters should apply to all, regardless of the customary rights order situation. Of course, that is another little gift arising from the Foreshore and Seabed Act, and I am sure we will be confronted with more of these little gifts, which are absolutely atrocious. That is something we are appalled to see, and we will be seeing it throughout the legislation.

I will leave the Minister to respond, and perhaps to address some of the concerns I have raised in regard to the preference being provided for customary rights holders over registered fish farmers.

A party vote was called for on the question, *That Part 3 be agreed to.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 36	New Zealand National 27; ACT New Zealand 9.
Part 3 agreed to.

Part 4 Biosecurity Act 1993

PHIL HEATLEY (National—Whangarei) : The Primary Production Committee examined Part 4, regarding the Biosecurity Act, and the effects that this reform legislation would have—and rightly so—on that particular Act. Part 4 is another part that will be divided into one of the seven separate pieces of legislation arising from this bill, and deals solely and specifically with those clauses making amendment to that Act, which was passed in 1993 under the then National Government. We see biosecurity in this industry as absolutely essential. Just as biosecurity is important in the commercial-fishing industry, it is important in aquaculture. We see it as no less important for land-based aquaculture than it is for sea-based aquaculture.

In fact, it is interesting to discuss the regulations relating to land-based aquaculture, because submitters came to us to ask why they were facing regulations and legislation that compounded the compliance costs placed upon them. They said there was absolutely no need for it, so we asked the officials why it was so. People with aquaculture farms on land that were fenced off, that were not on property that one could call public space—like the ocean—but were on private property, asked why they faced so many regulations.

Officials came back at us with two succinct arguments. One was the need for regulations to ensure that the policing of fisheries could be adequately carried out. By way of an example, an on-land aquaculture farm might produce pāua. If a land-based aquaculturist were found with pāua, he would need to have followed certain regulations to be able to prove that his pāua were grown on his farm for sale. He would need records of the profit of his business—records of the seeding coming into the business, the enhancement in the business, and the on-selling of pāua on to the market. That is fair enough; it is around the whole compliance and policing area. That is one reason why those farmers have to be subject to regulations, and we accepted that.

The other reason was with regard to biosecurity issues and the need for a degree of traceability. If there was a biosecurity scare, whether because of threats within New Zealand, amongst our own marine farms, or because of a biosecurity scare offshore, in our markets and relating to our particular produce, then it would be a very serious matter for the marine-farming industry, indeed. That is why we took quite seriously these particular clauses with regard to biosecurity, and we do so now.

Clause 57 amends section 43 of the Biosecurity Act in relation to risk goods. That is to ensure that information can be required on the full range of fish-farming activities, in the event of a need to trace fish movements. So it is all about traceability. One can appreciate that smaller stock used for spawning can come on to a farm, and can then be on-grown—transferred to another part of the farm, or to another farm owned by the same proprietor, or indeed, to another farm owned by a separate proprietor. It can then be on-sold to a licensed fish receiver, or directly into the market, as in the case with exporting. If a biosecurity fault is found in that overseas market, that product would need to be traced back through the licensed fish receiver, or the marketing arm, to the farm where it was on-grown, then back to where it was originally brought on as young stock. That is why the amendments to the Biosecurity Act are so important, and we acknowledge them.

A party vote was called for on the question, *That Part 4 be agreed to.*
Ayes 83	New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2.
Noes 37	New Zealand National 27; ACT New Zealand 9; Māori Party 1.
Part 4 agreed to.

Part 5 Maori Commercial Aquaculture Claims Settlement

The CHAIRPERSON (Hon Clem Simich): We now come to Part 5—clauses 59 to 105B. Members will know that it is in eight subparts. This debate includes debate on schedules 3 and 4, if members wish.

Hon DAVID CARTER (National) : We now come to the contentious part of the Aquaculture Reform Bill and why the National Party will oppose it. There was talk throughout the select committee process about unfinished business associated with the 1992 deed of settlement. I did what any responsible member of the select committee should have done: I sourced a copy of the deed of settlement and read it. That deed of settlement settled all commercial-fishing interests—coastal, inshore, and offshore. There was no unfinished business in that document signed by Māori of the day as a full and final settlement.

We told officials and many other people that if there was some unfinished business in something as major as the deed of settlement, there would be a paper trail. We were assured that there would be a paper trail. The more we asked for it, the less available that paper trail was. There is no paper trail of this unfinished business. There is, in fact, no unfinished business. What we have here is folklore associated with Māori determining that they would not mind another bite of the cherry, and the Labour Government being silly enough to see it as a means of settling its embarrassment over the seabed and foreshore legislation.

The Government kept saying to us that it was based on a Crown Law opinion. After weeks and weeks of demanding the Crown Law opinion—in fact, I got the select committee members to the stage that they were prepared to go on strike and not do any more consideration of the legislation until we had received that vital Crown Law opinion—we finally received it. I would like to describe it as five pages of waffle, but I can describe only the first two pages as waffle, because the next three pages of that all-important document are completely blanked out. That is the basis on which the Labour Government is giving up to 40 percent of future aquaculture space to Māori: a legal opinion from Crown Law, from one Mr Peter Andrew, that is so poor that the Minister is so embarrassed by it that he causes it to be presented to the select committee with three pages blanked out.

The select committee did happen to receive some other quite interesting information, which appeared unannounced. It was not requested by the select committee, because we did not know that it existed. It was information collated by Gardiner and Parata, which I understand is a firm of consultants here in Wellington. It was dated 20 May 2002, and we were told that it was commissioned by Te PuniKōkiri. Gardiner and Parata went back amongst people it knew to be associated with the original negotiation of the deed of settlement, to ask whether there was any truth to the argument that there was unfinished business.

The first person it talked to was Phil Major, a senior adviser to the then Minister of Fisheries, the Hon Doug Kidd. It is worth noting that he currently works in Mr Sutton’s office. Was aquaculture excluded from the deed of settlement? Mr Major’s response was that he could not recall the matter being explicitly on the table. The firm then interviewed the Hon Doug Kidd and asked him whether aquaculture had been excluded. He said there would be no documentary trail, because his recall was that the matter had been raised briefly on one occasion, but that it was of no great substance. It then interviewed the Rt Hon Doug Graham. Similarly, he made the comment that aquaculture had not been on the table. It interviewed DeneseHēnare, who apparently was a negotiator with Bob Māhuta, and she was able to state quite categorically that she did not recall any substantive discussion, or any documentation being tabled, on aquaculture.

They are only some of the people whom Gardiner and Parata interviewed. That clearly proves to me, and to anybody interested in the truth, that aquaculture was never on the table during the discussion of the 1992 settlement. Furthermore, anybody who reads the 1992 settlement will see that it was signed up to by Māori as a full and final settlement of the grievances associated with commercial fishing, yet 12 years later we are reinventing the wheel and recreating the grievance industry for generations to come. I say to the Minister in the chair, the Hon Benson-Pope: “Shame on you for being involved in this legislation.” I also say: “Shame on the Labour Party for being involved in this legislation, and shame on New Zealand First for being prepared to support this legislation, which is without foundation.”

I would be prepared to accept this folklore of unfinished business, if anybody had presented any evidence at all of it to the select committee. At one stage the Hon Dover Samuels revealed to the committee that he had been one of the Māori negotiators. That was news, I think, to both the Labour members and the National members on the committee. He promised to table written documentation proving absolutely that aquaculture had been deliberately put to one side, but I tell Dover Samuels that, to date, I am still waiting for those papers. I guarantee that we will never receive them, because they do not exist. Folklore has developed around there being unfinished business; it is without foundation, but we are passing legislation that will gift to Māori up to 40 percent of aquaculture space.

Enough grievance has been associated with the Treaty of Waitangi. The National Party has a proud record of moving legislation through the House to put those grievances behind New Zealand. Yet, sadly, tonight we are reopening those grievances, and without justification. Anybody who has studied this legislation, as I have, will note that in the deed of settlement with NgāiTahu we specifically gave them the right to have 10 percent of new aquaculture space by pre-emptive tender. It was not a gift, but they had the right to obtain 10 percent by that means. Why would NgāiTahu have negotiated that right in the 1996 settlement, if they genuinely believed there was unfinished business? The truth is they knew that fisheries had been tidied up with the 1992 settlement. They took the opportunity of their own settlement to obtain that pre-emptive right, and I have no problem with that—indeed, I congratulate them. But for anybody in this Chamber to argue that the matter was not totally dealt with by Doug Kidd and Doug Graham in 1992 is wrong.

Labour claims that the settlement was rushed. Yes, it was. There was a one-off opportunity associated with Brierley’s selling down Sealord’s. The settlement was then rushed through the House, and I accept that, but the Labour Party signed on to it. It saw it as a good way of settling Māori grievances associated with commercial fishing. Now, 14 years later, Labour members are flocking to the other side of the debate, in an effort to save their own embarrassment around the seabed and foreshore issue.

This is unprincipled legislation in gifting 40 percent of aquaculture space to Māori. I say that that is wrong and that this matter will cause problems with race relations for a long time to come. The Minister in the chair should stand and take the opportunity to present any documentation that shows that there was unfinished business. But I know he will not be able to do it.

RODNEY HIDE (Leader—ACT) : The country now has an answer to the question of how long full and final settlement lasts. I used to say that it was probably a generation, but it is actually half a generation—it is now 12 years. That is how long full and final settlement lasts in New Zealand. New Zealanders, as represented by the Crown, can negotiate in good faith, and achieve a full and final settlement. Then, 12 years later, it is renegotiated, and once again the taxpayer of New Zealand forks out.

I can understand why the Minister in the chair, the Hon David Benson-Pope, is not prepared to stand and defend this most important part of the bill. It is indefensible, because, as we have heard from the Hon David Carter, this entire part of the bill is based on a lie—it is. The lie is that somehow when full and final settlement was negotiated in 1992, aquaculture was “unfinished business”. Ministers of the Crown promised to produce proof of that. They promised that to Parliament, but could produce nothing. We just have to read the commentary on the bill to learn that it states: “The basis of the claim to the Tribunal was Māori concern”—members should note this well—“over their ongoing access to coastal space to undertake marine farming …”. Where is the property right concern or question in that statement? Does that mean that any group in New Zealand can come along and say it has a concern about access to Doug Woolerton’s farm or to Dover Samuels’ motel? Would that mean that Parliament would meet under urgency and give them all 20 percent of the area? I do not think so.

That point proves something else about this Government and, sadly, about what is happening to this country. Our country, our legislation, and our policies are becoming riddled with race-based preferences that are available only to people of a certain skin colour and genetic origin. It does not matter how many times Helen Clark stands on a public platform or in this Chamber to pretend and say that a particular measure is based on need. This legislation gives the lie to that claim. There is only one thing that is driving the 20 percent reservation of the area for Māori, and that is race. It is not based on a property right claim or on the Treaty of Waitangi. It is simply based on a racial preference. What is the logic of a 20 percent reservation? With whom was the 20 percent negotiated? David Benson-Pope cannot stand and say that the Government went through a negotiation process for the 20 percent. I say that the figure was plucked out of the air.

What can New Zealanders assume about how long this measure will last as full and final? Will it be 12 years? Will it now be 10 years? It is clear that we have set up an incentive for one racial group in New Zealand just to bitch, whine, and complain to the Government, and for the Government to come along, offer it 20 percent, and ask whether that will keep it quiet. That is what this Government is doing to New Zealand. Is that the way to develop an industry? I do not see Doug Woolerton saying that dairy farmers should hand over 20 percent of their farms because there is concern over access.

I was astonished to learn that New Zealand First was supporting legislation like this bill, which is race based. I can understand the Labour Party doing that, because it speaks with a forked tongue. But I thought that New Zealand First prided itself on there being one law for all New Zealanders and on not supporting race-based preferences. I know that David Benson-Pope is a useless Minister.

Lianne Dalziel: Don’t say that.

RODNEY HIDE: Well, when that member was a Minister, she would take a call.

GERRY BROWNLEE (Deputy Leader—National) : This part could perhaps be best described as the part that points out the two parties: the gullible and the greedy. The gullible party is the Government of the day, the Labour Government, which has quite clearly decided that any old story that any group of Māori may like to bring along to it will be put on the table for consideration. Previous speakers have made it clear that as far as Parliament was concerned, this issue was dealt with in 1992, and was then subsequently handled by way of treaty settlement in 1996 and over a number of years since then, whereby treaty settlors were given the ability to pick up allocation. So the question is this: why are we here today to require that any new area set aside for marine farming be divided up in such a way that up to 40 percent of that new area is given to Māori?

And let us be clear that the area is not given to just any Māori, because this is where the greedy party comes in. The allocation will be given to Te Ohu Kai Moana Trustee. If any Māori in this country believes he or she will get some benefit from that trusteeship at some point down the line, then I say he or she will have a very, very long wait for that. There is little doubt that the recent fisheries settlement bill that was rushed through Parliament and passed by the Labour Government—at the point where it had been bent over backwards by the old guard that runs the Māori Fisheries Commission—left this country in a state whereby Te Ohu Kai Moana Trustee is a group that sits between the beneficiary, the owner of the asset, and the administrators themselves. So to ensure that that old-guard group, known as the Māori Fisheries Commission, continued to have its little sinecure set aside for itself, the trustees have gone to the Government and asked it to give them a big chunk of the aquaculture industry, as well.

We know that the system will be such that those in the group will keep the funds that may flow from these areas in their back pocket to pay their fees, and that the funds will go nowhere near the people who expect to benefit from the asset. Not only is it bad for New Zealand to have such a race-based allocation of asset going on but it is also bad for those individuals who think they will get something out of it. It is quite clear in this legislation that the value of the asset will be determined by the old group of seven—the elite Māori who sit on the board of Te Ohu Kai Moana Trustee—acting as the trustees, and that the company, acting as the trustee, will itself decide on how much of the benefit will be passed down the line.

That leads us to the real point here. We have a bill that is supposed to settle an issue—that is to settle something that Parliament understood was previously settled—but that will create nothing but grievance further down the track. At the time of the passing of the Maori Fisheries Bill, I predicted that before too long those who were supposed to benefit from it would come back to Parliament and say: “Help, look what you’ve done to us. We need to be got out of this.” And here is another lot. This is a bill that will simply see grievance further embedded into Māori culture. This will not be an allocation that lifts people out of the sort of economic deprivation we see in so many parts of the country and provides new opportunities for them.

R DOUG WOOLERTON (NZ First) : This reminds me of what happened in the Primary Production Committee, when those members were rushing around trying to find evidence that something had gone on. Somebody had said something. I want to bring people’s attention to the fact that the purpose of Part 5 is to “provide a full and final settlement of Māori claims to commercial aquaculture”. [Interruption] Well, that does not actually matter very much, because I understand that the Government has pre-empted claims. [] Is that not so? That is what it looks like to me. I did not hear Government members get excited in the select committee.

Hon David Carter: They never did any work.

R DOUG WOOLERTON: Well, I thought this was a Government bill. Somebody must have done some work somewhere. But let us not get carried away. The boys and girls are having so much fun getting excited about nothing.

The fact is that 20 percent of the area has been set down to go to Māori interests. It is just 20 percent of an increased space in the ocean—not costed by anybody; it is just a little extra. It is not as though there is not enough ocean or anything like that, or that it is being robbed off anybody or anything—

Hon Dr Nick Smith: Don’t be naive.

R DOUG WOOLERTON: I am not naive. What is naive here is to say that the 20 percent is coming off the present players, or that it is coming out of somebody’s backyard. This is new space that we are talking about, and there is plenty of ocean. I think that a perfectly sensible thing to do is to allocate a little more space at the beginning of the Act in order to make sure that things are tidied up early in the piece. But our friends in the National Party and in ACT cannot come to grips with something that forestalls a fight. They cannot come to grips with anything that staves off anger, or anything like that. They want to have a fight, and believe they have not won anything or done anything unless there is a fight. We in New Zealand First say that the Government of the day, whose bill this is—it is not our bill—has decided to put that 20 percent in. It is a 20 percent allocation of freshwater space, and we say we agree with that.

METIRIA TUREI (Green) : Is it not hysterical that here we have an amendment to the Foreshore and Seabed Act only 19 days after it was passed in this Parliament? It is only 13 days since that Act received the royal assent and the Government is putting in a Supplementary Order Paper amending the Foreshore and Seabed Act, using the Aquaculture Reform Bill as its little tool. It is just another example of this Government’s use and abuse of parliamentary procedure, of the democracy we have in this country, to make the changes it wants to make to legislation.

The Foreshore and Seabed Act is a travesty. It is an act of aggression. Thousands of New Zealanders recognised that travesty and fought so hard to prevent the bill from turning into an Act. We all know that the Foreshore and Seabed Act is a moral mistake. It takes from one section of our society the right to go to court to have its property interests investigated and clarified. New Zealanders are horrified at the theft of access to justice by this Government through the Foreshore and Seabed Act. We all know that the Foreshore and Seabed Act is an ethical mistake. A group of citizens went to court and they won their case. The Government lost. The Government’s response to its loss was to abuse its power as a lawmaking institution, claim absolute parliamentary sovereignty, and change the law to suit its failed legal argument.

But here is the first of, no doubt, a long series of examples of the miserable, practical mistakes that the Foreshore and Seabed Act is. The Government’s indecent haste to pass this legislation has meant that it has mistakenly confiscated millions of dollars worth of property from local authorities—property like Britomart, Wellington Airport, the Viaduct Basin, and Victoria Park. That land is now owned by central government because of a stupid mistake made by the Government and New Zealand First.

How terrible for the Hon Dr Michael Cullen! He made a multimillion-dollar mistake. He went to hui across the country and told Māori that they did not like the Foreshore and Seabed Bill because they did not understand it. Here we now have it. We know who did not understand that bill. Michael Cullen did not understand it, and in not understanding it he has made a multimillion-dollar mistake that he is now trying to fix up through a cynical quick-fix solution that will cover his embarrassment about his mistake.

This issue, which is addressed in a Supplementary Order Paper, should have been sorted out at the select committee, but the Government and New Zealand First refused to allow the select committee enough time to deal with the issues in the bill and try to discover these sorts of stupid mistakes. They refused the requests from hundreds of submitters for the opportunity to be heard. Those submitters may well have identified mistakes that may yet be the subject of sneaky little quick fixes like this Supplementary Order Paper on the Aquaculture Reform Bill.

Even the officials who had to work late into the night in order to get the Foreshore and Seabed Bill ready cannot be held responsible for this mistake. The Government’s indecent haste has meant that the select committee did not have enough time even to talk about possible changes to the bill and report back to the community in a way that respected the seriousness of the consequences of the legislation. The Government was in a massive rush to pass the foreshore and seabed legislation before Christmas and, in doing so, it has made a multimillion-dollar mistake.

The Green Party recognises the need to remedy that mistake—land wrongly confiscated from local government. It is not without considerable irony that I note that the Government is going to such extraordinarily sneaky lengths to return this wrongly confiscated land to its rightful owners—the local councils and the people of this country. Of course, the sole purpose of the Foreshore and Seabed Act was to confiscate only Māori land, not land that belonged to local councils.

The Greens recognise that the Supplementary Order Paper is a cynical manoeuvre by the Government to fix this one mistake at this time in this flawed process. Without doubt there will be further stupid mistakes discovered in the Foreshore and Seabed Act that will have to be remedied. I say to the Government that it should fess up that the whole Foreshore and Seabed Act was one huge, dumb, unjust mistake. It should fess up that it should never have happened and that the Act will cause only more problems, be more divisive, endanger the ecological security of our coast, and further alienate mana whenua in their own country. I tell the Government to fess up and fix the problem.

Hon Dr NICK SMITH (National—Nelson) : What is so important about this debate on Part 5 is that New Zealanders have learnt that the only two parties in this Parliament that can be relied upon to bring an end to the treaty grievance industry are the National and ACT parties. I find it particularly extraordinary that New Zealand First, which campaigned on ending the grievance industry, would vote for Part 5, which will result in hundreds of millions of dollars of resource being handed over.

R Doug Woolerton: A bit of extra water.

Hon Dr NICK SMITH: I say to Doug Woolerton that people in Hamilton may not understand what aquaculture means, but that we in Nelson and Marlborough do. This part is as good as writing out a cheque to Māoridom for $200 million or $300 million or more. That the young member Darren Hughes does not give a hoot about handing away public resource solely on the basis of race is one reason why those members opposite will lose their seats at the next general election. It is so interesting to reflect back on the 1992 fisheries settlement.

Jim Peters: Were you there?

Hon Dr NICK SMITH: I have looked at the Hansard. As my colleague David Carter quite properly asked, when was it ever stated back in 1992 that aquaculture was unfinished business? Who said that? Did Winston Peters ask in 1992 about aquaculture? No, he did not. Did any member of the Labour Party ask in 1992 about aquaculture? Did Rick Barker—who is over-excited, and who knows that he is wrong, that he is further in the treaty grievance industry, and that this is unprincipled legislation based solely on dishing out public resources on the basis of race—or any other Labour member say at the time of the settlement that aquaculture was unfinished business? I have looked through every single page of the ,and not one member of the House said anywhere that there was a further issue with regard to commercial fishing and aquaculture.

Jim Peters: You voted for a 20 percent threshold.

Hon Dr NICK SMITH: I tell members to hang on for a second. The New Zealand First member Jim Peters campaigned at the last election on ending the grievance industry. The member was going to end it. That has to be the biggest have ever. Let me tell members how it will work. One of my constituents whom I met at the weekend has worked in the aquaculture industry for 30 years. He is a good Kiwi battler. He is one of the pioneers of that industry. He has created an industry that creates hundreds of millions of dollars of wealth for our country. We are saying to that 55-year-old Nelsonian: “Sorry bud, you missed out. Your skin is the wrong colour. Because you are not Māori, you will be treated as a second-class citizen when it comes to allocating aquaculture space.” I say to Mr Benson-Pope that that is wrong.

Hon David Benson-Pope: No.

Hon Dr NICK SMITH: The Minister says ‘No”. Let us look at what Part 5 states. The Minister in the chair is saying that Māori will get access to that aquaculture space due to their having preferential treatment over anybody else. What is it about Labour members who believe that, somehow, Māori are inferior? They are New Zealanders like everybody else. They have the same right to go to their regional council to apply for aquaculture space, so why, in this part, are we giving them additional rights? Why will they automatically get 20 percent of the space?

R Doug Woolerton: You set a precedent.

Hon Dr NICK SMITH: I say to Mr Woolerton, the member from Hamilton—who campaigned on ending treaty grievances, and who will allocate another $200 million to the Māori bureaucracy—and to those in New Zealand First that every New Zealander now knows that New Zealand First members cannot be relied upon. There will be no full and final settlements while this sort of policy is adopted.

LARRY BALDOCK (United Future) : I rise to speak on the amendment to clause 105B set out on Supplementary Order Paper 322 in the name of the Hon David Benson-Pope, which corrects an anomaly in section 18 of the Foreshore and Seabed Act. As the member before me has mentioned, that legislation was rushed through Parliament several weeks ago. Many of us who opposed that legislation—not so much because of its content but because of the indecent haste with which it was being put through Parliament—warned the Government that there could be unforeseen mistakes in it. In fact, in my minority report on the Foreshore and Seabed Bill I mentioned the fact that Local Government New Zealand might be quite concerned about some of the unforeseen issues that would arise. No one would have thought there would be as large an unforeseen issue as this, which would be the biggest land-grab ever. The problems with the treaty issues and the confiscations in the 1800s pale into insignificance when it comes to central government taking most of downtown Wellington and prime pieces of real estate in my home city of Tauranga. There would be some land affected in Auckland, as well. I raised an issue in my minority report about whether the Government could make compensation for the land it took. Well, Dr Cullen’s huge surplus would disappear overnight if he were to pay compensation for that land-grab off local government.

I have an image in my mind of Winston Peters, towards the end of the debate on that legislation, standing up and saying that New Zealand First had fixed the legislation and had taken care of it all. A number of the New Zealand First members stood up, one after another, and said they had done a great job of fixing the problems for New Zealand. I said to them at the time that if you want to claim credit for having fixed the legislation, you must also take responsibility if you have not.

The CHAIRPERSON (Hon Clem Simich): The member should not bring the Chair into the debate; he should use members’ full names.

LARRY BALDOCK: I apologise; I will not bring you into it. I said that if the New Zealand First members were going to claim credit for having fixed that legislation, they would also have to take responsibility for any mistakes that appeared. Here one does appear, and it is a huge, huge mistake. Of course it has to be fixed, and of course we cannot blame the officials who worked so hard on that legislation, but it is such an illustration of how we get things wrong when we rush things through under urgency, without having a proper process for submitters to come and share their wisdom with us.

The wonderful thing about the parliamentary process is that when submitters come and share their views, they bring great wisdom to the table. They see things that, perhaps, we do not see here in Wellington when we look at legislation. I am sure that someone from Local Government New Zealand would have seen that glaring error and pointed it out to us, had we had the opportunity over the summer to let people look at a draft of the bill before we then come back to it and pass it early next year. So it is unfortunate that we have made that huge mistake. I believe the people of Tauranga will be very, very concerned about what their local member has done in contributing to that and conspiring with the Government to take away much of The Strand and some other very valuable pieces of real estate in Tauranga.

United Future will be very happy to step up tonight and give our support to the Government, in order for it to be able to make that alteration and correct the error.

STEPHEN FRANKS (ACT) : Part 5 of the Aquaculture Reform Bill has disgraceful provisions that bluntly appeal to race prejudice and appease threats, as Mr Walton acknowledged. What was it he said—“head off trouble before it arises”? The provisions bluntly admit that they have nothing to do with the treaty. The clauses simply state that they relate to Māori commercial aquaculture claims settlements. There is nothing to do with the treaty in the heading, and next to nothing to do with it in the clauses. Clause 61, “Settlement of claims”, applies to all claims by Māori in respect of commercial aquaculture activities, whether they are founded on rights arising in common law, the Treaty of Waitangi, or otherwise. Well, they are otherwise founded, because there is nothing in the treaty that justifies Māori claiming 20 percent—or any part—of aquaculture. Aquaculture was not even capable of ownership until a few years ago. Aquaculture is simply not capable of ownership until one can delineate and designate the areas that will be subject to it. It was not considered that we farmed the sea in that way. The notion that in some way the promise in the treaty of property rights and equal rights has been, or could have been, breached in relation to aquaculture is simply fanciful.

Having noted the excellent speeches that have covered the general principles, I want to look at some specific provisions. Clause 63A states that the space to be allocated to Māori must be of an economic size. It goes on to state under subclause (2): “However, if it is not possible for a regional council to comply with … [that], the regional council must identify new space that is of an economic size even though the new space is not representative.” That will tie up local authorities, iwi—or the iwi trustee—and other claimants before the courts for years. Councils are directed to find that 20 percent, and to allocate it as representative of all the new space, including a representative portion of amounts that are subject to reservations, and then they are told that the space must be of an economic size. If a space is not of an economic size even though it is representative, then councils must identify a new space that comprises a single area. Can members just imagine lawyers crawling over this legislation? It is all so subjective that anyone who wants to get a negotiating advantage will be able to tie this legislation up in court for as long as he or she wishes. Once again, we will see our aquaculture tied up, not because there is any justified claim but simply because of the delay in the procedure that this bill consciously sets out.

It gets worse than that. When we look at allocations in respect of staged developments and harbours, under clause 63B(1)(b) we see: “… that space must be representative of the new space available at each stage of the staged development or harbour;”. That 20 percent will obviously produce uneconomic areas. Some of the stages will be suitable for only one farm, yet the space has to be given. We then go on to see that by the year 2014 the Government is supposed to have provided a value that is the equivalent of 20 percent of the existing space. The year 2014 is 10 years from now, yet this process is expected to be still going on then. I believe that the National Party and the ACT party should make a pledge right now that the moment they get into power they will cancel the process, and that if there is any space that has not been allocated at that stage, all bets are off. It is a windfall in any event, but there is no part of this racist provision that would survive longer than 60 days after the coming into power of an ACT and National Government.

Certainly, from ACT’s perspective, we would vote to terminate a piece of racist theft like this the moment we had the ability to do so. It is quite possible to do so, because this legislation contemplates that the process will go on for years. Anyone who has been involved in this bill knows, and I am sure that the officials are well aware, that none of the space will be allocated before the courts have crawled over it.

PHIL HEATLEY (National—Whangarei) : I would like to address directly Rodney Hide’s question to the Committee tonight, which was: how long do members think this settlement will last with this Government? We know that treaty settlements with this Government—full and final settlements—last only a matter of years. My answer to Rodney Hide as to how long this treaty settlement will last is simply to say that if he would take today’s Order Paper and flick through it, he will find that 32 bills are listed under Government Orders of the Day, and after those comes the Ngati Awa Claims Settlement Bill, which has an aquaculture component.

Debate interrupted.

New Zealand Parliament