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OCEAN LAW Northland aquaculture faces A TWIN EDGED SWORD BY KARYN VAN WIJNGAARDEN LLB, BSC A ppeals against various aspects of the Northland Regional Council's 'Plan Change 4', which deals specifi cally with aquaculture, are likely to be heard by the Environment Court in the New Year. Plan Change has a long and complicated history, which is likely to lead to some challenges for the Court. Plan Change 4 began its life in 2005, under the Aquaculture Management Area regime enacted by the 2004 Aquaculture Reforms. The original intent of the reforms was that regional councils would promote plan changes to create AMAs, however it is now an historical fact that councils were reluctant to expend ratepayer funds for what was perceived as an industry benefi t and no such plan changes emerged. The Northland Regional Council sought to balance this downside against the potential economic benefi ts to the region of investment in aquaculture by proposing a plan change that would focus on the 2004 reform's alternative private plan IT WOULD BE IRONIC IF THE FINAL FORM OF PLAN CHANGE 4 INCLUDED EXTENSIVE PROHIBITIONS ON AQUACULTURE change process: the Invited Private Plan Change, which would enable industry applicants to advance (and pay for) plan changes to create AMAs in which only they were eligible to apply for a resource consent. The Plan Change set out objectives, policies and information requirements for IPPC applications. Iwi, industry, community groups, coastal subdividers, yachting interests and the Department of Conservation made submissions. They were later parties to the inevitable appeal, and participated in the formal mediation process which followed. This process was put on hold pending the 2011 aquaculture legislative amendments, and resumed shortly after the enactment of the new regime in October 2011. While a high degree of consensus was reached on the policies of the plan change through mediation, a new issue arose after the 2011 legislative amendments came into force. Those amendments abolished the AMA regime and, with it, the IPPC process, and changes were made to the language of Plan Change 4 to make it relevant to the new regime. Those appellants against the Plan Change who are essentially opposed to aquaculture development argued that, given the demise of the statutory prohibition on aquaculture outside AMAs, the Plan Change should include areas in which aquaculture would be a prohibited activity. Interests supporting aquaculture development have countered that such prohibitions are outside the scope of the Plan Change and the appellants' submissions on it, and have not been subject to the usual RMA processes, such as a s32 analysis to determine their need, appropriateness and cost effectiveness. The question as to whether this inclusion is within the scope of the plan change has been asked. It will be for the Environment Court to make a determination. Since the resumption of the plan change process the key industry parties have withdrawn. That leaves only two Iwi parties with a development perspective in the appeals, along with community groups and land developers against aquaculture in their areas, yachting interests which are proposing large prohibited areas, and the Department of Conservation. To complicate matters, the Northland Regional Council has decided to support some of the prohibitions, and are likely to argue in Court for their legitimacy. This new initiative for prohibition comes at a time when aquaculture regulation has been freed up from the AMA regime under which, from 2004 to 2011: there were no new aquaculture applications, there is a positive government policy setting for aquaculture development, and in Northland there are regional development initiatives to promote aquaculture. Northland Inc, the Northland regional development agency formed from a recent restructure of Enterprise Northland and Destination Northland, has identifi ed aquaculture as a potential growth area and has set up the Northland Aquaculture Development Group to develop and implement an action plan for industry growth. It is understood that Northland Inc will be launching its aquaculture development plan on November 9. It is understood that Mike Sabin, MP for Northland, recently convened two economic development summits. As a result of these summits, a group was formed to facilitate enterprise development and job creation in specifi c fi elds, including aquaculture. It would be ironic, given this positive regional context, if the fi nal form of Plan Change 4 included extensive prohibitions on aquaculture constraining development in a manner that is contrary to both the original regional intent and current legislative intent. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 10 ■ NZ AQUACULTURE ■ NOVEMBER/DECEMBER 2012