Aquaculture Reform （Repeals and Transitional Provisions） Act 2004
2004 No 109
1 Title
This Act is the Aquaculture Reform （Repeals and Transitional Provisions）
Act 2004.
2 Commencement
（1） Section 33 comes into force on a date to be appointed by the Governor-
General by Order in Council.
（2） The rest of this Act come into force on 1 January 2005.
3 Purpose
The purpose of this Act is—
（a） to repeal the Marine Farming Act 1971 and provide for transitional
matters relating to the repeal; and
（b） to repeal certain provisions in Part 4A of the Fisheries Act 1983 and
provide for transitional matters relating to the repeal; and
（c） to provide for transitional matters relating to the ending of the
moratorium under the Resource Management Act 1991.
4 Arrangement of this Act
（1） This Act is arranged as follows:
（a） sections 6 to 17 repeal the Marine Farming Act 1971 and deal with
transitional matters arising from the repeal:
（b） sections 18 to 33 repeal certain provisions in the Fisheries Act 1983
（relating to marine farming） and deal with transitional matters arising from the
repeals:
（c） sections 34 to 54 deal with transitional matters relating to the ending
on 31 December 2004 of the moratorium established under the Resource Management
（Aquaculture Moratorium） Amendment Act 2002 on the granting of coastal permits for
aquaculture activities:
（d） sections 55 to 58 deal with some general matters.
（2） The arrangement of this Act does not necessarily enable certain
situations and the relevant provisions to be readily identified.
（3） The table at the end of this section refers to certain situations and
the relevant provisions in a different order based on arranging situations in a
sequence in which they are likely, in practice, to occur.
（4） The purpose of this section is to present alternative arrangements for
ease of reference, and nothing in this section limits or affects the other provisions
of this Act.
5 Interpretation
（1） In this Act unless the context otherwise requires, aquatic life, fish,
fishing, and seaweed have the same meaning as in section 2（1） of the Fisheries Act
1996.
（2） In this Act, the commencement of this Act means 1 January 2005.
Repeal of Marine Farming Act 1971 and transitional provisions relating to
repeal
6 Marine Farming Act 1971 called principal Act in sections 7 to 17
In sections 7 to 17, the Marine Farming Act 1971 is called “the principal
Act”。
Repeal
7 Repeal
The principal Act is repealed.
Transitional
8 Application
（1） Sections 9 to 17 apply to every lease or licence that—
（a） has been executed under the principal Act; and
（b） is in force immediately before the commencement of this Act.
（2） For the purposes of sections 9 to 17, a variation of a lease or licence
made under section 13 of the principal Act and in force immediately before the
commencement of this Act is to be treated as a condition of the lease or licence.
9 Interpretation
In sections 10 to 17, unless the context otherwise requires, deemed coastal
permit means a lease or licence that is deemed to be a coastal permit under section
10（1）。
10 Leases and licences deemed to be coastal permits
（1） On and from the date specified in subsection （2）， each lease and
licence is deemed to be a coastal permit granted under the Resource Management Act
1991.
（2） For the purposes of subsection （1）， the date is—
（a） the commencement of this Act; but
（b） if section 16 applies, the date on which the application referred to in
that section is determined.
（3） A deemed coastal permit is subject to the same conditions as applied to
the lease or licence immediately before the date specified in subsection （2）。
（4） The consent authority may, within 12 months after the commencement of
this Act,—
（a） commence a review of a deemed coastal permit, including the conditions
of the permit; and
（b） if it considers it necessary to do so, vary, add, or delete conditions
for the purpose of making the conditions consistent with the Resource Management Act
1991.
（5） In exercising the power in subsection （4）， the consent authority—
（a） may do so on its own initiative or after a request from the holder of
the permit; but
（b） must not amend the species or area covered by the permit.
（6） To avoid doubt, a review under subsection （4） is a review of consent
conditions for the purposes of section 120 of the Resource Management Act 1991.
（7） Sections 23 and 24 apply to a decision made by a consent authority
under subsection （4）， and that provision applies accordingly with all necessary
modifications.
（8） A deemed coastal permit is to be treated as if it had been granted for
a term of 20 years beginning on the commencement of this Act.
（9） A deemed coastal permit is to be treated as if it—
（a） authorises the holder to undertake aquaculture activities in the area
specified in the lease or licence concerned to the extent consistent with the
lease or licence as in force immediately before the date specified in subsection
（2）； and
（b） includes all the coastal permits that would otherwise have been
required under sections 12 and 14 of the Resource Management Act 1991 to undertake
those activities; and
（c） includes all the coastal permits that would otherwise have been
required under section 15 of the Resource Management Act 1991 to undertake those
activities to the extent that they were being undertaken at the commencement of this
Act.
（10） Subsection （11） applies if, immediately before the date specified in
subsection （2），—
（a） a variation has been made under section 13（1） or （3） of the
principal Act to a lease or licence which authorises the farming of species of fish,
aquatic life, or seaweed not authorised before the variation; and
（b） the holder of the lease or licence has not begun to farm the species of
fish, aquatic life, or seaweed that the variation applies to.
（11） The holder of the lease or licence must not begin farming the species
of fish, aquatic life, or seaweed referred to in subsection （10）（b） if doing so
would have, or is likely to have, effects that are more adverse in character,
intensity, or scale than the effects of farming the species of fish, aquatic
life, or seaweed that the lease or licence applied to immediately before the
variation.
（12） However, subsection （11） does not apply if the holder of the
lease or licence is authorised to farm the species of fish, aquatic life, or seaweed
concerned by—
（a） a permission that is deemed to be a coastal permit by section 384 of
the Resource Management Act 1991; or
（b） a coastal permit granted under the Resource Management Act 1991; or
（c） a variation granted before 1 October 1991.
11 Provision of records to regional councils
The chief executive of the Ministry of Fisheries must, within 3 months after
the commencement of this Act, provide to each regional council details of the
relevant leases and licences to which section 8 applies.
12 Approvals under Harbours Act 1950
（1） Subsection （2） applies if a person holds—
（a） a deemed coastal permit; and
（b） an approval under section 178（1）（b） of the Harbours Act 1950 to
erect structures for aquaculture activities that is—
（i） deemed to be a coastal permit under section 384 of the Resource
Management Act 1991; and
（ii） in force immediately before the commencement of this Act.
（2） The deemed coastal permit referred to in subsection （1）（b）—
（a） becomes part of the deemed coastal permit referred to in subsection
（1）（a） and subject to section 10; and
（b） lapses as an approval under the Harbours Act 1950.
13 Mortgages and charges
（1） A lease or licence that, immediately before the commencement of this
Act, is subject to a mortgage registered under section 15（2） of the principal Act
continues, on and from the commencement of this Act, to be subject to the mortgage.
（2） A mortgage referred to in subsection （1） is to be treated as if it
were a charge over a coastal permit, and section 122（3）and （4） of the Resource
Management Act 1991 applies accordingly.
（3） If a mortgage referred to in subsection （1） is registered under the
Personal Property Securities Act 1999, within 1 year after the commencement of this
Act, no fee is payable for the registration.
14 Subleases and sublicences
A sublessee or sublicensee of a lease or licence that is subject to a
sublease or sublicence immediately before the commencement ofthis Act must be treated
as a person acting under a resource consent with the permission of the consentholder.
15 Applications to extend term
（1） An application to extend the term or period of a lease or licence under
section 13（2） or （4） of the principal Act, made butnot determined before the
commencement of this Act, is cancelled.
（2） Subsection （1） does not apply to an application to extend the
term or period of a lease or licence, if the lease or licence has expired before the
commencement of this Act.
16 Certain matters to be completed under principal Act
（1） An application to vary a lease or licence under section 13 of the
principal Act, made but not determined before the commencement of this Act, must be
continued and determined under the principal Act as if this Act had not been enacted.
（2） If a controlling authority has taken action to forfeit lease or licence
under section 14 of the principal Act, but the forfeiture has not been
completed or discontinued before the commencement of this Act, then—
（a） the forfeiture may be completed or discontinued under the principal Act after the commencement of this Act; but
（b） until the forfeiture has been completed or discontinued, the other
provisions of sections 9 to 15 and section 17 do not apply to the lease or licence.
（3） This section applies subject to section 15.
17 Holder of deemed coastal permit to be treated as holder of fish farm
registration pending registration by chief executive
（1） The holder of a deemed coastal permit must be treated as a registered
fish farmer under Part 9A of the Fisheries Act 1996 for thespace that the deemed
coastal permit relates to.
（2） Within 12 months after the commencement of this Act, the chief
executive must register the holder of the deemed coastal permit asa fish farmer under
section 186V of the Fisheries Act 1996 without an application or payment of the
prescribed fee.
Repeal of certain provisions in Part 4A of Fisheries Act 1983 andtransitional
provisions relating to repeals
18 Fisheries Act 1983 called principal Act in sections 19 to 33
In sections 19 to 33, the Fisheries Act 1983 is called “the principal
Act”。
Repeals and amendments
19 Repeals
Amendment（s） incorporated in the Act（s）。
Transitional
20 Marine farming permits deemed to be coastal permits
（1） This section applies to every marine farming permit that—
（a） has been granted under section 67J of the principal Act; and
（b） is in force immediately before the commencement of this Act.
（2） On and from the commencement of this Act, each marine farming permit is
deemed to be a coastal permit granted under the Resource Management Act 1991 for the
species of fish, aquatic life, or seaweed and area referred to in the permit and on
the same conditions as applied to the permit immediately before the commencement of
this Act.
（3） The consent authority may, within 12 months after the commencement of
this Act,—
（a） commence a review of the conditions of a coastal permit referred to in
subsection （2）； and
（b） if it considers it necessary to do so, vary, add, or delete conditions
for the purpose of making the conditions consistent with the Resource Management Act
1991.
（4） In exercising the power in subsection （3）， the consent authority—
（a） may do so on its own initiative or after a request from the holder of
the permit; but
（b） must not amend the species or area covered by the coastal permit.
（5） To avoid doubt, a review of conditions under subsection （3） is a
review of consent conditions for the purposes of section 120 of the Resource
Management Act 1991.
（6） A coastal permit referred to in subsection （2） does not, of itself,
authorise the holder to occupy a coastal marine area.
21 Certain spat catching permits deemed to be coastal permits
（1） This section applies to every spat catching permit that—
（a） has been granted under section 67Q（2） of the principal Act; and
（b） is in force immediately before the commencement of this Act.
（2） On and from the commencement of this Act, every spat catching permit is
deemed to be a coastal permit granted by a consent authority under the Resource
Management Act 1991 for the species of fish, aquatic life, or seaweed and area
referred to in the permit and on the conditions as applied to the permit immediately
before the commencement of this Act.
（3） The consent authority may, within 12 months after the commencement of
this Act,—
（a） commence a review of the conditions of a coastal permit referred to in
subsection （2）； and
（b） if it considers it necessary to do so, vary, add, or delete conditions
for the purpose of making the conditions consistent with the Resource Management Act
1991.
（4） In exercising the power in subsection （3）， the consent authority—
（a） may do so on its own initiative or after a request from the holder of
the permit; but
（b） must not amend the species or area covered by the coastal permit.
（5） To avoid doubt, a review of conditions under subsection （3） is a
review of consent conditions for the purposes of section 120 of the Resource
Management Act 1991.
（6） A coastal permit referred to in subsection （2） expires on the same
date as the coastal permit that relates to the spat catching permit that is deemed by
subsection （2） to be a coastal permit.
（7） A coastal permit referred to in subsection （2） does not, of itself,
authorise the holder to occupy a coastal marine area.
22 Provision of records to regional councils
The chief executive of the Ministry of Fisheries must, within 3 months after
the commencement of this Act, provide to each regional council details of the
relevant marine farming permits and spat catching permits to which sections 20 and 21
apply.
23 Regional councils may charge for review
Section 36 of the Resource Management Act 1991 applies in relation to the
functions of a consent authority under sections 10, 20, and 21 as if a review under
any of those sections were a review under section 128 of the Resource Management Act
1991.
24 Objections to decisions made under sections 20（3） and 21（3）
（1） The holder of a permit referred to in section 20（3） or section 21
（3） has a right to object to a consent authority in respect of the consent
authority's decisions made under those provisions.
（2） Sections 357（5） to （8） and 358 of the Resource Management Act 1991
apply in relation to an objection under this section.
25 Completion of certain matters pending at commencement of Act
（1） If a person to whom subsection （2） applies makes an application to
which subsection （3） applies, the application must be continued and completed under
the principal Act as if this Act had not been passed.
（2） This subsection applies to a person who holds—
（a） a coastal permit granted under the Resource Management Act 1991 to
occupy a coastal marine area for a marine farming or spat catching activity; or
（b） a certificate of compliance granted under that Act to occupy a coastal
marine area for marine farming or spat catching.
（3） This subsection applies to the following applications if received
before but not determined at the commencement of this Act:
（a） an application under section 67J of the principal Act for a marine
fanning permit:
（b） an application under section 67Q（2） of the principal Act for a spat
catching permit:
（c） an application under section 67K of the principal Act to
change or cancel any of the conditions of a marine farming permit or a
spat catching permit, or to add new conditions to the permit.
（4） A notice of surrender under section 67O of the principal Act forwarded
before but not processed at the commencement of this Act must be processed as if this
Act had not been passed.
（5） A review under section 67P of the principal Act that has not been
completed at the commencement of this Act must be completed as if this Act had not
been passed.
（6） On and from the date on which a matter referred to in this section is
completed under the principal Act,—
（a） section 20 applies to the permit if it is a marine farming permit
granted under section 67J of the principal Act:
（b） section 21 applies to the permit if it is a spat catching permit
granted under section 67Q（2） of the principal Act.
（7） For the purposes of subsection （6）， sections 20 and 21 apply as if
every reference in those sections to the commencement of this Act were a reference to
the date on which the application was granted.
26 Applications after commencement of Act
（1） Despite section 19, a person may （after the commencement of this Act）
apply for a marine farming permit or a spat catching permit under the principal Act
if—
（a） the person holds—
（i） a coastal permit to occupy a coastal marine area for the purpose of
marine farming or spat catching; or
（ii） a certificate of compliance to occupy a coastal marine area for marine
farming or spat catching; and
（b） the application is—
（i） under section 67J of the principal Act for a marine farming permit for
the same area and the same species of fish, aquatic life, or seaweed that the
coastal permit or certificate of compliance relates to; or
（ii） under section 67Q（2） of the principal Act for a spat catching permit
for the same area and the same species of fish, aquatic life, or seaweed that the
coastal permit or certificate of compliance relates to.
（2） The application must be made and determined under the principal Act as
if this Act had not been passed.
（3） If the application is for a marine farming permit and the application
is granted, section 20 applies to the permit as if every reference in that section to
the commencement of this Act were a reference to the date on which the application
was granted.
（4） If the application is for a spat catching permit and the application is
granted, section 21 applies to the permit as if every reference in that section to
the commencement of this Act were a reference to the date on which the application
was granted.
27 Order of processing applications and request for aquaculture decision in
relation to aquaculture management area or interim aquaculture management area
（1） This section applies in relation to an aquaculture management
area or an interim aquaculture management area in respect of which there are—
（a） 1 or more applications for permits under section 67J or section 67Q
（2） of the principal Act; and
（b） a request for an aquaculture decision under section 186D of the
Fisheries Act 1996.
（2） The applications for permits and request for an aquaculture decision
must be dealt with in the following order:
（a） first, any application for a permit received before the request for the
aquaculture decision:
（b） second, the request for an aquaculture decision:
（c） third, any application for a permit received after the request for an
aquaculture decision.
28 Lapsing of parts of coastal permit
（1） This section applies to the following permits held by the same person:
（a） a marine farming permit or spat catching permit that is deemed to be a
coastal permit under section 20 or section 21; and
（b） a coastal permit granted under the Resource Management Act 1991 that—
（i） is in force immediately before the commencement of this Act; and
（ii） applies to the area or part of the area and 1 or more of the species
of fish, aquatic life, or sea-weed that the permit referred to in paragraph （a）
relates to.
（2） If the permits do not apply to the same species of fish, aquatic
life, or seaweed, then the coastal permit referred to in subsection （1）（b）—
（a） has effect only in relation to the species of fish, aquatic
life, or seaweed that the permit referred to in subsection （1）（a） applies to; and
（b） is to be treated as having lapsed in relation to the species of fish,
aquatic life, or seaweed that the permit referred to in subsection （1）（a） does
not apply to.
（3） If the permits do not apply to the same area, then the coastal permit
referred to in subsection （1）（b）—
（a） has effect only in relation to the area that the permit referred to in
subsection （1）（a） applies to; and
（b） is to be treated as having lapsed in relation to the area that the
permit referred to in subsection （1）（a） does not apply to.
29 Holder of deemed coastal permit to be treated as holder of fish farmer
registration pending registration by chief executive
（1） The holder of a deemed coastal permit under section 20 or section 21
must be treated as a registered fish farmer under Part 9A ofthe Fisheries Act 1996
for the space that the deemed coastal permit relates to.
（2） Within 12 months after the commencement of this Act, the chief
executive must register the holder of the deemed coastal permit asa fish farmer under
section 186V of the Fisheries Act 1996 without an application or payment of the
prescribed fee.
30 Application to register fish farmer deferred pending decision on permit
（1） The chief executive must not grant or decline an application under
section 186S of the Fisheries Act 1996 to register a fish farmer if—
（a） the applicant has a resource consent to use the space concerned as a
fish farm that was granted—
（i） before the commencement of this Act; or
（ii） under an application to which section 50 applies; and
（b） the applicant—
（i） has not made an application under section 67J or section 67Q（2） of
the Fisheries Act 1983 for the area, or part of the area, towhich the resource
consent relates; or
（ii） has made an application under section 67J or section 67Q（2） of the
Fisheries Act 1983 for the area, or part of the area, to which the resource consent
relates, but the chief executive has not granted or declined the application.
（2） If the applicant makes or has made an application under section
67J or section 67Q（2） of the Fisheries Act 1983 and the application is granted, the
chief executive may proceed to grant or decline the application under section 186S of
the Fisheries Act 1996 to register the applicant as a fish farmer.
（3） This section does not prevent the chief executive from
granting or declining an application under section 186S of the Fisheries
Act 1996 if the applicant has had an application under section 67J or section 67Q
（2） of the Fisheries Act 1983 granted in respect of other space and this section
does not otherwise apply in relation to that space.
31 Application to register as fish farmer to be declined if marine farming
permit or spat catching permit declined
（1） The chief executive must decline an application under section 186S of
the Fisheries Act 1996 to register a fish farmer if the applicant—
（a） has made an application under section 67J or section 67Q（2） of the
Fisheries Act 1983 for the area or part of the area to whichthe resource consent
relates; and
（b） the chief executive has declined the application.
（2） This section does not prevent the chief executive from
granting or declining an application under section 186S of the Fisheries
Act 1996 if the applicant has had an application under section 67J or section 67Q
（2） of the Fisheries Act 1983 granted in respect of other space.
32 Levies
（1） Subsection （2） applies to a levy or fee under the Fisheries （Cost
Recovery Levies for Fisheries Services） Order 2004 payable by the holder of—
（a） a marine farming permit under section 67J of the Fisheries Act 1983; or
（b） a spat catching permit under section 67Q（2） of the Fisheries Act
1983.
（2） A levy or fee that is, immediately before the commencement of this Act,
payable but unpaid remains payable even though the permit is deemed to be a coastal
permit under section 20 or section 21.
Revocation
33 Revocation of Freshwater Fish Farming Regulations 1983
（1） The Freshwater Fish Farming Regulations 1983 （SR 1983/278） are
revoked.
（2） All licences granted under the Freshwater Fish Farming Regulations 1983
are revoked.
（3） Section 2（1） of the Fisheries Act 1996 is amended by repealing
paragraph （b） of the definitions of fish farm and fish farmer.
（4） Sections 186ZA and 301 of the Fisheries Act 1996 are repealed.
（5） On and from the commencement of this section the holder of a fish-farm
licence immediately before the commencement of this section is to be treated as if
the holder were registered as a fish farmer under section 186S of the Fisheries Act
1996.
（6） The chief executive must, within 12 months after the commencement of
this section, register without an application or payment of the prescribed fee the
holder of a fish-farm licence under the Freshwater Fish Farming Regulations 1983
immediately before the commencement of this section as a fish farmer in respect of
the space that the licence relates to.
（7） An application for a fish-farm licence under regulation 6 of the
Freshwater Fish Farming Regulations 1983 made but not determinedat the commencement
of this section must be treated as if it were an application to register as a fish
farmer under section 186R of the Fisheries Act 1996.
Transitional provisions relating to end of moratorium under Resource
Management Act 1991
34 Resource Management Act 1991 called principal Act in sections 35 to 54
In sections 35 to 54, the Resource Management Act 1991 is called “the
principal Act”。
Interim aquaculture management areas
35 Interpretation
In sections 36 to 54,—
aquaculture decision means a determination or reservation
chief executive means the chief executive of the Ministry of Fisheries
determination, in relation to an interim aquaculture management area, means a
decision by the chief executive that he or she is satisfied that the interim
aquaculture management area will not have an undue adverse effect on fishing or on
the sustainability of fisheries resources
interim aquaculture management area—
（a） means a coastal marine area described in an Order in Council made under
section 150C of the principal Act or section 36 of this Act; but
（b） does not include a coastal marine area described in paragraph （a） if
the area is an aquaculture management area under section 44 of this Act
reservation, in relation to an interim aquaculture management area, means a
decision by the chief executive that he or she is not satisfied that the interim
aquaculture management area will not have an undue adverse effect on fishing or on
the sustainability of fisheries resources.
36 Interim aquaculture management areas declared by Order in Council
（1） The Governor-General may, by Order in Council made on the
recommendation of the Minister of Conservation, declare a coastal
marine area described in the order to be an interim aquaculture management area.
（2） The Minister must not make a recommendation unless—
（a） the regional council concerned has requested the Minister to make the
recommendation; and
（b） a regional coastal plan or proposed regional coastal plan—
（i） has, before the commencement of this Act, been notified under clause 5
of Schedule 1 of the principal Act; and
（ii） applies to the coastal marine area to be described in the Order in
Council; and
（c） the Minister is satisfied that he or she has received adequate
information to base a recommendation on; and
（d） the Minister is satisfied that—
（i） the regional coastal plan or the proposed regional coastal plan
provides for aquaculture activities as a controlled or restricted
discretionary or discretionary or non-complying activity in the area that the request
relates to; and
（ii） the provisions of the plan or proposed plan adequately address the
adverse effects （including cumulative effects） on the environment （other than
fisheries resources） of the occupation of a coastal area and of aquaculture
activities.
（3） The Minister must make a recommendation under subsection （1） within 3
months after receiving a request if the Minister is not prevented by subsection （2）
from making the recommendation.
（4） For the purposes of subsection （3）， section 37 of the principal Act
applies, with all necessary modifications, as if the Minister were acting as a
consent authority.
37 Application for aquaculture decision in relation to interim aquaculture
management area
（1） A regional council may request the chief executive to make an
aquaculture decision in relation to an interim aquaculture management area.
（2） However, a regional council must not make a request in relation to an
area to which section 39（a）， （b）， or （c） applies.
38 Chief executive to make aquaculture decision
（1） Within 6 months after receiving a request for an aquaculture decision
under section 37, the chief executive must—
（a） make a determination; or
（b） make a reservation; or
（c） make 1 or more determinations or reservations or both in relation to
different parts of the area.
（2） The chief executive may request the regional council that requested the
aquaculture decision and any person whose interests may be affected to provide
him or her with further information
management area would have on access to or displacement of fishing or the
sustainability of fisheries resources.
（3） For the purposes of subsection （1）， the period beginning on the day
when a request for further information is made and ending on the day when the
information is provided is excluded from the 6-month period referred to in subsection
（1）。
（4） Before making an aquaculture decision, the chief executive must—
（a） consult the persons and organisations that the chief executive
considers represent the classes of persons having a customary,
commercial, or recreational fishing interest in the interim aquaculture management
area; and
（b） consider any submissions made by those persons and organisations.
39 Aquaculture decisions must not be made in relation to certain areas
（1） The chief executive must not make an aquaculture decision if the
decision would apply to an area for which—
（a） a coastal permit under the principal Act authorises occupation for the
purposes of an aquaculture activity; or
（b） a deemed coastal permit under section 10 or section 20 or section 21 is
in force; or
（c） an application for a coastal permit under the principal Act to occupy a
coastal marine area for the purpose of an aquaculture activity has been made but not
determined.
（2） However, subsection （1）（c） does not apply to the following
applications:
（a） applications to which section 150B（2） of the principal Act applies:
（b） applications made in the period beginning on 1 January 2005 and ending
with the close of 9 May 2006.
Section 39（1）（c）： amended, on 28 September 2008, by section 4（1） of
the Aquaculture Reform （Repeals and Transitional Provisions） Amendment Act 2008
（2008 No 92）。
Section 39（2）： added, on 28 September 2008, by section 4（2） of the
Aquaculture Reform （Repeals and Transitional Provisions） Amendment Act 2008 （2008
No 92）。
40 Matters to be considered by chief executive
In deciding whether to make a determination or reservation, the chief
executive must have regard only to the following matters:
（a） the effect of the interim aquaculture management area on—
（i） the biological diversity of the aquatic environment:
（ii） the productivity and biological abundance of fisheries resources:
（iii） habitats of known significance for fisheries management:
（b） the location of the interim aquaculture management area in relation to
areas in which fishing is carried out:
（c） the effect of the interim aquaculture management area on fishing of any
fishery, including the proportion of any fishery likely to become affected:
（d） the degree to which aquaculture activities within the interim
aquaculture management area will lead to the exclusion of fishing:
（e） the extent to which fishing for a species in the interim aquaculture
management area can be carried out in other areas:
（f） the extent to which the interim aquaculture management area will
increase the cost of fishing:
（g） the cumulative effect on fishing of any previous aquaculture
activities.
41 Requirements for aquaculture decision
（1） An aquaculture decision must—
（a） be in writing; and
（b） define the areas that are subject to the decision; and
（c） provide reasons for the decision; and
（d） if the decision is a determination based on a rule in a regional
coastal plan or proposed regional coastal plan that relates to the character,
intensity, or scale of occupation of the interim aquaculture management area by
aquaculture activities,—
（i） specify the rule; and
（ii） state that the rule may not be revoked or amended until the chief
executive makes a further aquaculture decision in relation to the area affected by
the revocation or amendment; and
（e） be notified to the regional council.
（2） If the chief executive makes a reservation, the reservation must also
include—
（a） whether the reservation relates to customary,
recreational, or commercial fishing or a combination of them; and
（b） if the reservation relates only to commercial fishing, the stocks and
areas concerned, specifying any stocks subject to the quota management system, any
stocks or species specified in Schedules 4C and 4D, and any stocks for species not
subject to the quota management system; and
（c） any other matters required by regulations to be included.
（3） The chief executive must—
（a） publicly notify the fact that he or she has made a
determination or reservation; and
（b） in the notice published for that purpose, include—
（i） the information specified in subsections （1） and （2）； and
（ii） information
be obtained.
42 Appeal against aquaculture decision
（1） The following persons may appeal to the High Court against an
aquaculture decision:
（a） the regional council that requested the aquaculture decision:
（b） any person consulted or who ought to have been consulted under section
38（4）：
（c） any person who has an interest in the decision greater than the public
generally.
（2） An appeal must be filed within 3 months after public notification of
the aquaculture decision.
（3） The High Court may /confirm/i or modify the aquaculture decision appealed
against or substitute a different aquaculture decision.
43 Judicial review of aquaculture decision
Any person wishing to seek, under Part 1 of the Judicature Amendment Act
1972, judicial review of an aquaculture decision must do so within 3 months after the
public notification of the decision.
44 Interim aquaculture management area becomes aquaculture management area
following aquaculture decision
（1） If the chief executive makes an aquaculture decision under section 38,
the regional council must amend the regional coastal plan and any proposed regional
coastal plan as follows:
（a） in the case of a determination, by noting on the plan the details of
the determination:
（b） in the case of a reservation,—
（i） by noting on the plan the details of the reservation; and
（ii） if the reservation relates to the sustainability of fisheries
resources or effects on customary or recreational fishing, by deleting from the plan
the area or areas that the reservation relates to.
（2） However, if, when the aquaculture decision is made under section 38, an
interim aquaculture management area is in a regional coastal plan, the regional
council must comply with sections 9 to 12 of the Maori Commercial Aquaculture Claims
Settlement Act 2004 before it complies with subsection （1）。
（3） Schedules 1 and 1A of the principal Act do not apply to an amendment
made under subsection （1）。
（4） On and from the date on which the regional council complies with
subsection （1）， the interim aquaculture management area becomes an aquaculture
management area.
Deemed aquaculture management areas
45 Existing coastal permits deemed to be aquaculture management areas
（1） This section applies—
（a） to a coastal permit—
（i） that has been deemed to be a coastal permit under any of sections 10,
20, or 21; but
（ii） only to the extent contemplated by section 28; and
（b） subject to section 53.
（2） This section does not apply in respect of any space identified in a
regional coastal plan or proposed regional coastal plan at the commencement of this
Act as space in which aquaculture activities authorised by the coastal permit are
prohibited.
（3） The area to which a coastal permit that this section applies to is
deemed to be an aquaculture management area for the purposes of the principal Act
and, if the relevant plan is not operative, the relevant plan must be treated as if
it were operative.
（4） The deemed aquaculture management area is subject to the provisions of
the regional coastal plan or proposed regional coastal plan that apply to the area.
（5） An area that is deemed to be an aquaculture management area by this
section ceases to be an aquaculture management area if a plan that applies to the
area becomes operative after the commencement of this Act and does not provide for
the area to continue to be an aquaculture management area.
Existing applications and coastal permits
46 Pending applications where moratorium ends before 31 December 2004
（1） This section applies to an application—
（a） that section 150B（2） of the principal Act applies to; but
（b） only to the extent that it relates to an area that an Order in Council
made under section 150C（1） of the principal Act applies to.
（2） At the end of the moratorium, a consent authority must—
（a） resume processing an application; and
（b） process and determine the application under rules in the regional
coastal plan, and in any proposed regional coastal plan, as at the end of the
moratorium.
（3） For the purposes of subsection （1）， rules in a proposed regional
coastal plan include any rule prohibiting an activity if the plan has been notified
under clause 5 of Schedule 1 of the principal Act.
（4） Subsection （3） applies subject to section 20 of the principal Act.
47 Pending applications where moratorium ends on close of 31 December 2004
（1） This section applies to an application—
（a） that section 150B（2） of the principal Act applies to; but
（b） only to the extent that it relates to an area for which the moratorium
expires on the close of 31 December 2004.
（2） After the end of the moratorium, a consent authority must resume
processing an application; but only if and to the extent that the application relates
to a regional coastal plan that provides for an aquaculture management area and the
application relates to the aquaculture management area.
（3） An application referred to in subsection （2） must be processed and
determined under the rules in the regional coastal plan and any proposed regional
coastal plan at the time the consent authority resumes processing the application.
（4） However, a consent authority must not grant a coastal permit to occupy
space for aquaculture activities in an aquaculture management area that is subject to
a reservation relating to commercial fishing, except to a person specified in a
notice given by the chief executive under section 186ZK of the Fisheries Act 1996 as
the holder of an aquaculture agreement under that Act.
（5） An application is deemed to be cancelled on and from the date on which
a proposed regional coastal plan is notified under clause 5 of Schedule 1 of the
principal Act after the commencement of this Act if and to the extent that the
application relates to an area covered by the plan and the plan provides for
aquaculture management areas, but it does not include the area that the application
relates to.
（6） An application is deemed to be cancelled on and from 31 December 2014
to the extent that, by that date,—
（a） no proposed regional coastal plan covering the area that the
application relates to has been notified under clause 5 of Schedule 1 of the
principal Act; or
（b） a proposed regional coastal plan covering the area that the application
relates to has been notified under clause 5 of Schedule 1of the principal Act, but
the plan contains no aquaculture management areas.
（7） This section—
（a） prevails over Part 7A of the principal Act; but
（b） applies subject to the Maori Commercial Aquaculture Claims Settlement
Act 2004.
（8） In this section, aquaculture management area does not include an area
that is deemed to be an aquaculture management area under section 45.
48 Certain coastal permits granted during moratorium not to be exercised
until end of moratorium
（1） This section applies to a coastal permit if—
（a） the application for the permit was notified during the moratorium but
before the commencement of the Resource Management （Aquaculture Moratorium）
Amendment Act 2002; or
（b） the consent authority decided, during the moratorium but before the
commencement of the Resource Management （Aquaculture Moratorium） Amendment Act
2002, not to notify the application for the permit.
（2） However, this section does not apply to a coastal permit for
aquaculture activities that relates to a coastal marine area that, immediately before
the moratorium, was subject to—
（a） a coastal permit; or
（b） a marine farming lease or licence under the Marine Farming Act 1971.
（3） No person may do anything under a coastal permit until the moratorium
has expired in relation to the area that the permit relatesto.
（4） At the end of the moratorium, a regional council may—
（a） review the conditions in a coastal permit; and
（b） amend the conditions so that they comply with the rules in the regional
coastal plan and any proposed regional coastal plan that apply at the end of the
moratorium.
（5） If a coastal permit relates to a restricted coastal activity, section
119A of the principal Act applies in relation to the amendment of conditions under
subsection （4）（b）。
（6） At the end of the moratorium,—
（a） no person may carry on any aquaculture activities under a coastal
permit in any area in which aquaculture is prohibited; and
（b） the coastal permit ceases to have any effect and is deemed to be
cancelled.
（7） For the purposes of section 125 of the principal Act, the commencement
date of a coastal permit is the later of—
（a） the day after the date on which the moratorium ceases to apply to the
coastal permit; or
（b） the day after the date on which the regional council notifies the
holder of the permit of the result of a review under subsection （4）。
（8） Sections 357 and 358 of the principal Act apply to a decision by a
regional council to amend conditions under subsection （4）。
49 Preferential right for deemed permit holder to apply for coastal permit
for occupation
（1） Subsection （2） applies if—
（a） a person holds a lease or licence that is deemed to be a coastal permit
by section 10; and
（b） the deemed coastal permit relates to an area in an aquaculture
management area; and
（c） the person is giving effect to the deemed coastal permit.
（2） No person, other than the permit holder, may apply for a coastal permit
to occupy the area that the deemed coastal permit relatesto.
（3） However, subsection （2） does not apply if—
（a） the permit holder consents in writing to the application; or
（b） the coastal permit has expired and—
（i） the holder of the permit has not applied for a new coastal permit to
occupy the same area to undertake an aquaculture activity; or
（ii） the holder of the permit has applied for a new coastal permit for the
same area and the application has been refused and all appeals against the refusal
have been withdrawn or dismissed; or
（c） the coastal permit has lapsed under section 125 of the principal Act;
or
（d） the coastal permit has been cancelled under section 126 of the
principal Act; or
（e） the coastal permit has been surrendered under section 138 of the
principal Act.
（4） This section does not limit or affect section 124 of the principal Act.
Pre-moratorium and pre-commencement applications for coastal permits
50 Pre-moratorium and pre-commencement applications for coastal permits not
subject to moratorium
（1） Subsection （2） applies to an application for a coastal permit under
the principal Act to occupy a coastal marine area for
aquaculture activities if the application—
（a） was made before the commencement of this Act; and
（b） is not subject to section 150B（2） of the principal Act; and
（c） has not been determined or withdrawn before the commencement of this
Act.
（2） An application to which this subsection applies must be determined
under the principal Act as if the Resource Management Amendment Act （No 2） 2004 had
not been passed.
（3） A person who has made an application that subsection （2） applies to
may apply, or continue with an application, for a marine farming permit under section
67J of the Fisheries Act 1983 or a spat catching permit under section 67Q（2） of
that Act if the application under that Act relates to all or part of the area, and
1 or more of the species of fish, aquatic life, or seaweed, that the application that
subsection （2） applies to relates to.
（4） An application under subsection （3） lapses if the application to
which subsection （2） applies is—
（a） withdrawn; or
（b） declined and any appeal in relation to the declined application has
been unsuccessful or withdrawn.
（5） If an application that subsection （2） applies to is granted, the
application under subsection （3） must be determined under the Fisheries Act 1983 as
if this Act had not been passed.
（6） If the application is for a marine farming permit and the application
is granted, section 20 applies to the permit as if every reference in that section to
the commencement of this Act were a reference to the date on which the application
was granted.
（7） If the application is for a spat catching permit and the application is
granted, section 21 applies to the permit as if every reference in that section to
the commencement of this Act were a reference to the date on which the application
was granted.
