NZ King Salmon Closing Legal Submissions

Transcription

IN THE MATTER
of the Resource Management Act 1991
AND
THE MATTER
of a Board of Inquiry appointed under section
149J of the Resource Management Act 1991 to
consider The New Zealand King Salmon Co.
Limited's private plan change requests to the
Marlborough Sounds Resource Management
Plan and resource consent applications for
marine farming at nine sites located in the
Marlborough Sounds
CLOSING LEGAL SUBMISSIONS
ON BEHALF OF THE NEW ZEALAND KING SALMON CO. LIMITED
18 OCTOBER 2012
D A Nolan / J D K Gardner-Hopkins
Phone 64 4 499 9555
Fax 64 4 499 9556
PO Box 10-214
DX SX11189
Wellington
2464333 (FINAL)
i
TABLE OF CONTENTS
1.
PURPOSE OF CLOSING SUBMISSIONS................................................................................ 1
2.
OVERVIEW OF POSITION ....................................................................................................... 2
3.
STRUCTURE ............................................................................................................................. 3
4.
JURISDICTIONAL AND OTHER LEGAL "DISTRACTIONS" ................................................... 3
The "practical precedent" argument .................................................................................. 4
The "potential effects" argument........................................................................................ 7
The "alternatives" argument .............................................................................................. 9
Within the Sounds: Discretionary activity locations in CMZ 2 ......................................... 11
Within the Sounds: Mid-bay locations ............................................................................. 12
Contained land-based systems ....................................................................................... 14
Open ocean aquaculture ................................................................................................. 15
Waiting for the Council to complete the review of the MSRMP ...................................... 15
The practical answer to the various "alternatives"........................................................... 18
The "consultation" argument............................................................................................ 18
The "privatisation" argument............................................................................................ 20
Public rights of access, navigation and fishing ................................................................ 21
A jurisdictional issue? ...................................................................................................... 22
The "compliance" argument............................................................................................. 24
5.
THE LEGAL CONTEXT ........................................................................................................... 25
Context of the Aquaculture reforms ................................................................................. 26
The Marlborough Region as a target for the reforms ...................................................... 26
Other Regions .................................................................................................................. 28
Cost implications .............................................................................................................. 28
Reform enabling concurrent application process ............................................................ 28
Applications in the CMZ1 ................................................................................................. 29
6.
OVERVIEW OF APPROACH TO THIS PART ........................................................................ 29
7.
OVERARCHING EVIDENTIAL ISSUES ................................................................................. 30
Expert vs lay evidence ..................................................................................................... 30
"Commissioned science" ................................................................................................. 32
"Absence of evidence is not evidence of absence" ......................................................... 33
Submission numbers and petition ................................................................................... 35
Not a numbers game ....................................................................................................... 35
A petition - of little relevance or assistance to the Board ................................................ 35
8.
POSITIVE EFFECTS ............................................................................................................... 36
Introduction ...................................................................................................................... 36
Employment ..................................................................................................................... 37
Wider economic impacts (benefits) ................................................................................. 41
Information gathering/testing issues ................................................................................ 41
Reliability of sales figures used by Dr Fairgray / volatility of prices ................................ 43
The input-output methodology ......................................................................................... 45
Professor Hazledine's approach ...................................................................................... 48
Other witnesses ............................................................................................................... 50
Other matters: significance of the Proposal .................................................................... 51
9.
SEABED/BENTHIC EFFECTS ................................................................................................ 52
Introduction ...................................................................................................................... 52
Nature of the benthic communities affected .................................................................... 53
Level of effects and enrichment standards ...................................................................... 55
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Conditions and adaptive management regime ................................................................ 59
Views of other witnesses ................................................................................................. 60
Conclusions on this section ............................................................................................. 62
10. WATER COLUMN/FAR FIELD MARINE EFFECTS ............................................................... 62
Baseline information and monitoring ............................................................................... 66
The setting of objectives and thresholds ......................................................................... 68
The precautionary approach ............................................................................................ 70
Adaptive management and response to any breach of the thresholds ........................... 70
Conclusions ..................................................................................................................... 72
11. OTHER DISCHARGES TO WATER ....................................................................................... 73
Copper and Zinc .............................................................................................................. 73
Greywater......................................................................................................................... 73
12. BIOSECURITY/DISEASE ........................................................................................................ 74
Introduction ...................................................................................................................... 74
Substantial agreement on key issues .............................................................................. 74
Marine pests .................................................................................................................... 76
The "Biosecure Approach" ............................................................................................... 76
Stocking densities ............................................................................................................ 78
Antibiotics ......................................................................................................................... 78
Assessment of normal mortality rates ............................................................................. 78
Lack of certainty regarding risks ...................................................................................... 79
13. PELAGIC FISH AND SHARKS ............................................................................................... 80
Wild fish and fishing resources ........................................................................................ 80
Loss of blue cod habitat ................................................................................................... 80
The risk to abundance of blue cod and other pelagic fish, through their attraction
to waste food beneath the farms and predation by salmon of the young fish................. 82
The potential for several farms in close proximity to act as a predator trap for wild
fish migrating through Waitata Reach. ............................................................................ 83
Feeding by wild fish around farms leads to increases in contaminants and heavy
metals in their flesh, essentially poisoning these fish ...................................................... 83
Sharks .............................................................................................................................. 84
14. MARINE MAMMALS ................................................................................................................ 85
15. SEABIRDS ............................................................................................................................... 87
King Shags - Te Kawau a Toru ....................................................................................... 87
Water clarity ..................................................................................................................... 89
Feed ................................................................................................................................. 90
Distance ........................................................................................................................... 90
Importance of site specific and species specific assessments ....................................... 91
Seabirds ........................................................................................................................... 91
Conditions ........................................................................................................................ 92
16. UNDERWATER ARTIFICIAL LIGHTING ................................................................................ 93
17. NOISE ...................................................................................................................................... 94
18. AIR QUALITY AND ODOUR ................................................................................................... 96
19. TERRESTRIAL ECOLOGY ..................................................................................................... 97
20. LANDSCAPE, NATURAL CHARACTER, AND VISUAL AMENITY........................................ 98
Classifications .................................................................................................................. 98
Assessment of effects ...................................................................................................... 99
Conclusions as to levels of effects ................................................................................ 103
Mitigation ........................................................................................................................ 106
Other amenity issues ..................................................................................................... 106
Underwater/marine natural character ............................................................................ 107
Reserves ........................................................................................................................ 109
21. NAVIGATION AND ENGINEERING...................................................................................... 110
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Application of the Guidelines ......................................................................................... 113
"Recognised" navigational routes .................................................................................. 117
Impacts on navigational safety in reality ........................................................................ 118
Impacts on Interislander ferry operations ...................................................................... 119
Salmon farm break-away ............................................................................................... 120
22. TOURISM AND RECREATION ............................................................................................. 122
Introduction .................................................................................................................... 122
Overall effects and substitutability ................................................................................. 123
Diving ............................................................................................................................. 124
Recreational fishing ....................................................................................................... 125
Ferry track ...................................................................................................................... 126
Positive effects - industrial tourism ................................................................................ 126
Effects on Tui Nature Reserve....................................................................................... 127
23. SOCIAL EFFECTS ................................................................................................................ 130
Introduction .................................................................................................................... 130
Mr Baines's approach .................................................................................................... 130
Dr Phillips's approach .................................................................................................... 133
24. HISTORIC HERITAGE .......................................................................................................... 135
25. CULTURAL EFFECTS .......................................................................................................... 135
Consultation with iwi ...................................................................................................... 135
Ngāti Koata .................................................................................................................... 138
Withdrawal of the Iwi Interests Report ........................................................................... 138
Cultural effects ............................................................................................................... 139
Mauri .............................................................................................................................. 140
Proposed conditions addressing cultural effects ........................................................... 141
The significance of the views of Te Ātiawa Manawhenua ki te Tau Ihu Trust Board ... 143
Positive effect of the Proposal: Aquaculture Settlement new space allocation ............ 145
26. RELEVANT TESTS ............................................................................................................... 146
27. REVISIONS TO THE PLAN CHANGE .................................................................................. 146
The scope of the policy proposed .................................................................................. 146
The Halstead standard .................................................................................................. 147
Prohibited status ............................................................................................................ 148
28. APPLICATION OF TESTS .................................................................................................... 149
Planning Evidence ......................................................................................................... 149
Site selection .................................................................................................................. 151
Prohibited Activity status ................................................................................................ 152
"Spot zoning".................................................................................................................. 152
"Most appropriate" ......................................................................................................... 153
Differences in interpretation of the planning documents ............................................... 154
Reconciling Policies 1.1 and 1.2 .................................................................................... 154
Plan's approach to Queen Charlotte Sound .................................................................. 154
Moving away from mussels ........................................................................................... 155
Casual mooring areas .................................................................................................... 155
The NZCPS issue .......................................................................................................... 156
29. PART 2 MATTERS ................................................................................................................ 159
Section 6 - matters to be recognised and provided for: ................................................ 160
Section 7 - matters to have particular regard to ............................................................ 162
Section 8 - shall take into account the Treaty of Waitangi ............................................ 163
30. RELEVANT TESTS ............................................................................................................... 164
31. APPLICATION OF TESTS: SECTION 104 ........................................................................... 165
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Environmental effects .................................................................................................... 165
Planning framework ....................................................................................................... 165
Other matters - "environmental compensation"............................................................. 165
Part 2.............................................................................................................................. 167
32. SECTION 105 ........................................................................................................................ 168
33. SECTION 107 ISSUES.......................................................................................................... 169
The issue - belatedly raised ........................................................................................... 169
The statutory provisions................................................................................................. 170
"In the receiving waters" ................................................................................................ 171
The discharge in question.............................................................................................. 173
Conspicuous suspended materials, etc ......................................................................... 174
Significant effects on aquatic life ................................................................................... 176
34. RESOURCE CONSENT CONDITIONS ................................................................................ 177
Term of the resource consents ...................................................................................... 179
Condition 1 - "Generally in accordance with" ................................................................ 179
Condition 22 - Kaitapeha ............................................................................................... 180
Peer Review Panel ........................................................................................................ 180
Water Quality Standards - WQS .................................................................................... 182
Response to Sustain our Sounds closing ...................................................................... 183
Tangata Whenua Panel ................................................................................................. 185
Condition 48 - The 24 month ES compliance period ..................................................... 186
Location of monitoring sites ........................................................................................... 188
Condition 70(b), 77(c) and 80(g) ................................................................................... 188
Restrictions on transferability of any consents granted to NZ King Salmon ................. 189
35. PART 2 MATTERS ................................................................................................................ 190
36. CONCLUSIONS..................................................................................................................... 190
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MAY IT PLEASE THE BOARD:
PART A: SUMMARY OF POSITION
1.
PURPOSE OF CLOSING SUBMISSIONS
1.1
These closing submissions, presented on behalf of The New Zealand King
Salmon Co. Limited ("NZ King Salmon" or "Applicant"), are intended to
address matters arising through the hearing, including through:
(a)
cross examination of the witnesses;
(b)
questions from the Board;
(c)
the legal submissions presented by the other parties; and
(d)
commentary on aspects of the Plan Change provisions and
conditions of consent.
1.2
We have avoided, where possible, repetition of matters addressed in the
opening submissions for NZ King Salmon. We have also sought to focus on
the key issues as they have emerged in the hearing, rather than trying to
address every single point arising.
1.3
Notwithstanding the approach adopted, given the sheer weight of information
and material filed in these proceedings, NZ King Salmon and Counsel
decided that it would better assist the Board for these closing submissions to
provide a more fulsome summary of the most helpful information before the
Board and where the Board can review that material. This has led to the
extensive submissions before the Board today.
1.4
Over the course of the last eight weeks the Board has heard evidence from
approximately 150 expert and non-expert witnesses and submitters. At the
time of writing the hearing transcript was approaching 3,900 pages. This is in
addition to the already significant volume of submissions and evidence filed
since 31 March 2012. As the Board's legal advisors pointed out:1
1
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6.3
the Board received 1,293 submissions, significantly more
than any other matter that has previously proceeded through
the EPA process;
6.4
excluding the application (which is over four lever arch files)
the Board has before it over 7,500 pages of evidence …
Letter dated 11 October 2012 from Buddle Findlay to the Hon Kate Wilkinson, paras 6.3
2
1.5
Through these submissions we have attempted to highlight the key issues
confronting the Board, together with as many references as possible to the
pertinent sections of the evidence and the hearing transcript. It is hoped that
this will then assist the members of the Board to more easily locate the
relevant information as they retire to deliberate over the coming weeks.
1.6
Counsel and NZ King Salmon also acknowledge the significant contribution
that local residents, business people, and indeed all interested parties have
made to this hearing, both through written and oral submissions and
evidence.
2.
OVERVIEW OF POSITION
2.1
NZ King Salmon submits:
(a)
The various "jurisdictional" arguments put forward by some
opponents cannot be sustained. In some cases, they skewed the
approach of those parties and their witnesses and that impacted on
or even prevented their proper consideration of the merits of the
Proposal.
(b)
The core "jurisdictional" arguments centred around the alleged
importance of the CMZ1 zone and the inappropriateness of NZ King
Salmon
(a
"private"
company)
seeking
to
change
the
("community's") Marlborough Sounds Resource Management Plan
("Plan").
(c)
Similar arguments were expressed or implied in different ways, such
as:
(i)
a "precedent" or "practical precedent";
(ii)
a "potential effect" (if others were to also seek to change
the Plan in the future); and
(iii)
an affront to "public" rights in respect of the waterspace, if
not the Marine and Coastal Area (Takutai Moana) Act 2011
("Takutai Moana Act").
(d)
Views on consultation, particularly for some tangata whenua, also
seemed to prevent some parties from engaging on the merits, while
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a belated attempt was also made by others to raise section 107 as a
further jurisdictional barrier to the Proposal (despite it never being
raised in the issues list or in cross examination of the technical
experts).
(e)
For the reasons expanded on below, none of the jurisdictional
challenges have any merit. Simply put, Parliament only recently
enabled NZ King Salmon (in response to a submission by the
company to the Select Committee on the Aquaculture reforms) to
seek a plan change and resource consents concurrently; there is no
requirement to consult (although NZ King Salmon did make genuine
and early efforts to do so, within certain constraints); and the
opponents' approach to section 107 is strained and if adopted would
run the risk of effectively prohibiting any finfish farming in coastal
waters.
(f)
In respect of the merits, the weight of expert and other credible
evidence supports the rezoning and the grant of consents to NZ
King Salmon. In the broad sense, that would achieve the overall
purpose of the Resource Management Act 1991 ("RMA").
3.
STRUCTURE
3.1
The balance of these submissions is structured as follows:
(a)
Part B: Overarching legal issues.
(b)
Part C: Evaluation of key effects.
(c)
Part D: Plan Change tests.
(d)
Part E: Resource Consent tests.
(e)
Part F: Conclusions.
PART B: OVERARCHING LEGAL ISSUES
4.
JURISDICTIONAL AND OTHER LEGAL "DISTRACTIONS"
4.1
In this section we address the key overarching legal issues or themes raised
by some submitters, which, with respect, we consider to be unfounded, with
little merit and distracting from the merits of the proceeding. These are:
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(a)
The "practical precedent" argument.
(b)
The "potential effects" argument.
(c)
The "alternatives" argument.
(d)
The "consultation" argument.
(e)
The "privatisation" argument.
(f)
The "compliance" argument.
The "practical precedent" argument
4.2
In his opening submissions for the Marlborough District Council ("Council"),
Mr Quinn suggested that if the Board approved the Plan Change then this
would lead to a kind of "practical precedent", whereby other parties would
also seek private plan changes to enable marine farming.2 Mr Quinn sought
to distinguish this from the more conventional concept of "legal precedent",
presumably because he has had to, as the authorities are clear that
precedent issues do not arise with plan change decisions.3
4.3
The Board appeared wary of these submissions.4 As it should. There is
simply no basis in the RMA or case law to decline a plan change request on
any such grounds as "practical precedent":
(a)
Even in the resource consent context, the "precedent" argument is
one that tends to be overused, and needs to be treated with some
reserve.5 There is no true concept of "precedent" in this area of the
law,6 and the "short and inescapable point is that each proposal is to
be considered on its own merits."7
(b)
Mr Quinn himself conceded that there has been no decision where
the courts have turned down a plan change or private plan change
on the basis of precedent or plan integrity8 and that the authorities
2
3
4
5
6
7
8
Opening submissions for the Council, page 19 - 22.
Hearing transcript for 11 September 2012, page 1497 lines 34 - 44.
Hearing transcript for 11 September 2012, pages 1498 - 1499.
Berry v Gisborne District Council (2010) 16 ELRNZ 88 at [24].
Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA); Berry v Gisborne District
Council (2010) 16 ELRNZ 88 at [24]; McKenna v Hastings District Council EnvC
Wellington W016/2008, 4 April 2008 at [30].
Berry v Gisborne District Council (2010) 16 ELRNZ 88 at [24].
Hearing transcript for 11 September 2012, page 1499.
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make it clear that a plan change does not set a precedent.9 (In our
opening submissions, we referred to Canterbury Fields Management
Ltd v Waimakariri District Council10 in this regard.11)
(c)
As Your Honour also observed, the fact that this is the first time that
the new concurrent application process has been used does not
itself mean that a precedent would be set by approving the
Proposal.12
(d)
The Council's concerns boil down to an anxiety that other parties
might, in the future, seek to use the same process of a private plan
change and concurrent consents made available by Parliament
through the recent reforms.
Use of a process deliberately and
specifically established by Parliament simply cannot be a reason
that weighs against consideration of a proposal on its merits. That
would be to ignore, or unwind, what Parliament has enabled.
4.4
The Council's position on this issue through these proceedings is surprising,
given that it submitted in support of the reforms when they were before
Parliament.13
4.5
The Council's concerns about a "gold rush" are entirely self-generated and
not real:
(a)
While there was a "gold rush" of marine farm applications during the
late 1990s when pro forma applications could be lodged, this was
addressed through the Resource Management Amendment Act
2003 which gave councils the ability to reject an application which
was inadequate, and the introduction in 2005 of the requirement for
a marine farm to be within an aquaculture management area (which
councils had greater control over).14 Those changes effectively put
a halt to additional aquaculture activity, which subsequently
necessitated the recent Aquaculture reforms.
9
10
11
12
13
14
[2011] NZEnvC 199 at [93], [94] and [96].
Opening submissions for NZ King Salmon, at paragraphs [9.4] - [9.54].
Hearing transcript for 12 September 2012, pages 1564 - 1566 (cross examination of Peter
Jerram). Exhibit Jerram 8 - Submission of MDC to Primary Production Select Committee
on the Aquaculture Legislation Amendment Bill.
RMA, section 12A (repealed).
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(b)
The "gold rush" is Council-generated hyperbole. For example, Mr
Jerram in his letter published in the Marlborough Express on 30 April
2012, described the three reasons for the Council's submission in
opposition to the Proposal (drafted and lodged by himself and two
other councillors, without any recommendation to oppose the project
from the professional staff) as follows:
(i)
That there were 15 gazetted sites awaiting the outcome of
this case. In fact there were only three in the CMZ1, two of
which were only gazetted after Mr Jerram's letter.15
(ii)
That the CMZ1 zone would become "full of salmon
farms".16
Similar hyperbole infected the Council's submission and the
Council's opening legal submissions. This deliberate overstatement
has also been picked up by other submitters.
(c)
Parliament has also created a specific power for councils to address
the issue of a council being faced with multiple applications. The
Council has the ability to request the Minister of Aquaculture to
suspend the receipt of applications for coastal permits for
aquaculture activities.17
Neither Mr Jerram nor the Council's
opening submissions brought that to the Board's attention.
4.6
There is also no evidence that multiple applications will be lodged:
(a)
Insofar as marine farming activities are concerned, the CMZ3 zone
is specific to salmon farming so there would not be a risk of mussel
farming (or other forms of aquaculture) seeking to use the zone for
other sites.
It is now proposed for non-salmon farming to be
prohibited in the CMZ 3.
(b)
While there has been some interest in finfish farming in the Sounds
(including salmon), there is no evidence that this will lead to multiple
applications being lodged.
While giving evidence, Mr Hawes
indicated that he had received two enquiries regarding aquaculture
in the Sounds. Of those, one was only a general enquiry, and the
15
16
17
Hearing transcript for 12 September 2012, page 1545 - 1547.
considered that as a politician, he was allowed a bit of hyperbole).
RMA, section 165ZB.
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(Mr Jerram
7
second was in relation to Port Gore but did not disclose the type of
aquaculture. We do not consider that either enquiry represents any
probative evidence for the Board. Iwi have also emphasised a wish
to be involved in aquaculture in the Sounds. While the recently
gazetted areas provide some assistance to iwi, a plan change is still
required and there is no evidence of any concrete proposition. Mr
Hippolite, while cross examining Ms Dawson, referred to the
expense involved with the necessary plan change process and
suggested it was beyond iwi.18
(c)
Even if there were additional concurrent applications in the future:
(i)
Each application would need to be, and should be entitled
to be, assessed on its merits, including consideration of
cumulative effects.
(ii)
As discussed above, the Council has the ability to request
the Minister of Aquaculture to suspend the receipt of
applications for coastal permits for aquaculture activities if
a genuine issue ever arose over multiple applications.19
4.7
For all the above reasons, nothing in the submissions of the Council on this
point should weigh against the Proposal. The potential for future applicants
to use any policy included as part of the Plan Change as a "lever" is
addressed below.
The "potential effects" argument
4.8
Ms Tree, for EDS, submitted that the Board is required20 to consider the
"potential effects" of applications for private plan changes (and consents) that
might be made at some point in the future.21
This appears to be an
alternative (but similar) argument to the Council's "practical precedent"
issue.22 It has the same thrust of cautioning the Board against allowing the
Plan Change because of what might happen in the future. However, it too
fails to withstand scrutiny.
18
19
20
21
22
Hearing transcript for 15 October 2012, page 3731 lines 9 - 26.
RMA, section 165ZB.
When making regional rules under section 68 of the RMA.
Opening submissions for EDS, para 36.
The Council in its closing submissions appeared to align itself more closely with this
argument.
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4.9
Under section 68 of the RMA, the Board is required to have regard to the
"actual and potential effects" on the environment of an activity.23
Actual
effects are those that will happen, and potential effects are those that could
happen. As set out by the Court of Appeal, "cumulative effects" fall into the
category of actual effects, not potential effects:24
The first thing which should be noted is that a cumulative effect is
not the same as a potential effect. This is self evident from the
inclusion of potential effect separately within the definition. A
cumulative effect is concerned with things that will occur rather than
with something which may occur, that being the connotation of a
potential effect. This meaning is reinforced by the use of the
qualifying words "which arises over time or is one of a gradual build
up of consequences. The concept of combination with other effects
is one of effect A combining with effects B and C to create an
overall composite effect D. All of these are effects which are going
to happen as a result of the activity which is under consideration.
…
Potential effects by contrast are effects which may happen or they
may not. Their definition incorporates levels of probability of
occurrence.
4.10
As the Board appeared to recognise in its discussion with Ms Tree on the
issues,25 effects arising from future activities will be considered at the time
those activities seek resource consent. They cannot be considered now:26
… The duty imposed by section 104(1)(a) is to have regard to any
actual or potential effect on the environment of allowing the activity.
Although the meanings to be given to the words effect and
environment are important, they are elements in the duty. The duty
itself is to have regard to effects that exercising the consent sought
would (actual) or could (potential) have on the environment.
So although a potential effect includes one of low probability but
high potential impact, the duty to have regard to it only applies if it
is an effect on the environment. And in Hawthorn, the Court of
Appeal held that the effects of exercising resource consents that
have not been applied for, but which conceivably might be made,
are not to be taken into account in envisaging the future
environment on which exercise of the resource consent sought
might impact.
So applying that authority we hold that is not permissible, in
considering a resource-consent application, to have regard to an
effect on putative activity or development. that would require
resource consent that has not been applied for, or require a plan
change that has not been notified.
4.11
While the discussion in these cases occurred in the context of a resource
consent, the same reasoning must be applied to a plan change and the
Board's consideration of the "actual and potential effects" of adopting a rule
23
24
25
26
RMA, s 68(3).
Dye v Auckland Regional Council (2011) 7 ELRNZ 209 (CA) at [38] and [39].
Living Earth Ltd v Auckland Regional Council EnvC Auckland A126/2006, 4 October 2006
at [170] - [172].
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that will enable salmon farming in the CMZ3 zones as sought. On that basis,
the Board cannot have regard to the possible future effects that may or may
not arise from a hypothetical future plan change (and potentially concurrent
consents).
4.12
The EDS reliance on Kennedy's Bush Developments Ltd27 is misplaced. The
Court of Appeal has since confirmed that the cumulative effects of a particular
application are effects which arise from that application (and not others),28
and that precedent and integrity are not environmental "effects" as such, and
are better dealt with under section 104(1)(c) of the RMA.29
Kennedy's Bush Developments Ltd
30
Further,
was a decision given on the facts of that
particular case.31
4.13
If a plan change request is made in the future for further CMZ3 sites, or some
other zone for species other than salmon, then the decision maker at the time
will be required to consider the "actual and potential effects" (and any
cumulative effects).
The Board simply cannot try to consider now the
potential effects of future applications (including any cumulative effects that
might arise from those applications).
There is simply no concept of a
"potential cumulative effect" under the RMA, which Ms Tree appears to be
urging the Board to take into account now.
The "alternatives" argument
4.14
The perceived "requirement" to consider alternatives was comprehensively
addressed in opening submissions.32 For the reasons given there, there is no
requirement for the Board, when considering the merits of the proposal, to
consider whether other alternatives were available, or "better".
4.15
In any event, NZ King Salmon did thoroughly consider alternative sites for the
new salmon farms, as explained in the NZ King Salmon Report attached to
the original application and in the evidence in chief and rebuttal of Mr Gillard,
Mr Preece, Ms Dawson and Dr Taylor.
27
28
29
30
31
32
Kennedy's Bush Developments Ltd HC Christchurch, CIV-2004-485-1189, 2 September
2004.
Queenstown Lakes District Council v Hawthorn Estate Limited [2006] NZRMA 424 (CA) at
[83].
Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [49], confirmed in Auckland
Regional Council v Living Earth Limited (2008) 14 ELRNZ 305 (CA).
Kennedy's Bush Developments Ltd HC Christchurch CIV-2004-485-1189, 2 September
2004.
As recognised by Your Honour during the presentation of Ms Tree's Opening submissions
- Hearing transcript for 12 September 2012, page 1584 lines 8 - 10.
Opening Submissions for NZ King Salmon, paras 9.35 - 9.43.
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4.16
The question here is what alternatives are suitable and available for salmon
farming, not for marine farming generally.
As Mr Briggs noted in his
33
questioning of Mr Hawes:
Yes, I would agree, but the issue of the development of the marine
farming industry, and we heard evidence relating to some marine
farms in low flow sites that failed, and the industry over a period of
time has come to the conclusion that they required different
conditions to successfully salmon farm.
4.17
The conditions that NZ King Salmon now knows are required to successfully
farm salmon are cool, deep waters in areas of high current.34 This knowledge
has been built up over many years of farming salmon in the Marlborough
Sounds, principally through Mr Gillard, the Operations and Contracts
Manager for NZ King Salmon. As we explained in opening submissions:35
Mr Gillard is likely to be the most experienced salmon farmer in
New Zealand, and as such, it is doubtful that anyone else knows
more about site suitability than he does. This is readily apparent
from his evidence.
4.18
The company now has direct experience of the difficulties of farming salmon
in low flow sites which are generally also sites with warmer temperatures and
shallower depths.36 By contrast, during the 2000s, NZ King Salmon gained
knowledge and experience of how to successfully secure farm structures,
grow salmon and manage benthic effects in high flow sites, such as at its
existing farms in the Tory Channel.37
4.19
Mr Hawes confirmed, in answering a question put to him by Mr Briggs' that
this knowledge and information was not available in the mid to late 1990s
when the decisions regarding the CMZ 1 and CMZ 2 boundaries were
made.38 This major shift in understanding since the 1990s, that CMZ 2 is
generally not suitable for salmon farming, was brought to the Council's
attention by NZ King Salmon in November 2007 in its submission on the RPS
review discussion document.39
4.20
Other submitters, including the Council, have suggested CMZ2 areas
including mid-bay (of various types) would be suitable. Some have continued
33
34
35
36
37
38
39
Hearing transcript 16 October 2012, page 3969 lines 21-25.
Gillard EIC, para 20.
Opening legal submissions, para 5.9.
Gillard EIC, paras 23 - 31.
Gillard EIC, para 32; see also the evidence of Keeley and Teear.
Hearing transcript 16 October 2012, pages 3968 - 3969.
Exhibit Hawes 5.
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11
to promote alternatives such as land-based and offshore (open ocean)
aquaculture. The Board can be satisfied that none are credible alternative
options.
4.21
In both his EIC and EIR, Mr Gillard goes to great lengths to explain why each
of the "options" suggested by submitters does not represent an appropriate,
realistic, or viable approach to farming and producing the species King
salmon. Neither the Council nor any other party has produced an expert in
salmon
farming
to
contradict
Mr
Gillard's
evidence
regarding
the
characteristics required for the successful farming of King salmon.
4.22
In written evidence and through extensive cross examination at the hearing,
Mr Gillard has revealed himself to be a humble and knowledgable man, with a
genuine desire to do things the right way. He has been at the forefront of the
aquaculture industry for most of his life and has been a key contributor to the
successful creation of this important New Zealand primary industry.
We
submit that his evidence should be accepted by the Board in its entirety.
4.23
We briefly address the main alternatives promoted by others below.
Within the Sounds: Discretionary activity locations in CMZ 2
4.24
Various parties have raised general CMZ 2 locations as alternatives.
Mr
Gillard, in both his EIC and EIR, makes it clear that the overwhelming majority
of the existing CMZ 2 waterspace is not physically suitable for salmon
farming. This is demonstrated through the Pre-Site Selection Analysis maps
attached to Mr Gillard's EIC, supported by further information on water
temperature from the MSQP monitoring in Appendix 3 to his EIR.
Also
attached to Mr Gillard's EIC (following the Pre-Site Selection Analysis maps)
is a table comprehensively assessing all CMZ 2 areas as to their suitability for
salmon farming. It can be clearly seen from this table that there are no
locations which are suitable for salmon farming.40
4.25
In addition to his broader examination of the CMZ 2, Mr Gillard has also given
extensive evidence regarding the investigations he has undertaken into the
40
For example, Mr Gillard acknowledged during cross examination that NZ King Salmon had
ruled out all water space to the west of D'Urville Island during the extensive site selection
process due to the water temperature being too warm for farming salmon. It was put to Mr
Gillard that by doing so, NZ King Salmon had effectively discounted 25% of the CMZ2
(Hearing transcript for 4 September 2012, page 791 line 33). The fact is that based on the
wealth of knowledge and experience that Mr Gillard has amassed over the many years
that he has been salmon farming, he knows that the water in that area is not suitable for
salmon farming.
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12
suitability of converting existing mussel farm sites to salmon farming.41
Contrary to any suggestion in the cross examination questions asked of Mr
Gillard by Mr Heal for Sustain our Sounds, there is no evidence that "in
excess of ten" sites in the CMZ2 were available.42
4.26
In his EIR, Mr Gillard summarises the extensive investigations undertaken
since 2007, from which it is apparent that of the more than 500 existing
mussel farm sites in the Sounds, only four possible CMZ 2 sites were
identified as potentially physically suitable for salmon farming.43 Mr Gillard
made it clear in his evidence that the company worked hard in an attempt to
acquire these sites, but the consent holders were either completely unwilling
to sell, or no reasonable agreement could be reached.44
The only sites
where NZ King Salmon has been able to reach agreement are at White Horse
Rock (which is subject to these proceedings) and at Melville Cove site45 (for
which the duration of the term and ES conditions made the development of a
salmon farm unviable). Mr Gillard's views remained unchanged during cross
examination by Mr Heal.
4.27
The evidence is that the few sites in the CMZ 2 that were potentially
physically suitable could not be obtained and they are therefore not valid
alternative options. The Board must proceed on that basis.
Within the Sounds: Mid-bay locations
4.28
It was suggested by Mr Hawes in his evidence that NZ King Salmon could
pursue its salmon farming growth options through new mid-bay farms or
farms 200m from the shore.46
This was further emphasised by Mr Quinn in
opening submissions and his cross examination questions of Mr Gillard and
Ms Dawson. Possible locations that Mr Hawes may have been referring to
were identified by Mr Gillard.47
4.29
For the reasons given above, waters in mid-bay locations do not possess the
requisite characteristics for successful growing and farming of salmon. All of
41
42
43
44
45
46
47
Gillard EIC, paras 37 - 52; Gillard EIR, paras 4.1 - 4.23..
Hearing transcript 4 September 2012, page 808 lines 21-22.
Gillard EIC, paras 37 - 52.
Gillard EIC, paras 37 - 52. As Professor Hazledine accepted, there could be reasons
other than the price offered by NZ King Salmon explaining why those sites could not be
44
acquired. They could be held by competitors, for example. They could also be held by
tangata whenua, who for kaitiaki reasons, would not sell.
As the Board is aware, the consent to this site has returned to the original consent holder
and is now leased for mussel farming.
Hawes EIC, paras 357 - 364.
Gillard EIR, para 5.3.
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13
the sorts of suggestions made by Mr Hawes involving extending existing farm
locations or locating farms immediately off-shore from existing salmon farms
(double-parking) or new sites in the middle of bays (mid-bay farms), are
therefore all physically unsuitable for salmon farming.
4.30
The "double-parking" suggestion is also impractical given that many of the
existing farms are already close to their maximum limits of sustainable
production.48 In cross examination Ms Dawson was highly sceptical about
the prospect of "double parking" any of the existing sites given that they are
close to their ES limits now, and are mostly in low flow areas.49
4.31
Ms Dawson explained that a "mid-bay" site is generally understood as just
that, a site in the middle of a bay, rather than any site beyond 200m.50 Ms
Dawson is well placed to provide evidence on this, given that she has
considerable experience in working with the Council since around 1999.51 In
light of this commonly accepted interpretation, Ms Dawson was clear that she
would not refer to the current proposed sites as "mid bay" sites.52
4.32
We refer the Board to the series of applications for mid-bay farms commonly
referred to as the Kuku Mara cases, six of which were mid-bay sites in
Forsyth, Beatrix and Admiralty Bays and Port Ligar.53
4.33
Mr Quinn put a proposition to Mr Gillard that the case law relating to the Kuku
Mara cases was about Admiralty Bay and the decision to decline was centred
on the effects on Dusky dolphins. Whilst it is true that dolphin habitat loss
was a factor in that particular case, as set out in the table prepared by Ms
Dawson and put to Mr Hawes54, there were numerous other matters in
contention such as navigational safety, landscape and natural character, and
recreational amenity. Clearly, such concerns would likely apply to many other
potential mid-bay sites throughout the Sounds.
4.34
Mr Gillard, who is not a lawyer or a planner, cannot be criticised for being
unable to cite all the reasons why he understood, from an industry
48
49
50
51
52
53
54
Gillard EIR, para 6.1.
Hearing transcript for 11 October 2012, page 3498 lines 32 - 46. Ms Dawson explained
that the term "mid-bay site" is not used in the Plan, although the rules provide that
applications extending beyond 200m from shore are non-complying in the CMZ2.
Hearing transcript for 11 October 2012, page 3498 lines 40 - 45; Dawson EIC, paras 1.5 1.14.
See Exhibit Hawes 4 for a summary of the decisions for these applications.
Exhibit Hawes 4.
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14
perspective, a particular mid-bay case was declined.55
He was aware
generally and had the impression that they were not likely to receive consent,
and had that in mind when considering the alternatives. More importantly,
however, he was aware that the temperature and water flow characteristics of
mid-bay sites were generally unsuitable.
When the Council raised the
alternative of mid-bay sites, he obtained the Marlborough Shellfish Quality
Programme ("MSQP") temperature data from the 27 sites monitored and
confirmed that mid-bay sites are generally unsuitable.56
4.35
Astonishing was the apparent lack of knowledge possessed by Mr Quinn and
Mr Hawes in respect of the Kuku Mara case law. Not only did they not get it
right for the Admiralty Bay case that they put to Mr Gillard and mentioned in
opening submissions, they did not even mention or perhaps know that there
were other Kuku Mara and similar cases that the Council was heavily
involved in during the same period. Mr Hawes' understanding in this regard
is most likely explained (although not excused) by his admission that, despite
holding the position of policy planner for marine farming in the Sounds, he
has read "very few" Environment Court decisions on marine farming.57
Contained land-based systems
4.36
NZ King Salmon's evidence is that these systems, while having future
potential, are cripplingly uneconomic at present.58
Mr Preece was not
challenged on that point. The "evidence" produced by others on this issue
was anecdotal or sourced from the internet, unspecific to Chinook salmon.
NZ King Salmon is aware of at least one such farm in New Zealand, the
Anatoki salmon farm in Golden Bay, but the scale of operation is too small to
address NZ King Salmon's production needs.
4.37
One article presented by Ms McGuiness which she said might be of potential
"interest" to the Board was produced by Muriel Ferguson, a known wild
salmon fishery campaigner and a member of the Atlantic Salmon
Federation.59 We submit that such material does not assist the Board on this
issue, and the evidence of Mr Gillard and Mr Preece should be preferred.
55
56
57
58
59
Preece EIR, paras 8.1 - 8.5.
McGuinness Final Statement of Evidence, Appendix 4.
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15
Open ocean aquaculture
4.38
In the same way, the only substantive evidence before the Board on this
potential "alternative" is from NZ King Salmon, and confirms that the
technology is not yet ready. Mr Gillard's view is that if the technology existed
and it were economically viable, NZ King Salmon would be undertaking
offshore farming as it would avoid many of the issues or concerns that have
arisen with respect to the current Proposal.60
4.39
However, even if the technology were available, the same practical issues of
the suitability of waterspace for salmon farming are likely to arise. The water
temperatures in many areas like the Wairarapa and Taranaki coasts are too
warm, whilst other areas where water temperatures are suitable are too
exposed in the absence of further technological developments.61 Mr Gillard's
view under cross examination was that the technology may be "just around
the corner", but is not yet developed or proven, and that it might be some
time before someone is game enough to test and to prove its feasibility given
the high costs and risks involved.62
Waiting for the Council to complete the review of the MSRMP
4.40
Many submitters, with the Council being the most prominent, have suggested
that the most appropriate course of action for NZ King Salmon to have
adopted would have been to wait for the Council MSRMP review to run its
course.
4.41
The complete answer to this is timing. NZ King Salmon identified to the
Council as long ago as 2007 that it needed additional space to meet its
demand and because of the species requirements for King salmon, that
space would be needed in the CMZ 1 zone. The evidence of Messrs Gillard,
Clark and Preece all touch on demand and supply issues.
4.42
Because the CMZ 1 prohibition removed any right to make an application,
and the aquaculture regime that then applied necessitated an AMA to be
established for any new marine farm, NZ King Salmon was halted in its tracks
and between 2008 and October 2011, it was prevented from applying for new
sites in the CMZ 1 zone. During that period NZ King Salmon worked on
several planning initiatives with the Council to try to move things forward,
60
61
62
Gillard EIR, para 7.4; Hearing transcript for 4 September 2012, page 812 lines 38 - 40.
Hearing transcript 4 September 2012, page 813 lines 45 - 46.
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16
including a private plan change (Plan Change 16) to establish a priority
regime for any future plan change requests.
4.43
Some light in the tunnel finally became visible with the Aquaculture reforms
being advanced.
After a long, three year wait, NZ King Salmon moved
forward and commenced discussions with Council staff in September 2010
over what became the CMZ 3 proposal that could be pursued as another
private plan change, just as Plan Change 16 had done.
4.44
But even then delays occurred because of the time it took the Aquaculture
reforms to be progressed and during that period, NZ King Salmon began
preparing all of the background work on the current Proposal.
4.45
With the final form of the reforms clear and with the concurrent application
power added to the legislation, NZ King Salmon was finally able to lodge its
application in October 2011. This was almost four years since it lodged its
submissions to the Council back in 2007 on the Discussion Document
advising that it needed more space for its species in the CMZ 1 zone. A
further year has elapsed since lodgement of the application and there are
some months to go.
4.46
The "alternative" to even this long process, of using the Review, is not an
alternative at all.
4.47
The Council, through Mr Jerram and Mr Hawes, has made it clear at this
hearing that it does not support any modification to the CMZ1 boundaries. Mr
Jerram confirmed under cross examination that in his view:63
The whole idea of a prohibited zone is that it is prohibited in
perpetuity I would have said.
4.48
Mr Hawes refuses to provide for species specific zoning, even when species
such as salmon have very specific needs.64 This is despite Mr Hawes telling
the Board in his evidence that the Council has no technical expertise in
salmon and has always relied on marine farmers coming to the Council and
telling the Council what their species requirements were. NZ King Salmon
did that in 2007.
4.49
Moreover, NZ King Salmon finds out for the first time through Mr Hawes'
statement of evidence that the Council has already decided not to amend the
63
64
Hearing transcript 12 September 2012, page 1562 lines 15-16.
Hawes EIC para 127.
2464333 (FINAL)
17
spatial extent of the CMZ 1 zone, nor remove the prohibition in the zone, in
the new Review. This decision has apparently been made:
(a)
despite the Council never having consulted NZ King Salmon, nor the
Marine Focus Group, on any draft rules affecting marine farming, or
any changes to any of the planning maps that might affect marine
farming;
(b)
despite never providing any feedback on the detailed responses NZ
King Salmon provided to the Council in November 2011 on the first
draft of the Issues, Objectives and Policies of the proposed marine
farming chapter of the Review;
(c)
despite not holding any meetings on its marine farming provisions
since November 2011; and
(d)
despite the marine farming industry including NZ King Salmon being
one of Marlborough's most significant industries.
To give the impression to the Board, as Mr Hawes sought to do in his
evidence, that the Council was preparing its new Review in a collaborative
manner was completely misleading, insofar as marine farming is concerned.
4.50
In addition, contrary to the Council's representations earlier in this hearing,65 it
now turns out that the draft Review is not ready for notification. We are now
told by Mr Hawes that is unlikely to occur before at least July 2013. Mr
Hawes agreed that this meant that hearings would not occur until sometime
during 2014. If that were the case then we suggest it would be late 2014 or
more likely mid 2015 before all decisions are released and appeals filed, and
few councils even achieve that with two years from notification.
4.51
Assuming appeals were lodged in late 2014 to mid 2015 and proceeded to
hearings, then consistent with Judge Newhook's recent papers the
Environment Court may be able to determine those appeals within a two year
period, which would be (say) late 2016 to mid 2017.
4.52
For NZ King Salmon, faced with implacable opposition as is now apparent
from Councillor Jerram, Mr Hawes and perhaps others, to any salmon
farming expansion in the CMZ 1 zone, which effectively means no expansion
of salmon farming in the Marlborough Sounds at all, that means waiting until it
65
Hearing transcript of 4 September 2012, page 741, lines 12 - 14.
2464333 (FINAL)
18
can get before the Environment Court. For an almost identical hearing as this
hearing has been, but four or five years from now. That is their alternative.
4.53
But that would not be the end of it. That could only be to get sites rezoned
from CMZ 1 so the prohibition no longer applies. Only at that point would it
be possible to make a Discretionary Activity application, or some other form
of consent application, to actually construct and operate salmon farms in the
rezoned areas. That could reasonably be expected to take 18 months to two
years more - say mid 2018 at best to mid 2019 at worst. That is assuming
some other party does not get in first and lodge an application for those newly
rezoned areas, as NZ King Salmon would have no priority.
4.54
So by Councillor Jerram and Mr Hawes telling the Board that this is the
alternative NZ King Salmon should be following, they are just sentencing one
of the region's major businesses to 6 or 7 years more delay and more
litigation. How could that be an alternative? How could that be reasonable?
How could that be any way to treat a valued Marlborough business?
The practical answer to the various "alternatives"
4.55
There is also a more practical answer to all of the allegations that NZ King
Salmon would have been better served by pursuing the various alternatives
discussed above.
Simply put, if any of the suggested alternatives were
feasible in reality, then NZ King Salmon would be pursuing them, rather than
undertaking this process. That should be self evident.
The "consultation" argument
4.56
Despite many submitters acknowledging that consultation is not mandatory
for a private plan change or resource consent, some submitters, including the
Council, have continued to complain about what they perceive are
shortcomings in the consultation undertaken.
Consultation with tangata
whenua is addressed specifically later in these submissions.
4.57
The legal position in relation to consultation is clear.66 It is sufficient for this
reply, in respect of the wider matters of consultation, to observe:
(a)
NZ King Salmon clearly engaged with the Council and Department
of Conservation ("DoC") at officer level prior to lodgement, including
with Council officers almost a year before lodgement.
66
Opening submissions for NZ King Salmon, paras 9.9 - 9.14.
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19
(b)
NZ King Salmon also engaged with the community on a number of
levels prior to lodgement.67 This was the first phase of NZ King
Salmon's community engagement. At that stage it could not reveal
the site locations. Mr Cardwell explained that there was nothing
new to this for marine farm applications and the reasons for it.68
While NZ King Salmon could not reveal the sites, it could still
understand concerns about expansion of salmon farming generally,
impart knowledge about the reason for the Proposal, and seek to
identify the possible effects.
NZ King Salmon, responsibly, had
experts assist it through aspects of this process, such as Mr Baines
(who
conducted
quite
separate
interviews,
an
accepted
methodology for social science) and Mr Bamford, who also engaged
with individuals and representative groups. All of this work helped
both
inform final site selection
and
the
identification and
consideration of effects as part of the application.
(c)
Immediately following lodgement, there was wide publicity (including
the entire application being loaded onto the EPA website, and
through a front-page article and map of the site in the local
newspaper) and NZ King Salmon implemented a "go live"
consultation programme.69 That included sending letters and emails
to a database list of potentially affected or interested parties (98
letters were sent).70 These were followed up by Mr Cardwell and Mr
Gillard, while Mr Baines and Mr Bamford both continued with their
engagement and consultation, and extended it to people at the site
locations.71
Included within that consultation was a letterdrop
attaching a Marlborough Sounds map identifying each proposed site
to landowners within a 2 km radius or 4 km line of sight of each
proposed site.72 Substantial consultation occurred throughout the 5month period before formal notification at the end of March 2012.
This was an extensive period and if any new issues had arisen with
any site, there was ample time for NZ King Salmon to have
withdrawn or amended the application for one of the sites.
67
68
69
70
71
72
Cardwell EIC paras 11-16; Gillard EIC paras 111 - 112.
Baines EIC para 38; Bamford EIC para 45.
Cardwell EIC, para 31.
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20
(d)
The criticisms of NZ King Salmon and its approach to consultation
are over-emphasised. There was no obligation to consult, but NZ
King Salmon did consult in a two stage process.
All interested
parties, as is evident from the participation, have also been able to
put their views forward to the Board, either individually or through a
group.
4.58
In terms of other major participants in the process, like the SOS Group,
Guardians of the Sounds, Tui Nature Reserve and Trust, and PWS, no
amount of consultation seems likely to have changed their position or likely
involvement in the proceedings.
The "privatisation" argument
4.59
Another common theme throughout the hearing has been the concern raised
by submitters that NZ King Salmon is seeking to privatise public space for its
own commercial gain without payment of any occupation charge.
4.60
This issue was covered at length in opening submissions, including NZ King
Salmon's willingness to accept coastal occupation charges should they be
introduced for all occupants of the coastal marine area in the future.73 We do
not propose to traverse that ground again here. However, one issue raised
by several submitters does need to be addressed. As an example of the
issue, in cross examination of Mr Clark, Mr Caddie suggested an appropriate
analogy could be the royalty programme that applies in the petroleum
sector:74
The point I was trying to make, Mr Clark, is that here we have a
Crown asset, and someone has given it exclusive right to exploit
that asset, just like King Salmon is seeking the exclusive right to
exploit what they hope is high quality water space in a public area,
and in return, they pay a royalty. And I'm just trying to assist the
debate forward as to how that might be calculated, and if it was
calculated on the basis of the profit you made from - as in the case
of petroleum - the profit you made from the exploitation of that
water space, then that might be a suitable model to consider.
4.61
As stated, NZ King Salmon does not oppose the concept of coastal
occupation charges applying to all users and has no objection to paying its
fair share. However, a royalty programme similar to that applying to minerals
is not an appropriate approach. Petroleum companies pay a royalty for the
exploitation and removal of the actual mineral resource owned by the Crown.
NZ King Salmon merely seeks to occupy the water space to introduce and
73
74
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21
grow its own resource - salmon.
On that basis, the more appropriate
charging mechanism is an occupation charge or rental for the temporary use
of that space. Once the consents end, NZ King Salmon will be gone, and the
seabed will recover, naturally, from any limited effects it has had.
Public rights of access, navigation and fishing
4.62
Submitters have also raised various "rights" to use the public water space for
their own uses with the Board. There are three distinct issues arising:
4.63
(a)
the "right" to access;
(b)
the "right" to undertake an activity; and
(c)
the "right" to occupy.
The right of access is a common law right codified within the Takutai Moana
Act. There is also a presumption of public access in the common marine and
coastal area ("CMCA") codified in the RMA. However, section 12(2) states
that the right to access is not unrestricted.
4.64
The RMA includes the ability to authorise an applicant to occupy75 an area of
the CMCA, where that occupation is reasonably necessary to undertake a
consented activity.76
4.65
NZ King Salmon seeks only exclusive occupation in respect of its marine
farming structures. This is what is proposed to be "reasonably necessary" to
undertake the activity of salmon farming at each site, and is consistent with
case law:77
Under s.12, therefore, it is the physical occupation in the CMA of
the structures for the activity of marine farming which is required to
be reasonably necessary. It is self evident that the occupation by
marine structures of the CMA is reasonably necessary for carrying
on the activity of aquaculture.
4.66
In the space beyond what is required for the structures, no exclusive
occupation of the CMCA is required. Accordingly, the public's right to access
75
76
77
A right to occupy, includes characteristics of a property right (but is not itself a property
right) being: the right to exclude, right to possession, right to non-derogation of use, and
right to transfer: Water Rights and Sustainability, Public Property and Private Use Rights:
The Coastal Marine Area in NZ, Robert Makgill.
RMA s 12(2); Re Auckland Regional Council EnvC Auckland A109/2000, 14 September
2000.
Golden Bay Marine Farmers v Tasman District Council EnvC Wellington W42/2001, 27
April 2001 at [284]. Marlborough District Council v Valuer General [2008] 1 NZRL 690
(HC).
2464333 (FINAL)
22
is protected in that space, as provided for by the Takutai Moana Act and
RMA.
4.67
The tension between the right to access and right to occupy is not new in
respect of aquaculture proposals, and the Court's approach is clear.78 The
ability of resource consents to authorise exclusive occupation for marine
farming has also been confirmed by the High Court.79
4.68
While the Board can acknowledge this tension, the RMA has specifically
provided the ability for a decision maker to authorise a right to occupy a
portion of the CMCA. If this is lawfully obtained under the RMA, no objection
can be made. With respect to submitters who have, with some passion,
presented that a right to access the CMCA should be protected in all
circumstances, the RMA provides otherwise.
A jurisdictional issue?
4.69
Ms Grey, Counsel for Pelorus Boating Club and others, contends that the
Takutai Moana Act overrides the RMA and prevents the Board from
approving a private plan change request and concurrent consents enabling
exclusive occupation for a marine farm where the operative plan prohibits
marine farms and instead enables public access and navigation.80
4.70
We cannot see any merit in that construction.
81
troubled by the approach.
The Board also seemed
However, it has been supported by Mr Bennion
82
for the Tahuaroa-Watsons,
Mr Smith for Ngāti Kuia83 and Mr Beech for
Guardians of the Sounds.84
4.71
In our submission, the answer is straightforward:
78
For a discussion of the challenges associated with including objectives and policies in the
New Zealand Coastal Policy Statement that support aquaculture see: P Beverley and A
Cameron "Aquaculture and the New Zealand Coastal Policy Statement", Buddle Findlay,
March 2007.
Both rights (of access and to occupy) can be seen as a separate "bundle of rights": Water
Rights and Sustainability, Public Property and Private Use Rights: The Coastal Marine
Area in NZ, Robert Makgill.
Minister of Conservation v Tasman District Council, HC Nelson CIV-2003-485-1072, 9
December 2003 at [32]: The quote above is preceded by the further explanation "However
a validly granted resource consent based on a lawful plan will often have this very effect.
This is the statutory regime. Once it is established that the whole block scheme is within
the Resource Management Act then the consequences of limiting public access to some
areas is inevitable".
Opening submissions for PBC, para 66.
Hearing transcript for 18 September 2012, from page 1915.
Hearing transcript for 3 October 2012, page 3016 line 42 to page 3017 line 4.
79
80
81
82
83
84
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23
(a)
In terms of the approach to interpretation, to the extent that there
may be apparent inconsistencies between legislation, the Courts will
try to interpret the provisions in a way that allows them to be read
together.85
(b)
The principle that general provisions do not derogate from specific
ones is also relevant:86
[W]here there are general words in a later Act capable of
reasonable and sensible application without extending
them to subjects specially dealt with by earlier
legislation, you are not to hold that earlier and special
legislation indirectly repealed, altered, or derogated from
merely by force of such general words without any
indication of a particular intention to do so.
(c)
Since it was enacted in 1991, the RMA has allowed private plan
changes to be made to change the status of activities, including from
prohibited to some other status.
There is no legal bar preventing
anyone from seeking to change a plan at any time, except in certain
cases where the request is frivolous, or has been considered in the
last 2 years.87
(d)
The Takutai Moana Act was enacted in 2011.88 Section 11 accords
the CMCA a special status - the CMCA cannot be owned by the
Crown or any other person.89
(e)
However, the special status accorded by the Takutai Moana Act to
the CMCA is specifically recorded as not affecting (as relevant):90
85
86
87
88
89
90
(c)
any power to impose, by or under an
enactment, a prohibition, limitation, or
restriction in respect of a part of the common
marine and coastal area; or
(d)
any power or duty, by or under an enactment,
to grant resource consents or permits
(including the power to impose charges)
within any part of the common marine and
coastal area; or
(e)
any power, by or under an enactment, to
accord a status of any kind to a part of the
common marine and coastal area, or to set
aside a part of the common marine and
coastal area for a specific purpose;
Statute Law in New Zealand, Burrows and Carter, (fourth edition), page 449.
Seward v Vera Cruz (Owners) (1884) 10 App Cas 59 at 68 (HL) per Lord Selborne.
Opening submissions for NZ King Salmon, para 9.5, discusses this in more detail.
The same year that the Aquaculture Reforms were enacted.
This differs to the position under the previous Foreshore and Seabed Act 2004.
Takutai Moana Act, s 11(5).
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(f)
These provisions explicitly preserve the ability of a regional council
(or the Board) to impose, under the provisions of the RMA, a
restriction (including of public access) by way of a plan change or
resource consent.
The fact that these proceedings concern a
private plan change rather than a council-initiated one does not
change that.
(g)
In addition, the "rights" of public access and navigation which Ms
Grey says must be preserved are "common law" rights codified in
sections 26 and 27 of the Takutai Moana Act. However, in those
very provisions themselves, they are not expressed as absolute –
they are each subject to any authorised restrictions and prohibitions
that are imposed by or under an enactment, which must include the
RMA.
(h)
Further, while the Aquaculture provisions in the RMA were updated
on 1 October 2011 – after the Takutai Moana Act came into law,
both were being considered as Bills by Parliament at the same
time.91
The result was the provision for plan changes and
concurrent consents specifically where aquaculture is presently
prohibited, which would be redundant if Ms Grey's approach were to
be adopted – as every marine farm involves exclusive occupation to
some extent.
The "compliance" argument
4.72
A further theme, evident in the submissions of some opponents to the
proposal centres around their opinions about how NZ King Salmon is
operating its existing consents. Most of the focus in that regard has been on
the Waihinau and Forsyth sites which are operated together, with one farm
being moved between them.
4.73
There seem to be three broad criticisms:
(a)
that the farm should not be rotated between the sites, as that is
somehow unsustainable;
(b)
that the relevant consents allow (or imply that) NZ King Salmon can
operate to a benthic ES standard of ES6.0, but that NZ King Salmon
91
The Departmental Report on the Aquaculture Reforms stated at page 9: "We note that if
the Marine and Coastal Area (Takutai Moana) Bill is passed ahead of this Bill there will be
a need to consider whether there are any drafting implications for this Bill."
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should be seeking to achieve a "better" ES standard of ES5.0 (or
less) on those sites, irrespective of what it is entitled to do, as that
would be "more sustainable"; and
(c)
that NZ King Salmon may have, at times, exceeded the ES6.0
standard at some of its monitoring points.
4.74
As a first point, this Board process is not the forum to debate the
appropriateness or otherwise of NZ King Salmon's existing consented
operations. Even any compliance issues are of limited relevance. In that
regard, the memorandum of counsel of the Council and NZ King Salmon
dated 31 August 2012 records the position in respect of non-compliances,
together with the evidence of Mr Preece.92
4.75
As NZ King Salmon has explained, it is in urgent need of additional space
and has been for several years, and as a consequence has been managing
its existing sites to achieve as much production as it can within its consent
requirements.93 It is highly likely, if the additional sites are granted, that NZ
King Salmon will be able to better manage all of its sites well within
consented limits. Further, as the memorandum of 31 August 2012 records,
NZ King Salmon has agreed to seek a variation of its existing consents to
bring them into line with current practices. That will have the benefit of the
Board's decision in these proceedings.
5.
THE LEGAL CONTEXT
5.1
The Board has two key legal tests or frameworks to apply:
(a)
The tests applying to plan changes to a regional plan, which must be
applied to the Board's consideration of Plan Change 24, which
applies to eight of the proposed sites.
(b)
The tests applying to the resource consents, to be applied to the
eight concurrent consents (if the Plan Change is approved for those
sites) and the White Horse Rock consent application.
5.2
The Plan Change must be determined before the concurrent consents, but
there is no statutory priority to be given to the White Horse Rock application.
92
93
Preece EIR, section 6.
This is reflected in the answers provided by Mr Preece under cross examination by Mr
Heal - Hearing transcript for 5 September 2012, from page 915.
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It could be determined before or after the Plan Change and concurrent
consents.
5.3
If no issues as to cumulative effects arise in respect of the White Horse Rock
site and the other sites in the Waitata Reach, then it makes little difference as
to the order in which the White Horse Rock application is determined.
However, if there is a cumulative effects issue, NZ King Salmon considers
that White Horse Rock should be determined first, given that it relates to an
existing CMZ2 zone that is not being changed by the Plan Change.
5.4
The legal framework is addressed in opening submissions,94 and will be
addressed in detail later in these submissions.95
5.5
At this stage we will expand on the context of the proposal, which has been a
matter of some debate. After all, the Privy Council has observed, "in law,
context is everything."96
Context of the Aquaculture reforms
5.6
As we set out in our opening submissions, the Aquaculture reforms enacted
in 2011 were aimed at "kick-starting" the aquaculture industry to reach its
$1 billion potential by 2025.97 In particular, procedural efficiency was sought
including the insertion of section 165ZN into the RMA to enable an applicant
to apply concurrently for a private plan change and associated resource
consents. As we are all aware, NZ King Salmon adopted that process, which
has led us to the current hearing.
5.7
This and several other changes streamlining the application process for
marine farms were aimed at the regions in New Zealand where Parliament
expects and has encouraged, through the legislation, the aquaculture industry
to boom. This focus on aquaculture comes at the same time as land-based
farming practices are coming under increasing pressure.
The Marlborough Region as a target for the reforms
5.8
Cabinet papers discussing the direction that the Aquaculture reforms should
take, commented on the scale of change required to each region's regional
coastal plan "to achieve the reform objectives" (i.e "kick-starting" the
industry). Marlborough was rated as in need of "moderate" change and, of
94
95
96
97
Opening submissions for NZ King Salmon, section 3.
Refer to sections 26 - 34 below.
McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at 589.
CAB MIN (10) 9/2, para 1.2.
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direct relevance, the current state of aquaculture provisions in the Plan were
described as:98
Generally ready, but spatial prohibitions on new aquaculture are
limiting opportunities for growth.
[emphasis added]
5.9
NZ King Salmon in this Board of Inquiry process seeks to enable the
opportunity for it to expand salmon farming within the current Plan. It is clear
from the quote above that this change was considered by Cabinet to be vital
to enable the Plan to achieve Parliament's intention.
5.10
As the Aquaculture reforms progressed, Marlborough was often brought to
Parliament's attention. During the first reading of the Aquaculture Legislation
Amendment Bill (No 3) ("Aquaculture Bill"), several MPs mentioned
Marlborough as one of the leading aquaculture regions in New Zealand.
Colin King stated:99
I am fully in support of this legislation. As the MP for Kaikōura,
which encompasses the Marlborough Sounds and probably some
1,700 kilometres of coastline, I realise not only the sensitivities
relating to this legislation but also the enormous opportunities to
harvest economic gain. I commend this bill to the House.
5.11
In preparing its report in support of the reforms, members of the Primary
Production Committee visited the Marlborough Sounds to experience marine
farming at its best, first hand.100 Further development of the aquaculture
industry in this region must have been in the forefront of their minds.
5.12
The second reading of the Aquaculture Bill further confirmed Parliament's
intention to expand the marine farming industry in the Marlborough Region:101
We see aquaculture within the Marlborough Sounds, especially
concerning finfish, as providing in the short term another 300 jobs.
This legislation will certainly put aquaculture on to a very sound
footing, and we look forward to that.
5.13
While the aquaculture reforms were of course not aimed solely at the
Marlborough Sounds, it is clear that this region was considered as one of the
principal areas for expansion of the industry in New Zealand.
98
99
100
101
CAB PAPER, Office of the Minister of Fisheries and Aquaculture, Economic and
Infrastructure Committee, "Aquaculture Reform Paper 2: Further Proposals and report
back", para 59.
Colin King also made specific reference to the potential for salmon farming in the
Marlborough Sounds to increase financial returns in the region, and contribute to the
$1 billion target.
Burns, Brendon, Aquaculture Legislation Amendment Bill (No 3), First Reading.
King, Colin, Aquaculture Legislation Amendment Bill (No 3), Second Reading.
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Other Regions
5.14
In addition to Marlborough, other regions with significant potential for growth
of the aquaculture industry where aquaculture is currently prohibited in many
areas are Northland, Auckland, Waikato and Tasman.
The Aquaculture
reforms addressed also large deficiencies within the Waikato and Tasman
regional coastal plans.102
Cost implications
5.15
Cabinet also discussed the cost implications of undertaking the necessary
plan change to enable aquaculture in areas where it was previously
prohibited, even with the reforms:103
There is a strong case for these prohibitions on space and species
to be revisited because it is very likely that there are opportunities
for aquaculture growth within acceptable environmental limits in
both regions.
This could happen through the plan change
process…The plan change process is, however, expensive (an
estimated $500,000 to $1 million), lengthy (a minimum of two years
for a substantial plan change and far longer is appealed), and the
outcome is uncertain.
5.16
NZ King Salmon has spent close to ten times the amount Cabinet considered
"expensive" on its current plan change and resource consent applications.
The latest estimate for the EPA's costs stands at $2.5 million alone.
Reference to that figure is not a criticism of the Board or the process, but the
substantial costs need to be acknowledged.
Reform enabling concurrent application process
5.17
The need to undertake aquaculture in aquaculture management areas, and
the lack of progress in getting these actually included in plans, was one
significant handbrake on aquaculture development. Another, particularly in
the Marlborough region as discussed above, was the extent to which regional
councils had opted to class aquaculture as a prohibited activity.
5.18
NZ King Salmon made the only submission on the Aquaculture Bill that
addressed concurrent lodgement where activities are prohibited in an existing
102
103
The Waikato and Tasman areas were considered by Cabinet to require "significant"
change to achieve the Aquaculture reforms objectives, with the deficiency described being
"significant spatial and species prohibitions": CAB PAPER, Office of the Minister of
Fisheries and Aquaculture, Economic and Infrastructure Committee, "Aquaculture Reform
Paper 2: Further Proposals and report back", para 59.
CAB PAPER, Office of the Minister of Fisheries and Aquaculture, Economic and
Infrastructure Committee, "Aquaculture Reform Paper 2: Further Proposals and report
back", para 62.
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plan.104 It did so with reference to its concern with the current Plan, and
procedural issues the industry faces in seeking to change it. Without this
reform applicants would be forced to go through a two stage process (first to
amend the plan and then to apply for consent, which is a lengthy and
expensive process), and where the default "first in, first served" rule applied,
would have no right or priority in applying for consent in the new zone.105
5.19
The Departmental Report specifically referred to the concurrent application
process as "another mechanism to jump-start aquaculture under the new
law".106
As reflected in the Departmental Report,107 and the Primary
Production Committee Explanatory Note,108 Parliament perceived this
mechanism to be of value as a procedural tool to enable efficiency (of time
and cost), and to manage competing demand.
Applications in the CMZ1
5.20
There is therefore no ambiguity in respect of the Government's recognition
that Marlborough was a deliberate focus of the reforms and that Parliament
was specifically facilitating applicants to seek to amend current prohibited
activity status in a zone so as to enable aquaculture. This is reinforced in
Marlborough by the fact that it has gazetted as Aquaculture Settlement Areas,
three sites in the Marlborough Sounds in the CMZ1, knowing that there was a
process available to remove the prohibited activity status.
PART C: EVALUATION OF KEY EFFECTS
6.
OVERVIEW OF APPROACH TO THIS PART
6.1
As with our openings, we address some overarching issues relating to the
evidence in this section, before addressing the effects by topic. We largely
follow the headings used in our opening submissions, but focus on the
matters that have emerged through submissions and/or cross examination (or
which have not been challenged in cross examination).
6.2
Where appropriate, under each effect, we also briefly comment on and
discuss any standards and assessment criteria addressing the effect in the
Plan Change and the conditions which are relevant to avoid, remedy and
104
105
106
107
108
Departmental Report on the Aquaculture Legislation Amendment Bill (No 3), page 64.
Aquaculture Legislation Amendment Bill (No 3) Primary Production Committee
Explanatory Note, page 5.
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mitigate the particular effect. However, we also address conditions more
comprehensively in a separate section.109
7.
OVERARCHING EVIDENTIAL ISSUES
7.1
The overarching evidential issues are:
(a)
expert vs lay evidence;
(b)
"commissioned science"; and
(c)
relevance of numbers of submissions (and a petition).
Expert vs lay evidence
7.2
A number of submitters have expressed concern that in our opening
submissions we had said that the Board should ignore the evidence of lay
witnesses or that the Board should give greater weight to expert evidence
over lay evidence. With respect, this is an oversimplification of the distinction
to be made between expert and lay evidence.
7.3
As the Board has observed more than once in these proceedings,110 while
factual evidence from any witnesses will be considered, the primary
difference between expert and lay evidence is that an appropriately qualified
or experienced expert is entitled to give his or her opinion on matters within
their expertise to the Board. The Board will need to consider those opinions
against the opinions of other experts in the same discipline.
7.4
While the Board in the RMA context is not precluded from taking account of
opinion evidence from lay people, the Courts have consistently held that
opinions of lay people or non-experts cannot be given the same weight as the
opinions of an expert.111
This is particularly the case in regard to areas
requiring specialist knowledge. The Environment Court has expressed the
position in the following way:112
In his evidence, Mr McDonald expressed concerns about damage
to marine flora and fauna, fish and re-colonisation. Mr McDonald
endeavoured to refer to a number of studies or reports done by
109
110
111
112
Refer to section 34 below.
Refer Scurr v Queenstown Lakes District Council EnvC Christchurch C60/2005, 29 April
2005 at [49]; McDonald v Auckland Regional Council EnvC Auckland A204/2002, 18
October 2002 at [100]; Scholes v Canterbury Regional Council [2010] NZEnvC 29 at [22].
McDonald v Auckland Regional Council EnvC Auckland A204/2002, 18 October 2002 at
[100].
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others. As we explained to Mr McDonald at the hearing, we are
unable to give that evidence any weight because he has no expert
qualifications to enable him to comment on the matters raised in
those studies.
7.5
The Environment Court has also stated:113
While section 276(2) of the Act provides that the Environment Court
is not bound by the rules of evidence that apply to judicial
proceedings that does not mean anything goes: EM & TJ
Warburton v South Wairarapa District Council. Non-expert opinion
on matters requiring specialist knowledge or evaluation is generally
inadmissible or if admitted then given no weight. ...
Implications for the Board's assessment of the Proposal
7.6
To use an example in terms of the current proceedings, the Board has expert
evidence before it as to the likelihood that the Proposal will cause harmful
algal blooms ("HABs"). That expert evidence must carry greater weight than
the opinions of lay people or non-experts on the issue.
7.7
Lay people can of course assist the Board in giving evidence as to the facts
that are within their knowledge. As another example, they can identify the
location of recreational and customary fishing areas, which the applicant and
its experts may not otherwise be aware of. However:
(a)
when it comes to evidence about the likely effects of the Proposal on
those recreational and customary fishing areas (putting to one side
metaphysical effects), then expert evaluation and opinion must, in
our submission, generally carry more weight; and
(b)
in assessing all competing evidence, whether factual or opinion
based, the Board will of course need to carefully consider the kinds
of matters we identified in our opening submissions when deciding
which evidence it wishes to prefer or give weight to.114
The importance of public participation
7.8
NZ King Salmon does not wish to be taken as dismissing the importance and
value of public participation in the process. We acknowledge that this Board
of Inquiry hearing represents a first-instance decision on the Proposal, rather
than an appeal on confined matters. As such, it is particularly appropriate for
emphasis to be placed on public participation and engagement in the consent
and plan change processes.
113
114
Scholes v Canterbury Regional Council [2010] NZEnvC 29 at [22].
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7.9
In particular, lay people can give evidence to the Board about their particular
concerns or interests, which the Board is entitled to take into account. For
example, some people have emphasised their wish to see the Sounds
retained for recreational and scenic purposes, or ecotourism. Others have
emphasised their wish to see economic growth and the creation of jobs in the
region. These are all important (and sometimes conflicting) issues that the
Board will need to carefully consider.
"Commissioned science"
7.10
Various parties have questioned the integrity of Cawthron scientists who have
provided much of the scientific assessment and evidence informing the
Proposal, going as far to suggest that the work is essentially "commissioned
science".115 It was also alleged that Cawthron had a financial interest in the
outcome of the hearing, implying that it stood to benefit from performing
future monitoring.116
7.11
Allegations such as these are inappropriate, inaccurate and unhelpful:
(a)
First, each of the experts who gave evidence for NZ King Salmon
confirmed that they had read the Code of Conduct for Expert
Witnesses, that they had complied with it in preparing their
evidence, and that they agreed to comply with it in giving evidence
to the Board.
(b)
Second, when the suggestion of a financial interest was put to Mr
Keeley he responded:117
It's a "not for profit" organisation, and in 11 years I've been
there we've never been short of work and it's not something
I'm concerned about.
(c)
It is also clear that the contract for NZ King Salmon's future
monitoring work will be awarded through a tendering process, in
which Cawthron will no doubt participate. However the award of the
future monitoring work to Cawthron is not a fait accompli as has
been suggested. Indeed, the companies employing witnesses for
submitters or the Board like NIWA, DHI and COWI are all potential
contenders for the monitoring work.118
115
116
117
118
Hearing transcript for 30 August 2012, page 464 from line 28.
Refer also to paragraph 10.10(a) below.
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"Absence of evidence is not evidence of absence"
7.12
Mr Heal, for SoS, raised arguments in cross examination and submissions
centred around an alleged lack of knowledge about the marine environment.
He asserted that the Proposal should not proceed simply because there was
"an absence of evidence" such as evidence linking salmon farms in
comparable coastal waters to HABs.119 The thrust of the argument is that
"absence of evidence is not evidence of absence".120 Others have said that
"you don't know what you don't know" and therefore the Board must proceed
with caution.
7.13
We addressed the precautionary approach in opening submissions121 and do
not intend to repeat that, save to recall that scientific uncertainty and caution
are not in themselves reasons to decline a proposal, that those who assert
must prove, and that opponents cannot simply invoke the precautionary
approach in default of presenting a case.122
7.14
As an example, Mr MacKenzie, who undertook a detailed review of the
scientific literature, has 30 plus years' experience in the field, has actually
studied most of the HABs that have occurred in the Sounds, and has had
access to the substantial MSQP data sets, concludes in his evidence:123
A thorough search of the international scientific literature did not
provide evidence of a strong relationship between HABs and sea
cage fish farming, except in the most confined, poorly flushed
situations where the nutrient loads from the farms far exceed the
assimilative capacity of the water body.
7.15
While tested under cross examination, and acknowledging some evidence of
finfish farming causing HABs in "extreme" circumstances (such as highly
enriched, very shallow and very enclosed embayments),124 Mr MacKenzie
could see no evidence that salmon farming in the Sounds environment of the
scale proposed would cause HABs.125 Essentially, he was saying that there
was evidence of an absence of effect. However, submitters have claimed
instead that there is just an absence of evidence on the issue.
7.16
The difference between "absence of evidence" and "evidence of absence"
needs to be understood and appropriately applied. The former (absence of
119
120
121
122
123
124
125
MacKenzie EIC, para 51.
Hearing transcript for 29 August 2012, pages 306 lines 30 - 39.
Hearing transcript for 29 August 2012, pages 306 lines 30 - 45, and page 307 lines 1 - 45.
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evidence) suggests that no evidence has been provided to support an
assertion, whereas the latter (evidence of absence) suggests that evidence
has been provided, but the evidence suggests no connection or relationship.
The issues are not new to the Environment Court. Trans Power New Zealand
Ltd v Rodney District Council provides a useful commentary around the
issue:126
Yet although we can accept that scientific knowledge about the
potential health effects of the fields may be incomplete, it is our
duty to make a decision now, on the present state of knowledge. It
would be an abdication of that duty if we were to allow opponents
of proposals to prevent them preceding on the basis that science
might in the future discover effects that had not yet been
established. That is not to reject the precautionary approach, but
there needs to be some plausible basis, not mere suspicion or
innuendo, for adopting that approach.
7.17
The SoS Group have proposed what they would call a "scientific hypothesis"
in support of their opposition,127 that increased nutrient discharged from the
salmon farms presents an increased risk of the frequency or duration of
HABs, because HABs can only occur and continue while there is sufficient
nutrient in the environment for them; and accordingly, because of that
increased risk, the applications must be declined.128 They further emphasise
that HABs can be of very high impact. However, they have provided no
evidence that salmon farms cause HABs.
7.18
It is NZ King Salmon's position that the absence of evidence that finfish
farming contributes to HABs (in waters that can be compared to the
Sounds129) provides a sound basis for the Board to find that the proposed
salmon farms will not be likely to cause HABs in the Sounds. None of the
opponents have been able to produce any evidence of finfish farming
operations in comparable waters causing HABs in those waters. Presumably,
they would have produced that evidence if they had it. Mr MacKenzie, who
certainly did look for that evidence, could not find any.
7.19
In our submission therefore, the Board can proceed to evaluate the evidence
(including evidence of absence) put before it, and can safely form an opinion
on that evidence that the risk of HABs arising from the proposal is so low that
126
127
128
129
Trans Power New Zealand Ltd v Rodney District Council PT Auckland A85/1994, 14
November 1994, at 21.
Hearing transcript for 29 August 2012, page 257 line 9 and page 313 line 29; Hearing
transcript for 7 September 2012, page 1154 line 5.
This is considered simplistic, given the myriad of factors that must come together to cause
a HAB. They cannot be well predicted, and more than nutrients are required. Further,
even a serious scientific hypothesis, may not be adequate to establish a potential effect in
some cases - McIntyre v Christchurch City Council [1996] NZRMA 289 (PT) at 306 - 307.
Comparisons with enclosed lakes or very enclosed bays is not helpful.
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it presents no barrier to approval. Prudently, however, substantial conditions
requiring monitoring and evaluation into the future (with appropriate
management actions required), have been proposed for confirmation by the
Board. With those in place, the Board can have even greater confidence that
the Proposal will not cause HABs in the Sounds.
7.20
Similar conclusions can be reached in the other areas where "absence of
evidence" issues have been raised, for example, in respect of effects on
water clarity and wild fish populations.
Submission numbers and petition
Not a numbers game
7.21
We addressed the number of submissions (around 800 against, 400 in favour
of the proposal) in our opening submissions, and the fact that the RMA is not
a numbers game.130
7.22
Dr Phillips (appearing for the Council) agreed,131 and further stated:132
… it's just not appropriate in terms of social science method to
make inferences from arbitrary numbers to what the community
thinks.
7.23
In fact, now with modern email communication and the streamlining of
electronic lodgement of submissions, high numbers of submissions on large
projects are not unusual (although the high number of submissions in support
of this Proposal is relatively unique).
A petition - of little relevance or assistance to the Board
7.24
Submitters have variously emphasised how many people they may
represent,133 with one submitter "presenting" an online petition to the Board,
apparently "signed" by 7,555 people.134
7.25
The Courts have generally given little weight to petitions.135
In our
submission, a similar approach should be taken in these proceedings,
particularly as:
130
131
132
133
134
135
Opening submissions for NZ King Salmon, section 10.8 - 10.12.
Hearing transcript for 21 September 2012, page 2349 line 22.
For example, East Bay Conservation Society indicated they had a hundred members, refer
Hearing transcript for 5 October 2012, page 3158.
Documents provided to the Board on 27 September 2012, Wildlife Protection Services and
Leona Plaisier, page 6. We understand the petition now records 11,070 names.
Lal's Transport Limited v Auckland Council (2011) 16 ELRNZ 637 at [63]; New Plymouth
District Council v Pritchard EnvC Auckland A133/2000, 13 November 2000 at [34].
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(a)
The nature of the information provided to those signing the petition
is not balanced, and has changed over time.136
(b)
The identity of those signing the petition has not been disclosed, and
it is impossible to verify if those signing the petition actually exist (all
that is needed is an email address).
(c)
Many of those signing the petition are from overseas, and may have
been unduly influenced (as have many submitters in the
proceedings) by issues arising in the farming of Atlantic salmon
overseas, which are not issues in respect of this proposal.
8.
POSITIVE EFFECTS
Introduction
8.1
Clearly, the NZ King Salmon proposal, if it proceeds, will have employment
and wider economic impacts (or benefits).137 There has been debate over
how much employment will be generated and how great the direct and wider
benefits will be.
8.2
NZ King Salmon estimates the likely additional direct employment at
approximately 375,138 most of which will be based in Marlborough. NZ King
Salmon's experts put the overall employment benefits (including indirect and
induced benefits, and expressed in "modified Employment Counts" or MECs)
at 1,160 by 2021, with overall economic benefits (in total "value added") over
a 25 year period at between $594m-880m (in present value terms).139
8.3
These projected economic benefits or "value added" (also referred to as
GDP) are widely used by economists as indicators of the value of activity.140
While "value added" is not a direct or specific measure of benefit,141 it is
nonetheless a general indicator of contribution towards economic and social
wellbeing, and can be considered by the Board accordingly.142
8.4
There appears to have been some suspicion among submitters on the
Proposal regarding:
136
137
138
139
140
141
142
NZ King Salmon has evidence of the wording changing during the course of the petition.
The economists tend to use the term "impacts", while others might use the term "benefits".
Clark EIR, para 6.2.
Hearing transcript for 19 September 2012, page 2032 from line 23, as reflected in the Joint
Statement of Economic Experts dated 11 September 2012.
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(a)
the anticipated employment estimated as likely to arise from the
proposal (compounded by changes in the numbers predicted to be
directly employed by NZ King Salmon);
(b)
the methodology employed by Dr Fairgray, and the results in terms
of the overall economic benefits; and
(c)
the peer-review type role undertaken by Dr Kaye-Blake (including
because he originally provided some advice to the EPA, and was
then retained by NZ King Salmon).
8.5
We address these and other concerns (such as to the sale price NZ King
Salmon may achieve) below.
Employment
8.6
NZ King Salmon produced a "NZ King Salmon Report" as part of its
application.143 In that report, it recorded the likely additional employment that
might be expected if the proposal were to proceed. That number was 112152.144
8.7
Separately, Dr Fairgray's company produced an economic impact report,
which was included as appendix 3 in the AEE. Dr Fairgray's evidence was
based closely on that report.
8.8
In those documents, Dr Fairgray's primary focus was on evaluating the wider
economic impacts that might be expected given the increase in production
anticipated. In his assessment, he did not rely on the predicted employment
recorded in the NZ King Salmon Report, but, rather, calculated the likely gain
in NZ King Salmon employees on a pro-rata basis to the increased
production. His anticipated direct NZ King Salmon employment number was
estimated at 600 MECs by 2021.145
8.9
Dr Fairgray also estimated wider employment (including indirect and induced
employment) likely to arise from the proposal in his evidence in chief at 1,870
MECs by 2021.146
143
144
145
146
Included as appendix 2 in the AEE lodged in October 2011.
NZ King Salmon Report, page 38; Clark EIR, para 6.1.
Salmon Farming Proposal - Economic Impacts Report dated 29 September, Table 2-8,
page 16.
Fairgray EIC, para 3.26 and Table 3-5.
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8.10
Several submitters noted the differences in anticipated NZ King Salmon
employment between the NZ King Salmon Report and Dr Fairgray's work in
their evidence and submissions.147
Through cross examination and
submissions, they then implied some inappropriate collusion had occurred
when Mr Clark, NZ King Salmon's CFO, corrected what he explained was an
error in the original report in his rebuttal evidence,148 and Dr Fairgray adopted
that same figure for the purpose of his revised analysis149 (as presented in his
rebuttal evidence supplementary statement). Contrary to any suggestions to
the contrary, it was entirely appropriate for Mr Clark to correct the error and
for Dr Fairgray to use that better information, rather than to ignore the
differences.
8.11
The likely employment by NZ King Salmon as confirmed by Mr Clark is
approximately 375.150 That remains the best evidence before the Board on
that issue, from the company's Chief Financial Officer. He had to check the
basis of the figure for his reply evidence and was tested on it in cross
examination (and explained the original error).151
Later, Dr Fairgray was
cross examined (and given a slide show) on how technological "advances"
could be adopted by the company and therefore reduce the likely
employment generated.152 Unfortunately those questions were not put to any
company witness who could have explained how most of the "advances" in
technology put to Dr Fairgray were already in place in respect of existing
operations and so the company's current forecasts of future employment
already took that into account.
8.12
In terms of where the NZ King Salmon employment will occur, that will
depend in part on whether a processing plant is developed in Picton. NZ
King Salmon's evidence is that it expects to do so once production reaches
15,000mt.153 Dr Fairgray took that into account. While a processing plant is
not part of this application, as Mr McNabb stated as Chief Executive of Port
Marlborough,154 there is sufficient land at the Port for this to occur. He did not
think that waste discharge issues would ultimately be an obstacle either.155
147
148
149
150
151
152
153
154
155
Offen EIC, page 4; Hearing transcript for 9 October 2012, page 3340.
Hearing transcript for 19 September 2012, page 2120 line 16 to page 2121 line 5.
Hearing transcript for 6 September 2012, page 969 line 18 to page 971 lines 1 - 5.
Fairgray EIC, para 3.20.
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8.13
Overall, Dr Fairgray considered in his "MEC" terms, that the Proposal will
result in 400 MECs for the northern South Island for the 2011-2021 period.156
The total (including indirect and induced) employment gains associated with
the Proposal are estimated at 1,150 MECs to 2021 for the northern South
Island.157
8.14
An academic economist, Professor Hazledine did not deny completely that
there would be some employment benefits from the Proposal. However, his
view was that while there would be some jobs added to the Marlborough and
Nelson regions (but not anything like what Dr Fairgray expected), they would
almost entirely come from other parts of the country such that the number of
jobs would be reduced by almost as much in the rest of New Zealand.158 In
other words, he thought there would be little net employment arising from the
Proposal. He also based his predictions on a reduced form of the Proposal,
equivalent to the grant of only three or four farms, not the nine sought.
8.15
Tax expert Mr Offen took a similar view to Professor Hazledine, stating that
the employment benefit of the proposal was that it might provide employment
a little sooner than what might otherwise occur if it proceeded, but that people
would find work elsewhere after a little more time if the proposal were not to
proceed.159 Mr Offen also focussed on whether or not the Proposal is the
only (or lowest cost) means to employ people, rather than assisting the Board
with its evaluation of the effects of this Proposal (including in respect of
employment).160
8.16
Dr Fairgray, an economic geographer161 who has over 30 years of experience
in these sorts of assessments, supported by Dr Kaye-Blake, a practising
economist, and Acting President of the New Zealand Association of
Economics, simply did not accept the propositions put forward by Professor
Hazledine and Mr Offen.
8.17
Dr Fairgray explained that:162
Well in net terms across all the businesses they are additional jobs,
because whether it's somebody who hasn't got a job and moves
156
157
158
159
160
161
162
Hearing transcript for 19 September 2012, page 2033 lines 39 - 46; Fairgray
Supplementary statement of evidence, Table 3-8.
Fairgray Supplementary statement of evidence, Table 3-8.
Dr Fairgray explained the nature and relevance of his qualifications and experience under
re-examination: Hearing transcript for 19 September 2012, pages 2122 - 2123.
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straight into a job at King Salmon or moves in sort of three steps
removed because other people have moved on, the fact that
somebody is employed who wasn't previously employed that is in
[e]ffect a new job.
8.18
Dr Kaye-Blake further clarified that where there is capacity in the system, (ie
spare workers, which is the case for Marlborough, given the undisputed fact
that there is a sizable pool of unemployed people within the region163 which
Dr Fairgray puts at perhaps 3,000-3,500 people164), then:165
... what that means is that a project like this, has a pool of
unemployed people that the project can pull from, and so that
means that the economy can actually create jobs and employ
people by developing new businesses.
It also means that a job in Marlborough doesn't take away from
employment elsewhere. There is spare capacity in the economy,
we do have people who are ready and willing to work, we can
design projects that will put them to work.
8.19
Dr Fairgray emphasised that the Proposal would also add a new productive
resource to the region:166
Either through the direct route or the indirect route, they would get
additional jobs because they are based on the currently unused
resource which is the marine space being brought into a productive
activity so in that basic resource is a net addition to the resource
base of the region in terms of productive activity. So that is how the
new net jobs would arise.
8.20
The position of Dr Fairgray and Dr Kaye-Blake is supported by the "real
world" submissions made by the Chamber of Commerce, Port Marlborough,
Brent Marshall (Chateau Marlborough) and Councillor Bagge. It also makes
intuitive sense.
8.21
In light of this, it is submitted that the Board can proceed on the basis that the
Proposal will, by 2021:
8.22
(a)
Create around 375 jobs at NZ King Salmon.167
(b)
Further create around 750 indirect and induced jobs.168
On that basis, the employment benefits associated with the Proposal remain
substantial, and are a tangible way in which it will enable people and
communities to provide for their social and economic wellbeing.
163
164
165
166
167
168
As acknowledged by Professor Hazledine at hearing transcript for 19 September 2012,
page 2146 line 36 to page 2147 line 2.
Clark EIR, table at para 6.2.
Fairgray EIR Supplementary Statement, page 4 Table 3-5.
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Wider economic impacts (benefits)
8.23
There was also competing evidence and cross examination on the wider
economic impacts (or benefits) estimated by NZ King Salmon's witnesses as
arising from the proposal.
8.24
The only comprehensive evaluation of economic impacts was undertaken by
Dr Fairgray, using an "input-output" model. His work was peer reviewed by
Dr Kaye-Blake (initially, at the pre-lodgement stage for the EPA, and then for
NZ King Salmon at the time of rebuttal evidence).
Professor Hazledine
undertook a partial cost benefit analysis, while tax expert Mr Offen critiqued
Dr Fairgray's work from his perspective. Ms McGuinness, a "futurist" with an
accounting background, also raised concerns from her limited understanding
of the issues. She was on a fact-finding mission, but had failed to take up
offers to confer direct with Dr Fairgray or NZ King Salmon's other experts. Mr
Soderberg also cross examined and presented submissions from his past
experience as an accountant, including with firms such as Anderson
Consulting.169
8.25
Key concerns centred on:
(a)
The validity and verification of the information provided by NZ King
Salmon.
(b)
The sale price likely to be achieved by NZ King Salmon for its
product.
(c)
8.26
The input-output methodology.
We address these in turn below.
Information gathering/testing issues
8.27
The accountants all seemed to struggle with economic assessment
methodology,
including
the
established
methodology
employed
by
Dr Fairgray, possibly because of the different experiences they have had in
their accounting practices, and their lack of experience in RMA proceedings.
Unfortunately, one of the parties, the McGuiness Institute, declined at least
five invitations or offers to confer or conference with Dr Fairgray (or NZ King
Salmon's other experts). That could have assisted considerably. Dr Fairgray
169
Mr Soderberg was a partner of the US based consultancy, Anderson Consulting:
Soderberg CV, page 1, tabled on 19 September 2012.
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42
has extensive experience in conducting economic studies, including
modelling of economies and impacts of policies and new projects, he has
been practising for over 30 years working in economic geography ("spatial
economics") and economics, and has provided expert advice in relation to
over 900 projects.170 Dr Fairgray has had significant experience in assessing
the economic impacts of proposals in RMA proceedings, where he has
applied similar approaches (although not necessarily an input-output model)
to the various evaluations required. While his evidence has not always been
preferred by the Environment Court, he has never been criticised in the
decisions we have reviewed for the approach he has taken.
Unlike
accounting audits which can be applied to financial records, the type of
information used in RMA proceedings – for economic analysis, planning,
policy and impact assessment – extends much more widely than specific
historic dollar amounts for a single entity.171
8.28
That does not mean that the information is not accurate or that the evaluation
it supports is inherently unsafe, but instead that it is not appropriate to
contend that it should be subject to the same mechanics as forensic
accounting. As identified by Dr Kaye-Blake,172 there is abundant information
available publicly on the economic aspects of salmon farming against which
to compare the NZKS information. Further, Professor Hazledine accepted
that the information used by NZ King Salmon was appropriate.173
8.29
Dr Fairgray was very clear in his answers to questions that he was satisfied
that the information he was receiving from NZ King Salmon was legitimate
(not manufactured, as the questions appeared to suggest) and provided a
reasonable picture of NZ King Salmon's business that he could then place
into his input-output model.174 As already explained, he did not rely originally
on NZ King Salmon's predictions of employment, a matter that appears to
have distracted submitters from the wider issues.
8.30
Dr Kaye-Blake supported Dr Fairgray's theory and method as sound. Indeed,
in terms of validation, Dr Kaye-Blake's expert opinion was that:175
170
171
172
173
174
175
In particular, it includes employment data, industry or sector-wide financial figures
(including StatisticsNZ estimates), figures derived from analysis and reconciliation of
multiple businesses across many sectors, and modelling or estimates of future situations.
Hazledine EIC, para 75.
Hearing transcript for 19 September 2012, pages 2072 line 13 to page 2078 line 7.
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43
... in terms of trying to help the Board understand the evidence that
is in front of it, I think this work of Dr Fairgray is much validated
than any of the other economic evidence. (sic)
8.31
Importantly, Dr Fairgray also confirmed that, notwithstanding a decrease in
the projected employment numbers as a result of the Proposal, the value
added figures remain unchanged because this metric is in essence based on
total salmon production, and under the revised scenario NZ King Salmon
would still be producing the same amount of salmon.176
Reliability of sales figures used by Dr Fairgray / volatility of prices
8.32
A theme in cross-examination was the extent to which the figures used by
Dr Fairgray could be relied upon, and the extent to which prices or returns
could change over time. This issue was raised in the context of price volatility
for salmon internationally, and also the prospect of mortality incidents or other
business risks that might jeopardise production by NZ King Salmon.
8.33
Dr Fairgray confirmed that the data used in relation to demand supply and
price had been provided by NZ King Salmon,177 and that he had derived and
used an average price of $13,000 per tonne.
Dr Fairgray accepted that
prices might go up or down, but considered in his expert view that this was a
suitable indicator of the average price revenue going forward.178 When asked
about whether the data used by Dr Fairgray would be sufficient to give a
proper averaging to project costing or project benefit over a 25 year period
into the future, Dr Kaye-Blake confirmed that usually it would be.179
8.34
Some of the questioning touched on whether risks to future production had
been adequately considered in Dr Fairgray's analyses.
However, as
observed by Dr Kaye-Blake, risks such as mortalities are simply a normal part
of running a farm or primary production activity. Given that the input-output
analysis was based on historical data about performance, such normal
business risk is actually built into it.180 NZ King Salmon's ability to adopt a
biosecure approach is also consistent with a robust approach to managing
these risks.
176
177
178
179
180
Hearing transcript for 19 September 2012, page 2051 from line 30; Hearing transcript for
19 September 2012, page 2121 lines 19 - 33.
Hearing transcript for 19 September 2012, page 2209 lines 33 - 40. Mr Hazledine for his
annual analysis applied a higher average sales price, of $14,200 per tonne (Tables 1 and
2). He also acknowledged in his EIC that the figures I used were about right (para 75).
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8.35
In relation to the price volatility or market changes over time for salmon, and
whether these would have an impact on his figures, Dr Fairgray agreed
that:181
It would if the moving average was upward or downward from the
base point so if it was a consistent trend up in terms of my price
then my figures will be conservative. If there was a consistent or a
moving average trend down, then my prices, my output estimates
would be over optimistic.
8.36
However, the relevant graphs from Mr Nystøyl's evidence show that the
prices for New Zealand Chinook (King Salmon) had been steadily increasing
through the 2003-2011 period, when measured in US dollars.182 Further, in
the 2004-2011 period NZ King Salmon's selling price across all markets
increased by 35%.183
8.37
Later in the hearing, the Board was presented with a table providing yearly
sales volume and price data (NZ$) for the period June 2003 through to June
2012.184 It was clear from this table that the price had steadily increased from
$10.41 to $14.48 in this period, and that sales volumes had also increased
overall.185
8.38
During questioning by Ms McGuinness, Mr Nystoyl of Kontali Analyse
explained the basis for his belief that such increased demand will be
realised:186
I think as I have stated in the report, I have stated that it is first of
all, our true belief as an institution that has followed the industry for
20-25 years … I have in the report tried to show and include the
many indicators and trends that are apparent, that support the
belief that there is a strong increase the demand for salmon …
8.39
It is also notable that over half of the production of NZ King Salmon is sold
within New Zealand187 where prices are expected to remain relatively stable,
and that NZ King Salmon is the majority supplier of salmon in New Zealand.
181
182
183
184
185
186
187
Hearing transcript for 19 September 2012, page 2125 lines 18 - 20; Nystøyl EIC, Appendix
2 page 15.
Exhibit Dawson.e Average price of NZ King Salmon (NZD/kg) for Period June 2003 - June
2012, presented to the Board on 15 October 2012.
The McGuinness Institute criticised this table in its closing submissions (paragraphs 2324). Those criticisms are not accepted. 2012 production estimates and sales are set out in
Clark EIC, para 28. Sales do not always match production because some fish is frozen
(Clark EIC, para 31), and it is erroneous to suggest because actual production was less
than potential maximum production due to a poor season and mortalities, that NZ King
Salmon is operating "below capacity". The evidence of growing demand is very strong,
and if anything the lower figures in 2012 only reinforce the need for additional higher
quality water space in order to meet this demand.
Only 45% is exported: Clark EIC, para 20.
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This provides a level of "insulation" from any volatility in the price
internationally.
8.40
In regard to international markets, it is important to recall that the king salmon
species is distinct from the more common Atlantic salmon. NZ King Salmon
has consistently been able to generate attractive premiums over commodity
Atlantic salmon prices. For example:
(a)
In China the price is 50% higher than sold in New Zealand, and
more than double the Atlantic salmon price;188
(b)
In European countries the price is also approximately 50% higher
than in New Zealand, and is substantially above the Atlantic salmon
price - which is significant in markets near to the world's largest
salmon producer Norway.189
8.41
In virtually all markets190 NZ King Salmon has increased both selling price
and volume over the last ten years. Prices in Australia are 47% higher in
2012 than in 2004 (in NZ$),191 and prices lifted by 110% in North American
markets.192
8.42
The company is also seeking to build and maintain a premium brand
positioning with its new Ora King brand.
Over time these factors are
expected to allow greater resilience to international market pricing shocks.193
8.43
Accordingly, it is submitted that the concerns about price volatility and future
production are overstated, and that Dr Fairgray has proceeded on a sound
basis in estimating the future economic impacts of the Proposal.
The input-output methodology
8.44
Dr Fairgray was criticised by Professor Hazledine in particular for adopting an
input-output
194
benefits.
methodology,
producing
"fantastical"
predictions
about
Professor Hazledine seemed to think it was a method promoted
by consultancies eager to attract work for clients wanting to show large
impacts.
188
189
190
191
192
193
194
Clark EIC, para 23(a).
Clark EIC, para 23(b).
Japan is an exception, as sales were reduced as NZ King Salmon repositioned itself away
from commodity markets and to better-returning markets and customers: Clark EIR, para
5.5(c).
Clark EIR, para 5.5(b).
Clark EIR, para 5.5(d).
Clark EIR, para 4.3(c).
Hazledine EIC, para 113.
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46
8.45
Dr Fairgray was well aware of the strengths and weaknesses of input-output
models, including the criticisms levelled by Professor Hazledine, and he took
care in his use of one for this project. He explained in his evidence in chief
that he used that model, rather than a CGE model, in light of the difficulties in
constructing and calibrating CGE models, particularly because of data
reliability issues at the regional level. Dr Fairgray noted that:195
There is no CGE model capacity yet developed for any of the three
regions individually or for the northern South Island overall, and it is
unlikely that such capability could be feasibly developed within the
next few years.
8.46
It is significant, as both Dr Fairgray196 and Dr Kaye-Blake197 observed, that
the results produced by Dr Fairgray through his input-output model line up
very well with the results from an earlier NZIER study conducted in 2010 of
the impacts of growth in the aquaculture sector - including expansion of
salmon farming - which used the CGE (computable general equilibrium)
methodology.198
8.47
These CGE results were close to, but higher than, Dr Fairgray's results, which
is
significant
given
that
input-output
is
recognised
as
sometimes
overestimating economic impacts compared with CGE analysis. This gave
Dr Fairgray confidence that his results were solid,199 and gave Dr Kaye-Blake
"a new appreciation for what IO can do when it is done properly".200
8.48
Accordingly, we submit that the analysis undertaken by Dr Fairgray is robust
and his total value added impact figure for the Proposal of $1106M (in
present value terms), or the $880M figure (at the 20% margin), should be
given due regard by the Board.
Dr Kaye-Blake's peer review
8.49
On balance, Dr Kaye-Blake retained a preference for his own lower estimate
of the economic impact of the Proposal. (Dr Fairgray considered this to be
conservative.201)
195
196
197
198
199
200
201
Fairgray EIC, para 4.3.
This was "The Net Economic Benefit of Aquaculture Growth in New Zealand. Scenarios to
2025", a copy of which was provided to the Board following Dr Kaye-Blake's crossexamination.
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8.50
Dr Kaye Blake's estimate amounted to $594M, or approximately $600M, and
that, in his view, was significant, particularly in the context of the
Government's aspirations for aquaculture.202 However, he acknowledged he
did not have a model behind this, but it was based on his experience with CG
modelling and other kinds of modelling.203
8.51
In response to questioning about Dr Fairgray's approach and whether this
had been validated, Dr Kaye-Blake noted that:
(a)
The input-output methods used by Dr Fairgray had been around for
several decades (since the 1940s or 1950s), and were very well
established and understood.204
(b)
Dr Fairgray's approach was that he had added to this method by
building a single industry, "based on information from New Zealand
King Salmon, and he has put that into what is already a well
accepted, well validated economic analytical tool."205
(c)
Dr Fairgray's theory and method were sound, and his data came
from a specific source which, while it might be desirable to validate
independently, was confidential business information.206
Parties
could have sought disclosure under confidentiality orders as the
Environment Court sometimes requires if they had wanted to test all
of the base information themselves, but they did not do so.
8.52
Finally, Dr Kaye-Blake observed that while one of the recognised difficulties
with input-output analyses is that it tends to overestimate economic impacts,
this was particularly a problem for one-off events (such as the World Cup).
However, this effect is much less pronounced for investment projects using a
well undertaken input-output analysis, as evidenced by comparing Dr
Fairgray's with NZIER's 2010 analysis of aquaculture.207 Professor Hazledine
conceded that the examples of input-output studies which he criticised were
examples of one-off events (like the World Cup) rather than ongoing,
continuing projects using a previously unutilised resource.208
202
203
204
205
206
207
208
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48
8.53
Some of the cross-examination of Dr Kaye-Blake focussed on his previous
role in providing advice to the EPA with respect to the Proposal, and may
have been intended to suggest that this represented a conflict of interest.
However, as Dr Kaye-Blake explained, his advice to the Board would not be
any different if he had been retained by the Board as its peer reviewer, rather
than by NZ King Salmon. Quite simply, this is the case because of his role as
a professional independent expert witness in line with the code of conduct,
and because the approach taken in his work with the EPA was not materially
different to his advice to the Board as an expert witness.209
Professor Hazledine's approach
8.54
NZ King Salmon submits that the analysis put forward by Professor Hazledine
remains a very low and unrealistically conservative and only partial estimation
of the economic impacts of the Proposal.
8.55
Professor Hazledine agreed that his analysis could be described as a "partial
CBA" for the project.210 The Joint Statement of Economic Experts records
that there has been no comprehensive cost-benefit analysis of the NZ King
Salmon proposal undertaken by any of the economic experts.211
8.56
Professor Hazledine's analysis assumed an increase in production of 6,900
tonnes from the Proposal,212 which is considerably less than what is predicted
by NZ King Salmon over all nine of the proposed new farms.
He accepted
that this would be consistent with assessing the economic impact of around
four of the proposed farms rather than the full nine.213
8.57
Accordingly, Professor Hazledine has, in effect, conducted only a partial costbenefit analysis, which he applied to less than half of the Proposal. This is of
very limited assistance in the current proceedings.
8.58
In total, Professor Hazledine's assessment was that the economic benefits of
the Proposal equated to just:214
(a)
Economic profit to NZ shareholders of $7.5M (being his estimated
economic profit of $15M attributed to the new farms, halved to
reflect the shareholding of the Applicant).
209
210
211
212
213
214
Joint Statement of Economic Experts dated 11 September 2012, page 4 of Annexure A.
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49
(b)
$750,000 in benefits to people moving to better jobs (assuming that
all new employees are already employed elsewhere, multiplying the
number of employees by the average wage for those employees
and taking 5% of that figure).
(c)
A further $750,000 in unspecified benefits or "juicing up" the
economy.
8.59
In contrast to the figures presented by Dr Kaye-Blake and Dr Fairgray which
represent the cumulative impact to 2036 (in present value terms), Professor
Hazledine's estimate amounts to $9M in economic benefits per year, once the
project is "up and running".215
8.60
However, he was "very uncomfortable" forecasting beyond 10 years.216 It is
notable then that the joint witness statement records the contrasting view of
all other economic witnesses that, (while it is difficult to forecast 35 years into
the future) "for the purposes of this proposal the length of assessment needs
to be 35 years to reflect the term of the consent sought".217
8.61
Professor Hazledine acknowledged that under his assumptions the "juicing
up" figure would be higher if the jobs benefit was higher,218 and that it was an
error not to allow for tax collected by the New Zealand Government when
calculating his figure for economic profit.219 It is also notable that Professor
Hazledine's approach would not consider any additional value if the New
Zealand shareholders spent the economic profit in the New Zealand
economy.220
8.62
NZ King Salmon submits that in light of these limitations of Professor
Hazledine's methodology, the Board can place little weight on his approach or
estimations. His estimated outcomes are simply anomalous when compared
to the results presented by either Dr Fairgray or Dr Kaye-Blake. They seem
designed to minimise the impacts of the Proposal. That of course would suit
the present needs of his client, but would not seem to be a particularly
optimistic approach to take for every development that might be proposed in
Marlborough.
215
216
217
218
219
220
Joint Statement of Economic Experts dated 11 September 2012, page 2 of Annexure A.
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8.63
In contrast to his positive assessment of Dr Fairgray's work and approach,
Dr Kaye-Blake in his peer review role observed that:221
By contrast Professor Hazledine doesn't have this kind of validated
model in his evidence. He has done some calculations but there is
nothing validated underneath it, there is no sort of underlying theory
driving it, and so if we are talking about validation.
...
...Professor Hazledine's work theoretically we haven't been able to
validate it. There is no method that we can validate and we are not
sure of the data either.
8.64
Accordingly, Dr Kaye-Blake's view was that the Board should not have regard
to the partial cost-benefit analysis conducted by Professor Hazledine.222
Other witnesses
8.65
It is submitted that the different approaches taken by Mr Offen and
Ms McGuinness do not materially assist the Board:
(a)
Neither witness has attempted to properly quantify the economic
impacts of the Proposal.
(b)
Mr Offen is a tax practitioner, rather than an economist. For his part,
Mr Offen focussed on whether or not the Proposal is the only (or
lowest cost) means to employ people.223 However, the Board is
required to consider the benefits of the Proposal, as a real proposal,
and there is no other proposal against which the Board can make a
comparison.224
(c)
Ms McGuinness is also an accountant, although she does not
practice as one, rather she is the chief executive of some sort of
"think tank", set up from her own funds. She is also a "futurist"
(whatever that is),225 who has filed a personal submission in
opposition to the Proposal. As such she has neither the expertise
nor the independence necessary to assist the Board with respect to
the long term economic impacts of the Proposal.
221
222
223
224
225
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Other matters: significance of the Proposal
8.66
Both Dr Fairgray and Dr Kaye-Blake confirmed their views as to the
significance of the Proposal, both in economic terms for the region and in the
context of the Government's aspirations for the aquaculture industry:
(a)
Dr Fairgray explained that the Proposal is significant on a national
scale, given its importance for the region and the way in which this
contributes to national outcomes, because it is a proposal to utilise a
resource over a long period of time with significant benefits at the
regional level, and its significance for the aquaculture sector in light
of Parliament's intentions for aquaculture nationally.226
(b)
Dr Kaye-Blake also considered his own (lower) estimate of the
economic impacts to be significant, and agreed that in supporting
the aquaculture strategy the Proposal moves from regional
significance to national significance.227
8.67
Ms McGuinness and others have expressed a concern that a full cost-benefit
analysis has not been undertaken for the Plan Change by an economist.228
8.68
There is no requirement for the cost-benefit analysis to be undertaken by an
economist. In fact, attempting to do so presents immediate challenges as to
how to ascribe economic value to parts of the environment such as ONFLS.
The Environment Court has observed that the benefit of economic analysis is
limited in cases where interests such as recreational use and landscape have
to be evaluated against the use of the resource.229
8.69
Accordingly, in order to assist the Board to carry out the cost-benefit analysis
required by section 32, the Board has before it economic evidence as to the
economic benefits of the Proposal, along with detailed scientific evidence
addressing the adverse effects.
There is nothing unusual in that.
That
provides a comprehensive evidential basis for the Board to carry out its
evaluation, just as Ms Dawson has in her evidence.
226
227
228
229
Hearing transcript for 19 September 2012, page 2039 lines 8 - 31; Hearing transcript for 20
September 2012, page 2177 line 44 to page 2178 line 15.
Hearing transcript for 27 September, from page 2600.
Minister of Conservation v Otago Regional Council EnvC Christchurch C71/2002, 25 June
2002.
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9.
SEABED/BENTHIC EFFECTS
Introduction
9.1
The Board has heard a range of competing views in regard to the likely
effects of the proposed salmon farms on the seabed or benthic organisms.
However, the Board can have confidence that effects associated with the
Proposal will be kept within acceptable limits.
9.2
In summary:
(a)
While there is an acknowledged level of uncertainty around some of
the other effects of the Proposal, such as the water column effects,
the benthic effects of the proposed marine farms are very well
understood by NZ King Salmon.
It has gathered extensive
information in relation to these kinds of effects, including those
associated with existing high flow sites like Te Pangu and Clay
Point.230
(b)
No party has seriously challenged the DEPOMOD model used to
assess effects on the benthic environment. Again, this is in stark
contrast to the issue of water column effects, where there is
considerable debate about the appropriate modelling approach. The
only competing model in relation to depositional issues has been
produced by Mr Hartstein, and this has in any event produced
comparable results to those generated by DEPOMOD.231
Mr
Hartstein's client (SoS) did not challenge the NZ King Salmon
depositional modelling in cross-examination, presumably because
the modelling outputs are similar.
(c)
In addition, the modelling approach taken has been particularly
conservative, on two fronts:232
(i)
The zone footprints and ES levels for the farms have been
modelled in terms of the maximum conceivable production
levels. In reality this level is unlikely to be reached, and is
considerably higher than the production levels (and
therefore discharge levels) of the "maximum sustainable
230
231
232
Hearing transcript for 31 August 2012, page 495 lines 8 - 21.
Although Mr Hartstein noted some confined differences: Hartstein EIR, para 52.
Hearing transcript for 21 September 2012, page 2298 line 41 to page 2300 line 31. Ms
Allan accepted this was consistent with a worst case scenario or a very conservative
approach to the modelling.
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53
yield", or what might be achieved adopting a "biosecure
approach".
(ii)
The modelling approach assumes there will be no resuspension of deposited material,233 whereas in reality a
substantial amount of material would be swept away by
currents, particularly at the higher flow sites. This adds an
additional layer of conservatism to the modelling outputs.
(d)
No other parties have made available benthic experts or provided
studies in this area comparable to those produced by NZ King
Salmon. The investigations and field work undertaken or relied on
by NZ King Salmon in its site selection process can be contrasted
with the methodologies or approaches adopted by other witnesses
before the Board, who have largely undertaken desktop studies, and
when benthic field work was conducted it was descriptive rather than
quantitative.
(e)
Accordingly, we submit that the evidence of the witnesses for NZ
King Salmon should be preferred.
Issues of contention
9.3
It is common ground that the deposition of faecal matter from the salmon will
have some impacts on the benthic communities directly below and adjacent
to the farms. However, there was a level of disagreement as to:
(a)
The nature or biological value of the benthic communities affected,
in terms of whether these should be considered rare, pristine or
otherwise ecologically significant.
(b)
The
scale
of
the
effect
severe
or
acceptable)
and
the
appropriateness of the proposed conditions and environmental
quality standards.
Nature of the benthic communities affected
9.4
NZ King Salmon's case is that through the site selection process, effects on
ecologically significant biological values will largely be avoided. The evidence
from Mr Davidson and Dr Taylor has shown that:
233
The New Zealand King Salmon Company Limited: Assessment of Environmental Effects –
Benthic, pages 30-32, included in the application documents at Tab 31.
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(a)
the boundaries of the proposed sites are located over areas
effectively avoiding biological features with high value. Instead the
proposed farm sites are located over communities and habitats that
are widespread and more commonplace in the Sounds;234 and
(b)
the benthic communities that do exist under the sites are not
unmodified.
9.5
An extensive collaborative study was undertaken to identify ecologically
significant habitats within the Sounds, involving a number of scientists who
are experts in their fields.235 This study and a range of other work was taken
into account in deciding on the locations of the proposed farms, and NZ King
Salmon endeavoured to locate the sites over the more common and less
ecologically diverse soft sediment habitats.236 More dispersive (higher flow)
sites were also favoured, in order to minimise deposition.237
9.6
Mr Davidson explained that the benthic environments beneath the sites were
all modified to a greater or lesser extent, and certainly not pristine.238
He
indicated that "remnant pockets of value" tended to be found in channels or
rocky outcrops, or other seabed terrain that would have precluded dredging
activities.239 It is submitted that considerable weight should be given to Mr
Davidson's views on this issue, as he has extensive experience in this field
and has conducted thousands of dives and thousands of drop camera images
within the Sounds.240
9.7
Dr Taylor's view was also that the soft sediment habitats over which the
proposed farms will be sited have been targeted by commercial trawling and
dredging.241 The sites exhibit a lack of the kinds of three dimensional upright
organisms that would be expected in an unmodified soft sediment
environment.242
This reinforces that the affected areas are not currently
pristine or unmodified.
234
235
236
237
238
239
240
241
242
In terms of the criteria adopted in Davidson et all 2011, reproduced in Appendix 1 of
Davidson EIC.
Davidson et al, 2011. Ecologically significant marine sites in Marlborough, New Zealand.
Coordinated by Davidson Environmental Limited for Marlborough District Council and
Department of Conservation. Notable co-authors included Dr Duffy and Mr Baxter.
Taylor EIC, paras 16 - 19.
Taylor EIC, paras 18; Hearing transcript for 31 August 2012, page 518 lines 5 - 35.
Hearing transcript for 31 August 2012, page 541 line 25 to page 542 line 23.
Davidson EIR, para 9.
Taylor EIR, para 17; Hearing transcript for 31 August 2012, page 520 lines 23 - 26.
Hearing transcript for 31 August 2012, page 521 lines 29 - 31 (Taylor); Hearing transcript
for 31 August 2012, page 531 lines 31-36 (Taylor, in relation to the Richmond site).
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9.8
It is notable in this regard that Mr Ironside for PWS only cross-examined Mr
Keeley, but not Dr Taylor or Mr Davidson.
9.9
Mr Boulton for SoS presented the Board with videos of benthic communities
within the Sounds, however the footage was captured some distance either
alongside and/or inshore from the proposed farms and in considerably
shallower waters.243 As acknowledged by Dr Mead, the dive sites where the
videos were taken were limited to about 30m deep, whereas the proposed
salmon farm sites are in the region of 60m deep.244
9.10
Dr Taylor considered these videos to be highly selective, and potentially
misleading.245 Mr Davidson also noted their tendency to "jump around a bit",
such that they were very difficult to interpret.246 This cursory study simply
does not stack up against the robust investigations carried out by the expert
scientists for NZ King Salmon. Accordingly, the evidence for NZ King Salmon
should be given greater weight on this issue.
Ngamahau site
9.11
Mr Davidson acknowledged that at the Ngamahau sites there are some three
dimensional biogenic structures that potentially will be lost.247 Accordingly he
has recommended the proposed environmental compensation measures
which "could be a positive outcome of that".248
The ecological studies
proposed and their value for future conservation efforts are described in Mr
Davidson's evidence.249
Level of effects and enrichment standards
9.12
Dr Keeley has assessed the impacts and extent of the deposition for NZ King
Salmon, as a specialist in benthic enrichment and the ecological effects of
aquaculture.250 His assessment has relied on a robust modelling approach
which was not significantly challenged by the other parties.
9.13
As we note above, the model is also fairly conservative; something that does
not seem to have been acknowledged by the submitters. In relation to re-
243
244
245
246
247
248
249
250
Davidson EIR, para 50.
Keeley EIC, para 2.
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56
suspension, it was evident in cross-examination of Ms Allan that deposition
effects would be considerably different under a re-suspension scenario.251
Enrichment standards
9.14
The proposed Environmental Quality Standards ("EQS") for the farms all
include a permissible "enrichment standard" ("ES") of 5.0, except for the
Papatua site which may reach ES 6.0 for limited periods.
9.15
Other parties have contended that setting an ES for the benthic environment
of 5 or 6 is tantamount to approaching the edge of cliff.252 This is simply not
an appropriate analogy. Even if a "cliff" does exist, the Board has heard that
an ES level of 5.0 for high flow sites will not equate to teetering on the
edge.253 An ES of 5.0 (or less) is a sustainable environmental state.254 Mr
Keeley explained that at existing high flow sites there are:255
… certainly no signs of suddenly jumping – well slipping to a highly
anoxic state, the hydro dynamic properties in these sites are such
that there is strong flushing, there is strong oxygen supply to the
sediments and it maintains the conditions there, more so at a low
flow site.
9.16
The Board has also heard from Mr Keeley that in the unlikely event that the
system were to "fall over", it is able to recover.256
9.17
For his part, Mr Davidson confirmed that he was comfortable with ES5 for the
sort of habitats beneath the proposed farm sites (but would have had
concerns if ES5 was proposed should higher value habitats or communities
have existed under the sites).257
ES 3 vs ES 5
9.18
The view has been advanced, particularly by Dr Mead, that ES5 is too high
and that instead the EQS for all of the farms should be ES 3.258 Mr Heal in
closing submissions for SoS promotes a maximum ES of 3.5.
Other
submitters have also mentioned ES 3.0 as the appropriate standard in
251
252
253
254
255
256
257
258
Hearing transcript for 20 September 2012, pages 2298 lines 41 - 41 and 2300 lines 9 - 31.
See Assessment of Environmental Effects for White Horse Rock Site, Appendix B: Marine
Science Assessment of Effects of Salmon Farming at White Horse Rock, Pelorus Sound:
Deposition and Benthic Effects, page 26 Figure 11, which Ms Allan was referred to in
cross examination.
Hearing transcript for 31 August 2012, page 495 line 8.
Hearing transcript for 31 August 2012, pages 493 - 494.
Hearing transcript for 31 August 2012, page 549, lines 7 - 19.
Mead EIC, para 37.
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57
misplaced references to what the supposedly (but do not actually) achieve in
Tasmania.
259
Keeley
This comparison was addressed in a letter produced by Mr
and in further cross examination on this issue. We address this at
paragraph 9.23 below.
9.19
NZ King Salmon strongly opposes these suggestions, and we submit it
should be rejected by the Board:
(a)
ES 5 is considered appropriate for the sites in question (taking into
account Dr Keeley's and Mr Davidson's views on this, above), and
represents the maximum assimilative state within which material
continues to be taken up and broken down by benthic organisms.
NZ King Salmon has learned that so long as sites do not reach an
accumulative state then they can recover relatively quickly once a
farm is fallowed. In contrast, ES 3 represents a very low level of
enrichment that can be reached in naturally occurring conditions.
(b)
Operating the farms at ES 3 simply would not be economically
viable for salmon farming, and any condition imposing this would
amount to a backdoor means of turning down the Proposal. Mr
Keeley has estimated that restricting ES even to 4 would reduce
production by around 40-50%.260 He has not specifically calculated
the effects of reducing this to ES 3 but indicated that this would
mean a further substantial loss in production.261
9.20
It is not the case that a reduction in productivity would simply mean less
benefit to NZ King Salmon. As can be seen from the economic evidence,
reducing the production by half (or more) would also halve the economic
benefits for the region, because "value added" impacts are tied to production
levels.
9.21
One of the advantages of salmon farming is that it is a very efficient use of
marine space, compared with other kinds of aquaculture.
Such a strict
standard would undo this, and either mean that a greater area of farms would
be required to achieve the same production (with correspondingly greater
landscape and other effects), or that the farms would not be viable at all (in
which case there would be no benefits).
259
260
261
Exhibit Dawson 9.
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9.22
In cross examination it was suggested that Mr Keeley had been overly
pragmatic or commercially-minded in promoting ES 5.262
However, Mr
Keeley has considered the effects and reached the position that ES 5 is the
maximum acceptable level for the high flow sites, for the reasons explained in
his evidence. It is notable that ES 5 is stricter than the standards applying to
many of the Applicant's existing consents. While commercial imperatives
might favour adopting ES6 or even ES7, Mr Keeley has not supported such
an approach.
Comparison with Tasmanian Operations
9.23
As noted above, a further issue raised in this context was that standards
comparable to ES 3 were used successfully in Tasmanian operations.
However, international comparisons can be of limited value given that it is not
common for other operations to take measurements from directly below the
cages.263
9.24
After preparing a letter in regard to the Tasmanian example,264 Mr Keeley
later appeared via telephone to answer questions on the matter. He noted
that these operations were actually akin to the proposed Papatua farm, in that
they have a larger space or lease area within which the cages are allowed to
move around. However, the compliance monitoring station is 35 m from the
lease space, so depending on the size of the lease could be 50-200 m from
the cage edge, or possibly further.265 Mr Keeley indicated that in Tasmania
there are no regulatory requirements beneath the cages within the lease
areas.266
9.25
Accordingly, Mr Keeley considered that NZ King Salmon's proposed
monitoring method of taking measurements from the cage edge is actually a
far more stringent approach.267 He also expected that the Papatua site would
comply with the Tasmanian conditions (given deposition will occur primarily
within the farm site),268 and that the criteria would be met at most of the high
flow sites.269
262
263
264
265
266
267
268
269
Produced as Exhibit Dawson 4.
Hearing transcript for 12 October 2012, page 3553, lines 7 - 21.
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59
9.26
Finally, comparisons between the Tasmanian conditions and ES 3.0 (as that
standard is measured by NZ King Salmon) should be approached with
caution.
Mr Keeley explained to the Board that some of the particular
Tasmanian conditions (such as the formation of Beggiatoa mats) were
actually indicative of quite an enriched state, and might be more consistent
with ES 4 or ES 5.270 Finally, outgassing states that are used among the
factors to identify unacceptable effects by the Tasmanian standards is
representative of an environmental condition that is prohibited under the
proposed conditions for the NZ King Salmon sites.271
9.27
Accordingly, we submit that comparisons to a standard of "ES 3" being used
in other operations are misguided, and that for the foregoing reasons ES 5.0
is an appropriate standard for the proposed NZ King Salmon farms.
The Papatua site
9.28
It is proposed that ES levels at the Papatua site will approach or reach ES6
for brief periods. However, as explained in our opening submissions, this will
only occur for a short time immediately prior to rotation of the cages. As
explained further by Mr Keeley, this is considered an appropriate compromise
given the difficulty in keeping low ES levels at low flow sites.272
Conditions and adaptive management regime
9.29
NZ King Salmon proposes an extensive and robust adaptive management
regime to manage the effects of the proposed farms, including effects on the
seabed.273
While some submitters expressed concerns about the
effectiveness of these measures, the expert witnesses for NZ King Salmon
remain confident that they will allow significant effects to be effectively
identified and managed.
9.30
Mr Davidson confirmed to the Board that he was happy with the proposed
monitoring conditions.
He also confirmed that the references in the
conditions to monitoring in "habitats that support notable biological features"
was sufficiently clear because these could be easily identified.274
270
271
272
273
274
Keeley EIR, para 127.
The proposed mechanisms are discussed further in the "conditions" section of these
submissions below.
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Views of other witnesses
9.31
Other witnesses presented a number of different views to the Board, as well
as some physical samples of benthic mud and seawater.
We submit that
such samples are of limited assistance to the Board, especially when
compared against the expert evidence of Mr Davidson, Dr Taylor, and
Mr Keeley.
Dr Shaw Mead
9.32
Dr Mead has a background in coastal oceanography and marine ecology, and
has published extensively on the subject of surf breaks.275 However, he does
not have significant experience pertaining directly to the issues at hand
relating to benthic enrichment effects from finfish farms.
9.33
Notwithstanding this, Dr Mead expressed concern in respect of the level of
enrichment and loss of species diversity that may occur underneath the
salmon farms. It is clear however that even if ES 5.0 is reached underneath
the farms, the affected area of the seabed will be small in context and that the
habitats affected are found widely distributed across the Sounds.
9.34
Perhaps surprisingly, Dr Mead considers that it would be better to
concentrate the benthic deposition on a smaller area (but presumably at a
higher ES level):276
As an ecologist I would prefer the minimal change in both size and
enrichment which is why I was talking about identifying the already
naturally enriched bays which have a low flow and it may be at
odds with nutrient dispersion but it is not at odds with the impacts
on benthos. Where there is a low flow we concentrate those
impacts to a small area and if we have already got a high
enrichment naturally we reduce the amount of change by doing
that.
9.35
However, the Board has heard from the expert witnesses for NZ King Salmon
that in terms of environmental impact it is preferable to utilise higher flow sites
so that deposited material is not concentrated leading to a higher ES level. 277
The water column experts also support this view.
9.36
We also submit that Dr Mead's views can be of only limited assistance to the
Board, given that they are largely based on viewing the videos presented by
275
276
277
Hearing transcript for 31 August 2012, pages 493 - 497.
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Mr Boulton rather than firsthand experience, and because he has not carried
out any field work in the preparation of his evidence.278
Mr Baxter
9.37
Mr Baxter also presented evidence on the nature of the benthic environment
and the implications of the deposition associated with the proposed farms.
He approached this from the perspective of marine ecological components of
natural character.279
To the extent that Mr Baxter's evidence pertains to
benthic effects of the proposed farms it is notable that Mr Baxter's evidence
was (as he acknowledged) a desktop analysis,280 and that he had not
undertaken any field work or dives in the preparation of his evidence.281
9.38
Mr Baxter also agreed that he had nowhere near the level of experience of
diving in the Sounds possessed by Mr Davidson.282 Accordingly, we submit
that the evidence of Mr Davidson and the other NZ King Salmon witnesses
should be preferred by the Board.
Mr Boulton
9.39
Mr Boulton is not an expert witness in this field.283 The videos produced by
Mr Boulton are undoubtedly impressive (visually), however the Board simply
cannot have any confidence that they actually relate to the areas that will be
affected by the proposed salmon farms. We submit that the Board was right
to be cautious in this regard.284
Mr Janssen
9.40
Mr Janssen also provided evidence on the benthic effects of the Proposal, but
his experience lies primarily in terrestrial ecology and permaculture rather
than underwater benthic environments. While he may be promoted by his
counsel as a scientist of the "new variety",285 that does not qualify him to give
evidence on everything. The more directly relevant expertise of the NZ King
Salmon witnesses should be preferred.
278
279
280
281
282
283
284
285
We address Mr Baxter's evidence later in these submissions in the context of "landscape
issues".
Hearing Transcript for 31 August 2012, page 569 lines 7 - 17.
As acknowledged by Mr Heal: Hearing transcript for 3 September 2012, page 647 line 5.
Opening legal submissions for SoS, para 11.14.
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Conclusions on this section
9.41
In light of the foregoing, we submit that the expert evidence for NZ King
Salmon should be preferred, and the Board can have confidence that:
(a)
The Proposal will not have any significant effects on ecologically
high-value or unmodified sites.
(b)
Deposition impacts, where they do occur, will represent an
appropriate balance between minimising effects and enabling
efficient and productive use of the marine resource.
(c)
The benthic effects of the Proposal will be the subject of ongoing
and thorough monitoring, and can be effectively managed if
threshold levels are reached or exceeded.
10.
WATER COLUMN/FAR FIELD MARINE EFFECTS
10.1
Before the start of the hearing, it appeared as if the evidence and issues
relating to water column effects could be difficult to resolve, with a large
number of experts produced on the matters. NZ King Salmon had three
experts:
(a)
Mr Knight, a modelling expert who had applied a number of models
to help evaluate the potential for adverse effects on the water
column. The particular model which attracted the most attention
was his "SELFE" model, which predicted how a tracer or dye might
be transported from the proposed farms around the Sounds waters
to help understand how nutrients from the farms might be dispersed.
(b)
Dr Gillespie, who undertook a wider evaluation of likely effects, but
whose work was partly informed by the modelling undertaken by Mr
Knight. He was able to put the modelling into a real world context
based on his 30 plus years of experience, including significant
experience in the Sounds.
(c)
Mr MacKenzie, an expert in HABs. He also had regard to the work
of Mr Knight and Dr Gillespie, but drew primarily on extensive
literature reviews and his own investigations of HAB events
including in the Sounds (also over a 30 plus year period of
experience).
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10.2
Other parties called:
(a)
Dr Hartstein, an expert from DHI in Australia. He promoted the
"MIKE" model in respect of water column issues.286
(b)
Dr Longdill, an expert from COWI, based in Qatar. He promoted a
full biological or food web model, over the tracer model used by
Cawthron.
10.3
The Board also appointed its own peer reviewers on water column issues:
(a)
Dr Broekhuizen, from NIWA.
His expertise was in ecological
modelling.
(b)
Dr Hadfield, also from NIWA.
His expertise was in numerical
hydrodynamic modelling.
10.4
A Dr Henderson also participated in the water column expert caucusing. His
background is in aquatic ecology, modelling and statistical analysis of
ecological and environmental data. Dr Henderson focused his evidence on a
statistical analysis. He is also a landowner in the Sounds.287
10.5
However, the issues narrowed considerably as a consequence of the expert
witness conferencing, with the experts producing a joint witness statement on
12 August 2012. That joint witness statement actually showed a high degree
of agreement amongst the experts.
10.6
Importantly, all experts except for Mr Henderson (and Dr Hadfield who
abstained on that issue), were agreed that:288
... at a Sounds-wide level there is unlikely to be a change in the
water column from mesotrophic/oligotrophic state to eutrophic state
from the establishment of the salmon farms.
10.7
While the experts also agreed, at a smaller scale, that the greatest potential
for adverse effects such as HABs was in side embayments close to the farms
off the main channels,289 Mr MacKenzie remained confident that the
proposals would not cause HABs.290
286
287
288
289
290
His extensive literature review and
He also applied a different depositional model, ECO Lab, as an alternative to the
DEPOMOD model used by Cawthron.
Henderson EIC.
Joint witness statement, Annexure A, Row 2 Scale/Extent of Effects: Mr Henderson stated:
non-linear responses may occur, and Sounds wide scale is uncertain.
Joint witness statement.
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investigations of HABs occurring in the Sounds has led him to the opinion that
the evidence is that finfish farming at the scale proposed and in the
environment of the Sounds will not cause HABs. If there were any such
evidence then he would have uncovered it (if not then the many other experts
called in respect of the proceedings).
10.8
The experts were also largely agreed that:
(a)
For the scenarios modelled, the model likely overestimates farm
derived TN increment in the far field, subject to uncertainties in the
hydro-dynamic model.
For those scenarios modelled the model
overestimates cholorophyll-a increments in the near and far field in
all but exceptional circumstances. It does not address the issue of
plankton community structure that needs to be monitored.291
(b)
Dr Broekhuizen's summary was accepted, save in respect of Port
Gore, which Mr Knight, Dr Gillespie and Mr MacKenzie considered
was sufficient.
10.9
Importantly, not one of the modelling experts maintained a position that the
Proposal should be declined because of any data or modelling issues.292
Clearly, the more baseline data obtained and the longer baseline monitoring
that occurs, the better. These are matters that need to be considered in the
baseline and adaptive management regime enabled under the plan change
and consent conditions, but are not, it is submitted, barriers to approval of the
proposal in themselves.
10.10
The Board is also able to put the concerns of the modellers in context, which
includes:
(a)
The highly competitive nature of the modelling world, where each of
DHI, COWI, NIWA and Cawthron could, if the proposal is approved,
all tender for the monitoring and consent compliance work, whether
for NZ King Salmon, the Peer Review Panel, or as peer reviewers
for the Council.
291
292
Joint witness statement, Annexure A, Row 4 Modelling Accuracy: Agreed by MacKenzie,
Knight, Hadfield, Gillespie, Longdill, Harstein (in part). Broekhuizen stated: in the mid-field
agrees with overestimation but not in the far field due to uncertainties in the model.
Hartstein stated: Alternative modelling shows higher levels in the near field. Henderson:
outside area of expertise.
Dr Longdill remained concerned about Port Gore, particularly as expressed in Cameron
Exhibit 2. However, he did not emphasise this in presenting his evidence at the hearing.
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(b)
The wider, practical realities. While it would be ideal to have 10
years of baseline monitoring,293 it is completely unrealistic to expect
a private applicant to undertake that task, and particularly when they
would have no certainty that after undertaking that monitoring they
would have priority to apply or that approvals would ultimately be
granted. Dr Longdill for the Minister of Conservation acknowledged
that data can be sourced from the last few years and used in place
of data (collected specifically for this application) from this point
forward to establish a baseline.294
10.11
It is also important at the outset for the Board to understand two matters in
relation to other applications for salmon farms and the existing environment
that are relevant to water column effects:
(a)
As the Board is aware, the consent granted for the conversion of a
mussel farm Melville Cove, Port Gore into a salmon farm will not be
taken up by the consent holder. Instead the consent holder has
entered into a long-term arrangement such that the site will be used
for farming mussels.295
The conditions of consent for that farm
allowed an initial feed discharge of 1,000 tonnes, which will no
longer form part of the existing environment in terms of nutrient
loadings in Port Gore.296 When considering the effects on the water
column of NZ King Salmon's proposed maximum initial feed
discharge of 2,000 tonnes at Papatua therefore, the Board no longer
needs to add this discharge on to the previously consented
discharge for the Melville Cove farm.
(b)
There are two other relevant applications to convert mussel farms
into salmon farms: one by KPF Investments Limited for a site in Port
Ligar which was lodged with the Council after NZ King Salmon
lodged its application with the EPA on 3 October 2011;297 the
second by Ngai Tahu for a site in Beatrix Bay lodged with the
Council on 19 December 2011.298 There is no argument that NZ
King Salmon's Proposal has priority over these applications.
293
294
295
296
297
298
As
Hearing transcript for 30 August 2012, page 389 lines 24 - 30: Dr Longdill has not himself
reviewed the MSQP data.
Exhibit Dawson 3.
Conditions of Consent Coastal Permit U100287, produced by Mr Marchant on 2 October
2012.
Application for Resource Consent U041475.
Application for Resource Consent U110680.
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such, these applications and the potential addition to nutrient levels
in the relevant parts of the Sounds do not form part of the existing
environment upon which the Board must assess this Proposal.
10.12
In our submission, overall, and on the basis of this evidence, there is no
"water column" reason to decline the Proposal, and the Board can focus its
consideration on water column issues on the conditions, to ensure that
appropriate and effective baseline information is obtained, monitoring occurs,
and responses can be made to adaptively manage any effects that do occur.
10.13
The balance of these submissions on this topic addresses the following more
specific water column issues:
(a)
Baseline information and monitoring.
(b)
The setting of objectives and thresholds.
(c)
The precautionary approach.
(d)
Adaptive management and response to any breach of the
thresholds.
Baseline information and monitoring
10.14
The experts are all agreed that the unavailability of certain background data
had introduced uncertainty in the interpretation of the modelling results.299
However, that does not mean that there is insufficient data to proceed at all.
10.15
The additional data that has been mentioned by the experts appears to be in
at least two sets.
Some data is "MSQP" data, collected for the mussel
industry at 27 sites in the Sounds.300 That data can be made available for
commercial rates, should the application be successful.301
Likewise, the
other data held by NIWA can be made available that would be a matter of
commercial negotiations.
10.16
Even if that data is not made available, a robust year-long water-column
baseline monitoring proposal is required to be developed before any stocking
can occur. (Two years is proposed for Papatua, in recognition of some of the
concerns raised by the Minister of Conservation as to limited data for Port
299
300
301
Joint witness statement, Annexure A, Row 1 Background Data.
Shown in Appendix 3 to Mr Gillard's EIR.
Email from NIWA representative Helen Smale to Mark Gillard, dated 19 September 2012.
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Gore, over and above the more general data concerns for the balance of the
sites.)
10.17
As required in Condition 77(c), baseline monitoring with regard to water
column monitoring is required in the following locations:302
(a)
Near-farm locations within 1km from the net pens;
(b)
Locations within regions that are expected to have the greatest
potential for farm-related cumulative enrichment effects (particularly
where farms are located in proximity to one another and/or as
indicated by spatially explicit nutrient modelling);
(c)
Locations further away from farms or groups of farms in regions that
are expected to have progressively lesser farm-related cumulative
enrichment effects (as indicated by spatially explicit nutrient
modelling);
10.18
(d)
Locations that are identified as being of high ecological value;
(e)
Within the inner Sounds; and
(f)
Near the entrances to Cook Strait.
Ms Cameron appeared to accept that there could be 20 or more monitoring
sites per farm (although some sites may be able to be shares).303
10.19
There has been some discussion by the Minister of Conservation's
representatives as to the role of the spatially explicit model that has already
been undertaken in respect of locating some of the monitoring points. Some
of the conditions do refer to "as indicated by spatially explicit model".304
10.20
Clearly, a substantial amount of work has already gone into the modelling,
and Cawthron at least consider the model able to assist in locating places for
monitoring, particularly given their emphasis on looking to identify gradients,
given that "control" sites (or "reference" sites) may be difficult to locate
because of the diffuse nature of the dispersion of nutrients.
Dr Longdill
seemed to acknowledge that looking for gradients could be useful.305 The
302
303
304
305
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 77(c)(i) - (vi).
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 77(c)(ii).
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issue may be resolved by referring in the condition to "best practice
modelling", as suggested in the Minister's closing submissions.306
10.21
In any event, as proposed, whoever is appointed by the consent holder will
need to consider the final detail of the monitoring locations in accordance with
the conditions of consent. Their views will be reviewed by the Peer Review
Panel, who is specifically tasked with considering whether any further
modelling is required.
Any decision on whether more modelling is to be
undertaken will ultimately be reviewed by the Council, who may have their
own peer review. If, having looked at the detail of any additional data and the
design of the proposed monitoring, the Council is not satisfied that the
monitoring locations are sufficient to achieve the objectives, then they can
intervene, through enforcement or a review of the condition.
10.22
In terms of frequency of monitoring at the relevant locations (once resolved
through the above process), monitoring is proposed at least monthly. Again,
while some of the modellers and the Minister's planner want 2 weekly
monitoring, that is simply unnecessary, given the data obtained to date and
the additional data that is likely to be acquired, the fact that the key water
column trends are seasonal (if not yearly, or longer), and because sufficient
information will be captured with fortnightly surveys. No consideration has
been given to the significant additional cost but limited benefit of weekly
monitoring. Finally, if the peer review panel thought 2 weekly monitoring
necessary, then it could effectively be imposed through the review process in
any event.
The setting of objectives and thresholds
10.23
There has been some debate, and criticism, over the proposal to set
"objectives" for the water column thresholds now, and leave the determination
of the specific thresholds to the relevant management plan (initially "Baseline
Report"). We can appreciate the scepticism of some parties in that approach,
but reject it as overstated. Certainly, the approach is entirely lawful. This is
because the consent conditions will set very clear "objectives" which could
more appropriately be called Qualitative Water Quality Standards.
As
developed through witness conferencing these Qualitative WQS (as preferred
by NZKS) are:307
306
307
Closing submissions for Minister of Conservation, para 17.
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 51(a) (e), as preferred by Ms Dawson.
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(a)
To not cause an increase in the frequency or duration of
phytoplankton blooms (i.e. chlorophyl a concentrations ≥5 mg/m3).
[Note: water clarity as affected by chlorophyl a concentrations is
addressed by this objective];
(b)
To not cause a change in the typical seasonal patterns of
phytoplankton community structure (i.e. diatoms vs. dinoflagellates),
and with no increased frequency of harmful algal blooms (HABs)
(i.e. exceeding toxicity thresholds for HAB species);
(c)
To not cause a reduction in dissolved oxygen concentrations to
levels that are potentially harmful to marine biota. [Note: Near
bottom dissolved oxygen under the net pens is addressed
separately through the EQS – Seabed Deposition];
(d)
To not cause an elevation of nutrient concentrations outside the
confines of previously documented natural variation for the location
and time of year, beyond a mixing zone of 250m from the edge of
the net pens;308 and
(e)
To not cause a persistent shift from a mesotrophic to a eutrophic
state.309
10.24
Far from being vague or simply "aspirational", the conditions will clearly
identify what outcomes or standards are to be achieved. They have also
been closely developed from what the modelling experts agreed in the joint
witness statement (which some later acknowledged may need some
finessing). Given the clarity in the Qualitative WQS, it is entirely appropriate
that the precise means of achieving them (through adopting numerical
"thresholds" or Quantitative WQS) be left to a later management plan. If the
consent holder ultimately rejected the recommendations of its Peer Review
Panel and proposed Quantitative WQS that the Council was concerned could
not achieve the Qualitative WQS, then the Council would be entitled to
intervene, through enforcement or prosecution, or a review of the conditions.
308
309
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 51(d):
Anna Cameron, planner for the Minister, prefers "established" rather than "previously
documented".
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 51(e):
Anna Cameron prefers "statistically significant" rather than "persistent".
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Arguably, the Council would have a duty to do so – councils are generally
considered to have a duty to ensure consent conditions are upheld.310
The precautionary approach
10.25
The precautionary approach, as it might be considered in respect of the water
column issues, is inherent in:
(a)
the requirement for additional baseline monitoring over the period of
a year (two for Papatua);
(b)
the peer review panel process;
(c)
the supervisory role that the Council is required to take in setting
thresholds to achieve the specific water column objectives;
(d)
the limits on initial maximum feed discharges (which have also been
reduced for Papatua, out of an abundance of caution);
(e)
the thorough review and requirements that need to be met before
any further increase is allowed (a steady state of three years feed
discharge is required before any increase can occur); and
(f)
the adaptive management response proposed to any breaches of
the thresholds set. This is addressed below.
Adaptive management and response to any breach of the thresholds
10.26
The requirements for the consent holder in the event that a threshold is
exceeded is set out in Condition 52.
10.27
The first requirement is further monitoring and/or analysis to determine
whether the operation of the farm is causing the exceedence of the relevant
water column thresholds.311
10.28
If it is, then a response is required.
There remains some differences in
opinion as to how swift the response should be, with the Minister of
Conservation advocating for a 2 month timeframe to return to compliance.
The desire for quick action is admirable, but it ignores several key practical
issues.
310
311
Nelson City Council v King DC Nelson CRI-2008-042-144, 13 May 2008 at [66]. See also
Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (CA) at [73] - [76].
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 52(d)(i).
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10.29
The first is that many of the thresholds will relate to specific conditions in
specific locations at specific times, given the variability of water column
conditions across seasons. It is likely, if a breach is determined, that it will
have remedied itself within two months in any event. The key will be working
to ensure that it does not happen again, which may require more considered
action than an instant reduction in feed or destocking.
10.30
The second practical issue is that it is not a simple matter to reduce feed or
destock a farm. Reducing feed means that fish will starve, which is an animal
welfare issue. Section 10 of the Animal Welfare Act 1999 requires that an
owner and anyone in charge of an animal to meet the obligation of ensuring
the physical, health and behavioural needs of animals are met, and this
includes "proper and sufficient food...".312
Destocking might be achieved
through moving fish to another farm, but that assumes that action will not
cause any compliance or effects at the other farm – and that there is capacity
available.
If fish cannot be moved then they can only be destocked by
harvesting early, which in reality means killing fish and dumping them in an
approved landfill. Unless they are close to harvest size already, it is simply
not economic to do anything else with them. In terrestrial farming systems,
we are not aware of any practice of slaughtering cattle, simply because some
discharge requirements may not have been met.
10.31
The approach proposed by NZ King Salmon313 provides as a second level
response (once the salmon farms are confirmed as the cause of noncompliance) that a plan of action be produced as soon as practicable. Such a
plan would provide clear timeframes to reduce effects and achieve full
compliance, through reduced stocking on the farm following the next harvest
on that farm.
10.32
NZ King Salmon takes compliance issues very seriously and would move as
quickly as practicable in the circumstances to remedy the non-compliance in
question.
However, given that most water quality measures will be
seasonable and in light of the factors outlined above, from a planning
perspective it is considered that the best approach is to require a response
that is relevant and appropriate in the circumstances.
312
313
The nature of the
Animal Welfare Act 1999, s 4.
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 52 as
proposed by Ms Dawson and Mr Eccles.
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response can be clearly defined, depending what threshold is not met, in the
relevant Baseline Report and each Annual Report.314
10.33
Once again, if the Council considers that NZ King Salmon is moving too
slowly in responding to a non-compliance event then it will have the ability to
intervene through enforcement action or review of the conditions.
Conclusions
10.34
The Board can be assured that while water column issues will need to be
managed through the monitoring conditions and adaptive management
regime, they are not a reason to decline the Proposal.
In particular, we
emphasise that:
(a)
The modelling adopted by Cawthron has been appropriately
conservative, in the sense that it has overestimated rather than
underestimated the likely nutrient enrichment effects from the
Proposal;
(b)
None of the modelling experts now suggests that the Proposal
should be turned down on the basis of its water column effects;315
(c)
Robust baseline monitoring is proposed, including for two years at
the Papatua site;
(d)
The proposed conditions include clear objectives to be met, with the
precise means of achieving those objectives to be specified in a
later management plan. The management plan will be subject to a
peer review process and the Council will be able to intervene if it is
concerned that the objectives are not being met;
(e)
Robust adaptive management measures are proposed in the event
that a threshold is exceeded; and
(f)
Overall, the approach to water column issues is consistent with the
precautionary approach as that concept applies in the RMA context.
314
315
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 52(d).
Although Dr Longdill's reservations in respect of Papatua are acknowledged, they are
addressed by a larger baseline monitory requirement and a lower initial feed discharge.
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10.35
Accordingly, we submit that the Board's focus in respect of water column
effects should be on conditions, a topic that we return to later in these
submissions.
11.
OTHER DISCHARGES TO WATER
Copper and Zinc
11.1
Some submitters raised concerns in relation to the potential bioaccumulation
of copper and zinc beneath the proposed farms, which were followed up by
questioning of Mr Preece.316
11.2
As stated in opening submissions, Mr Sneddon's expert evidence is that:317
… the level of copper and zinc accumulation expected at high flow
sites is unlikely to result in sediment concentrations of bioavailable
metals which cause a significant toxic effect, even after cessation of
farm operation.
11.3
Comprehensive monitoring conditions are proposed in any event. In addition,
the level of copper and zinc accumulation should reduce even further given:
(a)
the recent change to use of organic forms of zinc in feed; and
(b)
the recent trials undertaken by NZ King Salmon using predator nets
without copper based anti-foulants, which it intends to implement at
the new salmon farms.
11.4
No other party filed evidence on such matters, nor did anybody choose to
challenge Mr Sneddon's expert evidence on this issue in cross examination.
Copper and zinc related questions were instead directed toward Mr Preece
who, while having considerable knowledge in respect of all facets of operating
a salmon farm, is not an expert on chemical substances. The only questions
Mr Sneddon was asked at the hearing were from Commissioner Beaumont in
relation to the trigger levels and action levels in the ANZECC Guidelines for
copper and zinc.318 Accordingly, the Board can be satisfied that the new
salmon farms will not cause adverse bioaccumulation of copper and zinc.
Greywater
11.5
Concerns were also raised in respect of greywater discharges. On this, the
Board has heard Mr Barter's evidence that the quantity and content of the
316
317
318
Hearing transcript for 5 September, pages 892 - 896 and 918 - 920.
Sneddon EIC, para 57.
Hearing transcript for 6 September 2012, page 992 from line 15.
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proposed greywater discharges are such that any effects are unlikely outside
a radius of only a few metres from the discharge point.319
11.6
During the course of energetic cross examination by Mr Caddie, Mr Barter
confirmed that greywater is 99.9% water and the conservative daily quantities
of greywater discharge on which he had based his assessment were
equivalent to running a garden hose for half an hour, which is not a large
volume over the course of a day.320
11.7
The Board can have confidence in Mr Barter's assessment that, overall, the
potential adverse effects of greywater from the proposed farms will be
negligible.321
12.
BIOSECURITY/DISEASE
Introduction
12.1
Biosecurity and disease has been raised by various submitters and in
evidence based on the following concerns:
(a)
the Waihinau Bay mortalities earlier in the year;
(b)
diseases known to affect salmon farming ventures overseas; and
(c)
the contention that increased salmon farms in an area increases the
chance of a disease developing.
12.2
As set out in opening, the marine biosecurity risks of the NZ King Salmon
Proposal (over and above those that are attributable to existing activities in
the Marlborough Sounds) are very small.322 However, as acknowledged by
Dr Diggles, no expert can use a "crystal ball" to look into the future.323 If the
appropriate steps are taken, then the evidence confirms that the Proposal can
proceed and be undertaken in a manner that is responsible and
environmentally sustainable.324
Substantial agreement on key issues
12.3
Substantial agreement on many key considerations was reached by the three
expert witnesses, Dr Forrest, Dr Diggles and Dr Krkosek (for Sustain our
319
320
321
322
323
324
Barter EIC, para D.
Hearing transcript for 5 September 2012, page 952 from line 40.
Barter EIR, para E.
Opening submissions for NZ King Salmon, para 15.4.
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Sounds) as evidenced by their Joint Witness Statement.325 This included
agreement that:
(a)
There will be no risk from importation of roe and feed as the draft
conditions of consent and standards in the proposed plan change
prohibit imported roe being used, and imported feed is controlled by
Import Health Standards.326
(b)
There is currently minimal risk of antibiotic resistance due to low
usage (none has been used since 2000). This is unlikely to change
if current levels of usage continue. And in the event that bacterial
disease does become problematic in the future, then vaccination is
the recommended course of action.327
(c)
The current status of infectious disease with salmon in New Zealand
is enviable by international standards - most of the pathogens that
are known to cause problems overseas are not known to occur in
New Zealand.
There are very few infectious diseases in New
Zealand that have caused production losses in New Zealand sea
cage salmon farming.328
(d)
Though experts can never be 100% certain of what will happen in
the future, analysis can be undertaken based on best available
information and overseas experience. The disease status of salmon
in New Zealand may change in the future due to:
(i)
incursion of an exotic disease at the border; and
(ii)
host switching of endemic parasites (eg transferring from
native fishes to salmon).329
(e)
If stocking densities remain unchanged (which is intended to be the
case), it is unlikely that existing disease agents will become
problematic (all else being equal).330
325
326
327
328
329
330
Joint statement of disease risk / biosecurity experts (Barrie Forrest, Benjamin Diggles,
Martin Krkosek) dated 5 September 2012.
Joint Witness Statement, Annexure A, page 1, Row 1.
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(f)
At the whole of the Sounds scale, the three farm management areas
are likely to have very low epidemiological connectivity due to the
large buffer zones that exist between them.331
Marine pests
12.4
The marine biosecurity risks of the NZ King Salmon Proposal remain very
small.
Dr Forrest addressed marine pests in his evidence, and the
submitters' concerns mostly centred on sea squirts. Dr Forrest confirmed his
view that:332
the incremental effect of the proposal will be so small that it is
unlikely to have any appreciable bearing on the ultimate distribution
or impact of marine pests within suitable habitats in the Sounds. It
is likely that pest species will expand to occupy susceptible habitats
in the wider area, irrespective of whether the proposal proceeds.
12.5
Any residual biosecurity issues will be addressed through a Biosecurity
Management Plan as part of proposed conditions.333
The "Biosecure Approach"
12.6
NZ King Salmon has introduced the concept of three "management areas" for
the proposed new salmon farms in the Marlborough Sounds, termed as a
"Biosecure Approach". This will include buffer zones that encompass an area
or a distance that is empirically shown to prevent transmission of all known
disease agents.334 Dr Diggles confirmed that this technique is renowned to
be world's best practice in salmon sea cage farming.335 The Ministry for
Primary Industries considers that the Biosecure Approach "signals the
importance that the company has placed on the biosecurity matters of its
business operations."336 This desire to have three biosecure areas is an
important factor behind the selection of the Papatua site in Port Gore.
12.7
Mr
Caddie,
representing
Kenepuru
and
Central
Sounds
Residents
Association, pointed out that in relation to the Waitata Reach farms, most
farms are less than 5 kilometres apart from the next closest farm site, and in
many cases are less than 2.5 kilometres apart.337 The implication of this was
331
332
333
334
335
336
337
Forrest, EIC, para D.
Forrest, EIC, para D.
Ministry for Primary Industries representation by Scott Gallagher (on 9 October 2012),
para 14. Hearing transcript for 9 October 2012, page 3356 lines 19 - 21.
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that this would lead to an increased likelihood of disease spread by virtue of
the farms being in close proximity, within the one biosecure area.
12.8
Of course there is always some level of risk involved. However, as stated by
Dr Diggles, the specifics of disease spread depend very much upon the
particular identity of the disease agent involved.338 The degree of connection
between the farms is uncertain (so even if there were a disease and disease
agents in one area, there is no guarantee that the disease would be able to
spread to the other areas) and increased risk, if any, will depend on several
factors (such as the nature of the disease agents of concern, the local
hydrodynamic conditions of how the water flows in the area, as well as farm
management practices at each individual farm).339
All of these factors
340
combine to determine the risk (if any) that occurs.
12.9
As discussed by Dr Diggles, the risk of disease transmission is dependent on
a variety of factors. As such, it is very difficult to produce a blanket statement
or conclusion regarding disease transmission as it will depend on the spatial
scales and the identity / characteristics of the disease agent in question.341
12.10
As Dr Diggles points out, however, you need a host and pathogen together in
the one place for all the processes to start. In most instances New Zealand
does not have the pathogen. Therefore in regards to the chances of disease
transmission (when the pathogen is not present), Dr Diggles pointed out
that:342
If you have zero and you multiply that by ten you still get zero. You
can have zero and multiply by 1000 and you still get zero.
12.11
Some of the processes that Dr Krkosek discusses assume the presence of a
known pathogen and that is how his modelling works. But the modellers
need the problem to occur first before they can work with it. In regards to sea
lice (which is where Dr Krkosek's main expertise is, from Canada) there are
no sea lice present on the fish in New Zealand so there is no process to start
with.343
338
339
340
341
342
343
Hearing transcript for 6 September 2012, page 1034 line 46 and page 1035, lines 1 - 5.
Hearing transcript for 6 September 2012, page 1046 lines 1 - 45 and page 1047 lines 1 - 4.
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Stocking densities
12.12
In terms of worldwide standards, Dr Diggles confirmed that a figure of 25 kg
of biomass per cubic metre of pen or seawater is a reasonable stocking
density.344 NZ King Salmon is operating their farms throughout the entire
cycle at levels that are at or below that mark.345
Antibiotics
12.13
The use of antibiotics by NZ King Salmon was addressed in cross
examination.
Submitters have objected to the placement of prophylactic
chemicals, drugs, pesticides in salmon feed to control disease. Dr Krkosek
suggested that likely increases in antibiotic use and consequent increases in
levels of antibiotics in the marine environment associated with the proposed
expansion by NZ King Salmon were potential risks that may need to be
considered in "more detail".346 To clarify, the application in front of the Board
is based on current use not "past use".347 A small amount (52kg) was used
over a decade ago (in the year 2000).348 NZ King Salmon does not currently
use antibiotics,349 nor does it does plan to do so going forward. Any risk of
antibiotic resistance, therefore, becomes moot. In addition, as confirmed by
Ms Dawson antibiotics use was explicitly not part of the application, so if they
were to be used, a consent would be required.350
Assessment of normal mortality rates
12.14
Mr Brown, the expert veterinarian, has presented information regarding
normal mortality rates to the Board.351 Mr Brown confirmed his opinion that
the Waihinau Bay mortalities were not attributable to farm management or
disease, but were the likely result of an "algal bloom event that was
undetected by monitoring, but still sufficient to affect the fish".352
12.15
Overall, he stated that:353
NZ King Salmon is a very responsible operator and has adopted
industry best practice (or better) in its management and handling of
fish stock.
344
345
346
347
348
349
350
351
352
353
Hearing transcript for 6 September 2012, page 1035 lines 22.
Krkosek EIC, para 23.
Hearing transcript for 15 October 2012, page 3805 lines 28 - 45 and page 3805 lines 1 - 7.
Brown EIR para 3.1. Notwithstanding comments made by Dr Diggles that he was unaware
of whether NZ King Salmon had presented evidence on normal mortality rates.
Brown EIR, para 6.1.
Brown EIR, para 6.1.
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Lack of certainty regarding risks
12.16
A recurring concern from some submitters, and discussed collectively by the
experts, was that there may be previously unknown risks which will result
from expansion. As discussed above, the three expert witnesses collectively
stated that no expert witness can be 100% certain of unknown risks going
forward.354 Such certainty is not realistic. However, as stated by Dr Diggles,
NZ King Salmon can utilise the available information to predict what problems
may arise in the future and what they may look like. Best practice can be
adopted that places the appropriate contingencies in place, including
adopting the Biosecure Approach.355
12.17
Two of the expert witnesses (Dr Forrest and Dr Diggles) stated that the
disease status of salmon in New Zealand may change in the future due to
incursion of an exotic disease in the future, and host switching of endemic
parasites.356 Dr Krkosek maintained that in addition to these, it may change
due to increasing the regional density of salmonid hosts. He stated that this
was because disease transmission is a regional process and it is at that scale
that host density thresholds will likely occur.357 However, the likelihood of any
increased status of disease increasing by virtue of increasing regional density
is dependent on a variety of factors other than just proximity of salmon
farms.358 As detailed by Dr Diggles under cross-examination (and who we
suggest was an impressive witness):359
Dr. Krkosek is talking about interactions between the individual
farm scale in that next scale up and in that area there you cannot
make blanket statements about whether it is or is not because it
depends entirely on the identity of the disease agent that you are
talking about because each disease agent has different
characteristics and as I said earlier some are not transversible and
therefore some do not, some have direct lifecycles or live their
entire lives on the fish, others have other hosts which may or may
not be in the vicinity of the cages and so it is very difficult to come,
indeed impossible to come to a blanket conclusion about these
things because it is not a simple matter except to say that when we
are talking about some of the process Dr. Krkosek is talking about.
12.18
New Zealand is in an enviable position in regards to its national biosecurity
environment.
The Board should feel comfortable that the NZ King Salmon
proposal is not putting this environment at risk. As Dr Diggles stated, New
354
355
356
357
358
359
Hearing transcript for 6 September 2012, page1050 lines 22.
Joint Witnessing Statement, Annexure A, page 2 Row 4.
Joint Witnessing Statement, Annexure A, page 2 Row 4.
Hearing transcript for 6 September 2012, page 1046 lines 19 -34.
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Zealand has enough room to expand in a responsible and environmentally
sustainable way.360 This is what NZ King Salmon intends to do.
13.
PELAGIC FISH AND SHARKS
Wild fish and fishing resources
13.1
NZ King Salmon provided evidence from two experts (Dr Dempster and Dr
Taylor), both concluding that effects on pelagic fish stocks are likely to be
minimal. Theirs is the only expert evidence in respect of such effects and no
party challenged that evidence through cross examination.
13.2
Many parties did, however, raise concerns in submissions and non-expert
evidence that the Proposal may impact on wild fish stocks and both
recreational and customary fishing (indeed, it was a particular concern for
many tangata whenua submitters).
Common themes or claimed effects
include:
(a)
The loss of blue cod habitat.
(b)
The risk to abundance of blue cod and other pelagic fish, through
their attraction to waste food beneath the farms and predation by
salmon of the young fish.
(c)
The potential for several farms in close proximity to act as a predator
trap for wild fish migrating through Waitata Reach.
(d)
Feeding by wild fish around farms leads to increases in
contaminants and heavy metals in their flesh, essentially poisoning
these fish.
13.3
We will deal with each of the above concerns briefly in turn to remind the
Board of the only expert evidence before it on these issues, which in our
submission should be preferred.
Loss of blue cod habitat
13.4
Blue cod are a popular target for recreational fishers and have historically
been subject to over-fishing. Various bans and quota restrictions have been
imposed on blue cod fishing to respond to exploitation of this resource by
360
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recreational fishers, including the ban around Maud Island as raised by Mr
Connolly for Pelorus Boating Club.361
13.5
Dr Taylor describes the optimum blue cod habitat in his evidence in chief,
with reference to a recent study undertaken by a New Zealand fisheries
consultancy under contract to the Ministry of Fisheries:362
Essentially the study showed that 'the strongest signals of benthic
habitats disproportionately occupied by blue cod came from the
[heterogeneous] primary substrate, jagged bedrock/sand/shell
hash, and the secondary habitat structures tube worms, sponges,
and light macro algae, while blue cod were disproportionately
absent from the homogeneous primary substrate of sand (all
variations of) and areas absent of any secondary habitat structure'.
13.6
Relying on the evidence of Mr Davidson in respect of the substrate types
under the nine proposed salmon farms, Mr Taylor concludes that:
(a)
For all the sites in Pelorus Sound, and the Papatua site, the primary
substratum is mud and there is no evidence of any inter-related
heterogeneous primary substrate/secondary habitat.363
(b)
At the Kaitapeha site, the dominant primary substrate is mud, but
there is also an area of tubeworm secondary habitat inshore of the
16.5 ha plan change area boundaries.364
(c)
At Ruaomoko there is deep shell hash with tubeworm mounds within
the 14.1 ha application area but well outside the cage zone.365
(d)
At Ngamahau the primary substrate is dominated by mud and dead
whole and broken shell with an abundance of biogenic clumps
including sponges.366
13.7
Based on the above analysis, the only sites that showed any evidence of the
presence of blue cod preferred habitat were the Kaitapeha and Ruaomoko
sites in Queen Charlotte Sound and the Ngamahau site in Tory Channel. To
address potential effects at those sites (and at any other sites), NZ King
Salmon has proposed environmental monitoring, adaptive management and
reporting for all sites to ensure that the operation of any farm does not result
361
362
363
364
365
366
Exhibit Connolly 1.
Taylor EIC, para 107.
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in adverse effects to notable biological features within 1km of the farm
including any areas of blue cod habitat.367
The risk to abundance of blue cod and other pelagic fish, through their
attraction to waste food beneath the farms and predation by salmon of the
young fish
13.8
Some submitters are concerned that blue cod will be attracted to the salmon
farms by the feed not consumed by the salmon. NZ King Salmon's evidence
does not dispute that fish farms do attract aggregations of wild fish and do
modify the abundance, biomass, and species diversity of wild fish wherever
they occur. Given that loss of feed from NZ King Salmon's cages is relatively
low,368 the contribution of lost feed to such aggregation is, however, likely to
be small.
13.9
Dr Dempster comments on the risk to the abundance of wild fish through
aggregation around salmon farms in his evidence in chief:369
As farms are attractive to wild fish, they will continue to draw fish
into their vicinity where they can be fished, which could drive
populations down even further. Alternatively, if fishing is prohibited
from the immediate surrounds of the farm, this may allow the
enhanced condition that wild fish generate due to their association
with fish farms to translate to enhanced spawning success.
13.10
While it is not intended to impose a prohibition on fishing around the
proposed salmon farms, the Board has heard evidence from a number of
submitters that, for various reasons, they may not fish next to a salmon farm.
That is, of course, their choice and it is accepted that to the extent they would
have been deterred by the presence of a nearby farm, that is an effect of the
Proposal.
If this were to occur, however, this would effectively result in
enhanced spawning of wild fish which Dr Dempster considered a likely
outcome and a positive one if fishing does not occur around marine farms. At
least one submitter, whose views on the issue were misrepresented by Dr
Phillips, saw this as a positive of the salmon farms.370
367
368
369
370
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 70b.
A recent NIWA report (Cairney and Morrisey 2011) identified that when feed monitoring
systems function, feed loss from NZ King Salmon cages is low (0.1-0.3% of feed
delivered). These rates of feed loss are low when compared to the few estimates that
have been made elsewhere (ranging from 1.4 - 5% for Atlantic salmon production in
Norway).
Dempster EIC, para 59.
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The potential for several farms in close proximity to act as a predator trap for
wild fish migrating through Waitata Reach.
13.11
Submitters are also concerned that populations of wild fish which seasonally
enter and exit the Pelorus Sound will be depleted due to the fact that they will
have to pass through a "predator trap" in Waitata Reach that will be created
by the aggregation of predatory fish around the salmon farms proposed in
that area.
13.12
This issue is addressed succinctly by Dr Dempster in his rebuttal evidence:371
Further, while extensive studies indicate that predatory fish can
aggregate around salmon farms (Dempster evidence in chief
paragraphs 17-20), there is at present no evidence in the
international literature that salmon farms act as 'predatory traps' for
certain species of wild fish which seasonally migrate past salmon
farms.
13.13
If there was any such effect, we submit that it would have been identified in
the overseas studies.
Feeding by wild fish around farms leads to increases in contaminants and
heavy metals in their flesh, essentially poisoning these fish
13.14
Dr Dempster was clear in his view that feeding by wild fish around farms will
not result in those fish being poisoned:372
As outlined in the report (Taylor and Dempster 2012) and outlined
in my evidence in chief (paragraphs 34-47) certain contaminants
and metals increase in fish tissues while other contaminants and
metals decrease, relative to those found in wild fish that do not
interact with farms. For those contaminants and metals that were
found to increase, levels were below public health standards in the
countries where the findings were made. Given that levels were
below public health standards, this does not constitute poisoning of
the fish as suggested in the evidence of several submitters.
13.15
Research in Norway has indicated that there may even be positive outcomes
for wild fish associated with fish farms, in respect of one particular
contaminant compound (PFO) that is prevalent in fish:373
However, in Norway, non-farm associated wild fish had higher
levels of PFOs (a type of non lipid-soluble OHC) than farmassociated wild fish, suggesting that natural food contains higher
loads of this compound than the commercial feed used in salmon
farms. Salmon farms thus drove a decrease in the level of this
group of OHC contaminants in wild fish.
13.16
It is accepted that any such effects will be low, however, given how little feed
is actually lost in NZ King Salmon's operations.
371
372
373
Dempster EIR, para 3.3.
Dempster EIR, para 3.4.
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13.17
Notwithstanding these conclusions, NZ King Salmon has proposed extensive
monitoring and biological compensation conditions374 so that the Board can
have greater comfort that such effects, should they arise, will be identified
and managed appropriately.
Sharks
13.18
Mr Clinton Duffy was cross examined at length by Mr Boulton on the potential
impact that the salmon farms will have on shark populations in Waitata
Reach.
Mr Boulton's concerns stem from his perspective as a diving
business operator:375
So with that, if these farms are to be placed in the Waitata Reach
and we have a very deep bottom that runs in from Cook Strait at
60-odd metres, and we have fish, noise and everything that we
have outlined through this conversation, are we potentially putting
ourselves in a position if we are running a dive business through
the Waitata Reach of being more vulnerable to attack?
13.19
Mr Duffy's response was:376
As soon as I say this I'll be proved wrong, but there is no evidence
from New Zealand or anywhere else in the world of shark attacks
on people in the water near fish farms. It's not to say that it won't you know, it's like, a shark attack is like lightning, you never really
know where it's going to happen. I would say, I mean the sharks
that have been observed and reported in the Marlborough Sounds
are there naturally. They occur - they're there because there is lots
of wild fish food in the Sounds. There's also seals, for things like
Great Whites.
So there's already reason for sharks to be in Pelorus Sound, and
they were there before the salmon farms were in, and they'll, you
know, probably be there long after they're gone.
13.20
In response to a question from Your Honour, Mr Duffy suggested that while
the new marine farms may well attract sharks, they are unlikely to increase
the number of sharks present in the Pelorus Sound:377
I think what is most likely to happen, is you are likely to get sharks
around the farms. I don't think it will increase the number of sharks
using Waitata Reach or visiting Waitata Reach than there is
already, it would be like the effects on other pelagic fishes where
you see them, and it may result in them concentrating or
aggregating around the farms.
So there are pelagic sharks that already use the Waitata Reach
and Pelorus, bronze whalers and hammerhead sharks have been
recorded all the way up to Mahau Sound and almost to Havelock.
So there are those large pelagic sharks already using that
374
375
376
377
NZKS Proposed Conditions: Closing - 18 October 2012.
Hearing transcript from 6 September 2012, page 1008 lines 35 - 40.
Hearing transcript from 6 September 2012, page 1008 line 44.
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waterway, and what it is likely to do, what it is most likely to do, is
result in concentrations of the sharks around the farms themselves.
13.21
This suggests that the salmon farms may in fact reduce the number of sharks
swimming in other areas of the Waitata Reach away from the salmon farms
and it is likely that most people would not want to swim or dive near a salmon
farm, given their particular locations in deep water, some distance from the
shore. It follows that the probability of encountering a shark on such a dive
trip away from the farms must therefore also be reduced.
13.22
Mr Duffy was shown the video submitted in evidence by Mr James Buchanan
which showed a number of bronze whaler sharks swimming and thrashing in
the water next to the existing Waihinau Bay farm. Upon being asked to
comment on what might have encouraged the sharks to act in that manner,
Mr Duffy's response was that:378
That looked like there was bait in the water. I've never seen sharks
respond to a boat like that without there being some sort of bait in
the water.
13.23
Mr Preece confirmed in his evidence that NZ King Salmon has had a policy in
place since 2008 which has stopped the unauthorised feeding of sharks by
staff379 which suggests such shark activity around salmon farms is unlikely to
be caused by NZ King Salmon employees.
14.
MARINE MAMMALS
14.1
SoS, through cross examination and comments made by its experts, have
raised a concern that the Proposal will adversely affect marine mammals. Mr
Heal incorrectly and surprisingly put to Mr Cawthorn that he was primarily an
expert in seals, not dolphins and whales.380 Mr Cawthorn has specialised in
marine mammal research since 1963. His past (considerable) experience
has been both particular to the Marlborough Sounds, and wide-ranging, with
work undertaken nationally and internationally.381 Mr Cawthorn confirmed his
expertise in all marine mammals, including his participation in a recent three
year survey of Hector's dolphins in Clifford and Cloudy Bay.382
14.2
SoS did not present an expert on marine mammals, rather Mr Janssen could
only repeat concerns supposedly made by another expert, who has not been
378
379
380
381
382
Preece EIC (Operational Detail), para 78.
Cawthron EIC, para 1.
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a submitter or expert in the proceeding.383
The Board has received no
verification that this expert has any real concerns. Mr Heal put a number of
propositions to Mr Cawthorn that were not supported in his client's evidence
or other material before the Board, for example about dolphins struggling to
ball pilchards through marine farm structures.
Mr Cawthorn disagreed
384
explaining that:
The animals are much more adaptable than you [Mr Heal] seem to
be implying.
14.3
The Minister of Conservation engaged Mr Baxter to prepare evidence on
marine mammals. His evidence was consistent with Mr Cawthorn's evidence.
One matter that was raised was in relation to the level of detail required in the
Marine Mammal Management Plan.
proposed conditions.
14.4
This has been addressed in the
385
The marine mammals with the highest probability of interacting with the
proposed salmon farms are seals and dolphins.
Cawthorn remains of the view that:
In respect of seals, Mr
386
The present methods used by NZ King Salmon to mitigate seal
attacks on their farms/salmon have been very successful and
should be continued, these include continual improvements to
protection netting and farm maintenance practices.
14.5
Mr Cawthorn has explained in his evidence, and in cross examination, that
both seals and dolphins are able to adapt to new structures in the marine
environment.
Seals, are described by Mr Cawthron as "highly adaptable
intelligent species",387 and dolphins (and killer whales) are described as
"highly manoeuvrable animals".388 Mr Cawthorn usefully also explains that:389
Dolphins forage throughout the entire range of the Sounds and are
not necessarily restricted to specific areas.
14.6
In response to some particular concerns raised under cross examination, Mr
Cawthorn reiterated the statements in his evidence that:390
(a)
No particular vulnerability of Hector's dolphins (such as "habitat
loyalty") causes a greater concern in respect of the potential effects
383
384
385
386
387
388
389
390
Hearing transcript for 3 September 2012, page 420 lines 4 - 45; NZKS Proposed
Conditions: Closing - 18 October 2012, Condition 64 and 64A.
Cawthorn EIC, para 3(b).
Cawthorn EIC, para 3(a).
Cawthorn EIC, para 30.
Cawthorn EIC, para 33, Hearing transcript for 30 August 2012, page 425 lines 35 - 38.
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of the proposed farms on the endangered species, compared to
other species of dolphins.391
(b)
The Proposal is unlikely to have any discernible effect on Hector's
dolphins.392
(c)
It is unlikely that dolphins could be displaced from feeding areas
as:393
the area taken up by existing and proposed sites are
very small in the context of the Sounds as a whole.
(d)
Further, the high flow sites (for eight of the nine proposed farms) will
allow room for dolphins to swim underneath the predator nets, and
sufficient tension required at the low flow site Papatua will prevent
dolphin entanglement.394
14.7
Mr Preece has further confirmed that NZ King Salmon is committed to its
mitigation of any impact upon marine mammals, including consistently
responding to any unanticipated events that occur due to the operational
procedures of the farms.395 For example, NZ King Salmon's response in
2012 to juvenile seals being caught in mesh predator nets, is to move to the
implementation of a smaller net size for the predator nets used on the
farms.396
14.8
Based on the key points above, and lack of valid challenge to the evidence of
Mr Cawthorn's, the Board can have confidence in Mr Cawthorn's
conclusion:397
…the Proposal, as planned, is unlikely to have any discernible
effect on the populations of seals, dolphins and whale species
found in the Marlborough Sounds / Cook Strait area.
15.
SEABIRDS
King Shags - Te Kawau a Toru
15.1
The Board has heard from two expert witnesses on the assessment of the
proposed farms on the New Zealand King Shag - Te Kawau a Toru, which is
acknowledged as a taonga species for many Te Tau Ihu Iwi. Mr Schuckard,
391
392
393
394
395
396
397
Cawthorn EIR, para 3.6
Cawthorn EIC, para 32(b).
Preece EIR, paras 11.1 - 11.6.
Preece EIR, para 11.5.
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for SoS, considered that the Proposal has the potential to cause significant
adverse effects on King Shags.
15.2
The main concerns that Mr Schuckard has expressed are:
(a)
the water clarity will be adversely affected by the proposed farms,
particularly by an increase in chlorophyll a concentrations;
(b)
the wild fish population, especially of witch flounder, may be
depleted and this will affect the main feeding source of King Shags;
and
(c)
the proposed farms are too close to King Shag breeding and
roosting sites.
15.3
By contrast, Mr Sagar, a qualified and practicing scientist with over 35 years
of experience in seabirds, is of the view that:398
…the distance of the proposed salmon farms from breeding and
roosting sites and the insignificant proportion of the benthic
footprint of the farms in relation to the total area of the Marlborough
Sounds where NZ King Shags have been recorded to forage will
mean that there will be no discernible impact on the population of
this endangered species.
15.4
Mr Sagar accepted that King Shags could be described as a "canary in this
instance" in relation to impacts on the broader Sounds environment.399 Mr
Sagar also accepted that there are "gaps in our knowledge" in respect of the
biology of King Shags.400
However, he also explained that these
uncertainties are not so wide ranging as to justify adopting a highly cautious
attitude in respect of activities in some (rather than close) proximity to their
breeding grounds.401
15.5
Overall, Mr Sagar has been able to reach a firm conclusion that there will not
be an impact upon King Shags from the proposed farms and for the reasons
explained above and below, we submit that his evidence should be preferred
to that of Mr Schuckard.402 Mr Sagar's is based on the expert water column
398
399
400
401
402
Sagar EIR, para E; Hearing transcript for 3 September 2012, page 1145 lines 8 - 12.
Sagar EIC, para D.
Sagar EIC, para 4.14.
Hearing transcript for 7 September 2012, pages 1131 lines 18 - 19; Hearing transcript for
12 October 2012, page 3605 lines 4 - 8: In respect of the Kuku Mara cases mentioned by
Mr Heal for SoS, under cross examination Ms Dawson clearly distinguished the significant
difference in area of seabed that would receive deposits from proposed marine farms,
being 84.50 ha in Beatrix Bay, as opposed to a range between 0.75ha to 3.5ha at each of
NZ King Salmon's proposed farms (Preece EIC "Salmon Farming 101", page 19 Table 1).
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and pelagic fish evidence, along with the distance between the proposed
sites and the breeding colonies.403
Water clarity
15.6
It was put to Mr Sagar by counsel for SoS that a reduction in the water clarity
surrounding the proposed farms will significantly impact the King Shag
species as they are poor fliers and are restricted in the distance they will
travel to source food, and that they rely on clear waters to sight prey.404 This
question appears to stem from the graph that Mr Schuckard relied on,
depicting the impact of increased chlorophyll-a on diving depth of the blueeyed shag. Through re-examination Mr Sagar was given the opportunity to
assist the Board by commenting on the relevance of Mr Schuckard's graph:405
Yes, I do. After Mr Schuckard provided the reference I read that
paper and noted that it is based on scientific data collected in the
Weddell Sea, which is in the South Atlantic Ocean. I have spent
five summers there, cruising, so I am very familiar with the area.
It is an area below 60 degrees south so they have got
temperatures – just to put it into perspective here, it has got
temperatures of zero to one degrees centigrade, it is the
ocean, it is influenced by pack ice and there is no fresh
influence in that 20 area at all, it is well away from any land.
water
water
open
water
And this is rather in contrast I think to the Marlborough Sounds
which is, as we know, embayments which has got intrusions of
fresh water and detritus from the land and we have got rainfall as
well, and the 25 water temperatures are usually above 10 degrees
centigrade. And then within Beatrix Bay we know that 85 percent of
the suspended matter in the water column is detritus and a lot of
that comes from land based sources.
In other words, I think we have got two entirely different –well, I
know we have got two entirely different ecosystems here and it is
totally inappropriate to take the data from the Weddell Sea and just
transpose it into the Marlborough Sounds situation and say this is
how king shag hunting depth will change with increases in
chlorophyll-a 35 concentration.
15.7
As Mr Sagar succinctly stated in his rebuttal evidence:406
I have reviewed the evidence of Mr Rob Schuckard in relation to
aspects of the biology NZ King Shags and the potential effects of
NZ King Salmon's proposal on NZ King Shags. I remain of the view
expressed in my evidence in chief that the distance of the proposed
salmon farms from breeding and roosting sites and the insignificant
proportion of the benthic footprint of the farms in relation to the total
area of the Marlborough Sounds where NZ King Shags have been
recorded to forage will mean that there will be no discernible
impacts on the population of this endangered species.
403
404
405
406
Sagar EIC, para D.
Sagar EIR, para E.
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Feed
15.8
King Shags dive, using their feet, to feed on bottom-dwelling fish obtained
from a 20m - 40m depth. Mr Sagar described their diet as "varied".407 King
Shags do not have "visual acuity" - i.e they do not exhibit special
characteristics of being able to see especially well under water, or in the
dark.408
15.9
Mr Sagar did not accept that sedimentation would impact on the prey of King
Shags due to far-field effects (as explained in the evidence of Mr Keeley),409
and because the benthic footprints of the proposed farms are too deep for
King Shags to obtain prey from. Mr Sagar explained the high-flow of the sites
will assist to disperse material below the farms, reducing the potential
concerns of detritus developing, and affecting the benthos that the prey of
King Shags relies upon.410 Dr Dempster explains there is a benefit to wild
fish aggregation around sea-cage farms in that they provide an "ecosystem
service" by "assimilating nutrient wastes emitted by salmon farms".411 The
depletion of wild fish populations around the proposed farms (including witch
flounder and other species King Shags feed on) is not supported by the
evidence.412
15.10
Mr Sagar confirmed his scientific conclusion that the potential increase in
sedimentation in the benthic footprints of the farms does not represent a
significant loss of habitat for King Shags.413
Distance
15.11
The distance of the proposed sites to the breeding sites of King Shags are:414
Most of the population of these shags breed at just 5 sites (Figure
1): Duffers Reef, North Trio Island, White Rocks, Sentinel and
Rahuinui Island, with smaller breeding colonies at Squadron Rocks,
The Twins and Taratara, although birds bred at The Twins and
Taratara only in 2006. None of the nine new marine farm sites in
the Proposal is within 1 km of a current breeding colony of New
Zealand King Shags.
407
408
409
410
411
412
413
414
Hearing transcript for 7 September 2012, page 1129 lines 14 - 20: the diet of King Shags
consists of opal fish, witch flounder, lemon sole and sea perch.
Appendix 4 to the Assessment of Environmental Effects on the Proposal, October 2011,
page 21.
Dempster EIC and EIR; Taylor EIC and EIR.
Sagar EIC, para C.
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15.12
Mr Sagar expressed concern to the Board in respect of the proposed Papatua
and Waitata sites if a buffer zone were not to be implemented. However, the
conditions of consent discussed below mitigate this concern and Mr Sagar
has stated that he is satisfied with the 100 m buffer zone provided.415
15.13
Mr Heal also tested Mr Sagar on why King Shags prefer not to fly over land.
Mr Sagar considered that it lacked credibility to assume that it was because
they were poor fliers and explained that scientific thought considers it is due
to the factors below:416
Because they have a preferred habitat which is at sea and they –
seabirds are, shall we say, uncomfortable on land. They only go to
land when they absolutely have to, and that is for breeding and
resting.
15.14
That preference to fly over the sea will not be impacted upon by the proposed
farms.
The distance, structural nature and surroundings of the proposed
farms do not cause a reason for this to be a concern.417
Importance of site specific and species specific assessments
15.15
The relevance of the Firth of Thames paper produced by Mr Heal418 was
cautioned by Mr Sagar as the Firth of Thames is a significantly different
natural environment to that of the Marlborough Sounds.
As Mr Sagar
explained, it is a "matter of proportions" reliant on the different sources of
nutrient input (i.e natural and artificial). In addition, he stated that there is a
distinction drawn between differing environments and "everything has got to
be site specific and specie specific".419
Seabirds
15.16
In addition to concerns raised by Mr Schuckard and addressed above, the
four main concerns addressed by Mr Sagar, and raised in respect of seabirds
by submitters, have been:
415
416
417
418
419
(a)
entanglements in the net;
(b)
attraction to artificial lights at night;
Refer para 15.18.
Sagar EIR, para 3.11; Sagar EIC, para C.
Exhibit Sagar 1.
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(c)
displacement of seabirds due to noise, and activities around the
farms; and
(d)
the potential an aggregation of birds could affect neighbours' to the
proposed farms residences.
15.17
Mr Sagar has addressed these factors in his evidence and was not
challenged on his conclusions. The Board can be confident that:
(a)
Entanglement in the nets is extremely uncommon;420
(b)
Diffuse underwater lighting is unlikely to attract seabirds, and any
effect on seabirds due to underwater lighting is unlikely to be
discernible.421
(c)
Any displacement effects are likely to be negligible.422
(d)
Seabirds will more commonly be attracted to the proposed farms (as
opposed to neighbouring residences), and this can be positive.423'
Conditions
15.18
Mr Sagar is confident that the proposed farms will not result in a change in
the King Shag population,424 primarily as foraging will not be significantly
displaced. Nevertheless, NZ King Salmon is committed to ensuring that any
adverse effects upon King Shags and seabirds are able to be picked up and
appropriately addressed quickly.
Accordingly, the proposed conditions
require monitoring of the King Shag population in an effort to ensure any
impacts upon them are identified and addressed if they arise. Water clarity is
specifically monitored in the water column conditions.425 The relevant King
Shag and seabird conditions are summarised below: 426
(a)
Condition 11: a King Shag Buffer Zone 100m from the King Shag
roosting sites in the vicinity of the Papatua, Waitata and White Horse
Rock farms within which no ship movement activities associated
with the farm will be permitted.
420
421
422
423
424
425
426
Sagar EIC, para 5.5: only one event at a NZ King Salmon existing farm in 2009 has been
recorded.
Sagar EIC, paras 5.9 and 6.8.
The numbers of King Shags in the past 50 years has been stable at approximately 645
individuals - Schuckard EIC, para 10.2.
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 51.
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 11; 70(f) and 80(k).
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(b)
Condition 70(f) and 80(k): the magnitude of effects from submerged
artificial lighting on night-time feeding activities of seabirds will be
monitored quarterly for two years (to ensure they are as presented
to the Board by the evidence of Dr Cornelisen), and must remain as
expected in that evidence.
15.19
Ms Dawson was also challenged by Mr Heal as to why she did not consider
adverse impacts on King Shags likely (and why she preferred the evidence of
Mr Sagar rather than Mr Schuckard).427 Ms Dawson's answer was cogent
and compelling. She emphasised her understanding was that the key issue
of concern was potential impacts on the ability of the King Shag to feed. 428
She identified that the impact will be very small, in the context of all of the
available feeding habitat, loss of areas for feeding (corresponding the areas
of ES5.0) and the clear objective of the water column conditions to avoid
impacts on water clarity, as reasons why she does not consider effects on
King Shags as likely.429
15.20
Accordingly, the Board can have confidence that there will be not be an
adverse effect on King Shags and seabirds.
16.
UNDERWATER ARTIFICIAL LIGHTING
16.1
Underwater artificial lighting is proposed to be installed at all of the proposed
farms except for Papatua.
Mr Browning in cross examination of Dr
Cornelisen raised concerns in respect to the effects that the underwater
artificial lighting may have both biologically on wild fish and in terms of visual
amenity.430
16.2
The main concerns appear to relate to the predation of bait fish by salmon,
the risk of the baitfish contracting diseases which are then passed on to wild
fish populations outside the pens, and the night time visual effects of the
lighting.
427
428
429
430
Hearing transcripts for 12 October 2012, page 3605 lines 37 - 45 and page 3606 lines 1 14.
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16.3
Mr Cornelisen was able to confirm that wild fish are not a primary source of
diet for the salmon.431 Dr Diggles and Mr Dempster have then addressed the
risks of disease, making the following observations:
(a)
To date no documented example where wild fish have spread
pathogens from one fish farm to another or to wild fish
populations.432
(b)
Parasite loads of wild marine fish that live in the vicinity of salmon
farms are not greatly affected.433
(c)
The risks in respect of disease are outlined by Dr Diggles in his
evidence, and summarised in section 12 above. As Dr Diggles said
in cross examination, the risk of disease is low.434
16.4
Mr Boffa, as part of his landscape assessment, considered the effects from
the underwater lighting and concluded:
(a)
The visual effects of the lighting will be visually confined and
relatively low from the sea.435
(b)
The visual effect of the "swimming pool" like glow from elevated land
based locations or the Cook Strait Ferries would generally be
minor.436
16.5
Accordingly, underwater artificial lighting presents no issues in relation to the
Proposal.
17.
NOISE
17.1
A number of parties437 raised concerns in both submissions and evidence
about the level of noise created by salmon farms, and some neighbours of
existing farms provided evidence of their personal experience of such noise.
17.2
As stated in opening submissions, Mr Halstead's expert acoustic evidence for
NZ King Salmon is the only expert evidence before the Board on noise
431
432
433
434
435
436
437
Hearing transcript for 10 September 2012, p 1248, Mr Cornelisen in response to
questioning by Mr Browning.
Boffa EIC, para 8.8.
Boffa EIC, para 8.8.
Listed in Halstead EIR, para 1.5.
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impacts. In the end, no parties sought to challenge Mr Halstead's evidence
through cross examination.
17.3
During his cross examination of Mr Baines (NZ King Salmon's social impacts
expert) and Mr Bamford (NZ King Salmon's recreation and tourism expert),
Mr Plaisier raised concerns about what he considered to be a lack of analysis
by NZ King Salmon of the cumulative noise effects of the five farms in
Waitata Reach.438
17.4
Both Mr Baines and Mr Bamford explained to Mr Plaisier that their
assessment of the noise impacts on social amenity and recreation and
tourism values respectively was dependent on the conclusions drawn by NZ
King Salmon's acoustic expert, Mr Halstead.
Had Mr Plaisier read Mr
Halstead's rebuttal evidence, or put such questions to Mr Halstead in cross
examination, he would have discovered that Mr Halstead did consider
cumulative noise effects and that it is his opinion that in no cases would they
cause the noise level to increase enough that his conclusions would
change.439
17.5
In respect of Waitata Reach specifically, Mr Halstead notes:440
A slightly different situation exists in the vicinity of the Richmond /
Tapipi / Waitata farms. The nearest dwellings to these farms are 3
- 4 km distant, and it is possible that some dwellings could be
exposed to similar amounts of noise from two or three of these
farms. This would increase the predicted noise level by 3 - 5
decibels. However the total noise received is already extremely
low, and this increase (if it occurs) would still result in an extremely
low noise level. As discussed above, this situation is not likely to
occur as the major noise-producing items would be shared between
those farms.
17.6
Various submitters also expressed concern that the salmon farm activities
would produce noise which is audible at their property or recreation location,
and that the mere presence of noise would detract from their enjoyment of
those locations. This was of particular concern to Ms Marchant in respect of
the proposed Papatua farm in Port Gore:441
We often hear boats when they enter Pig Bay unless stormy
conditions or a southerly wind masks the hum. It is an amazing
thing to have so little noise pollution. New Zealand King Salmon
are planning to run generators, use water blasters and automatic
feeders every day for the next 35 years. This is a massive change
in the current environment in Port Gore.
438
439
440
441
Halstead EIR, para 6.3.
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17.7
There is no doubt that the establishment of the Papatua salmon farm would
change the current noise environment in Pig Bay. However, it is important to
remember that the residential dwellings in Port Gore are on the opposite side
to Pig Bay, and distances range from the closest residence at 3.85 km away
from the proposed farm location, to the Marchant residence which is 5.94 km
away. In his evidence in chief Mr Halstead noted that:442
At seven of the nine farms, the closest houses to the proposed
farms are over 2 to 3km away from the salmon farms and would
receive very little noise.
17.8
In any event, the underlying rationale of Mr Halstead's noise assessment,
which also was not challenged through cross examination, is to consider the
reasonableness of the noise levels received at key locations in the vicinity of
the noise source:443
I have based my noise assessment on consideration of whether
noise levels received from the salmon farm activities at the various
receiver locations are of a reasonable character. This is the
protection which section 16 of the RMA provides. To require that
no noise be emitted from a new activity is not in my opinion a
reasonable standard, and is not a standard which is applied in
assessments of noise in New Zealand.
17.9
Mr Halstead continues:444
It is instead appropriate to assess a particular noise source on the
basis of the noise level and character, and to compare these values
with established noise limits. This is what I have done in my
assessment, and what I would do in assessing noise from any other
source in this setting. This is also consistent with how the District
Plan would control noise from permitted activities in this setting,
except that I have applied more stringent noise limits as discussed
in the previous section.
18.
AIR QUALITY AND ODOUR
18.1
Some submitters provided evidence of their personal experience of odours
emitted from salmon farms, or otherwise raised concerns about odour effects.
However, Mr Curtis's odour and air quality evidence for NZ King Salmon is
the only expert evidence before the Board on such effects and his evidence
was not challenged through cross examination.
18.2
As the Board is aware, Mr Curtis considers that the separation distances
between the proposed new farms and residences mean that odours emitted
442
443
444
Halstead EIC, para 1.4.
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from salmon farms will not give rise to nuisance effects.445
An explicit
requirement in the conditions of consent to manage odours from marine
farming (including recommended mitigation measures relating to operational
practice around the use of "mort bins" and cleaning and exposure of nets)446
will ensure that potential air quality effects are minimised.
18.3
Accordingly, with the above measures in place, the Board can be satisfied
that odour emitted from the salmon farms will be unlikely to result in nuisance
effects to any passing boat owners and are unlikely to be detectable beyond
300m.447
19.
TERRESTRIAL ECOLOGY
19.1
The terrestrial ecology evidence produced by Mr Hooson was not challenged
under cross examination, but had been criticised by Dr Steven (landscape
witness) and Mr Janssen (SoS) in their evidence. As set out in our opening
submissions, the misunderstanding of ecological values by Dr Steven, and
inflation by Mr Janssen, were addressed by Mr Hooson in his rebuttal
evidence.448
19.2
Mr Hooson, using a five-step scale of low to high, classified the proposed
terrestrial ecology of the surrounding sites as ranging from low - medium, with
the exception (as high) of Waitata-White Horse Rock (medium-high) and two
areas at Port Gore, one being coastal scrub and forest on private land
(medium-high), and the other the coastal scrub and forest at Cape Lambert
Scenic Reserve (high).449 Mr Hooson considered there will be no impact of
the proposed farms on the naturalness of any of the areas, including in
respect of the higher quality ecology that exists in Port Gore.
19.3
Mr Heal chose not to challenge Mr Hooson on any matters. The Board can
have confidence in Mr Hooson's conclusion that:450
In relation to effects to terrestrial ecology values, in my opinion, the
proposed farms will not have any indirect or direct effects, either
individually or cumulatively, on the land and ecological values
adjoining the proposed salmon farm sites.
445
446
447
448
449
450
Curtis EIC, para 14.3.
Refer Curtis EIC, paras 9.1-9.6; NZKS Proposed Conditions: Closing - 18 October 2012,
Condition 61.
Curtis EIC, paras 15.3-15.5.
Hooson EIC, para 11.2 Table 1.
Hooson EIC, para 11.4.
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20.
LANDSCAPE, NATURAL CHARACTER, AND VISUAL AMENITY
20.1
The Board has heard evidence from four landscape experts throughout the
course of the hearing.451 Landscape, natural character and visual amenity
have also been the subject of extensive cross-examination.
20.2
As there is so much material on this broad subject already before the Board,
this Reply will focus on particular aspects that we consider should assist the
Board when it evaluates the different positions and opinions of the experts.
Classifications
20.3
The Board will need to determine, for the purpose of this case, whether a
location has outstanding natural features or landscapes (ONFL) and/or areas
of outstanding natural character.
20.4
There is no disagreement that Cape Lambert is an ONFL.
20.5
The Kaitira headland is an ONFL under the operative Plan. In the final draft
Landscape Study prepared for the Council's forthcoming Review, it is not
recognised as an ONFL. The Study has not been through consultation yet,
which is regarded as an important component before ONFL status can
properly be confirmed on any location.
Nevertheless, the draft Report is
based on a Sounds-wide study.
20.6
NZ King Salmon accepts that Cape Lambert and the Kaitira headland should
be considered as an ONFL as both are so classified in the operative Plan.
However, NZ King Salmon considers that none of the other natural
landscapes or natural features adjoining the other proposed salmon farm
sites should be held to be ONFLs by the Board. In that regard, Mr Boffa and
Mr Rough are on the "same page", apart only from the classification of the
Kaitapeha Peninsula, where Mr Rough considers it should be treated as an
ONFL.
20.7
Mr Boffa put it succinctly:452
… I've seen a lot of landscapes in the Marlborough Sounds and, in
my view, I don't think it would, at this point anyway, rate as an ONL.
451
452
Evidence was also presented by Mr Lamplough, an architect. Despite his field of
expertise, his evidence covered matters ranging from the aesthetic characteristics of a
salmon farm to discharges. His evidence confirms that he had not read the evidence of Mr
Boffa, nor did he participate in the landscape expert conferencing. Accordingly, his
evidence is of little assistance to the board in respect of landscape and natural character
issues.
Hearing transcript for 14 September 2012, page 1833 lines 19-21.
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99
20.8
It is notable that Stephen Brown supports Mr Boffa on this and considers it
only has high landscape values. It is also not classified as an ONFL in the
operative Sounds Plan, nor proposed to be an ONFL in the final draft
Landscape Study.
20.9
There is no evidence that Mr Rough has undertaken a Sounds or district wide
landscape assessment in order to come to his determination that the
peninsula is an ONFL, nor has there been any public consultation or
involvement in this assessment.
20.10
While mention has been made that wilding pines are being eradicated, or are
soon to be eradicated, and that the Peninsula has potential to regenerate, the
reality at this time is that the landscape, and the landform, are simply not
outstanding and should not be recognised by the Board as having that value.
Whether in the future it does, perhaps as an ONFL, is for another decisionmaker to determine in the future.
20.11
In terms of natural character, Cape Lambert is accepted by NZ King Salmon
as having outstanding natural character, as shown in the draft Landscape
Study. (There are no areas of outstanding natural character in the Sounds
Plan as it is a new concept under the 2010 NZCPS.) All experts agree on
that.
20.12
We submit that the Board should find accordingly. There is no other Soundswide study that has considered this subject and in our submission it requires
a comparative evaluation at that scale in order to identify any area as
attaining outstanding status.
Assessment of effects
20.13
Mr Boffa is undoubtedly the country's most senior and experienced landscape
expert. He had clearly given a significant amount of careful and non-partisan
thought to the issues, spread over a period of more than a year. He spent
seven days on site visits and investigations, day and night, from the sea, from
the land, from tracks, private houses and from the ferry.453
20.14
His findings, or his guidance as to how these particular landscapes, natural
character and visual amenity issues ought to be approached, along with
453
Landscape Report, AEE Appendix 13, page 13.
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100
some related observations from others, is set out below. It is submitted that
they ought to assist the Board and should be adopted.
(a)
A key aspect is considering what the actual effect is. Mr Rough
accepted under cross examination that visibility and adverse effects
are not synonymous.454
(b)
Essentially in this case it is a visual issue in terms of effects on
outstanding or other landscapes or natural character. It goes to the
perception of those elements, because the farms are not physically
affecting them other than the placement of a structure on the
water.455
(c)
Mr Boffa's focus was on what the actual effects are going to be
when you are "on the ground", or, in this case, on the water.
(d)
Mr Rough accepted that a lot of the Sounds is inaccessible for the
general public, and that there are limited viewpoints from land within
the Waitata Reach.456
(e)
Ms Dawson, under cross examination, although not a landscape
expert, observed, from her long experience working in the Sounds,
that when you are on the "ground" in reality the Sounds are not
defined by the headlands (as might appear from looking at a bird's
eye view map) but instead you see into all the bays.457 The Board
will have noticed that on its own site visits.
(f)
The majority of people will view the farms from a moving boat,
meaning that their view points are transitory and low to the water.
(g)
In addition, most views of the salmon farms will have a land
background. The instances where a view from a boat out to a sea
horizon would be impeded by a farm, are small. For that to occur,
the viewer would need to be entirely in line with the farm. This
would be momentary. Mr Rough accepted that views are largely
transitory.458
454
455
456
457
458
Hearing transcript for 18 September 2012, pages 1970-1971.
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(h)
Recognition that the effects are influenced considerably by distance,
and whether the views are to the front, or to the side of you, or
behind.459
(i)
The perception or visibility will vary on different days, weather
conditions, time of day and wave conditions.460
(j)
Sites are located on the sea, at the base of landforms - they do not
disturb the physical nature of the landforms.461 It is the view that will
change, by having a structure in front of it.
20.15
Insofar as Mr Brown is concerned, we note he has a strong affiliation with
EDS, the submitter he appeared for, having been a member for
approximately nine years and serving on the board of the Society until as
recently as two years ago.462
20.16
Accordingly, some caution is justified in considering Mr Brown's evidence on
effects in this regard. That need for caution is emphasised when it became
clear that Mr Brown's exchanged evidence was based on or informed by what
was revealed to be his erroneous overstatement of the net pen structure
areas, as he seemed to have used the larger zone areas or some other
boundaries than the net pen areas.
This is important given the strong
conclusions that Mr Brown reached in his evidence. His evidence was littered
with examples of strong or pejorative language:463
By almost any standards, the proposed salmon farms are
exceptionally large structures.
… the sheer scale of each proposal …
… well beyond that associated with most existing salmon farms …
The blatantly industrial/utilitarian profile …
… leave a major imprint …
20.17
Mr Brown had sought to amend the areas of each farm when he presented
his evidence.
But under cross examination when he was offered the
opportunity to make corrections to his various descriptions and conclusions to
better reflect the much reduced actual areas to be occupied by the structures,
459
460
461
462
463
This was accepted by Mr Rough, in the context of the Papatua site at Port Gore. Hearing
transcript for 18 September 2012, page 1988 line 16.
Brown EIC, paras 4 and 6.
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that offer was declined.464
He maintained his conclusions and other
descriptions, notwithstanding the greatly reduced areas.
20.18
To assist the Board, Boffa Miskell had amended Mr Brown's annexures,
showing as accurately as they could, the maximum cage limits that Mr Brown
assessed and the actual cage areas within those limits for which consent has
been sought. Mr Brown accepted during cross examination that all of these
images looked correct.465 He asserted nevertheless that he had not used his
annexures to inform his actual assessments, but had used Mr Boffa's
simulations and other material. With respect, that was hardly convincing.
20.19
The conclusions that he has drawn on effects of the farms should therefore,
in NZ King Salmon's submission, be given little weight by the Board as they
are likely to be excessive.466
20.20
Mr Rough had taken the position that the integrity of the Kaitira headland
would be adversely affected by the presence of a salmon farm, even without
a barge. But tellingly, when under cross-examination, Mr Rough was taken to
the series of visual simulations, from any distance he was quite unable to see
the farm.467
20.21
In response to how, when the farm could not be seen on the simulations, the
landscape was being undermined, Mr Rough responded:468
Just by its physical presence in, introducing a man-made feature
into a landscape where there's virtually no other man-made objects
visible.
20.22
In our submission, that position is untenable and it demonstrates an
exaggerated opinion of the likely adverse effects on that landscape feature,
and therefore almost certainly on the other features at the other sites as well.
20.23
Dr Steven's statement of evidence was quite unsatisfactory. It demonstrated
an unacceptable bias or pre-conception in relation to the type of salmon
farming undertaken by NZ King Salmon:469
I commence my evidence with some general observations on the
aesthetic characteristics of salmon farms. They are, in my opinion,
a form of industrial-style, 'factory farming' development, lacking in
any redeeming characteristics or qualities of an aesthetic nature,
464
465
466
467
468
469
Hearing transcript for 14 September 2012, page 1881, Exhibit Brown 1.
Steven EIC, para 20.
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103
and quite ill-suited for locating within landscapes exhibiting more
than a moderate degree of naturalness or aesthetic quality.
20.24
In our submission, it is impossible to independently assess a proposed
activity with such a strong pre-conceived starting point and he should not
have accepted the brief.
20.25
His approach was also extreme compared to the other experts. For example,
his approach to categorising landforms as outstanding did not align with any
of the other landscape experts at all.470
20.26
As a result, NZ King Salmon submits that no or little weight can be placed on
Dr Steven's conclusions.
Conclusions as to levels of effects
20.27
The conclusions reached by Mr Boffa and the other landscape experts were
set out in the table attached to Mr Boffa's rebuttal evidence.471 NZ King
Salmon submits that those conclusions of Mr Boffa and those discussed
below, should be preferred.
20.28
At a Sounds-wide level Mr Boffa concluded there will be no adverse
landscape effect:472
When you consider the Sounds as a whole - there are highly
variable landscapes within it, and a wide range of activities within it
- both on land and in water, and many areas are working
landscapes. Accordingly a key question is whether salmon farms
affect the Sounds at that scale.
In terms of the effects on the areas of outstanding and very high
[landscape], I considered that overall it would have no effect on
those or the overall at this scale classification of this – at the scale
of this plan, I mean, quite clearly when one gets down to more
detail, then some of these may change within them, but at a
Sounds wide scale, I believe that there would be no adverse effect.
He reached the same conclusion as to effects on natural character at a
Sounds-wide level.
20.29
At a Reach level, for Waitata Reach the primary concern was that the
relevant effects on landscapes and natural character were cumulative ones
potentially arising from the five farms proposed.
470
471
472
Hearing transcript for 18 September 2012, pages 2014 line 32 - 2015 line 15.
Mr Boffa updated the table to reflect the outcomes of expert caucusing and he presented
the updated table at the start of the presentation of his evidence.
Hearing transcript for 14 September 2012, page 1826 line 45 - page 1827 line 4.
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104
20.30
In that regard, Mr Boffa concluded (having taken the approach described
earlier in paragraph 20.14 above) that:
MR BOFFA: I have said there was potential for high effects,
cumulative effects in the Waitata Reach from a boat. I have
acknowledged that that will vary depending on where you are and
as to whether you are seeing many in one viewpoint or whether you
are seeing them in sequence, it will just depend, and will depend
how far you are going through, so I do acknowledge they will be
high potentially, but I still maintain that as with the assessment in
473
general, so much depends on where you are.
MR BOFFA: If you were going through the Reach, then you would
see them sequentially, and sometimes you would see two,
sometimes you might see three, sometimes you might see one.
Now the distances will vary, and sometimes they will be behind you
or to the side of you or to the other side, they are all part of
cumulative effects. I have just said potentially it will be high but it
474
will depend on where you are.
20.31
On Mr Boffa's Schedule he recorded his conclusion that in terms of both
landscape and natural character the cumulative Reach-wide effects were
moderate. He confirmed that on re-examination:475
I don't think they are high.
20.32
In respect of views from the ferry, where the two sites in the relevant reach of
Queen Charlotte Sound would most likely be viewed together, Mr Boffa
considered the Ruaomoko and Kaitapeha sites were visually prominent, but
the views were transient and the effects overall acceptable.476
20.33
In respect of each of the sites:
(a)
For Ngamahau, Mr Boffa found the effects on both landscape and
natural character to be low.
(b)
For Ruaomoko and Kaitapeha, he found the effects on both
landscape and natural character were moderate.
(c)
In respect of Papatua, Mr Boffa said there would be high effects on
both the ONFL and the area of outstanding natural character. But
having said that, he explained how "on the ground" the effects are
not significantly adverse:477
Yes, I think I acknowledged it with respect to two policies in the
coastal policy statement, that at face value it wouldn‟t meet it, the
473
474
475
476
477
Hearing transcript for 14 September 2012, page 1829 line 38 - 45
Hearing transcript for 14 September 2012, page 1832 - 1833
Hearing transcript for 14 September 2012, page 1834 lines 16 - 25
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105
adverse effects. And then I said, "Well, what are the adverse
effects, how adverse are they?" And in my view they are not
significantly adverse in terms of the effects. So on the one hand
what I was endeavouring to say was, taken at a pure policy level, it
would appear that one can't avoid adverse effects but then I have
said, "Well, let‟s really look at the adverse effects and how adverse
are they?" And I concluded that I didn't think they were adverse
enough that the classification should be a hindrance, if that makes
sense.
(d)
In the Waitata Reach, Mr Boffa assessed each of White Horse Rock,
Waitata, Richmond and Tapipi (without a barge) as having moderate
effects on landscape and natural character values.
For Kaitira, the effects on natural character are assessed as
moderate (due to the modified pastoral land backdrop). However
the effects on the ONFL have been assessed as high. Having said
that, the effects reduce with distance, such that by 1.5km away (see
simulation viewpoint 8), Mr Boffa described the impact as "low".478
Mr Rough accepted that from viewpoint 11, the integrity of the
Kaitira Headland was not affected.479
20.34
Insofar as visual amenity effects are concerned, the views from passing
vessels in this case are encapsulated in the earlier conclusions about
landscape and natural character effects as those effects are primarily
experienced from passing boats.
The only farms where additional visual
amenity effects arise of any note are at Kaitapeha and Ngamahau.
20.35
For Kaitapeha, the visual amenity effects were related to the Halstead house,
beach and jetty. Both the Plan Change and consent conditions now ensure
the farm structures and farm vessels (other than being used in relation to the
anchors) cannot be seen.
20.36
At Ngamahau, the Pinder house is 1.1km away and it is accepted that the
farm will be highly visible. However, the house enjoys a wide view that also
includes forestry and farmland and the salmon farm would comprise a small
proportion only of that view.
This could be readily screened with some
strategic planting (see visual simulation to ascertain how that could be done)
and this has been offered by NZ King Salmon.
20.37
Other neighbouring properties (Rodgers and Dimmendaal) do not currently
have houses and it is not clear when or if houses will ever be built. Even if
478
479
Hearing transcript for 14 September 2012, page 1828 lines 13-14.
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they were, opportunities may exist to orientate such houses away from the
farm.
Mitigation
20.38
NZ King Salmon has undertaken significant mitigation to ensure that any
adverse effects on the landscape are at least minimised, if not avoided.
These aspects should be recognised in the overall assessment.
The
mitigation includes:
(a)
The small size of all of the farms.
(b)
The farms at Ruaomoko and White Horse Rock are smaller again
and have fewer pens than the other sites.
(c)
Papatua has been designed to be less visible, due to its location and
is also a smaller site.
(d)
In the event that all the farms are approved, there would be no
permanent barges at White Horse Rock, Tapipi, Papatua and
Ruaomoko.
(e)
The barge structures have been redesigned to assimilate to the
surrounding area.
Mr Boffa considers the redesign to be a
"significant improvement…visually a much …better aesthetic, its
more appropriate."480
(f)
Colour controls have been implemented in terms of restrictions on
the colour of the pen netting and exterior of the buildings/structures
associated with the farms. The conditions also require the use of
dark coloured curtains, blinds or shutters in the windows of rooms of
the barges that are used for staff accommodation.481
Other amenity issues
20.39
Mr Boffa acknowledged that his consideration of visual amenity did not
extend to other forms of amenity,482 but other experts for NZ King Salmon
have produced evidence in respect of noise, air quality, etc which also feed
into the overall consideration of amenity values.483
480
481
482
483
That is a standard
NZKS Proposed Conditions: Closing - 18 October 2012, Conditions 23 - 33.
For example, Messrs Curtis and Halstead.
2464333 (FINAL)
107
approach (with each expert providing evidence within their own area of
expertise) and NZ King Salmon cannot be criticised for that. Ms Dawson
draws that evidence together to provide an overall conclusion in relation to
effects on amenity values.
Underwater/marine natural character
20.40
Mr Baxter has raised in his "marine ecology and natural character"
evidence484
the
contribution
of
marine
ecology
including
potential
fragmentation of "natural" biotic patterns to marine natural character.
20.41
His approach was an unusual one. Firstly, he attended the conferencing of
the landscape experts, but did not contribute to the whole session, taking part
in the conferencing on the topic of "natural character" only and reaching
agreement that:485
The concept of "Natural character", as used in the NZCPS (2010),
includes dimensions and values not addressed in the evidence of
the landscape architects. These mainly relate to the sub-surface
marine components of the coastal environment.
Landscape
architects usually address the surface of the water and the
terrestrial landscape. The evidence of other experts is also
relevant to the natural character and of the coastal environment.
By way of example marine wildlife distribution and behaviour
patterns are a relevant component of natural character.
20.42
Secondly, he appeared to be giving evidence in some personal capacity, or
partly so, as Mr Baxter is employed by the Department of Conservation and
was called by counsel for the Minister of Conservation, but his evidence went
far beyond the relief sought by the Minister. Mr Baxter said that he had
prepared his evidence at the request of the Council, but he wasn't a joint
witness for the Minister and the Council, nor called by the Council. This was
rather unsatisfactory.
20.43
Thirdly, he purported to put forward a framework for an assessment of marine
natural character, with a focus on below the sea surface. However, it is
submitted that little weight can be given to Mr Baxter's evidence in this
hearing as:
(a)
His evidence was largely based on a desk top study, as Mr Baxter
no longer dives and has not done so since the late 1990s.486
484
485
486
Baxter EIC, para 42 - 173.
Landscape expert witness caucusing statement August 2012, page 3.
2464333 (FINAL)
108
(b)
He accepted that he did not have anything like the first hand diving
experience in the Sounds of Rob Davidson, one of the NZ King
Salmon marine ecologists who was involved in the ecological
investigations with Dr Dave Taylor from Cawthron who is also a
highly experienced diver.
(c)
His framework did not recognise the need in any natural character
assessment to identify where on a continuum the environment might
be from heavily modified to highly natural.
(d)
He had assumed from his desk top study and from his incomplete
understanding of the NZ King Salmon proposal that the farm sites
were on steeper sloping bottoms or areas of reef or rocks, where
higher quality habitats can be found and are less likely to have been
modified. In fact, as shown in the NZ King Salmon Benthic Report,
the sites are in deep water, on muds, sands and silts with little
exception, and in almost all cases are beyond the slopes and are
where the seabed has shelved out. The evidence of Mr Davidson
and Dr Taylor from their investigations was also that the sites were
modified, likely to have been by dredging over the years, as there
would have been more three dimensional upright structures
otherwise.
Mr Danny Boulton had also noted (relevant to
Ngamahau) that the Tory Channel had been heavily impacted with
fast ferries, logging, sedimentation, dredging and trawling.487
(e)
His was only a partial contribution to marine natural character, as he
could only comment on the marine ecological components of natural
character and was not qualified to comment on other aspects.488 As
noted above, Mr Davidson and Dr Taylor provided more extensive
evidence to the Board on the nature of the marine natural character,
from an ecological perspective, of the salmon farm locations from
the extensive field work that had been undertaken for NZ King
Salmon with all of their diving, sonar scans, drop camera work and
so on.
(f)
At the salmon farm sites the depth of the seabed is in the order of 30
to 40 metres and Mr Davidson's evidence was that at that depth it
487
488
Boulton EIC, page 99.
Hearing transcript for 31 August 2012, page 575.
2464333 (FINAL)
109
was like diving in a fog.489 Mr Baxter agreed that humans would
generally not be frequenting such areas. Natural character has an
anthropogenic element, that is, it involves appreciation by humans.
For example an area of foreshore in shallow water full of rocky reefs
and appreciated by snorkelers and divers, has that anthropogenic
element to it, and can have natural character ascribed to it, quite
unlike the proposed salmon farm sites which could have minimal
"character".
(g)
The whole concept of under-surface marine natural character is only
developing and it is not included in the Sounds Plan and needs to be
treated with caution.
20.44
Ms Dawson also discussed Mr Baxter's approach in some detail,490 and we
addressed the matter in our opening submissions.491
Reserves
20.45
The Board has heard evidence on behalf of the Minister of Conservation
regarding the potential effects of the sites at Papatua, Kaitapeha and
Ruaomoko on the use and enjoyment by the public of the Cape Lambert or
Ruaomoko Scenic Reserves.
20.46
In his EIC Mr Boffa states that the Kaitapeha salmon farm site will generally
be backdropped by private land adjoining the Ruaomoko Scenic Reserve,
whereas the Ruaomoko site will generally be seen in the context of the
reserve. However, he considered that the effects on this reserve will be low
and that there will be no significant adverse effects with regard to its purpose
or management.
20.47
In relation to public use and enjoyment of the Ruaomoko Scenic Reserve, Mr
Bamford states in his EIC that the reserve is visited by pig hunters who
access it from Tory Channel. He considers that there will be little, if any,
impact on land based recreation that occurs in the reserve from the two
proposed farm sites (Kaitapeha and Ruaomoko).
20.48
Mr Boffa's evidence also considers the potential effects from a salmon farm at
the Papatua site on the Cape Lambert Scenic Reserve. His conclusions are
489
490
491
Hearing transcript for 31 August 2012, page 575 lines 39 - 44 and page 576 lines 1 - 4.
Dawson EIR, section 11.
Opening submissions, paras 22.10 - 22.12.
2464333 (FINAL)
110
the same as those described in the earlier paragraphs of these submissions
regarding the landscape and natural character effects of the Papatua site.
20.49
Mr Bamford states that this reserve is seldom visited by recreationalists.
Those that visit are predominantly land based divers. The reserve is remote,
has a lack of land access and low recreational use and, as a result, Mr
Bamford considers that there will be less than minor impact from the
proposed Papatua salmon farm site.
20.50
In relation to the Queen Charlotte Track, Mr Boffa states that the track is
some 5.8km from the Kaitapeha and the Ruaomoko sites and there are only a
few locations where clear views to these salmon farms will be possible. The
salmon farms will be seen within the distant and expansive views obtained
from the track. Mr Boffa considers that the visual effects of the proposed
salmon farms, both with and without the cumulative effects from the existing
salmon farm at Ruakaka, will be low.
21.
NAVIGATION AND ENGINEERING
21.1
We stated in opening submissions that:492
Certainly there are no grounds to reject any of the proposed nine
salmon farms due to navigational issues. There are no credible
concerns relating to the ferries, as confirmed by the Interisland Line
itself and one of its experienced Masters (Mr David Walker).
Although a number of local boating people have raised concerns,
the objective assessment that has been carried out demonstrates
that disruption for small craft in the Marlborough Sounds will be
negligible, or minimal.
[emphasis added]
21.2
Having now heard all of the expert and non-expert evidence and submitter
representations, we consider the above to still ring true.
21.3
21.4
There are two elements to this topic:
(a)
inconvenience; and
(b)
navigational safety.
NZ King Salmon accepted that there would be a small degree of
inconvenience by some vessels having to amend their course slightly to travel
past a farm. That was quantified in the evidence in chief of Brian Tear as
492
Opening submissions for NZ King Salmon, para 23.1.
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111
taking an additional 30 to 40 seconds (refer Fig. 7 and paragraph 139)
(assuming a velocity of 20 knots) from a navigation perspective that degree of
inconvenience is minor.
21.5
The main issue revolved around navigational safety.
21.6
The key issues raised in relation to navigation and engineering are:
(a)
Overall assessment of navigational safety or risk.
(b)
The application of the Maritime New Zealand Guidelines for
Aquaculture Management Areas and Marine Farms, December
2005 ("Guidelines").
(c)
The proximity of the proposed salmon farms to "recognised"
navigational routes.
(d)
Impacts on navigational safety due to the locations of some of the
proposed farms.
(e)
Impacts on Interislander ferry operations.
(f)
The risk of a salmon farm breaking free from its mooring and posing
a hazard to navigation.
Overall assessment of navigation safety
21.7
The Harbourmaster did not undertake an analysis of the navigational safety of
the proposal, preferring to rely solely on the Guidelines. In his evidence in
chief he stated493:
"Because of the lack of compliance with the Guidelines in terms of
separation distances from established navigation routes, the
Pelorus Sound and Tory Channel sites are not appropriately
located in my view."
21.8
Then in cross-examination he reinforced that view494:
MR NOLAN: …
I take it your limited analysis in these two paragraphs really follows
from your view about the need to adhere to the guidelines?
MR VAN WIJNGAARDEN: The guidelines form the basis, that is
correct.
493
494
Van Wijngaarden EIC, para 6
Hearing transcript for 1 October 2012, page 2791, line 21 to 24
2464333 (FINAL)
112
21.9
Accordingly, Mr van Wijngaarden's evidence on this aspect was of little real
assistance to the Board. He clearly wished to exercise no personal judgment
and instead simply treat a guideline as a rule, without more thought. Given its
potential impact on NZ King Salmon as a significant and successful
Marlborough business, that attitude was unhelpful.
21.10
Blind adherence to Guidelines is no substitute for a professional and objective
assessment of safety or risk in a particular case. By way of contrast, and just
drawing on a small part of his assessment, David Walker stated:495
21.11
"a
Waitata, Tapipi, Richmond, Kaitira and White Horse Rock:
they will be objects which will need to be navigated around.
Other than that the farms pose no issue;
b.
Papatua's effects will be negligible. It is a remote part of the
Sounds with very little traffic;
c.
Ruaomoko and Kaitapeha are sufficiently distant from the
ferry track so as to enable a deviation from the inward track
to safely take place and to provide for additional safe
passage for small vessels between the ferry track, the farm
and the shore;
d.
In the case of Ngamahau, this farm is located sufficiently far
off the approved inward ferry track to not be a danger to
navigation. There is sufficient sea room for small vessels to
transit between the shore, the farm and the ferry track"
We also know that that was the view shared by the Masters and Deck
Officers of the Interisland Line.496 Similar points are to be found in the
evidence of Brian Tear and Geraint Bermingham.
21.12
Points of that nature were made by other submitters, even those ostensibly in
opposition. Don Jamison, an experienced mariner, said that:497
So I have to say to say that, as a personal, as an individual and
master of a vessel navigating in and out of Picton, and as a private
individual running my own launch, I would have no problem with
any of the proposed marine farms from a navigational point of view.
I would feel quite confident to deal with any situation that arose to
avoid the salmon farms even if they broke adrift and basically just
do all the things which Mr Walker and others suggested within their
evidence.
21.13
It was agreed by all of the experts present at the expert caucusing498:
495
Walker EIC, para 1.
Hearing transcript for 1 October 2012, page 2834 line 40.
Joint Statement of Navigation (and Engineering) experts, page 5
496
497
498
2464333 (FINAL)
113
(a)
For the Waitata/White Horse Rock sites it would not be prudent to
routinely navigate inshore of the farm (Bermingham/Tear/van
Wijngaarden/Connolly);
(b)
For the remainder of the Waitata Reach farms the clearances are
adequate (Bermingham/Tear/van Wijngaarden/Connolly);
(c)
For the Ngamahau, Ruaomoko and Kaitapeha sites the inshore
clearances
are
adequate
(Bermingham/Tear/van
with
caution
Wijngaarden/Connolly)
being
but
exercised
with
van
Wijngaarden expressing an additional reservation.
21.14
None of the Interislander or NZ King Salmon witnesses were shaken on
cross-examination as to their conclusions.
21.15
As David Walker stated in his report499 and repeated in his evidence500,
judgment is required. A slavish adherence to Guidelines501 is suboptimal.
Application of the Guidelines
21.16
The stated purpose of the Guidelines is:502
The guidelines identify relevant navigational issues and describe
the criteria that regional councils and marine farm applicants should
be aware of during the process of the creation of AMAs, and the
establishment and management of marine farms.
[emphasis added]
21.17
Whilst the Guidelines may be the only guidance available in terms of issues
of navigational safety around marine farms, quite clearly they are not rules.503
Nevertheless, they were taken into account by NZ King Salmon's navigation
expert witnesses when carrying out their assessment as was clear from their
evidence. Those experts accept that salmon farms cannot meet a number of
provisions in the Guidelines, but apart from the separation distance that is
499
500
501
502
503
Navigation Report, para 41.
Walker EIC para 7-10.
Bermingham EIR para 3.14(d).
Maritime New Zealand Guidelines for Aquaculture Management Areas and Marine Farms,
December 2005, section 2.0.1.
Hearing transcript for 1 October 2012, page 2797 lines 11 - 29. Mr Quinn was confused
as to the difference between guidelines and codes. In the Hearing Transcript for 1
October 2012, page 2823 Mr Quinn put a question to Mr Davis (Line 37):
MR QUINN: Were you present when Mr Bermingham was cross-examined and there were
at least five or six similar guidelines that were put to him in terms of maritime safety?
Mr Quinn was referring to a question he put to Mr Bermingham on 11 September 2012,
page 1680 line 37. At line 27 Mr Bermingham sets out the difference between statutes,
regulations, rules, standards, codes and guidelines. Mr Quinn then cites five codes and
two guidelines. The question put by Mr Quinn did not have proper factual basis.
2464333 (FINAL)
114
only because the focus of most of the Guidelines appears to be on mussel
farms.504
21.18
Mr Quinn has repeatedly and erroneously suggested that NZ King Salmon
witnesses (and more latterly NZ King Salmon) have simply ignored the
Guidelines505. Express consideration is given to the criteria for the location of
marine farms in the Navigation Report506. One factor which, in the particular
circumstances of these applications, all of the Interisland and NZ King
Salmon witnesses agreed with, was that the minimum separation distance
from "recognised navigation routes" did not need to be strictly applied.
21.19
Mr van Wijngaarden confirmed under cross-examination that he favours a
rigid application of the Guidelines, in particular guideline 5.2.5 which
stipulates the minimum separation distances for location of marine farms in
relation to recognised navigational routes.
The most obvious recognised
navigational route in the Marlborough Sounds is the Interislander ferry tracks
into and out of Picton, through the Tory Channel. On the basis that the Tory
Channel represents "inshore waters" for the purposes of the Guidelines, any
marine farms should not be located within 500 metres of the ferry tracks. In
Mr van Wijngaarden's view, because the Ngamahau, Ruaomoko and
Kaitapeha farms are located within that minimum separation distance, he
cannot support the Proposal.
21.20
At caucusing Messrs van Wijngaarden, Connolly and Vause thought the
distinction between offshore and inshore farms "is useful and in that regard
the majority of the farms would be classed as offshore." However, after the
Yachting New Zealand's submissions made it quite clear that the locations
were "onshore" (as seemed common sense) it appeared that even Mr Vause
had accepted the Bermingham and Tear position "the distinction between
offshore/inshore is not useful. The farms are within enclosed waters and are
not "offshore" as defined, nor in terms of normal use of the term."
21.21
Mr van Wijngaarden's rigid application of the separation distance was also
shown to have absurd consequences in the future when existing marine
farms come up for renewal, as he agreed he would have to oppose any
applications on the same basis that they would be within 500 metres of
504
505
506
Hearing transcript for 1 October 2012, pages 2767 - 2768.
Closing submissions, paragraph 12.
Navigation Report, paragraph 43.
2464333 (FINAL)
115
navigation routes and therefore theoretically unsafe.
That means 150 or
more existing marine farms would be opposed by Mr van Wijngaarden.507
21.22
However, the stated separation distance is not the only guideline that is
relevant. Section 5.2 of the Guidelines provides a range of positional factors
that should be taken into account in an assessment of the overall merits of a
marine farm proposal.508
21.23
One anomaly of the Guidelines is that they do not apply to the shoreline or
land. Taking Tory Channel as an example, Mr van Wijngaarden accepted
that there are as many as 21 existing locations between the entrance to Cook
Strait and Ruaomoko Point at which a small boat passing a headland or
existing marine farm would already have less than 500m in which to
manoeuvre past a ferry. This is surely a significant point in this case. Land
provides as much, if not more, of a hazard than a marine farm.
21.24
Mr van Wijngaarden was asked by Commissioner Beaumont whether the
500m separation distance is measured from the surface structure of a marine
farm or from the sub-surface features such as anchors.
Mr van
509
Wijngaarden's response:
So I guess if you wished to take the stricter sense of the definition,
you would suggest that the anchors mark the extremity for the
purpose, I think, of trying to be some sort of - being rational, I would
suggest that perhaps it is from the surface structure which is
defined, unless we put buoys on the anchors individually.
[emphasis added]
21.25
When one looks at the actual separation distances between the proposed
Ngamahau, Ruaomoko and Kaitapeha farms from the ferry tracks it is
revealed that an average three and a half metre recreational boat will have an
extraordinarily wide distance to pass through:510
(a)
At the Kaitapeha farm, a separation distance of 469m from the
alternate ferry track (used on average once a week) and 775m from
the main ferry track.
507
508
509
510
Wijngaarden – Hearing Transcript for 1 October 2012, page 2775, lines 11 to 16. Exhibit
Wijngaarden 1.
Maritime New Zealand Guidelines for Agriculture Management Areas and Marine Farms,
December 2005, section 5.2.9; As far as possible, AMAs are to be simple shapes that can
be readily identified and marked on charts.
Exhibit Bermingham 1 and Hearing transcript for 1 October 2012, pages 2789 - 2790.
2464333 (FINAL)
116
(b)
At the Ruaomoko farm, a separation distance of 296m from the
alternate ferry track and 473m from the main ferry track.
(c)
At the Ngamahau farm, a separation distance of 324m from the
inbound ferry track.511
21.26
There are also numerous, much smaller distances which mariners must
navigate past or through, sometime with ferries and other vessels also
present:
(a)
50m keep clear distance from the side of a ferry.512
(b)
50m (or less) Havelock channel width.513
(c)
50m clearance between mean low water and the inshore boundary
of a marine farm.514
(d)
150m between Ouokaha Island and the mainland with the normal
route oblique through the passage en route to the annual Hopai
Sports Day.515 (Crail Bay).
(e)
150m both Pickersgill and Blumine passages en route to East
Bay.516
(f)
192m west of Arrowsmith Point to interisland ferry track.517
(g)
200 metres clearance to jetties and other points of regular use.518
(h)
The gap between Mabel Island and the shore in Picton Harbour is
only 400 metres.519
21.27
There was misplaced criticism of the ferry tracks being an oversimplification
of where ferries go, particularly from Messrs van Wijngaarden, Vause and
Ballet. All three witnesses gave evidence that ferries might travel landward of
511
512
513
514
515
516
517
518
519
Exhibit Bermingham 1, page 5.
Marlborough District Council, Navigation Bylaw 2009, 16 August 2010, clause 3.2(1)(a).
Walker EIC, para 23.
para 5.2.8 and Appendix 2.
Walker's answers to written questions by Pelorus Boating Club, 1 October 2012, page 3.
Tear EIR, para 8.1.
Hearing transcript, 1 October 2012, page 2834 lines 10 - 18.
para 5.2.10 and Appendix 2.
Hearing transcript, 1 October 2012, page 2834 lines 34 - 36.
2464333 (FINAL)
117
their ferry tracks, decreasing the amount of searoom for small craft. In
summary:
(a)
Mr Walker's original navigation report made it clear that some
deviation from tracks occurred.520
(b)
The normal deviation for a ferry is however toward the main channel
(ie the centre of the channel), not closer to land.521
(c)
The AIS information from Mr van Wijngaarden, even assuming it is
accurate, demonstrates this with the depth marks just inside the
programmed tracks on Bermingham 1 visible despite approximately
1400 ferry sailings plotted on the charts supplied (24 daily sailings
over 59 days).522
(d)
Difficulties with the ferries tend to arise where craft attempt to cut
across ferry tracks,523 not ferry moving inshore of their usual tracks.
The evidence suggests that small craft are not keeping to the
starboard sides of the channel.524 There could be no way that Mr
Vause would know whether the ferry was or was not on its
programmed route.
21.28
It is submitted that it was demonstratively established that there is ample
room for small recreational boats to navigate safely between these proposed
salmon farms and the Interislander ferry tracks.
"Recognised" navigational routes
21.29
Many submitters were concerned that the establishment of the proposed
salmon farms will prevent them from using the routes they commonly use to
traverse the Sounds. Some went as far as to call these routes 'recognised
navigational routes'.
21.30
While it is accepted that for many boaties the routes they take will be
recognised routes for them, a degree of pragmatism needs to be adopted. As
Mr Bermingham stated under cross examination:525
520
521
522
523
524
525
NZ King Salmon Navigation Report 29 September 2011, paras 115 - 116.
Hearing transcript 1 October 2012, page 2841 lines 14 - 25.
Hearing transcript 1 October 2012, pages 2778 to 2780.
Hearing transcript 1 October 2012, page 2835 line 20.
Hearing transcript 1 October 2012, page 2835 lines 10 - 15.
2464333 (FINAL)
118
What was in my mind was that if you define every single piece of
water as a navigation route simply because a vessel once tracked
down it or tracks down it occasionally then every piece of water
becomes a navigation route almost, but that really does not get us
very far.
The guidelines I was reading and thinking "navigation route", that
must surely mean a defined or a recognised, or a routine navigation
route.
21.31
Mr Bermingham prefers to distinguish between occasional or itinerant use of
a navigational route versus continuous use. This accords with the views of all
of the NZ King Salmon navigation experts who conclude that, because of the
largely itinerant use of the Waitata Reach by recreational boaties, the
presence of new salmon farms in the Waitata Reach will have little impact
and at most, cause some inconvenience as boaties will in some instances
have to alter their route so as to manoeuvre around them.
21.32
It is worth reiterating that avoiding navigation routes is just one of the many
factors of salmon farm site selection and together with desirably site
characteristics like high flows, cold water, proximity to houses and others,
inconvenience caused to boaties needs to be weighted appropriately in that
assessment.
Impacts on navigational safety in reality
21.33
The proposed farms of most concern to submitters in respect of navigational
safety appear to be Kaitapeha (although it is well clear of the ferry routes) and
Ruaomoko. Ms Hadley for East Bay Conservation Society, Mr Beech for
Guardians of the Sounds and Mr Ballett for Yachting New Zealand all
described the stretch of water at Ruaomoko Point as a "safe haven" for
boaties from ferries, in strong nor'westerly winds and when crossing the
entrance to Tory Channel from Ruaomoko to Dieffenbach Point.
These
submitters consider that the Kaitapeha and Ruaomoko farms will eradicate
the "safe haven".
21.34
Firstly, Mr Brian Tear showed that this area had a low level of navigational
use by small vessels. He referred to it as a tertiary route. The AIS tracks for
likely commercial vessels were consistent with that.
21.35
Secondly, as indicated above, there is ample room for boaties to navigate
between both farms and the shore, many times the normal separation
distance (50m) for mussel farms located throughout the Sounds. Mr Walker
2464333 (FINAL)
119
shares that view and even suggests that the presence of farms could provide
refuge for small boats from the large ferries:526
… as I said before there is ample sea room between the ferry track
and the proposed farms. Farms would also signify a place where
the ferries would not go. I have described them as a refuge.
People unfamiliar with the ferry route would correctly guess that
ferries do not go there.
21.36
So in reality there is no apparent need for boaties to change their behaviour
at all if they still wish to go out in such windy conditions (although it is
expected that a prudent boatie may well choose not to sail in those
conditions).
21.37
Ms Hadley made the further point that in very windy conditions it is often not
safe for boats to travel at five knots, which is the speed restriction imposed on
boats navigating within 200m of a marine farm. Any exceeding of that five
knot speed restriction could result in a fine. Mr van Wijngaarden helpfully
pointed out that there is an exclusion where an exceeding is necessary to
ensure safety.527
21.38
The natural conditions in the Sounds present boaties with many challenges to
safe navigation and as a result it is expected that skippers will have a certain
degree of proficiency before even attempting to navigate areas like the Tory
Channel.
Impacts on Interislander ferry operations
21.39
The Interislander line is satisfied that the proposed new salmon farms will not
impact adversely on its operations:528
New Zealand King Salmon has consulted Interislander on all
relevant navigational issues and Interislander is satisfied that King
Salmon's proposal, if approved, will not affect its operations or
present unacceptable navigational risks or hazards, including for
other vessels in the Sounds. This view is based on the expertise
and significant operational experience of its masters who navigate
ferries through the Sounds in all conditions and to understand the
environment and the interaction of their vessels with other users,
including recreational boaties and marine farms.
21.40
Of concern to Interislander would be the imposition of a permanent speed
restriction on Interislander by the Harbourmaster, creating potential reverse
sensitivity effects by restricting its ability to provide its current level of service.
526
527
528
Opening submissions for KiwiRail, taken from Hearing transcript for 1 October 2012, page
2812 lines 4 - 12.
2464333 (FINAL)
120
Based on the level of attention given to navigational issues by NZ King
Salmon and the proposed conditions of consent addressing navigational
safety concerns, Interislander submitted that "a permanent direction to slow
vessels would be inappropriate and unnecessary".529
21.41
It is also noted that the issue about any possible future restriction on ferry
speed was raised by Mr van Wijngaarden only in the context of the mooring
security of the farms. We address that below.
21.42
Mr Jamison, a former Harbourmaster and ferry master submitted that his
previous concerns over moorings breaking free had been allayed by the
evidence of Mr Gary Teear (and the fact that that evidence had not been
challenged) and the agreed conditions on navigation including moorings.530
Salmon farm break-away
21.43
The chief concern from an engineering point of view is the risk that a salmon
farm could theoretically break free from its moorings. Mr Teear, an engineer
with over 40 years' experience in marine civil engineering concludes that the
proposed salmon farms at the new sites are "fully feasible from a mooring
and structural safety standpoint".531 Importantly he concludes that:532
I confirm that, in my view, any concerns which arise out of
engineering aspects can be dealt with by way of conditions. I
confirm my view that I can foresee no circumstances that these
farms would need to be refused on engineering grounds.
21.44
Mr Teear was not questioned on his expert evidence by the Council nor by
any other party through cross examination, nor was his evidence
meaningfully challenged through competing evidence presented by any other
party. To the contrary, during questioning by Mr Farnsworth, Mr Lamplough
voiced his opinion that:533
… I would say that having read the evidence of Mr Tear, I am not
disputing the merits or the engineering performance of these farms,
I'm sure from an engineering point of view they are stable and put
together in a sensible structural fashion.
21.45
Richard Robinson filed a brief of evidence on behalf of the Council in relation
to risk management. NZ King Salmon did not need to cross-examine Mr
Robinson because:
529
530
531
532
533
Opening submissions for KiwiRail, taken from Hearing transcript for 1 October 2012, page
2818 lines 16 - 18.
Teear EIC, para 11.1.
2464333 (FINAL)
121
(a)
His evidence was not put to NZ King Salmon witnesses.
(b)
He commented on the EOS Report and on David Walker's original
Navigation Report (mistaking that for a risk assessment). He did not
comment on any of the briefs of evidence filed with the Board. His
evidence was therefore not helpful to the Board.
(c)
Mr Robinson did not attend caucusing without explanation.
(d)
It was Mr Bermingham's evidence in reply that Mr Robinson had
applied a "due diligence" test rather than the "as low as reasonably
practical" principle which forms the basis of New Zealand Health and
Safety legislation. This was not challenged.
21.46
Having not engaged on any issues germane to the case, having not read the
evidence which had been circulated and having applied a test which has little
applicability in New Zealand, it is submitted that his evidence cannot be given
any weight.
21.47
Many submitters made mention of historical examples of marine farms
breaking free from their moorings, such as occurred with the NZ King
Salmon's existing farm at Te Pangu in 2006. Mr Teear notes however that:534
With regard to the failure of the Te Pangu farm moorings in 2006
that incident was fully investigated and mooring design and
procedure changed as a result. That event marked the start of
OCEL's engagement. The present applications are based on
modern designs and not arrangements used six years ago.
21.48
Accordingly, the Board can proceed with confidence that the risk of one of the
proposed salmon farms breaking free from its moorings is very slim.
21.49
In addition, there are detailed proposed conditions covering the design,
installation and maintenance the mooring systems and they have been
agreed by all of the navigational experts, including Mr van Wijngaarden.
21.50
On that basis, NZ King Salmon submits that there are no navigational or
engineering impediments to the approval of the Proposal.
534
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22.
TOURISM AND RECREATION
Introduction
22.1
NZ King Salmon recognises the value the Marlborough Sounds has for
tourism and recreation. Certain areas, if not the Sounds as a whole, are
nationally significant for tourism and recreation.535 That of course does not
mean that additional marine farming cannot occur, and NZ King Salmon's
evidence is generally that effects on recreation and tourism will be minor, and
where there are displacement effects, eg on recreational fishing, that there
are other substitutable locations available. Effects on ecotourism operators in
the Outer Pelorus in particular are acknowledged (but not considered
significant), and specific conditions have been offered to mitigate those
effects.
22.2
The key issues of relevance to the Board, addressed in more detail below,
are:
(a)
How great are the effects likely to be, and, to the extent there are
displacement effects, how substantial are they and can other sites
be "substituted"?
(b)
To what extent will specific tourism and recreation activities be
impacted by the proposed farms, such as:
(c)
(i)
the Mikhail Lermontov diving site;
(ii)
popular recreational fishing sites;
(iii)
the major navigation route - the ferry track; and
(iv)
ecotourism operators in the Outer Pelorus?
What positive effects could the proposed farms have on tourism and
recreation opportunities?
(d)
The extent of consultation has also been raised, particularly by Tui
Nature Reserve and Trust.
535
Greenaway EIC, para 1; Hearing Transcript for 10 September 2012, page 1271 lines 20 23.
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123
Overall effects and substitutability
22.3
Mr Bamford's conclusions of the impact of the proposed farms on tourism and
recreation in the Waitata Reach and Queen Charlotte Sound are:536
(a)
impacts on the Waitata Reach are evaluated as minor (some effect
is acknowledged to be a consequence of the cumulative impacts of
the five proposed farms);
(b)
impacts on Queen Charlotte Sound are evaluated as less than
minor;
22.4
(c)
impacts on Tory Channel are evaluated as less than minor; and
(d)
impacts on Port Gore are evaluated as minor.
In response to questions from the Board,537 Mr Bamford confirmed that the
vastly different environments of each area (ie the more "industrialised" nature
of the Pelorus Sound, and the less developed but more populated nature of
Queen Charlotte Sound) did not lead him to contrasting conclusions.538 A
relevant factor to Mr Bamford's assessment was the correlation between the
number of users and the amount of opportunities available. For him, although
Waitata Reach may seemingly have more structures and apparent limitations
to recreational activities, there are fewer people using the area for that
purpose. Queen Charlotte Sound is at the opposite end of the scale with few
limitations to the recreational use of the area, however, it attracts a much
larger number of recreationalists due to its wide range of uses i.e as a major
navigation route, port, recreational and tourism boat traffic, and land based
recreation and tourism sites.539 Accordingly, his conclusions were similar for
both the Pelorus Sound and Queen Charlotte Sound, but for different
reasons. Mr Bamford, in both cases, also relied on "substitutability".
22.5
Before addressing "substitutability", it is important to understand that the
Proposal will result in very little, if any, actual displacement, for physical
reasons at least. While people will not be able to fish or navigate through the
actual area of the net pens and barge, that is at most a 1.5 ha area for each
farm (and in many cases will be less). Recreational (or customary) fishers
and divers will still be able to fish and dive next to the farm.
536
537
538
539
Bamford EIR, para B(a) and (d).
Bamford EIC, para 43.
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124
22.6
If they did not want to, then Mr Bamford considers there to be sufficient
alternative locations nearby that are substitutable. In our submission, that
has to be the case. The evidence has been that there are many many sites
for fishing in the Sounds, and more than a few km away from any farm, the
visibility and impact on amenity of that farm for fishers would, we submit, be
minimal.
22.7
On tourism and recreational matters, we consider that the Board should
prefer the evidence of Mr Bamford, given that:
(a)
His analysis of the issues was thorough, compared to the 1-2
paragraphs only provided by Mr Greenaway on each issue.540
(b)
Mr Bamford also approached his evaluation without over-emphasis
on the CMZ1 prohibition.
In contrast, Mr Greenaway places
considerable weight upon what is a biased starting point; that he
perceives there to be a "community position that the recreation
values of the Sounds are to be maintained and enhanced", and that
this is dependent upon the CMZ1 as it is at present, remaining
unchanged.541
(c)
Mr Bamford's evidence is more balanced. He showed a willingness
to revise his position when presented with additional information
about how the Outer Pelorus tourism operators perceived the
Proposal. In contrast, Mr Greenaway simply opposed all of the sites
outright – even, it seems, the White Horse Rock site, which is zoned
CMZ2, and in respect of which little specific evidence has suggested
that it would, by itself, result in any material impact on tourism or
recreation.
Diving
22.8
In our submission, people will generally only dive where there is something
interesting to see, or seafood to gather. Recreational divers are also limited
to a 30m depth for even experienced divers.542
22.9
In terms of depositional effects, which could in theory impact on sites of
interest or food sources if they were located under the farms, the farms have
540
541
542
Greenaway EIC, para 30; Hearing transcript for 24 September 2012, page 2397 lines 1 38.
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125
been sited so as to avoid any "3 dimensional" habitats which might be of
interest to divers, as well as areas of kai moana (such as cockle beds, kina
habitat, blue cod habitat, etc).
Ngamahau might arguably be a slight
exception to this, as some biogenic clumps are acknowledged to be affected,
but the vast majority of the habitats of potential interest to divers will be
unaffected by the deposition from the farm.
22.10
The farms are also located over deep water.
With the exception of
Ngamahau, every site where the primary deposition will occur is well over
30m deep.
543
boundaries
Ngamahau itself is around 20-35m deep at the cage
– so the areas affected by the deposition of concern are at the
limit of recreational diving in any event.
22.11
On that basis, the farms will simply not interfere with or prevent diving in the
farm locations. It is also submitted that divers will be more interested in what
is under the water than on top of it, and so will be less concerned by the
presence of the farms than, say, recreational fishers might be.
22.12
In respect of specific sites, the Mikhail Lermontov is a significant diving site in
Port Gore.
The proposed Papatua farm, on the west side, will be an
estimated 3 km from the Mikhail Lermontov site. Mr Bamford is confident that
the diving experience will not be impacted to a more than a minor degree.544
In addition, Mr Greenaway confirmed the accommodation often used by
divers to the site, the Lermontov Lodge in Melville Cove, will not experience
any views of the proposed Papatua farm,545 and conceded that the presence
of the salmon farm would not impact on the numbers of divers visiting the
Mikhail Lermontov.
Recreational fishing
22.13
Mr Greenaway expresses concern in respect of blue cod fisheries having
been reduced in comparison to 10 - 20 years ago, and the vulnerability of
those fisheries stocks from an aggregation of fish around the farms from over
fishing.546 However, there is no evidence at NZ King Salmon's current farms
to suggest that fishing around the salmon farms is a significant issue, and
therefore the fish stock that may or may not aggregate around the farms will
543
544
545
546
Appendix 4 to the Assessment of Environmental Effects, October 2012, Seabed Report Appendix 12 Ngamahau, para 3.1.
The Lermontov Lodge does have views of existing mussel farms: Hearing transcript for
24 September 2012, page 2404 lines 1 - 4.
Greenaway EIC, para 66.
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126
not be in "danger" from recreational fishing.547 In fact, it has been suggested
that the farms may assist in providing a refuge for species, and so may be
positive for overall fish stocking.
possibility.
Mr Greenaway was not aware of that
548
Ferry track
22.14
It has been put to the Board that 91% of visitors to the Sounds enter by
ferry.549 While that may be true, no evidence has been put to the Board to
justify that viewing salmon farms while entering the Sounds is negative. 550
On the contrary, Mr Greenaway acknowledged that:551
…we have quite a few visitors who are interested in how people
make a living out of the Sounds, so forestry and farming and
mussel farming and so on.
22.15
Mr Bamford's conclusion that there will be minimal effect552 to recreation and
tourism activities is supported by the above "interest" that people entering the
Sounds may have in marine farms. Mr Boffa also observed when taking his
photographs for the photo simulations from the Interislander that people were
interested in the existing salmon farms in the Tory Channel and took photos
of them as the Interislander passed them.553
Positive effects - industrial tourism
22.16
A key proposition put forward by Mr Bamford, and supported by NZ King
Salmon, is the potential to develop "industrial tourism" with the proposed
farms.554 That said, NZ King Salmon accepts that it could provide tourism
opportunities at its existing farms, as does Mr Bamford. For that reason, Mr
Greenaway seems to dismiss any benefit in the new farms better enabling
tourism opportunities.
22.17
However, Mr Greenaway had approached that matter from the perspective of
a tourism operator, rather than that of a salmon farmer. Accordingly, it is
submitted that he failed to appreciate for a salmon farmer that their primary
focus is on producing salmon, and at present NZ King Salmon cannot
produce enough from its existing farms to meet demand. Opening up a farm
547
548
549
550
551
552
553
554
Refer section 13; Gillard EIR, para 14.3.
Greenaway EIC, para 37 (Hawes EIC, Appendix 6).
Bamford EIC, paras 47 - 50.
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127
to tourists will inevitably reduce productivity on the farm as space, staff time
and resources would all need to be diverted to visitors rather than farming.
22.18
NZ King Salmon is also of the view that it will be easier to accommodate
visitors at any new farm, as the final design can incorporate that aspect,
rather than having to "retro fit" an existing farm. Mr Greenaway accepted the
logic of that but did not consider it of any real advantage.555 We submit that
he was unduly dismissive of the issue.
22.19
NZ King Salmon considers a new farm accommodating visitors would provide
a better experience to people interested in "how people make a living out of
the Sounds".556
Mr Godsiff, Managing Director of Marlborough Travel
supported this:557
These new sites will be state of the art structures especially
designed to enhance visitor experience. This will allow us to take
advantage of platform designs that take into account our visitors'
needs…
Effects on Tui Nature Reserve
22.20
Mr Plaisier, on behalf of Tui Nature Reserve Park and Trust, is concerned
that the image or perception of salmon farms will impact on their eco-tourism
focus (as well as the potential amenity effects, despite the large viewing
distance between the Tui Reserve and the proposed farms).558
22.21
Mr Bamford, while acknowledging some effects, does not think that there will
be a material impact on Mr Plaisier's business.559 Mr Bamford is much more
concerned about the wider issues facing tourism operators in the international
marketplace, and what the wider economy and global trends might mean for
operators like Mr Plaisier. Potentially, there could be opportunities for Mr
Plaisier to incorporate salmon farms into his operations (his visitors might be
interested in visiting a farm if they were to proceed, and could, say, take fresh
salmon back to the lodge for dinner). Mr Godsiff certainly sees opportunities
in salmon farming for tourism.
555
556
557
558
559
Hearing transcript for 24 September, page 2413 lines 32 - 34.
Hearing transcript for 27 September 2012, page 2565 line 40, page 2569 line 8. These
effects include effects on the Plaisier family, effects on the Park's tourist income,
cumulative effects, community effects, effects on stakeholders in the long term, and effects
on investments.
Bamford EIR, para B(a); Hearing transcript for 10 September 2012, page 1302 lines 24 29.
2464333 (FINAL)
128
22.22
Overall, Mr Bamford does not perceive that ecotourism operators, including
Mr Plaisier, will experience any significant effects from the proposed farms. 560
Mr Plaisier's environmental concern is admirable, but he has not provided an
evidential basis for his conclusions that the impact upon ecotourism
operations in the Waitata Reach will be severe. In fact, tourism operators do
not all consider there to be adverse effects on tourism caused by the
Proposal. Representative tourism group Destination Marlborough submitted
neutrally on the Proposal:561
Destination Marlborough acknowledge that there are a wide range
of views on this application from tourism businesses in the
Marlborough region.
…
On the basis of this application Destination Marlborough do not
believe that the granting of these farms would have an adverse
impact on current tourism behaviour in Marlborough…
22.23
NZ King Salmon understands, having heard from Mr Plaisier through the
hearing, that he and other tourism operators are concerned about disease
issues and how that might affect their business, and has agreed to include
tourism operators as stakeholders to be notified in NZ King Salmon's
biosecurity plan.
22.24
Mr Godsiff canvassed how Marlborough Travel has successfully harnessed
the tourism potential in Greenshell mussel farming.562
Mr Bamford has
indicated the same potential for salmon farming. Consultation with forward
thinking and optimistic tourism operators who have taken advantage of
marine farming in the Sounds helped Mr Bamford to promote the concept of
industrial tourism. Experiences like those of Mr Godsiff convey the significant
benefits such opportunities hold:563
From a business point of view, we are making a serious investment
with the plant and resources and we believe that the salmon farm
tours along with other flow-on activities will be positive for the
region and provide another string in New Zealand's bow.
22.25
Further, the proposed farms may not be so incompatible with the eco-values
that Mr Plaisier promotes in his business.
The Board may find that the
operations, with appropriate conditions, are sustainable. They could then be
held out as a means of responsible farming.
560
561
562
563
Certainly, the scale of what is
Bamford EIR, para B(a).
Destination Marlborough Submission on EPA Application NZ King Salmon: Sustainably
Growing King Salmon, 1 May 2012, page 5.
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129
proposed bears no comparison to the sort of intensive farming in Scotland,
Norway, and Chile that have been held out as unsustainable. It is remarkable
(and, as the disease experts say, "enviable") that no major diseases or lice
issues exist in New Zealand and that salmon can be farmed without
antibiotics or other drugs.
22.26
Reflecting on the issues raised by Mr Plaisier, and some of the options
identified by Mr Bamford, NZ King Salmon has offered a condition specifically
to address issues raised by Mr Plaisier, including:564
(a)
NZ King Salmon having an allocated person to work with the
industry; and
(b)
Offer to host, and provide relevant expertise from NZ King Salmon,
for an annual farm for tourism operators within the Marlborough
Sounds, in order to assist in growing tourism opportunities and
business in the Sounds, including in the Outer Pelorus Sound. The
offer shall be made through Destination Marlborough (or its
successor) which shall be asked to co-ordinate the farm.565
22.27
Mr Plaisier expressed some reservation about Destination Marlborough being
the liaison organisation, but could not think of any alternative body who might
better be involved. His concerns about Destination Marlborough and what he
perceived to be a failure of it to consult with and represent its members such
as his company were a feature of his questions and submissions. 566
Destination Marlborough's conduct or approach to the proceeding is not
something within NZ King Salmon's knowledge or control, however.
Mr
Bamford's consultation included relevant stakeholders and, in combination
with other sources of information, this assisted him to make informed
conclusions.567
22.28
When asked about the impact of the time constraints on his consultation and
assessment, Mr Bamford, like Mr Cardwell and Mr Baines, confirmed he does
not believe his conclusions would be any different if more time had been
available.568 It is clear that, whatever limitations there might have been in NZ
King Salmon's consultation, or that of Destination Marlborough, the
substantive matters of concern to submitters like Mr Plaisier and Tui Nature
564
565
566
567
568
NZKS Proposed Conditions: Closing - 18 October 2012, Condition 90A(b).
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130
Reserve and Trust, have been raised for the Board's consideration. From NZ
King Salmon's perspective, those concerns are all able to be addressed.
23.
SOCIAL EFFECTS
Introduction
23.1
The Board has received expert evidence from two experts in social
assessment, Mr Baines (for NZ King Salmon) and Dr Phillips (for the
Council).
23.2
While Mr Baines recognised specific social issues for particular neighbours to
some of the farms, such as the Gledhills (but their issues have now been
resolved by agreement), overall he considered:569
As a result of my assessment activities, I have concluded that there
is a scope for further salmon farm development in the Marlborough
Sounds, considering the potential cumulative social effects across
the Marlborough Sounds, the competing social interests, and the
balance of social effects around each proposed site.
23.3
In stark contrast, Dr Phillips was of the view that:570
In my opinion, the introduction of a CMZ3 into the MSRMP would
constitute a significant social effect by undermining the integrity of
the MSRMP. The MSRMP has provided the basis for decision
making by people and communities on their properties, on property
purchases, and on activities and the places where those activities
may be pursued through the allocation of the public water space
between CMZ1 and CMZ2.
23.4
For the reasons we explain below, in our submission the evidence of Mr
Baines should clearly be preferred. In addition, the demeanour of Dr Phillips
when giving evidence and the selective manner of some of his assessment
work could not have given the Board much comfort that he had approached
the case as impartially as he ought to have done.
Mr Baines's approach
23.5
Mr Baines undertook two phases of consultation with residents in the
Marlborough Sounds before he finalised the Social Impact Assessment,
which was lodged with his evidence in chief on 22 June 2012.
described under cross examination:
569
570
571
571
Baines EIC, para 103.
Phillips EIC, para 7.
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As he
131
(a)
The first phase was "strategic consultation": In this phase, Mr Baines
consulted various people and groups.572
This strategic level
consultation had three purposes:
(i)
firstly, to gather a wide range of information and
commentary on the existing social environment as it has
evolved in the Marlborough Sounds in recent years;
(ii)
secondly, to canvas views on the potential scope for the
expansion of salmon farming operations and the key issues
that would require attention; and
(iii)
thirdly, to determine the nature and extent of social effects
experienced from existing salmon farms operated by NZ
King Salmon and the reasons for those effects, in order to
provide a robust empirical basis for assessing the
likelihood of similar effects associated with the proposed
new sites.
(b)
The second phase was "site-specific consultation": This followed the
release of the site locations, and Mr Baines initiated direct
consultation
with
potentially
affected
landowners
in
groups
associated with the farm locations.
23.6
Submitters have criticised consultation undertaken by Mr Baines as an
independent expert. Mr Baines stepped the Board through his consultation
approach at the hearing. It is clear that consultation was both professional
and more than adequate.
23.7
Despite cross examination by the Council,573 and Mr Plaisier,574 Mr Baines
did not consider that the timeframes or initial confidentiality of the sites
caused any inadequacy to his assessment.575 In fact, Mr Baines considered
that there was some benefit to the phased approach, as the first phase
enabled Mr Baines to ascertain residents' views on salmon farming and any
expansion by NZ King Salmon, without it being focussed on the effects of a
specific farm that may be developed close to them.576 The latter consultation
572
573
574
575
576
Baines EIC SIA Report (Appendix 4).
Phillips EIC, para 10 - 12; Hearing transcript for 7 September 2012, pages 1173 - 1177.
Hearing transcript for 7 September 2012, page 1177 lines 13 – 15, page 1178 lines 1 - 13
and page 1187 lines 32 - 39.
Hearing transcript for 7 September 2012, page 1201 lines 5 - 11 and 32 - 43.
2464333 (FINAL)
132
phase allowed the additional new considerations of each proposed farm, and
the perceived effects.
23.8
Extraordinarily, the Council challenged Mr Baines in cross examination for not
including the results of a recent Coryden Survey ("2012 Survey") in his SIA.
The survey was a effectively a "re-run" or update of a previous Coryden
survey undertaken in May 2001,577 and included questions about values
people considered important in respect of the Sounds, together with activities
perceived to be threats to those values. However, as was clear from the date
of the 2012 Survey,578 it was released after Mr Baines completed and lodged
his SIA, so he could not have taken it into account in his SIA. The 2012
survey was, however, addressed in Mr Baines' rebuttal evidence. As Mr
Baines explained, including in cross examination, the 2012 Survey recorded
the threat of marine farming affecting the valued qualities of the Sounds as
being below bush clearance, residential subdivision / development and exotic
forestry (both nationally and in Marlborough).579
In any event, NZ King
Salmon acknowledges the concerns about the effects of the growth of marine
farming in the Sounds. That is one of the reasons it has adopted such a
thorough approach to the evaluation of its proposal, calling 38 witnesses to
address all the various matters of concern raised by submitters.
23.9
Mr Baines was also questioned about the relationship between his social
impact evidence, and Mr Bamford's tourism and recreation evidence.580 Mr
Baines clarified that the two reports should be read alongside each other, with
the SIA and his evidence addressing the social impact on residents with Mr
Bamford's
evidence
addressing
impacts
on
tourism
and
recreation
businesses. Mr Baines's assessment was undertaken separately from Mr
Bamford's and did not rely on Mr Bamford's conclusions.581
23.10
Overall, Mr Baines is satisfied he prepared his assessment of this Proposal
more than adequately, with no cause for concern as to the quality and
conclusions of his assessment.582 Mr Baines's specific conclusions are that
577
578
579
580
581
582
Hawes EIC, Appendix 5.
Baines EIR, para 4.34(b); Hearing transcript for 7 September 2012, page 1183 lines 35 44.
Hearing transcript for 7 September 2012, page 1214 lines 35 - 38 and pages 1235 - 1238.
Hearing transcript for 7 September 2012, page 1126 lines 11 - 22 and page 1235 lines 36 42.
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133
the social effects in Waitata Reach, Port Gore and in respect of Rauomoko in
Queen Charlotte Sound will be:583
either negligible or substantially less than effects currently
experience by immediate neighbours of NZ King Salmon farms.
23.11
While Mr Baines acknowledged that the social effects at Kaitapeha in Queen
Charlotte Sound, and Ngamahau in Tory Channel were greater, and in
respect of Kaitapeha, he considered that the conditions of consent proposed
can address social effect concerns to an acceptable level.584 Insofar as both
these sites are concerned, the Board will recall that the Gledhills' property
was particularly affected in Ngamahau and the owners subsequently gave
their written approval to the Proposal and both the Plan Change and the draft
resource consent conditions have recently been amended to ensure the
Kaitapeha structures will not be seen from the Halsteads' house and jetty.
Dr Phillips's approach
23.12
Dr Phillips did not, in our submission, undertake a comprehensive or
balanced social impact assessment. His evaluation of the existing social
environment against which he used as a basis for his assessment was also
limited.
23.13
Perhaps more fundamentally, however, like all of the Council witnesses, Dr
Phillips placed far too much weight on the CMZ1 zone and "integrity" of the
plan issues, rather than trying to evaluate the merits of the Proposal. As Dr
Phillips states in his evidence:585
In my opinion, the introduction of a CMZ3 into the MSRMP would
constitute a significant social effect by undermining the integrity of
the MSRMP. The MSRMP has provided the basis for decision
making by people and communities on their properties, on property
purchases, and on activities and the places where those activities
may be pursued through the allocation of the public water space
between CMZ1 and CMZ2.
23.14
In taking that position, Dr Phillips appeared to give little if no weight to the fact
that the RMA has always enabled plan changes and reviews to amend
zonings at any time so no zoning can be expected to remain in place with any
degree of certainty. He was also dismissive of the fact that an unusually high
number of people (a third) made submissions in support of the present
583
584
585
Baines EIC, para 104.
Baines EIC, para 105; NZKS NZKS Proposed Conditions: Closing - 18 October 2012,
Conditions 89 and 90.
Phillips EIC, para 7
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134
proposal, which suggested a large segment of the community may not hold
the strong views he had assumed.
23.15
Mr Baines acknowledged the expectations that people would have had in
respect of the CMZ1 zone, but did not let that overwhelm his perspective on
the Proposal.
23.16
Dr Phillips, despite emphasising the importance of the existing Plan and its
CMZ1 zone, had also not considered the specific enablement by Parliament
of the concurrent lodgement process, and did not consider it of any real
relevance when drawn to his attention.586 The reality is, however, that the
concurrent lodgement process was introduced specifically to enable
proposals such as the present one to be considered fairly on their merits.
23.17
Dr Phillips had also undertaken a particularly brief assessment of the existing
social environment against which to then assess the effects of the application,
in comparison to the much more expansive investigation undertaken by Mr
Baines.
23.18
This poor level of investigation (five paragraphs) was compounded by the
limited manner in which Dr Phillips then carried out his assessment of the
social effects of the Proposal. He said he did this by "making extensive use
of the submissions".587 But under cross examination it became apparent that
Dr Phillips had been highly selective in the particular submissions he chose to
refer to and to follow up on in his evidence.588
All but one of the 49
submissions referred to in his evidence were in opposition.589 Moreover, Dr
Phillips misrepresented the submission in support – identifying only one of the
many issues it raised and then casting it in a negative light, rather than in the
positive manner in which it was originally expressed in the submission.590
Despite employment clearly being a social issue, Dr Phillips did not refer to
any submissions in support that raised the substantial employment
opportunities arising from the Proposal.
23.19
Dr Phillips and his colleague also interviewed or had an email exchange with
just five residents of the Sounds to investigate the likely social impacts.
"Consistent" with his approach to the written submissions, all five were
586
587
588
589
590
Phillips EIC, para 75.
Hearing transcript for 21 September 2012, page 2331 lines 39 - 40; Phillips EIC.
2464333 (FINAL)
135
submitters in opposition to the Proposal. Three of the five were in Port Gore,
but in just two households.
23.20
By contrast, Mr Baines interviewed 24 people, some more than once, and
that enabled him to get more balanced feedback than Dr Phillips.
An
example from Mr Baines' interviews of a wider cross-section of people was
that several expressed the view that the Papatua site is consistent with their
expectation that aquaculture and pastoral farming are compatible on the
western side of Port Gore and do not compromise the desire for restoring the
natural landscapes and ecology of the eastern side of Port Gore.
23.21
For this reason, we consider Dr Phillips' evidence to be of little value and Mr
Baines' evidence should be preferred.
24.
HISTORIC HERITAGE
24.1
As stated in opening submissions, Mr Armstrong's evidence for NZ King
Salmon is that all of the proposed sites bar one will have a minimal or nonexistent impact on European heritage and archaeological sites.591 The sole
exception is the Kaitira salmon farm which will visually intrude on the heritage
site at Post Office Point, although it is considered that the fundamental
heritage values of the location will remain intact.592
24.2
There is no expert evidence to the contrary and Mr Armstrong's evidence was
not challenged through cross examination. Accordingly the Board can be
satisfied that the effects will be minimal or non-existent.
25.
CULTURAL EFFECTS
Consultation with iwi
25.1
Acknowledging the importance of tangata whenua, NZ King Salmon made
very significant efforts to consult all iwi, both prior to,593 and following,594 site
selection.595 By approaching iwi before it finalised the selection of its sites,
NZ King Salmon provided an opportunity for iwi to raise general concerns
with salmon farming as well as any potential specific concerns with particular
591
592
593
594
595
Armstrong EIC, para 12.
Armstrong EIC, para 12.
Gillard EIR, paras 12.8 - 12.20; Gillard EIR, Appendix 6.
Gillard EIR, paras 12.21 - 12.26; Gillard EIR, Appendix 7.
In respect of submissions made and evidence presented that Māori landowners affected by
the application were not consulted by NZ King Salmon, we note that on 13 October 2011
letters went out to all landowners within a 2km radius or a 4km sightline to the marine farms
(Cardwell EIC paragraph 31).
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areas.596 By approaching iwi immediately after lodgement, NZ King Salmon
also provided a further early opportunity for any issues, site specific or
otherwise to be raised and addressed.
25.2
However, NZ King Salmon has been criticised for trying to seek early input
before it finalised its sites because it was not "able to identify the specific
sites"597 at that time, while also then being criticised for trying to consult with
iwi once the sites had already been finalised and the application lodged.598
Submitters cannot have it both ways.
25.3
After lodgement, NZ King Salmon also approached all landowners, including
tangata whenua, with properties within 2km of any site and 4km line of sight
of any site.599
The latter included the Gledhills, who NZ King Salmon
understand are Te Ātiawa, and who, as a result of that consultation ultimately
provided written approval and withdrew their opposition.
25.4
Consultation was also ultimately successful with Te Ātiawa, and Ngāti Kuia
has acknowledged NZ King Salmon as engaging in a professional way.600
25.5
The two most vocal complaints about consultation have come from Ngāti
Koata and the Tahuaroa-Watson Whānau. In respect of Ngāti Koata, while
the issue of the Armstrong Iwi Interest report has been acknowledged as a
factor that may have impeded consultation, NZ King Salmon:
(a)
Followed the advice of the Ngāti Koata Iwi Management Plan and
wrote to their office address both before and after lodgement, just as
with all other iwi, explaining NZ King Salmon's wish to expand its
salmon farming and seeking face to face meetings.
(b)
Followed up those letters with no less than 16 calls or emails. Mr
Elkington explained some of the reasons why those calls were not
returned or were delayed. But the fact remains that NZ King Salmon
had been directed by Ngāti Koata that they must speak with him,601
and significant effort was made to do so.
596
597
598
599
600
601
Such as identifying any particular "no-go" sites.
Opening submissions for Ngāti Koata Trust Board, para 24.
Opening submissions for the Tahuaroa Watson Whānau, para 3.10. Oddly Mr Mikaere
criticises NZ King Salmon on both accounts: Hearing transcript for 2 October 2012, page
2931 line 2 to page 2934 line 3.
Contrary to suggestions that site selection was a fait accompli by this stage, NZ King
Salmon could still seek changes to accommodate specific concerns.
S Smith EIC, page 7.
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137
(c)
As Mr Mikaere,602 on whose evidence Ngāti Koata relies, states:603
While those consulted cannot be forced to state their views, they
cannot complain, if having had both time and opportunity, they for
any reason fail to avail themselves of the opportunity.
(d)
Mr Eccles, the Board's independent expert planner agreed with that
sentiment, accepting that consultation was a "two way street".
(e)
The Environment Court's observations in Horahora Marae v Minister
of Corrections604 also serve as a reminder to those being consulted
that they too have a role to play in the process:605
Requirements of reasonableness, fairness, open mind,
freedom from demands, and the need to avail oneself of
the consultation opportunity, have, for us, an overlapping
quality amongst themselves, and import an overall duty
on the part of both parties to act reasonably and in
good faith, because consultation is not a one-sided
affair. It is two-way thing, albeit that the ... party putting
forward the proposal, has the duty to commence the
process by offering information commensurate with the
proposal and the occasion. Consultation is as much
about listening as it is about imparting information, and it
is more about the quality of information imparted than it
is about the quantity.
25.6
The issues raised by Ngāti Koata are addressed below in more detail.
25.7
In respect of the Tahuaroa Watson Whānau, as explained in opening, NZ
King Salmon had no knowledge of them.
They do not appear to be
landowners in the vicinity of the marine farm sites - which are all at the outer
edge of the 12-mile circle they have drawn for their protected customary
rights claim - as they otherwise would have been consulted in respect of that
process. In addition, not only does their customary marine title application
not overlap with the marine farm sites, but it is a significant distance from any
of those sites.606
602
603
604
605
606
Mr Mikaere was called as an independent expert for Pelorus Wildlife Sanctuaries, J&R
Buchanan, HT Elkington & Whānau (and his evidence was adopted by the Ngāti Koata Trust
Board) and was particularly critical of the consultation undertaken by NZ King Salmon. He
suggested no pre-lodgement consultation took place, yet his entrenched position became
clear when he refused to accept clear uncontested evidence that it had in fact occurred:
Mikaere EIC, para 22, (bullet 4).
Horahora Marae v Minister of Corrections EnvC Auckland A85/2004, 30 June 2004.
Horahora Marae v Minister of Corrections EnvC Auckland A85/2004, 30 June 2004 at [105].
Being in Onauku Bay, Marlborough.
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Ngāti Koata
25.8
NZ King Salmon overlooking Ngāti Koata's mana moana status in the Outer
Pelorus Sound was not a "deliberate and calculated insult" towards Ngāti
Koata as suggested by Mr Ironside,607 nor was it a "deliberate attempt to
minimise the involvement of Ngāti Koata" as suggested by Mr Mikaere.608
Rather, it was a mistake for which NZ King Salmon has since offered
verbal609 and written610 apologies in order to re-build its relationship with Ngāti
Koata. NZ King Salmon understands Ngāti Koata's frustration, but considers
that the issue could have been rectified earlier if Ngāti Koata had advised NZ
King Salmon of the error when it became aware of it in October 2011.611
25.9
In any event, NZ King Salmon wrote to Ngāti Koata (along with other iwi) on
28 April 2011,612 some five months before lodgement, disclosing the broad
areas in which the sites under investigation were located (including within the
Outer Pelorus Sound) and asking each iwi to identify any parts of those areas
of particular cultural significance to them. It is important to note that this letter
did not attempt to identify the rohe of Ngāti Koata in the Marlborough Sounds.
Accordingly, Ngāti Koata assertions that its reluctance to meet was a result of
NZ King Salmons claims that it had no mana moana613 are inappropriate.
Ngāti Koata had every opportunity to understand the Proposal and the
potential effects on Ngāti Koata before becoming aware that reference to their
mana moana status had been omitted from the AEE.614
Withdrawal of the Iwi Interests Report
25.10
The Board will be well aware of NZ King Salmon's withdrawal of the Iwi
Interests Report615 and the reason for this.616
607
608
609
610
611
612
613
614
615
616
Hearing transcript for 4 September 2012, page 767 lines 29 - 30: Hearing transcript for 2
October 2012, page 2902 lines 2 - 36.
NZ King Salmon written apology to Ngāti Koata, 10 October 2012.
Communication by letter is specifically approved by Ngāti Koata in its Iwi Management Plan.
The letters were sent to Ngāti Koata's RMA Contact, Allen Hippolite. NZ King Salmon were
then told to talk to George Elkington: Transcript, page 760 lines 4 - 10 (contrary to the
submissions of Ngāti Koata that "the applicant chose Mr Elkington to communicate with":
Closing submissions, paragraph 21(b)).
Closing submissions of Ngati Koata, para 23.
We understand that Ngāti Koata is seeking costs "for the time and expense to defend its
mana": Closing submissions, page 9. As confirmed in a 22 March 2012 memorandum of
counsel of Buddle Findlay advising the Board, a Board of Inquiry does not have the power to
award costs in the context of proceedings under the RMA.
It was Appendix 18 to the AEE, lodged on 3 October 2011.
These were stated in Board Memorandum 29 for NZ King Salmon, 26 September 2012,
para [3].
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25.11
Counsel for Ngāti Koata, Mr Hippolite, now contends that the AEE is invalid,
due to the Report's failure to recognise Ngāti Koata's mana moana status in
the Outer Pelorus Sound, and/or the withdrawal of the Iwi Interests Report.617
25.12
NZ King Salmon submits that such an argument is untenable.
NZ King
Salmon consulted all eight Te Tau Ihu Iwi, including Ngāti Koata, and
reported on this in its AEE.618
25.13
Based on the withdrawal of the Iwi Interests Report, Mr Hippolite also
contends that the Board does not have sufficient information before it to
determine the appropriate iwi interests in the proposed marine farm sites.619
This is surprising, given that the only reason that the Iwi Interests Report was
withdrawn was to address concerns expressed by Ngāti Koata.620
25.14
In any event, the Board has an abundance of information before it in order to
satisfy itself of relevant iwi interests in each proposed site. That includes the
material provided with NZ King Salmon's application and NZ King Salmon's
evidence.
In addition, the Board has also received evidence from Ngāti
Koata itself clarifying its rohe.621
Cultural effects
25.15
NZ King Salmon maintains that no iwi or tangata whenua submitters have
raised any issues that NZ King Salmon did not anticipate (having been
informed by the Ngāti Koata Iwi Management Plan, among other things) and
try to address through science.
25.16
The vast majority of the cultural evidence presented during the hearing
confirmed this, as it related to the customary food gathering areas and
activities of Te Tau Ihu Iwi and the importance of these areas and activities to
their way of life.622 In fact, many submissions and much of the evidence was
617
618
619
620
621
622
Opening submissions for Ngāti Koata, at para 37.
NZ King Salmon AEE, Section 8.0 Consultation, page 136.
Opening submissions for Ngāti Koata, para 59.
Board Memorandum 29 for NZ King Salmon, 26 September 2012, at [3].
See in particular the exchange between Mr Roma Hippolite for Ngāti Koata and members of
the Board on evidence given by him describing the rohe of Ngāti Koata (Hearing transcript
for 27 September 2012, page 2659 line 27 to page 2661 line 40). Submitter evidence is
relevant to the question of whether the Board has sufficient information before it: Final
Report and Decision of the Board of Inquiry into the Proposed Men's Correctional Facility at
Wiri at [290].
NZ King Salmon notes that the Closing Statement of the Tahuaroa-Watson Whānau
(paragraph 9) brings new evidence stating that Kaitapeha, Ruaomoko, Ngamahau and
Papatua are all subject to rahui (temporary ban), tapu (spiritual ban) mataitai marine
reserves and taiapure (protected areas). NZ King Salmon notes that this evidence appears
to conflict with the original evidence of submitters for the Tahuaroa-Watson Whānau, such
as Mr B Huntley, that these areas are fishing and seafood gathering areas.
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focused on a simple general concern about potential effects of the Proposal
on these areas and activities, and that they be preserved for future
generations.623
25.17
The evidence of NZ King Salmon is that the sites are all located in positions
where there will be very little, if any,624 impact on access to kaimoana (such
as the gathering of kina, scallops or lobster, which are located in shallower
depths closer to the coast rather than the deeper, slightly more offshore
locations where the farms are located).625
The wealth of scientific
assessment of potential impacts on fish, marine mammals,626 seabirds,627 etc
all provides evidence that the effects will be minor.
Only some limited
inconvenience for customary fishing might be a physical consequence of the
farms.628
25.18
Based on that evidence, and the proposed conditions of consent discussed
below, NZ King Salmon submits that the iwi / tangata whenua relationship
with the Sounds will not be undermined.
Mauri
25.19
The Courts and tangata whenua (including in this case) have recognised the
place of physical indicators when assessing the application of metaphysical
concepts.629
25.20
Mr Mikaere expressed his fundamental opposition to finfish farming in coastal
waters because of the impact on the mauri of those waters.630 While the
concept of mauri may be "a generic one to all Māori",631 Mr Mikaere accepted
623
624
625
626
627
628
629
630
631
(H T Elklington) Hearing transcript for 2 October 2012 page 2909 lines 16 - 29. (B MaataHart) Hearing transcript for 3 October 2012, page 2967 lines 42 - 46 and (B Riwaka)
Hearing transcript for 3 October 2012, page 2983 lines 27 - 30. (B Plaisier) Hearing
transcript for 4 October 2012, page 3102 lines 13 - 25
Mr Keeley has addressed potential effects on the valued scallop fishery in Waitata Reach
and adjoining bays. He concludes that scallops are expected to be displaced within the
immediate vicinity of the net pen, and beyond that they are likely to be largely unaffected,
with the overall biomass of scallops in the area remaining largely unaltered.
Davidson EIC, para 34; Taylor EIC, para 51.
Specifically dolphins as taonga species and taniwha to Ngāti Kuia.
Specifically King Shags, known as 'Te Kawau a Toru' and a taonga species for many Te
Tau Ihu iwi.
Wakatu Incorporation and Tasman District Council [2012] NZ EnvC 75 at [22]-[33]. See for
example R Smith EIC, page 10.
His view is that any discharge that is not the same as, or of better quality, than the receiving
water body diminishes the mauri of that water body and therefore should not occur: Hearing
transcript for 2 October 2012, page 2948 lines 7 - 12.
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141
that his view about diminution of mauri is at the extreme end of the
continuum.632
25.21
His extreme view about finfish farming is not shared by all Māori. Indeed, Mr
Mikaere's view seems out of step with a number of Marlborough Sounds iwi
and with Ngāi Tahu:
(a)
Within the Marlborough Sounds, Ngāti Apa, Te Ātiawa and Ngāi
Tahu are all pursuing finfish farming.633
Mr Mikaere himself
responded to this evidence by saying, "[o]bviously they've found
some way to be satisfied that they are not in breach of the Mauri."634
The Cultural Impact Assessment ("CIA") of Te Ātiawa describes the
physical indicator of the mauri of the moana in this instance as "the
integrity of the water column and health of the seabed."635 If those
matters are maintained, then the mauri of the moana is maintained.
(b)
While Ngāti Koata adopted the evidence of Mr Mikaere:
(i)
Evidence provided at the hearing was that Ngāti Koata
was "not opposed to sustainable salmon farming", but "are
opposed to anything that contravenes the sustainable
environment and its natural way of providing enjoyment
and beauty and kai for [Ngāti Koata] people."636
(ii)
Ngāti Koata's Iwi Management Plan favours open water
marine farms rather than coastal ribbon development.637
25.22
Accordingly, based on that and the expert evidence in relation to effects on
the water column, benthic environment and aquatic life, NZ King Salmon
submits that the mauri of the moana will not be undermined by the Proposal.
Proposed conditions addressing cultural effects
25.23
At a general level, the following conditions apply across all the proposed farm
sites to specifically address cultural effects:
632
633
634
635
636
637
Te Ātiawa Cultural Impact Assessment, at para 88.
Hearing transcript for 2 October 2012, page 2909 lines 3 - 6 (Mr Elkington). Ngāti Koata's
concern regarding mauri was discussed at Hearing transcript for 2 October 2012, page
2919, lines 4 - 6.
Ngāti Koata Iwi Management Plan, para 8.10.
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(a)
In respect of the Ngamahau, Ruaomoko, Kaitapeha and Papatua
farms, a place on the Peer Review Panel shall be provided for a
person nominated by, or on behalf of, Te Ātiawa. 638
(b)
For the Kaitira, Richmond, Tapipi, Waitata and White Horse Rock
farms, NZ King Salmon will offer to Ngāti Koata and Ngāti Kuia the
opportunity to establish a Kaitiaki Reference Group, the main
purpose of which will be to identify customary kaimoana gathering
areas near the proposed sites639 in order to monitor and analyse any
effects from the operation of those farms. The Kaitiaki Reference
Group will also have the opportunity to review and provide input to
the Peer Review Panel in relation to the preparation of the Plans
and Reports mentioned above.640
(c)
Through these similar mechanisms those three Iwi will be kept
abreast of monitoring of:
(i)
habitats that support notable biological features under or
within 1km of the net pens, including any areas identified
by those iwi as customary kaimoana gathering areas;
(ii)
seabed enrichment in areas of natural deposition in
neighbouring bays to the farms,
including any areas
identified by those iwi as customary kaimoana gathering
areas; and
(iii)
the abundance of grazing invertebrates and kina on
intertidal and shallow subtidal rocky reefs, including any
reefs identified by the those iwi as customary kaimoana
gathering areas.
(d)
Consultation during the preparation and implementation of, and
compliance by NZ King Salmon with, the Marine Mammal and Shark
Management Plan.641
638
639
640
641
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 83 - 85.
The Peer Review Panel is to report to NZ King Salmon on matters relating to the review of
the Baseline Plan Baseline Report, the annual review of the MEM-AMP and Annual Report.
Within 1 km of any of those farms, or in neighbouring bays to those farms which are areas of
natural deposition with the greatest potential for form-related cumulative water column
enrichment effects.
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 91A.
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 64.
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(e)
An invitation by NZ King Salmon to participate in (in the case of Te
Ātiawa) and be consulted on (in the case of Ngāti Koata and Ngāti
Kuia), the preparation of the Biosecurity Management Plan, and
notification should any new biosecurity risk from marine pests or
disease agents be identified at a farm.642
(f)
An invitation by NZ King Salmon to be consulted during the
preparation of the Accidental Discovery Protocol.643
(g)
An invitation by NZ King Salmon to collaborate in undertaking a
stocktake of wāhi tapu in the areas that may be affected by the
installation or operation of the farms, including wāhi tapu located on
land in the immediate vicinity of the farms.644
25.24
In addition, the following further conditions have been offered up to address
site specific cultural concerns:
(a)
In respect of Ngamahau, within three years of the grant of consent,
NZ King Salmon shall undertake a benthic biological survey in the
Tory Channel biogeographic area, consisting of a search for, and
description of, new, potentially high quality or significant biogenic
habitats in this biogeographic area.645
(b)
For the Ngamahau, Ruaomoko, Kaitapeha and Papatua farms, Te
Ātiawa shall be invited to participate in the undertaking by NZ King
Salmon of the baseline assessment of numbers of seals in the
coastal marine area within 2km of those farms.646
The significance of the views of Te Ātiawa Manawhenua ki te Tau Ihu
Trust Board
25.25
NZ King Salmon submits that the Board can take comfort in the change of
position of the Te Ātiawa Trust Board from opposition to support for the
Proposal during the course of this process:647
642
643
644
645
646
647
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, Condition 65 - 66.
Hearing transcript for 3 October 2012, page 2987 lines 18 - 20. See also Ms Paine's
evidence presented on the same day about why the Trust Board considers the application
and the proposed conditions to be culturally acceptable to Te Atiawa: page 2990 line 17 to
page 2991 line 19.
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The effect of the NZ King Salmon proposal on the traditional
fisheries practice of Te Ātiawa is considered by the Trust to be
minimal.
25.26
The concerns originally expressed by the Trust Board in its comprehensive
CIA648 replicate a number of similar concerns to those held by other iwi,
including the importance of, and need to protect, 'mahinga kai' or places of
customary and contemporary food and resource gathering; and the effect on
the integrity of the water column and the health of the seabed under and
surrounding the proposed marine farms, also described as the "mauri of the
moana".
25.27
Following the drafting of its CIA, the Trust Board then engaged in detailed
discussions with NZ King Salmon on the Proposal and on conditions. That
subsequent engagement gave the Trust Board the understanding necessary
to make informed decisions about the effect of the marine farms on cultural
issues of concern to Te Ātiawa (such as those which were also of concern to
the Tahuaroa-Watsons and other iwi submitters) and to also collaborate with
NZ King Salmon on further mitigation measures that would address
outstanding issues, resulting in its changed position.649
25.28
Other tangata whenua interests, who have not had the benefit of that detailed
understanding of the Proposal, have maintained their reservations.650 The
reservations expressed by some iwi submitters are in stark contrast to the
considered views of Mr Watson for the Trust Board:651
The question no doubt will be asked, is the economic and social
welfare of our people of greater importance than the environment
and cultural aspects of pursuing such developments?
In my opinion all these issues have equal importance within the
decision-making process, but providing all the elements are
equated in a balanced form and in particular any environmental
concerns there exists no reason why there should not be
participation within the fish farming aquacultural industry.
25.29
NZ King Salmon submits that the Board will need to understand the concerns
expressed by the Trust Board and other iwi submitters, and consider whether
648
649
650
651
The Cultural Impact Assessment was informed by the views of Te Atiawa iwi members:
Te Atiawa held consultation hui with its iwi members to explain its changed position and the
agreed mitigation measures - Hearing transcript for 3 October 2012, page 2986 lines 29 41, Opening submissions for Te Atiawa, para 3.
Mr Bennion for the Tahuaroa-Watson whānau invited the Board to note the "very qualified
nature" of the evidence provided by Te Atiawa, yet did not put that issue to Ms Paine for the
Trust Board when he was given the opportunity (Hearing transcript for 3 October 2012, page
3011 line 30 to page 3014 line 26 and page 3019 lines 13 - 38).
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145
those concerns have been adequately addressed.652
NZ King Salmon's
position is that they have.
Positive effect of the Proposal: Aquaculture Settlement new space
allocation
25.30
The Board is aware that approving the Proposal will trigger the Crown's
obligation to provide 20 percent of space or equivalent to Māori under the
Māori Commercial Aquaculture Claims Settlement Act 2004 ("Settlement
Act"). The evidence provided by the Ministry for Primary Industries confirms
that:653
... the framework of the settlement is contingent on future growth
and the outcomes of this application will directly influence the
opportunities provided to iwi through the Aquaculture Settlement.
25.31
In short, for every hectare of space that is approved by the Board for NZ King
Salmon, an equivalent of 20 percent of that space will be made available to
iwi elsewhere.654
25.32
NZ King Salmon submits that this is a positive effect of the Proposal that the
Board must have regard to in terms of both sections 66 and 104.
25.33
The requirement to provide exclusive aquaculture settlement areas for iwi to
undertake aquaculture activities is specifically designed to address any issue
as to whether the grant of consent to NZ King Salmon limits the number of
sites which may be available for iwi.
25.34
Indeed the Board has heard evidence from the Ministry for Primary Industries
that three of the eight Aquaculture Settlement Areas established in the
Marlborough Sounds655 are in areas considered broadly suitable for the
farming of finfish, including salmon.656 These three areas were established
652
653
654
655
656
The closing statement of the Tahuaroa Watson Whānau (paragraph 19 and attached nonsubmitter representation) refers to the recent Waitangi Tribunal's interim and truncated
report setting out findings and recommendations arising from Stage One of its National
Fresh Water and Geothermal Resources Inquiry. NZ King Salmon understands that the
Tribunal itself is yet to issue a full report on the matter, and therefore the Crown response to
this issue (be it legislative or otherwise) is yet to be determined. Accordingly, it is simply too
early in the process for this matter to have a bearing on RMA processes, including this
hearing.
Hearing transcript for 9 October 2012, page 3356 line 26 - 29.
The Settlement Act obligates the Minister to ensure that the aquaculture settlement area will
be representative of the new space to be acquired by a third party applicant by taking into
account the suitability of the space for aquaculture activities, and the overall productive
capacity of the anticipated new space available for aquaculture activities in each region: s
12(4), Settlement Act.
One of which is in Port Gore, the second on the north side of the Tawero Point and the third
on the south side of that point.
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solely in response to the NZ King Salmon application, thereby safeguarding
the possibility that the Crown may need to provide authorisations for space to
iwi, if any of the proposed sites were granted.657
25.35
Accordingly NZ King Salmon submits that, to the extent that there could be
any "forcing out"658 of iwi from salmon farming (which NZ King Salmon does
not accept), that has been specifically considered and provided for in the
Aquaculture Settlement regime.
In addition, iwi submitters have given
evidence that other more suitable sites for salmon farming are available in the
Sounds.659
PART D: PLAN CHANGE TESTS
26.
RELEVANT TESTS
26.1
As stated in opening, NZ King Salmon submits that the appropriate legal
framework for the consideration of the Plan Change is the Long Bay criteria,
as adapted to apply to a regional plan.660 Those modified criteria were set
out in full in the opening submissions at paragraph 8.38.
26.2
NZ King Salmon also submits that, contrary to the position advanced by some
submitters, the proposed conditions of consent are relevant to the
consideration of the Plan Change. In particular, in considering the various
policies, rules, and methods, the Board is entitled to consider the scope of the
assessment criteria, which demands consideration of the type of conditions
which might be imposed. The proposed conditions provide a case in point.
27.
REVISIONS TO THE PLAN CHANGE
The scope of the policy proposed
27.1
NZ King Salmon has carefully considered the text of the Plan Change, and
taken advice from Ms Dawson following the planners' conferencing on the
provisions, and the cross examination and questions from the board of the
planners in particular. An important issue that has recently been focused on
is the extent to which the Plan Change, if approved, might become a "policy
springboard" for future applications. The core of the concerns is that, while
any future plan change (and any associated concurrent consents) might still
657
658
659
660
Opening legal submissions at [8.38]
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147
need to be assessed on its merits, references in the Plan policies (and other
provisions) to enabling the "expansion" of the salmon farming industry might
be used to justify that next proposed plan change. Your Honour also
observed the relationship between concurrent plan changes and consents
and whether there might be a basis to tie the two together.
27.2
The issue is one that had occurred to NZ King Salmon and which lay behind
its original promotion of the proposal as one of national significance - as a
mechanism to reduce the likelihood of other proposals following behind NZ
King Salmon's proposal (if they were not determined to be of national
significance). For various reasons, that wording has not been pursued, but
NZ King Salmon is open to tightening up the policy basis for the proposed
CMZ3 zone, so it clearly relates to the eight sites that are sought through this
process.
27.3
For this reason, the following text provides examples of the approach
proposed:
(a)
In 9.2 issues: "In addition, expansion of the salmon farming industry
has been enabled in [eight] locations where the Plan provides for the
establishment of new marine farms for salmon, where adverse
environmental effects can be satisfactorily avoided, remedied or
mitigated."
(b)
Policy 1.15 now reads: "Enable the marine farming of salmon by
identifying [eight] appropriate sites in the Plan as Coastal Marine
Zone 3, where salmon farming is a discretionary activity."
(c)
9.2.2 Methods of Implementation is to state: "[Eight] specific sites
appropriate for new salmon farms have been identified in the
Coastal Marine Zone 3."
27.4
These sorts of changes have been carried throughout the proposed plan
change.
27.5
Only a limited number of other minor changes have been made.
The Halstead standard
27.6
One of those changes has been a refinement to the standard (35.4.2.10.1(c))
intended to prevent visual activities from occurring in line of sight from the
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Halstead's jetty. In speaking with its engineers about the proposed "exclusion
zone" NZ King Salmon became aware that it would almost inevitably need to
locate a vessel over the screw anchor points when installing the mooring
systems for the farm. They may be required for maintenance, as well.
Accordingly, an exception has been included in the standard to allow these
activities, otherwise the purpose of the zone might be frustrated
inadvertently.
27.7
The drawing back of the zone boundary to come more tightly towards the
likely screw anchor points was also considered, but there remains a need for
some flexibility if the depth contours of the seabed are inaccurate, and any
reduction in zone boundary would only be small. Marine farming other than
salmon is proposed to be prohibited, so there is no prospect of mussel bouys
and lines taking up residence in view of the Halstead's jetty, and activities
associated with salmon farming occurring in that area would require a specific
non-complying consent. That balance appears appropriate.
Prohibited status
27.8
In respect of prohibited activity status for marine farms for other than salmon,
NZ King Salmon is prepared to accept that status. From a practical
perspective, NZ King Salmon only has an interest in growing salmon. But
more fundamentally, the primary justification for seeking these sites has been
the specific requirements that salmon need in terms of water temperature,
water flows, and water depth (and relatively low exposure to the open
ocean). These are requirements that are known and understood for salmon.
Other aquaculture species, even other finfish species, may be tolerant of
warmer waters, for example, and so would not require the sites proposed for
the CMZ3 zoning.
27.9
In terms of jurisdiction, we see no issue there. Submissions sought for the
entire plan change to be rejected. Prohibiting marine farming other than of
salmon is a lesser form of relief to rejection of the Plan Change. In terms of
any s32 evaluation of the costs of prohibiting marine farming other than
salmon, that is partially a return to the status quo (which has all marine
farming as prohibited), so some of the costs and benefits evaluation might be
applicable. But that said, the Board has no evidence as to the benefits of
enabling species other than salmon (which may, or may not, be able to go
elsewhere) at these locations. On that basis, it would be entitled, it is
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submitted, to resolve that marine farming other than salmon should be
prohibited.
28.
APPLICATION OF TESTS
Planning Evidence
28.1
The Board has heard from a variety of planners throughout the hearing,
including Ms Dawson (NZ King Salmon), Messrs Hawes and Brosnan
(Marlborough District Council), Ms Cameron (Ministry of Conservation), Mr
Wilkes (Halsteads), Mr Batchelor (Friends of Nelson Haven and Tasman
Bay), and Ms Allan (PWS). Mr Eccles also gave evidence, as the Board's
independent planning advisor.
28.2
Of those planning witnesses:
(a)
Ms Dawson is the only one who has undertaken a full section 32
analysis.661 Other planners have considered some aspects of the
Plan Change, but NZ King Salmon submits that no other planning
expert has considered the Plan Change with the same breadth or
depth as Ms Dawson. For example, some planning experts have
only considered, or have focussed on, certain sites, or have only
focussed on certain issues.
(b)
Ms Dawson has also been present throughout the entire hearing
before the Board. No other planning witnesses can say the same,
not even the Council's planner (which is surprising given the
Council's stance on the Proposal).
(c)
Both Mr Hawes and Mr Wilkes approached their analysis from the
erroneous starting point of the prohibited activity status of marine
farms within the CMZ1 zone.662 Mr Wilkes in particular relied heavily
(in our submission) on the prohibited status in his consideration of
whether aquaculture was "appropriate" in the relevant CMZ3 sites.
We discuss the relevance of the existing prohibited activity status
below.
(d)
Ms Cameron only looked at the limited matters at issue for the
Minister at a planning policy level, and did not evaluate
661
662
Dawson EIC, attachment D "Evaluation in terms of Section 32 Resource Management
Act".
Wilkes EIC, paras 30 - 37; Hawkes EIC para 92; Dawson EIR, paras 4.4 - 4.7.
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countervailing benefits. In terms of conditions, in many cases she
did not appear to have properly undertaken her own careful analysis
of the proposed conditions of consent.
Rather, her position
appeared to be totally reliant on the views of the Minister of
Conversation's other experts.663
(e)
While Mr Hawes has produced a lengthy statement of evidence, the
Board should only give limited weight to his evidence because:
(i)
Mr Hawes has less than half the experience of Ms Dawson,
and his experience has been solely Council-based.
(ii)
In both his evidence and through cross examination, Mr
Hawes displayed an "us and them" mentality towards NZ
King Salmon every time he considered its use of the
coastal marine area. His focus on the competing interests
of public access vs NZ King Salmon's private use of the
coastal marine area failed to recognise that the Plan
Change enables an activity (rather than simply a
company).664
(iii)
His section 32 assessment was lightweight (2 pages
compared with Ms Dawson's 80 page assessment), failed
to properly compare the status quo with the new Plan
Change, and also failed to include the social and economic
benefits within efficiency.665
(iv)
Mr Hawes incorrectly interpreted Policy 8 of the NZCPS,666
omitted to consider Policy 6 matters which were favourable
to the Proposal667 and wrongly interpreted the key
Objective 9.2.1.1 in the Plan.668
(v)
Mr Hawes suggested that the Plan Change should not be
single species as the plan had wide definitions to provide
663
664
665
666
667
668
Hearing transcript for 16 October 2012, page 3893 line 32 - page 3894 line 32.
Hearing transcript for 16 October 2012, page 3897 - page 3901.
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flexibility for farmers, yet acknowledged that the CMZ3
zone should just provide for salmon.669
28.3
For those reasons, it is NZ King Salmon's submission that Ms Dawson's
evidence must be preferred by the Board.
28.4
Ms Dawson has addressed the assessment of the Plan Change against the
adapted Long Bay criteria in detail in her evidence.670 We do not intend to
take you through that assessment, but rather to address some specific issues
arising under those tests.
Site selection
28.5
Submitters have criticised NZ King Salmon's approach to site selection. Ms
Dawson has also been extensively cross-examined on this point.671
28.6
Contrary to the propositions put forward by other parties,672 it makes no
sense to start with a "blank canvas" and discount sites because of landscape,
natural character, recreational, amenity, and other issues identified in the
planning framework.
The result might reveal some sites that could be
appropriate for some marine farming activities, but they would not be sites
where salmon could be farmed. Salmon farms require a specific combination
of environmental factors to be present in order to be viable. These include
water temperature, water depth, current and no open water wave
conditions.673 It would make no sense to even begin to consider planning
matters if those requirements are not present.
28.7
The planning merits of any particular site must depend on the balancing of a
broad range of factors and there will generally not be a single factor which is
determinative.
28.8
Therefore, to suggest, as Mr Hardy-Jones did to Ms Dawson,674 that the site
selection process should begin with the Plan rather than what is practicable
and/or viable is impracticable, if not unworkable. NZ King Salmon cannot be
criticised for carrying out its site selection process as it did.
669
670
671
672
673
674
Dawson EIC, section 8.
Hearing transcript for 11 September 2012, pages 2495 - 3501; Hearing transcript for
12 October 2012, pages 3652 - 3661. Refer also to cross examination of Mr Gillard,
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Prohibited Activity status
28.9
Questions have also been raised about the suitability of a Plan Change that
changes the status of a prohibited activity to something less restrictive.675
28.10
The Court of Appeal has stated that a prohibited activity status does not
mean that the planning authority is satisfied that the activity in question
should in no circumstances ever be allowed
676
consideration.
in
the area under
The Court of Appeal also specifically recognised the ability
to pursue a plan change to enable an otherwise prohibited activity:677
The effect of s77B(7) is that the only way that a prohibited activity
may be countenanced is through a change in the provisions of the
plan. The plan change process outlined in Schedule 1 to the Act is
different in character from the resource consent process.
28.11
Both Mr Hawes and Mr Wilkes were guilty of framing their evidence in
reliance on the existing prohibited activity status of aquaculture within the
CMZ1 zone.
"Spot zoning"
28.12
A number of submitters have expressed concerns about the Plan Change as
effectively being a "spot zoning" exercise.
Ms Dawson was also cross
678
examined in detail on the issue.
28.13
The term "spot zone" is often used in the pejorative sense, and spot zones
are sometimes considered undesirable, as the Environment Court said in
Mullen v Auckland City Council:679
The Court has no difficulty with spot zonings in appropriate places:
Horrocks v Auckland City Council and Kamo Veterinary Holdings
Limited and Northland Shelf Company No 9 v Whangarei District
Council. There are occasions when integrated management
requires a spot zoning because of a site's unique characteristics.
28.14
The overriding considerations in respect of the proposed Plan Change, are
the relevant Long Bay and Eldamos tests,680 not any notion of whether or not
the CMZ3 is a spot zone and for that reason should not be preferred.
675
676
677
678
679
680
Similar concerns are raised about the existing prohibited activity status being appropriate.
We discuss the "most appropriate" test further below.
Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic
Development [2007] NZCA 473 at [41].
Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic
Development [2007] NZCA 473 at [22].
Hearing transcript for 11 October 2012, page 3439 - 3440.
Mullen v Auckland City Council EnvC Auckland A129/2004, 28 September 2004, at [19].
Footnotes have been omitted from the quote.
The Long Bay test expands on the Eldamos test as explained at para 8.3 of the Opening
submissions.
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28.15
Under cross examination, Ms Dawson identified examples within the existing
plan of what might be considered "spot zoning".681
These included the
numerous small areas of CMZ2 zoning surrounded by CMZ1 zones, and the
zones for the harbour and marina. The controlled and discretionary marine
farming "exemptions" to the CMZ1 zone are also effectively "spot zones".
"Most appropriate"
28.16
The consideration of what is "most appropriate" lies at the heart of the
statutory tests in section 32. An understanding of what "most appropriate"
means is critical. Some submitters have said that in order to have its plan
change accepted, NZ King Salmon needs to demonstrate that it is "special" or
to meet some similar threshold. With respect, that is simply not the correct
test.
28.17
The RMA is very clear that the language used in section 32 is "most
appropriate". That is the threshold against which the Board is to consider the
Plan Change.682 Section 32 was amended in 2003 to soften the rigours of the
assessment by moving from a test of "necessary", to "most appropriate". The
submitters arguing for a threshold of "special" effectively seek to turn back
time and have section 32 rewritten to at least its pre-2003 form (if not even
more stringently).
28.18
Turning to what "most appropriate" means, the High Court recently held that
the "most appropriate" method does not need to be the superior method.683
The Court went on to state that:
Section 32 requires a value judgment as to what on balance, is the
most appropriate, when measured against the relevant objectives.
"Appropriate" means suitable, and there is no need to place any
gloss upon that word by incorporating that it be superior.
28.19
The Environment Court has also recently held that:684
... The Court does not start with any particular presumption as to
the appropriate zone, rule, policy or objective, which means that
there is no presumption that the Council's proposed rule is
necessarily appropriate or correct. The law is well-settled that the
proceedings in relation to plan change appeals are more in the
nature of an inquiry into the merits in accordance with the statutory
objectives and existing provisions of the policy statement and
plans. The Court is seeking to obtain the optimum planning
681
682
683
684
The section 32 framework is discussed in detail in the opening submissions for NZ King
Salmon, paras 8.36 - 8.40.
Rational Transport Soc Inc v New Zealand Transport Agency [2012] NZRMA 298 (HC) at
[45].
Federated Farmers of New Zealand Inc v Auckland Council [2012] NZEnvC 174 at [17].
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154
solution within the scope of the appeal it has before it, based upon
an evaluation of the totality of the evidence given in the hearing,
without imposing a burden of proof on any party.
Differences in interpretation of the planning documents
28.20
The evidence of the various planning witnesses reveal a number of
differences in the interpretation of various planning provisions. We address a
number of these issues below.
Reconciling Policies 1.1 and 1.2
28.21
During the hearing, a key issue to emerge has been how Policies 1.1 and 1.2
in Chapter 2 of the Plan can be reconciled, and applied here.685 Ms Dawson
was questioned in detail on how the two policies should be applied.686 The
two policies appear to conflict, and some parties have suggested that in some
locations only one of the policies is relevant.687 As explained by Ms Dawson,
both policies will be relevant.688 It then becomes a question of a broader
judgement, and, as explained by Ms Dawson in relation to the Waitata
Reach:689
It is like neither of them are quite right for this situation is what I
think ... so to me it is somewhere in between.
Plan's approach to Queen Charlotte Sound
28.22
Two aspects of the Plan and RPS which address the role of Queen Charlotte
Sound have been focussed on by submitters. These two provisions (Policy
1.6 of Chapter 9.0 of the plan and Method 7.2.11(c) of the RPS) refer to
recreation being the dominant activity in Queen Charlotte Sound, and for
aquaculture to be restricted in Queen Charlotte Sound.
28.23
The submitters contend that these provisions dictate that marine farming is
not appropriate within Queen Charlotte Sound.690 While NZ King Salmon
acknowledges that these two provisions do not actively encourage
aquaculture to locate in Queen Charlotte Sound, neither is unconditional.
"Dominant" is very different from "sole", and "restrict" is very different from
685
686
687
688
689
690
Policy 1.1 talks about avoiding adverse effects in areas that are predominantly in their
natural state and natural character has not been compromised. Policy 1.2 talks about
whether natural character has been compromised and where adverse effects can be
avoided, remedied or mitigated.
Hearing transcript for 15 October 2012, page 3692 line 30, page 3693 line 44.
Hearing transcript for 15 October 2012, page 3692, line 35 - 39.
Hearing transcript for 15 October 2012, page 3693 line 34 - 44.
Hearing transcript for 12 October 2012, page 3665.
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155
"prohibit". NZ King Salmon submits that both provisions provide leeway for
aquaculture to occur to some degree.
Moving away from mussels
28.24
Ms Dawson drew reference in her evidence691 to the provision in the Plan
referring to ongoing research taking place regarding aquaculture for species
other than mussels. It recognises that it is possible that other species may be
less visible and have lesser effects. It also recognises that the Current Plan
provisions are based on bivalve marine farm structures and it may be
necessary for those provisions to be addressed by plan change.
28.25
Mr Ironside, for PWS, contends that the Plan's reference to the prospect of a
plan change only relates to species with lesser effects than mussels, and as
salmon farming has, in Mr Ironside's submissions, greater effects than mussel
farming, it is not applicable.
28.26
With respect, that is not the correct interpretation. The Plan itself does not
include Mr Ironside's limitation, and Ms Dawson does not consider that it
should be read in.692
Casual mooring areas
28.27
Chapter 9 of the Plan addresses the coastal marine area.
Of particular
relevance to some submitters, Policy 9.2.1.16 seeks to "avoid adverse effects
from occupation of space around recognised causal mooring areas".
Ms Dawson was questioned on what constituted a "casual mooring area",693
with a "good fishing spot" suggested to her as constituting a casual mooring
area. Ms Dawson confirmed her view that a casual mooring area must be
more than for a "simple fishing trip".694
In our submission, that must be
correct, or else much of the Sounds would be a "casual mooring area".
Further, the restriction is around "recognised casual mooring areas". This
sets a higher threshold, and in our submission relates to areas which might
be recognised as anchorages on a nautical chart, for example.
695
fishing spot just south of Ruaomoko
691
692
693
694
695
simply does not qualify.
Dawson EIC, para 5.18.
Hearing transcript for 12 October 2012, page 3654 lines 4 -41.
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156
The NZCPS issue
28.28
Under section 67 of the RMA, a regional plan must "give effect to" a national
coastal policy statement.
A number of submitters contend that the Plan
Change does not give effect to the NZCPS and so must fail, primarily on the
basis that:696
(a)
Policy 13 of the NZCPS requires "adverse effects" on areas of
"outstanding natural character" to be "avoided" and "significant
adverse effects" on other areas of the coastal environment to be
"avoided".
(b)
Policy 15 of the NZCPS requires "adverse effects" on "outstanding
natural landscapes" to be "avoided" and "significant adverse effects"
on other "natural landscapes" to be "avoided".
(c)
The development of salmon farms at some of the proposed sites will
have such effects.
(d)
Policy 18 of the NZCPS requires "recognition" of the "need for public
open space" within and adjacent to the coastal marine area
including by ensuring that treatment of public open space is
"compatible" with the natural character, natural features and
landscape and amenity values of the coastal environment.
(e)
The development of salmon farms at some of the proposed sites
may have compatibility effects.
(f)
Accordingly, because the Plan Change will enable salmon farms to
develop in those locations (although through a discretionary consent
process), the Plan Change cannot be said to "give effect to" those
policies of the NZCPS in relation to some of the proposed sites.
28.29
NZ King Salmon accepts in respect of the Papatua site that the Plan Change
does not give effect fully to Policies 13 and 15, as the backdrop to the
Papatua site is identified as an ONFL and an area of outstanding natural
character, and the development of a salmon farm in proximity to that will have
an adverse effect on the ONFL and the outstanding natural character values.
696
Mr Hardy-Jones for the Halsteads; Ms Tree for EDS at paras [19] and [168]-[176]. Mr
Bennion, counsel for the Tahuaroa-Watson Whanau also raised concerns with the Plan
Change giving effect to policy 2 of the NZCPS (relating to the Treaty of Waigangi, tangata
whenua and Māori heritage). NZ King Salmon considers that the Proposal does in fact
give effect to the matters outlined in Policy 2.
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Mr Boffa considers the reality of the effect to be of a low level, and that the
ONFL classification should not be a hindrance.697
28.30
Mr Boffa did not consider the northern side of the Ruaomoko/Kaitapeha
Peninsula to be an ONFL.
Nor did he consider there to be "significant
adverse effects" on the other natural landscapes and other landscapes.698
28.31
Other witnesses have contended for ONFL classification and/or significant
adverse effects for the other farms. The Board is effectively being asked by
submitters to adopt a position, in respect of Papatua, and potentially other
farms (if it finds them to be near ONFLs or to have significant adverse
effects), that would mean that Policy 13 and/or 15 of the NZCPS alone would
prohibit approval of the Plan Change (and therefore the resource consents)
for the relevant sites.
28.32
The Board will need to consider what is required to "give effect to the
NZCPS". There are two parts to this, the term "give effect to" and the extent
to which it is the NZCPS as a whole which is to be "given effect to", or if it is
each and every policy of NZCPS, or at least Policy 13, 15 and 18 that must
be "given effect to".
28.33
"Give effect to" has been explained in the following manner:699
Section 75(3) requires that the Plan Change "must give effect to"
the operative Regional Policy Statement. We agree with Mr Allan,
that with respect to Section 75(3) of the Act, the change in the test
from "not inconsistent with" to "must give effect to" is significant.
The former test allowed a degree of neutrality. A plan change that
did not offend the superior planning instrument could be
acceptable. The current test requires a positive implementation of
the superior instrument. As Baragwanath J said in Auckland
Regional Council v Rodney District Council:
This does not seem to prevent the District Plan taking a
somewhat different perspective, although insofar as it
would be inconsistent, it would be ultra ·vires. (The 2005
Amendment to Section 75, requiring a District Plan to
"give effect to" national policy statements, NZCPS and
Regional Policy Statements, now allows less flexibility
than its predecessor).
The phrase "give effect to" is
understandably so for two reasons:
strong
direction.
This
is
[a] The hierarchy of plans makes it important that
objectives and policies at the regional level are given
effect to at the district level; and
697
698
699
Hearing transcript for 14 September 2012, page 1832 lines 18 - 44 and page 1833 lines 1 21.
Clevedon Cares Inc v Manukau City Council [2010] NZEnvC 211 at [51]-[52].
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[b] The Regional Policy Statement, having passed
through the Resource Management Act process, is
deemed to give effect to Part 2 matters.
28.34
The Environment Court has also been clear that when considering whether
something gives effect to a particular planning instrument, that it is the
instrument as a whole that is important.700 It is not sufficient to require that
every policy be met, nor is it a simple check-box exercise.
Planning
instruments frequently contain a wide range of (often conflicting) provisions.
Requiring that every single policy must be given full effect to would otherwise
set an impossibly high threshold for any type of activity to occur within the
coastal marine area. The Environment Court has recognised the absurdity
that could result from requiring all policies to be achieved by a proposal: 701
We also want to say that where there are relevant general
objectives and policies that might be thought to be in conflict with
more specific relevant objectives and policies, we take the view that
for the purposes of section 105(2)(b)(ii) of the Act it is the latter that
should be regarded as being applicable, otherwise absurd results
could follow. A general objective and policy could be read as
precluding a development referred to in a more specific objective
and policy.
28.35
The planning experts in their first conferencing statement cautioned the board
to consider the plan provisions as a whole.
Ms Cameron also stated in
evidence and through cross examination that it is the NZCPS as a whole
which is to be considered.702 As did Mr Eccles.
28.36
Ms Dawson has carefully considered the Plan Change against each of the
relevant policies of the NZCPS. She has confirmed that each of the three
policies of specific concern to submitters (Policies 13, 15 and 18) has been
given general effect to by the Plan Change.703
28.37
Further, in those locations where the Plan Change only gives general effect to
the policies, the extent to which those policies are impacted on is minimised
as far as reasonably possible through the standards and limits on matters
such as the size of the barges and the colouring of the nets that apply Plan
Change wide. This is a positive implementation of the NZCPS.
28.38
While submitters have largely focussed on Policies 13 and 15, it is also
important to recall that Policy 8 of the NZCPS directs inclusion of provision for
aquaculture activities "in appropriate places in the coastal environment", and
700
701
702
703
Whistler v Rodney District Council EnvC Auckland A22/2002, 19 November 2002; Tait v
Hurunui District Council EnvC Christchurch C106/2008, 29 September 2008.
New Zealand Rail v Marlborough District Council (1993) 2 NZRMA 449 (PT) at 460.
Cameron EIC, para 36; Hearing transcript for 16 October 2012, page 3846 line 30 - 41.
Dawson EIC, paras 8.20 - 8.29.
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159
the evidence is clear that the proposed locations are among the few places
within the coastal environment that are physically suitable (or appropriate) for
salmon farming.
Those aspects of Policy 6 which direct recognition of
activities that have a functional need to locate in the coastal marine area, are
efficient uses of the occupied space, and contribute to social and economic
wellbeing, are also given effect to.
28.39
Further, measures within the Plan Change, and the site selection process,
mean that Policies 7 "strategic planning", 11 "indigenous biological diversity"
12 "harmful aquatic organisms" and 23 "discharge of contaminants" have all
been given substantial effect to, as well as the remaining policies not already
identified.
28.40
When the NZCPS is considered as a whole, Ms Dawson's evidence is clear
that the Plan Change will give overall effect to the NZCPS with some policies
given effect to more strongly than others.704
29.
PART 2 MATTERS
29.1
Part 2 is the engine room705 of the RMA and is designed to govern the
exercise of every function and power under the RMA. Consideration of Part 2
matters lies at the heart of the Board's assessment of the Plan Change.706
29.2
The ultimate decision for the Court is to achieve the "single broad purpose"707
of the RMA which is the sustainable management of the relevant resources
under section 5(1) of the RMA. Section 5(2) then defines "sustainable
management" in two parts: first the enabling of people and communities to
provide for their wellbeing, health and safety; and secondly the sustaining and
safeguarding of certain resources, and the avoiding remedying and mitigating
of adverse effects on the environment.
29.3
NZ King Salmon has no difficulty with the enabling provision. The community
within which NZ King Salmon operates will benefit from new farming
opportunities.708
29.4
Properly analysed, this proposal meets the test in s5(2)(a). Should future
generations decide to remove the farm structures, the visual effects are
704
705
706
707
708
Auckland City Council v John Woolley Trust [2008] NZRMA 260 (HC) at [47].
RMA, s 66(1).
McGuire v Hastings District Council [2001] NZRMA 557 (PC) at [21].
Hearing transcript for 16 October 2012, page 3895 lines 1 – 10 (per Hawes).
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instantly removed. Substantial rehabilitation of the seabed will occur within 2
years, as the Forsyth and Waihinau examples show.709
With ongoing
fallowing the seabed can approach background conditions within 5-10 years.
Future generations will not be limited by the choices which we make.
29.5
Air, water, soil and ecosystems are affected in the immediate vicinity of the
pens. However, the conditions of consent constrain those effects. The farms
have been deliberately sited to minimise effects on benthic ecosystems.
Section 5(2)(b) requires the life supporting capacity to be safe guarded. Even
under the pens the ecosystems, while modified by the enrichment, will not be
devoid of life. This condition will be met by the farms.
29.6
To the extent possible, adverse effects of the environment have been
avoided, remedied or mitigated. Salmon thrive in cool, fast flowing water.
Avoidance of all adverse effects is not possible, nor required by the s5(2)(c).
The siting of farms to enable salmon production while avoiding houses,
significant benthic communities, area of high natural character and visual
amenity, navigation routes and all the other considerations yields few sites.
Adverse effects are mitigated as far as practicable.
29.7
Ms Dawson, in her evidence in chief considered each of the Part 2 matters in
light of the evidence produced in respect of the Proposal and came to the
following conclusions:
Section 6 - matters to be recognised and provided for:
(a)
Section 6(a) the preservation of the natural character of the coastal
environment (including the coastal marine area)…and the protection
of them from inappropriate subdivision, use and development - at a
Sounds wide scale, the elements, patterns and processes of the
natural character will not be adversely affected by the proposal. The
adverse effects on areas of outstanding natural character have
generally been avoided resulting in adverse effects in these areas
being low. 710
(b)
Section 6(b) the protection of outstanding natural features and
landscapes from inappropriate subdivision, use and development -
709
710
Seabed Report, para 27.
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161
the effects on the ONFL within the Sounds as a whole will also be
low.711
(c)
Section 6(c) the protection of areas of significant areas of
indigenous vegetation and significant habitats of indigenous fauna as a result of the site selection process, the depositional footprints of
all but the Ngamahau site avoid areas of significant ecological
value.712 At Ngamahau the seabed in the vicinity supports true
hydroid and biogenic clumps that are ecologically significant.
However, those areas are primarily outside the depositional footprint
of the farm where effects are expected to be negligible and
addressed through adaptive management.
Effects on areas of
similar habitat occurring within the footprint will be addressed
through biological compensation.713
There are unlikely to be discernible environmental effects on
seabirds, including New Zealand King Shags,714 or on populations of
seals, dolphins and whale species found in the Sounds.715
(d)
Section 6(d) the maintenance and enhancement of public access to
and along the coastal marine area - the farms will need to be
navigated around but are not a significant impediment to navigation
nor do they pose any navigational risk.716 Public access along the
coastal marine area will be able to be maintained. The proposed
sites have activities that are reasonably substitutable (with the
possible exception of diving in Port Gore) nearby and the cumulative
impact on tourism and recreation throughout the Sounds will be
minor.717
(e)
Section 6(e) the relationship of Māori and their culture and traditions
- NZ King Salmon recognises and has had particular regard to the
relationship of Te Tau Ihu Iwi with their culture and traditions with
waterbodies of the Sounds and has been active in consulting or
making significant efforts to consult with iwi regarding the potential
711
712
713
714
715
716
717
Dawson EIC, para 8.129. Refer also Hearing transcript for 12 October, page 3603 lines 35
- 41.
Dawson EIC, para 8.130. Refer also Hearing transcript for 12 October, page 3608 lines 14
- 27.
2464333 (FINAL)
162
effects of the proposed salmon farms in order to recognise and
respond to them through its Proposal.718 The conditions attached to
the salmon farming consents are aimed at avoiding and, where
avoiding is not possible, substantially mitigating adverse effects on
the Sounds waterways.
(f)
Section 6(f) the protection of historic heritage - the impact of the
proposed salmon farms on historic heritage will be minimal or nonexistent (with the exception of the Post Office Point gun
emplacement, near Kaitira, but its fundamental heritage values will
remain and be protected).719
Section 7 - matters to have particular regard to
(g)
Section 7(a) kaitiakitanga - NZ King Salmon's relationship with Te
Ātiawa has resulted in proposed conditions which strongly support
that Iwi's kaitiaki role with the waterbodies of its rohe.
Other
proposed conditions provide an opportunity for other iwi to take up
similar kaitiaki roles with the monitoring and environmental
management of the farms and their effects.720
(h)
Section 7(aa) the ethic of stewardship - the approach of the Plan
Change and the framework it establishes will amount to appropriate
stewardship at the limited discrete locations in the Sounds that are
the subject of the Plan Change.721
(i)
Section 7(b) the efficient use an development of natural and physical
resources - salmon farming at the proposed sites is efficient, as is
the method of farming itself.722 Ms Dawson concludes that the use
of the space for efficient production of fish protein, that is highly
valued worldwide and which can make a significant contribution to
the Marlborough and Nelson economics is efficient use and
development of this natural resource.723
718
719
720
721
722
723
Dawson EIC, para 8.134; Dawson EIR, para 10.15; Hearing transcript for 15 October
2012, pages 3811 - 3812.
Dawson EIC, para 8.137; Dawson EIR, para 10.17; Hearing transcript for 15 October
2012, pages 3813 - 3814.
2464333 (FINAL)
163
(j)
Section 7(c) the maintenance and enhancement of amenity values the initial site selection process sought to avoid significant adverse
effects on amenity values and locations that would result in
significant adverse effects from dwellings have by and large been
avoided.724 The visual amenity values will be generally maintained,
other than for the nearest dwelling to the Ngamahau site,725 albeit
that the house is over 1 km from the site.
(k)
Section 7(f) maintenance and enhancement of the quality of the
environment - the provisions of the Plan Change ensure that
adverse effects on the qualities of the Sounds environment are
avoided, remedied or mitigated.726
Section 8 - shall take into account the Treaty of Waitangi
(l)
NZ King Salmon has continued to actively consult with iwi and
continues to be willing to meet and consult with iwi.727 This has
resulted in a stronger relationship between the company and Te
Ātiawa.
NZ King Salmon seeks to continue to strengthen its
relationship with Ngāti Koata and Ngāti Kuia.
In respect of the
principle of active protection, there will be little or no impact on the
integrity of the Sounds waterways, on customary fishing, and on
access to the Sounds resources as a whole.728 NZ King Salmon
seeks to involve iwi in proposed monitoring and environmental
management to ensure ongoing protection of those values.
Regarding
mutual
benefit,
the
evidence
and
environmental
assessments have shown how environmental concerns of iwi can be
addressed, and if the Proposal is approved, iwi will benefit from the
Crown's obligation to provide 20% of aquaculture space or
equivalent to Māori.729
29.8
The matters identified above are all important in informing and assisting the
purpose of the RMA. They are, however, not an end or objective in their own
right, nor matters to be protected at all costs.730
724
725
726
727
728
729
730
Dawson EIC, para 8.150(a); Dawson EIR, para 10.18 - 10.20.
Dawson EIC, para 8.150(b).
Dawson EIC, para 8.150(c).
New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 86.
2464333 (FINAL)
164
29.9
A general theme running through the evidence and representations for the
opposition parties has been the allegation that the proposed salmon farms
will not be "sustainable". However, such arguments conflate the element of
ecological
sustainability
with
management" under the RMA.
the
broader
concept
of
"sustainable
Ecological sustainability is an important
component of section 5, as encapsulated in subsection (2)(b) which refers to
"safeguarding the life-supporting capacity of air, water, soil, and ecosystems".
However, it is only one component of "sustainable management" under the
RMA, which also includes elements such as enabling people and
communities to provide for their social and economic wellbeing, and each
aspect must be considered as part of the overall broad judgment.731
29.10
When undertaking its consideration of the Proposal in light of the matters
outlined above, and the evidence and submissions before the Board, NZ King
Salmon submits that broad judgement should be exercised in favour of the
Plan Change.
PART E: RESOURCE CONSENT TESTS
30.
RELEVANT TESTS
30.1
As recorded in the Opening Submissions, the resource consents (other than
White Horse Rock) are to be assessed against the Plan as amended by the
Board's determination on the Plan Change.732
30.2
The relevant sections when determining the applications for resource consent
are:733
(a)
Section 104;
(b)
Section 105, which provides additional matters to be considered in
applications for discharge permits;
(c)
Section 107, which restricts the consent authority from granting a
discharge permit if, after reasonable mixing, the discharge would
have specified effects;
(d)
731
732
733
Section 108, in relation to conditions; and
North Shore City Council v Auckland Regional Council [1997] NZRMA 59 (EnvC) at [93][94].
Opening Submissions for NZ King Salmon at para 8.2(c).
Opening Submissions for NZ King Salmon at paras 8.41 - 8.44.
2464333 (FINAL)
165
(e)
Part 2.
31.
APPLICATION OF TESTS: SECTION 104
31.1
The section 104 framework will be very familiar to the Board and is not
repeated here. However, we will address relevant aspects of the section 104
criteria below.
Environmental effects
31.2
The Board is required to have regard to the actual and potential effects of
allowing the activities sought through the resource consents. These effects
are set out in Part C: evaluation of key effects. That analysis is not repeated
here.
Planning framework
31.3
The Board is also required to have regard to the relevant planning
instruments, including the NZCPS. The relevant policies of the NZCPS are
outlined in Ms Dawson's evidence.734
31.4
Ms Dawson, in her evidence in chief, sets out the relevant planning
framework and assesses the applications (and the Plan Change) against that
framework. Again, that analysis is not repeated here.
Other matters - "environmental compensation"
31.5
Environmental compensation is proposed in respect of the Ngamahau site, to
address the loss of a small number of biogenic clumps under the site (with
the more significant areas avoided through micro-siting).
The relevant
condition of consent has been headed "biological compensation".
31.6
Mr Brosnan suggests that this is not compensation and that the condition
should be deleted, while Ms Cameron wishes for the condition to be renamed
"biological survey" (implying that she does not consider it to be
compensation).735 While the substance of what is offered is more important
to consider than what it may be termed, NZ King Salmon does consider the
proposed biological surveys to be a form of environmental compensation. As
stated in JF Investments:736
734
735
736
J F Investments Limited v Queenstown Lakes District Council EnvC Christchurch
C48/2006, 27 April 2006 at [8] and [23].
2464333 (FINAL)
166
We define as 'environmental compensation' any action (work,
services or restrictive covenants) to avoid, remedy or mitigate
adverse effects of activities on the relevant area, landscape or
environment as compensation for the unavoided and unmitigated
adverse effects of the activity for which consent is being sought. …
In every decision under the Act a choice or compromise is almost
always made between limiting the economic and social conditions
of people by avoiding the adverse effects of their activities or
enabling individual's wellbeing by allowing some adverse
environmental effects to occur, duly remedied or mitigated to the
appropriate extent. Environmental compensation is one type of
choice or compromise.
31.7
In Haka737 the Court provided that environmental compensation does not infer
the lessening of adverse effects, but the offering of recompense for the loss
or impairment of whatever advantage or amenity has been affected. Further,
environmental compensation is a broad and flexible concept which can "be
considered as a relevant ...other matter...under s104(1)(c) in coming to an
overall decision under s5 as to whether a particular proposal will promote the
sustainable management of resources".738
31.8
JF Investments also provides considerations "most" of which will be met
when considering whether environmental compensation is relevant and
reasonably necessary. We provide in square brackets how the proposed
biological compensation meets those matters after each element below:739
We conclude that off-site work or service or a covenant, if offered
as environmental compensation or a biodiversity offset, will often be
relevant and reasonably necessary under section 104(1)(i) if it
meets most of the following desiderata:
(1)
it should preferably be of the same kind and scale as
work on-site or should remedy effects caused at least in
part by activities on-site;
[here, the biological survey is intended to reveal other
locations of similar habitats to those that will be affected
by the Ngamahau site, which will have value for further
monitoring, and potentially protection of those particular
habitats]
(2)
it should be as close as possible to the site (with a
principle of benefit diminishing with distance) so that it is
in the same area, landscape or environment as the
proposed activity;
[here, the survey is to be undertaken in the Tory
Channel, which is where the Ngamahau site is located,
and where similar habitats are expected to be found]
737
738
739
Haka International NZ Ltd v Auckland Regional Council EnvC Auckland A097/2007,
29 November 2007.
Haka International NZ Ltd v Auckland Regional Council EnvC Auckland A097/2007,
29 November 2007 at [11].
J F Investments Limited v Queenstown Lakes District Council EnvC Christchurch
C48/2006 27 April 2006 at [42].
2464333 (FINAL)
167
(3)
it must be effective; usually there should be conditions (a
condition precedent or a bond) to ensure that it is
completed or supplied;
[Here, the condition requires the survey to be
undertaken within three years of the grant of consent. It
is not a significantly costly exercise, and no bond is
proposed in the circumstances. The Council can be
expected to prevent the operation of the farm if the
survey has not been completed.]
(4)
there should have been public consultation or at least
the opportunity for public participation in the process by
which the environmental compensation is set;
[Here, the public has been made aware of the Proposal
through the conditions and evidence. While the Council
would prefer a contribution to its monitoring costs, noone has otherwise said the proposed compensation is
inappropriate] and
(5)
it should be transparent in that it is assessed under a
standard methodology, preferably one that is specified
under a regional or district plan or other public
document.
[Here, the survey is of the sort that has was undertaken
in the Davidson Report, and so the methodology and
criteria for assessment are well known and understood]
31.9
Accordingly, NZ King Salmon considers the proposed biological survey to be
appropriate compensation for the limited effects that the Ngamahau farm will
have on identified biogenic clumps beneath the farm.
Part 2
31.10
The section 104 criteria outlined above are to be had regard to in light of Part
2. The fundamental importance of Part 2 and the matters relevant to the
Proposal are discussed in length above in respect of the Plan Changes in
section 29. The same assessment and evaluation applies to the resource
consent applications as well and is therefore not repeated here.
31.11
NZ King Salmon submits, that then exercising its overall broad judgement,
the Board should find in favour of granting the resource consents.
31.12
Part 2 and the purpose of the RMA is also relevant when considering the
other sections outlined below.
31.13
Some submitters have also suggested that there has been no effective
mitigation. In fact, through the process, NZ King Salmon has taken a number
of steps to ensure that adverse effects are appropriately mitigated. Examples
include:
2464333 (FINAL)
168
(a)
Each farm is very confined in size. In context, the 1.5ha size of
most of the farms is very small.
(b)
The Ruaomoko and White Horse Rock sites will have even smaller
farms, with fewer pens.
(c)
The Papatua farm has been designed to make it less visible.
(d)
Four of the sites740 are not proposed to have barges.741
(e)
The design of the barges has been improved.
(f)
Colour controls are proposed in relation to the barges and the farms
themselves.
32.
SECTION 105
32.1
Section 105 sets out additional matters relevant to applications for discharge
permits or coastal permits to do something that contravenes section 15 of the
RMA. The Board must have regard to the matters set out, being:
(a)
the nature of the discharge and the sensitivity of the receiving
environment to adverse effects;
(b)
NZ King Salmon's reasons for its proposed choice; and
(c)
any possible alternative methods of discharge, including discharge
into any other receiving environment.
32.2
As set out in the AEE, and the evidence of Ms Dawson,742 regard has been
had to the sensitivity of the receiving environments for the discharges, the
potential for alternatives, and NZ King Salmon's reasons for its proposed
choice.
32.3
Those matters reinforce the appropriateness of what NZ King Salmon has
proposed.
740
741
742
Ruaomoko, Papatua, Tapipi and White Horse Rock.
However, if the Richmond site is not granted, Tapipi will have its own barge, and if the
Waitata site is not granted, White Horse Rock will have its own barge.
2464333 (FINAL)
169
33.
SECTION 107 ISSUES
The issue - belatedly raised
33.1
PWS and the SoS Group each now contend that section 107 precludes the
Board from granting a discharge consent under section 15 to authorise the
discharge of fish feed, on the basis that the benthic depositional footprint
extends beyond a "reasonable mixing zone", or that the effects of the
discharges in the receiving waters will have significant effects on aquatic
life.743
33.2
As the issue has been raised as a "jurisdictional bar" or "knockout", it is
addressed in some detail, although we submit the interpretation contended by
PWS and the SoS Group is untenable.
33.3
In summary, NZ King Salmon's position is:
(a)
Section 107 applies only to the "receiving waters" which does not
include the seabed. The alternative interpretation put forward by
PWS and SoS is inconsistent with the scheme of the RMA and
would result in perverse outcomes.
(b)
Within the receiving waters and after reasonable mixing, none of the
section 107 effects thresholds are met.744
(c)
NZ King Salmon called evidence on section 107 issues from Mr
Preece, Mr Barter, Dr Gillespie, Mr Sneddon and Ms Dawson. None
of those witnesses were cross-examined in respect of section 107.
(d)
Section 107 was not raised as one of the contested issues required
to be identified by the Inquiry Procedures,745 nor has leave been
sought to raise it belatedly.
(e)
Notwithstanding the above, even if benthic effects are considered,
the section 107 thresholds are still not met.
743
744
745
Opening submissions for PWS, pages 16 - 20 and closing submissions pages 2 - 4;
opening submissions for SoS, pages 51 - 55.
For clarity, s107 is not breached in respect of ES5.0 (or, of course, a lower standard). Mr
Ironside's argument (PWS Closing Submissions, para 17) with regard to limiting discharge
of feed to the E.S3.0 stage is not justified, as s107 is not breached by the high ES 5.0
standard.
Inquiry Procedures and Notice of Hearing of the Board dated 6 June 2012, at paras [64] –
[65].
2464333 (FINAL)
170
(f)
Accordingly, section 107 does not prevent the grant of any of the
resource consents.
The statutory provisions
33.4
Section 107 (as relevant) states:
107
Restriction on grant of certain discharge permits
(1)
Except as provided in subsection (2), a consent authority
shall not grant a discharge permit or a coastal permit to
do something that would otherwise contravene section
15 … allowing—
(a)
The discharge of a contaminant … into water;
…
if, after reasonable mixing, the contaminant …
discharged (either by itself or in combination
with the same, similar, or other contaminants
or water), is likely to give rise to all or any of
the following effects in the receiving waters:
(c)
The production of any conspicuous oil or
grease films, scums or foams, or floatable or
suspended materials:
(d)
Any conspicuous change in the colour or
visual clarity:
(e)
Any emission of objectionable odour:
…
(g)
(2)
Any significant adverse effects on aquatic life.
A consent authority may grant a discharge permit or a
coastal permit to do something that would otherwise
contravene section 15 [[or section 15A]] that may allow
any of the effects described in subsection (1) if it is
satisfied—
(a)
That exceptional circumstances justify the
granting of the permit; or
(b)
That the discharge is of a temporary nature;
or
…
and that it is consistent with the purpose of this Act to do
so.]
[(3)
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In addition to any other conditions imposed under this
Act, a discharge permit or coastal permit may include
conditions requiring the holder of the permit to undertake
such works in such stages throughout the term of the
permit as will ensure that upon the expiry of the permit
the holder can meet the requirements of subsection (1)
and of any relevant regional rules.]
171
33.5
As relevant, section 15 provides:
15
Discharge of contaminants into environment
(1)
No person may discharge any—
(a)
Contaminant … into water; or
…
unless the discharge is expressly allowed by a [national
environmental standard or other regulations, a rule in a
regional plan as well as a rule in a proposed regional
plan for the same region (if there is one), or a resource
consent].
33.6
Importantly, section 107 is only triggered in limited circumstances:
(a)
It is only relevant where consent is required to authorise a person to
discharge a contaminant into water.
(b)
It is limited to effects "in the receiving waters". This is a critical
limitation that has been misunderstood by PWS and SoS and which
will be further discussed below.
(c)
The consideration of the level of effects is to occur "after reasonable
mixing".
(d)
The various effects expressed in section 107 must reach a certain
threshold for section 107 to bite - depending on the effect that
threshold is either "conspicuous", "objectionable" or "significant.
(e)
33.7
The section 107 thresholds can be met by conditions of consent.746
Before discussing how section 107 is satisfied, we will discuss the concept of
"in the receiving waters".
"In the receiving waters"
33.8
Section 107 is not a replacement for section 104 with respect to discharges to
water - it is an additional gateway that must be considered, focussing on
certain specified effects. Critically, it does not require a consideration of all
effects of the discharge. Rather, it is focussed on whether certain effects
thresholds are exceeded "in the receiving waters". Both PWS and SoS either
overlook or misinterpret this critical distinction.
746
Renouf and Dodds v Hawkes Bay Regional Council and Central Hawkes Bay District
Council EnvC Wellington W090/2006, 26 October 2006 at [17] - [18].
2464333 (FINAL)
172
33.9
While "water" is broadly defined in the RMA, "receiving waters" is not defined.
The receiving waters are well understood to be the waters at the point of
discharge. In the context of a salmon farm that would logically be at the edge
of a cage.
33.10
However, it does not extend to include other aspects of the environment
beyond the water itself. In particular, it does not include the seabed and
benthic environment.
33.11
The RMA distinguishes between water and the seabed. This occurs both in
relation to the separate definitions of "water" and "bed"747 and in relation to
the control of activities - section 15 controls discharge to water, whereas the
deposition of matter on the seabed is controlled by section 12.
That
distinction within the RMA must, in our submission, be relevant to the
consideration of what constitutes the "receiving waters" in the section 107
context.
Just as one would not normally consider the seabed near a
stormwater outfall to be the receiving waters, NZ King Salmon submits that
the seabed should not be considered part of the receiving waters.
33.12
Adopting the interpretation of section 107 suggested by PWS and SoS would
result in perverse outcomes:
(a)
Including depositional effects on the seabed and benthic habitat
within the section 107 assessment would mean that the effects of
deposition could act as a potential obstacle to grant for an indirect
deposition (as is proposed here), but there would be no such
restriction if the deposition were occurring directly, as section 107
only relates to permits to discharge contaminants to water (ie under
section 15 or 15A), not to consents for deposition of material onto
the seabed (under section 12(1)(d)).
(b)
It would also run the risk of prohibiting any finfish farming in coastal
waters, given that most finfish farming or "fed" aquaculture will result
in some adverse effects on the benthic environment as a result of
deposition of waste matter. Parliament cannot have intended this
result when it enacted section 107, and we submit that such an
interpretation would be particularly inconsistent with Parliament's
desire to facilitate aquaculture (including finfishing) through the
aquaculture reforms.
747
"Bed" and "water" have separate meanings within RMA, s 2.
2464333 (FINAL)
173
33.13
There is no need to strain the meaning of section 107 in the way suggested
by the opponents in order to properly examine the effects of marine farming
applications on the benthic environment. The effects on benthic communities
can be considered under section 104 and Part 2 in the usual way.
The discharge in question
33.14
The discharge to water of principal concern is that of fish feed by NZ King
Salmon.748 It is accepted that fish feed is a contaminant749 and that NZ King
Salmon requires a consent to discharge it to water under section 15.
33.15
The fish feed is an extruded pellet, like a hard biscuit, that does not dissolve
immediately on contact with water but which retains its form until eaten by the
salmon, and only 0.1-0.3%750 is actually lost to the environment. There is no
suggestion that any of the thresholds referred to in section 107 are met from
the very small proportion of pellets which are not eaten by the salmon. By
itself, in our submission, the uneaten fish feed would not trigger any section
107 issues.
33.16
However, the consideration of the effects of the discharge required under
section 107 includes the effects arising from the salmon processing the fish
pellets and excreting ammonia/nitrogen and faeces into the receiving waters.
It is these effects which are of primary concern to submitters.
33.17
Consideration therefore needs to be given to whether any of the relevant
effects listed in section 107 arise in the receiving waters. It has not been
suggested that the fish faeces give rise to any conspicuous oil or grease
films, or scums or foams. Nor has it been suggested that the fish faeces give
rise to any objectionable odour (from the surface, if feed levels are managed
to avoid significant out gassing from the seabed).
748
749
750
Other discharges, such as biofoul from when cleaning netpens, do not seem to have been
the focus of the s 107 concerns.
RMA, s 2: Contaminant includes any substance (including gases, odorous compounds, liquids, solids, and microorganisms) or energy (excluding noise) or heat, that either by itself or in combination with
the same, similar, or other substances, energy, or heat—
(a)
when discharged into water, changes or is likely to change the physical,
chemical, or biological condition of water; or
(b)
when discharged onto or into land or into air, changes or is likely to change the
physical, chemical, or biological condition of the land or air onto or into which it
is discharged.
NIWA "Estimation of feed loss from two salmon cage sites in Queen Charlotte Sound",
September 2011, page 18.
2464333 (FINAL)
174
Conspicuous suspended materials, etc
33.18
SoS has suggested that the fish faeces may give rise to "conspicuous"
suspended materials in the receiving waters, while the witness for PWS
raised the issue of re-suspension of deposited sediments into the water
column.751 There was no suggestion that the suspended or re-suspended
materials would be seen from the surface of the water, although Mr Heal
suggested that if any suspended sediments were "visible" (to the naked eye)
by some observer on the seabed752 then they would be "conspicuous" in the
sense that term is used in section 107.
33.19
While something that is "conspicuous" must necessarily be visible, it is our
submission that conspicuous must mean more than visible to the naked eye:
(a)
"Conspicuous" is defined in the dictionary as:753
Clearly visible, striking to the eye;
Obvious, plainly evident, attracting notice, remarkable, noteworthy.
(b)
Consistent with that definition, the Courts have interpreted
"conspicuous"754 as "to draw special attention or attract special
notice".755
33.20
It was the unchallenged evidence of Mr Preece that, with one exception, there
is no conspicuous change in colour or visual clarity as a result of the
presence of the farms.756 He then states:757
The one exception to that is where water-blasting the grower nets is
occurring in water. That process releases marine biofouling into
the water column which is noticeable for only a matter of metres
from the farms
33.21
The same unchallenged evidence was given by Dr Gillespie who stated:758
Section 107 of the RMA lists several standards with regard to the
effects of a discharge on visual and aesthetic characteristics of the
receiving water environment. To my knowledge there have been no
instances reported where the production of conspicuous foams,
751
752
753
754
755
756
757
758
Hearing transcript for 19 September 2012, page 2301 line 40 - 45.
Hearing transcript for 28 September 2012, page 2711 - 2714: And putting to one side the
potential for that observer to have stirred up the sediments themselves.
Shorter Oxford English Dictionary Volume One (5th ed, Oxford University Press, New
York, 2002) page 495.
Albeit in the context of a "conspicuous statement", rather than in the RMA context.
Clyde Engineering Ltd v Russell Walker Ltd [1984] 2 NZLR 343 at 344, 346 and 351.
Preece EIC, para 158.
Preece EIC, para 160.
Gillespie EIC, paras 33 and 34.
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175
films, floatables or objectionable odours have occurred at existing
salmon farms in the Marlborough Sounds.
I am also not aware of the occurrences any visible changes in
colour or clarity of surface waters around the farms. This is based
on my own experience involving numerous visits to salmon farms in
New Zealand. The only exception to this would be the temporary
visible turbidity episodes associated with cleaning of biofouling from
the salmon enclosure nets. I have not personally witnessed these
however their frequency and scale are discussed in the evidence of
Mr Mark Preece. I expect that these events are localised and short
term such that adverse impacts to the water column environment
would not be significant after reasonable mixing.
33.22
The evidence of Dr Gillespie and Mr Preece talks about discharges from the
likes of water blasting dissipating within metres of the farm. No one has
suggested that that is other than "reasonable mixing". The term "reasonable
mixing", as the Board will be aware, is not defined in the RMA.
33.23
The Plan however provides some guidelines. At a broad level, Policy 1.3
provides:
No discharge, after reasonable mixing, (either by itself or in
combination with other discharges) should limit the consumption of
seafood from the coastal marine area.
33.24
A small distance is mentioned in the evidence of Dr Gillespie and Mr Preece
which would not limit the consumption of seafood.
33.25
Section 9.3.3, which is part of the Coastal Marine Chapter, provides some
additional guidance, but unlike the provisions for rivers, streams, and lakes,
does not provide any areas or distances for reasonable mixing in the coastal
marine area.
33.26
As nobody has suggested that the sorts of distances detailed in the evidence
of Dr Gillespie and Mr Preece would fall foul of that criteria, one can only
conclude that the minimal material which does fall to be addressed pursuant
to section 107 does not create any difficulty in terms of this application.
33.27
For completeness, Mr Barter (in respect of greywater)759 and Mr Sneddon (in
the context of copper and zinc discharges)760 also dealt with section 107.
33.28
None of those individuals were cross examined on any of that material. Nor
was section 107 raised in the contested issues as required by the Inquiry
Procedures.761
759
760
761
Barter EIC, para 55.
Sneddon EIC, para 76.
Inquiry Procedures and Notice of Hearing of the Board dated 6 June 2012, at paras [64] [65].
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33.29
Some confusion might have occurred in viewing some of Mr Boulton's videos.
In his submissions, Mr Ironside stated that the excretions of the fish will
create "a rain of suspended materials".762
In the Kaitapeha/Ruaomoko
survey in Mr Boulton's videos beginning at 0:35 one can plainly see what
would appear to be the "rain" which Mr Ironside might be talking about. That
is entirely natural. There are no farms at or near the Kaitapeha or Ruaomoko
sites.
33.30
It follows that the only evidence of "rain" is that which is naturally occurring.
Significant effects on aquatic life
33.31
PWS did make reference to subsection 107(1)(g)763 and the requirement that
the discharge of fish feed not give rise to or be likely to give rise to any
significant effects on aquatic life (in the receiving waters). Their discussion
on the issue centred around the benthic effects and whether ES3.0 would be
a more appropriate standard than ES5.0, ie around whether there might be
significant effects on benthic aquatic life.
33.32
Given the differentiation between the water column ("in the receiving waters")
and the seabed as discussed above, it is only effects on aquatic life within the
receiving waters (and not effects on the seabed) that are relevant to section
107. We acknowledge the wide definition of "aquatic life",764 but submit that it
must be limited to aquatic life "in the receiving waters" (not aquatic life living
on or under the surface of the seabed). It must also follow that any effects on
the benthic fauna and benthic in-fauna cannot be effects on aquatic life "in
the receiving waters".
33.33
Briefly, on the question of "significance": What is "significant" is an evaluative
judgment dependent on the relevant circumstances. In the context of the
RMA, a significant adverse effect has been confirmed as a "scientific
significant adverse effect".765
33.34
In respect of effects of aquatic life within the receiving waters (water column):
762
Hearing transcript of 20 September 2012, page 2248 line 12.
Opening submissions for PWS, pages 16 - 20 and closing submissions for PWS, para 8.
Aquatic life— (a) means any species of plant or animal life that, at any stage in its life
history, must inhabit water, whether living or dead; and (b) includes seabirds (whether or
not in the aquatic environment).
Biomarine Limited v Auckland Regional Council EnvC Auckland A14/07, 13 February 2007
at [39]-[43] and [105]; Meridian Energy Limited v Wellington City Council [2012] NZEnvC
27.
763
764
765
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(a)
Dr Gillespie, in conjunction with evidence of Mr Knight and Mr
McKenzie suggests a rationale for the development of the proposed
NZ King Salmon farm sites that will result in minimum risk to the
ecological integrity of the Marlborough Sounds water column
environment.
In combination with monitoring this would enable
development
and
implementation
of
appropriate
adaptive
management measures to ensure protection of the environment.766
(b)
Dr Dempster in his unchallenged evidence stated that the main
impact of salmon farms on wild fish populations will likely stem from
the waste salmon feed that falls from the farm system. NIWA have
verified this to be generally 0.1% - 0.3% of total feed used.
(c)
There are no witnesses suggesting a significant effect on aquatic life
in the receiving waters.
33.35
Even if section 107 were interpreted so as to include consideration of benthic
effects, the evidence for NZ King Salmon is clear that there are no significant
effect. As stated in section 9 above767 depositional impact will represent an
appropriate balance between minimising effects and enabling efficient and
productive use of the marine resource.
33.36
Accordingly, section 107 presents no impediment to the grant of any of the
resource consents. The "safeguard" to s107 not later being breached by a
consent holder are the conditions of consent that require ongoing monitoring.
34.
RESOURCE CONSENT CONDITIONS
34.1
The Board can grant the Proposal subject to conditions.768 The conditions
considered appropriate by NZ King Salmon have been provided to the Board,
most recently following expert conferencing.769 A further set of conditions in a
"clean" form is attached to these submissions, reflecting NZ King Salmon's
final position on conditions, having had the final cross examinations of the
planning experts yesterday.
34.2
Before turning to the detail of some of the conditions, the Board has queried
the extent of the technical input which can be provided on the Board's draft
report, particularly in relation to conditions. NZ King Salmon understands the
766
767
768
769
Gillespie EIC, pages 26 - 27.
Refer para 9.41(b).
RMA, s 108.
NZKS Proposed Conditions: Closing - 18 October 2012.
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Board's concern, as it finds itself in the difficult position where it is faced with
requests from the Council to simplify the conditions, yet is also faced with
requests from submitters to provide additional detail on a variety of matters.
The Board's decision on some of the matters (assuming it approves the
Proposal) will also impact on the conditions required.
34.3
Section 149Q(2) sets out what is required in the Board's draft report. It
requires a statement of the principal issues in contention and the Board's
main findings on those principal issues. Section 149Q(4) requires the EPA to
invite "comments on minor or technical aspects" from persons to whom the
draft report is required to be sent. Section 149Q(5) then provides guidance
as to what "comments on minor or technical aspects" means. Importantly, it
expressly includes comments on the wording of conditions.
34.4
Accordingly, NZ King Salmon submits that:
(a)
The Board is required to make findings on all principal issues in
contention, including those in relation to conditions.
(b)
The opportunity to provide comments on the draft report does not
provide an opportunity for parties to advance significant changes to
the draft conditions, nor to produce fresh evidence.770
(c)
Provided that it has made findings on all principal issues (for
example, such as the appropriate ES level, and in relation to which
party
the
Peer
Review
Panel
should
advise
or
make
recommendations to), the Board could potentially then invite
comment from the parties on the wording of the conditions to give
effect to the Board's findings.
(d)
However, in our submission, the safer approach would be for the
Board (if it were to approve the Plan Change and grant consent to
some or all of the sites) to produce draft conditions to accompany its
draft report. That would then provide a starting point for the parties
to provide comment and would give the Board the benefit of
receiving comments on a base document. Otherwise, it would run
the risk of parties using the greater latitude of a blank canvas to
advance their position, resulting in divergent comments on the
condition wording, which may not assist the Board.
770
Final Report and Decision of the Board of Inquiry for the Upper North Island Grid Upgrade
Proposal, which made the comments in relation to s 149Q's predecessor.
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34.5
Turning to the conditions themselves, we wish to make the following
comments in respect of some of the areas of dispute.
Term of the resource consents
34.6
As stated in our opening submissions, NZ King Salmon has sought 35 years
as the duration for its consents in the eight new CMZ3 zones. Mr Mark
Hutton, from Direct Capital and a director of NZ King Salmon Investments
Limited, provided unchallenged evidence explaining the reasons why this
duration of consent is so important both for investor certainty and in order to
generate a sufficient return on investment to attract the significant level of
capital required.
34.7
We remind the Board that Parliament has emphasised the importance for
consent authorities to grant long term consents for aquaculture by amending
the RMA to introduce a minimum 20 year duration for resource consents for
aquaculture activities only.771 Parliament recognised the need in the industry
for sufficient time to establish and successfully operate marine farms.
Condition 1 - "Generally in accordance with"
34.8
There has been some disagreement between the planners as to whether
condition 1 (which sets out the basic restrictions on the occupation and
activity area) should enable the farms to be developed "generally in
accordance with" the application documentation.772
34.9
NZ King Salmon's firm position is that the phrase "generally in accordance
with" is appropriate to include within condition 1.
In relation to complex
matters of final design it is common and sound resource management
practice to provide that in activity should proceed in general accordance with
specified diagrams or plans. This enables a necessary degree of flexibility in
adapting to situations as they arise, and provided that the substantive
conditions on the management of effects can be complied with, should not
give the Board any reason for concern. The use of the formula "generally in
accordance with" has also been recognised as appropriate by the Courts.
The Environment Court recently made the following observations, in relation
to one such condition:773
771
772
773
RMA, s 123A.
NZKS Proposed Conditions: Planners Conferencing - 9 October 2012, page 4.
Palmerston North City Council v New Zealand Windfarms Ltd [2012] NZEnvC 133 at [76][78].
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Dr Mitchell and Mr Holm, appeared to agree with the proposition
advanced by the Council Planner...that the term generally allows
some tolerances in terms of compliance with the information
contained in the AEE. We agree with Dr Mitchell's observation that
this is a practical and robust approach to the imposition of
conditions, particularly in respect of complex projects.
The
alternative of requiring compliance with application plans and
information in the most minute detail seems both impractical and
unreasonable. We do not consider that use of the term...generally
in accordance with...of itself, invalidates Condition 1.
34.10
Given that the Proposal is undoubtedly a "complex project", we submit that
the approach taken in the proposed conditions is entirely appropriate.
Condition 22 - Kaitapeha
34.11
The updated condition 22 now refers to the plan which was produced as
Exhibit Wilkes 1B, and which effectively trims a corner off the cage area
within which surface structures may be located.
34.12
In addition, NZ King Salmon has proposed a small amendment to condition
22 so as to enable temporary activity relating to the mooring of a barge during
the laying or maintenance of the screw anchors to occur within the otherwise
excluded area.
34.13
Mr Wilkes retained residual concerns that the extent of the zone should also
be reduced to reflect the reduced area within which surface strictures could
be located. NZ King Salmon does not consider that any reduction in the size
of the underlying zoning is appropriate. This is because the screw anchors
which moor the farm structures in place will need to be located within that
broader area. Notwithstanding the reduction in area within which surface
structures may be located, any reduction in the proposed zone area could
only be up to a maximum of 12 metres and NZ King Salmon requires the
engineering flexibility provided by the full proposed zoned area.
Peer Review Panel
34.14
There has been substantial debate about the role of the proposed Peer
Review Panel, and in particular who it reports or makes recommendations to,
and then who ultimately makes decisions based on its recommendations.
34.15
NZ King Salmon had originally proposed a model where the Peer Review
Panel was advisor to the consent holder, with the consent holder required to
have particular regard to the recommendations of the Peer Review Panel in
making its decisions as to how to proceed, while identifying any departures
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from the recommendations of the Peer Review Panel and the reasons for any
such departures (if there were any). This was not proposed for the purpose
of circumventing supervision or intervention by the Council, but because the
majority of the Peer Review Panel’s recommendations will, once the farms
are operational, relate to yearly Annual Reports and MEM-AMP Reports
which need to be turned around quickly and provide for many operational
matters including the stock numbers to be introduced at the next stocking
event.
34.16
The model was developed on the basis that:
(a)
consent holders will comply with the conditions of their consents;
and
(b)
consent authorities will responsibly supervise compliance with
conditions.
34.17
The planners for the other parties appeared to accept the NZ King Salmon
model as transparent,774 but remained concerned at the model, particularly
because the Peer Review Panel was proposed to have the same role
(recommending to the consent holder) in respect of:
(a)
the Baseline Plan, which is to determine whether any further
modelling is required and the locations for the water column
modelling;
(b)
the Baseline Report, which will set the initial Water Quality
Standards (―WQS‖) required to achieve the Water Quality
Objectives;
(c)
with the third Annual Report, confirm the ongoing Water Quality
Standards and make minor adjustments to the dimensions and
areas (although not overall more than 10% of the area) of the
seabed EQS compliance zone boundaries; and
(d)
following the required 3-year (or more) period of stable discharges
(within +/- 15%) and compliance with the relevant conditions, any
increase in feed discharge levels.
774
At least, Mr Eccles did in his evidence.
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34.18
These ―standard setting‖ decisions were generally seen by others as being
appropriate for the Council to determine, rather than the consent holder (even
if the objectives of the standards were clear and inappropriate standards that
could be challenged by the Council, eg through enforcement action).
34.19
In contrast, there appeared to be some recognition of the consent holder’s
need to turn around the more ―regular‖ decisions it has to make each year as
to stocking, etc, quickly, and that the consent holder should have the
autonomy to determine how it will comply with the relevant standards. Those
decisions such as how much to stock, or whether to destock by moving fish (if
that is possible) or killing them, must be for the consent holder to make.
34.20
Accordingly, NZ King Salmon has revised the model to provide for the Peer
Review Panel to have the function of:
(a)
reviewing the various reports produced by the consent holder’s
independent experts (as originally proposed by NZ King Salmon);
(b)
making recommendations to the Council in respect of each of the
Baseline Plan and Baseline Report (which set matters such as
monitoring locations and the initial Quality Standards), with the
Council required to approve those recommendations before the
consent holder can proceed; and
(c)
making recommendations to the consent holder in respect of the
Annual Report and MEM-AMP Reports (which assess performance
and recommend measures to ensure compliance with the relevant
standards), provided that any aspect of any Annual Report that
relates to any change in Water Quality Standard, minor adjustment
to the dimensions and areas of the seabed EQS compliance zone
boundaries, or increase in feed discharge will be recommended to
the Council who must approve those matters before any of those
changes take effect.
34.21
It is submitted that this achieves an appropriate balance between the
competing concerns and interests.
Water Quality Standards - WQS
34.22
There has also been considerable focus on the issue of the WQS. As the
Board has observed, unlike the benthic EQS, there are no numerical WQS
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proposed as conditions of consent.
Opponents say this is fatal to the
applications, because it leaves things too uncertain, or because it is simply
not lawful or appropriate to grant consent granted and expect numerical WQS
to be set later through a Peer Review Panel process (whatever peer review
model is used).
34.23
NZ King Salmon has practical experience with the development of numerical
standards through an adaptive management process. That is what occurred
with its benthic EQS. Its early consents sought to set qualitative objectives or
standards, along the lines of ―no anoxic conditions‖. Over time (and through
a more organic process), the current benthic EQS standards were
established.
34.24
NZ King Salmon proposes the same sort of concept here, although with much
more rigour, and the supervision of a Peer Review Panel as described above.
Condition 51 is key to the process. The requirements it establishes have
been variously described through the hearing. More recently, they have been
called ―Water Column Objectives‖, but they have also been called ―Narrative
Objectives‖, and ―aspirational goals‖. NZ King Salmon has always seen them
as something to be defined clearly, and against which performance (and noncompliance) can be measured. In their present form, they are much more
than ―aspirational‖ or nebulous objectives.
In our submission, properly
characterised, they are qualitative standards that can be achieved (or
breached). Accordingly, in the attached version of the conditions, they have
been called ―Qualitative WQS‖. The ―thresholds‖ that are to be developed,
are numerical or quantitative standards – these have been termed
―Quantitative WQS‖ in the final version of conditions.
34.25
It is quite appropriate to set a clearly defined Qualitative WQS (or objective),
and provide a process for establishing a Quantitative WQS (or threshold)
through a subsequent management plan, as that Quantitative WQS is a
means of ensuring that the Qualitative WQS is to be achieved or complied
with.
Response to Sustain our Sounds closing
34.26
Mr Heal in his closing submission for Sustain Our Sounds alleges that the
proposed WQS approach amounts to an improper delegation.775 Yet at the
same time he also complains that the conditions lack finality and are therefore
775
Closing submissions for Sustain our Sounds, page 10.
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invalid in that they do not allow for "any person to have constructive input,
particularly the public." The two contentions contradict each other.
34.27
With respect, Mr Heal's concerns are misplaced. The law is clear that the use
of management plans is a lawful and appropriate approach to take in
managing the effects of activities. The Courts have accepted that:776
.... a management plan can be required to be prepared pursuant to
s 108(3) of the Act, and that its purpose should be to provide the
consent authority and anybody else who might be interested with
information about the way in which the consent holder intends to
comply with the more specific controls or parameters laid down by
the other conditions of a consent.
34.28
Management plans in fact play a key part in adaptive management to secure
ongoing effective protection of the environment in complex cases:777
Adaptive management is most useful when large complex
ecological systems are being managed and management decisions
cannot await for final research results
34.29
Further, the approach taken in the case he relies on778 is quite different.
Director General of Conservation v Marlborough District Council involved a
large mussel farm application where concerns had been expressed in relation
to potential effects on the Hector's Dolphin.
The Environment Court
recommended that consent be granted subject to conditions including one
requiring a three year monitoring programme, after which the farm could only
proceed if the Council was satisfied that it was "very probable" that the farm
site would not be of significance to Hector's Dolphins. The validity of that
condition was challenged.
Mackenzie J declared that it was an unlawful
delegation.
34.30
In our submission, that condition clearly delegated a power of veto to the
Council. It was probably want for uncertainty as well. By contrast, there is no
such delegation, or uncertainty of outcome here.
34.31
The marine environment is a dynamic one.
Not only are the various
processes and their interactions complex, but there is also considerable
annual and seasonal variability.
It is simply not practicable to impose a
permanent quantitative threshold now on many of the water column variables,
because of that variability. However, the expert water column modellers have
776
777
778
Guardians of Paku Bay Association Inc v Waikato Regional Council (2011) 16 ELRNZ 544
(HC) at [133], quoting Wood v West Coast Regional Council [2000] NZRMA 193 (EnvC).
Golden Bay Marine Farmers and Others v Tasman District Council W19/03, para 405.
Adopted in Oruawharo Marae Trust and Others v Royal Forest and Bird A83/06, para 92.
Director General of Conservation v Marlborough District Council [2004] 3 NZLR 127 (HC).
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provided clear objectives or outcomes that the planners have been able to
crafted into Qualitative WQS as set out in condition 51. SoS may also have
been distracted by the label given to them earlier by the scientists of
"objectives", but they are clearly qualitative standards, and are now described
as such. Importantly, both Ms Cameron and Mr Brosnan confirmed under
cross examination, that they were enforceable, and a consent holder who
adopted Quantitative WQS that would not achieve the Qualitative WQS could
be subject to enforcement or prosecution.779 In the context of enforcement
(and possibly prosecution), Commissioner Beaumont also asked Ms Jamieson, if
Condition 51 was reworded and the farm had to be operated to meet that
condition, whether that would assist. Ms Jamieson agreed.
34.32
Further, the amended conditions now offered by NZ King Salmon clarify the
Council's clear role is setting the Quantitative WQS, which will address any
residual concern that the decision making is being left to unknown persons,
as Mr Heal contends.780
34.33
Mr Heal contends that his clients have somehow been deprived of a right to
be heard on the question of what water column thresholds should be
imposed.781 Yet he acknowledges that his client has called four witnesses
who addressed the issue, and in our submission the question of whether the
Qualitative WQS are appropriately clear and enforceable is now a matter for
the Board based on all the evidence before it. In our submission, the WQS
set in the proposed conditions of consent are entirely appropriate.
Tangata Whenua Panel
34.34
NZ King Salmon has considered the issues raised in the questions of Mr
Ellison in respect of this issue, including of Mr Eccles.
34.35
NZ King Salmon has proposed a refinement to the language used and focus
of what is now termed the ―Tangata Whenua Panel‖. So there is no
confusion, the provisions relating to Te Ātiawa and its involvement in the
Ngamahau, Ruaomoko, Kaitapeha, and Papatua sites, which Te Ātiawa
supported, remain unchanged. It is still intended for Te Ātiawa to appoint a
representative to the Peer Review Panel established in respect of the
Ngamahau, Ruaomoko, Kaitapeha, and Papatua sites (and have the other
779
780
781
This addresses the concerns raised by Mr Heal at paragraph 3.12 of his closing that there
was an issue as to enforceability.
Closing submissions for Sustain our Sounds, para 3.11.
Closing submissions for Sustain our Sounds, para 3.06.
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186
involvement in the specified management plans and other matters as
previously provided).
34.36
As proposed, Te Ātiawa would not have a representative on the Peer Review
Panel established for the Outer Pelorus sites.782 It is the Tangata Whenua
Panel, if it is established (and the consent holder is required by the conditions
to provide that opportunity), that will have the role of advising the Peer
Review Panel established for the Outer Pelorus sites on cultural matters. The
latest conditions give the Tangata Whenua Panel wide scope to advise the
Peer Review Panel on issues such as the mauri of the water and any other
cultural matters they might wish to raise. That was considered appropriate,
given the limited involvement of Ngāti Koata and Ngāti Kuia through this
process. It also provides an opportunity, if they wish to indicate any sites of
particular significance to them for consideration for monitoring or other
purposes, for them to do so, but does not suggest or imply that they should
do so (and NZ King Salmon respects that they may not).
34.37
NZ King Salmon has also removed the conditions that were more related to
wider relationship matters. It hopes to build a better relationship with both
Ngāti Koata and Ngāti Kuia, irrespective of the outcome of these applications
and will continue to seek to do so.
Condition 48 - The 24 month ES compliance period
34.38
There were a number of questions in the early part of the hearing, primarily
from Commissioner Beaumont, about the period of up to 24 months allowed
in the conditions783 to address any raised ES levels.784 In particular it was
queried whether or not during the course of that 24 month period there would
be a trending down or improvements made as a result of NZ King Salmon
management actions.
34.39
Mr Preece sketched a diagram on the whiteboard to demonstrating that a 24
month period is required to get back to full compliance due to the harvesting
cycle at the farms.785 To summarise:786
782
783
784
785
786
Other than the Te Ātiawa representative, the other members of the Peer Review Panel are
likely in practice to be the same.
Exhibit Preece 2.
For Mr Preece's full explanation see Hearing transcript for 5 September 2012, from page
865 line 5.
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(a)
Smolt are put in the water each May and harvested 18 months later
in November of the following year.
(b)
Cawthron undertakes benthic monitoring in November each year
and provides NZ King Salmon with a monitoring report the following
April.
(c)
If the Cawthron monitoring report records that NZ King Salmon is
non-complying in terms of ES levels, NZ King Salmon can react by
putting fewer smolt in the water at the non-compliant farm or farms
when it does so in May (i.e. the month after the Cawthron monitoring
report is received and six months after the non-compliant seabed
samples are collected).
(d)
Theoretically, eighteen months later when the reduced number of
smolt have grown out and are harvested, NZ King Salmon should
once again be compliant with the ES levels specified in its resource
consent conditions. By this harvesting date 24 months will have
passed since the non-compliant seabed samples were collected by
Cawthron).
34.40
Mr Heal suggested that the 24 month period would affect the Council's ability
to enforce the conditions of consent.787 In response:
(a)
The condition now only allows for a small non-compliance (up to ES
0.5), which prevents the authorisation of any significant noncompliance.
(b)
The condition requires substantial improvement following any noncompliance within 12 months. If that were not to occur, then NZ
King Salmon would be in breach. Enforcement or prosecution could
follow.
(c)
The Council also has a very broad review power under condition 94,
which could be used to require a change in conditions.
That
condition provides the Council with an express mechanism to bring
about a change in behaviour and environmental effects.
787
Section 338(4) provides a six month period for any information to be laid.
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Location of monitoring sites
34.41
Counsel for the Minister yesterday emphasised the importance to the Minister
of the location of the water quality monitoring sites, and how they are to be
determined. Ms Jamieson emphasised the expert opinions that the spatially
explicit modelling was not sufficient for identifying far field monitoring
locations. The matter is potentially resolved with the wording proposed by NZ
King Salmon, the consequence of which means that the location of the
relevant monitoring points will be set by the council following the
recommendations of the Peer Review Panel, which is tasked with considering
whether any further modelling is required.
34.42
Parties have dismissed NZ King Salmon's concerns that all of the modellers
are in trade competition with each other and have reasons, perhaps
unconsciously, to promote their own models and approaches. The reality is
that a significant amount of work has been undertaken, and that Mr Gillespie
is confident that the spatially explicit model can assist in identifying locations
for monitoring - but also recalling his emphasis on using monitoring to
establish gradients rather than trying to find precise monitoring and control
sites. The danger of that approach is that effects might be masked if the
control site is also being affected. His approach seems a more pragmatic
one. It also needs to be recalled that many monitoring sites will be
established overall, perhaps 20 or more per site.788
34.43
In terms of the data that exists but which has not been made available, it is
remarkable that one of the sets of data is held by NIWA who provided the two
independent advisors for the board, but neither made any attempt to explain
the nature of the data their employer held to assist in understanding what it.
NZ King Salmon has since made enquiries and it is available (at a price, of
course).
Condition 70(b), 77(c) and 80(g)
34.44
These conditions each include the following phrase:
For the purposes of this condition "notable biological feature" shall
include but not be limited to significant areas of reef, tubeworm
mounds and hydroid colonies.
34.45
Ms Cameron has suggested that the word "significant" should be deleted.
However, NZ King Salmon is concerned that removing the word "significant"
788
Questioning of Ms Cameron.
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189
would mean that any reef would then be a "notable biological feature". That
cannot be correct. Further, Mr Davidson was specifically asked by the Board
about the definition and he considered it to be appropriate.
34.46
NZ King Salmon maintains that the "significant" threshold should remain in
respect of each of the three features in conditions 77(c) and 80(g). However,
NZ King Salmon is prepared to modify the conditions to move the term
"significant" to just before "reef" so that it is clear that the reefs have to be
significant.
34.47
Accordingly, NZ King Salmon would accept the following change being made
to clause 70(b) as follows:
For the purposes of this condition "notable biological feature" shall
include but not be limited to significant areas of significant reef,
tubeworm mounds, and hydroid colonies.
Restrictions on transferability of any consents granted to NZ King
Salmon
34.48
It has been put to the Board that, if it decides in favour of the plan change and
grants the resource consents sought by NZ King Salmon, that those consents
should be restricted to only be exercised (and "owned") by NZ King Salmon.
34.49
NZ King Salmon has no current intention to transfer any of the consents
applied for if they are granted (as the company has explained its dire need for
the additional water space and intention to implement the consents in the
near future).
Despite that, there is no basis for such a restriction being
imposed.
34.50
The RMA expressly provides for "any person" to apply for a consent, and for
a coastal permit holder to transfer their interest in the permit to "any
person"789. The legal identity of the applicant or transferee is relevant only to
the extent that the party is an identifiable legal person.790
34.51
There may be opportunities in the future, for example, for one of the sites to
be transferred to, or shared with, iwi. A condition restricting transfer would
threaten such an opportunity.
789
790
RMA, s 135.
Marsh v Wanganui District Council EnvC Christchurch C212/2000, 19 December 2000, at
[6].
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34.52
Given that, and that there is no clear justification provided as to why the
consents should be personal to NZ King Salmon, there is no basis for any
such a restriction to be imposed.
35.
PART 2 MATTERS
35.1
The consideration of the resource consent applications is also subject to Part
2. We have already addressed in detail the relevant Part 2 matters above
and do not intend to repeat them here.791
35.2
NZ King Salmon submits that the applications achieve the purpose of the
RMA.
PART F: CONCLUSIONS
36.
CONCLUSIONS
36.1
As the Board is aware, in total the proposed farms over 9 sites will occupy
only 11.51ha of surface water within the Marlborough Sounds.792
36.2
These submissions have given a reminder of NZ King Salmon's case,
provided the legal framework for the Board's evaluation of the Proposal and
recorded NZ King Salmon's position on the key issues.
36.3
We said at the start of this hearing that NZ King Salmon is a real kiwi success
story. That is surely the case with the company supplying 62% of the New
Zealand market and being a global leader in the production of King salmon,
producing nearly 50% of farmed King salmon worldwide.793 It is also the only
company, anywhere, to have developed the means of producing King salmon
all year round.
36.4
Remarkably, NZ King Salmon has managed to achieve this success against
all odds. It has developed its existing space to its sustainable capacity, but
cannot meet the growing demand for its products. It needs additional space.
36.5
As the company has developed its expertise and understanding of its
business, as any pioneering business does, it has realised that the
requirement for success going forward is to ensure its new farms are in the
791
792
793
Refer to section 29 above.
Dawson EIC, para 9.9: 11.51 ha is the total area occupied by net pens. Additional space
will be occupied by mooring structures, and a maximum of one barge at each farm.
2464333 (FINAL)
191
higher flows, cooler temperatures and deeper water, or suitable combinations
of that. This was realised in 2007 when NZ King Salmon advised the Council
of its need for space in the CMZ 1 zone.
36.6
The CMZ 1 and CMZ 2 zone boundaries were established 13 years ago.
They are long overdue for review. Planning and resource management must
be dynamic.
Aquaculture operators in the country's leading aquaculture
region must be able to come to their civic leaders and let them know of their
needs for suitable space for their species as they learn more and as their
businesses grow.
36.7
NZ King Salmon came to the Council in November 2007 and did exactly that.
As a result of Parliament's Aquaculture reforms they are finally underway and
seek to enable the nine new farms, with all of the significant social and
economic wellbeing that will result.
36.8
Regrettably they met a response among certain people who see 1999 as the
watershed in Marlborough planning, who encourage marine farmers to tell
them of their needs but do not intend to act on them, and who have no
intention to enable salmon farming to expand. That may or may not be a
sound political position to take, depending on whether or not you have a
vision for a prosperous Marlborough going forward. But it is certainly not a
position that has any justification under the RMA which luckily all New
Zealanders have access to. It enables plan changes to be proposed and
objectively assessed by a Board as experienced as this one.
36.9
NZ King Salmon is grateful to have had the opportunity to present its case to
the Board and is completely confident that the Board will deliver a just result.
36.10
While the Board of Inquiry process under the RMA is a challenging one for
the Board, the EPA, the Applicant, and for all of the submitters, especially
with its tight timeframes, there cannot be a single person who has attended
any part of this hearing who has not been impressed with the courtesy and
respect shown by all members of the Board to those of us appearing before
you. Your Honour and Board members, supported by the EPA staff, have
gone out of your way to put people at ease and to make it as welcoming and
as comfortable a place to appear as possible.
36.11
There has also been some wonderful humour which has made it (almost) a
pleasure to attend the hearing for the eight weeks. Home beckons.
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192
36.12
On behalf of NZ King Salmon and I am sure all of the submitters, can we
therefore close by thanking:
(a)
Your Honour and all the members of the Board;
(b)
Jenny Clafferty and the whole EPA team;
(c)
the Civic Theatre and Convention Centre staff here in Blenheim, and
the Waikawa Marae and Portage Lodge for hosting us all.
36.13
As Counsel for NZ King Salmon may we also thank all other Counsel for
submitters and for the Board for their courtesy and for the professional
friendship extended to us, which has been exemplary.
36.14
May we also acknowledge the support we have had from Quentin Davies and
his partners and staff at Gascoigne Wicks. We have invaded their offices day
and night and in the weekends over the last eight weeks. They have also
provided considerable help with NZ King Salmon's case.
May it please the Board.
DATED 18 October 2012
_________________________________
Derek A Nolan / James D K Gardner-Hopkins / James A Marriner
Counsel for NZ King Salmon
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NZ King Salmon Closing Legal Submissions

Transcription

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