The Institute has been following the application by New Zealand King Salmon to farm nine sites in the Marlborough Sounds. The application forms part of our One Ocean project; in order to develop foresight over public policy it was critical to understand how the current system works in practice. What we learnt about the process up to the Board of Inquiry decision in late 2012 is documented in our working paper: Notes on the New Zealand King Salmon Decision (2013). The resulting legal process from late 2012 to today contains a number of additional lessons for communities seeking to manage their environment effectively over time.
On Thursday (yesterday) the Supreme Court announced their judgement on two appeals to the earlier decision. The Environmental Defence Society Inc (EDS) appeal was in regard to Papatua (in Port Gore) and the Sustain our Sounds Inc (SOS) appeal was in relation to all four sites previously approved (including Papatua). The EDS appeal was successful while the SOS appeal was not.
In regard to the EDS appeal, the Supreme Court press release states:
The majority has rejected the Board’s view that its obligation was to exercise an overall judgment in light of the principles contained in Part 2 of the RMA and that it was entitled to give effect to the New Zealand Coastal Policy Statement (NZCPS) “as a whole”. The majority has held that protection and preservation of the environment are part of the concept of sustainable management as expressed in Part 2. The NZCPS gives substance to Part 2 in relation to the coastal environment. Although Part 2 of the RMA does not give primacy to preservation or protection, this does not mean that a planning document such as the NZCPS cannot give primacy to preservation or protection in particular circumstances. The majority has held this is what policies 13(1)(a) and 15(a) of the NZCPS do. The use of the word “avoid” in these policies is a strong direction, meaning they are not merely relevant considerations to factor into a broad overall judgment. These policies are consistent with those supporting the development of aquaculture because they protect only particular limited areas of the coastal region – only outstanding areas and landscapes. The Court has held that, because the Board did not give effect to policies 13(1)(a) and 15(a) in allowing the plan change, the Board did not “give effect to” the NZCPS as required by s 67. The Supreme Court has not addressed in detail the question whether the Board was required to consider alternatives, having allowed the appeal on the first question. However, the Court has held that whether consideration of alternatives is necessary depends on the nature and circumstances of particular plan change applications and the justifications advanced in support of them.
In regard to the SOS judgement, the key point from our perspective, is the importance of documenting what a community wants clearly in written plans. For example, in the judgement this is emphasised by the following:
[148] SOS submits that, if the Board could identify conditions that would enable salmon farming to continue consistently with the RMA, then these conditions should have been in the plan and specified in rules and standards. That would have given the community certainty about what is allowed to enable people to “order their lives under it with some assurance”. SOS acknowledges that there were assessment criteria in the plan but points out that these are guidelines only. Further, it points out that the Board could not even set water quality standards in the resource conditions as it lacked sufficient information to do so. Instead, it imposed a monitoring regime and a means of setting water quality standards to be approved by the Council. This did not give proper assurance that the adaptive management regime, as envisaged by the Board, would be complied with.
In response, the discussion by the Supreme Court notes:
[153] If, however, a consent for a particular activity would only be granted on certain conditions, then it would certainly be good practice (and may in some circumstances be a requirement) that this be made clear in the plan, either as standards or as assessment criteria. Otherwise consent applications may not address relevant criteria and a future consent authority may risk making a decision on a basis that was not contemplated by the planning authority.
Overall, the experience of being involved in this process has shown us how dependent the framework is on putting in place the context/rules/guidelines for the discussion early in the process through plans. Secondly, we have learnt how reliant the framework is on quality independent expert information at the front end; most importantly we found that the applicant cannot be relied upon to do this, nor are NGO’s sufficiently resourced to undertake the necessary work. Further, once an application is before the Board, board members not only need to have the will and expertise to inquire into, but also the financial resources to undertake independent research in order to be able to make optimal decisions for New Zealand. If I were to choose three ways to improve the quality of decisions; I would focus on the following:
- Ensure Councils document clearly and concisely what their communities want in written plans (this requires foresight in regard to what may eventuate in the short/medium term)
- Ensure the EPA applies a high-level of quality assurance before deeming an application is good enough to be heard (this requires risk management expertise, economic expertise, expertise in the demand and supply side and most importantly foresight, particularly were an application is literally a license to operate 35 years in the future and therefore impacting on other strategic options for the same resource)
- Require government departments to act in the best interests of the public. They should work hard to (i) prepare effective National Policy Statements, (ii) develop protocols on how best to undertake economic assessments of benefits, risks and costs, (iii) develop protocols and public reporting on adaptive management instruments and (iv) when an application is under consideration to actively inform the EPA and the Board of Inquiry on any issue/information/report that might be relevant when hearing the case (e.g. departments such as MBIE cannot operate behind glass walls). The public service should serve the public not the goals of clients.
In Retrospect
In regard to the original decision in 2012, it surprised me that risk identification and management was more central to the discussion. For example I expected more concern for the rare dolphins that use the Tory Channel. Seals are attracted to the farms, the sharks are attracted to the rather fat seals that frequent the farms for food, and the sharks are one of the few predators to dolphins. The addition of another salmon farm in the Tory increases the risks for rare dolphins significantly; bringing more sharks to a now decreased channel width (due to the addition of another farm) where dolphins regularly swim to the inner sounds. I also expected a higher level of economic analysis, one that would look at the demand supply for salmon globally and question whether the promises made by the application were realistic.
I also remained surprised by the emphasis the decision placed on number of jobs, rather than the quality of jobs or incomes derived from jobs. Measuring outputs in terms of number of jobs for the applicant is not the whole story; the opportunity to develop a tourism and marine research industry based on ecological integrity is less likely when the Tory Channel will now become increasingly a channel of fish factories lining the waterways –nether pretty nor ecologically sound. Thirty-five years is a long time to remove other strategic options to a community.
In addition to concerns over the quality of the information going into making the decision, it still amazes me that King Salmon were given a license to operate for 35-years. The hardware to operate a farm is not expensive in terms of the inputs into the process (which is largely feed costs); the hardware on site is largely tin sheds, feeding machinery and nets. Why decision makers did not decide to provide 20 years licenses instead of the 35 years remains a mystery. A precautionary approach would have created a space for the decision to be revisited based on latest scientific data and best practice.
There are some great things that have come out of the three years. King Salmon have now committed to a more sustainable approach; they have finally joined the Global Salmon Initiative (GSI), which is a collaboration of the 14 major global salmon companies and the World Wildlife Fund (WWF). I congratulate Sustain Our Sounds (SOS), EDS and their respective legal counsel for their perseverance. I have met some terrific people as result of engaging in this applciation; thank you for your foresight, your determination and your ethics. New Zealand is a better place as a result.