Infrastructure, development and primary sector national direction

The NZCPS is a compulsory national policy statement under the RMA that applies to the coastal environment. It is the only national policy statement that is approved by the Minister of Conservation. The coastal environment includes areas between mean high-water springs and the 12 nautical mile limit (the coastal marine area), and some adjacent land.

New Zealand’s coastal marine area comprises more than 4 million square kilometres and is 21 times our land area. An estimated 30 per cent of known biodiversity in New Zealand is found in our marine environment. The remoteness and size of our marine environment make it a global hotspot for biodiversity. Of the identified marine species, over half are only found in New Zealand.¹⁸

The marine economy contributed 1.2 per cent to New Zealand’s total gross domestic product in 2021, according to Stats NZ’s economic accounts. In 2017, the total value of the marine economy was estimated at $7 billion and it employed more than 30,000 people.¹⁹

The coastal environment is valued by New Zealanders and our visitors. It is place of significant public use, and also a place where many activities occur, including infrastructure such as ports, roads, rail, cables and pipelines, energy generation and transmission facilities, mineral extraction, built developments, urban areas, papakāinga and aquaculture. These different (and sometimes competing) activities and uses mean the coastal environment needs to be managed carefully.

These proposals relate to two policies in the NZCPS that enable activities in the coastal environment. Policy 6 applies to all activities in the coastal environment, and policy 8 applies to aquaculture. In this discussion document, we refer to these policies (together with policy 9 relating to ports)²⁰ as “activity policies”. They signal the value of appropriate activities in the coastal environment.

The NZCPS also provides direction on how some matters of national importance in section 6 of the RMA must be protected, including indigenous biodiversity (policy 11), natural character (policy 13), and natural features and natural landscapes (policy 15). We refer to them in this document as the “protection policies”. 
The NZCPS is an integrated document, and all the policies (including the activity policies and protection policies) are designed to be read together.

^{18 Briefing to Incoming Ministers: Oceans Issues. Department of Conservation, page 3 Nov. 2023.}

^{19 Briefing to Incoming Ministers: Oceans Issues. Department of Conservation, page 3 Nov. 2023.}

^{20 Policy 9 recognises “that a sustainable national transport system requires an efficient national network of safe ports…”.}

The Government wants to better enable priority activities (ie, specified infrastructure, renewable electricity generation, electricity transmission, aquaculture and resource extraction) while still protecting the environment.

Some industries consider the protection policies to be a barrier to development because they require that certain effects on particular protection values be avoided. This means the activity must either avoid the areas with the protected values or be designed and operated in a way that avoids causing adverse effects on the protected values.

Recent court cases²¹ have clarified that, where an activity policy has sufficient directive language (for example, policy 9 for ports), activities may be allowed in some circumstances even if they have some effects that are contrary to the ‘avoid’ provisions in the protection policies.

However, not all of the activity policies contain sufficiently directive language. The language in policy 6, for example, is not as strong as the language in policy 9 and so has less impact when being interpreted. Policy 8 lacks some content that should direct decision-making on aquaculture proposals.

There is an opportunity to provide more directive language within the activity policies to create more circumstances in which activities may be allowed, even if they have some effects which would not otherwise be allowed under the protection policies.

^{21 Port Otago Limited v Environmental Defence Society Incorporated [2023] NZSC 112 and Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency [2024] NZSC 26 (East-West Link).}

The proposal is for targeted amendments to the NZCPS. An overview of this proposal is outlined below, and more detailed proposed provisions for the NZCPS are included in attachment 2.3.

The proposed amendments are intended to:

• strengthen the language in policy 6 to better enable development of priority activities 
• recognise that priority activities may have a functional or operational need to be located in the coastal marine area 
• direct decision-makers to provide for aquaculture activities within aquaculture settlement areas 
• give more recognition to the cultural and environmental benefits of aquaculture.

It is proposed to amend policy 6(1)(a) and (g) in relation to the Government’s priority activities to make the wording more directive (ie, more like the wording of policy 9²² on ports).

The proposed changes would be supported by the enabling proposals in other national direction instruments such as renewable energy generation, infrastructure and electricity distribution (see the Package 1: infrastructure and development Discussion document).

The combined impact of these changes for priority activities should elevate the importance of such developments in decision-making. It could soften how the ‘avoid’ requirements in the protection policies are applied, in a similar way to the Port Otago decision.²³

The proposed changes would also require decision-makers to consider the renewable energy needs of current and future generations, to support decarbonisation of the economy.

Overall, the proposed changes will make it easier to give consent to priority activities in the coastal environment, including in areas with important coastal values. The proposed changes will be relatively straightforward to transition to a new resource management system and implement.

^{22 The NZCPS states: “Policy 9: Ports. Recognise that a sustainable national transport system requires an efficient national network of safe ports, servicing national and international shipping, with efficient connection with other transport modes…”.}

^{23 Port Otago Limited v Environmental Defence Society Incorporated [2023] NZSC 112 and Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency [2024] NZSC 26 (East-West Link).}  

Under the NZCPS, activities must satisfy a functional needs test to be located in the coastal marine area.²⁴ ‘Functional need²⁵’ means a proposal or activity must traverse, be located or operated in the coastal marine area because that is the only place the activity can occur. The test is designed to ensure that exploration of potentially more effective places to locate an activity has been fully exhausted before making a decision.

The Government is proposing to expand the functional needs test into a ‘functional or operational needs’ test. Expanding the test to encompass both functional and operational need²⁶ would allow decision-makers to also consider any technical, logistical or operational characteristics or constraints that make locating in the coastal marine area necessary.

The proposed changes include adding new clauses to policies 6(1) and 6(2) to recognise that priority activities may have a functional or operational need to be located in the coastal marine area. Similar provisions are in the proposed National Policy Statement for Infrastructure, the proposed amendments to the National Policy Statement for Renewable Electricity Generation and National Policy Statement on Electricity Transmission, and they already exist in the National Policy Statement for Highly Productive Land.

This proposal would make it easier for priority activities to be located in the coastal marine area. For example, it recognises that while some activities can occur on land, there may be technical, logistical or operational constraints on locating them there (eg, pipe or cable infrastructure routes in harbours for extracting coastal sand or minerals). 

^{24 Policy 6(1)(e) requires that decision-makers “consider where and how built development on land should be controlled so that it does not compromise activities of national or regional importance that have a functional need to locate and operate in the coastal marine area”.
Policy 6(2)(c) recognises that “there are activities that have a functional need to be located in the coastal marine area”.
Policy 6(2)(d) recognises that “activities that do not have a functional need for location in the coastal marine area generally should not be located there”.}

^{25 Defined as “the need for a proposal or activity to traverse, locate or operate in a particular environment because the activity can only occur in that environment”. Ministry for the Environment. 2019. National Planning Standards. Wellington: Ministry for the Environment. p 58.}

^{26 Defined as “the need for a proposal or activity to traverse, locate or operate in a particular environment because of technical, logistical or operational characteristics or constraints”. Ministry for the Environment. 2019. National Planning Standards. Wellington: Ministry for the Environment. p 62.}

Aquaculture settlement areas are a tool under the Māori Commercial Aquaculture Claims Settlement Act 2004, which the Crown can use to reserve space in the coastal marine area as a settlement asset for Māori. This prevents aquaculture proposals by others, and it prevents incompatible activities from occurring within the aquaculture settlement area.

However, any aquaculture activities within these areas still require a resource consent under the RMA to assess their effects on environmental values and other activities. This means that, while aquaculture space may be allocated, it does not guarantee that a resource consent will be granted.

It is proposed to amend policy 8 to direct decision-makers to provide for aquaculture activities within aquaculture settlement areas. This change could make it easier to consent new aquaculture activities in space reserved for gazetted aquaculture settlement areas in some regions. This will support Māori to realise the potential of aquaculture settlement areas, which is an objective of the New Zealand Aquaculture Development Plan 2025–2030.

The current wording of policy 8(b) refers only to the “social and economic benefits of aquaculture”. The proposal is to amend policy 8(b) to also refer to the “cultural and environmental benefits of aquaculture”. It would be up to decision-makers in each case to determine whether those benefits would be delivered, and what weight they would have in a consent decision.

This may support the uptake of new aquaculture opportunities by requiring the consideration of a wide range of benefits.
 

Table 7 includes an overview of the anticipated impacts of the NZCPS proposal on various parties. More detailed information about the potential impacts of the proposals are included in the Interim Regulatory Impact Statement: New Zealand Coastal Policy Statement amendments to policies 6 and 8 available on the Ministry for the Environment’s website.

Table 7: Overview of anticipated impacts of the proposed amendments to the NZCPS

The Minister Responsible for RMA Reform and the Minister of Conservation consider the proposals to be consistent with the purpose of the RMA, because they:

• promote the sustainable management of natural and physical resources in the coastal environment of New Zealand
• enable people and communities to provide for their social and economic wellbeing
• recognise and provide for environmental values of national importance (set out in section 6 of the RMA) through existing provisions in the NZCPS, while the amendments to the policies that cover priority activities (ie, policies 6 and 8) will enable priority activities to be considered more favourably when it comes to consenting decisions. 

The policy proposals do not propose to change any mechanisms that provide for Māori engagement in consenting processes under Treaty settlements, or other arrangements (eg, the Marine and Coastal Area (Takutai Moana) Act 2011) that provide for either participation in the consenting system or consideration of specific values.

The policy proposals are to enable more priority activities and development in the coastal marine area. This may provide greater participation opportunities for iwi-Māori with interests in marine development such as iwi aquaculture organisations.

However, enabling more priority activities such as resource extraction or specified infrastructure may have negative effects on the environment and the values that iwi and Māori wish to see protected (such as kaitiakitanga). The occupation of space by others may also limit the future options for developments by iwi and Māori.

Targeted pre-engagement was undertaken from late August to mid-September 2024. This engagement included groups to whom the Department of Conservation has obligations to consult on the NZCPS, and iwi and Māori organisations who expressed interest in the targeted review of the NZCPS.

Consultation will be necessary to test whether iwi, hapū and other Māori groups have concerns about the proposal or any perceived impacts on sites of significance to Māori, marae, Māori land, land returned under Treaty settlements, or other matters of significance to Māori groups.

The proposed changes would affect how consent applications are assessed and would influence any future amendments to regional coastal plans. Councils will not need to undertake changes to plans in response to the amendments, unless they are reviewing plans for other reasons.