1

Prior to an application being lodged under the Resource Management Act 1991 for any resource consents for proposed infrastructure (within the meaning of section 65(1)(a)) in a customary marine title area, the proposed infrastructure may become a deemed accommodated activity in accordance with this Part.

Notes

• Schedule 2 clause 1: amended, on 23 December 2023, by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).

2

Any person listed in paragraph (b) of the definition of accommodated infrastructure in section 63 may apply to the Minister for Land Information to declare a proposed infrastructure to be a deemed accommodated activity. In this Part, Minister means the Minister of Land Information.

3

In applying under this Part, the applicant must provide to the Minister the following information:

a survey and a plan that—

1. shows the customary marine title area where the proposed infrastructure is to be constructed; and
2. must meet the requirements of the Cadastral Survey Act 2002 as if it were a cadastral survey within the meaning of that Act; and

a detailed description of the proposed infrastructure, including all of the relevant resource consents that will be applied for in support of the proposed infrastructure; and

a detailed description of the purpose for which the proposed infrastructure is to be used; and

why the applicant considers that the proposed infrastructure complies with section 65(1)(a)(iii); and

an assessment of all practicable alternative locations (within or outside the coastal marine area), and reasons why the proposed infrastructure cannot practicably be constructed in any location outside of the customary marine title area; and

a description of the negotiations that have already taken place with the customary marine title group and, on the basis of those negotiations, reasons why the applicant considers it cannot reasonably obtain the permission of that group for the proposed infrastructure.

4

Upon receipt of an application under clause 3, the Minister must consider and decide to—

make an initial decision on whether there is sufficient information to demonstrate that all of those requirements and criteria have been adequately addressed; or

seek more information from the applicant; or

decline the application on the basis that—

1. insufficient information has been provided; or
2. the proposed infrastructure does not meet all or any of the requirements and criteria set out in clause 3.

5

For the avoidance of doubt, a decision under clause 4(a) is not a substantive decision of the Minister in favour of the classification of the proposed infrastructure as a deemed accommodated activity. It is merely a decision that there is sufficient information for the Minister to consider the matter further with the relevant customary marine title group.

6

After making a decision under clause 4(a) that there is sufficient information (or after receiving further information under clause 4(b)), the Minister must, before determining the application,—

provide to the customary marine title group a copy of the application and any further information received from the applicant; and

invite the customary marine title group to identify appropriate compensation for the removal of its RMA permission right or conservation permission right and any other affected right associated with the customary marine title for the proposed infrastructure, in the event that it does not wish to agree to the construction of the proposed infrastructure going ahead; and

negotiate in good faith with the customary marine title group in an attempt to compensate for the waiver of its permission rights with respect to the application.

Notes

• Schedule 2 clause 6(b): amended, on 23 December 2023, by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).

7

This clause applies if, after a period of 3 months,—

the customary marine title group fails to respond to any invitation issued under clause 6; or

the customary marine title group refuses to negotiate with the Minister; or

the Minister and the group do not agree to waive the permission rights.

8

If clause 7 applies, the Minister must consider the application and any material provided by the customary marine title group and any other relevant information and make a decision on—

whether to waive the customary marine title group’s permission rights; and

whether there are any other affected rights associated with the customary marine title; and

what compensation to provide; and

whether to classify the matter as a deemed accommodated activity under section 64.

9

In making his or her decision under clause 8, the Minister must consider whether the matters set out in clause 3 have been adequately addressed and, without limiting his or her consideration, the Minister may not agree to waive the permission rights if the Minister is satisfied that the information provided under clause 3(d) and (e) does not justify waiver.

10

If the customary marine title group agrees to waive the permission rights, or a decision is made by the Minister under clause 8 to waive the permission rights, then the proposed infrastructure will become a deemed accommodated activity, except that—

the waiver of the RMA permission right will operate only for the particular resource consents applied for with respect to the proposed infrastructure (and only as far as the proposed infrastructure is defined in the Gazette notice set out in clause 11); and

the waiver of the permission rights will not otherwise take away the legal effect of the customary marine title order or agreement, except as the customary marine title group expressly agrees otherwise or the Minister decides otherwise; and

the waiver of the permission rights will only apply to the activity that is the subject of an application under clause 3 and, unless expressly provided otherwise, it will not prevent the customary marine title group from exercising its permission rights under a customary marine title order or agreement within the same area for any other resource consent application not included in the Gazette notice published under clause 11; and

the customary marine title order or agreement will still be a relevant matter for the consent authority when considering the resource consents necessary for the deemed accommodated activity under the Resource Management Act 1991.

Notes

• Schedule 2 clause 10(a): amended, on 23 December 2023, by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).
• Schedule 2 clause 10(d): amended, on 23 December 2023, by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).

11

If a proposed infrastructure becomes a deemed accommodated activity under clause 10, the Minister must cause a notice to be published in the Gazette giving—

a description of the deemed accommodated activity, including a detailed description of the proposed infrastructure and all resource consents that will be applied for as part of the proposed infrastructure; and

a description of the customary marine title area and rights that are affected; and

a description of the purpose for which the infrastructure is to be used.

12

The Minister must serve a copy of the Gazette notice on the customary marine title group and the relevant regional council.

13Definitions

1. In this Part,—

   activity means any activity—

   1. that is necessary for, or reasonably related to, prospecting, exploration, mining operations, or mining under either or both of the following:
      1. a privilege in respect of petroleum:
      2. a privilege to which section 84(1) applies; and
   2. that is to commence in a customary marine title area after the effective date; and
   3. for which a resource consent is to be sought

   activity agreement means an agreement of the kind described in clause 15 between the title holder and the permit holder

   permit holder means the person seeking the resource consent for the activity.

14Permit holder may request title holder to negotiate activity agreement

1. A permit holder may serve a notice on the relevant customary marine title group stating that the permit holder intends to negotiate an activity agreement with the group.

2. A notice served under subclause (1) must specify—

3. the area affected by the proposed activity; and
4. the purpose for which resource consent is to be sought; and
5. the proposed programme of work for the activity, including the type and duration of work to be carried out and the likely adverse effect on the customary marine title area and on the customary marine title group; and
6. the compensation and safeguards against any likely adverse effects proposed; and
7. the type of privilege held by the permit holder.

15Contents of activity agreement

1. An activity agreement may make provision for the following matters:

2. the periods during which the permit holder is to undertake the activity in the customary marine title area:
3. the parts of the customary marine title area on or in which the permit holder may undertake the activity:
4. the kinds of activity that may be undertaken in the customary marine title area:
5. the conditions to be observed by the permit holder in undertaking the activity in the customary marine title area:
6. the action to be taken by the permit holder in order to protect the environment:
7. the compensation to be paid to the customary marine title group as a consequence of the permit holder undertaking the activity in the customary marine title area:
8. the manner of resolving any dispute arising in connection with the activity agreement:
9. any other matters that the parties to the arrangement may agree to include in the activity agreement.

10. In considering whether to agree to an activity agreement, the customary marine title group may have regard to any matters it considers relevant.

16Requests for appointment of arbitrator

1. The permit holder may serve a written notice on the customary marine title group requesting the group to agree to the appointment of an arbitrator if—

2. the permit holder and the group are unable to agree on an activity agreement; and
3. a period of at least 60 days has expired since the day on which notice was served under clause 14(1).

4. The customary marine title group and the permit holder may agree to the appointment of any person as arbitrator.

17Appointment of arbitrator in default of agreement

1. The permit holder or the customary marine title group may apply to the chief executive of the department responsible for the administration of the Crown Minerals Act 1991 for the appointment of an arbitrator if—

2. the customary marine title group and the permit holder are unable to agree on the appointment of an arbitrator; and
3. a period of at least 30 days has expired since the day on which notice was served under clause 16(1).

4. Every application must be accompanied by any prescribed fee.

5. On receipt of an application the chief executive must as soon as practicable appoint an arbitrator.

18Arbitration

1. If an arbitrator is appointed under clause 16(2) or 17(3), the arbitrator must conduct an arbitration in accordance with the Arbitration Act 1996, and the provisions of that Act (other than those relating to the appointment of arbitrators) apply to the arbitration as if—

2. this clause were an arbitration agreement; and
3. the matters specified in paragraphs (a) to (g) of clause 15(1) were matters in dispute that the customary marine title group and the permit holder had agreed to submit to arbitration.

4. The arbitrator's award must determine the basis on which the activity is to proceed, on reasonable conditions.