The Government’s new fast track consenting bill has been tabled in Parliament. It is one of the Government’s most significant 100-day plan milestones, and promises a big shake-up of the way consents are granted for large projects in New Zealand.
Its ministers hope it will finally get ahead of New Zealand’s looming infrastructure deficit, while its detractors and officials warn the bill will have large and unforeseen environmental impacts.
It substantially alters the former Government’s fast-track consenting process. Ministers will now have the ability to effectively consent proposals themselves, with expert panels having only the ability to apply relevant consent and permit conditions. Previously, ministers could only refer projects to panels, with the final consenting decision left to officials. The panels will have just six months to consider potential conditions. Once they are done, the project is sent back to ministers who can approve the project with those conditions or decline it.
Ministers have the opportunity to refer the project back to a panel if they think the conditions are to onerous. But the bill goes far further than that. Infrastructure Minister Chris Bishop described it as a “one-stop shop” for big projects.
“It’s not just the consent,” he said, “it’s the RMA process, it’s the various permits required on the Conservation Act, the Wildlife Act, the Heritage Act, the Public Works Act.
“The intention is that an applicant will apply, ministers will say that’s a project of regional significance or national significance, we send it to a panel.
“The panel will then work at pace to apply the relevant conditions across the various statutes, and it comes back to ministers for approval,” Bishop said.
Regional Development Minister Shane Jones told the Herald the new regime would change the emphasis in the Conservation Act, so that the “consents and permits issued by DoC [Department of Conservation] will now be driven by the purpose of the new statute, not the purpose of the DoC statute”.
“They can still take account of all the various things under the DoC Act, but that will no longer be the paramount statute,” Jones said.
The Department of Conservation’s focus when it comes to consents and permits would shift from the conservation focus of its own legislation, to the economic development focus of the new fast-track regime.
The new regime has wide-ranging application across multiple pieces of law. It allows the fast tracking of marine consents, access arrangements under the Crown Minerals Act, applications for archaeological authority under the Heritage New Zealand Pouhere Taonga Act 2014; concessions and other permissions under the Conservation Act and Reserves Act 1977; approvals under the Wildlife Act, and aquaculture decisions under the Fisheries Act.
Labour’s environment spokeswoman Rachel Brooking said the legislation could affect large parts of the conservation estate, some of which had great biodiversity value.
“It’s a huge change,” Brooking said.
“Most New Zealanders would be appalled by the change given how proud we are of our conservation estate,” she said.
Brooking took aim at the extraordinary powers given to ministers by the legislation.
“We just heard the minister say that this was very purposeful, that he wants the ministers to make the decisions, that the executive needs to be involved. If that is the case, then surely there should be a wide range of criteria that specify the sorts of projects that are in the public’s interest to proceed,” she said, debating the bill.
Jones there would be much environmental criticism, but said critics were not adequately considering the social cost of going slow when it comes to resource extraction. Jones argued that developing the resource extraction economy is a way of boosting exports, narrowing the current account deficit and boosting regional economies.
“If you don’t have the ability to export that $3 billion-$4 billion out of the extractive sector, then you’re always going to be in deficit because you’re reaching a peak point of production with beef and sheep and dairy,” Jones said.
Projects enter the “fast-track” either by being included in the legislation itself, or by a later referral to a panel of ministers, comprising the Infrastructure, Regional Development, and Transport Ministers, currently, Bishop, Jones, and Brown.
The projects that will be included in the legislation are not in the current bill. The Government said it will establish a Fast Track Advisory Group of independent experts to provide advice to ministers on what projects should be included in the legislation. Cabinet will decide on the exact mix of projects and the projects will be inserted into the schedules of the bill through the select committee process, the Government said in a press release.
Criticism of the bill has focused on the lack of checks and balances, with Green co-leader James Shaw saying it harked back to the “unbridled power” of the Muldoon years.
“It’s not just unbridled power, it’s unhinged power,” he said.
There appears to be a brewing spat between Shaw and the Government on the bill. He said that any companies taking advantage of the fast-track would be exposed to scrutiny “next time there is a change of Government”. He said this could include the loss of a consent without compensation.
Bishop, responding to that sentiment in the House saying that Shaw should be “very careful in relation to comments like that”.
“I think all members in Parliament have an obligation to bear in mind sovereign risk to New Zealand and the way in which projects happen,” Bishop said, implying that the cloud Shaw cast over the regime could cause firms to go cold on investing in New Zealand if they knew their consent could be ripped up by a future Government.
Both sides have reason to be afraid. By allowing political sign-off of consents, the Government may have opened the door to political cancellation of those consents. While New Zealand’s consenting process is flawed, the regime kept it out of the hands of politicians. Both sides seem concerned that altering this could see consent by courtroom replaced by consent by election.
There appears to be wiggle room in the legislation allowing ministers even more power over the disempowered panels.
Once the bill is returned from the panel, ministers can accept their conditions and approve it. However, the legislation allows ministers to deviate from a panels recommendations if they have “undertaken analysis of the recommendations and any conditions included in accordance with the relevant assessment criteria”. This suggests ministers could override the already rather weak panels.
Bishop confirmed that the bill did not alter existing rights of judicial review and that fast tracked consents could also be appealed in the courts on points of law.
The bill also allows ministers to refer a proposal back to a panel for reconsideration if they do not like what the panel has recommended.
A Supplementary Analysis Report (SAR), a kind of fast-tracked Regulatory Impact Statement, showed officials wanted the Government to not allow consents for “prohibited activities” to be fast-tracked. A prohibited activity is the highest level of the six activity classes under the Resource Management Act. The Government went against this advice and included a prohibited activity fast-track in the bill.
“Prohibited activities often have significant environmental or human health effects (eg discharge of raw wastewater to rivers, the burning of hazardous substances and associated discharge of contaminants to air,” officials warned.
“This option could enable local voice to be diminished as it overrules decisions made by communities through existing national direction and regional/district plan provisions about prohibited activities,” they said.
The SAR warned that because the legislation had been drafted in a hurry there had been “very limited analysis” on the impacts on “conservation, heritage, and public works legislation”.
Despite the impacts on the conservation estate, there had been no analysis provided by the Department of Conservation on the conservation approvals provided in the regime.
“There may be negative impacts on the conservation land and wildlife outcomes which have not been quantified,” the analysis said.
“There has been limited analysis on the proposed changes to non-RMA legislation designed to enable more development, including the impacts of enabling greater development on public conservation land.
It said there would be “significant risks” for achieving the Government’s wider objectives.
“For instance, there will be impacts on the conservation values of public conservation land. The potential benefits to development and the impacts upon conservation are not well understood. Many issues in the public works legislation involve balancing competing interest between delivering public infrastructure and private property rights, which need further explanation,” it said.
Thomas Coughlan is deputy political editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the Press Gallery since 2018.
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