Facilitative or Fear-Inducing? Fleshing out the Fast-track Approvals Bill and what it means for New Zealand
By Emma Hooton
Introduction
The Fast-track Approvals Bill (“the Bill”) was introduced to the House under urgency on 7 March 2024. Since its introduction, the Bill has undergone the first reading and is now at the Select Committee stage, where public submissions are called for and considered. The Bill is critical as it seeks to override specific environmental and conservation purposes in a range of legislation, including the Conservation Act 1987, the Reserves Act 1977, the Wildlife Act 1953, and the Resource Management Act 1991.
What is the Fast-track Approvals Bill?
The purpose of the Bill is to provide a “fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits.” Under the Bill, the Ministers of Infrastructure, Regional Development and Transport (“Joint Ministers”) are empowered to refer specific projects to an expert panel (though some are automatically referred without request). This expert panel assesses the project (in light of the purposes of the Bill) and makes a recommendation on whether approval should be granted or declined; this may be subject to specific conditions as the panel sees fit. Subsequently, the Joint Ministers will make a decision based on the expert panel's recommendations.
Potential Issues
1) Executive Power
The power of the three Joint Ministers is wide-reaching and present at virtually every step of the process. The Joint Ministers can recommend projects to be fast-tracked, choose expert panellists, and challenge the panel's recommendations. Most importantly, however, the Joint Ministers have the final say and are not bound by the expert panel's recommendations, nor do they have to explain any deviation from the recommendations.
2) Impact on Environment
Considerable criticism has been directed towards the anticipated environmental consequences of the Bill, stemming from its intentional reduction in safeguard mechanisms. The Bill covers a wide range of infrastructure and development projects, including projects that may have been previously declined or prohibited by courts (referred to as “zombie” projects).
In an open letter to the government, various scientific societies expressed concern that the Bill is “not responsive to the dual biodiversity and climate crises.” There is a sense that the Bill backtracks on previous safeguards in the face of increasing environmental degradation. An example is OceanaGold’s desire to mine gold from conservation land in the Wharekirauponga Forest Park in the Coromandel. Despite this being home to a rare native species of frog (the Archey’s frog) and there being significant community opposition, OceanaGold has expressed the desire to use the fast-track regime. Comments from Shane Jones concerning this proposition showcase the Minister’s nonchalant attitude to New Zealand’s biodiversity:
"… if there is a mining opportunity and it's impeded by a blind frog, goodbye, Freddy."
Further concern has been raised by the Parliamentary Commissioner for the Environment. Specifically, the fact that the environment does not appear in the purpose section of the Bill, and the Minister for the Environment is excluded from any decision-making power or consultative capacity. This is in contrast to the Resource Management Act 1991, in which the purpose solely focuses on the “sustainable management of natural and physical resources.”
3) Lack of Public Scrutiny
The Bill was passed under urgency, which means that Parliament can speed up the legislative process by bypassing specific Parliamentary procedures and sitting for longer hours. While this process has certain benefits, urgency often implies that legislation is not adequately scrutinised. Public accountability is further limited within the Bill itself, as there are no mechanisms for people to make submissions on individual projects; this is in stark contrast to the Resource Management Act 1991, in which anyone could submit an application within 20 working days.
Potential Benefits
1) Balanced Membership of the Panel
While the Joint Ministers retain significant power in selecting the expert panel, specific criteria must be fulfilled. Specifically, the panel membership must include one person nominated by relevant local authorities and one nominated by relevant iwi authorities. The fact that the Bill requires the involvement of both local and iwi authorities is positive and ensures some balance in the perspectives that are considered.
2) Economic Efficiency
The main driver for introducing this Bill is to make it significantly easier for projects to obtain approval and consent, which will “grow the economy and improve our productivity.” The process of obtaining consent for major projects has been deemed expensive and lengthy; this has been bolstered by a recent report by the Infrastructure Commission showing that the cost of gaining consent for projects has increased by 70% since 2014, and the time taken to obtain consent has increased by 150% over the same period. Given that New Zealand has an infrastructure deficit increases in efficiency could be beneficial for areas where this deficit is particularly pronounced.
Conclusion
The Fast-track Approvals Bill is a significant piece of legislation with large-scale consequences – particularly for our environment. The level of power possessed by the Joint Ministers is concerning and fails to be adequately mitigated by the expert panel's mere recommendatory power. As a country, we must consider whether economic efficiency concerns should outweigh the fundamental values of environmental preservation and conservation, particularly in a world increasingly defined by climate-related challenges. Amidst these concerns, there may be a glimmer of hope; perhaps the Bill's clear shortcomings will ignite the search for a genuine alternative solution that effectively strikes a balance between these competing interests.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.