Rob Suisted

Goodbye, environmental laws! We’re in our construction era now

Building anything in New Zealand takes too long and costs too much. The government plans to solve this with new legislation that will greenlight big projects in one go. Which projects? That’s a secret.

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If you’d like to build something really big, like a dam, a mine, a road, a subdivision or a wind farm, there are all sorts of approvals you need to get. Wildlife approvals. Conservation approvals. Archaeological approvals. All to answer the question: “What is this project’s cost in environmental terms?”

Sometimes the authorities say, “That’s a fine price to pay,” but then an environmental group pops up with, “No, it isn’t!” Then, your lawyers have to fight their lawyers in court, and a judge determines which one of you is right.

Now, two ministers, Shane Jones and Chris Bishop, have come up with a plan to avoid this process entirely. If your project is big enough, important enough, or makes enough money, you will only need to apply for one approval. A different one. Environmental groups and most of the public will be locked out of the process. Even the Minister for the Environment doesn’t get a say.

Which projects? Good question.

The Fast-Track Approvals Bill has a blank page where the lists of projects are supposed to be. Still, it’s progressing through Parliament en route to becoming law. The lists, which are rumoured to involve around 100 projects, will apparently be added at the second-to-last stage.

This means the government’s select committee, which is supposed to decide whether or not the bill is a good idea, will debate it without knowing what the bill is going to be used for.

And so I set out to figure out what the bill could do—hypothetically.

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I decided to think big. Could I cut down the ancient trees in Pureora Forest and replace them with a pine plantation? The answer is, surprisingly, yes—if I got permission from local iwi. Could I build a water-bottling plant at Waikoropupū Springs to capture and export some of the clearest water in the world? Yes, because the bill overrides laws that govern how much water people are allowed to take from rivers. My only obstacle: I’d need the go-ahead from iwi.

Could I mine ironsands up and down the West Coast? Yes. Could I install a cruise ship in Lake Taupō to perpetually circumnavigate it, discharging waste as it went? Yes. Could I carve my own Mt Rushmore-style depiction of the two ministers responsible for the bill into one of the Southern Alps? Yes, so long as I picked one that wasn’t in a national park, or on the list of off-limits places.

The list of off-limits places includes national parks and marine reserves, but it omits many spots that New Zealanders would consider to be special. Both Pureora and Waikoropupū are up for grabs, because they’re on lower-grade levels of conservation land—a forest park and a scenic reserve. (Pureora and Waikoropupū do have an additional roadblock to development: they are both part of Treaty settlements, which is why projects require iwi permission.)

In general, the bill assumes that if something needs protecting, it’s already got a high-status conservation label—or if it’s Māori land, then it’s already part of a Treaty settlement, or set aside for customary use. But that isn’t the case. A huge swathe of conservation land hasn’t been checked to figure out whether or not it’s important, and land under consideration for a Treaty settlement isn’t protected, either.

What’s more, protections are sporadic. The bill overrides water conservation orders, “which are essentially like national parks for our rivers”, says Greg Severinsen from the Environmental Defence Society.

Severinsen is particularly concerned by a clause in the bill which lets developers do anything classified as a prohibited activity under the Resource Management Act (RMA). Prohibited activities are things like letting untreated sewage flow into the sea, releasing toxic chemicals into the air, or discharging pollutants into a river. There is “a fairly strong consensus that you should never entertain the possibility of these things happening”, says Severinsen, because they’re “incredibly harmful to human health, to the environment, to the protection of infrastructure”. Prohibited activities are different in different regions—Taranaki prohibits oil and gas activities in outstanding areas of the coastal environment—but the bill overrides them all.

From this vantage point looking up the Whataroa River to the Butler Range beyond, all visible land is stewardship land, other than a small parcel of river flats. Stewardship land, some of which is important from a conservation point of view and some of which isn’t, is all open for development under the Fast-Track Approvals Bill.

What about wildlife? Could I build a four-lane motorway through the only habitat of an endangered gecko? Yes. I’d need extra permission under the Wildlife Act for this, but according to the bill, the ministers responsible for giving me that permission are Bishop and Jones, plus the Minister for Transport and the Minister for Conservation.

Jones has already made it clear how he feels about wildlife. “If there is a mineral, if there is a mining opportunity and it’s impeded by a blind frog—goodbye, Freddy,” he said in a December 2023 speech in Parliament. Native frogs are actually deaf, not blind, but that is unlikely to make a difference to Jones or the mining companies looking to do business in the frogs’ Coromandel habitat.

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Realistically, Bishop and Jones are in a hurry—they need projects that are ready to go right now. There are a number of these hanging around, and the reason some are presently in limbo is that they’ve been engaged in legal battles for the past few years or outright rejected by the courts.

Take the Ruataniwha Dam, which was stopped in 2017 by a Supreme Court ruling that conservation land couldn’t be swapped for ordinary land. The dam needed part of the Ruahine Forest Park to go ahead. Helpfully, the new bill includes a series of clauses allowing for exactly this kind of land swap.

Or Te Kuha, a coal mine which would decapitate a West Coast mountain: stopped in 2018 by the government, then appealed by the mining company; stopped in 2020 by a Supreme Court ruling, then appealed by the mining company; stopped in 2023 by the Environment Court, then appealed by the mining company. (The company dropped its latest appeal last month.)

Other projects rejected by the courts which might reappear, Lazarus-like, on the bill include a fish farm off the coast of Rakiura/Stewart Island.

There’s also Trans-Tasman Resources’ bid to mine the seabed off the coast of Taranaki, which as been widely protested by the public, environmental groups, and iwi.

In Pureora Forest Park, epiphytes festoon the branches of a 46-metre kahikatea. Protests in the 1970s finally put an end to logging in the forest after protestors camped out in the treetops. Forest parks are a lower-status conservation designation, which means they are open for development under the Fast-Track Approvals Bill.
The largest opencast mine in New Zealand, Stockton, high on the Buller Plateau north of Westport, yields an average 900,000 tonnes of coal a year. It also has a history of acid drainage problems. Minister for Regional Development Shane Jones has strongly signalled his interest in more mining developments in New Zealand.

If projects rejected by the courts are going to be included, then those projects ought to be part of the public and political discussion of the bill, says Edward Willis, an associate professor of law at the University of Otago. “If one of those examples was pulled out and they said, ‘This is the sort of thing we want this legislation used for. The court said no to it for a reason. Why are we doing it despite the court saying no?’”

Willis isn’t sure how the select committee will be able to assess the bill properly without prospective projects to refer to.

“The core legal question is: are the checks and balances in the legislation appropriate? And without having a project in mind to test that against, we just don’t know. Under this process, it’s very, very difficult for the select committee to make an informed decision and recommendation back to the House on what the legislation should be.”

Willis rejects claims that the bill is unconstitutional. “I think the government is legislating in a way that it’s broadly empowered to do,” he says, “but it’s absolutely not desirable.”

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If one of my hypothetical projects was listed on the bill—if it got the nod from Jones and Bishop—then an expert panel would consider it. They would have just 40 days to do so. They might add some conditions to it—they might say, “Yes, you can bottle Waikoropupū Springs, but not all of it,” for instance.

Then, the panel would hand the project back to Jones, Bishop, and Brown. The three ministers would either agree with the expert recommendations or bin them. They would, not unlike Roman emperors in the Colosseum, settle the case either with a thumbs-up or a thumbs-down.

In the case of Waikoropupū Springs, the Conservation Minister would have to give the thumbs up, too, because it’s located on a scenic reserve.

To Severinsen, who is an expert in resource management reform, getting a project listed on the bill in the first place is one crucial part. “Once it passes this stage, it really becomes something of a rubber-stamping exercise because of how the process with the panels and the ministerial-decision making work. So whether it enters in the first place is really critical.”

There’s also a loophole: the projects directly listed in the bill technically don’t have to meet the criteria for referral given inside the bill. The bill hasn’t been passed, so its guidelines aren’t yet binding. If this loophole is exploited, listed projects could skip the first set of rules that are supposed to be applied to them—meaning they could take place in national parks, or on Treaty settlement land.

With the exception of farmland and a handful of small scenic reserves and ecological areas, everything else in this shot of Lake Mahinapua is stewardship land, right back to the Divide. In other words, it’s open for business.

So far, Bishop and Jones have resisted calls to make the projects public. Submissions on the bill close on April 19. After that, the general public won’t have a say on any of the projects under development, and neither will environmental groups.

“It’s highly unusual for the public to be excluded for activities that have significant environmental effects, which this is clearly designed to cover—there wouldn’t be much point in doing this if you could use the RMA to do it,” says Severinsen.

In addition, it’s not clear who will represent wildlife or the environment when it comes to decision-making. It’s not known who will be on the expert panels assessing the projects—but the ministers aren’t required to heed their advice, anyway.

“If you choose to use this legislation to override all environmental laws, and the laws are designed to prevent extinctions, the question to ask is, ‘Is the government signing up to the first human-induced extinction in New Zealand in 100 years?’” asks Nicola Toki, chief executive of Forest and Bird. “When you have ministers openly advocating for mining that may extinguish a species, then we’re in a bad place.”

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One thing everybody agrees on is that the status quo needs to change: the Resource Management Act, the one causing serious delays, needs an update.

“We’re not against fast-tracks, but it’s about checks and balances, and those are startlingly missing,” says Toki. “We’re driving a car at 150 kilometres an hour with no brakes and no seatbelts.”

The previous government’s fast-track legislation, the COVID-19 Recovery (Fast-track Consenting) Act, required its expert panels to consult a set of environmental groups. Those panels also made final decisions on projects.

Multiple people have pointed out that adjusting the RMA would go a long way towards speeding up the process. Environmental scientist Troy Baisden, who is co-president of the New Zealand Association of Scientists, says the RMA is beset by the problem that “whoever argues loudest with the most money wins”, especially when it comes to balancing costs versus benefits. The new bill isn’t an improvement, though. “It just allows us to do things that are probably going to fail faster,” he says.

He thinks the fast-track bill is fixable, but it needs some important tweaks. For instance, environmental parameters. How much damage is tolerable for the sake of development? “What we need to do is understand the shape of environmental problems and how much is too much—limits on climate change, on water quality,” he says. “And when we’ve gone over them, we need to have targets in terms of what we’re trying to achieve.”

At the moment, under the RMA, each project has to start from scratch in terms of its environmental assessments. Each approval is a bespoke piece of research. “Which is the other problem with the RMA—there’s no consistency,” says Baisden. “There’s no ability for us who do environmental science to work consistently and develop better datasets over time.”

Instead of solving the problem, the fast-track bill plans to speed things up by scrapping these environmental assessments. Baisden doesn’t see this as a long-term solution.

“If this goes forward in this format, what you can expect from the left is to just unstop everything as soon as they get back in government. So, good luck, developers, if this is what you wanted.

“Fixing it serves everybody’s interests, including, you know, Shane Jones and Chris Bishop, if they want what they’ve done here to be at all enduring.” Otherwise, the bill is “likely to be a very temporary piece of legislation,” he says, “because it’s a dangerous piece of legislation.”

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