Submission: Fast Track Approvals Bill

The coalition’s new Fast Track Bill not only swings open the door for environmentally destructive projects, it is also anti-democratic, lacks in checks and transparency, has excessive powers for ministers, offers inadequate opportunity for public feedback, puts unjustified limits on justice and fails to recognise our existing international commitments. Perhaps worst of all, it is unnecessary.

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In 2020 New Zealand Geographic changed our media and engagement policy on the subjects of climate and biodiversity, and have since taken a more committed stance to both our reporting and representations.

This includes uncompromising journalism and direct submissions to government where our reporting has made it obvious that the science is unequivocal and necessary actions unambiguous. The new Fast Track Bill directly engages these topics and should be alarming for any New Zealander who values the natural environment or works or lives within it.

Below is our full submission to the Environment Select Committee.

INTRODUCTION

  1. This is a submission by New Zealand Geographic on the Fast-Track Approvals Bill (the Bill).
  2. New Zealand Geographic is an independent magazine, digital media outlet and research organisation with an audience of more than a million New Zealanders across all channels. It was founded in 1989 and has been published for the past 12 years by Kōwhai Media Limited, a family-owned media company based in Tāmaki Makaurau.
  3. While it is unusual for an independent media outlet to make a formal submission to the Government, in 2020 we changed our media and engagement policy on the subjects of climate and biodiversity, and have since taken a more committed stance to both our reporting and representations. This includes uncompromising journalism and direct submissions to government where our reporting has made it obvious that the science is unequivocal and necessary actions unambiguous. The Bill directly engages these topics.
  4. New Zealand Geographic wishes to appear before the Environment Committee to speak to the points raised in this submission.

SUMMARY OF SUBMISSION

  1. New Zealand Geographic strongly opposes the Bill.
  2. The Bill proposes to establish a new fast-track approvals regime for major infrastructure and development. At first glance, this intent could be applauded. A legacy of underinvestment in infrastructure has created a significant deficit.[1] Just last year, a drain collapsed in Parnell, causing millions of litres of sewage to flow into the Waitematā Harbour and city beaches to close for 10 days.[2] However, the Bill adopts an approach that is deeply concerning in most regards. It ignores the importance of natural infrastructure and allows significant environmental harm. It cannot be supported.

Issue 1: The Government’s approach to the legislative process is anti-democratic, lacks transparency and removes important checks.

  1. The Bill creates a preferential regime for “listed” projects. These projects are either automatically deemed eligible for fast-tracking[3] or they are considered to have “regionally and nationally significant benefits”.[4] Despite their importance to the Bill’s implementation, the Government did not include any projects in the Bill’s schedules when introduced. Instead, development Ministers will select and insert projects into the Bill after it has progressed through the select committee.[5] The Government’s approach removes the ability of the public and Committee to scrutinise the projects that the Bill has been designed to enable; and fails to recognise principles of good law-making. For instance, by removing an independent ‘check’ on its own powers and excluding the public from having a say on decisions that will significantly impact their interests.

Issue 2: The Bill weakens existing protections for the natural environment.

  1. The Bill ignores the legacy of environmental destruction caused by large-scale infrastructure and development in New Zealand. It contains proposals that could enable any project to be fast-tracked while undermining existing protections for the natural environment. Projects can be fast-tracked even though they would be ordinarily prohibited by existing laws[6] and despite being previously declined by independent decision-makers. This includes decisions by the specialist Environment Court following years of contention, robust scientific analysis and public input. Enabling these types of projects would risk destroying our most vulnerable ecosystems including taonga species that are on the brink of extinction.

Issue 3: Excessive decision-making powers are reserved to development Ministers without independent oversight.

  1. The Bill introduces an ability for development Ministers to select projects for fast-tracking (in some cases, making those projects eligible for approval)[7] and then gives the same Ministers almost unfettered powers of approval. While expert panels are tasked with assessing and making recommendations on approvals and conditions, the joint Ministers can override those recommendations without providing any reasons for doing so.[8]
  2. At the same time, the Bill removes important checks and balances on the powers of the executive. For example, by limiting rights of appeal; extinguishing existing rights of public participation; and overriding local government powers of decision-making. It is unreasonable that the Minister for the Environment has no influence on decisions affecting the use of natural and physical resources; and that development Ministers have a majority influence on most conservation matters. Given the importance of the issues at stake, it is inappropriate that the only veto appears to be the next election.

Issue 4: Inadequate opportunities for input by public and affected parties in decision-making.

  1. The Bill deals with issues that are inherently of significant public interest. It only applies to projects that are of regional or national significance;[9] it affects areas that the public frequently use (e.g. coastal waters, reserves, conservation areas); and it enables projects that could generate significant adverse environmental effects[10] or compromise values that are of regional, national or international significance.[11] Decisions will inevitably have long-term consequences and affect the options of future generations.
  2. Notwithstanding the potential for significant impacts on the public, the Bill proposes to extinguish existing rights of public participation and override statutory planning documents that were developed with public input. While owners and occupiers of land directly affected by proposals can have a say, this ability is restricted to providing written comments within 10 days.[12] There is no right to be heard. As the fast-track regime applies to large-scale projects, there is likely to be considerable volumes of information to review and consider in order to provide meaningful comments on proposals. The process risks decisions being made on the basis of untested and inaccurate scientific information. It is unacceptable.

Issue 5: Unjustified limits on access to justice.

  1. The exclusion of the general public from project assessment and approval processes has flow on consequences. Under the Bill, appeal rights are limited to specific groups including the applicant, relevant local authorities, people invited to provide comments on an application (if they did) and those with an interest “greater than that of the general public” in the decision.[13] Relative to the status quo, this reduces opportunities for the general public and environmental groups to seek recourse from the courts on decisions affecting their interests.
  2. Even parties with standing have limited appeal rights. The Bill removes the oversight of the specialist Environment Court and restricts appeal rights to points of law.[14]

Issue 6: Insufficient recognition of New Zealand’s commitments under international law.

  1. The Bill fails to adequately recognise, or give effect to, New Zealand’s obligations to protect biodiversity and implement sustainable management under international law. At best, this is embarrassing and leads to reputational risk when New Zealand is required to report on progress towards achieving global goals. But there is a risk that the roll-back of important statutory environmental protections will be viewed as subsidising industry. This could seriously harm our export industry and give rise to international litigation.

Issue 7: The Bill is unnecessary.

  1. The Bill has been designed to overcome costs and delays in consenting.[15] This narrow problem definition misses the key point – that existing resource management laws have failed to adequately protect the natural environment. The Government has not provided any clear rationale to support the need for an urgent new fast-track regime. Targeted amendments to the Resource Management Act 1991 (RMA) will be introduced by May and replacement legislation will follow by the end of the year.[16] In the interim, a fast-track regime remains available for eligible infrastructure and development.[17] There is no basis to support rushing through legislation that will enable significant environmental harm in the absence of adequate checks and balances.

Conclusion: Relief requested.

  1. The Bill raises fundamental concerns that cannot be fixed by legislative tweaks. New Zealand Geographic requests that:
  • The Bill be withdrawn; and
  • Following the withdrawal of the Bill, the Environment Committee recommend a process that seeks crossbench support for agreed amendments to the RMA and (if necessary) other legislation to ensure the resource management system on the whole is efficient and effective – not just the consenting regime.
  1. We address these issues in additional detail in subsequent sections of this submission. In parts, we identify opportunities for the Committee to make improvements if the Bill is not withdrawn. This does not reflect our support for the Bill but rather the concerning prospect that it could be passed into law. Our strong preference is that the Bill be withdrawn in its entirety.

ISSUE 1: CONCERNS IN RELATION TO THE LEGISLATIVE PROCESS FOR THE BILL

  1. The Bill proposes to establish a new standalone fast-track approvals regime for significant infrastructure and development. It creates a differential regime for projects that are “listed” in the Bill and “other” projects, with important implications:
  • Projects listed in Schedule 2A of the Act (Part A listed project) are automatically eligible for fast-tracking.[18] On application, a project must be referred directly to an expert panel for assessment.[19] Then joint Ministers make decisions on approvals.[20]
  • Projects listed in Schedule 2B of the Act (Part B listed project) are not automatically eligible for fast-tracking. On application, joint Ministers must determine their eligibility for referral to an expert panel.[21] These projects are deemed to have “significant regional or national benefits” by inclusion in the Bill,[22] which is an important eligibility criterion for referral.[23]
  • Any other unlisted projects (other referred project) follow the process in (b) but are not automatically considered to have significant benefits.[24] The joint Ministers must address this separately when deciding whether or not to accept the project for fast-tracking.[25]
  1. The Bill’s design means listed projects are critical to its implementation. However, no projects were included in the Bill’s schedules when introduced. Instead, the Government has sent invitations to undisclosed companies requesting applications for projects to be listed in the Bill.[26]
  2. A Fast Track Projects Advisory Group has been established to make recommendations to development Ministers on project listings.[27] The Ministers will decide what projects are included in the Bill. Hon Chris Bishop MP has suggested that this will occur after the select committee stage.[28] There are no opportunities for the public to have a say in this process. The Government has said the Advisory Group will “look carefully” at project applications.[29] However, it is unclear what the Advisory Group will be looking for. At the date of writing, the Government has not published any criteria to guide the Advisory Group in making its recommendations. In a letter to interested parties dated 3 April 2024, Hon Chris Bishop MP advised that the Advisory Group would assess projects against the referral criteria in the Bill.[30] However, as we address below, the criteria are broad, vague and discretionary. Moreover, the Ministers are not bound by any statutory criteria when they make decisions to include projects in the Bill’s schedules.
  3. The Government’s approach is alarming for a number of reasons. First, decisions to include projects in the Bill’s schedules are made pre-emptively and occur outside the law. There are in effect no statutory limits on the types of projects that can be included in the Bill before it is passed. Any project could be fast-tracked via this process – even projects that have already been declined by independent decision-makers such as the specialist Environment Court; or projects that are otherwise ineligible under the referral criteria in the Bill.
  4. Second, there is a lack of scientific expertise on the appointed Fast Track Projects Advisory Group. The listing of projects will directly influence decisions on the use of natural and physical resources with long-term consequences for the environment. However, only two members of the Advisory Group appear to have relevant technical expertise (an urban planner and a civil engineer).[31] Most of the members have commercial backgrounds – they are ‘executive leaders’ or company directors with experience in economic development. Some of the members have direct interests in businesses that could use the fast-track regime. In our view, this makes it likely that economic factors will be inherently prioritised over environmental considerations in the listing process. It also provides easy access for lobbyists to influence the listing process.
  5. Third, listed projects receive preferential treatment in the fast-track process. They are either deemed eligible for approval by joint Ministers (i.e. Part A Listed Projects) or treated as if they meet an important eligibility criterion (i.e. Part B Listed Projects). Following referral and assessment, the Ministers have sweeping powers to approve projects. It is inappropriate that the Ministers have the ability to make a project eligible and then approve it, in the absence of adequate checks and balances.
  6. Fourth, omitting projects from the Bill’s schedules means they are removed from exposure to public and select committee scrutiny. We find this particularly concerning because the Bill provides no opportunities for public input. Indeed, it explicitly prohibits an expert panel from publicly notifying a resource consent or notice of requirement.[32] The general public will have no ability to voice concerns about fast-tracked projects. Yet the Bill will have significant environmental, economic and social impacts on the public. An important function of the Committee is to provide independent scrutiny of the actions of the executive. However, by providing partial information, the Government has effectively removed this check on its own powers. The lack of transparency in the legislative process is anti-democratic and contrary to recognised principles of good law-making.
  7. Fifth, when the Ministers decide to list a project in Schedule 2A of the Bill it is deemed eligible for fast-tracking. These projects bypass the ministerial referral step in the fast-track process. This puts the eligibility of these projects beyond the scrutiny of the courts.
  8. It is widely recognised that good law necessitates robust analysis, public input, considered debate and select committee scrutiny. It is impossible to realise these outcomes without a full picture of what the law is. The Government’s approach is anti-democratic, lacks transparency and removes important ‘checks’ on its own powers. These issues are perpetuated by the proposals contained in the Bill. New Zealand Geographic strongly opposes the Bill and requests that it be withdrawn.

ISSUE 2: THE BILL WEAKENS EXISTING PROTECTIONS FOR THE NATURAL ENVIRONMENT

  1. The Bill must be considered in the context of the importance of the natural environment of New Zealand and the substantial evidence of its ongoing decline.

The natural environment is under significant pressure

  1. New Zealand’s natural environment is unique. Many of our indigenous plants and wildlife are found nowhere else in the world. We have iconic species including giant invertebrates, flightless birds, ancient reptiles, black corals, towering kauri forests, and the world’s smallest dolphin.[33] Some species are highly localised and perform critical functions for ecosystem processes. This makes them particularly vulnerable to adverse impacts from human activities and changes in environmental conditions.
  2. The state of our natural environment is of significant concern. The latest reports published by the Ministry for the Environment and Stats NZ paint a grim picture of widespread degradation and continuing declines across land, freshwater and marine domains.[34] For example:
  • 62 percent of monitored lakes have ‘poor’ or ‘very poor’ water quality – these outcomes have been linked to human activities (i.e. modified land cover) in upstream catchments;[35]
  • The area of indigenous vegetation cover decreased by 88,146 hectares between 1996 and 2018;[36]
  • Freshwater wetland area decreased by 5,762 hectares between 1996 and 2018;[37]
  • River water quality has been significantly impacted by pollution and nutrient run-off (e.g. modelled nitrogen and phosphorous concentrations show that 64 to 69 percent of river length is at risk of environmental impairment based on comparison with reference conditions);[38] and
  • Eight of the 10 warmest years on record occurred in the last decade with implications for soil moisture, drought severity and fire risk.[39]
  1. These trends are reflected in the biodiversity crisis facing New Zealand. About 4000 species are currently threatened with extinction.[40] Many more species are either threatened or at risk of becoming extinct, including:
  • 76 percent of indigenous freshwater fish species (39 of 51);[41]
  • 94 percent of reptile species (116 of 124);[42]
  • 90 percent of seabird species (86 of 96) and 82 percent of shorebird species (14 of 17);[43]
  • 80 percent of bat species (4 of 5);[44]
  • 88 percent of carnivorous land snail species (96 of 109);[45] and
  • 22 percent of marine mammal species (10 of 45) – however, 67 percent were classified as ‘data deficient’ as there were insufficient data to complete an accurate assessment.[46]
  1. The observed declines in biodiversity and the natural environment have occurred despite the existing protections in the RMA and core conservation statutes.
  2. Human activities are recognised as a key driver of these trends through historic and ongoing habitat destruction (i.e. clearing of forests, land use intensification and urban development); pollution; and direct exploitation.[47] The cumulative pressures are wide-ranging and predicted to increase under climate change.[48]

The Bill fails to set adequate environmental limits

  1. In this context, we find it alarming that the Bill fails to set adequate environmental limits and weakens existing environmental protections.

The purpose of the Bill is inadequate

  1. The purpose of the Bill is to facilitate “the delivery of infrastructure or development projects with significant regional or national benefits”.[49]
  2. This purpose is important because it directly informs the assessment of projects by expert panels and decision-making by Ministers. For example:
  • The joint Ministers must decline a referral application if it is inconsistent with this purpose;[50]
  • The Minister of Conservation must have regard to this purpose when making a decision on a fast-track concession for an activity on public conservation land or a reserve;[51]
  • An expert panel is bound by the general requirement to give greater weight to the purpose of the Bill over other considerations in relevant legislation;[52]
  • An expert panel must give greater weight to the purpose of the Bill over the purpose and principles of the RMA as well as any relevant national direction and planning documents;[53] and
  • An expert panel must give greater weight to the purpose of the Bill over the purpose of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act).[54]
  1. Given its elevated importance, we find it concerning that the Bill’s purpose does not include any explicit references to the natural environment or sustainable management. This reflects a significant departure from the underlying legislation.
  2. The purposes of the RMA and the EEZ Act require decision-makers to promote the “sustainable management” of natural and physical resources.[55] The meaning of “sustainable management” has been the subject of substantial litigation in New Zealand. At the highest level, it recognises that decision-makers must strike a balance between resource use and protection to achieve sustainable outcomes. However, the Supreme Court has confirmed that sustainable management may require absolute protection from environmental harm in certain circumstances.[56] The purpose of the EEZ Act goes a step further by establishing an environmental bottom line.[57] The Supreme Court has held that a marine consent cannot be granted for a discharge or dumping activity in the EEZ if it would cause material harm to the environment through pollution.[58]
  3. The Bill would override these established environmental principles and introduce confusion into a settled area of law. In our view, the omission of clear environmental limits in the Bill’s purpose, coupled with the requirement to elevate it over existing environmental considerations, will make it difficult (if not impossible) to realise sustainable outcomes. New Zealand Geographic strongly opposes this approach.
  4. We also find the generality and breadth of “significant regional or national benefits” concerning. Certain projects are automatically deemed to meet this threshold, including listed projects[59] and specified aquaculture projects.[60] For other projects, the Bill provides a list of ten criteria to guide Ministers when making decisions on eligibility.[61] We address the criteria in further detail below. However, as a general comment, note they are discretionary (i.e. optional), broad and development-oriented. Consequently, an assessment of the significance of a project’s benefits is largely a subjective exercise only limited by the Minister’s own judgement.
  5. In our view, the concept of “significant benefits” is too vague to underpin a fast-tracking regime that enables the use of natural and physical resources. It fails to impose any substantive limits on the types of projects, activities, conditions and outcomes that can be pursued and risks undermining existing protections for the natural environment.
  6. If the Bill is not withdrawn, we request the purpose be amended to recognise the importance of the natural environment. For instance, by reframing the focus from development to facilitating “significant environmental benefits”. As a minimum, environmental protections established through existing legislation (i.e. sustainable management and environmental bottom lines) should be explicitly recognised and respected. The purpose should make it clear that the first priority is to uphold the life-supporting capacity of the natural environment and its intrinsic value, with use for the purposes of development and infrastructure subject to that objective.

The scope of eligible projects and approvals is too broad  

  1. The Bill creates a broad scope of eligibility that will enable the most environmentally destructive activities to be fast-tracked.

Listing process

  1. We find it concerning that projects could be made eligible for fast-tracking by inclusion in the Bill’s schedules even though they have already been declined by independent decision-makers after extensive consideration, rigorous assessment, and public input; or where they would ordinarily be prohibited by the RMA. The types of projects this could enable include:
  • Extensive sand mining within the Mangawhai Pākiri embayment. Last week, the Environment Court declined consents that would have enabled up to 2,000,000m3 of sand to be suction dredged from the seafloor over a 20-year period.[62] The embayment is recognised as critically important habitat for tara iti and is used by many other bird species that are threatened or at risk of extinction.[63] Tara iti is the most endangered bird in New Zealand and there are only 35 adult birds remaining in the world.[64] The Court accepted evidence of existing degradation in the embayment and found there was insufficient information to conclude the effects of the proposal could be appropriately managed.[65] A key concern was uncertainty about how sand mining would affect coastal processes and harm tara iti habitat.
  • New open cast coalmine on public conservation land at Te Kuha. Last year, the Environment Court declined consents that would have enabled a new open cast coalmine at Te Kuha.[66] The proposed mine site hosts high ecological values – it is almost entirely covered in indigenous vegetation and supports a range of flora and fauna that is threatened or at-risk of extinction including roroa (great spotted kiwi), South Island fernbird, and 17 plant species.[67] Some of these species have the highest threat classification and are ‘nationally critical’. The proposal was strongly opposed by environmental interest groups. The site provided a significant habitat and refuge for the forest ringlet butterfly (New Zealand’s rarest butterfly); Tiger beetle; and the only known habitat for a species of leaf-veined slug.[68] It also hosted wetlands with high ecological values.[69] The proposal would have destroyed habitat and wetlands within the mine footprint. The Court found the adverse environmental effects of the proposal outweighed any economic benefits to the region and declined the consents.[70] In reaching this decision, it was influenced by strong directives in national policy and relevant RMA planning documents that recognised the need to protect important biodiversity and freshwater values.[71]
  • Offshore seabed mining within the South Taranaki Bight. In 2021, the Supreme Court unanimously upheld a decision by the High Court to quash consents that had been granted to Trans-Tasman Resources Limited (TTR) to mine up to 50 million tonnes of sand per year for 35 years within the South Taranaki Bight.[72] TTR already held a mining permit for the activity under the Crown Minerals Act 1991 (CMA).[73] However, it required marine consents under the EEZ Act to enable extraction and the discharge of de-ored sand back to the seabed.[74] As previously indicated, the majority of the Supreme Court held that the EEZ Act established an environmental bottom line that could not be satisfied by the proposal. A key concern was uncertainty as to the potential effects on seabirds and marine mammals.[75] There was evidence that the proposed mining site was used by a range of threatened or at-risk species including Māui dolphin, killer whale and Bryde’s whale (nationally critical species) as well as the Hector’s dolphin, bottlenose dolphin and the southern right whale (nationally endangered or vulnerable species) and blue whale (internationally critically endangered).[76]
  1. Each of these proposals were met with strong opposition by local communities, iwi and environmental interest groups. They were all found to present unacceptable risks of environmental harm. The decisions were made following processes that allowed public input, considered debate and independent oversight. The Bill would enable these outcomes to be reversed. In our view, it is unacceptable that highly contentious projects with significant environmental risks can be made eligible for approval through the listing process despite being found wanting by the courts.

Eligibility criteria

  1. There are also serious deficiencies in the eligibility criteria for projects requiring ministerial referral. The criteria (reproduced below) are subjective, broad, and focus on the efficiency of the process rather than the substantive outcomes of decisions.
  2. The criteria are set out in clause 17(2), as follows:

Whether referring the project is consistent with the purpose of the Act;

Whether access to the fast-track process will enable the project to be processed in a more timely and cost-efficient way than under normal processes;

The impact referring this project will have on the efficient operation of the fast-track process;

Whether the project would have significant regional or national benefits; and

Whether the application contains sufficient information to inform the referral decision.

  1. Clause 17(3) provides a list of ten matters to guide Ministers in considering whether a project would have “significant regional or national benefits”. This includes a number of development-oriented outcomes such as “will deliver … significant infrastructure”; “will increase the supply of housing”; “will deliver significant economic benefits”; “will support primary industries”; “will support development”. The list also refers to three environmental matters– “will support climate change mitigation”; “will address significant environmental issues”, “will support adaptation, resilience and recovery from natural hazards”. While this gives Ministers a clear opportunity to consider environmental outcomes when making referral decisions, it does not require them to.
  2. It is concerning that there are no clear environmental limits in the criteria. The Bill would allow Ministers to accept projects for fast-tracking that deliver significant short-term economic benefits through overallocation of surface and groundwater; permanent habitat loss; and ongoing pollution (i.e. greenhouse gas emissions, genetically modified organisms, sediment run-off).
  3. We recognise that Ministers are not empowered to refer a project if it is “ineligible” under clause 18 of the Bill. However, few projects are actually ineligible. For instance, the list includes activities occurring on specific classes of Māori land or public conservation land, or in areas where certain customary rights have been recognised. But in many cases, the bar on eligibility is lifted if prior approval is obtained from specified Māori rights holders. We are not opposed to the need for prior approval. Our primary concern relates to the fact that this process does not recognise the need to set clear science-based environmental limits as a backstop for development. It also gives considerable power to select Māori settlement entities to approve development while ignoring the broader role of iwi and hapu as kaitiaki (unless this has been satisfactorily established in the underlying settlement legislation – in many cases it has not).
  4. The list of ineligible projects does not adequately recognise important conservation values.[77] This is because the Bill largely relies on the CMA (i.e. mining legislation) to implement protections for public conservation[78] Projects are only generally ineligible if they occur in areas with recognised high values (e.g. national parks, nature reserves, scientific reserves, wilderness areas, sanctuaries, marine reserves).[79] This approach is lacking.
  5. First, a large proportion of the conservation estate (about 2.5 million hectares or nine percent of New Zealand’s land area) is held as “stewardship land” and much of this has not been assessed or formally classified.[80] The conservation values of this land largely remain unknown and unprotected by law.
  6. Second, deficiencies in New Zealand’s conservation laws have historically constrained the ability to effectively protect areas with known high values. This has led to the development of bespoke legislation to strengthen protection for areas such as the Hauraki Gulf[81] and the Waitākere Ranges.[82] The Bill does not preclude activities from occurring in these areas. It effectively undermines the laws that were enacted to protect these areas instead.
  7. Third, clause 18 adopts a selective approach and refers to specific items in Schedule 4 of the CMA. This limits the ability of new areas to be protected through time.
  8. In our view, the Bill places too much reliance on Schedule 4 of the CMA to implement protections for public conservation values. It leaves public conservation land (and waters) with known or potentially high values at unacceptable risk from permanent harm. If the Bill is not withdrawn, we request clause 18 is redrafted to incorporate adequate protections for public conservation areas. We doubt whether this is achievable given other fundamental deficiencies in the Bill.

Scope of approvals

  1. A wide range of approvals can be granted for eligible projects including activities that are ordinarily prohibited under the RMA.[83] This is concerning for two reasons:
  • RMA plans are developed by local authorities with knowledge of the specific issues facing an area; and following a public consultation and submissions process; and
  • Prohibited activity status is reserved for activities that present the greatest risk of environmental harm. For example, as a recent example, the Proposed Northland Regional Plan (February 2024) includes rules that prohibit the release of genetically modified organisms to the sea;[84] destructive fishing activities (including bottom trawling) within Ngā Au o Morunga Mai Rākaumangamanga Protection Area;[85] and freshwater extraction in excess of allocation limits.[86] The Plan has gone through the appeals process and these rules are operative.
  1. By introducing an ability to grant approvals for these types of activities, the Bill takes control away from local authorities, disregards public input in the planning process, and undermines existing protection for the natural environment. New Zealand Geographic strongly opposes these outcomes. If the Bill is not withdrawn, we request it be amended so that activities prohibited by the RMA are not eligible for fast-tracking.

The assessment and approval processes are inadequate.

  1. On referral, expert panels assess projects and make recommendations to joint Ministers on the substantive application.[87] This includes whether a project should be approved and (if so) any conditions. However, joint Ministers make the final decision to approve or decline a project.[88] This raises a number of concerns, including:
  • Panel members are not required to have experience in resource management (including the RMA) or specialist knowledge / expertise relating to the natural environment. Instead, panels are required to collectively have the knowledge, skills and expertise relevant to the purpose of the Act; matters specific to the project; and “if appropriate” conservation expertise.[89] In our view, this creates a risk that panel members will not have the expertise and skills required to adequately assess the environmental implications of an application. This is particularly concerning because the Bill extinguishes the usual opportunities for the public to raise concerns about inaccuracies or errors in application materials. We address this point further below.
  • Panels must give greater weight to the purpose of the Bill over other relevant considerations, including the sustainable management purpose of the RMA/EEZ Act, relevant national direction in the RMA (and deemed national direction such as the Hauraki Gulf Marine Park Act 2000), RMA plans[90] and conservation plans/strategies.[91] These planning instruments have been developed following public input, recognise important values, and set environmental bottom lines with a robust scientific basis. The Bill weakens these environmental protections by requiring panels to prioritise development outcomes over all else.
  • The information assessed by an expert panel is largely controlled by the applicant or joint Ministers. An applicant is not required to seek every approval necessary to enable a project via the fast-track process. Moreover, when making a referral decision, the joint Ministers can decide to refer all or part of a project to a panel; or to refer the initial stages of a project to a panel while deferring decisions about the project’s remaining stages.[92] In our view, this could artificially constrain the ability of the expert panel to assess the effects of a project on the whole. It creates a risk that a panel’s recommendations might fail to adequately address the cumulative effects of a project. It also potentially makes it easier for subsequent, more destructive, stages of a project to be approved via the fast-track regime or under standard approval processes by altering the “permitted baseline” against which proposals are assessed.
  • Panels are not required to take into account the principles of the Treaty of Waitangi when making recommendations on RMA approvals.[93] In relation to concessions, a panel is required to consider conservation management plans or strategies that have been co-authored or approved by a Treaty settlement entity rather than give effect to the broader principles of the Treaty of Waitangi.[94] This fundamentally alters the status quo and means a panel is not obliged to consider the implications of a project on broader Māori rights and responsibilities (unless recognised in formal settlements) including kaitiakitanga. New Zealand is replete with examples where iwi and hapu groups have led the charge on environmental causes. For instance, by placing rāhui over coastal waters to restore marine ecosystems. The Bill disregards these important roles with consequences for the environment.
  • The Bill removes the RMA test for non-complying activities.[95] Under the status quo, resource consent can only be granted for a non-complying activity if its adverse effects will be no more than minor or the activity is not contrary to the objectives and policies of the relevant plan (this is widely known as the “gateway test”).[96] This activity status is usually applied to high-risk activities occurring in areas with special values such as Outstanding Natural Landscapes, Significant Natural Areas, or Significant Ecological Areas. By removing the gate-way test, non-complying activities will be subject to less rigorous scrutiny by planners (in preparing application materials) as well as panels (in the assessment process). The panel can recommend that approvals be granted for non-complying activities that would ordinarily fail to pass the gate-way test.
  • Panels must follow an assessment process that incorporates some of the environmental protections from underlying legislation. However, joint Ministers can choose to override the panel’s recommendations or direct the panel to reconsider its recommendations.[97] This ability risks undermining the strength of environmental protections imposed via conditions and the assessment process as a whole.

ISSUE 3: EXCESSIVE RESERVATION OF POWER TO CENTRAL GOVERNMENT

  1. The Bill reserves excessive powers to central government without independent oversight.

Ministers have broad powers to accept projects for fast-tracking

  1. By listing projects in Schedule 2A of the Bill, the joint Ministers in effect make these projects eligible for fast-tracking. No statutory criteria apply to listing decisions so this gives Ministers unfettered powers to make projects eligible – even where they would otherwise fail to meet the criteria that apply to other projects.
  2. In making referral decisions for other projects (i.e. Part B listed projects or unlisted projects), the joint Ministers must decline an application if they are “satisfied” that:[98]
  • Referral is inconsistent with the purpose of the Act;
  • The project does not meet the eligibility criteria for referral; or
  • The project includes an ineligible activity.
  1. For reasons we have already addressed, this means there are few constraints on the Ministers’ ability to accept a project for fast-tracking. The purpose of the Bill is broad and vague; the eligibility criteria import subjective considerations that require Ministers to exercise their own judgement; and the list of ineligible activities is severely deficient. Indeed, the Bill makes it difficult for Ministers to decline listed projects. Ministers cannot decline Part A listed projects (which are automatically referred to expert panels); and they must assume Part B listed projects have “significant regional or national benefits” (i.e. a core aspect of the Bill’s purpose and eligibility criteria).[99]

Ministers have wide powers of approval

  1. The scope of approvals is very wide. Moreover, the Bill gives the joint Ministers almost unfettered powers to grant approvals for projects. The Ministers can depart from a panel’s recommendations if “they have undertaken analysis of the recommendations and any conditions”;[100] they can also direct a panel to reconsider or amend its recommendations.[101] It is unclear what level of “analysis” would need to be carried out before the Ministers could override a panel’s recommendations because they are not bound by any statutory criteria and do not need to give any reasons to justify their decision.
  2. If the Bill is not withdrawn, we request it be amended to (as a minimum):
  • Address gaps and weaknesses in the expert panel assessment process (some key issues are outlined above);
  • Provide expert panels with powers to make decisions on the substantive application (i.e. approvals and any conditions) – Ministers could retain an oversight role; and
  • If joint Ministers remain the final decision-makers, limit their powers to depart from expert panel recommendations through inclusion of specific statutory criteria and a requirement that they provide written reasons.

Development Ministers have too much power

  1. The “joint Ministers” are the exclusive decision-makers on substantive applications under the Bill. In most instances, this means the Minister for Infrastructure, Transport and Regional Development (development Ministers).[102] Given the Bill will have direct implications for the natural environment, we find it alarming that the Minister for the Environment has no ability to make or influence decisions on applications. If the Bill is not withdrawn, the Minister for the Environment should be included as a joint Minister in relation to referral and approval decisions.
  2. The Minister of Conservation is responsible for making decisions on concessions.[103] However, the Minister holds no powers in relation to decisions that impact conservation values more broadly (i.e. where threatened habitat or species will be affected by projects). Moreover, the Minister is not afforded exclusive powers in regards to wildlife approvals – these decisions will be made jointly by the development Ministers and the Minister of Conservation.[104] If the Bill is not withdrawn, the Minister of Conservation should hold exclusive powers for decisions on wildlife approvals.

ISSUE 4: INADEQUATE OPPORTUNITIES FOR PUBLIC PARTICIPATION IN DECISION-MAKING

  1. The Bill deals with issues that are inherently of great significance to communities in New Zealand. It only applies to projects that are of regional or national significance;[105] it affects areas that the public frequently use (e.g. coastal waters, reserves, conservation areas); and it enables projects that could generate significant adverse environmental effects[106] or compromise values that are of regional, national or international significance.[107] Decisions will inevitably have long-term consequences and affect the options of future generations.
  2. Despite what is at stake, the Bill restricts the ability of the general public and affected parties to have a say in decision-making. It also directs expert panels to demote or entirely disregard important environmental plans and policies (and even laws) that were developed with public input.

Preliminary consultation

  1. The Bill imposes a general requirement on applicants to “undertake engagement” with relevant iwi, hapū, Treaty settlement entities and local authorities before lodging an application.[108] However, no specific guidance is provided to ensure meaningful engagement occurs. For instance, it is unclear if this requirement could be satisfied by sending a notice of the application to local iwi without providing any details or opportunities for feedback.

Inadequate opportunities to provide input on referral decisions

  1. On receiving an application for referral, the joint Ministers must invite written comments from local authorities, other relevant Ministers and various Māori groups.[109] The Ministers are also obliged to consult relevant Māori groups.[110] It is unclear what “consult” means in this context. There is no requirement to notify anyone else of the application, including the wider public or parties that will be directly affected by the project (e.g. land owners and occupiers). However, the joint Ministers can invite written comments from “any other person” if they wish.[111]
  2. We recognise this approach has been generally adopted from the current fast-track regime.[112] However, there are key differences here that engage the public interest. A wider range of approvals can be obtained for activities occurring on public reserves and within public conservation areas; approvals can be granted for activities that are ordinarily prohibited; and the Bill overrides a range of important environmental protections.
  3. The Bill substantively modifies the playing field. In this context, it is vital that the general public and affected parties (such as land owners and occupiers) are provided with an opportunity to submit on applications that have significance for them. These issues are not alleviated by subsequent stages of the fast-track process.

Inadequate opportunities to participate in assessment process

RMA approvals

  1. In considering applications for RMA approvals, a panel must invite written comments from relevant local authorities, various Māori groups, certain Ministers, the Director-General of Conservation and land owners/occupiers.[113] A panel may request written comments from others[114] but it is prohibited from notifying the public more generally of a proposal.[115] This has the effect of excluding the general public from the assessment process.
  2. We find it concerning that the Bill applies a blanket prohibition on public participation. Particularly in the context of legislation that enables projects with a known risk of significant environmental harm. In our view, it is not appropriate to rely on the expert panel requesting comments from parties on a discretionary basis. Particularly when that expert panel is under pressure to “take all practicable steps to use timely, efficient, consistent, and cost-effective processes”.[116]
  3. The approach adopted by the Bill is more restrictive than a similar fast-track regime established by the National Development Act 1979 (NDA). Under the NDA, a project was publicly notified on referral to the Commissioner for the Environment[117] and the public were provided with an opportunity to submit on a proposal as part of an Environmental Impact Audit process (led by the Commissioner for the Environment).[118] Under that process, a number of submissions were received on projects, including a methanol plant (34 submitters), synthetic petrol plant (68 submitters) and aluminium smelter (473 submitters).[119]
  4. It is unclear why the Bill does not incorporate similar opportunities for public input. The MfE Supplementary Analysis Report does not contain any quantifiable evidence to suggest that public submissions or hearings would cause unacceptable delays or inefficiencies.[120] In reality, efficiencies can be realised through effective public participation. For example, by enabling errors or gaps in application material to be identified and corrected promptly; and by providing opportunities for points of disagreement to be clarified or resolved.
  5. In the recent Pākiri Sand Mining Decision, the applicant had originally sought approvals for a larger volume of sand spanning shallower coastal waters.[121] However, the proposal was met with strong opposition from mana whenua and environmental interest groups. Through the Court process, experts raised concerns about calculations that had been relied on to understand effects on coastal processes and this led to the applicant withdrawing proposals to mine mid-shore and in-shore areas.[122] It is unacceptable that the Bill removes these important safeguards. Decisions could be made on the basis of erroneous scientific information. If errors are identified, they could give rise to subsequent litigation and delays. These outcomes are not consistent with the intent of the Bill, which seeks to deliver efficiencies and better recognise social and economic benefits.
  6. We also find it concerning that invited parties must provide written comments to a panel within 10 working days.[123] The nature and scale of projects that are eligible for fast-tracking means there is likely to be considerable information provided with an application. Sufficient time needs to be allowed for people to review this information, obtain expert advice (if necessary) and prepare considered submissions. By way of example, the NDA gave submitters 30 working days (the Court of Appeal described this as “unusually limited”);[124] and both the existing RMA fast-track regime and standard concessions regime give submitters 20 working days.[125]
  7. If the Bill is not withdrawn, we request that the timeframe is reconsidered and extended to ensure people can effectively participate in the decision-making process.

Other approvals

  1. There are even fewer opportunities to provide input on applications for concessions affecting public conservation land. For example, the Bill does not provide for a panel to request written comments on these aspects of a proposal; and it specifically “disapplies” parts of the Conservation Act 1987 that would normally require or enable public notification and hearings.[126] Instead, the Department of Conservation must consult with relevant land owners and administrators and prepare a report for a panel’s consideration.[127]
  2. This raises two issues. First, the Bill provides inadequate opportunities for public input in significant decisions affecting public conservation areas. Second, the Bill appears to apply different consultation requirements to “RMA” and “conservation” approvals. This creates unnecessary complexity and is likely to lead to confusion. In our view, it is vital that interested parties should be able to provide comments on the project as a whole.
  3. If the Bill is not withdrawn, we request it be amended to include adequate opportunities for public scrutiny and effective participation.

ISSUE 5: UNJUSTIFIED LIMITS ON ACCESS TO JUSTICE

  1. The significance of the ability to participate in the fast-track process is elevated because appeal rights are limited to specific persons or groups. Those include an applicant, relevant local authorities, persons who were invited to provide comments on an application (if they did), and those with an interest “greater than the general public” in the decision.[128] This makes it essential that adequate opportunities for participation are incorporated into the decision-making processes under the fast-track regime.
  2. The Bill provides for limited rights of appeal confined to questions of law.[129] There is no opportunity to appeal a decision on its merits. Again, while this approach generally reflects the existing fast-track regime for RMA approvals, the context is markedly different. The existing fast-track process was carried over from COVID-19 fast-track legislation.[130] That legislation was intended to operate as a short-term intervention in response to the emergency of a global pandemic. The MfE Supplementary Analysis Report does not provide any clear rationale to support limiting appeal rights in perpetuity.[131] The approach represents a significant departure from the standard RMA process, where a person who made a submission can then appeal a decision to the Environment Court to be heard afresh on its merits.[132] The Bill disregards the specialist role of the Environment Court and unjustifiably prevents public participation. These outcomes are strongly opposed.
  3. If the Bill is not withdrawn, we request that adequate opportunities for public participation are provided in relation to all types of approvals, including concessions, to ensure those with interests in specific projects can seek relief from the courts.

ISSUE 6: FAILURE TO RECOGNISE COMMITMENTS UNDER INTERNATIONAL LAW

  1. The Bill’s disregard for the natural environment is at odds with New Zealand’s commitments under international law. This not only risks New Zealand’s reputation on the global stage, it could harm our export industry and give rise to legal challenges.
  2. New Zealand is a party to several international agreements that include requirements relating to the protection of biodiversity and the sustainable use of natural and physical resources. For example, the United Nations Convention on Biological Diversity (CBD)[133] and the United Nations Convention on the Law of the Sea (UNCLOS).[134] In our submission, the Bill does not adequately recognise these obligations.
  3. We refer to some of New Zealand’s key obligations under the CBD and UNCLOS below to illustrate our concerns. This is not intended to provide comprehensive analysis but to provide examples of the poor alignment between the Bill and New Zealand’s international commitments; and related risks to New Zealand’s reputation and export market.

Relevant commitments under international law

United Nations Convention on Biological Diversity

  1. New Zealand’s obligations under the CBD include:
  • Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures;[135]
  • Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings;[136]
  • Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species;[137]
  • Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations;[138] and
  • Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity.[139]
  1. It is difficult to reconcile the Bill’s proposals with these obligations. The environmental assessment process can be undermined by the joint Ministers and no opportunities are provided for public participation. Indeed, the Bill applies a blanket prohibition on public participation. Moreover, the proposed fast-track regime disregards the natural environment and enables proposals that have been found to present an unacceptable risk for threatened species and habitats. This is not accidental. In parliamentary debate, Hon Shane Jones MP (a development minister for the purposes of the Bill) commented “if there is a mining opportunity and it’s impeded by a blind frog, goodbye, Freddy”.[140] If the Bill is not withdrawn, it will be difficult to justify this position on the world stage. Particularly at mandatory reporting conferences between the parties.
  2. Te Mana o Te Taio – Aotearoa New Zealand Biodiversity Strategy 2020 (Biodiversity Strategy) is critical to implementation of New Zealand’s obligations under the CBD. It sets five broad outcomes for 2050:[141]
  • Ecosystems and species from mountain tops to ocean depths are thriving;
  • Indigenous species and their habitats, across New Zealand and beyond are thriving;
  • People’s lives are enriched through their connection with nature;
  • Treaty partners, whānau, hapū and iwi are exercising their full role as rangatira and kaitiaki; and
  • Prosperity is linked with thriving biodiversity.
  1. The Biodiversity Strategy includes objectives and goals to achieve these outcomes. Relevant objectives include reviewing current legislation to ensure ongoing biodiversity protection;[142] enabling Treaty partners to practice their responsibilities as rangatira and kaitiaki in decision making about taonga species;[143] and placing biodiversity protection at the heart of economic activity.[144] A number of goals require effective environmental limits to be set for sustainable use.[145] The Bill seeks to enable greater weight to be given to economic benefits in decision-making while eroding existing environmental protections. In our view, it will undermine progress towards realising the goals, objectives and outcomes set by the Biodiversity Strategy.
  2. In December 2022, New Zealand adopted the Kunming-Montreal Global Biodiversity Framework to facilitate implementation of the CBD.[146] The Framework sets four long-term goals and 23 targets for 2030. The targets include:
  • Ensure urgent management actions to halt human induced extinction of known threatened species and for the recovery and conservation of species, in particular threatened species, to significantly reduce extinction risk;[147]
  • Ensure that the use, harvesting and trade of wild species is sustainable, safe and legal, preventing overexploitation, minimizing impacts on non-target species and ecosystem;[148]
  • Reduce pollution risks and the negative impact of pollution from all sources by 2030, to levels that are not harmful to biodiversity and ecosystem functions and services, considering cumulative effects;[149]
  • Minimize the impact of climate change and ocean acidification on biodiversity and increase its resilience;[150]
  • Ensure that the management and use of wild species are sustainable, thereby providing social, economic and environmental benefits for people;[151]
  • Take legal, administrative or policy measures to encourage and enable business … in order to progressively reduce negative impacts on biodiversity, increase positive impacts, reduce biodiversity-related risks to business and financial institutions, and promote actions to ensure sustainable patterns of production;[152]and
  • Identify by 2025, and eliminate, phase out or reform incentives, including subsidies, harmful for biodiversity.[153]
  1. The Bill overrides existing regulations that would prevent or minimise environmental harm. In our view, it does not adequately recognise, or give effect to, the Framework targets. Moreover, by weakening environmental protections, there is a risk the Bill could be viewed as “subsidising” development that will harm biodiversity. This would directly undermine one of the Framework targets.

United Nations Convention on the Law of the Sea

  1. New Zealand’s obligations under UNCLOS include:
  • Protect and preserve the marine environment;[154]
  • Use best practicable measures to prevent, reduce and control marine pollution;[155] and
  • Protect and preserve rare or fragile ecosystems a well as the habitat of depleted, threatened or endangered species.[156]
  1. The Bill recognises some of these commitments. For example, a project is ineligible for fast-tracking if it involves “prohibited activities” under the EEZ Act and related regulations.[157] This includes the dumping of radioactive waste;[158] the dumping of toxic or hazardous waste;[159] and the incineration of waste.[160] However, the Bill disregards the wider obligations to protect and preserve the EEZ by allowing activities, such as the TTR seabed mining proposal, despite the risk of harm to threatened species, habitat and the wider marine environment. Moreover, the Bill does not recognise these restrictions in regards to the territorial sea (out to the 12 nautical mile mark) which is regulated under the RMA.[161] As previously indicated, the Bill explicitly allows approvals to be granted for activities that are prohibited by RMA plans – such as destructive fishing practices and pollution. This does not align with the responsibility to protect and preserve the marine environment under UNCLOS.

Implications

  1. In the past, New Zealand has been recognised for providing leadership in international conservation knowledge and delivery. The Bill’s disregard for biodiversity and the natural environment risks undermining this reputation to the detriment of industry. For example, in 2020, Sea Shepherd alleged New Zealand’s measures to protect Māui dolphins from fishing did not meet US standards for imported seafood products.[162] This temporarily halted trade of popular fish species and cost the New Zealand fishing industry more than $2 million in exports.[163] It is possible that further litigation will follow. The Environmental Defence Society (EDS) submission to the Committee on the Bill highlights this risk by providing comprehensive analysis in relation to New Zealand’s free trade agreements.[164]

ISSUE 7: THE BILL IS UNNECESSARY

  1. At the highest level, we query the need to urgently establish a new permanent fast-track approvals regime. The existing fast-track process was established as a short-term intervention in response to the emergency of COVID-19. It was designed to self-repeal after two years in recognition that it involved significant trade-offs (e.g. limited rights of appeal).
  2. Despite the extraordinary circumstances, the fast-track regime retained important checks and balances. For instance, it required decision-makers to recognise and give effect to important environmental safeguards in the RMA, national direction and statutory planning documents. The Natural and Built Environment Act 2023 (NBA) in effect carried the fast-track regime forward and it remains available for eligible projects. We see no reason why this process cannot continue to be used to realise desired efficiencies, pending wider reform.
  3. We recognise aspects of the resource management system are not functioning effectively or efficiently. In 2020, an independent review of the RMA identified a number of issues, including:[165]
  • Failure to sufficiently protect the natural environment;
  • Lack of recognition of the benefits of urban development;
  • Excessive complexity, uncertainty and cost across the resource management system;
  • Insufficient recognition of Te Tiriti and lack of support for Māori participation;
  • Weak compliance, monitoring and enforcement; and
  • Weak accountability for outcomes and lack of effective monitoring and oversight.
  1. The interrelated nature of these systemic issues is acknowledged in the MfE Supplementary Analysis Report for the Bill. For example, it states:[166]

The RMA is widely recognised as having failed in its effectiveness (by allowing continued environmental deterioration) and in its efficiency (through a slow, costly and complex consenting process), leading to inefficient barriers to development as well as poor environmental outcomes.

  1. More recently, the EDS published a series of reports on the effectiveness of conservation legislation.[167] Those reports identify the need for substantive reform, with some of the key issues including:[168]
  • Most of the core conservation statutes are at least 40 years old and fail to address contemporary pressures such as tourism growth, climate change and the biodiversity crisis;
  • No systematic review has been undertaken to ensure that public conservation land is appropriately classified – a large proportion of conservation land (30 percent or about 2.5 million hectares) is held as ‘stewardship land’ and has not been assessed;
  • The concessions process is unnecessarily complex and operates within a planning framework that is no longer fit for purpose; and
  • Weak compliance, monitoring and enforcement of concessions.
  1. The Bill fails to address most of these shortcomings because it has been designed to address two specific issues:[169]
  • Consenting major development projects takes too long and costs too much; and
  • Insufficient value is placed on the positive economic and social benefits of development relative to other considerations.
  1. By adopting a narrow focus on development, the Bill misses the key point — that the underlying legislation has not adequately protected the natural environment. We find it alarming that the Bill aims to speed up development without addressing this problem first. Instead, it appears to leverage off existing weaknesses in pursuit of efficient development outcomes. This approach risks causing rapid environmental destruction.
  2. The Government has signalled that it will introduce amendments to the RMA in May and then new legislation to replace the RMA by the end of the year.[170] The Bill creates a false sense of urgency that risks undermining public confidence and the natural environment.
  3. In our view, a better approach would be for the Government to address any issues by selectively amending the existing environmental legislation through the wider reform process. That approach would provide additional time for public consultation, enable considered debate and full select committee oversight, and ensure any amendments have broad public and political acceptance.
  4. For these reasons, we request that:
  • The Bill be withdrawn; and
  • The Environment Committee adopt a process that promotes cross-bench support for agreed amendments to the RMA and (if necessary) other legislation with the aim of ensuring the resource management system as a whole is efficient and effective.

Dated 19 April 2024
Signatories

James Frankham; Publisher, Tracey Turner; Researcher

 

FOOTNOTES:

[1] Sense Partners New Zealand’s infrastructure challenge: Quantifying the gap and path to close it (Te Waihanga New Zealand Infrastructure Commission, Final Report, October 2021), available here.

[2] Jordan Dunn “Deluge of sewage’ into Waitematā Harbour nothing new, iwi says” RNZ (New Zealand, 29 September 2023), available here.

[3] The Fast-Track Approvals Bill 2024 [The Bill], cl 12(2).

[4] The Bill, cl 12(3).

[5] Hon Chris Bishop and Hon Shane Jones “New Fast Track Projects advisory group named” (press release, 10 April 2024) available here.

[6] Clause 17(5) of the Bill confirms a project is not ineligible just because it is prohibited under the Resource Management Act 1991 (RMA). However, we recognise cl 18 of the Bill retains some prohibitions in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. This is addressed in the body of this submission.

[7] This occurs as a result of the ‘extra-legal’ project listing process and status of Schedule 2A projects.

[8] The Bill, cl 25.

[9] The Bill, cls 3 and 21.

[10] The Bill, cl 21(2)(c) gives joint Ministers discretionary powers to decline a referral application on the basis a project would have significant adverse environmental effects. It is implicit that Ministers can accept the same applications.

[11] The Bill, sch 5, cl 23(3) requires the Minister of Conservation to consider (but not decline) an amendment or revocation of a conservation covenant if it will compromise values of regional, national or international significance.

[12] The Bill, cl 19(5).

[13] The Bill, cl 26(1).

[14] The Bill, cl 26.

[15] Ministry for the Environment “Appendix 3: Supplementary Analysis Report: Fast-track Approvals Bill” (7 March 2024) at page 2, available here.

[16] Hon Chris Bishop “Speech to the New Zealand Planning Institute” (2024 NZPI Conference, Hamilton, 22 March 2024), available here.

[17] Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023, sch 1, cl (8).

[18] The Bill, cl 12(2).

[19] The Bill, cl 12(2).

[20] The Bill, cl 25(7).

[21] The Bill, cl 12(3).

[22] The Bill, cl 12(3).

[23] The Bill, cl 17(2)(a) by reference to the purpose clause; and cl 17(2)(d).

[24] The Bill, cl 12(5).

[25] The Bill, cl 17(2)(a) and (d).

[26] Kate Green “Fast-track approvals: Minister’s letter states some ‘were invited to’ apply” RNZ (12 April 2024), available here.

[27] Hon Chris Bishop and Hon Shane Jones “New Fast Track Projects advisory group named” (Press release, 10 April 2024), available here.

[28] Kate Green “Fast-track approvals: Minister’s letter states some ‘were invited to’ apply” RNZ (12 April 2024), available here. This refers to a letter from Hon Chris Bishop to interested parties dated 3 April 2024, which states “These ‘listed projects’ will be included in Schedules 2A and 2B of the Bill once the Select Committee process has concluded”.

[29] Kate Green “Fast-track approvals: Minister’s letter states some ‘were invited to’ apply” RNZ (12 April 2024), available here.

[30] Hon Chris Bishop and Hon Shane Jones “New Fast Track Projects advisory group named” (Press release, 10 April 2024), available here.

[31] Hon Chris Bishop and Hon Shane Jones “New Fast Track Projects advisory group named” (Press release, 10 April 2024), available here.

[32] The Bill, cl 20(1).

[33] Department of Conservation Te Mana o Te Taiao – Aotearoa New Zealand Biodiversity Strategy 2020 (August 2020), available here.

[34] Ministry for the Environment and Stats NZ Environment Aotearoa 2022: New Zealand’s Environmental Reporting Series (14 April 2022), available here.

[35] Stats NZ Water Quality (14 April 2022), available here.

[36] Stats NZ Indigenous Land Cover (15 April 2021), available here.

[37] Stats NZ Wetland Area (14 December 2021), available here.

[38] Stats NZ River water quality: Nitrogen (14 April 2022), available here; and River water quality: Phosphorous (1 April 2022), available here.

[39] Stats NZ Temperature (27 September 2023), available here.

[40] Department of Conservation Te Mana o Te Taiao – Aotearoa New Zealand Biodiversity Strategy 2020 (August 2020), available here.

[41] Stats NZ Extinction threat to indigenous freshwater species – published June 2021 (updated 30 March 2023), available here.

[42] Stats NZ Extinction threat to indigenous land species – published December 2021 (updated 30 March 2023), available here.

[43] Stats NZ Extinction threat to indigenous marine species – published December 2021 (updated 30 March 2023), available here.

[44] Stats NZ Extinction threat to indigenous land species – published December 2021 (updated 30 March 2023), available here.

[45] Kath Walker et al “Conservation status of New Zealand indigenous terrestrial Gastropoda (slugs and snails). Part 3. Rhytididae (carnivorous snails), 2022” New Zealand Threat Classification Series 42 (Department of Conservation, February 2024), available here.

[46] Stats NZ Extinction threat to indigenous marine species – published December 2021 (updated 30 March 2023), available here.

[47] Department of Conservation Te Mana o Te Taiao – Aotearoa New Zealand Biodiversity Strategy 2020 (August 2020) at page 20, para [3.2.3] available here.

[48] Ministry for the Environment and Stats NZ Environment Aotearoa 2022: New Zealand’s Environmental Reporting Series (14 April 2022), at pages 17-21, available here.

[49] The Bill, cl 3.

[50] The Bill, cl 21(1)(a).

[51] The Bill, sch 5, cl 6(1)(a).

[52] The Bill, sch 3, cl 1(2).

[53] The Bill, sch 4, cl 32(1).

[54] The Bill, sch 9, cl 9(1)(a).

[55] RMA, s 5; Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 [EEZ Act], s 10.

[56] For example, refer Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [196]–[198] upheld by Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2024] NZSC 26 at [355].

[57] EEZ Act, s 10(1)(b).

[58] Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2021] NZSC 127 [TTR Decision] at [245], [280], [292], [305], [314].

[59] The Bill, cls 12(2) and (3).

[60] The Bill, cl 17(4).

[61] The Bill, cl 17(3).

[62] McCallum Bros Ltd v Auckland Council [2024] NZEnvC 75 at [24] [Pākiri Sand Mining Decision].

[63] Pākiri Sand Mining Decision at [486].

[64] Pākiri Sand Mining Decision at [491].

[65] Pākiri Sand Mining Decision at [542].

[66] Royal Forest and Bird Protection Society of New Zealand Inc v West Coast Regional Council and Buller District Council [2023] NZEnvC 68 [Te Kuha Decision].

[67] Te Kuha Decision at [92], [101], [112] and [114].

[68] Te Kuha Decision at [123] to [129].

[69] Te Kuha Decision at [279] to [284].

[70] Te Kuha Decision at [399].

[71] Te Kuha Decision at [398].

[72] TTR Decision at [17].

[73] TTR Decision at [15].

[74] TTR Decision at [17].

[75] TTR Decision at [125] to [131], [271], [274], [328].

[76] TTR Decision at [121].

[77] The Bill, cl 18.

[78] The Bill, cl 18(h).

[79] The Bill, cl 18(i) and (h).

[80] Deidre Koolen-Bourke and Raewyn Peart Conserving Nature: Conservation Reform Issues Paper (Environmental Defence Society, Auckland, July 2021), at page 80, available here.

[81] Hauraki Gulf Marine Park Act 2000.

[82] Waitākere Ranges Heritage Area Act 2008.

[83] The Bill, cl 17(5).

[84] Proposed Northland Regional Plan 2024, rule C.1.9.4.

[85] Proposed Northland Regional Plan 2024, rules C.5.1.16; and C.1.10.2.

[86] Proposed Northland Regional Plan 2024, rules C.5.1.16; and C.5.1.17.

[87] The Bill, cl 25(1).

[88] The Bill, cl 25(7).

[89] The Bill, sch 3, cl 7(1).

[90] The Bill, sch 3, cl 1(2) [for general obligation]; and sch 4, cl 32(1) [RMA process].

[91] The Bill, sch 4, cl 1(2) [for general obligation].

[92] The Bill, cl 22(3) and cl 22(4).

[93] The Bill, sch 4, cl 32.

[94] The Bill, sch 5, cl 5.

[95] The Bill, sch 4, cl 35(5).

[96] RMA, s 104D.

[97] The Bill, cls 25(4), 25(5), and cl 25(7).

[98] The Bill, cl 21.

[99] The Bill, cl 12(3).

[100] The Bill, cl 25(4).

[101] The Bill, cl 25(5).

[102] The Bill, cl 4 (see (a) under definition of “joint Ministers”).

[103] The Bill, sch 5, cl 3.

[104] The Bill, cl 4 (see (b) under definition of “joint Ministers”).

[105] The Bill, cls 3 and 21.

[106] The Bill, cl 21(2)(c) gives joint Ministers discretionary powers to decline a referral application on the basis a project would have significant adverse environmental effects. It is implicit that Ministers can accept the same applications.

[107] The Bill, sch 5, cl 23(3) requires the Minister of Conservation to consider (but not decline) an amendment or revocation of a conservation covenant if it will compromise values of regional, national or international significance.

[108] The Bill, cl 16(1).

[109] The Bill, cl 19.

[110] The Bill, cl 19(2).

[111] The Bill, cl 19(5).

[112] Natural and Built Environment Act 2023, sch 10, cls 18 to 19. These aspects of the NBA remain in effect by virtue of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-Track Consenting) Act 2023, sch 1, cl 8(f).

[113] The Bill, sch 4, cl 3(i).

[114] The Bill, sch 4, cl 20(4) and cl 20(7).

[115] The Bill, sch 4, cl 20(1).

[116] The Bill, cl 9.

[117] National Development Act 1979, s 4(3).

[118] National Development Act 1978, s 5(2).

[119] This is summarised by Andrew Dorrington Boyle “The National Development Act 1979: A Critical Analysis” (Master of Arts in Sociology Thesis, Massey University, 1986) at page 159, available here.

[120] Ministry for the Environment “Appendix 3: Supplementary Analysis Report: Fast-track Approvals Bill” (7 March 2024), available here.

[121] McCallum Bros Ltd v Auckland Council [2024] NZEnvC 75 at [9] to [12].

[122] McCallum Bros Ltd v Auckland Council [2024] NZEnvC 75 at [48] and [368].

[123] The Bill, sch 4, cl 21(1).

[124] This is summarised by Andrew Dorrington Boyle “The National Development Act 1979: A Critical Analysis” (Master of Arts in Sociology Thesis, Massey University, 1986) at page 159, available here.

[125] Natural and Built Environment Act 2023, sch 10, cl 27; and the Conservation Act 1987, s 49(2)(b).

[126] For example, Schedule 5, clause 4(c) of the Bill disapplies section 17SC of the Conservation Act 1987, which requires the Minister of Conservation to publicly notify every application for a lease or a licence (for more than 10 years).

[127] The Bill, sch 5, cl 6(3).

[128] The Bill, cl 26.

[129] The Bill, cl 26.

[130] COVID-19 Recovery (Fast-track Consenting) Act 2020. This legislation was in effect carried forward by the Natural and Built Environment Act 2023 and the fast-track component remains available for eligible projects by virtue of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-Track Consenting) Act 2023.

[131] Ministry for the Environment “Appendix 3: Supplementary Analysis Report: Fast-track Approvals Bill” (7 March 2024), available here.

[132] RMA, s 120(1)(b).

[133] United Nations Convention on Biological Diversity 1760 UNTS 69 (opened for signature 5 June 1992, entered into force 29 December 1993) [CBD].

[134] United Nations Convention on the Law of the Sea 1833 UNTS 397 (opened for signature 10 December 1982, entered into force 16 November 1994) [UNCLOS].

[135] CBD, art 14(1)(a).

[136] CBD, art 8(d).

[137] CBD, art 8(f).

[138] CBD, art 8(k).

[139] CBD, art 10(b).

[140] (2 December 2023) 772 NZPD, available here.

[141] Biodiversity Strategy at page 46, available here.

[142] Biodiversity Strategy, objective 1.3, page 48, available here.

[143] Biodiversity Strategy, objective 2.3, page 48, available here.

[144] Biodiversity Strategy, objective 3, page 48, available here.

[145] Biodiversity Strategy, objective 12 and goals 12.1.1, 12.1.2, 12.3.1, 12.3.2, page 54, available here.

[146] Kunming-Montreal Global Biodiversity Framework UN Decision 15/4 (19 December 2022), available here.

[147] Kunming-Montreal Global Biodiversity Framework UN Decision 15/4 (19 December 2022), Target 4, at page 9.

[148] Kunming-Montreal Global Biodiversity Framework UN Decision 15/4 (19 December 2022), Target 5, at page 10.

[149] Ibid.

[150] Ibid.

[151] Ibid.

[152] Kunming-Montreal Global Biodiversity Framework UN Decision 15/4 (19 December 2022), Target 15, at page 11.

[153] Kunming-Montreal Global Biodiversity Framework UN Decision 15/4 (19 December 2022), Target 18, at page 12.

[154] UNCLOS, art 192.

[155] UNCLOS, art 194.

[156] UNCLOS, art 194(4).

[157] The Bill, cl 18.

[158] EEZ Act, s 20E.

[159] EEZ Act, s 20F.

[160] EEZ Act, s 20I.

[161] The EEZ Act applies to “the sea, seabed and subsoil that are beyond and adjacent to the territorial sea of New Zealand” refer s 9(1) of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977.

[162] Hon Todd McClay and Hon Shane Jones “Unites States lifts ban on New Zealand fish exports” (press release, 3 April 2024), available here.

[163] Hon Todd McClay and Hon Shane Jones “Unites States lifts ban on New Zealand fish exports” (press release, 3 April 2024), available here.

[164] Greg Severinsen and Shay Schlaepfer “Environmental Defence Society submission on the Fast-track Approvals Bill” (Environmental Defence Society, Auckland, April 2024), available here.

[165] Resource Management Review Panel “New Directions for Resource Management in New Zealand: Report of the Resource Management Review Panel” (1 July 2020), available here.

[166] Ministry for the Environment “Appendix 3: Supplementary Analysis Report: Fast-track Approvals Bill” (7 March 2024) at page 7, para [5], available here.

[167] Deidre Koolen-Bourke and Raewyn Peart Conserving Nature: Conservation Reform Issues Paper (EDS, Auckland, July 2021); Deidre Koolen-Bourke, Raewyn Peart and Shay Schlaepfer “Reform of the Wildlife Act 1953: An Opportunity for Transformational Change of Aotearoa New Zealand’s Biodiversity Law” (EDS, Auckland, July 2023); and Deidre Koolen-Bourke et al “Independent Review of the Conservation Management Planning System” (EDS, Auckland, April 2023). All of these reports are available here.

[168] A summary of the key issues is provided in Deidre Koolen-Bourke and Raewyn Peart Conserving Nature: Conservation Reform Issues Paper (EDS, Auckland, July 2021) at pages 148 to 152, available here.

[169] Ministry for the Environment “Appendix 3: Supplementary Analysis Report: Fast-track Approvals Bill” (7 March 2024) at page 2, available here.

[170] Hon Chris Bishop “Speech to the New Zealand Planning Institute” (2024 NZPI Conference, Hamilton, 22 March 2024), available here.

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