The Fast-track Bill: the Good, the Bad and the Clumsy

The Fast-Track Approvals Bill has faced significant opposition for various reasons 

by Gary Taylor and Shay Schlaepfer

(Environmental Defence Society)

Comment: The Government’s u-turn in August that expert panels, not ministers, should make final decisions on fast-tracked projects, was a calculated move aimed at dampening opposition to the Fast-Track Approvals Bill. It partly worked, minimising perceptions of ministerial bias towards applicants who have funded political campaigns.  

And now with the list of 149 scheduled projects including swathes of infrastructure and housing developments which could address our infrastructure deficit and housing shortage, one might be left thinking, is the bill really that bad?

Certainly the Resource Management Act is clunky and slow. But it does include its own fast-track provisions which are working well. One difference with the Fast-Track Approvals Bill is that it embraces permits under other legislation, such as the Conservation and Wildlife Acts, creating a one-stop shop for approvals. Arguably, that’s not a bad thing. Unfortunately, it’s not the end of the story.

There are three main reasons the bill is bad law:-

1. It bypasses environmental and climate considerations

The purpose of the bill as currently drafted is to “provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits”. All decision-making is subject to this purpose, elevating its status within the bill.

Environmental and climate considerations are edged out of this framing, becoming incidental matters that have less priority. That will make it very hard for decision-making panels to say no to projects that exacerbate climate change or put threatened species at further risk, provided that the project will result in regional or national benefit.

There are no environmental bottom lines. Even activities that are currently prohibited in local or regional plans or contravene water conservation orders can get approval.

The Government has been clear that the bill is about getting New Zealand moving and cutting through red tape. In this context that means circumventing environmental safeguards. It prioritises the economy, at all costs. There is no balance, so bad projects will get approved along with the good. The bill is only as good as the worst project it enables.

2. It prevents public comment

The bill dispenses with almost all opportunities for local communities to be involved in decisions affecting their environment. Public, or even limited, notification of projects is not allowed.

Panels are only required to seek comment from the following:

• Local authorities
• Iwi authorities
• Treaty settlement entities
• Customary marine title groups
• Protected customary rights groups
• Land owners/occupiers (including those adjacent)
• Various government ministers
• The Director-General of Conservation
• Requiring authorities having designations on the land or adjacent land.
• Outside of this list, it is discretionary whether you’ll be invited to provide feedback on a project. That means that unless you live next door to a project, you’re not entitled to have your say.

That is irrespective of whether the project will, for example, involve multiple trucks passing by your house, emit air or noise pollution in your neighbourhood, completely change your rural outlook, clear adjacent native forest or drain your local wetland.

Those representing the public interest, such as the Environmental Defence Society, also don’t have an automatic say, even if the project has widespread negative effects on the environment. This is a significant curtailment of participatory rights from that provided for in existing fast-track laws which have worked fine and have already reduced consenting timeframes and have approved over 80 projects.

Shay Schlaepfer

3. It lacks strategic direction

The list announced on Sunday is a grab bag of ad hoc projects that just happen to be available for the picking now. They include massive housing developments outside of local councils’ planned growth areas, coal mines that are inconsistent with our climate obligations and free-trade agreements and water storage to facilitate agricultural intensification where we already have water quality problems, and a highly questionable waste to energy plant. There is no strategic thinking going on here.

The inclusion of Trans-Tasman Resources’ (TTR) seabed mining proposal on the list not only has environmental risks that have already resulted in consents being declined but is also contrary to the Government’s own intentions for offshore wind energy. New legislation establishing a bespoke regime for offshore wind is expected to be introduced to the House this year. As the two activities are incompatible because they use the same marine area, the inclusion of TTR on the list makes no sense. The legislation is picking winners with no coherent strategy in place.

Can it be fixed?

Yes. Fast-track legislation has some utility in streamlining consenting, especially for projects that serve the public interest in an economic and environmental sense. Existing fast-track legislation has proven that it can work.   

But if the Fast-Track Approvals Bill is to have any credibility it needs to be amended so that environmental and climate matters are appropriately considered and weighted, and to provide for public participation. And pending resource management reform needs to adopt strategic spatial planning to chart a clear way forward.

Without these changes, any projects proceeding through the process will be subject to legal challenges and risk losing social licence – even the good ones. Left unchanged, the bill should not proceed.

Gary Taylor CEO of the Environmental Defence Society.