Photo: RNZ
The government has back-tracked on some of its more contentious fast-track legislation which aims to speed infrastructure consenting to help get New Zealand back on track.
If you are finding it a little hard to keep track, you're not the only one. Read on to find out how the system will work, how it compares with Labour's approach, and the remaining concerns about it.
Read more:
- Explainer: The Fast Track bill and the unprecedented power handed to ministers
- Focus on politics: Fast Track bill hits hurdles of public outrage
- The Detail: The problems with the fast track approvals bill
The newly revised fast-track process
The legislation would set up the process for the "one-stop shop" for approving consents for major infrastructure projects like mines, roads, marine farms and renewable energy projects.
It is based on the current approach which was brought in by the previous Labour government, in turn based on a similar scheme set up during the Covid-19 response.
The changes announced on Sunday mean less power will be concentrated in the hands of three ministers than had been previously proposed.
Here's how it would work:
- Step 1: Companies or other groups apply to the government for their project to be fast-tracked.
- Step 2: The Infrastructure Minister (currently Chris Bishop) assesses the application against a set of criteria, and decides whether to refer the project for assessment by an independent expert panel. The application must include previous decisions on the project taken by other approving authorities, like courts. The minister is also required to consult with the environment minister and relevant other ministers - as an example, a transport project would mean consulting with the transport minister. The minister could also decline the project at this stage.
- Step 3: The independent panel seeks comment from the applicant and directly affected groups, and can approve or decline the project. If approved, the project can go ahead - but may have conditions attached for protecting the environment or mitigating damage.
(This makes a change from the previous proposal to have the Infrastructure Minister share responsibility for this step with the Ministers for Transport and Regional Development. Bishop said this was to simplify the process.)
(This makes a change from the previous proposal for the panel to only recommend conditions, with final approval going to the ministers for final signoff. Bishop said this change had been a "major" theme of the submissions so far.)
Going through this process allows the applicant to bypass the usual consenting regime, and gain an exemption from or approval under various current laws, including: The Resource Management Act, the Conservation Act, the Wildlife Act, the Reserves Act, the Heritage New Zealand Pouhere Taonga Act, the EEZ and Continental Shelf Act, the Crown Minerals Act, the Fisheries Act, the Public Works Act, and Freshwater Fisheries regulations.
Some areas would still be protected: National parks; national, nature, and scientific reserves; wilderness areas and wildlife sanctuaries; land returned under Treaty settlements if there was no written agreement with the owner; other customary Māori land and fisheries; and projects in the open ocean prohibited by international law.
Some consultation should be done by applicants before they submit for approval. Heritage NZ must also be consulted on archaeological decisions.
Otherwise, consultation is carried out by the expert panel, but they will not hold public hearings or take submissions, instead seeking comment from people who are considered directly impacted by a given project. This can include relevant ministers; local councils; landowners, occupiers and requiring authorities on or adjacent to the land; and any other person or group the panel considers appropriate.
The independent panels of experts will include:
- A former High Court or Environment Court judge, appointed by the infrastructure minister as the "convener"
- A lawyer or planner as the chairperson
- A representative from the relevant local authority (council)
- An environmental expert
- In cases where Treaty settlements require it, an iwi authority representative (note: previous proposal was for this to always be the case)
- Māori development and te ao Māori expertise (note: previous proposal was for mātauranga Māori expertise)
The panel had previously been required to report back within six months, but Bishop has indicated this and some other timeframes will now be extended, to give those involved in or affected by projects more time to provide feedback.
At least 384 applications for projects have already been made, and sent for consideration by an advisory panel - note that this is a different group than the independent panel of experts.
The panel have been going through and assessing the projects against set criteria, and have come up with a report recommending projects to include in the legislation for immediate referral to the expert panels. The idea is to get the ball rolling on a range of projects straightaway without the minister having to go through all the applications, while still giving them due attention. Cabinet will decide which projects are included in the bill.
Of the projects applied for so far, 40 percent are for housing, 24 percent are for infrastructure, and 18 percent are for renewable energy projects. Another 8 percent are for primary industry projects, 5 percent for quarries, and another 5 percent for mining.
How it compares with Labour's approach
The coalition's proposal still goes further than the fast-track process Labour set up. It is much wider in scope than just resource consents, covering approvals and exemptions for all the other laws listed above.
The stated purpose of the law is also an important difference, which will guide how people can potentially push back against certain decisions.
While the current approach emphasises protection of the environment, the coalition's plan is merely to "provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits".
The parliamentary commissioner for the environment Simon Upston has urged the government to make it clear environmental quality is an "important boundary condition for any development".
More to come
The fast-track law is also just one part of the government's plans to reform the Resource Management Act.
The minister responsible for RMA reform, which again is Chris Bishop, announced the second of three tranches of RMA changes at the LGNZ conference last week, including for infrastructure and energy, housing, farming and the primary sector, and emergencies and natural hazards. The government will aim to have that second tranche introduced this year, to pass through Parliament in mid-2025. The third bill will be focused on farming and the primary sector.
The Fast Track Approvals Bill is currently at the Select Committee stage, with MPs on the Environment Select Committee expected to report back to Parliament with recommendations by 18 October. The government expects it to be passed by the end of the year.
Some groups who were been opposed to the previous plan have welcomed the changes announced this week, but others remain critical - saying the bill will still give the green light to projects that harm the environment.
Other concerns also remain, including:
- Politicisation: The government of the day still retains the power to pick and choose which projects proceed to the expert panel, which makes the selection political and subject to lobbying. Political decision-making is also able to override previous court decisions, and concerns have previously been raised about a new government having the power to override the decisions of the previous government, without providing compensation for the applicants
- Consultation: The public is largely excluded from consultation which could affect them (indirectly)
- Appeals: Limited scope for people to appeal decisions, with the High Court only able to consider appeals from groups with interest in the decision that is "greater than the general public", and limited to certain points of law. While judicial reviews are possible, they would only look at whether the decision was made in line with the law, not on the merits of the decision
- Trade: Concerns had been raised over whether the legislation could violate free trade agreements - particularly New Zealand's agreements with the UK and EU
