Three ministers handed unprecedented power by Government under new Fast Track Approval Bill

Story by RNZ

Ministers say it will cut red tape and get the country moving again, environment advocates say it's a war on nature and a law expert says it's a greater handover of power to ministers than seen in the Muldoon era. Just what is the Fast Track Approval Bill and what's the fuss about?

What is it?

The bill aims to speed up the approval of projects and reduce the cost of consenting. At the moment, about $1.3 billion is spent each year on the consenting of projects and the time taken to get a consent has doubled within five years, according to the Infrastructure Commission.

The bill is a new piece of law which would sit over a plethora of existing acts and regulations. In theory, it means an applicant would only need to go through one process to get approval for a project, rather than several separate processes.

It's intended to be available to nationally or regionally important infrastructure projects. Housing developments, mining, roads, energy generation and aquaculture projects will probably benefit.

Mining advocacy group Straterra says it's justified because red tape is strangling innovation. "On the West Coast, miners are waiting an average of 382 days to have their permits processed, and this is just one of the many processes they have to go through. The system is broken, and it needs to be fixed, and fast," says chief executive Josie Vidal.

Wind Energy Association chief executive Kevin Hart is also keen. "It generally takes anywhere from seven to eight, sometimes 10 years to get a consent and only about two-and-a-half years to build a wind farm."

The new process proposes that an expert panel will have up to six months to consider a project and make recommendations to ministers.

Where has the bill come from?

It was a condition in the coalition agreement between National and NZ First. The agreement specified that ministers will be able to refer projects to it. NZ First's Shane Jones, the Minister for Regional Development, is one of the ministers who will be able to funnel projects into the process and have a final say on if they go ahead. The coalition agreement stated the first reading of the bill had to occur in the first 100 days of government.

Haven't we been here before with the Covid-19 Recovery Act?

If a fast track process sounds familiar it's because similar legislation was temporarily introduced in 2020 to stimulate the economy at the start of the Covid-19 pandemic. The now-repealed Covid-19 Recovery (Fast-track Consenting) Act allowed certain projects to be green-lit through the Resource Management Act (RMA) quicker than usual.

There are some key differences between the two, however.

Minter Ellison Rudd Watts partner Stephanie de Groot says the new Fast Track Bill covers more than just consents under the RMA. It proposes projects could side-step approval processes under the RMA and nine other sets of laws and regulations. Wildlife, conservation and reserves acts fall under the powers of the proposal, as do fishery and heritage acts.

Secondly, decision-making powers are different. "Ultimately, it will be up to the ministers … to make a decision on an application for an environmental permit, which is submitted through the process. Whereas in the previous process, it was an expert panel which would make the decision," says de Groot.

The ministers with decision-making powers are Jones, plus National's Chris Bishop and Simeon Brown, who are ministers for infrastructure and transport, respectively.

In some cases a fourth minister, National's Tama Potaka, will be involved as the Minister of Conservation. This would be when an activity prohibited under the Wildlife Act is applied for.

Another difference is the proposed legislation allows consent for activities which are listed as prohibited under the RMA to be applied for.

Why are some people freaking out?

There's been a flurry of press releases from environmental advocates and scientists. The Environmental Defence Society says the government's "war on nature" has "gone nuclear" with this bill, while Greenpeace Aotearoa labelled it a "dark day for nature and democracy". An open letter from ten different scientific groups representing thousands of scientists say the approvals bill, along with other proposed changes, weaken environmental protection and call for evidence-based policy making.

Forest & Bird's Richard Capie says he felt a mix of surprise, horror, disappointment and anger when he first read the bill. "This is unprecedented. It's called fast track consenting, but it isn't just fast track consenting, it's fundamentally changing what can be built."

Giving three ministers "far reaching and sweeping" powers is an affront to democracy, Capie says. Safeguards which exist in the Conservation, Wildlife or Reserves acts could be overridden. "Ministers will be able to authorise harm to wildlife in return for compensation."

The proposed process gives ministers several different points of influence in applications. Ministers can recommend projects to be considered under the fast-track process; they can be involved in choosing panelists; they can challenge the recommendations of the panel, and suggest the panel reconsiders conditions it has recommended if the ministers think they are too onerous. Ministers have the final say on whether projects are approved or declined.

Capie is concerned applicants will have the loudest voice in this process. "The legislation really constrains who can have a say in this. Local communities can't really have a say, organisations like Forest & Bird, which are asked by hundreds of thousands of people to stand up and give a voice to nature won't have the ability to have a say either…why would you limit the ability for New Zealanders to have their voices heard?"

This silencing extends beyond advocacy groups like Forest & Bird to the general public, who will be unable to make submissions on individual projects. This extends even to projects on conservation land, or at sea, areas considered as the "commons", where the public have a right to use.

It's unclear what projects might be pushed through the process. The list of what's already considered to be suitable was omitted from the bill. Bishop told TVNZ the projects were not published because he was worried it would "overwhelm" the select committee. Bishop confirmed projects previously rejected by courts would be eligible to try for fast track approval.

The rise of zombie projects

Forest & Bird's Capie fears the Te Kuha coal mine and the Ruataniwha dam and irrigation scheme - two projects which courts have ruled against - could be resurrected under the act.

The Te Kuha coal mine needed three sets of permission to proceed including resource consents, permission to mine public conservation land and permission to mine the public reserve. It previously lost in all three processes.

University of Otago law professor Andrew Geddis says there is a precedent of parliament overriding court decisions in the Muldoon era when courts said the Clyde Dam couldn't be built under existing legislation. The parliament of the time passed a specific act saying it could be built.

"At the time, it was considered to be quite outrageous," Geddis says. "It was held up as one of the overreaches of the Muldoon government."

The proposed legislation goes even further than the Clyde Dam example, he says, by giving ministers themselves power. Ministers, not experts or even parliament, will decide on what laws mean, a situation he describes as full of problems. Geddis also questioned whether ministers can be trusted to make the best call if the project involved a political donor.

"In the days of Covid, we allowed that sort of executive power to exist …. That's because there was a virus threatening to kill tens of thousands of people," Geddis says.

"It's got to be asked what the national catastrophe is that justifies empowering ministers to this extent in today's environment."

Can permission be wound back?

Green MP James Shaw has noted that projects consented under this new regime risk losing consents under a different government, "possibly without compensation".

Geddis says this has happened before when the right to fell native trees on the West Coast was revoked and no compensation was offered.

"If the current government brings in constitutionally questionable ministerial powers, and uses those constitutionally questionable ministerial powers to give companies authority to do things, it seems hard to see why a future government shouldn't respond in as constitutionally a questionable way to remove that authority," he says.

There are signs the coalition government is concerned the prospect of losing permissions may put companies off. The Post reported in February that Shane Jones sought advice on whether oil and gas companies could be compensated by the public if rights were extinguished under a future government.

He was also considering changes to a law passed by the Labour-led government which reduced the risk of the cost of well clean-ups falling on taxpayers. Four-hundred-and-forty-three million taxpayer dollars have been set aside for the decommissioning of the Tui Oil Field after the financial collapse of Tamarind Taranaki.

Newsroom reported executives from the failed company are again operating oil and gas permits in Taranaki under a different company name.

Is it really "Goodbye Freddie" and mining on conservation land?

Jones has made it clear he wants mining to get back underway in earnest, and that certain parts of the conservation estate, such as stewardship land are not excluded from consideration.

"If there is a mineral, if there is a mining opportunity and it's impeded by a blind frog, goodbye, Freddie," he said in parliament.

It's not carte blanche though, several parts of the conservation estate are carved out as not being available for projects to be applied for.

This includes national parks, nature reserves, scientific reserves, wilderness areas, wildlife sanctuaries, marine reserves, RAMSAR (protected wetlands) sites and national reserves.

Other types of projects will also be ineligible to be pushed through the fast track process. These include projects on land types relating to Treaty settlements without landowner permission, certain projects prohibited under the RMA in common coastal and marine areas, and certain types of projects in the open ocean which are prohibited under international law.

Submissions to the bill close on 19 April. These submissions are open to the public. If the bill passes, the public will be unable to submit on individual projects.