Fast-track consents: Seven concessions the Government could make

Sunday, 5 May 2024

If the Government overplays its hand, businesses could be left with less certainty, rather than more, some critics argue.

ANALYSIS: The Environment select committee has received a massive haul of more than 22,000 submissions on the Government’s controversial proposed fast-track consenting regime.

Some random sampling by The Post of the 8701 that had been loaded onto Parliament’s website as of then, suggest a high proportion oppose the law change.

The Fast-track Approvals Bill would give three ministers the ultimate power to approve major infrastructure projects such as roads and mines, with the ability to override both existing environmental laws and an expert panel that would be set up to advise them.

“This bill grants excessive authority to three ministers to bypass all existing environmental laws without any obligation to consult the public, iwi, or Parliament,” wrote one concerned citizen.

“This Government does not take the threat of climate change seriously enough as their generation is not the one that will have to deal with the consequences,” said another.

“These ministers are not experts. While I understand the need to reduce bureaucracy, it cannot be at the expense of sound processes,” rued a third.

The select committee began hearing oral evidence from heavy-hitting submitters on Thursday, giving organisations including Forest & Bird and the Law Society about 11 minutes each to make their case.

But it’s not necessarily “all or nothing” for the Fast-track Approvals Bill.

Concessions may be on the cards, if only because Labour Party environment spokesperson Rachel Brooking has left the door open to a future Labour government cancelling consents granted under the new regime on a “case by case basis”.

One of the bill’s most ardent advocates, Resources Minister Shane Jones, has acknowledged the pall that cast over the proposed new regime, saying it “took the genie out of the bottle”.

“Both Labour and the Greens have mused that consents under the new regime may very well be stripped without compensation; you can't take that back,” he told The Post in March.

Parliamentary commissioner for the environment Simon Upton has argued fast-track consents should be conserved for projects with significant public benefits.

So what are the Government’s options if it does now feel a need to give ground to achieve a result that more closely resembles a political consensus?

1. Include the Environment Minister in the ruling panel

As it stands, RMA Reform Minister Chris Bishop, Resources Minister Shane Jones and Transport Minister Simeon Brown would have the ultimate power to approve projects and set conditions for them.

The right-leaning New Zealand Initiative think-tank, which supports the fast-track regime overall, has suggested Environment Minister Penny Simmonds could be added to the team.

Whether that would be sufficient to ensure environmental considerations were “given sufficient weight”, as the think-tank suggests, may be a moot point.

While unlikely to win over many opponents, it would be an easy concession for the Government to make and one that would also add a bit of diversity to the panel.

2. Include more protections against lobbyists and conflicts of interest

The New Zealand Initiative has also suggested that businesses applying for fast-track consents could be required to disclose any political donations they made.

Even the economically-liberal New Zealand Initiative think-tank has suggested some changes are prudent to address concerns over the potential for conflicts of interest.

That would be to address the concern that the consenting regime puts too much power in the hands of a few ministers and could lead them on the path to temptation.

A disclosure regime might not remove everyone’s concerns, even if it covered all past as well as future donations, but it would be another straightforward concession that wouldn’t compromise the fast-track regime’s objectives.

3. Require the ministerial panel to record and justify their rulings

This was the central thrust of a short submission to the Environment select committee from Auditor-General John Ryan, so has to be taken seriously.

Transparency was necessary to ensure public confidence in the regime but, as it stood, there was no requirement for the ministers to specify their reasons for approving a project or for any conditions they imposed, Ryan said.

Requiring ministers record and disclose their reasoning for approving projects and the assumptions they made along the way might sound entirely reasonable, but could be a more tricky concession for the Government to contemplate.

Auditor-General John Ryan is among those who believe ministers should have to provide their reasons for approving consents.

On the face it, it might open up more avenues for objectors to seek reviews of decisions, putting more consents back in the hands of the courts.

But the convenor of the Law Society’s committee on law reform, Nick Whittington, has told MPs it could reduce the likelihood of judicial reviews where ministers took decisions that differed from the expert panel’s advice.

Ryan wouldn’t tell The Post what he believed the effect would be, indicating he would keep his remaining powder dry until appearing in front of the select committee.

4. Make the regime only temporary

That’s one suggestion made by Federated Farmers.

It has suggested “a sunset clause” should be inserted in the legislation so that it would only remain in place until the Government had time to more thoroughly overhaul the Resource Management Act.

Board member Mark Hopper wants that act changed to find “a better balance between enabling productivity and environmental management”.

5. Give the ultimate say on whether to approve projects and under what conditions to the expert panel, rather than ministers

Superficially appealing, but an idea that could create more issues than it solved.

Labour’s Brooking has made clear that transferring ultimate decision-making power from ministers to an unelected panel of experts appointed by ministers would not satisfy her concerns.

But Bishop has indicated that the Environment select committee could recommend tweaking the respective powers and responsibilities of the expert panel and ministers in some way.

Excluding projects that had previously been rejected by the courts would make Labour environment spokesperson Rachel Brooking a bit happier.

6. Exclude previously-rejected projects

The case for the fast-track regime appears to be that it would be faster than the existing consenting regime, not more thorough or in other ways better.

Brooking has made clear that Labour would have particular qualms about consents being granted for projects that had previously gone through the Environment Court or a similar process and been turned down, unless rules had changed to allow them.

Whatever other concessions are made, excluding those projects — which could include Trans-Tasman Resources’ and Chatham Rock Phosphate’s proposed seabed mining projects — from the fast-track regime might prove Realpolitik.

7. Exclude mining projects from the regime altogether

This would be a bitter pill for Resources Minister Shane Jones, but might do the most to take the heat out of the controversy surrounding the fast-track regime.

Parliamentary commissioner for the environment Simon Upton went a little further in his submission to the Environment select committee, suggesting that all “development projects” also including aquaculture should go through the normal consenting channels.

His view was that fast-track consents should be limited to investments that provided significant public benefits, such as roading and electricity transmission and generation.

Infometrics principal economist Brad Olsen has also argued that unlike roading, housing and renewable energy investments, most of the benefits of mining accrue to private interests, rather than the public.