Will the 149 fast-track projects be rubber-stamped?

Wednesday, 9 October 2024

Infrastructure Minister Chris Bishop announces 149 projects the Government wants to give fast tracked resource consent approval to.

ANALYSIS: To its supporters, it’s a way of removing a bureaucratic logjam and getting the economy moving again.

To its critics, it’s a murky scheme to override local democracy and vital environmental protections.

The law approving the fast-track consenting regime hasn’t yet been passed by Parliament.

The Environment select committee expects to report back on the bill and recommend any amendments on Friday week.

But the fast-track is being laid and the locomotives are revving up their engines.

The Government announced on Sunday that 149 applicants had been selected for “fast track approval”.

So does there remain any way in which they might be derailed?

Hang on, what 149 projects?

They include 44 housing developments, 43 ‘infrastructure’ projects such as roads, and 22 renewable energy schemes, such as wind and solar farms.

But more controversially there are 11 mining projects on the list, including the mega-controversial Taranaki iron sands seabed-mining scheme and plans for a giant open-cast gold mine near Bendigo in Central Otago.

How did they get on the list?

The 149 projects were selected from 384 applications for fast-track approval.

Decisions on which to include were made by Cabinet, after it received advice from an “Independent Advisory Group” appointed by the Government.

Minister for RMA Reform Chris Bishop has confirmed the panel recommended all the 11 mining projects that were included.

That does means none were put on the list by ministers against the panel’s advice, which would have been possible under the bill.

A triumvirate of ministers will no longer have the final say on projects, but that may not change the initiatives’ likely outcomes.

What happens next?

Each will be considered by an expert panel convened for each project, which is now expected to have the final say on whether each project goes ahead.

Gary Taylor, chairperson of the Environmental Defence Society and a former chairperson of the Auckland Area Health Board, says they'll “apply the law as it finally emerges”.

“And if the law is too heavily biased in favour of development imperatives, then the environment won't get a look in.”

What about the other 235 projects?

They could still be put on the fast track at a later date. They included another 10 mining projects, by the way.

The Independent Advisory Group actually recommended ministers include 342 projects in the bill, so it “rejected” only about 10% of the applications it received.

The fast-track regime has proved one of the Government’s most divisive policies.

Cabinet appears to have only cut the initial list down to 149 because that was the most it thought it could fit on the fast track at one time.

Could the expert panels’ ‘final decisions’ be appealed?

In theory, by some people, on limited grounds.

But Shortland Chambers lawyer Jenny Cooper KC, president of Lawyers for Climate Action, says it would be “very hard”.

As the law is currently drafted, decisions could only be appealed on a point of law.

“You'd need to show that they acted outside the scope of what they're lawfully allowed to do under the act.” But the bill is “pretty permissive”, she says.

Appeals could only be brought by someone who had more of an interest in the outcome than that of the “general public”.

Taylor believes that could include groups such as his own.

Shane Jones has recused himself from multiple fast-track projects due to potential conflicts of interest, but the government won't disclose how many other conflicts ministers have declared or on which projects.

A High Court decision would be final unless the Supreme Court took an interest, as it couldn’t be challenged again in the Court of Appeal.

Cooper says that all means the 149 projects that have been lined-up are “a long way along the line”, assuming they can persuade a Government-appointed panel of their merits.

“Which is the intention of it, right?”

What about a judicial review?

Also possible, but also difficult.

The usual grounds for a judicial review are that a decision-maker has made a decision which is not consistent with the act that they are empowered by, Cooper says.

Another basis for a judicial review might be that an expert panel had made a decision that “no reasonable decision-maker could make”, she says.

But the bar there is a high one to hurdle, as “you'd need to say that no expert panel could have reached the view that was a reasonable decision”.

If a conflict of interest was unearthed that was suspected to have affected a decision, then that could potentially be grounds for a challenge too, Cooper says.

“A procedural-fairness issue might arise. That is all very hypothetical, of course.”

Any other options?

Probably not legal ones.

Taylor says most of the 149 projects are “at first blush, acceptable projects”.

But there is a minority of them that aren't, and “challenging them is going to be, well, challenging”, he says.

He envisages there will be “direct action” and civil disobedience.

“I think things will get tense. We can't have projects that are going to imperil threatened species and there are projects there that will do that.”

He believes they include the Hananui aquaculture project off Stewart Island “that will impact on the threatened bird-of-the-year, the hoiho, the yellow-eyed penguin”.

“I think there will be civil disobedience. There will be litigation, notwithstanding the difficulties.”

Taylor argues that prospect could have been avoided.

“If they had simply precluded those controversial projects, they’d still have had a list of 100 or more that could go through with a social license.”