The Government’s War On Nature Goes Nuclear – Environmental Defence Society

The government’s assault on the environment has stepped up several gears, with the introduction of a new fast track consenting law to Parliament today. This replaces the existing fast-track law which has been working well and reducing consenting times by 18 months.

“This new Bill is deeply disturbing in most respects and is an unnecessary extension of Executive power to approve environmentally damaging projects,” said Gary Taylor, EDS CEO.

“We have never seen anything remotely like this since the days of the National Development Act. The new legislation allows Ministers and Developers to ride roughshod over all of this country’s environmental protections with no effective checks and balances.

“Under the Bill, Ministers can make decisions on individual projects; there are no meaningful environmental criteria; participation rights by local communities and environmental groups are limited; local government may be shut out of the process; and appeal rights are severely constrained.

“The Bill’s scope is very wide. It overrides the Resource Management Act, Conservation Act, Wildlife Act, Reserves Act, the EEZ Act and others.

“After hearing the gist of what was to come, EDS set out its concerns in a letter sent to Hon Chris Bishop on 9 February. The Bill does nothing to address those concerns. If anything, it doubles down and makes things worse.

Almost any project is eligible

“There is no real constraint on which projects can use the process. They only have to have regional or national benefits, which Ministers will get to interpret. Ministers have specifically signalled that these will include infrastructure, renewable energy, housing and mining. They can even include most prohibited activities under the RMA, including those specified in the government’s own national direction. Developers will, of course, see the easiest route as simply lobbying ministers, who can send their favoured projects down the fast track to easy approval.

Expert panels have recommendatory powers only – all power lies with Ministers

“While it would be marginally acceptable for Ministers to act as gatekeepers to the process, as is the case under the existing fast-track law, here they give the actual approvals. Expert panels will only get to recommend that the application be approved or declined, and which conditions should be imposed. Ministers, who do not have the requisite technical expertise, can simply choose to reject those recommendations and proceed anyway. One wonders what the point of an independent panel actually is. Appeals are constrained to points of law in the High Court, removing any meaningful check and balance from the specialist Environment Court. Only certain groups, including the applicant, submitters, Attorney-General, and any person who has an interest in the decision that is greater than that of the general public, can appeal.

“This is unprecedented powers for Ministers to exercise. Direct political decision-making leaves Ministers open to considerable legal and political risk, including allegations of pre-determination, bias and even corruption. We have said before that granting regulatory approvals should not be used as a way to raise political capital or engage in pork-barrel politics, and to do so is constitutionally questionable. This is what will happen here.

“To top it all off, there is no mention of the Minister for the Environment being involved at al. It is incomprehensible that decisions under environmental legislation will instead be made by development focused Ministers (infrastructure, regional development and transport).

The public and representatives of the public interest are shut out

“There is no requirement for Ministers or Panels to seek comment from the public or hold a hearing. They are only required to seek comments from relevant ministers, local authorities, Treaty settlement / related entities, and other identified Māori groups with interests. There is no mention of environmental groups. The Bill will muzzle public interest environmental advocacy and important sources of information for decision-makers.

Decision-making criteria are heavily weighted towards development

“To add insult to injury, the purpose and principles under which decisions are to be made will be heavily focused on development, leaving the protective provisions of the RMA and other acts largely irrelevant. National direction, which has been hard fought through years and years of evidence-based discussion and compromise, is out the window. Decisions are allowed to infringe the requirements of NPSs for freshwater, the coastal environment and indigenous biodiversity with impunity.

It’s not just the RMA that’s overridden

“The Bill also applies to legislation other than the RMA, including where permissions are required under the Wildlife Act, Conservation Act, Reserves Act, Freshwater Fisheries Regulations, Fisheries Act, Crown Minerals Act, heritage legislation, and legislation for the exclusive economic zone. This means that we may see mining opened up on the conservation estate, with only the highest value parts of the conservation estate, like national parks, off limits. It means that proposals for deep sea mining can be given a direct green light from Ministers with no real oversight from the EPA. It is, essentially, a statement that the government intends to override almost all our environmental laws on ministerial whim.

Some projects will be sent down the fast track automatically

“To compound the felony, the government has said that a large number of developments will be automatically sent down the fast track in Schedules to the Bill, without the need for even Ministers to refer them under any kind of legislative test (and therefore removing them from judicial review). These may well include projects that have already been rejected because of adverse environmental effects – we simply don’t know yet.

“It is particularly mind boggling that these projects will only be added in after select committee consideration of the Bill, at the Committee of the House stage. Along with the shocking lack of consultation on the proposal before introduction to the House, this will leave no ability for the public to have any say whatsoever over which projects are simply deemed to be fast tracked. Parliament itself will have incredibly limited timeframes to scrutinise these provisions. That is what select committees are meant to be for. This is a deeply unconstitutional and arrogant approach to law making on the fly.

“So let’s be very clear about one thing. Despite the spin we have heard from the Minister, and a handful of similar features, this legislation is not like the Covid fast track process. It is also a world away from the consenting process under the now defunct Natural and Built Environment Act. Those had robust independent, not political, decision-making. They had a purpose that recognised the importance of strong environmental protection. And they upheld crucial national direction made under the RMA.

“Despite its name, the Bill is not just about making decisions faster. We would support that aspiration. It is about making development easier, irrespective of the cost. It is about sidestepping almost all our environmental laws rather than having a proper discussion about reform. And it is about placing constitutionally questionable powers in the hands of Ministers. Not since the 1970s and the excesses of Robert Muldoon have we seen this approach. In 2024 New Zealanders will not stand for it.

“Let’s not forget that we already have an appropriate fast track consenting framework, which the government decided to roll over from the Natural and Built Environment Act. Instead we have a constitutionally outrageous, environmentally disastrous piece of law that replaces expert decisions with ministerial fiat,” concluded Mr Taylor.