Fast-tracking RMA consents – Expert Reaction

In a bid to kick-start the economy post-lockdown, a number of projects will effectively bypass the Resource Management Act.

The proposal is for projects selected by the Minister for the Environment to go through an Expert Consulting Panel, rather than the sometimes-lengthy process of community consultation. The proposal will be rushed through parliament, go through select committee for just a week, and the new rules are expected to be in place in June.

The SMC asked experts to comment on the proposal. 

Dr Pip Wallace, Environmental Planning Programme, University of Waikato, comments:

“I have concerns that the natural environment will be the loser as a result of the fast-track reforms, as the constraints on public participation will undoubtedly produce less defence of the environment, as well as less robust debate. I accept that there are strong reasons to get the economy moving, but not at the expense of the New Zealand natural environment.

“The latest RMA monitoring survey demonstrates that almost all resource consents are granted. For instance in 2018/19, 35,434 applications were approved and only 105 consents applications were declined. Notification rates are miniscule: 4% of resource consent applications are notified and only 1.5% go to hearing.

“For those that do go to hearing, the presence of environmental defenders (including iwi who are strongly numbered in this group) are critical to outcomes. The fast track legislation limits this valuable contribution, but in addition it appears it may also lead to predetermination of issues. The Minister for the Environment has said once a project is referred to the Expert Consenting Panel there is a high level of certainty the resource consent will be granted. The Expert Panel is intended to be representative, partially offsetting the loss of public participation. However, it does not appear that the process will enable the Panel to exercise a free hand. What is the point of being representative?”

No conflict of interest.

Dr John Hopkins, Professor of Law specialising in Law and Disasters, University of Canterbury, comments:

“The government’s announcement that it intends to bar public input into RMA decisions around major recovery projects reflects a common response, in times of emergency, to reduce “red tape” in the name of efficiency. However, such administrative rules exist for a reason and the check they provide on the discretion of decision makers is as important in times of disaster as in more normal times.

“Although disasters can feel immediate, recovery from them is a long term process as any visitor to Christchurch can confirm. The impact of the projects that the government wishes to fund as a means of driving a post-COVID-19 recovery will be with us for generations to come. Although it is desirable that decisions are taken within shorter time frames, they must be taken with these long term consequences in mind. Administrative rules, of which the RMA is but one example, exist to ensure that they are.

“While most agree that the legalistic procedures of the RMA need reform, their purpose remains crucial, particularly in a system that is already heavily biased towards development. The government’s well intentioned drive to reduce bureaucracy thus needs to retain the principles behind it, particularly the wider community’s chance for input. Such input not only ensures better decisions, it ensures more acceptable ones. Throwing out the public’s chance to comment and leaving decisions with a government appointed panel is like  throwing out the baby and leaving the bathwater. As the Christchurch recovery shows, if we get these decisions wrong, we will have plenty of time to regret our folly.”

No conflict of interest.

Professor Iain White, Environmental Planning Programme, University of Waikato, comments:

“I’m concerned for a lot of reasons. We know that projects brought forward have a high level of certainty of being consented. So the main issues are what will be brought forward, why, how will scrutiny be applied, and what does success look like? As yet, we don’t have much detail on any of these questions.

“Projects will now be determined by a political decision. So the Minister for the Environment will decide, after taking advice and consulting criteria, but what are the criteria and why? For example, how will climate change, the environment, or the views of the public, be considered? Or is it short term jobs? If so, for whom? Or is it the quicker the better? How are aspects weighted?

“We could bring through excellent projects, but it depends on what success looks like. Which brings us back to the people in the room, their criteria, and the way in which scrutiny is applied. There is also the question of who is involved. So will, for example, members of the Climate Change Commission be involved? More fundamentally, there are concerns over democracy and quality. Huge projects like this are very complex – can a panel of three people both contain all the necessary expertise and understand the nature of the places they are affecting?

“Part of the value of the RMA is that it protects Ministers. Now the failure of investment will be directly traceable back to this government and the processes they established. It essentially promotes a technocratic style of development that will not chime well with many people in Aotearoa New Zealand and may prove difficult to roll back. The announcement was made just days ago and we are already seeing calls to make it permanent. I’m hoping for more details and transparency soon. Infrastructure has a long life span so we need to get this right.”

No conflict of interest.

Associate Professor Caroline Miller, Resource and Environmental Planning Programme, Massey University, comments:

“The announcement that the government will introduce a new fast track consenting system for large scale ‘shovel ready’ projects should give us pause for thought and what we might learn from our history. We have after all been here before. The National Development Act 1979 was used to consent the Muldoon government’s Think Big Projects, by offering a tailored and limited consent process. Some projects produced long term benefits, but others were less successful in producing jobs because picking winners is always chancy. Now there is a presumption that economically worthy projects creating replacement jobs will come from projects that require extensive resource consents. That signals that most will be large scale transformative projects which will require more than shovels to achieve them.

“In the rush to create new jobs from large-scale projects, we are in danger of losing sight of the ever expanding consequences of climate change and environmental degradation highlighted in the last State of the Environment Report. This may be our best and only chance of getting our government to undertake expensive and extensive projects that address climate and environmental issues. In the future, we may rue the lost opportunities of this unique time in our economic history, because we used old thinking to address the present and future issues. If it’s shovels we want to use, then there are hundreds of areas throughout the country which could provide instant employment in forest restoration or planting manuka to bolster our honey industry.

“As a planner, I am also concerned at the proposed process that is being proposed which is underlain by the expectations that the expert panel is there to grant a consent. The public’s input is clearly seen as vexatious or displaying NIMBIYist tendencies in trying to delay worthy projects. The effective removal of these voices leaves the expert panel with the challenging role of not only assessing the impact of the proposal on the natural and physical environment but also determining community impact. Most submissions come from affected residents, residents who have to live with the changes brought about by the proposal. The environment, often a silent part of the consent system, will have to rely on the panel’s experts to represent its concerns. The positive value of submissions in shaping better outcomes will be lost.

“There is also the issue of how this expert panel will be appointed. It seems likely they will be drawn from the ranks of the RMA accredited commissioners. They are already prominent in the RMA consenting system, which is now judged to be deficient. It has been suggested there may be room for limited submission from groups representing the environment which again seems to set up a system of picking the voices to be heard while excluding community voices.

“Appeals on these decisions will only be available on points of law which means that the trend for plans and planning processes to be shaped by legal interpretations and judicial review will continue and be reinforced. These concerns are strengthened by the clamour to make these temporary changes permanent, which may become a seductive pathway as the global economy trends downward. If the government gives in to these calls, they are passing up on the opportunity to at last confront the contradiction at the heart of the RMA —how to create a speedy responsive development orientated consent system which also achieves environmentally focused sustainable management of natural and physical resources. If that conundrum is solved, then we may really be onto an RMA winner and a better planning system.”

No conflict of interest.