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Fast-track consenting regime for infrastructure and development – Expert Reaction

The government will soon introduce a standalone Act to allow major infrastructure projects to bypass lengthy resource consenting processes.

The fast-track regime is the next step of the coalition government’s RMA reform agenda. A full replacement for the Resource Management Act is expected in 2026.

The SMC asked experts to comment.

Dr Troy Baisden, Principal Investigator, Te Pūnaha Matatini Centre of Research Excellence; Motu Affiliate; and Honorary Professor in the University of Auckland School of Environment, comments:

“The introduction of fast-tracking legislation comes on top of the fast repeal of the replacement for the Resource Management Act (RMA). It’s always possible there will be an insightful solution proposed, but based on what we know about advances in environmental science to managing risk, the new process will likely bring us back toward the nightmare that plagued environmental protection decades ago. To summarise that situation simply from the environment’s perspective: every loss is permanent but every victory is temporary.

“To back up, it’s been clear that neither side of politics is happy with the Resource Management Act (RMA). Industry and environmental organisations had even less love for the RMA, and didn’t fall in love with the last Government’s legislation that replaced the RMA. The fast repeal of that legislation combined with fast-tracking about to be introduced into Parliament will most likely only change the balance of unhappiness.

“What’s changed? The RMA is only 33 years old but it predated the solutions to problems from acid rain to climate change. While we’re still working on climate change, nearly everyone understands that the Earth and its ecosystems have limits and it is best to set achievable targets, which allow us all to live within or return to the limits

“The replacement for the RMA put these concepts in place in each type of problem where they could be applied to setting the balance between protecting the environment and enabling resource use. Perhaps the new legislation was more complicated or confusing that we’d have liked because it incorporated a paramount principle from te ao Māori to guide everything in manner consistent with Te Tiriti o Waitangi Treaty of Waitangi, and required getting from the system we have now to the new system.

“Clear limits and targets were seen as a way to provide certainty to processes where every decision seems to hard fought and often won by those who can pay for the best lawyers and experts. If fast-tracking only does that faster, it will remove less risk than we think, and risk is the bane of industry investment for developments, whether they’re about mining or renewable energy. A durable solution for the future, that is stable across the political spectrum, would be more desirable than a process that looks most likely to be a step back toward a past that created environmental problems rather than solving them efficiently.”

Conflict of interest statement: Baisden is current on an advisory group for the Ministry of the Environment’s (MfE’s) Our Land Report, and was on an Advisory Group on Interim Limits and Targets for MfE, where the final NBEA legislation excluded the interim approach.

Dr Caroline Miller, Honorary Research Fellow, Massey University, comments:

“Ahead of the details of the new fast track consenting legislation, it is worth reflecting on the consequences of that accelerated process. The new government wants to cut through the red tape of the ‘overly restrictive RMA’, suggesting that the new consenting regime will have wider powers than present local government processes.

“Speeding up the process will almost certainly limit, probably through a tailored process, the opportunities for affected individuals and communities to make submissions. Inevitably, appeal rights from the new consenting authority’s decisions will be significantly reduced or done away with. Individuals and communities will find this difficult to accept given one of the central aspects of the RMA was to open up participation in planning processes. There may also be an attempt to return to the past by narrowing who can participate to those ‘affected greater than the public at large’ (the situation under pre-RMA planning legislation), thereby neatly excluding environmental and other groups, who are used to participating under the RMA.

“It may prove difficult to reverse RMA participation expectations given they have been in place for over 30 years. This may be all the more the case, given that the government has already signalled the new process will be used for large infrastructural projects, aquaculture, mining and any economic activity which will ‘supercharge New Zealand’s economic potential’. Inevitably these are projects with wide ranging and significant effects, the type of project individuals and communities expect to have their voices heard on. The fact that the government has already signalled it has a list of projects to which the new legislation will apply, will amplify community concerns.

“There will also be the issue of who will sit on this very powerful decision making body, dealing with an array of large projects. The Environment Court Judges and Commissioners may play a part, but this could lead to delays in processing the Court’s existing appeals. Commissioners accredited under the Making Good Decisions programme will probably provide other members, though again this will reduce the pool of commissioners to deal with existing local government hearing. Those Commissioners may have conflict of interest issues, recently highlighted in the Wellington city hearing on medium density housing provisions.

“So, while the new system will be dedicated to speedy procedures, they may provoke considerable community concern and generate their own administrative complexities.”

Conflict of interest statement: “I am a Fellow (Retired) of the New Zealand Planning Institute and help with submissions in a general way.”

Professor John Tookey, School of Future Environments, AUT, comments:

“New Zealand’s need for infrastructure provision is a classic Kiwi paradox. On the one hand everyone accepts the need for new and expanded infrastructure. The country considers itself to be a developed economy. Therefore our demands and expectations are high and continue to rise. We know that we have under prioritised infrastructure in the past and we need to better in the future. On the other hand we like to consider ourselves to be an inclusive society. Instinctively we rail against State imposition of directives. We like to stand up for the ‘little guy’. We believe all voices should be heard. Indeed the Treaty of Waitangi itself enshrines in statute key principles of equality, redress, cooperation and consultation. Hence our internally conflicted position is very real.

“New infrastructure is both a lead and lag indicator. Lag in the sense that its provision usually follows an expanding population and development. Consider the peripheral communities on the outskirts of Auckland that are still to get decent roading schools or surgeries etc. Lead in the sense that new infrastructure provision attracts new residents to an area. The North Shore of Auckland was little more than orchards and paddocks prior to the bridge in 1959. Consequently infrastructure decisions in terms of scale and priority are inherently political, with huge social and societal impacts for the future. When measures are taken to increase the speed of delivery of potentially expensive and impactful infrastructure, nerves are struck and cages are rattled.

“While no-one expects to impinge on the ability of the government to govern, some realities need to be accepted. The government’s attempts to drive ‘progress’ will inevitably raise significant pushback. There will be an ongoing expectation of redress and challenge to the fast-track decisions that are made. The processes of consultation and cooperation are not going to go away overnight, irrespective of political aspiration.

“It’s not surprising that the new government have sought to spend political capital at this stage of their administration. It will be interesting to see if the expenditure is sufficient to overcome the inertia. Conversely, how compromised is future policy with such a wafer thin majority in parliament? We’ll have to wait for the longer term to find out whether this particular juice was worth the squeeze.”

No conflict of interest.

Marnie Prickett, Research Fellow, Department of Public Health, University of Otago, Wellington, comments:

“The Fast-track Consents Bill would put us on the wrong track. Instead of working to address serious issues of our time – climate change, water pollution, ecosystem collapse – what the Government has signalled is to be fast-tracked under the Bill are projects that would undoubtedly make these problems worse.

“Mining on conservation land, more extraction of coal, and further agricultural intensification through dams have been signalled, either in the coalition agreements or in comments by Ministers. All would have serious negative consequences for climate, water, and biodiversity.

“For public health, I am particularly concerned about the potential for more contamination of communities’ drinking water. Further agricultural intensification will put more pressure on waterways, and unhealthy waterways provide unhealthy raw water, which is not always treated for all contaminants and can incur significant treatment costs.

“After the disaster of Havelock North campylobacteriosis outbreak, the public inquiry into the contamination of the water supply made clear that protecting source water (the river, lake, aquifer a community draws their water from) is the “first, and most significant, barrier against drinking water contamination and illness.”

“My colleagues and I recently wrote about the serious weaknesses in the protection of communities’ source water.  I can see the combination of this Fast-track Consents Bill and the Government’s proposal to replace the country’s freshwater policy means communities’ drinking water sources would be extremely vulnerable to further contamination.

“Through this Bill, the Government is intending to by-pass environmental law and local government planning. It is also seeking to cut communities and expertise out of the process of developing projects in the regions. Resource management law, local government planning, community and expert engagement are all intended to ensure we have rigorously considered development that fits the land, water, and community. These processes are not perfect, however, this Bill looks not to be seeking to improve these processes but to undermine them.”

Conflict of interest statement: Marnie Prickett is part of a volunteer-run campaign for improved freshwater policy called Choose Clean Water.

Dr Martin Brook, Associate Professor of Applied Geology, University of Auckland, and Chartered Geologist, comments:

“This is really a sliding doors moment for New Zealand – we have had a terrible run with flooding and associated hazards, and now land development is to be fast-tracked by the new government.

“The Ministers may wish to consult with Insurance Council of New Zealand (ICNZ) and insurance companies like IAG and Tower as part of their new ‘standalone, fast-track Act’. Prior to considering land development, it’s fundamentally important that new homes are insurable, or prospective owners will not be able to secure a home loan to purchase the properties.

“Insurance ‘retreat’ is now real in New Zealand due to the high risk of exposure to natural hazards such as floods, landslides and coastal erosion (as well as earthquakes, liquefaction etc). Indeed, some areas of New Zealand are now effectively uninsurable. Some major insurers are not insuring in areas subject to natural hazards, as they are exposed to too much risk. Tower may now cancel an existing policy if the risk profile has changed. Also, in Tower’s new advertising campaign, they are encouraging homeowners that do not live in hazardous areas, to insure with Tower. The advertising voice-over states: ‘When you get a quick quote online [with Tower], it’s customised based on the flood and earthquake risk rating of your property, not someone else’s.’

“So, insurers are being competitive in less hazardous areas, and so other insurance companies will have to respond. This might be good news for many homeowners, as long as their insurance company stays in business. So, understand the geology and geomorphology (i.e. the lay of the land) first, and ONLY THEN think about fast-tracking land development. Because, the insurance industry is already steps ahead of the government, it seems.”

Conflict of interest statement: “Currently recipient of funding from Toka Tū Ake EQC and Ministry of Business, Innovation & Employment (MBIE).”