The temporary suspension of environmental consent requirements has enough checks and balances to ensure the environment is kept safe, environmentalists say
In an effort to bypass the 900-page Resource Management Act, the Government has announced a fast-track system for select infrastructure projects which will be centralised in the Minister for the Environment’s office.
Under the proposal, which was approved by Cabinet last week and will pass through Parliament with just a week in select committee, Environment Minister David Parker will choose specific projects, after approving them against a set of criteria, and allow them to bypass the consenting process. These select projects will be processed by an “Expert Consenting Panel” chaired by a current or retired Environment Court judge or a senior lawyer.
Appeal rights will be limited and the panels will issue decisions within 25 working days. Although the panels are expected to take into account existing RMA national direction, Treaty of Waitangi settlements and sustainable management principles, a background briefing on the proposal notes “once a project is referred to the Panel there is a high level of certainty the resource consent will be granted”.
Public consultations – a regular feature of the burdensome consenting process – will not take place for the selected projects that are fast-tracked. The entire system will only be in place for two years. The legislation to enable the proposal is expected to be introduced when the Budget is announced on May 14 and drafts have not yet been circulated to the Opposition or press.
Cautious optimism from environmentalists
Despite significant rollbacks of environmental protections, environmentalists are cautiously optimistic that the system could work out.
The Environmental Defence Society, typically hawkish on RMA matters, appears to find the checks and balances in the proposal sufficient.
“These are not ordinary times. There is a clear imperative to get economic activity going again and a strong initial surge of public and private sector spending on infrastructure projects is urgently needed to create employment and drive a powerful recovery from C19 lockdowns,” EDS CEO Gary Taylor said in a statement.
“Environment Minister David Parker has made it clear that this surge will include restoring natural systems like wetlands and sedimented rivers and streams. We can also expect an emphasis on walking, cycling and public transport projects, and on improving water and waste management provision. It won’t be all about motorways: this is the 21st century.
“Projects that will assist transitioning to a low carbon economy should be prioritised. The Minister for the Environment will have a gatekeeping role for projects to enter the fast-track: the criteria he must use should be released and should follow advice from the Climate Change Commission.”
Taylor said that the special process will not “run roughshod over environmental bottom-lines”.
“The Minister says that consent decisions have to apply Part 2 of the RMA and have regard to national direction including National Policy Statements and National Environmental Standards. While public submissions and hearings are not provided for in the interests of fast decision-making, we expect that environmental NGOs might be consulted by the consenting panels. And rights of appeal, while limited, are still provided for, including judicial review,” he said.
“Overall, it looks like the legislation will avoid sacrificing environmental standards and has focused mostly on speeding up decision-making. Given the exigencies of this C19 world, the outline of the proposed bill looks like an appropriate response.”
Reforms will galvanise infrastructure investment
The fast-tracked process will give infrastructure projects a much-needed boost, particularly as one of the country’s largest operations, Transmission Gully, appears to be on the verge of collapse.
“The RMA has become a litigious, cumbersome, and complex piece of legislation. It was never intended to be applied the way it has been, and it was not designed to facilitate recovery from something like the Covid-19 lockdown,” Infrastructure NZ CEO Paul Blair said.
Resource Reform NZ, an RMA reform lobby group which counts Infrastructure NZ and the EDS among its members, also released a congratulatory statement.
“Fast-tracking resource consents for critical infrastructure and development projects is a pragmatic and welcome government response to assisting the Covid-19 recovery process,” the organisation said.
“New Zealand has several successful RMA fast-track precedents, notably after the Christchurch and Kaikōura earthquakes,” Blair said.
Previous RMA fast-track efforts have indeed led to increased development. Christchurch has one of the country’s most affordable housing markets, in part due to the massive investment in the aftermath of the 2011 earthquake, which bypassed RMA red tape to help rejuvenate the city.
The below chart from Christchurch’s economic development agency shows that the average New Zealand house is 11 times the average annual earnings, up from eight times annual earnings in 2009. Meanwhile, Christchurch’s affordability has remained stable over the same period.
Mixed response in Parliament
The proposal isn’t without controversy, however, especially in the halls of Parliament. While National and ACT have enthusiastically jumped on board – while noting they need to see the legislation before making a final call – the Green Party has only promised to support the bill through to select committee.
In a statement, Green Environment spokesperson Eugenie Sage indicated the Greens had already won concessions from the Government, including lowering the time the exceptions would be in place from three to two years, but said they weren’t fully backing the legislation yet.
“We believe any projects which seek to be fast-tracked under the proposed RMA Bill must be good for the environment, as well as communities. Through the cross-party consultation the Green Party has worked constructively with Environment Minister David Parker to make key improvements to the proposed changes – that’s what having the Greens in government looks like,” Sage said.
“These include strengthening the environmental safeguards, improving involvement of iwi in decision making, ensuring the public can have their say through a select committee process, and widening the range of criteria to be considered and the expertise on the expert panel; and the influence of regional and district plans and national policies in the decision making process. We’ve also advocated to reduce the length of time these powers would exist and are pleased that they are now proposed to apply for two rather than three years.
“While we’ve managed to get improvements, the Greens are still concerned about the restrictions on public involvement in decisions. We will listen carefully to what the public and iwi and hapu have to say during the Select Committee process. Once we’ve seen what changes come through at the Select Committee stage the Green caucus will review its position as we do on all laws going through Parliament.”
The Māori Party has also cautioned that the new processes need to uphold Māori rights and protect the environment.
“The significant challenge ahead of us is ensuring that we recover our economy and create jobs in a way that addresses the needs of Māori and doesn’t further displace us from our natural environment. Government’s new proposal to rush RMA reforms risk doing exactly that, if iwi and Māori views aren’t completely included,” Māori Party co-leader Debbie Ngarewa-Packer said in a statement.
“Among many things the proposed new legislation intends to lower the threshold of permitted activity, apply designation processes that could compromise Māori whenua and wāhi tapu and use the EPA to oversee it, the very agency that the Court of Appeal found failed to recognise Māori rights and protection of the environment when accepting TTR’s seabed mining application.”
ACT leader David Seymour seized on the opportunity to call for the RMA to be scrapped entirely.
“The Government’s announcement shows what ACT has told successive governments: the RMA is an obstacle to progress and frustrating for all involved,” he said.
“Ultimately, the RMA needs to be replaced. Fundamental changes to our planning rules are long overdue. The 900-page RMA is the single biggest impediment to progress, and to housing affordability in particular.”
Process concerns for legislation
National RMA spokesperson Judith Collins told Newsroom she was concerned because she hadn’t yet had a chance to review the draft legislation.
“For a start, we haven’t had a copy of what has been proposed. We’ve only seen the press release. I’m a little bit concerned, to make sure to have a look at the details, because the last thing we want is another KiwiBuild, with big promises, sounds great, actually no one’s thought through the details,” she said.
“He has not provided us with the Cabinet paper or the draft legislation either.”
Collins also wants to ensure that the bill is subject to sufficient scrutiny, particularly in the select committee stage. Due to the urgency, the bill is only likely to be considered for by select committee for a week, which may not be enough time, Collins said.
“One of the best ways of dealing with that, given that we know something needs to be done quite quickly for the economy, is that they actually need to give everybody that they can give it to, the information, so that they can assess it. When you’re talking about consultation, these are major changes that we’re talking, and one week in the select committee is actually extraordinary. They need to talk to us, they need to tell the public what’s going on, and they need to give them the detail.”
Alongside her worries over the process, Collins said she had a handful of concerns with the proposal itself. In particular, she was worried the Government wasn’t equipped to deal with supply chain interruptions caused by Covid-19.
“One of the problems that I have with it, is that I’m not sure about whether or not they’ve thought about the supply chain to therefore get infrastructure done,” she told Newsroom.
Without guaranteed support from the Greens, the Government needs National on board to ensure the legislation crosses the threshold. This puts David Parker in the same position he’s been in for months on RMA issues: Having to choose between brokering a truce between New Zealand First and the Greens or going to National hat in hand.
In July, Parker launched a major review of the RMA that was quickly scuttled by disagreements between Labour’s junior coalition partners.
At the time, Winston Peters called for a rollback of Māori consultation and said this would be a dealbreaker for him, while the Greens said they wouldn’t accept a bill without these protections. The review is slated to return a result after the election, when a new Government may have a better chance at shepherding reform across the line.