Mining lobby group Straterra says the fast-track bill’s top-heavy ministerial powers are not unheard of, but a legal expert says it’s not that simple.
Submitters opposed to the Fast-Track Approvals Bill shared a near-unanimous concern over leaving the final say in the hands of just three ministers.
Even those broadly in support of the Bill, like Federated Farmers, suggested amendments to nullify this clause.
But mining lobby group Straterra suggested this level of ministerial power is not unprecedented.
Currently, the Bill would allow three ministers (of Regional Development, Infrastructure and Transport) to grant final approval to projects applying under the new scheme. In some cases a fourth minister (of Conservation) will be included.
This group can decide to overrule recommendations from an expert panel, effectively giving them full control of New Zealand’s industry development – though the minister in charge of the legislation Chris Bishop has recently wavered on this facet of the Bill.
Now in the second week of public submissions, the Bill has drawn consistent criticism for this degree of ministerial power. First-day submitters the New Zealand Planning Institute, among others, warned on such powers could erode public trust by obscuring conflicts of interest. Greenpeace submitted: “It would open the door to development not in the name of the public good, but in the name of whoever lobbies hardest.”
Unlike the majority of submitters, Straterra said not only would this degree of power be acceptable, but that it would actually be the standard: “Powers for ministerial decision making are the norm in other areas of legislation impacting on the environment – it is the RMA which is the outlier.”
As an example, Straterra pointed to a 2018 decision by the Minister of Conservation to deny the Te Kuha mine access to conservation land. Additionally, it highlighted a 2020 decision by the Minister for Land Information to block land acquisition application by OceanaGold.
“It should also be noted in both these examples the minister had been, in a former role, an advocate opposing these/such projects and in both cases she did not step aside despite her predetermined views”, said Straterra.
Straterra cited the Crown Minerals Act, Conservation Act, and the Overseas Investment Act (some of which were used in the above instances) as current examples of this type of ministerial power, and noted that, “there are no calls from the public to put those regimes into the hands of judges.”
Otago University Law Professor Andrew Geddis told Newsroom, “Yes, Ministers get ‘final say’ sometimes. The question is, what sort of say is it, and subject to what limitations?”
In the case of all the examples cited by Straterra, Geddis said those Acts all allowed the minister “to make final decisions on independently made applications”, but there were two major distinctions.
First, a decision under any of those Acts would then potentially “be subject to other sets of regulatory controls that aren’t in ministerial hands.” This would not be the case under the fast-track bill.
For example, a gold mining permit granted under the Crown Minerals Act would then still require RMA consent for the dirty work. “To paraphrase,” said Geddis, the fast-track process would instead grant a “meta-permission … to do what you want under all regulatory regimes.”
Second, for those three cited examples of ministerial powers, each is subject to constraints regarding the purpose of the Act. The purpose of the Conservation Act, for example, is to “promote the conservation of New Zealand’s natural and historic resources”. Any concession granted under it, then, would have to abide by this purpose.
But the purpose of the Fast-Track Approvals Bill is to “facilitate the delivery of infrastructure and development projects with significant regional or national benefits”, a description flagged by the NZ Planning Institute as “too broad”.
Crucially, Geddis noted the ministers involved with the fast-track bill presided not only over the final say in the matter, but also acted as gatekeepers of the entire regime. “The ministers decide what projects may get into the process, and then whether to accept the expert panel’s recommendations on whether the project should go ahead (as well as any conditions on the project that the panel may impose).”
This is a major difference to the three examples cited by Straterra; under none of the examples it cited do the ministers in charge control both the entry and exit points of the process.
But ministers do often have the final say in major developments. Last week, one of these three fast-track ministers, Chris Bishop, decided the future of Wellington’s housing market. As the Minister responsible for RMA Reform, it was his decision to side with either the Wellington City Council or the Independent Hearings Panel on matters relating to the Wellington District Plan.
The two groups presented strikingly different futures for the nation’s capital. The council was pro-development, arguing for wider walking catchments and looser zoning laws. The panel was quite the opposite, arguing for restrictions on zoning and in the same cases courting controversy for their sources of expert advice.
In the end, the final say lay with one man: Bishop. He could have, theoretically, set aside public opinion and sided with the IHP – this would have been well within his rights and duties as the minister. But he didn’t, and instead sided almost entirely with the council, accepting only one of the IHP’s recommendations: a zoning plan for Kilbirnie that was uncharacteristically more progressive than the council’s.
The other area he differed from the council’s recommendations was in the repeal of heritage listings. Protected sites like the Gordon Wilson Flats and the Miramar Gas Tank have been a source of frustration for developers, but Bishop was unable to de-list any of the sites without expert advice alongside the council’s submission.
Bishop told Newsroom: “I was required to carefully follow a legal test when making the decision [about these heritage sites] – and the test is not whether the buildings are eyesores, or whether that land could be better used if those buildings were knocked down and redeveloped.”
Instead, Bishop could only consider the evidence that the IHP had seen when making its recommendations to keep the listings. Since no evidence was submitted against this, his hands were effectively tied.
But this is, again, starkly different to the ministerial powers granted by the fast-track legislation. In the case of the District Plan, Geddis said Bishop must act as a sort of “umpire”, deciding between two sets of options on a variety of issues. He can neither introduce his own options nor gatekeep suggestions from reaching the table in the first place. If he could do so, he would not have had his hands tied by a lack of evidence surrounding the heritage listings, and would not be forced to consider using RMA reform as a way to address current heritage laws.
The debate over ministerial power in the Fast-Track Approvals Bill has been lively, and has not gone unnoticed by Bishop. In his Friday speech to the 2024 Infrastructure Symposium, Bishop noted the Bill is “getting a bit of airtime at the moment”, and said “We’re open to sensible changes to the Bill”, citing only the “one-stop-shop” and “fast-track” aspects of the Bill as apparently sacrosanct.
Removing this piece of the Bill would not appear to raise the ire of too many industry groups. Straterra seemed to be a relative outlier in its specific support for this area, with Federated Farmers and Meridian Energy both suggesting that the final say ought to rest with the expert panel.
On April 30, Bishop told Newsroom changes to the ministerial powers of the Bill were “one thing that we consider” moving forward.
But as Forest & Bird Chief Executive Nikola Toki explained in her oral submission, “Removal of ministerial override is meaningless unless environmental protections and public participation in existing legislation is retained.”
To repeal the ministerial override abilities without addressing any further concerns would represent “a bit of [a] bait and switch”, she said, “I want to make that really clear: that can’t be the only thing.”
