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Fast track bill back - bruised not beaten

25 October 2024

The Fast-track Approvals Bill has been trimmed of some of its more contentious elements as a result of the select committee process, although not enough to win over Labour, the Greens and Te Pati Māori – each of which has delivered a dissenting view. 

Whether the modifications will ensure the regime’s survival under a change of government will depend on how it performs in practice and in the court of public opinion – whether it is able to deliver infrastructure and development projects efficiently, without political taint and within acceptable environmental limits.

We note that the Government is expecting a high volume of applications to be processed (between 50 and 100, with a median of 80) in each of the first three years, with levy costs in the range of $124,000 to $214,500 per application, including the referral and substantive consideration phases.

We summarise the key recommendations as they appear in the committee’s report.

Purpose clause

The recommendation is that the purpose clause of the bill be to “facilitate the delivery of infrastructure and development projects with significant regional or national benefits”. The initial wording was considered too focussed on the process and not enough on the end product.

Decision-making powers

The expert panel will now be “the final substantive decision-maker on all approvals”. The panel must be guided primarily by the Act’s purpose, but the bill clarifies that a project can be declined where the adverse impacts are sufficiently significant to outweigh that purpose.

Initially the bill had given the decision-making power to the “joint Ministers” (the Ministers for Infrastructure, Transport and Regional Development) but this was widely criticised, leading the Government to signal a retreat almost immediately.

Another change the committee has recommended is that decisions on whether applications are referred to the expert panel will be made by the Minister for Infrastructure (rather than the joint Ministers) and that the Minister must consult the Minister for the Environment and other relevant portfolio Ministers. This proposed amendment reflects submitter concerns that the bill as drafted provides little recognition of environmental considerations.

Eligibility criteria

These are the matters the Minister would need to consider when deciding whether to refer an application to the expert panel. The criteria have survived substantially unchanged but have been strengthened and clarified.

The most significant change is that the Bill initially required only that the criteria be considered, it was silent on whether they should be met. The new clause makes clear that the Minister must be satisfied that a project meets the criteria before referring it on. The first list of projects announced by the Government for fast tracking will give a good lead on the nature of activities that could fit the criteria.

Another recommendation will explicitly extend eligibility to maintenance and upgrade projects that enable the continued functioning of existing regionally or nationally significant infrastructure.

Ineligible activities

High value conservation land. Currently the Bill relies on the Crown Minerals Act definition, but the committee recommends that the Bill should expressly set out the areas to be covered. They also recommend that the Government consider introducing an amendment to allow some electricity generation and transmission activities to locate on high value conservation land (given many assets already traverse these areas and will need to be maintained and upgraded).

Māori land/land returned under a Treaty settlement. The committee retained the requirement that a project must have the written consent of the landowners to be eligible for fast-track approval despite the difficulties this could create for large, linear projects.

But it is recommending a Ministerial discretion to override that requirement where “it is on Māori freehold land or general land owned by Māori that was previously Māori freehold land, and it is for the construction of electricity lines or land transport infrastructure by a network utility provider that is a requiring authority”.

Mātaitai reserves and taiāpure. Stronger protections are recommended for local fisheries, mātaitai reserves and areas subject to bylaws under Part 9 of the Fisheries Act where the activity would have a more than minor adverse effect and has not been agreed to in writing by the tāngata whenua of the area.

Reserves. Largely at the behest of local government, any land owned or managed by a local authority, or any reserves owned by someone other than the Crown or managed by someone other than the Department of Conservation (DOC) will be ineligible for fast-track unless agreed in writing. The agreement “must not be withheld unreasonably”.

Referral applications

A number of amendments are proposed, mostly directed toward making the process more robust.

  • Applicants will be specifically required to provide information at the referral stage if any of the activities involved in the project have already been considered under other legislation, including the outcome and the reasons for it.
  • Several submitters felt that the 10-working day timeframe for the responsible agency to consider a referral application was too short, but the committee disagreed on the grounds that the agency’s consideration was intended to be in the nature of a “high level check”. It is instead recommending that the Bill make it clear that the test to be applied is that the proposed project “does not appear to involve an ineligible activity”.
  • The response timeframe for parties from whom the Minister is required to seek written comment on a referral application will be doubled – from 10 to 20 working days.
  • The Minister will be required to obtain from DOC a report on existing ownership and management arrangements, formal and informal, pertaining to relevant conservation land.
  • It is recommended that Part A listed projects be made to comply with the information and engagement requirements required of Part B projects in the referral stage.

Report on Treaty settlements and other obligations

The requirement on the Ministers to consider any Treaty settlements or other obligations affecting Māori interests will be expanded to include: any settlement provisions relating to land, species or other resources within the project area, any protected customary rights of customary marine title, any applicant groups under the Marine and Coastal Area (Takutai Moana) Act and any effects on ngā rohē moana o ngā hapū o Ngāti Porou.

Obligation relating to Treaty settlements and recognised customary rights

The Bill at clause 6 refers to “existing” Treaty settlements and customary rights. The word “existing” will be removed because it may be misinterpreted to mean at the time of the Bill’s enactment, which is not the policy intention.

Expert panels

Membership. The committee recommends that the requirement at Schedule 3 to have one person (of four) nominated by the relevant iwi authorities be deleted. It recognises that this may be interpreted as reducing the ability of Māori to have a role in decision-making but says that this right is protected through the “overarching obligation [in the Bill] to act in a manner consistent with Treaty settlements and customary rights”.

Skills and experience. These provisions have been strengthened in response to submitter’ concerns and will now require panel members collectively to have the requisite knowledge and skills required together with expertise in environmental matters. At least one member should be suitably qualified in te ao Māori and Māori development.

Lapse period for consents and designations. The two-year default period after which a consent or designation would lapse unless given effect to is to be expanded to five years. Longer periods could be approved by the panel.

Timing of panel decisions. The 25-working day deadline will remain, but the committee is recommending that the panel convener can extend the timeframe “as it thinks fit” for particularly complex applications.

Obligation to seek input. The committee proposes that a mechanism be inserted into the Bill requiring that the panel direct the Environmental Protection Authority to obtain advice from relevant administering agencies, such advice to be delivered within 10 working days.

International obligations

The Government members of the committee declared themselves satisfied that the Bill is not at odds with New Zealand’s international obligations. They have however suggested that the Ministry of Foreign Affairs and Trade and the Ministry for the Environment develop “supplementary guidance” to assist the Minister and the panels to negotiate these issues.

Chapman Tripp comment

Although the committee’s recommendations will improve the bill, the new legislation will still be complex and novel in attempting to draw together several approvals processes into a one-stop-shop and some stakeholders will still have concerns that the provisions will be too fast and too enabling.

For those who intend to use the fast-track option, legal risks and litigation challenges will need to be carefully managed with bespoke strategies. There will be pros and cons to using it versus traditional RMA processes.

Getting the right team on board and lodging robust applications that address the many statutory criteria and information requirements will be crucial. It may also be necessary to involve key stakeholders early to resolve issues. And time will be a factor as, given the number and complexity of the projects that have been listed for the first wave, getting access to decision-making panels could prove challenging.

The report also assumes that further changes will be made to the bill as it makes its way through the House. That means that there is still opportunity for influence.

Our Environmental, Planning & Resource Management team has extensive expertise and unique insights on fast-track consenting, having acted for many applicants and commenters, as well as chairing decision-making panels.

We have also been following the legislation closely, looking at it from a range of perspectives. We can help you set up an appropriate strategy to navigate the complexity and manage legal risks to ensure you get a great outcome. 

If you have any matters you want to progress, please get in touch with one of our experts.

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