COVID-19 RESPONSE
(FAST-TRACK CONSENTING) BILL SUBMISSION GUIDE

Our government has just introduced a Bill to Parliament that, if passed without amendments, could concentrate decision-making powers in the hands of a few, reduce opportunities for public notification and consultation, and severely limit the avenues to appeal damaging projects if they are approved.

Some of the key amendments we are calling for include:

  • Ensuring that potential harmful climate impacts are a bottom line when assessing projects;
  • Protecting the public and other stakeholders’ rights to give feedback on applications;
  • Restoring the right to appeal risky approvals; and
  • Ensuring that power isn’t concentrated in the hands of a few.

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350 Aotearoa, Coal Action Network Aotearoa and Oil Change International have put together this submission guide (see below) to help you have your say on this Bill.

We’ve included the key comments and recommendations that we will be making in our submissions and encourage you to use the information included here as well as any other points of your own. If you are able, take the time to personalise your submission – writing from your own perspective often makes for the most powerful and compelling reading. If you’d like to read more about the Bill before making a submission, read our background information.

You can make a written submission here through the Environment Select Committee Websiteup until Sunday 21 June at 11.59pm. The format for making an online submission is broken up into two parts: comments and recommendations.

If you would like to be invited to make an oral submission to the committee, please email committee staff (environment@parliament.govt.nz) as soon as possible so that your hearing request can be considered prior to the closing date for written submissions. This means you need to contact them before Sunday.

Submission Guide:

You can also download a PDF version of our submission guide here.

Comments

I/We wish to make the following comments:

  • In its current form, the COVID-19 Recovery (Fast Track Consenting) Bill should not be passed without significant amendments being made.
  • While I/we acknowledge that there is a need for the government to undertake initiatives to recover from the impacts of COVID-19, we must ensure that the rights of the public and iwi to participate in decision-making and appeal processes are protected, and that the criteria against which applications assessed recognise the need to significantly reduce carbon emissions to protect our climate.
  • Fast-tracking infrastructure projects to boost economic activity must not come at the expense of transparency, citizen engagement and protection for our environment and climate.
  • I/we wish to note my/our disappointment that the submission period for this Bill is only five days. This is a piece of legislation that will significantly curtail public participation in decision making processes designed to ensure that citizens are able to have our say on projects that directly or indirectly impact us all. It is imperative that everyone is given enough time to share their thoughts on this Bill. Five days is not enough time for the Environment Select Committee to confidently say that the public has been meaningfully consulted.

1. Include climate impact as a bottom line for eligibility

  • I/we are deeply concerned that this Bill fails to establish processes to assess projects under consideration to be fast-tracked on their potential carbon emissions, or their risk to our climate. Given our obligations to reduce our carbon emissions under the Climate Change Response (Zero Carbon) Amendment Act 2019 (the Zero Carbon Act), it is unacceptable that major infrastructure projects be assessed for fast-tracking without consideration of the project’s carbon potential.
  • I/we are also concerned that the Bill fails to mention the Climate Change Response Act 2002 at all. Eligibility for fast-tracking must take into consideration the potential climate impacts of projects. The framework set out in Section 5ZN, added by the Zero Carbon Act, can serve as an important bottom line by which projects can be assessed, and empowers any person or body to take the targets and plans within the Act into account.

2. Public and stakeholder engagement

  • I/we believe the curtailing of the public’s right to be notified of, and comment on, applications is unacceptable. With reference to the impacts of COVID-19, there is a case to be made for streamlining processes by which projects are approved to boost economic activity, but I/we believe that there is no circumstance that justifies not permitting public or limited notification. Prioritising speed and expediency must not automatically preclude public participation.
  • All citizens of Aotearoa have a stake in protecting our environment and climate, not just the stakeholders listed under Schedule 6 clause 17. The Bill must be amended in a way which ensures that the process by which projects are assessed is public and participatory while still meeting the government’s objective to streamline the application process. At a minimum, groups representing health and disability rights should have access to participation.

3. Extend the right to appeal

  • I/we are concerned that the Bill substantially limits the persons able to lodge appeals, and specifically reduces the opportunity for hapū, iwi and wider Māori communities to have a say in the process. Given that this Bill restricts public consultation and participation on fast-tracked projects of public significance, the process of appeal will be vital to ensuring the Bill is consistent with Te Tiriti o Waitangi and its principles.
  • I/we are also concerned that the Court of Appeal will serve as the final appellate court for all appeals under the Bill. It is inconsistent with the legislative and constitutional standing of the Supreme Court that serves an important role in clarifying the law connected with resource management, the environment, and matters of general and public importance, for the Bill to exclude appeals to that Court.

4. Limits of the Exercise of Power

  • I/we are concerned with the concentration of decision-making power to the Minister for the Environment to approve or decline a project to follow the fast-track consent path and set the terms of reference for and appoint the Panel. This concentration of power to a single Minister inherently compromises the rights of Māori as Te Tiriti partners, and risks compromising existing agreements already in place to protect Māori decision-making rights.
  • I/we are also concerned that the timeframes put on some of the processes in the Bill are unrealistic, and are likely to lead to poor outcomes.

5. Duration of the Bill

  • I/we are concerned that the 2-year period for this Bill is too long for the intended purpose. Given that this Bill is intended to enable urgent recovery from COVID-19, I/we believe it is more appropriate for the Bill to be reviewed after a maximum of 1 year.

6. Adopt the precautionary principle

  • I/we are concerned that the criteria for the Minister for the Environment to decline applications for referral to the Panel, and the circumstances in which the Panel may decline resource consents or designations do not meet the “precautionary principle” which is an established norm of international law.
  • It is vital that the Minister for the Environment and the Panel exercise scrutiny for projects whose environmental, climate or Te Tiriti impacts are uncertain, to ensure that fast-tracked projects do not come at the cost of protection for our environment and climate and honouring the Crown’s role as Te Tiriti partner.

Recommendations

I/We wish to make the following recommendations:

Climate

  • Include Climate Change Response Act, and in particular, the framework introduced by the Zero Carbon Act, in documents listed under Schedule 6 clause 9(2), which would require consent applicants to provide an assessment of the activity against the relevant legislative provisions that enshrine in law our commitment to the Paris Agreement.
  • Require applicants to disclose carbon budget of activity as part of the information required for listed and referred projects notices under Schedule 6 clause 9(1).
  • Require that an activity that causes significant carbon emissions be included as criteria for ineligibility of projects under Part 2 clause 18(2).
  • Explicitly exclude any activity that facilitates the extraction of coal, oil and gas resources under the criteria set under Part 2 clause 18(2).

Public Engagement

  • Amend Schedule 6 clause 17 to permit public notification;
  • If the above amendment to Schedule 6 clause 17 is not made, expand the mandate of the panel to consult with a variety of groups beyond those listed under Schedule 6 clause 17 on a project-by-project basis;
  • At a bare minimum, expand the list of persons and organisations to be consulted with for referred projects under Schedule 6 clause 17(6j-u) to include the Parliamentary Commissioner for the Environment, and public health and disability justice advocates. In addition, local residents who are not directly affected parties, and NGOs who have specific expertise regarding the environmental harms related to the proposed activity, should be consulted on a project-by-project basis.
  • Include the Minister of Health and the Minister for Disability Issues in Schedule 6 clause 17(4)(g).

Right of Appeal

  • That the Bill provides that relevant hapū and iwi authorities have rights of
    appeal under the Bill.
  • That the Bill provides any individual or organisations reflecting an aggregation of community views acting in the public interest have rights of appeal under the Bill.
  • That the Bill allows for appeals to the Supreme Court of New Zealand.

Exercise of Power

  • That the repeal date of the Bill is reviewed after one year of enactment.
  • Amend Part 2 Clause 16(1)(a) to require any decision that applies in whole or part to conservation land to be made jointly by the Minister for the Environment and the Minister of Conservation, not just to the coastal marine area.
  • That the Bill include the Parliamentary Commissioner for the Environment as a key stakeholder.
  • That the Bill provides that in circumstances of uncertain or inadequate information, the Panel should adopt a precautionary approach and favour environmental protection.

Background

Boosting employment and economic growth by investing in infrastructure projects is the central component of the government’s COVID-19 recovery plan. The government has identified the current approvals process for projects under the Resource Management Act 1991 (RMA) as a barrier to its plans to quickly stimulate the economy. This Bill seeks to give the Minister for the Environment the power to ‘fast-track’ selected infrastructure projects by bypassing RMA notification and consultation requirements and running a truncated hearing process, without public input, for projects the Minister favours.

What is the Resource Management Act (RMA)?

The RMA is Aotearoa’s principal legislation for environmental management. It exists to regulate almost all uses of air, land, freshwater and marine areas. It is a long and complex document and has been amended numerous times since it was first enacted in 1991.

Ultimately the legislation aims to guide the sustainable management of Aotearoa’s natural resources, and while its functions are numerous (and you can read more about them here), for the purpose of this submission we will only touch on the resource consent process.

Under the RMA, a person or organisation wanting permission to undertake an activity which may affect the natural environment needs to apply for one or more resource consents. If these projects may have more than minor impacts on the environment, then the public should be notified and given the chance to express its concerns through a resource consent hearing, which may be relatively informal or may take place through a court process.

A major weakness of the current RMA is that the effects of a proposed project on climate change cannot be considered by authorities – it is explicitly excluded from consideration.

What does this Bill allow the government to do?

If enacted in its current form, the Bill will create a parallel approval process alongside the RMA for certain projects either named in the Bill itself or approved by the Minister for the Environment.

Written into the Bill are 11 projects which will immediately begin the fast-track process (detailed below), permission for KiwiRail Holdings Limited and the NZ Transport Authority to undertake permitted activities without prior consent and a process by which public and private entities can apply to the Minister for the Environment for fast-track approval. This submission guide focuses on the latter process – in other words, the approval process for projects we haven’t been told about yet.

How the fast-track process works in the current text of the Bill

  • Public and private entities can make an application to the Minister for the Environment for fast-track status.
  • The Minister for the Environment will assess the application against a set of criteria named in the Bill, including economic benefits, social and cultural wellbeing for current and future generations, potential for adverse environmental impacts and potential public benefit. The Minister may undertake consultation at this point. If the Minister deems that the project is eligible, they then refer the application to an expert consulting panel.
  • The panel, consisting of a current or retired Environment Court judge or senior lawyer, one representative nominated by the relevant local council and one representative nominated by the relevant iwi authority then have a window of approximately 45 days to assess the application against certain criteria specified in the Bill and consult with certain groups listed in the Bill.
  • Once the panel has given its approval, the Bill limits appeal rights for fast-tracked projects to the High Court and a further right of appeal to the Appeals Court.

    You can read the full Bill here.

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