The Government has introduced the Fast-track Approvals Amendment Bill, doubling down on its war on nature.
“Although the Bill is being marketed mainly as a targeted measure to improve competition in the grocery sector, and to deal with some ‘teething problems’, that is a cynical ploy to deflect from the Bill’s actual effect in terms of its impact on the environment and democracy,” says EDS Reform Director Dr Greg Severinsen.
“In terms of participation, Panels will be restricted in who they can invite to comment on applications. At present, panels may seek input from anyone they consider appropriate, including community and environmental groups. The Bill would limit this input to situations where local authorities or government agencies do not ‘intend’ to comment on a particular matter, or where panels think their input would not ‘sufficiently’ address a matter. Panels will be left with major information gaps.
“The timeframe for parties like the Department of Conservation to provide comments on referral applications would be reduced from an already modest 20 working days to just 15. Panels would also have to reach final decisions within a maximum of 60 days, regardless of the project’s complexity. That is a ludicrous constraint. These compressed timeframes will compromise the quality of information and decision-making.
“And it gets worse. The Bill proposes to limit appeal rights to those that a panel must invite comments from. Others who have been invited to comment on a discretionary basis are no longer allowed to appeal, including NGOs and environmental watchdogs. It will have the perverse result of channeling litigation into long and costly judicial review. That’s exactly what happened to the fast-track process in Ireland, which has recently been abandoned.
“The creation of a new Government Policy Statement would essentially allow the Government to define what a “significant regional or national benefit” means. This would influence which projects are referred to panels, and panels’ decisions.
“It could transform the test from something capable of being objectively tested in the courts to something that Ministers could determine themselves. For example, it might see large mines sail through the process more easily, despite having very little benefit for the people of New Zealand and carrying significant environmental risks.
“The Bill would also allow the Minister to approve ‘modifications’ to projects after they are referred to a panel. That could encourage applicants to submit smaller, more palatable proposals initially, and then expand them later on, without having to go through the same hurdles as the initial referral process. The Minister would only have to be satisfied that the project ‘still had significant national or regional benefits’.
“The Bill would also allow applicants to complain about the ‘suitability’ of panel members if they feel a member is not impartial. ‘Panel-shopping’ is completely inappropriate. Applicants should have no influence over panel appointments. This could easily be abused to sideline panelists who are perceived as too expert, rigorous or environmentally minded.
“Finally, the Bill raises some fundamental constitutional issues. It would enable the Minister to issue general directions to the Environmental Protection Authority (EPA) about how it performs its functions. While these directions cannot relate to specific applications, the potential for interference in the EPA’s functions, such as data handling and public engagement, is worrying. The whole reason we have the EPA involved in fast-track is because it is independent.
“To cap it off, there is a provision that would allow an Order in Council to amend projects listed in the Act itself. This is a textbook Henry VIII clause, where the government can change legislation directly without going through Parliament. In our view, that’s unconstitutional and sets a dangerous precedent.
“The original Fast-track Approvals Act was already one of the most extreme assaults on environmental protection and due process we’ve seen in New Zealand’s law. Rather than fixing its flaws, this Bill doubles down on them.
“There will be an extremely short window for public submissions and Select Committee scrutiny, meaning changes to fast-track are themselves being fast-tracked,” concluded Dr Severinsen.
More detailed commentary is available here.