After receiving 26,855 submissions and hearing 66 hours of feedback, the Environment Select Committee (the Committee) reported back on the Fast-Track Approvals Bill (the Bill) last Friday, 18 October. The Committee, by majority, recommended that the Bill be passed into law, along with a myriad of changes. We provide a brief overview of the key recommended amendments below (referring to the majority recommendations unless we state otherwise).

You can read more about the Bill as introduced to Parliament in our earlier Insight here.

Purpose clause changed to focus more on delivery

The Select Committee has recommended amendments to the Bill’s purpose. As introduced, the Bill’s purpose was “to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits”. Submitters were concerned that the purpose was overly focussed on the process of providing fast decisions, rather than the actual delivery of projects. The Committee agreed, and recommended amending clause 3 so that the purpose of the Bill reads “to facilitate the delivery of infrastructure and development projects with significant regional or national benefits”, removing the reference to the fast-track decision-making process.

Ministers no longer the final decision makers on projects

As introduced, the joint Ministers would have had the power to approve or decline a project, taking into consideration an expert panel’s report and recommendations. Many submitters were opposed to this, raising concerns that Ministers could be susceptible to bias, corruption, or potential lobbying.

Taking that into account, the Committee agreed (following the Government’s earlier announcement on this issue in August) that it would be more appropriate for expert panels to be the final substantive decision-makers on all approvals, rather than Ministers.

Changes to decision making criteria

The Committee has recommended a number of refinements to the criteria for expert panels to make decisions (previously recommendations) on projects. These include that:

• The purpose of the Fast-Track is still to be given more weight than other considerations, but the list of matters to be given lesser weight has now been consolidated (so that relevant Parts of the RMA would apply together rather than different RMA sections being given different weight, which could have been tricky to apply);
• An expert panel would have a discretion to decline approval for a project but only they are satisfied that the adverse impacts of the projects would be “sufficiently significant to outweigh the purpose of this Act even after any conditions that the panel may set in relation to those impacts are taken into account”.

This is perhaps not a substantive change in terms of the circumstances in which fast-tracked projects might be declined under the Bill. Nonetheless, it does clarify the power to decline, which will be narrower than the power to do so under the RMA (both because it sets a high bar for adverse effects, and also because it seemingly excludes other potential reasons for decline such as inconsistency with national policy direction). This test will no doubt become the focus of objections or legal challenges to fast-tracked projects.

Minister for Infrastructure to decide on referral applications

For a more efficient and simple process, the Committee has recommended that the Minister for Infrastructure should make decisions on referral applications, instead of the ‘joint Ministers’. Due to this change, the Minister for Infrastructure now must consult with the Minister for the Environment and other relevant Ministers on all referral applications.

Clarification on eligibility for existing infrastructure

While the criteria set out in new clause 22B are largely the same as what was introduced, some changes were recommended in relation to what the Minister may take into account when assessing those criteria, for example:

• The Minister may consider whether projects would enable the continued functioning of existing regionally or nationally significant infrastructure as projects of significant regional or national benefit, meaning that maintenance and upgrade works could also be eligible for the fast-track approvals process; and
• Inserting a new clause so that the Minister may consider any other matters they think relevant when assessing the regional or national benefits of a project.

Minister to be satisfied projects meet referral criteria, and requirements for staging

A new clause 22A(1) was recommended by the Committee, to make it clearer that the Minister must be satisfied that a project meets the eligibility criteria (including that if the referred project is to proceed in stages, then each stage must meet the criteria including significant national/regional benefit) before deciding to accept the referral application.

New clause 24C also states that one substantive application may be lodged with the EPA for ‘the project’. It then states that for referred projects, one substantive application for ‘each stage’ of the project can be lodged. The wording suggests that only referred projects can be staged (and that the benefits of each stage are to be separately assessed at the referral stage under clause 22A). While staging is at least available for referred projects, the requirement for each stage to meet the criteria may be a large hurdle for applicants to jump (particularly proving that all stages of the project are nationally or regionally significant).

Ineligible projects

While a wide range of projects are able to use the fast-track process, further clarity on which projects would be ineligible to use the process was recommended by the Committee.

The list of ineligible projects is broadly the same as introduced, but some notable changes include that:

• While activities on identified Māori land would generally be ineligible (without agreement), the Minister would be able to make an exception for linear infrastructure (transport or electricity) under new clause 22D;
• Activities in mātaitai reserves and taiāpure would be ineligible without agreement, if they would have more than minor adverse effects;
• Activities in certain kinds of reserves under the Reserves Act 1977 would be ineligible if they require approval under that Act, or are held by someone other than the Crown or the Department of Conservation and have not been agreed to; and
• Offshore renewable energy projects would become ineligible (previously their use of the fast-track process was merely delayed until associated permitting legislation is in place, which is expected to be introduced late this year). This change was not discussed in the report, and contradicts previous policy announcements, so it may still be intended that offshore wind would be made eligible again at the time that the new permitting regime is established.

Referral applications must include information about previous decisions on the project

It is proposed that anyone will be able to apply to use the fast-track process. Submitters expressed concern to the Committee that projects that have previously been declined could be eligible for the fast-track approvals process. To address those concerns, the Committee has recommended that any prior consideration of the projects under any legislation, and any related decisions of the courts, should be considered as part of a referral decision. Applicants will be required to provide this information (including the outcome of past decisions and reasons for it) in their applications.

However, this amendment may not have any impact on the ultimate decision on applications it applies to, given the same decision-making criteria under the Bill will apply.

Timeframes applying to referral applications

Submitters raised concerns that the timeframe, being 10 working days, for the responsible agency to decide whether the referral application is complete was too short and may hinder good decision-making. The Committee, declining to extend the timeframe, reasoned that 10 working days is an appropriate timeframe because the responsible agency’s consideration of the referral application is intended to be a high-level check.

The Committee did however recommend that the timeframe for parties to provide written comments on applications (both referral and substantive) be extended from 10 working days to 20 working days, so as to improve the quality of information received and provide a fairer process.

Listed projects and referred projects will have the same information requirements

Listed projects in the Bill as introduced would not be required to give the same amount of information to the expert panels as a referred project. The Committee consider that listed projects should be subject to the same information and consultation requirements as referred projects and have made recommended changes accordingly.

In unveiling the listed projects earlier in October, it became clear that there was now only going to be one list under newly-named Schedule 2 (which equates to the Schedule 2A list as introduced), as no projects were agreed by Cabinet to go on to the Schedule 2B list. Despite this, the amended version of the Bill which is appended to the Select Committee report continues to have Parts A and B in Schedule 2.

Report on Treaty settlements and other obligations are enlarged, but silence on Treaty principles remains

As introduced, the joint Ministers would need to obtain and consider a report about any Treaty settlements or other obligations that affect Māori interests in a referral application.

The Committee has recommended that the report also includes:

• information about Treaty settlements that relate to any land, species, or other resources within the project area;
• any protected customary rights or customary marine title granted within the project area;
• any applicant groups under the Marine and Coastal Area (Takutai Moana) Act 2011 that seek recognition of customary marine title or protected customary rights within the project area; and
• whether the project area would be within or adjacent to, or the project would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou and, if relevant, the provisions of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.

However, any wider references to the principles of the Treaty remain absent from the Bill as recommended by the Majority (for example, references in the Bill to Part 2 of the RMA are required to be read as if that part did not include section 8 RMA).

Expert panel members, skills, and experience

Up to four members can make up an expert panel, which would be established to consider and make decisions on the approvals sought. Concerns were raised by submitters that the Bill did not provide enough assurance of expertise and quality decision making. The Committee agreed that there should be more skills and experience required of members on the panel, to ensure robust decision-making.

As such, the Committee recommended that the members of a panel should collectively have the knowledge, skills, and expertise relevant to the approvals sought (rather than relevant to the purpose of the Bill, as previously drafted), and expertise in environmental matters (which was not required before). The Committee also recommended changes to ensure that the panel membership includes at least one member who is suitably qualified in te ao Māori and Māori development (rather than just an understanding of ti Tiriti / the Treaty, tikanga, and mātauranga Māori).

Interestingly, the requirement to have an iwi nominated member on the panel has been removed. The Committee saw this change as avoiding overlap or duplication, on the basis that other parts of the Bill such as Schedule 3, clause 5 (which requires iwi or hapū participation, notification, and consultation in relation to hearings and other procedural matters) and the overarching obligation to act in a manner consistent with Treaty settlements and customary rights, would ensure that Māori rights and interests are considered in decision-making processes.

Default lapse date increased to 5 years

One of the concerns raised by potential applicants with the Bill as introduced was the short lapse date of two years – effectively meaning that projects needed to be ‘shovel ready’ when they applied. The Committee agreed that a two-year lapse period may be insufficient in some cases and that the Bill should allow some discretion.

For that reason, the Committee recommended that the expert panel should specify the date on which a resource consent or designation would lapse unless given effect to, with a minimum lapse period of two years. Where the panel did not set a lapse period, a default lapse period of 5 years would apply.

Public participation remains limited

One of the criticisms of the Bill was the lack of provision for public consultation on projects. Clause 20 of the Bill as introduced specified that public and limited notification would not be permitted. The clause instead identifies specific persons and groups that the expert panel could, or would be required to, seek written comments from.

The Committee agreed that there may be circumstances where broader public consultation on a project would be beneficial, and noted that the Bill would not prevent an applicant from engaging with the public outside of statutory processes. However, the Committee only recommended minor amendments to the clause (with public participating remaining limited):

• requiring the same list of persons and groups to be invited to comment for both listed and referred projects;
• removing reference to specific ministerial portfolios and instead requiring the expert panel to seek comments from relevant portfolio ministers;
• removing reference to the Director-General of Conservation and Heritage New Zealand Pouhere Taonga, and instead referring to all relevant statutory or other bodies or departments; and
• removing reference to the New Zealand Infrastructure Commission.

Timeframes for decisions remain tight

The Bill is all about making timely decisions. The timeframes for decisions as introduced were tight, and commentators on the Bill were concerned that those deadlines were not sufficient for the complexity of projects which would be crossing the expert panels’ desks.

Despite this, the Committee recommended that the timing of the panel’s decisions be retained (25 working days after receiving comments). Recognising that some projects would be more complex than others, the Committee has recommended that the panel convenor be able to extend the timeframes, if the scale or nature of matters raised is such that the panel is unable to issue its decisions within that timeframe. There is no maximum extension period specified whereas as introduced, the panel could only extend the timeframes by an extra 25 working days.

Minister to consider impacts of projects on international obligations

Submitters raised concerns that decisions made under the Bill could be inconsistent with several of New Zealand’s international obligations and targets including, the United Nations Convention on the Law of the Sea, the Global Biodiversity Framework, and the Paris Agreement on climate change.

Accordingly, the Committee recommended that the Ministry of Foreign Affairs and Trade and the Ministry for the Environment develop supplementary guidance for the Minister and the expert panel to help them identify the relevant international obligations that may apply to consent applications as they consider them. Whether the guidance will be effective remains to be seen.

Fast-track determinations will limit considerations for Public Works Act objections

The Bill as introduced proposed to amend the Public Works Act to allow the Environment Court to accept any determination from the fast-track process about the adequacy of consideration of alternative sites, routes, or methods, whether or not the parties consented.

The Committee considered that the intent of this modification is to increase efficiency by limiting the objections that can be made to fast-tracked projects. To better align with that intent, the Committee recommended that the Bill require the court to accept the determination of the expert panel (the previous wording gave the Court discretion).

Dissenting views

The Labour, Green, and Māori parties (as well as Darleen Tana as a former independent member) provided dissenting views on the Bill, all citing similar reasons. Including that:

• The purpose of the Bill overrides environmental protections;
• The Bill does not “take into account” or “give effect to” Te Tiriti o Waitangi/The Treaty of Waitangi;
• Projects that have been previously declined and prohibited activities should not be able to apply to use the fast-track process;
• There is limited mana whenua and community participation throughout the process;
• The Bill does not take into account New Zealand’s domestic and international climate change obligations; and
• Local district and regional plans can be overridden.

Next steps

Now that the Select Committee has reported back, the Bill will have its second and third readings, with the intention of it being passed before the end of the year.

This article was written with the assistance of Hermione Kemp, a Solicitor in the Wellington Environment and Planning team.