Bypassing the RMA on the journey to economic recovery

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Yesterday the government released the eagerly awaited details of its proposal to fast-track consenting processes for projects, aimed at kick starting New Zealand’s economic recovery. The new legislation, due to be passed in June, will largely remove the public submission and hearing process for those projects approved by the Minister for the Environment, David Parker. Instead, small panels of experts, chaired by an Environment Court Judge or senior lawyers, will decide whether consent should be granted. The proposed legislation will contain a two-year sunset clause and will be repealed in June 2022 if not before.

Ministerial statements suggest that the new legislation is aimed at facilitating large projects. Large infrastructure projects will no doubt play an important role in helping with the economic recovery, so it is important that these legislative changes provide functionality and are fit for purpose. The short-cut processes will not suit all large projects though - removing public input on projects which are controversial, impact private property rights, or are potentially city-changing would invite legal challenge and result in a less considered and robust outcome. The reality is that these more controversial projects have long design and procurement timeframes anyway, and are unlikely to create jobs for displaced tourism or retail workers.

Roading, rail, environmental restoration and ‘shovel-ready’ projects all stand to benefit from the proposed fast-track legislation. However, being ‘shovel-ready’ is not a pre-requisite. The Minister for the Environment has indicated that decisions will be issued within a 25 day or a 50 day timeframe depending on the level of complexity and size of the project. The legislation is also expected to name particular infrastructure projects which would automatically get the go ahead to go through the process, and some smaller ones that could start ‘as of right’.

The decision making panels will still need to apply Part 2 of the RMA and national policy direction (such as the New Zealand Coastal Policy Statement), but press releases suggest that there will be a high level of certainty that consent will be granted. The specific assessment matters the panel will have to take into account have not yet been confirmed by the Minister but the suggestion is that there will be some truncation. However, in lieu of public participation the panels may provide for input from some groups such as NGOs (Royal Forest and Bird and Greenpeace have been suggested), the private sector and regional and district councils.

With the short timeframes for decision making and absence of public participation, it will be crucial that the decision making process is robust. The Minister has indicated that Part 2 of the Resource Management Act 1991 (purpose and principles) would apply, along with existing Treaty of Waitangi obligations and national policy directions such as the Coastal Policy Statement. However, press releases also suggest that, once projects are directed to the specialist panels, there will be a high level of certainty that consent will be granted. We’re interested to see whether this increased certainty is achieved through the Minister’s careful choice or projects, or whether the legislation itself directs a rebalancing of considerations.

No mention has been made of speeding up compulsory acquisition powers under the Public Works Act 1981 (PWA). If private land needs to be acquired for any of the fast-track projects, this part of the process may cause delay. However, while the public may be willing to stomach limits on RMA involvement while the economy recovers, it is difficult to see how an economic downturn could justify greater interference with private property rights.

Diversifying the types of projects (and thus the expertise and parts of the workforce involved) will be key to ensuring success. New Zealand has previously experienced skill shortages in the construction sector, so there is limited value in pushing large and complex projects through only to have these come to a standstill later due to a lack of speciality staff and resources. A range of smaller scale “no regrets” maintenance and upgrade projects with limited consenting requirements and appropriately skilled workers ready to go might better achieve the government’s objectives. These could also be spread throughout New Zealand.

The ‘fast-track’ legislation has received support from both the Greens (until the first reading stage) and National. After the first reading it is still unclear if the legislation will be referred to the select committee, at which point submissions on the legislation will be able to be made.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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