Fast-track law changes no panacea for critics

Substantial changes to the Fast-Track Approvals Bill see some authority transferred to expert panellists, but gatekeeping power still rests with one minister.
On Sunday, RMA reform minister Chris Bishop and regional development minister Shane Jones announced a suite of changes to the fast-track bill. Headlining the announcement was a suggestion by Cabinet to leave the final say on development projects with an expert panel rather than three ministers. 
Removing ministerial override answers one criticism of the bill, but concerns around the Government’s wider approach to the environment extend beyond the confines of the fast-track.
On the first day of oral submissions for the fast-track bill, Forest & Bird’s chief executive Nicola Toki warned of a bait and switch: “Removal of ministerial override is meaningless unless environmental protections and public participation in existing legislation is retained. I want to make that really clear: that can’t be the only thing.” 
Other submitters pointed to legal vulnerabilities, Treaty obligations and a lack of environmental provisions as their chief concerns. Most submitters touched on the implications of ministerial override. No one supported the bill in its current form, including Federated Farmers. 
Since April, Bishop has consistently alluded to “sensible changes” to the bill. Toki’s remarks have hung in the air, finally landing in reality on Sunday when the ministers outlined exactly what changes would be recommended by Cabinet.
Bishop said “one of the major themes coming through the submissions was that submitters wanted the panel to have the final say. So we have agreed with those submissions.”
But beyond that, applicants would now also have to include prior court rulings in their application, consultation deadlines would be extended, and the panel would have reserved seats for environmental and iwi voices.
Each change contained its own limitations. An expert panel would now have the final say, but the membership of those panels would ultimately be decided by the government and a panel convener. An iwi representative would have to be there, but only when required by a Treaty settlement. The panel could shoot down a project, but that project could still reapply. And the bill’s purpose was not changed to include mention of the environment.
The panel will also be able to review the list of projects baked into the legislation, which have still not been made public. Bishop clarified on Sunday that a total of 384 applications came in, dominated mostly by housing and urban development projects.
Jones chided the “historical hobbits” who thought the bill was “purely for mining”, saying only five percent of the applications were for mining and the same for quarrying. That translates to 19 applications per category, but does not consider the relative impacts of a mining operation versus a housing project, for example. 
Bishop said further details on those projects would come later. In the meantime, a committee has been tasked with ranking the project applications for inclusion in the bill. Their rankings will be presented to the Cabinet, where officials will have to weigh them against the political priorities of the Government. 
Concern for a quick pace has defined the fast-track’s growth. By nature, it is focused on speeding up decision making, but the decisions on how to actually achieve that objective have, themselves, been fast-tracked.
Official advice and feedback on the bill was itself limited in scope by tight deadlines – a complaint that was lodged by iwi, councils, companies and members of the public in their submissions. Short timeframes have made it difficult for anyone to fully consider the scope of proposed legislation. 
Jones acknowledged “there’s an ongoing niggle between the politicians and some of the government agencies, who feel that the pace of such a radical set of changes is such that they haven’t been able to to exercise a level of thorough oversight.” 
But he said the focus of the bill has shifted with time. Recently, the ‘fastest’ part of the fast-track has been the speed with which it has been drafted, consulted on and processed. The actual meat of the legislation has shifted away from speed and more towards certainty. 
Across its development, the ‘one-stop shop’ aspect of the bill has received hardly any criticism. A need to bundle consents for major projects has been widely acknowledged by submitters, even those who oppose the bill. Jones said the focus of the bill has moved accordingly: away from ‘fast-track’ and towards ‘one-stop shop’. 
In the process, Jones has lost two degrees of power. All three ministers involved, the third being Minister for Transport Simeon Brown, lost the ability to make a final decision. But Brown and Jones have now also been excluded from the entry point of the process, with the Minister for Infrastructure alone now responsible for screening incoming applications and recommending them to the panel. Jones said he was taking a “Shakespearean” approach to the adjustment: “All’s well that ends well.”
Bishop may be given responsibility for gatekeeping the process, but the suggested changes maintain a requirement to consult with other relevant ministers in doing so, including the Minister for the Environment.
By granting final say to a panel, fast-track architects sacrificed a degree of potential influence for a more secure future. Ministerial decisions can be challenged, while panel decisions are safe from judicial review, giving higher certainty to the sticking power of the outcome under this approach. This suggestion, with the others, will be presented to the select committee for consideration.
While one of the biggest concerns about the fast-track has been addressed, environmentalists are not celebrating victory. The bill’s purpose still does not contain provisions for consideration of the environment, and outside the fast-track, Bishop’s work on the Resource Management Act has sought many of the same objectives critics feared the fast-track would enable. 
While the priorities may be shared by Bishop’s two projects, Jones was adamant on making a distinction clear: the fast-track bill “is not Resource Management legislation. It is most certainly infrastructure development legislation.” While it may have the ability to overrule the RMA, Jones maintained the core purpose was to offer a one-stop shop for projects of national significance – not redefine national environmental policy. That’s Bishop’s job.
Under Bishop’s amended RMA, longstanding environmental backstops on freshwater pollution are set to be reconsidered. Other targeted amendments to the RMA would ease the consenting process of coal mines in wetland areas and loosen rules around intensive winter grazing.
Ministerial override may have been dropped from the fast-track, but it does not suggest the Government has turned over a green new leaf.