Mike Doesburg, Partner, Wynn Williams, looks at stone, sand and streamlined approvals.
The Covid-19 Recovery (Fast-track Consenting) Act 2020 (the Act) was a short-term measure implemented to stimulate the economy following the pandemic
The sped-up consenting process that it introduced has largely been viewed as a success, and while the Act has since been repealed, the Government has now introduced a Bill that will capitalise on the appetite for a faster consenting process.
The Act established new and faster processes, allowing expert consenting panels to make decisions on environmental approvals for qualifying projects. This Act was repealed on 8 July 2023, but remains in a state of suspended animation while the final projects are processed and determined.
Those who have participated will know that the fast-track consenting process is a wild ride – while it is a fast track, it is still a rigorous one. Applications are carefully assessed by expert panels, but compressed timeframes, reduced public participation and limited appeal rights mean quicker delivery of approvals.
To date, nearly 70 projects have been granted approvals under the Act, saving each project years that would ordinarily be spent in processing or litigation. A further 44 are being processed (including a new quarry and two quarry expansions).
Overall, the fast-track consenting process has been seen as a success and was to be retained as part of the reform package for the Resource Management Act 1991. While the current and previous government did not see eye-to-eye on many aspects of reform, they shared the view that the fast-track had a role to play in the future of our resource management.
While most of the RMA reform package was sent to the morgue when the coalition Government took power in late 2023, the parts relating to fast-track consenting were kept on life-support pending the passage of new fast-track legislation.
The Government promised to introduce new fast-track legislation within its first 100 days. On the 99th day, on 7 March 2024, the Fast-track Approvals Bill (the Bill) was introduced and read for the first time.
This Bill is best summarised by its purpose: “To provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits.”
The Bill sets up a “one-stop shop fast-track consenting regime”. It provides a speedy process for obtaining typical RMA approvals (resource consents, designations and certificates of compliance), but also other regulatory approvals required for infrastructure or development, including:
• Concessions under the Conservation Act 1987;
• authority to do anything otherwise prohibited under the Wildlife Act 1953;
• approvals under the Freshwater Fisheries Regulations 1983;
• concessions and other permissions under the Reserves Act 1977;
• an archaeological authority under the Heritage New Zealand Pouhere Taonga Act 2014; and
• marine consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012;
• Crown Minerals Act 1991 (section 61 or 61B land access provisions); and
• aquaculture activity approvals under the Fisheries Act 1996.
A wide range of projects will be eligible to use the new fast-track, including infrastructure, renewable energy, housing and mining projects. Criteria are outlined in the Bill and a key test is whether the project will have significant regional or national benefits.
Some projects will be listed in the legislation and can take advantage of the process from the day it becomes law, other projects can be referred by applying to the relevant Ministers. A process is currently underway to identify the projects to be included in the legislation.
Some projects cannot be referred, including activities on Treaty settlement land without written approval. However, in an interesting move, the Bill provides that fast-track approvals can be sought for activities that would ordinarily be prohibited under the RMA.
Under the RMA, resource consent applications cannot be made for prohibited activities – rather, proponents would first need to change the activity status in the relevant plan, then seek consent. The associated cost, litigation uncertainty and time makes that a rare endeavour.
Fast-tracked projects will be considered by expert consenting panels, in a process that is similar to the Act. Panels will seek comments from certain groups (including councils, Ministers, Maori groups and landowners) before considering the application.
After drawing up conditions and seeking feedback, panels will make recommendations to Ministers, all within a six-month timeframe. The Ministers for Infrastructure, Regional Development and Transport (and, in some cases, the Minister for Conservation is added to the mix) have the final say on whether to grant or decline approvals for the project.
The purpose of the Bill is a primary consideration for many of its processes, with the Bill’s purpose of facilitating infrastructure and development with significant regional and national benefit taking precedence over other considerations in other legislation.
Like the Act, there is no requirement to have a hearing or to seek input from the public. However, there are new obligations requiring applicants to engage with local councils and Maori groups, and provide details of that engagement with the application.
The final decision of Ministers can be appealed to the High Court on points of law, with the ability to seek leave to appeal further to the Supreme Court. The Bill does not limit any right of judicial review.
Cynically, while Environment Court appeals are avoided, there is still a risk that projects could be delayed by points of law appeals and judicial review of the range of statutory decisions provided for by the Bill.
The Bill’s 33 clauses provide the framework for how projects can be considered under the Bill, with nine of the Bill’s 13 schedules providing the detail of how various other approvals are to be processed and determined.
The short version: the Bill provides a fast-track process, not just for resource consents or designations, but for a wide range of other regulatory approvals. While expert consenting panels will still have a role and public participation and appeals remains limited, the ultimate decision will lie with Ministers.
What it means for the extractive industry
As is the case for many industries, the Bill provides an opportunity for extractive industries to have projects referred and determined using the fast-track. For the right projects, the saving of time and effort as compared to the “standard” track could be significant.
It is likely that quarrying and mining projects could be successfully listed or referred into the new regime. Such projects are likely to have significant regional and national benefits, and would support the development of natural resources (including minerals).
The Bill has been referred to the Select Committee (Environment), with a six-week period to provide written submissions (due 19 April 2024). It is inevitable that the Bill will draw criticism from multiple angles, but it has support across the coalition government so is likely to pass in the third or fourth quarter of 2024, possibly without much amendment.
Comment
The new fast-track process has a real prospect of delivering on its promise of cutting red tape and making it easier to obtain approvals for important projects. The features that stand out at this early stage are:
• The elevation of the purpose of the Bill above other considerations – under the Covid-19 fast-track process, the Act’s purpose sat alongside and equal with the purpose of the RMA with the goal of achieving economic stimulation as well as sustainable management;
• the ability to seek consent for prohibited activities – this is a major shift and any applications that seek to make use of that process are likely to be highly controversial; and
• the ultimate decision resting with Ministers – this introduces political influence to the system which may favour applicants, but it carries inherent risk with the spectre of judicial review.
We will be following the Bill closely, as should savvy operators with aspirations for new or expanded facilities.
