Yesterday, the government announced details on a COVID-19 Recovery (Fast Track Consenting) Bill (the Bill), allowing eligible projects to be fast tracked under the Resource Management Act (the RMA). The Bill comes as part of a COVID-19 rebuild plan to help get the economy moving and New Zealanders back into work.
The Bill will include:
Provision for some large-scale government-led projects to be listed in the legislation to go through the fast track consenting process,
Enable some works by government agencies to start “as of right" (presumably as permitted activities), and
The establishment of an RMA fast track process for public and private sector projects, discussed in further detail below.
A large number of other resource management policy changes had been on the government's agenda for reform in 2019 and 2020. However, the impact of COVID-19 on the government's timelines has meant that the government is now likely to need to assess and prioritise which of these reforms will be progressed prior to the election.
Overview of RMA fast track process
First, there is a Ministerial gateway for projects to pass. The Minister for the Environment will determine which projects will enter the fast-track resource consenting process with reference to criteria.
Consideration by Expert Consenting Panel
If a project is approved by the Minister then it is named through an Order In Council, and subject to consideration by an Expert Consenting Panel. Once a project is referred to the Panel there is a high level of certainty that the resource consent will be granted.
The Expert Consenting Panels will be chaired by a current or retired Environmental Court Judge or senior lawyer. The Panels will have expertise in resource management, technical project advice, environmental protection, tikanga Māori and mātauranga Māori.
The Panel will call for comments on the application (presumably with no hearings held). Environmental NGOs are anticipating they may be consulted. The Panel must issue its decision in 25 working days, which can be extended to 50 days for large-scale projects.
There are rights of appeal on points of law to the High Court and/or judicial review to the High Court, with one further right of appeal to the Court of Appeal.
RMA Bill and climate change
The Resource Management Amendment Bill (the Bill) is currently awaiting its second reading following consideration by the Environment Select Committee.
The Departmental Report (Report), issued by the Environment Select Committee last month, addresses the key topics covered in the Bill, including the winding back of changes made by the National Government (such as restoring public participation), amendments to resource management processes and enforcement provisions, and changes to freshwater management.
The Report also includes a number of recommendations which would bring climate change considerations (which have historically been kept separate from resource management analysis) into the scope of matters decision makers must take into account under the RMA. In particular, it is recommended to:
Amend the RMA to add emissions reductions plans (which will set out the policies and strategies for meeting the next emissions budget) and national adaptation plans (which will respond to the national climate change risk assessment and set out the government's objectives for adapting to the effects of climate change) to the list of matters that local authorities have regard to when making and amending regional policy statements, regional plans and district plans, and
Both of these changes would have commencement deferred to 31 December 2021 to align with the due date for publication of the first emissions reduction plan (except for decisions on proposals of national significance which have been called in by the Minister, to prevent proposals with significant emissions being brought forward).
For projects needed to assist New Zealand to meet its 2050 net emissions targets, or required for adaptation to minimise the impact of climate change on communities or infrastructure, these proposed amendments provide a strong signal that emissions reductions and climate change adaptation are important matters to be taken into account. As such, the proposed amendments are, in principle, complementary to the recent amendments to the Climate Change Response Act 2002 brought about by the passing of the Zero Carbon Bill in November last year.
That said, the proposed amendments could add complexity and uncertainty in project decision-making. For example, roading projects required to meet future transport needs (including for vehicles using electric and alternative fuels), may be drawn into discussion on traffic emissions, which may prolong hearing processes. However, the delayed commencement until further government guidance is available may go some way towards addressing this concern (depending upon its contents).
The Bill is currently well down the list on the Order Paper. However, Minister for the Environment David Parker has indicated that he is planning to pass the Bill under urgency with the Budget legislation. The final form of the provisions for the interface between the RMA and climate change is an area where we can expect to see ongoing debate.
Proposed National Policy Statements
A number of national policy statements (NPS) are also in the pipeline including the Proposed NPS for Urban Development, the Proposed NPS for Highly Productive Land, the Draft NPS for Indigenous Biodiversity, and the Draft NPS for Freshwater Management. There are also current Proposed National Environmental Standards for Freshwater.
Some of the changes brought about by these documents are significant and there is ongoing debate about whether the government should finalise these policy statements given the likely economic ramifications to businesses and industries that are already under pressure from COVID-19.
The Ministry for the Environment (MfE) has advised that the government is still aiming for both the Proposed NPS on Highly Productive Land and the Proposed NPS on Urban Development to take effect mid-2020. However, it has acknowledged that COVID-19 has meant that work programmes over the next few weeks and months may be subject to change. The MfE is still working through the submissions on the Draft NPS on Indigenous Biodiversity, following the recent public consultation period and has indicated that priorities and timings of workstreams will likely need to be reconsidered. In relation to the freshwater package next steps will be announced once Cabinet has considered them. MfE expects this will be before the election.
Therefore the extent of resource management policy change to come out of this parliamentary term remains uncertain. However, as resource management continues to be a hot political topic we can expect to see ongoing debate in this area for some time to come.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed, or your usual Bell Gully adviser.
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This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.