Submission On The Fast-Track Approvals Bill
Submitter Details:
Email: contact@asianlegalnetwork.org.nz
Introduction
The Asian Legal Network (“ALN”) is a research and advocacy group. Our membership is composed of Asian peoples with a background in law who, as Tangata Tiriti, are committed to navigating Asian identities and furthering justice for Asian communities in Aotearoa.
We are submitting in opposition to this Bill because:
the Bill fails to uphold the Crown’s responsibilities under Te Tiriti o Waitangi;
the Bill undermines democracy, transparency and public participation; and
the Bill is harmful to the interests of Asian communities in Aotearoa.
Should the Bill proceed, we also make suggestions for amendments in the Appendix.
We wish to be heard in support of this submission.
Te Tiriti o Waitangi
We believe the Crown must uphold its obligations under Te Tiriti o Waitangi as a matter of justice and constitutional importance. The Bill fails to do this. The Bill undermines honourable kāwanatanga (Article 1) as well as tino rangatiratanga (Article 2). This is because the Bill concentrates power in the joint Ministers, and prevents hapū and iwi Māori from exercising meaningful protection over their many taonga, especially over their whenua and awa and the taiao, which are put at particular risk by fast-track consenting. Furthermore, the Bill discriminates based on an iwi’s settlement status. This undermines relationships with hapū and iwi Māori who have not yet settled with the Crown, thereby undermining Article 1.
In breaching these articles of Te Tiriti, we believe the principles of Te Tiriti - namely those of partnership, active protection and participation - are also breached by this Bill, alongside the principle of tino rangatiratanga.
The Bill also fails to mention Te Tiriti o Waitangi while also overriding all pre-existing legislation, including prior clauses relating to Te Tiriti o Waitangi and the Crown’s responsibilities. [1] The Bill’s inadequate protections will enable further breaches of Te Tiriti o Waitangi and thereby undermine race relations and social cohesion in New Zealand.
We underscore the seriousness of undermining Te Tiriti. For the ALN, Te Tiriti o Waitangi is important first as a matter of justice and law. The Crown derives its legitimacy to govern from Te Tiriti, and has undertaken to uphold Te Tiriti. Te Tiriti is therefore also foundational to our sense of belonging, as Asian peoples in Aotearoa. Belonging should also be viewed as a constitutional value, [2] with Asian peoples in Aotearoa having migrated here, under systems of the Crown. By undermining Te Tiriti, so too is our sense of belonging undermined.
Colonisation has led to historic and ongoing breaches of Te Tiriti. Colonisation is also the cause of poor race relations and social cohesion. This has also resulted in racism directed against Asian peoples. The honouring of Te Tiriti is therefore a necessary first step in addressing the root causes of racism, in order to build better race relations and social cohesion. The honouring of Te Tiriti is therefore in the interests of Asian peoples.
Democracy, Transparency, and Public Participation
Democracy and accountability
The concentration of decision-making power in the “joint ministers” will reduce accountability afforded by the systems that currently approve major projects. This concentration of power also makes the joint Ministers more susceptible to corruption, whether actual or perceived. [3]
In concentrating this power in the “joint ministers”, this Bill will further erode trust in both our administrative branch of government and our democratic institutions.
The Bill, at present, enables ministers to have the final say, and ignore the advice of expert panels, including prior rulings of the Environment Court. [4]
Ministers, who are also MPs, are vulnerable to lobbying by political donors and corporations with an interest in fast-track consenting, and open to accusations of corruption. This is particularly exacerbated for projects of large financial value, such as infrastructure and development, and where the Ministers have the final say, as is the case in this Bill.
A real-time example is the media coverage over whether the current Infrastructure Minister “invited” mining companies to apply to this fast-track consenting regime. [5] One mining company announced they had been invited to apply, which led to their share prices climbing over 25% in value. At the same time, schedule 2, which lists potential projects, remains blank. This demonstrates that certain projects are currently being considered and companies being approached without full transparency to the public. At the same time, the very perception of those companies’ inclusion into this process can economically benefit those companies. This raises concerns over the independence and transparency of the process.
Independent decision-making
Independent expert panels that honourably share power with hapū and iwi Māori should make decisions on major projects of regional and national significance with enduring effects. [6] Their independence shields the administrative function of government from politicisation, protecting against the risk of lobbying and accusations of corruption.
Such decisions should only be made after a robust analysis of the evidence gathered from all interested parties and experts. An independent panel is then best placed to assess the harms and benefits of such projects.
This process is more rigorous than holding Ministers accountable at the ballot box. Even if constituents are dissatisfied with projects, their concerns on particular projects are rarely considered at elections. Furthermore, the nature of the potential damage caused by large-scale projects is often created and irreversible, which an election cannot amend.
The ability to ignore the objectively assessed concerns of interested parties can therefore lead to environmental damage, further costs to taxpayers to fix said damage, and the burden falling on those living in the affected areas.
Transparency and public participationTransparency and public participation are important as cornerstones of democracy and are necessary to fulfil the purpose of this Bill. [7]
We are deeply concerned by the limited public consultation provided by for in this Bill, which we have alluded to above. Public participation is necessary for robust, meaningful decision-making as well as building faith in our democratic institutions. If the purpose of the Bill concerns “projects with significant regional and national benefits”, [8] then people living in those regions and the public at large must be notified when such projects are being considered. Without notice that applications have been submitted, the public is unable to consider whether such projects are beneficial. This impinges the ability of the panel to meaningfully undertake their task to assess whether such projects are in fact to the regional or national benefit, and thereby undermines the very purpose of the Bill.
In some instances, the Bill prohibits public notification, such as sch 4 cl 20, where a panel assessing an application under the Resource Management Act, is prohibited from giving public notice of consent applications. Other requirements for giving public notice under prior legislation are also removed, such as for applications concerning leases, licences, permits or easements under the Conservation Act 1977, [9] or applications to access Crown land and land in common marine and coastal areas, or to access Crown land for the purpose of accessing minerals that not the property of the Crown. [10]
Given the scale and financial nature of these projects, the long-term impacts whether beneficial or harmful to the public, there should be a positive onus to engage the public and include a public notification clause at every step of consenting.
Lastly, removing public notification also constrains the public’s freedom of speech, expression and open debate about projects that may have a direct effect on the places where they live and call home.
Interests of Asian Communities
While the interests of Asian communities are broad and diverse, there are common connections in belonging to Aotearoa, living on this land and experiences with colonisation and racism.
We reiterate that honouring Te Tiriti is in the interests of Asian communities, as a matter of justice, belonging, anti-racism, social cohesion and positive race relations. Legislation that undermines Te Tiriti by the Crown failing to uphold its obligations will be harmful to the interests of Asian communities.
The risk that the Bill will facilitate enduring damage to Aotearoa’s environment is not in the interests of Asian communities. Many Asian communities have migrated to Aotearoa for a better life for their children and their descendants to come, and this includes living in a healthy environment. Often, Asian communities have migrated from homelands that colonial, and now corporate, powers have irreparably damaged through short-sighted, excessive resource extraction.
There are now hundreds of thousands of Asian peoples who are born and raised here and call Aotearoa their home. A healthy environment is an important part of their economic base and their wellbeing. Risking our access to a healthy environment without a right to consultation is unjust to our communities.
Lastly, our Asian communities have a strong interest in a transparent and consultative process. The Bill’s removal of public notification and concentrating power in the Ministers will exclude Asian communities from the decision-making process. This undermines natural justice for Asian communities, and will be especially unjust for communities who are affected by projects permitted through this Bill.
Conclusion
We do not support the Bill. Even with the recommended amendments to the Bill in our Appendix, we do not believe the correct balance would be struck between efficient consenting and the rights of people, the environment and generations to come, as well as undermining the Crown’s responsibilities under Te Tiriti o Waitangi.
We also submit that this Bill is not in the best interests of Asian communities in Aotearoa, for the reasons laid out above.
We urge the Environment Select Committee to recommend that this Bill should not proceed.
We do wish to be heard in support of this submission.
We thank the committee for the opportunity to submit and the committee’s time in reading our submission.
APPENDIX OF SUGGESTED AMENDMENTS
We suggest the following amendments. Specifically, we support the inclusion of Tiriti clause. In addition, we submit that cl 25 and schedule 3 must be amended in their entirety to address the concerns of the concentration of power in the joint ministers and the role and composition of the expert panel. In particular, the final decision of projects should be vested in an independent, expert panel. The appointment and composition of that panel should be co-decided by relevant mana whenua, hapū and iwi Māori, alongside the responsible ministers.
Te Tiriti o Waitangi
Amend cl 6 to read: “Obligation relating to Te Tiriti o Waitangi, Treaty settlements and customary rights”. [11]
Insert at cl 6 to read: “…in a manner that is consistent with – … the articles and principles of Te Tiriti o Waitangi”.
Amend cl 13 to read: “Ministers must consider Te Tiriti o Waitangi, Treaty settlements and other obligations report”. [12]
Public consultation
Amend cl 17(2) to include the following paragraphs as criteria that the joint Ministers must consider:
“whether the project or any part of it would breach or be inconsistent with any article or principle of Te Tiriti o Waitangi”
“whether the project or any part of it will have detrimental effects on the environment”
Amend cl 21(2) to read: “The Ministers must decline an application, even if they are satisfied that it 20 meets the eligibility criteria, if —". This currently reads as: “The Ministers may decline an application, even if they are satisfied that it 20 meets the eligibility criteria, if the Ministers consider that—”.
Amend cl 21(2) to include the following paragraph in regards to when a Minister may decline an application: a project that must not include any activity that: “the project or any part of it would breach or be inconsistent with any article or principle of Te Tiriti o Waitangi”.
Amend cl 19(5) to read: “(5) Anyone who is invited to provide written comments under this section has 20 working days from the receipt of the copy of the application to do so.” [13]
Amend cl 18(a) by adding the following paragraph in regards to a project that must not include any activity that: “would breach or be inconsistent with any article or principle of Te Tiriti o Waitangi”
Panel
Amend sch 3 cl 7 (1) to read: “Each member of a panel must have an understanding of te Tiriti o Waitangi/the Treaty of Waitangi and its principles. The members of a panel must, collectively, have –”, and therefore remove cl 7(1)(c).
Resource Management Act
Amend sch 4 cl 16(1)(d)(i) to read: “sections 5, 6, 7 and 8 of the Resource Management Act 1991 and the purpose of this Act; and”. [14]
[The current wording omits section 8, which references Te Tiriti o Waitangi. This is problematic for the reasons stated above. Additionally, this is an odd drafting choice as all four sections represent Part 2 on “Purposes and Principles” of the RMA.]
Amend sch 4 cl 20 to read: “Public and limited notification permitted”. [15]
Amend sch 4 cl 20(1) to read: “A panel must give public notification of a consent application” [16]
Amend sch 4 cl 23 to read: “Hearing may be required: A panel is required to hold a hearing in respect of a consent application or notice of requirement if requested by one or more persons listed under cl 20(3) in respect of a listed project and under cl 20(50 in respect of a referred project.” [17]
Amend sch 4 cl 32 (1) (a) – (f) to read:
the purpose of the Resource Management Act 1991 set out in section 5 of that Act; and
the matters for consideration in section 6 of the Resource Management Act 1991; and
the matters for consideration in section 7 of the Resource Management Act 1991; and
the matters for consideration in section 8 of the Resource Management 25 Act 1991; and
the purpose of this Act;
the provisions of any of the following, if relevant, made under the Resource Management Act 1991:
any national direction:
operative and proposed policy statements and plans:
iwi management plans:
Mana Whakahono ā Rohe:
joint management agreements; and
the relevant provisions of the Resource Management Act 1991 or any other legislation that direct decision making under the Resource Management Act 1991 (see, for example, sections 104 to 107 of that Act and the provisions referred to in clauses 31 to 35)
Conservation Act 1977
Remove sch 5 cl 4 (b) and (c). Paragraphs (b) and (c) refer to declining applications that are “obviously inconsistent” with the Conservation Act and requirements for public notification. Both are in the interests of conservation, environmental protection and greater public engagement, which supports democracy. [18]
Heritage New Zealand Pouhere Taonga Act 2014
Amend sch 7 cl 4(2) to include a paragraph after “To avoid doubt –” to read: “nothing in this Act affects the Crown’s responsibility to give effect to the Treaty of Waitangi (Te Tiriti o Waitangi) as described in s 7”.
Crown Minerals Act 1991
Remove sch 10 cl 6, which removes public notification in certain cases of access to Crown land.
For instance, see Fast-track Approvals Bill cls 6 and 13, and sch 4 cl 16(1)(d)(i). We make recommendations to amend these clauses below in the Appendix.See: The Independent Working Group on Constitutional Transformation (2016) The Report of Matike Mai Aotearoa at 68-69 and 79-80.We use this term with the utmost care. We are proud of Aotearoa’s record on Global Corruption Perception Indices. This Bill will undermine Aotearoa’s standing on those indices.Fast-track Approvals Bill cl 25.See “Fast-track approvals: Minister's letter states some 'were invited to' apply” 12 April 2024 <www.rnz.co.nz>In honouring Te Tiriti o Waitangi, the exact structure of scope of decision-making power of these panels should be co-decided with hapū and iwi of the relevant area of the proposed project.Fast-track Approvals Bill, cl 3.Fast-track Approvals Bill, cl 3.Fast-track Approvals Bill, sch 5 cl 4(c): removing s 17SC of the Conservation Act 1977.Fast-track Approvals Bill, sch 10 cl 6: in respect of applications under ss 61 and 61B of the Crown Minerals Act 1991.This currently reads as: “Obligation relating to Treaty settlements and recognised customary rights”.This currently reads as: “Ministers must consider Treaty settlements and other obligations report”.This currently reads as: “(5) Anyone who is invited to provide written comments under this section has 10 working days from the receipt of the copy of the application to do so.”This currently reads as: “(i) sections 5, 6, and 7 of the Resource Management Act 1991 and 20 the purpose of this Act; and”. This omits section 8, which references Te Tiriti o Waitangi.This currently reads as: “Public and limited notification not permitted”.This currently read as: “A panel must not give public or limited notification of a consent application or notice of requirement.”This currently reads as: “Hearing not required: There is no requirement for a panel to hold a hearing in respect of a consent application or notice of requirement and no person has a right to be heard by a panel.”Conservation Act 1977, ss 17SB and 17SC.
Download the submission here.
On the 15th of May 2024, the Committee Secretariat for the Environment Committee took oral submissions from members of the public who had made submissions regarding the Fast-Track Approvals Bill. The Asian Legal Network had made a written submission against the Bill and were invited to make an oral submission the committee.