The much-anticipated Environment Select Committee’s report on the Fast-track Approvals Bill has been released for consideration by Parliament, approximately six months after the close of submissions. This report makes recommendations for changes to the Bill, including to address some of the more controversial aspects. However, the substance of the Bill has mostly been retained.

The report demonstrates that there was a clear divide between Committee members, with the report split into majority and dissenting views. 

The Committee’s changes will be considered by the House in the Bill’s second reading in November, with the Bill expected to pass before the end of the year. The Fast-track shop will then be open for business, with 149 projects already given the green ‘referral’ light to file applications. 

In this article, we recap ‘where we are at’ with the Bill and highlight the key changes recommended by the majority of the Committee. 

A recap on where we are at

In April 2024, the Committee received approximately 27,000 written submissions from individuals and organisations on the draft Bill. In May, submitters were provided an opportunity to be heard. 

Our previous News Alerts have provided an overview of the Bill in its original form, and described changes announced by Cabinet to the Bill since its first reading. Cabinet’s proposed changes were provided to the Committee, who were given the option to accept or reject the amendments. Most of these amendments were carried through to the final report. 

Many of you will also be aware of the separate process running alongside the development of the Bill enabling project owners to apply to an independent Fast-track Projects Advisory Group for their projects to be listed on one of two schedules to the Bill. Schedule 2A was proposed for projects which would be directly referred through the fast-track process under the Bill, and Schedule 2B for projects recognised as having national and regional significance. The Advisory Group issued its recommendations as to which projects it considered should be included on each list on 2 August 2024, and on 6 October 2024 Cabinet released the final Fast-track Approvals Project list. 

A total of 384 projects applied to be considered for inclusion in Schedule 2A and 2B of the Bill. Applications were primarily lodged for urban development projects (40%), infrastructure (24%) and renewable energy (18%). In lesser numbers, applications were also lodged for primary industries (8%), mining (5%) and quarrying (5%). Cabinet agreed to list 149 infrastructure and development projects with significant regional or national benefits into ‘Schedule 2’ of the Bill (previously Schedule 2A), alongside a decision to scrap inclusion of ‘Schedule 2B’. Projects listed by Cabinet generally reflect the ratio of applications by sector. 

Key changes recommended in the Select Committee report

The key changes to the Bill recommended by the Committee include:

• A purpose focused on outcomes over process: Amendments to the purpose statement to remove the express requirement to provide a fast-track decision making process are recommended, because the Committee considered that the purpose could be seen as too focussed on providing speedy decisions, over seeking high quality outcomes. The purpose now provides only that the Act will facilitate the delivery of infrastructure and development projects with significant regional or national benefits. 

• Minister for Infrastructure to refer applications: To streamline the referral process, it is recommended that all referral application decisions are made by the Minister for Infrastructure (Minister), instead of jointly by the Ministers for Infrastructure, Minister for Transport and Minister for Regional Development (Joint Ministers). The Minister for Infrastructure must invite comments from other Ministers when making a referral decision, including the Minister for the Environment. 
• Changes to eligibility criteria for projects: The Committee has recommended an addition to the criteria the Minister will need to consider when determining whether to refer a project. This includes an addition to recognise the continued functioning of existing regionally or nationally significant infrastructure as projects of significant regional or national benefit, such that maintenance and upgrading projects, may be referred through the Fast-track process. The Committee has also recommended that the Minister may now also consider any other matters they think relevant when assessing a referral application. 
• Ineligible activities for reconsideration: The Committee has recommended that the Government consider making some electricity generation and transmission activities eligible for Fast-Track on high-value conservation land but did not amend the Bill to provide for this. Mining activities are already eligible on high-value conservation land, but all other ‘non-mining activities’ are not.
• Treaty settlements and obligations under Te Tiriti: In considering a referral application, the Minister must obtain and consider a report about any Treaty settlements or other obligations that affect Māori interests. Recommended amendments seek to ensure this report is more comprehensive, expanding the scope of potentially relevant considerations regarding Māori interests. Further, for directly referred projects, this report must be obtained by the EPA for consideration by the Expert Panel. 

• Removal of ability to seek fast track approval for change or cancellation of consent conditions: Unlike the Covid 19 Recovery Fast Track Consenting Act, the draft Bill provided the ability for an applicant to use the Fast-rack process to seek a change or cancellation of the conditions of an existing resource consent. The Select Committee has seemingly removed this ability. However, there is no commentary on this change in the report and it is not clear if it was intended. The majority has, however, clarified that variations to Fast-track approvals will be determined by standard decision-making processes. However, any application to vary an approval will be subject to the tests and considerations in the Bill.

• Expert Panel to make decision on approvals: The Committee has accepted Cabinet’s recommendation to move the decision-making powers from the Joint Ministers to an Expert Panel. Submitters were strong in their opposition to decision-making by the Joint Ministers due to concerns regarding bias and potential lobbying. The new arrangement is intended to give confidence that decision-making is independent, objective and well informed. 
• Requiring adequate knowledge, skills and experience of the Expert Panel: Many submitters were concerned that the Bill lacked an assurance that the Expert Panel would be made up of experienced decision makers with the relevant skills and expertise relevant to the project being considered. The Committee recommends changes to the Bill to require the appointment of Panel members with the knowledge, skills and expertise relevant to the approvals sought in the application, and with expertise in environmental matters. 
• Removal of requirement for iwi appointment to Expert Panel: The original Bill provided for one person on each Expert Panel to be nominated by the relevant iwi authorities. The Committee has recommended removal of this requirement. However, the Bill has also been amended to ensure that one member of each Expert Panel is suitably qualified in te ao Māori and Māori development. 

• Process for parties to provide written comments on applications: To improve clarity the Committee has recommended that the same list of persons and groups are invited to provide comments on applications for approvals for both listed and referred projects. Where approvals are relevant to conservation matters, the New Zealand Conservation Authority, conservation boards, New Zealand Fish and Game Council and the Game Animal Council will be invited to comment. This reflects each conservation groups’ statutory responsibilities for their areas, and to ensure conservation, hunting and fishing interests are represented. 
• Increased timeframes: Amendments to specified timeframes are recommended to improve the quality of information received, and the quality of decision-making. For example, the timeframe for invited parties to provide comments on an application has been increased from 10 to 20 working days. The timeframe for an Expert Panel to make a decision has been retained at 25 working days after the date specified for receiving comments on an application, however, a new clause has been recommended to enable an Expert Panel to extend the time frame as it thinks fit for complex projects. 
• Criteria for assessment of consent application: The Committee has sought to clarify the provisions relating to the criteria for assessment of consent applications. In doing so, the Committee has recommended that of all the relevant criteria the greatest weight is to be given to the purpose of the Bill.
• Grounds for declining applications: A new provision has been recommended which provides that an approval may be declined where the “adverse impacts” (which include any matter considered by the Panel) outweigh the purpose of the Act, even after conditions are imposed. 
• Controls of conditions: A new clause has been recommended which provides that a Panel must not set conditions that are more onerous than necessary to address the purpose for which the condition is set. This is consistent with the intention of the Bill for Expert Panels to give the greatest weight to the purpose of the Bill in assessing an application for approval.
• Reinstating a default lapse period of five years: A two-year lapse period for approvals was specified in the Bill. The Committee considers this would likely be insufficient for some more complex projects to break ground. The Committee has recommended that the default lapse period of five years currently used as the benchmark in standard consenting processes should apply. However an Expert Panel will retain the discretion to set a different lapse period, and the minimum will continue to be two years. 

The dissenting view is strong and critical 

The dissenting members of the Committee did not hold back in expressing their views. 

• Although Labour was responsible for drafting the original fast-track legislation on which the Bill is broadly based, the dissenting Labour party members have made clear their view that this Bill is distinctly different, calling it the “the most radical and unbalanced consenting regime in living memory”. They considered that significant amendments are needed to ensure the purpose of the legislation promotes sustainable management, and that projects should be limited to those that provide significant public (rather than private) benefits. 
• The dissenting Green Party members expressed concern that the Bill empowers Expert Panels to override democratically agreed district and regional plans and environmental protections, particularly because activities designated as prohibited activities will be consentable. 
• The dissenting Te Pāti Māori members opposed the Bill on the basis of its purported violation of core tikanga values including rangatiratanga, mana motuhake, oranga whenua and mana mokopuna.

The dissenting members are also generally concerned with the resurrection of “zombie projects”, where previously declined consent applications are provided a new opportunity to seek consent under the Bill. These dissenting opinions also highlight the possibility that the Act could be the subject of immediate review by a future government. 

What’s next? 

Over the next two months, the Bill will be debated in second and third readings. The final Fast-track Approvals Act is expected to crystalise by the end of the year. We are closely watching this space and will provide our next update when the Act achieves Royal Assent. 

This article was co-authored by Imogene Jones, a Solicitor in our Environment team.