Submission on the Fast-track Approvals Bill

Legislative basis for the New Zealand Conservation Authority’s submission

1. The New Zealand Conservation Authority / Te Pou Atawhai Taiao o Aotearoa (Authority, NZCA) is established under the Conservation Act 1987 (Act), with members appointed by the Minister of Conservation. It is an independent statutory body.
2. The Authority’s role includes investigating and advising the Minister or Director-General on nature conservation and other conservation matters of national importance, in either approving or advising on statements of general policy under national parks, conservation, and wildlife legislation, and in approving conservation management strategies and plans. The Authority has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”
3. The Authority submits on the Fast-track Approvals Bill (the Bill) in accordance with above powers and functions.

The Authority’s submission

4. Overall, the Authority is extremely concerned about the Bill, in particular the changes it makes to activities affecting conservation lands and waters. With respect to listed projects, the Bill applies to all public conservation lands.  For referred projects, it applies to at least 60 per cent of public conservation lands.[1] The Bill drastically weakens the processes and criteria applying to decisions on whether commercial activities can use the conservation estate.   
5. The Bill’s processes and criteria will not enable decisions that support conservation values, particularly in relation to the protection of New Zealand’s endemic indigenous flora and fauna.
6. The Bill overturns nearly 80 years of a bipartisan political approach to environmental management in New Zealand, commencing with the Soil Conservation and Rivers Control Act 1941. A considerable amount of time and effort has been spent by tangata whenua, the public, experts, judiciary, and many organisations over the years on the Conservation Act 1987, Resource Management Act 1991 (RMA), their associated plans, policy documents and strategies, and more recently the Natural and Built Environment Act 2023. The Bill effectively dismisses the common ground established in this time between developers, conservationists, government agencies, and governments.
7. The purpose of the Bill [2] is to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits. The Authority urges the Select Committee to amend the Bill’s purpose to reflect a broader focus that encourages sustainable development in a manner that protects New Zealand’s unique environment. In relation to proposals involving access to the conservation estate, the Bill’s purpose must recognise that the Crown holds conservation lands and waters, and all indigenous flora and fauna within it, on trust for the benefit of mana whenua and all New Zealanders. Development proposals should only be facilitated where they are consistent with the interest of the public and mana whenua in, and the conservation values of, public lands and waters.
8. The Bill recognises Treaty settlements and recognised customary rights, but does not provide for broader Treaty obligations to be upheld. The Authority is committed to its obligation under s 4 of the Conservation Act, to interpret and administer the Act so as to give effect to the principles of the Treaty of Waitangi. The relationship of mana whenua with Aotearoa’s protected areas is different to the broader public interest in those areas.  Protection of the relationship of Māori with their taonga was guaranteed by the Treaty. Taonga and mahinga kai have been destroyed and the mauri of wai degraded across most developed areas of Aotearoa. The conservation estate is the kete where these values persist, and this is a significant factor in addressing cultural loss. The Bill enables the destruction of taonga and does not ensure that decisions affecting land and waters held under the Conservation Act will give effect to the principles of the Treaty.
9. Most applications considered under the fast track will be assessed by an expert panel.[3] Expert panels are directed to take into account the purpose of the Bill and considerations under other legislation, but to give more weight to the purpose of the Bill.[4]  The Authority understands this to mean that panels must prioritise facilitation of “the delivery of infrastructure and development projects with significant regional or national benefits” over the purpose and principles of the Conservation Act, RMA, EEZ Act, and Wildlife Act.  That understanding is reinforced by the criteria for assessing the various approvals required under those Acts.
10. The Authority is concerned that this approach will not protect nature. Further, it is inconsistent with New Zealand’s international obligations under the Convention on Biological Diversity and Kunming-Montreal Global Biodiversity Framework, the Convention on Migratory Species of Wild Animals, the Ramsar Convention on Wetlands, and the United Nations Convention on the Law of the Sea. In general terms, all of these international legal conventions oblige States to maintain or protect the environment and to enable development that is consistent with that maintenance or protection. The Bill does not prioritise the environment.
11. The Bill is also inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples. The Ministry of Foreign Affairs and Trade has stated that "Aotearoa New Zealand is committed to upholding the rights affirmed in the Declaration. The right to self-determination – a cornerstone of UNDRIP – can only be achieved if Indigenous Peoples can effectively participate in decision making processes that affect them, including at the United Nations” and "In Aotearoa New Zealand our founding constitutional document, the Treaty of Waitangi, sets out the values that we must apply in advancing Indigenous rights in our country.  The values of kaitiakitanga (guardianship), manaakitanga (generosity and care) and whanaungatanga (connectedness) tell us that Māori must be front and centre of decision making on issues that are important to them." [5]
12. The Authority notes that there has been no assessment of the policy contained in the Bill against New Zealand’s international obligations, other than for the United Nations Convention on the Law of the Sea (UNCLOS).[6] It strongly recommends that this analysis is undertaken, and that the Bill is amended for consistency with international law.
13. The Bill also appears to be inconsistent with the NZ-UK Fair Trade Agreement [7] and with the Indo-Pacific Economic [8]
14. Any proposals that affect the World Heritage sites of Tongariro National Park and Te Wāhipounamu South-West New Zealand, may be inconsistent with the World Heritage Convention (1972) [9], in particular to protect and conserve “… to the utmost of its own resources … “.
15. Similarly, the Authority urges the Committee to make amendments necessary to align the Bill with New Zealand’s international and domestic commitments to reduce carbon emissions and achieve emissions reduction targets.
16. The Authority is troubled by the role of the joint Ministers of Transport, Regional Development, and Infrastructure in making referral decisions for activities on conservation areas. The Minister of Conservation is only specified as a joint Minister for Wildlife Act and relevant Crown Minerals Act referral decisions.
17. The paucity of information that applicants are expected to provide for Referred Projects (Part B) is very concerning. For example, an application only needs to contain “… a general level of detail; about the different approvals required [10]”. Similarly, a description of “… the anticipated and known adverse effects of the project on the environment “[11] or “an outline of the types of resource consents and designations” [12] are not required to provide the detailed information that would be expected of a major project. To assess the regional and economic significance of a project, the criteria for a ‘Referral application’ should include an economic analysis of the project over its total life including the costs of decommissioning or site rehabilitation.
18. Related to the above, there is no requirement for the applicant to demonstrate their ability to finance the project applied for. Over the last century we have noted concession applications for projects that seemed more likely to be sought in order for the grantee to on-sell the consents than undertake the work.[13] We seek that the financial ability to fund a project be a requirement for a project, including a bond to remediate any damage caused by the project.
19. The Authority is extremely concerned that the Ministry for the Environment is not releasing information on listed projects to the public until after the Bill is enacted. This demonstrates a shocking level of disregard for official information law and democracy.
20. With respect to assessments and decisions on applications for resource consents, notices of requirement, and marine permits under the EEZ Act, the Authority is concerned at the de-prioritisation of environmental considerations, and absolute priority given to facilitating the Bill’s pro-development purpose. The Authority considers that this approach will enable approval of projects that would cause significant environmental harm.
21. With respect to Schedule 5 (process relating to Conservation Act 1987 and Reserves Act 1977), the Authority’s concerns are that:
• It is doubtful that the Minister of Conservation would be able to attract competent, respected members to appoint to the Conservation Expert Panel. We doubt that any competent expert would be willing to accept appointment to a panel that will have inadequate time to conduct a proper investigation, bound by decision-making criteria that make conservation values subservient to facilitating development. The Authority anticipates the appointment of second-rate ‘experts’ to meet demand.
• Public notification of concessions is not allowed. The conservation estate is held by the Crown on trust for the benefit of mana whenua and all New Zealanders, and accordingly they should be entitled to comment on significant proposals affecting conservation lands and waters.
• The matters that a panel must consider when assessing a concession application[14] are very narrow and seem to exclude most relevant matters concerning conservation.
• The matters that the Minister must consider[15] are different to the matters that a panel must consider and are different to those in the Conservation Act. Those differences mean that the Bill will not ensure conservation values are protected. For example, concessions could be granted even where they are contrary to a conservation management strategy (CMS) or the purpose for which conservation land is held. The Minister only needs to have regard to CMSs and conservation management plans (CMPs) that have been co-authored or approved by a Treaty settlement entity, which excludes most provisions in most CMSs and CMPs and will be unworkable in practice.  It also means that mana whenua with unsettled Treaty claims are excluded from the process.
• Stewardship land, including land held under s62 of the Conservation Act, comprises some 30% of public conservation land, or over 2.7 million hectares. It is held for “conservation purposes” until it is reclassified; however, it is not protected in the Bill. This omission is serious, noting that in the last few years expert panels have identified considerable parts of stewardship lands on the West Coast to be worthy of recommending for inclusion in national parks, historic reserves, and conservation parks. Because those recommendations have not been implemented, and because the review has not occurred in the remainder of New Zealand, the conservation values of much stewardship land remain unknown, and so it therefore needs to be granted the same protection as national parks until it is reclassified. That so much of this land is still to be reclassified is an indication that the issues involved are complex and fraught, and so need to be addressed carefully. Stewardship areas should be excluded from the Bill until they have been reviewed and formally classified under the Conservation Act, National Parks Act or Reserves Act.
• The Bill allows land exchanges of any conservation land [16] even when that land is specially protected. The Conservation Act’s land exchange provisions were deliberately restricted to stewardship areas, consistent with the permanent protection intended for specially protected areas. 
• The Bill would allow money received by DOC to be taken into account in determining whether a land exchange should go ahead (whether or not the exchange of land and money will enhance the conservation values of land managed by the Department of Conservation). The Authority strongly opposes the effective sale of the conservation estate through this mechanism.
• The Authority is concerned that there may be insufficient time in a fast-track process for the Department to prepare the reports on conservation values that provide a key input for concession and land exchange decisions.
• The Authority is not aware of any rationale for the proposal to enable conservation covenants to be revoked or amended through a fast-track application[17], and does not support this proposal.
22. Regarding the Schedule 6 Process for approvals under the Wildlife Act 1953, the Authority is concerned that:
• There will be insufficient time within the panel’s mandated timeframes for preparation of the report on risks to wildlife that cl 1 anticipates the Director-General preparing.
• The Bill allows effects on absolutely protected wildlife to be offset or compensated for, when such effects should not occur in the first place if they would impact highly vulnerable species.
• Wildlife permits may be granted where they are not for the purpose of protecting wildlife, contrary to the status quo under the Wildlife Act.
23. Regarding the Schedule 7 Application process for archaeological authority under Heritage New Zealand Pouhere Taonga Act 2014, the Authority is concerned that:
• The joint Ministers only need to impose a condition requiring an archaeological investigation, if they are satisfied “on reasonable grounds” that it will provide “significant information in relation to the historical and cultural history of New Zealand”. This gives a discretion to non-experts to over-ride advice they may receive from the Māori Heritage Council or Heritage New Zealand Pouhere Taonga.
24. Regarding the Schedule 10 Process under Crown Minerals Act 1991, the Authority is extremely concerned that the Bill:
• Does not provide “ineligibility criteria” for listed projects.
• Enables referral of mining proposals in areas that are listed in Schedule 4 of the Crown Minerals Act, such as national parks.[18] That goes against statements by MFE that Schedule 4 areas are not covered by the Bill.
• Makes policy statements or management plans of the Crown in relation to the land (which would include CMSs and CMPs for conservation areas) merely matters that the Ministers “may consider” when deciding whether to grant an access arrangement.
• Excludes public notification. The Authority considers that this exclusion is unwarranted given the potential for mining activities to have major effects on the conservation estate.
25. The Authority seeks all amendments to the Bill necessary to address the concerns listed above.
26. The Authority wishes to speak in support of its submission.

An alternative vision for Aotearoa New Zealand

27. The Authority supports the vision for Aotearoa New Zealand identified in Te Mana o Te Taiao, the Aotearoa New Zealand Biodiversity Strategy. Any legislation authorising development proposals that may impact nature should ensure consistency with the Strategy.

Sources for NZCA analysis

28. The Authority’s submission is based on its analysis of:

• Fast-track Approvals Bill 2024 (Government Bill)
• Departmental Disclosure Statement dated 1 March 2024
• Beehive media release dated 3 April 2024: Project applications for Fast Track open today
• Wildlife Act 1953, Conservation Act 1987, Reserves Act 1977, Resource Management Act 1991
• Te Mana o Te Taiao, Aotearoa New Zealand Biodiversity Strategy.
• NZ-UK Fair Trade Agreement
• Indo-Pacific Economic Framework

Appendix 1 – breakdown of how the Bill applies to the conservation estate with respect to referred projects other than mining*

*Statutory criteria designating some public conservation areas “ineligible” do not apply to listed projects

*Mining is not excluded 

The breakdown below was prepared by the Department of Conservation

[1] See breakdown in Appendix 1.  It is not clear if mining on Schedule 4 areas is able to be authorised (see discussion at paragraph 22 below).  If it is, the Bill applies to the entirety of the conservation estate.

[2] Clause 3.

[3] It is not clear whether Panels have a role in assessing applications for access arrangements on Crown land, under the Crown Minerals Act.

[4] Schedule 3, cl 1.

[5] https://www.mfat.govt.nz/en/media-and-resources/expert-mechanism-on-the-rights-of-indigenous-peoples-new-zealand-national-statement/#:~:text=Aotearoa%20New%20Zealand%20is%20committed,including%20at%20the%20United%20Nations.

[6] Departmental Disclosure Statement at 3.1.

[7] Art 22.4(2) and 22.12.6(d).

[8] Art 3.2, Art 3.3, Art 12,2, Art 12.5, Art 22.

[9] Art 4 and 5.

[10] Clause 14(2)(b).

[11] Clause 14(3)(e).

[12] Clause 14 (3)(s).

[13] A case in point was the often-proposed Haast-Hollyford Road that purported to speed up tourist traffic but was more likely to have been intended for a miner with the Red Hills in their sights.

[14] Schedule 5, cl 5.

[15] Schedule 5, cl 6.

[16] Excluding, in the case of referred projects, Schedule 4 Crown Minerals Act lands and waters.

[17] Schedule 5, cls 22-23.

[18] Clause 18(f) and Schedule 10, cl 3.