Just recently the GotB Executive prepared a submission to Parliament on the COVID-19 Recovery (Fast Track Consenting) Bill. Our submission, also presented orally by Yvonne Weeber, expressed concern about the lack of consultation with the wider community, the lack of reference to carbon reduction, and the need for a “greater good” context in which decision-making should be made. As much as we support the need for changes in regulation to enable our economic recovery, this should not be used to potentially aid polluters such as Wellington Airport International Limited, to push through environmentally and socially-destructive projects under urgency and without community consultation.
Below is the text of our full submission.
Submission by Guardians of the Bays to the
COVID-19 Recovery (Fast-track Consenting) Bill
Dr. Sea Rotmann, Chair of the Guardians of the Bays
Summary of our submission
Guardians of the Bays wish to make the following comments:
- The COVID-19 Recovery (Fast Track Consenting) Bill should not be passed without significant amendments being made.
- We acknowledge due to COVID-19 the government needs to undertake initiatives to recover the New Zealand economy. However, any initiatives must ensure participation in decision making under the Resource Management Act (1991) by the public and iwi. Appeal rights under the RMA must be maintained and protected. RMA applications should recognise the need to significantly reduce carbon emissions to protect our climate.
- Fast-tracking infrastructure projects to boost economic activity must not come at the expense of transparency, citizen engagement and protection for our environment and climate. The Bill appears to have bypassed a mandatory climate impacts assessment set up by the Government in 2019 where new laws are meant to be examined through a climate lens, to see if they will improve or worsen emissions.
- We are extremely disappointed that the submission period for this Bill is only five days. Given the highly shortened process for comments there are sure to be other flaws and omissions in the Bill. The RMA was designed to ensure citizens had the ability to submit on notified consents that directly or indirectly impact them. This legislation will significantly reduce the ability of public participation in RMA decision making processes. It is imperative that everyone is given enough time to share their thoughts on this Bill. Five days is not enough time for the Environment Select Committee to confidently say that the public has been meaningfully consulted.
Introduction to Guardians of the Bays
Guardians of the Bays is an incorporated society that represents over 500 concerned individuals as a broad-based residents’ group opposed to the proposal to extend the runway at Wellington International Airport Limited (WIAL). We represent the interests of many other groups, including residents’ associations, environmental and recreational groups and businesses. We are not a NIMBY group but include lawyers, politicians, policymakers, business owners, recreational clubs, marine ecologists, health professionals, architects, pilots and aviation professionals and several economists in our midst.
We do not believe that a proposed extension to WIAL will achieve the level of benefits needed to warrant the extensive investment required. We do believe that the social, cultural and environmental costs of the extension would be too high for Wellington residents and the users of the South Coast.
Background to RMA Fast Tracking and Guardians of the Bays
Guardians of the Bays have been involved in ‘Fast Tracking’ Resource Management Act processes in the past. In April 2016, WIAL lodged a fast-tracked resource consent application with the Environment Court to extend the runway by 355 metres, at a cost previously estimated at $330 million. The resource consent application was frequently put on hold to allow time for serious safety concerns raised by the New Zealand Pilots Association (NZALPA) to be resolved. For three years, Guardians of the Bay and all other submitters were put in a waiting position having to constantly front up to the Environment Court to be told of another delay. The NZALPA concerns were never resolved satisfactorily, resulting in WIAL withdrawing its consent application in April 2019 – after the Supreme Court ruled against them.
Through this failure of a fast-tracked resource consent process the Guardians of the Bays are of the view that all resource consents should be undertaken in a timely and considered manner.
Comments on the COVID-19 Recovery (Fast Track Consenting) Bill
The Guardians of the Bays Incorporated Society make the following comments on the COVID-19 Recovery (Fast Track Consenting) Bill.
- Inconsistent with the greater good response to the COVID-19 crisis
This legislation is entirely inconsistent with the government’s highly constructive dealings with the COVID-19 crisis. We believe the government’s success in dealing with COVID-19 can be largely attributed to an acceptance of the need for a ‘greater good’ response. The government could argue, quite rightly in our opinion, that their response has been (and continues to be) entirely consistent with their ‘wellbeing’ policies (and their wellbeing budget).
The acceptance of there being a ‘greater good’ context in dealing with environmental issues is now urgent. We believe that the proposed legislation limits the context of effects by narrowing the scope of recognition and deliberation. This Bill takes us back to a pre-RMA situation where the needs of mainstream culture and the economy dominated (at the expense of nature and local communities).
The purpose of the Bill (section 4) is very employment-focused, however, infrastructure projects provide few jobs per dollar invested compared to many other projects or activities. We also note that many infrastructure projects do not require RMA Consents due to existing designations.
- Public and stakeholder engagement
By-passing the public’s usual rights in consenting processes including public consultation, hearing processes and appeals to the Environment Court is unacceptable. We believe that this is a time when you need the public to be consulted, and COVID-19 is not a situation that justifies limiting public input. Prioritising speed and expediency of the RMA consenting process must not automatically preclude public participation, especially given the scale of infrastructure development that is being envisaged.
All citizens and community groups have a stake in protecting New Zealand’s environment and climate, not just the stakeholders listed under Schedule 6 clause 17. This schedule does not list Guardians of the Bays or any other local community or environmental group that could have concerns about an RMA consent being fast-tracked in their local area. At the very least it should create an ability for local groups who must be invited to comment on a referred project.
Evidence from community groups is important in resource consent decision making. We believe that the fundamental problem with the RMA has been the failure to adequately identify and account for the context of effects, or the failure to acknowledge the significance of that which will be affected. This has gradually been acknowledged by the Environment Court insisting on better ‘evidence’ in support of participants’ claims. Where there is a ‘contest of interests’ there are incentives for participants such as community groups to gather (and pay for) proper evidence and serve the ‘greater good’ of the community. This community greater good will not be served by this Bill.
- Extend the right to appeal
The Bill substantially limits the persons able to lodge appeals. We believe that the process of appeal is extremely important as public consultation and participation has been restricted.
The Court of Appeal should not serve as the final appellate court for all appeals under the Bill. We believe this is inconsistent with the legislative and constitutional standing of the Supreme Court that serves an important role in clarifying the law connected with resource management, the environment, and matters of general and public importance, for the Bill to exclude appeals to that Court.
- Include climate impact as a bottom line for eligibility
The Bill fails to establish processes to assess projects under consideration to be fast-tracked on their potential carbon emissions, or their risk to our climate. We believe given our obligations to reduce our carbon emissions under the Climate Change Response (Zero Carbon) Amendment Act 2019 (the Zero Carbon Act), it is unacceptable that major infrastructure projects be assessed for fast-tracking without consideration of the project’s carbon potential.
The Bill fails to mention the Climate Change Response Act 2002 at all. Eligibility for fast-tracking must take into consideration the potential climate impacts of projects. We believe the framework set out in Section 5ZN, added by the Zero Carbon Act, can serve as an important bottom line by which projects can be assessed, and empowers any person or body to take the targets and plans within the Act into account.
- Limits of the Exercise of Power
The concentration of decision-making power to the Minister for the Environment to approve or decline a project to follow the fast-track consent path and set the terms of reference for and appoint the Panel is unacceptable. We believe that the concentration of power to a single Minister inherently compromises the rights of Māori as Te Tiriti partners, the community and risks compromising existing agreements already in place to protect Māori and community decision-making rights.
The time frames put on some of the processes in the Bill are unrealistic. We believe that these unrealistic time frames will lead to poor decision making and flawed outcomes.
- Duration of the Bill
The 2-year period for this Bill is too long for the intended purpose. We believe that this Bill is intended to enable urgent recovery from COVID-19 and should be reviewed after a maximum of six months.
- Adopt the precautionary principle
Declining applications does not use the ‘precautionary principle’. We believe the criteria for the Minister for the Environment to decline applications for referral to the Panel, and circumstances in which the Panel may decline resource consents or designations must use the “precautionary principle” which is an established norm of international law. The Guardians of the Bays have experience of consents with uncertain or inadequate information and we believe these consents should definitely be declined. Not using this ‘precautionary principle on fast-tracked projects will cost the protection of our environment, climate and honouring the Crown’s role as Te Tiriti partner.
Changes required to the COVID-19 Recovery (Fast Track Consenting) Bill
We wish to make the following recommendations to change the Bill:
- Amend Schedule 6 clause 17 to permit public notification;
- If the above amendment to Schedule 6 clause 17 is not made, expand the mandate of the panel to consult with a variety of local community groups, such as Guardians of the Bays, beyond those listed under Schedule 6 clause 17 on a project-by-project basis;
- At a bare minimum, expand the list of persons and organisations to be consulted with for referred projects under Schedule 6 clause 17(6j-u) to include the Parliamentary Commissioner for the Environment, and public health and disability justice advocates. In addition, local residents and local community groups who are not directly affected parties, NGOs who have specific expertise regarding the environmental harms related to the proposed activity, should be consulted on a project-by-project basis.
- Include the Minister of Health and the Minister for Disability Issues in Schedule 6 clause 17(4)(g).
Right of Appeal
- That the Bill provides any individual or organisations reflecting an aggregation of community views, acting in the public interest, such as Guardians of the Bays, have rights of appeal under the Bill.
- That the Bill provides that relevant hapū and iwi authorities have rights of appeal under the Bill.
- That the Bill allows for appeals to the Supreme Court of New Zealand.
- Add climate change as a bottom line and ensure that infrastructure projects which would increase emissions, are not allowed to be fast-tracked.
- Include Climate Change Response Act, and in particular, the framework introduced by the Zero Carbon Act, in documents listed under Schedule 6 clause 9(2), which would require consent applicants to provide an assessment of the activity against the relevant legislative provisions that enshrine in law our commitment to the Paris Agreement.
- Require applicants to disclose carbon budget of activity as part of the information required for listed and referred projects notices under Schedule 6 clause 9(1).
- Require that an activity that causes significant carbon emissions be included as criteria for ineligibility of projects under Part 2 clause 18(2).
- Explicitly exclude any activity that facilitates the extraction of coal, oil and gas resources under the criteria set under Part 2 clause 18(2).
Exercise of Power
- That the Bill provides that in circumstances of uncertain or inadequate information, the Panel should adopt a precautionary approach and favour environmental protection by being able to decline the application.
- That the repeal date of the Bill for being reviewed should be after six months of enactment.
- Amend Part 2 clause 16(a) to require any decision that applies in whole or part to conservation land to be made jointly by the Minister for the Environment and the Minister of Conservation, not just to the coastal marine area.
- That the Bill includes the Parliamentary Commissioner for the Environment as a key stakeholder.