Fast-track bill: Select Committee appearance 15 May

I am an Associate Professor at the Faculty of Law, Auckland University. Before entering academia, I was in private law practice, 14 years an RMA lawyer. I acted for infrastructure providers, developers, environmental and community groups. So I know something of the frustrations with the resource management system from both development and environmental protection perspectives.

I also approach these matters with an eye on New Zealand's international obligations and reputation. In a globalised, hyper connected world, it would be naive to think that what the government— what we do — environmentally in NZ, does not have ripples beyond our borders. It’s critical to be alert to the international implications of this bill.

My submission runs to 14 pages, but I only have five minutes, so I'm going to focus on just two points: the purpose clause, and the decision-making framework.

First the purpose clause. You're all familiar with the narrow scope of clause 3. It's been addressed in thousands of submissions. But can you take a moment to glance over the comparison chart of purpose clauses in the appendix to my submission?

I've set out a series of purpose clauses from New Zealand statutes, compared to equivalent or similar Australian statutes. I could have done the same for the UK, for European countries, for Canada, but Australia seemed like a good comparison. Australia is a country which is hardly known for a delicate approach to environmental management and consenting. But even Australian statutes openly directed towards resource exploitation – the New South Wales Mining Act, Victoria's Mineral Resources Act — all include environmental considerations in their purpose clauses. Because that's what modern, responsible, states do. It's not virtue signalling, not tree hugging. It's not an overly precious attitude towards environmental protection. It’s responsible, modern environmental management.

The question for you as Committee members to reflect on is: Is it appropriate for New Zealand in 2024 to operate under a consenting statute that is utterly out of step with international positions?

Briefly on decision-making. Again, your eyes may glaze over because this has been the subject of many submissions, but I urge the Committee to reflect on the framework for decision-making by the joint ministers in clause 25 (7), and consider whether a better approach would be to leave the final decision in the hands of the expert panels. You might take that approach for one of two reasons.

First, it would be the responsible thing to do.

For most RMA matters under the bill, the joint ministers are defined to be the Ministers for Infrastructure, Transport and Regional Development. At the moment, they are ministers Bishop, Brown and Jones. But under the bill if passed, it would be whoever holds those positions for the time being. The three current joint ministers have many skills and qualities, but they are not experts in environmental assessment or management. Nor, probably, would any future ministers in their place be, from whatever party happens to be in government.

Many of you on the Committee have had direct experience in consenting —as farmers, consultants, managers, business leaders. It’s doubtful that we’d ask our banker to resolve disputes between engineers on slope stability risk. Or let our company’s comms advisor have the last word on acceptable contaminant levels in waterways. On these difficult issues, experienced experts should make informed assessments and decisions. The joint ministers are not only not experts, but are inevitably open to political influence. Like any issue of bias, it’s the appearance of undue influence that is of as much concern as actual influence. Again, that will always be the case, no matter what party the ministers are drawn from.

But if a ‘Do it because it's responsible’ argument doesn't convince you, you might think about litigation risk.

If the bill is passed as is, there will, almost certainly, be significant litigation over consenting decisions. It will be the ministers whose names are on legal proceedings, who will be required to swear affidavits and defend positions, and who will bear the ignominy and political cost of their decisions being overturned. Another — politically more savvy — approach would be to allow the litigation risk to fall on expert panels as final decision-makers.