Laura Murphy

The fast-track consenting regime proposed by the National/ACT/NZ First coalition government was introduced to Parliament on 7 March 2024. The most awaited aspect of the Fast-track Approvals Bill – the list of projects to be fast-tracked – is blank at this stage. A Fast-track Advisory Group of experts is to be established in the coming weeks to advise Ministers on what projects should be included in the legislation, following which the projects will be inserted into the schedules. The key aspects of the Fast-track Approvals Bill are as follows. Purpose The Bill’s purpose 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 Bill’s purpose has no reference to continuing to promote the sustainable management of natural and physical resources, unlike the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTA). Processes covered The Bill covers a much greater range of consents/approvals. In addition to resource consents and notices of requirement for designations under the RMA it includes consents/approvals under the Conservation Act 1987, Wildlife Act 1953, Freshwater Fisheries Regulations 1983, Reserves Act 1977, Heritage New Zealand Pouhere Taonga Act 2014, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, Crown Minerals Act 1991, and Fisheries Act 1996. The Bill also makes a change to Environment Court processes under the Public Works Act 1981 for projects dealt with under the Bill. The FTA only dealt with resource consents and notices of requirement for designations under the RMA. Treaty of Waitangi The Bill requires persons exercising functions under it to act in accordance with Treaty settlements and recognised customary rights. The Bill does not contain a requirement to act in a manner that is consistent with the principles of the Treaty of Waitangi, unlike the FTA. Projects The Bill provides for two types of listed projects, and referred projects. The two types of listed projects will be: Part A – listed projects that can be referred straight to an Expert Panel. Part B – listed projects that may be considered by the joint Ministers for referral to an Expert Panel. The Bill contains criteria for being a referred project including whether the project will have significant regional or national benefits. An example of projects that may qualify include projects that will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment. Projects are referred to Expert Panels for consideration. Expert Panel The Expert Panel will be set up in a similar way to Expert Consenting Panels under the FTA. However, Expert Panels will only be making recommendations to the ‘joint Ministers’ who will make the decisions. The joint Ministers For the most part, the responsible ‘joint Ministers’ under the Bill are the Ministers for Infrastructure, Regional Development and Transport. This is a move away from the Ministers for the Environment and Conservation under the FTA, although the latter will join the others for Wildlife Act matters. Appeal rights Appeal rights are available to the High Court on a point of law only. Rights of judicial review are not affected by the Bill. Select committee process The Bill has a strong focus on infrastructure and development and will be controversial. It has been referred to the Environment Committee for a select committee process and is open for submissions until 19 April 2024. Please get in touch if you would like to make a submission or discuss things further.

On 7 February 2024 the Supreme Court released its decision in Smith v Fonterra and unanimously agreed to not strike out Mr Smith’s claims against seven of New Zealand’s largest green house gas (GHG) emitting companies. The threshold to strike out a claim is high and requires that there be no reasonably arguable claim.  Like any other plaintiff with a tenable claim, Mr Smith will be entitled to have his case heard. Background The case concerned claims by Mr Smith, an iwi leader and elder of Ngāpuhi and Ngāti Kahu and a climate change spokesperson for the Iwi Chairs Forum, against Fonterra, Genesis Energy, Dairy Holdings Ltd, NZ Steel Ltd, Z Energy, Channel Infrastructure and BT Mining (Respondents).  The claims asserted that the Respondents’ GHG emissions have contributed and will continue to contribute to global warming.  This has caused and will cause harm to Mr Smith, his whānau, his descendants and others. Mr Smith’s claim comprised of three causes of action: Public nuisance; Negligence; and A proposed new tort involving a duty to cease contributing to damage to the climate system. The Respondents applied to strike out Mr Smith’s proceeding on the basis that it raises no reasonably arguable cause of action. The High Court struck out Mr Smith’s claims in public nuisance and negligence in 2020, but declined to strike out his claim based on the proposed new tort.  The Court of Appeal went further and struck out all three causes of action. The Supreme Court’s decision The Supreme Court found that it was in no position to find that Mr Smith’s causes of action were untenable.  It emphasised the high threshold for a strike out application noting that “pre-emptive elimination of proceedings is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail”. The common law has not previously grappled with a crisis as all-embracing as climate change.  However, the Supreme Court stated that this area of common law must develop “in the fertile field of trial, not on the barren rocks of a strike out application”. Can Tikanga inform the formulation of tort claims? Mr Smith claims, in accordance with tikanga, a whakapapa (genealogical) and whanaungatanga (kinship) relationship to the whenua (land), wai (fresh water) and moana (sea) around his land.  His claim is that the respondents contributed to climate change effects that caused and will cause ongoing injury to the customary, cultural, historical, spiritual and nutritional values associated with these places.  His tikanga based connection with these places provides the foundation for the claim that an injury to place is also an injury to himself, his whānau and descendants. The Supreme Court stated that whatever the cause of action, the trial court will need to grapple with the fact that Mr Smith purports to bring proceedings not merely as an alleged proprietor who has suffered loss, but also as a kaitiaki acting on behalf of the whenua, wai and moana.  It must consider some tikanga concepts of loss that are neither physical nor economic. Addressing and assessing matters of tikanga simply cannot be avoided. Mr Smith’s case can now proceed to a full trial in the High Court.

The new government’s coalition agreements gives a clear indication of its plans in relation to its resource management legislative reform for the next three years. With Labour’s legislation to be scrapped in favour of a return to the Resource Management Act 1991 (RMA) (with some amendments), and further significant reform on the horizon, it is going to continue to be an interesting and transitional time in the RMA space. The coalition agreements are clear, as National was prior to the election, that the Natural and Built Environment Act 2023 (NBEA) and the Spatial Planning Act 2023 will be repealed by Christmas, and the RMA will be reinstated, with amendments. These amendments are intended to ensure that it is easier to consent new infrastructure (including renewable energy projects), streamline the plan preparation process, and importantly establish a ‘fast track, one stop shop’ for consents and permitting processes for regional and national projects of significance (the process will involve a referral by Ministers for suitable projects). This fast track process is intended to be introduced for first reading in the first 100 days of the Government, no doubt to replace the fast track process currently contained in the NBEA. In the longer term, the intention is for the RMA to be replaced with new resource management laws that are based on enjoyment of property rights as their guiding principle. What this will look like remains unclear, but is likely to mean less regulation and control on what can be done as of right. Also under review will be the National Policy Statement on Indigenous Biodiversity, with a particular focus on reconsidering the mapping of significant natural areas that is required by the current policy statement. The National Policy Statement on Freshwater Management and the National Environmental Standards on Freshwater Management will be replaced, to “better reflects the interests of all water users”, putting the focus squarely on use rather than preserving and restoring where degraded the state of water bodies, as is the current priority. There is a strong focus on infrastructure, with a National Infrastructure Agency to be established to coordinate government funding, connect investors with New Zealand and improve funding, procurement and delivery to prioritise projects of regional and national significance. All work on Three Waters will stop immediately, with assets to be returned to council ownership. A review of all legislation that refers to the ‘principles of the Treaty of Waitangi’ will also be conducted, with all such references to be either repealed or replaced with specific words relating to the relevance and application of the Treaty. Interestingly, the Minister for the Environment is now a Minister outside of Cabinet – Penny Simmonds, with Act’s Andrew Hoggard, the Associate Minister, also outside of Cabinet. The more powerful Ministerial positions who will deliver RMA reform look to be Chris Bishop who will take the new Ministerial position of Minister Responsible for RMA Reform as well as Minister of Housing and Minister for Infrastructure, and will be supported by Act’s Simon Court who will also be a Minister Responsible for RMA Reform. Shane Jones will be Minister for Resources (a new position).

The NPS-HPL came into effect on 17 October 2022. Since then, two issues have been identified about its restrictions on non-land-based uses and development. These are: The lack of a clear consent pathway for construction of new “specified infrastructure” (which includes renewable energy, such as solar farms) on highly productive land (HPL) in clause 3.9(2)(j)(i) of the NPS-HPL; and The lack of a clear consent pathway for development and relocation of intensive indoor primary production and greenhouses on HPL. The discussion document can be found here: Potential-amendments-to-the-NPS-HPL-discussion-document.pdf (environment.govt.nz) Consent Pathway for “Specified Infrastructure” The proposed change is to clause 3.9 of the NPS-HPL which states that: 3.9(2) A use or development of HPL is inappropriate except where at least one of the following applies to the use or development… (j) It is associated with one of the following, and there is a functional or operational need for the use or development to be on the HPL: (i) The maintenance, operation, upgrade, or expansion of specified infrastructure: (emphasis added) As currently worded, the NPS-HPL does not provide a clear consent pathway for construction of specified infrastructure on HPL, only its “maintenance, operation, upgrade or expansion”’. This limits the ability to construct new specified infrastructure on HPL at pace and limits certain providers (such as renewable energy generators or installers of fibre who are not requiring authorities). The Government has identified two options to address this issue and has indicated that it considers that the amendment in the second option is necessary. The options are as follows: Maintain the status quo which would allow time for the NPS-HPL to be given effect to in plans, policy statements and consent decisions (this would likely take some time); or Amend clause 3.9(j)(i) to include the word ‘construction’. The amendment suggested in the second option (which is the Government’s preferred option) would provide a clear consent pathway for construction of new specified infrastructure on HPL. Consent Pathway for Intensive Indoor Primary Production and Greenhouses The NPS-HPL also does not provide for a clear consent pathway for development of new intensive indoor primary production and greenhouses. To address this issue the Government has suggested that the NPS-HPL could be amended to provide for a pathway for developing and relocating intensive indoor primary productions on HPL, but has identified that this option is misaligned with the policy objectives of the NPS-HPL. No preference was given to this option over keeping the status quo. The Government is seeking submissions and feedback on the proposed options. Submissions close on 31 October 2023. If you have any queries regarding the proposed amendments to the NPS-HPL or if you wish to make a submission please do not hesitate to contact us.

The Environment Select Committee has returned its recommendations in relation to the Natural and Built Environments Bill (NBB) and the Spatial Planning Bill (SPB), the two pieces of legislation that will replace the Resource Management Act 1991 (the Bills). The Environment Select Committee has made a number of changes to the Bills, some more controversial than others, and many which tidy up aspects of the proposed legislation. One of the most significant is a change to the purpose of the Bills, which is now solely focused on upholding te Oranga o te Taiao. Previously the Bills contained dual purposes. This change represents a lessening of focus on use of the environment, in favour of environmental protection, and in all likelihood will increase challenges for developers and other users of resources. Welcome news for those resource users will be the Committee’s recommendation to introduce an objective to the NBB which emphasises the focus of the legislation on upfront planning through plan making processes, to reduce reliance on consenting. The Committee has also recommended amendments to the outcomes of the NBB, and included provisions which address the management of conflicts between outcomes. An example of this would be a development proposal that meets the outcome of ensuring infrastructure is provided in a timely and ongoing matter, but may have effects on indigenous biodiversity, meaning it could be in conflict with the outcome requiring protection of indigenous biodiversity. The conflict provisions state that not all outcomes need to be achieved in all places and at all times, and that achieving outcome compatibility should be favoured over achieving one outcome over another. Whether these provisions assist in practice to resolve conflicting interests when it comes to managing our resources is yet to be seen. Many called through the submissions process for the continued use of certain RMA terminology that has been the subject of significant litigation and is now well understood. Unfortunately, that call has not been answered in relation to the effects management hierarchy provisions in the NBB, which now require residual effects that are “more than trivial” (terminology not used in the RMA) to be offset and compensated for in the context of significant biodiversity areas, and specified cultural heritage areas. In terms of the SPB, the Committee has not recommended any major changes other than the change to its purpose which has been discussed above. Interestingly, the Committee has recommended the removal of the prohibition on considering impacts on scenic views (from private properties) from the SPB, therefore allowing consideration of impacts on scenic views from private properties as part of preparation of regional spatial strategies, but the prohibition has remained in the NBB meaning it won’t be a consideration in regional NBE plans or consenting processes. The process to enacting the Bills is likely to move quite quickly from here, without further public consultation and with limited further amendments. The second reading is occurring this week, followed by a Committee of the Whole House before a final reading prior to royal assent. The future of the Bills is unclear if there is a change in government later this year, with both National and Act refusing to the support the Bills, taking the position that they are worse than the current system in place under the RMA.