The Government’s attempt to depoliticise the Fast Track Bill

“Will this do?” That’s the question being asked from the Beehive, as the Government tinkers with their Fast Track Approvals Bill, making it more politically palatable by taking out some harder-to-swallow elements. So far, at least from critics, the answer is “no – it’s not nearly enough”.

The Government has run into strong opposition to its Fast Track Approvals Bill, which is intended to speed up the consent process for large infrastructure projects. Despite a strong sales pitch that the legislation is similar to Labour’s Covid-era urgency consenting and would help fix infrastructure deficits and cut unnecessary red tape, the public hasn’t been convinced.

A poll by Curia Research indicated that 44% supported the legislation, and 32% opposed it. A Horizon Research poll indicated 34% supported it, and 37% didn’t. In addition, the Fast Track Approvals Bill has been criticised by people across the political spectrum, including business groups and Federated Farmers.

Critics say that the legislation has been written to enable private sector developers and party donors to get their way at the expense of proper democratic processes that protect the public interest and the environment.

Some changes to the proposed legislation have, therefore, been inevitable. The Government has been determined to try to depoliticise the legislation and convince New Zealanders that the Beehive has been listening to criticism and is willing to compromise.

The Changes announced this week

The Minister of Infrastructure, Chris Bishop, announced yesterday the small changes that the Government was making to the Fast Track Bill to assuage the public’s concerns. The main change is that the final decision on each Fast Track application will now be made by the expert panel appointed by the government. The earlier iteration of the bill gave that power to three Cabinet Ministers.

However, although the appointees on the Fast Track panel get the final say, ministers will have the formal ability to ask the panel to reconsider if the politicians believe the experts have made the wrong decision.

In addition, the power to send applications to the expert panel will now be concentrated in the Office of the Minister of Infrastructure, Chris Bishop. Regional Development Minister Shane Jones and Transport Minister Simeon Brown will lose their power.

Other minor changes included extending some of the timeframes for public comment to the expert panel and bringing in other experts in environment and te ao Māori where relevant.

The Expert panels become more powerful

Does this apparent depoliticisation of the Fast Track decisions mean that the politicians no longer direct which business projects will get the green light?

Not necessarily, according to the Herald’s political editor Claire Trevett, who writes today that Chris Bishop will still be extraordinarily empowered by the legislation: “Ministers still get the say over which projects would be put forward to be considered by the expert panels. They also get the say over which criteria those expert panels have to assess them on. Bishop will no longer have final sign-off, but he will still be involved as the gatekeeper who decide which projects get referred to expert panels to consider. In short, if Bishop doesn’t like it, it doesn’t go anywhere.”

What about the “environmental experts” who will be on the panel? According to some, these will be professionals picked because they are predisposed towards mining, mineral extraction, roading, and business in general. For example, Cath Wallace of the Environment and Conservation Organisations said today: “the Advisory Committee has ‘environmental experts’ who in fact are heavily involved in the very industries and sectors who will be applying for fast track approvals. They are not independent.”

Similarly, Green MP Lan Pham says that these panellists will be directed towards approving the Government’s preferred business projects: “you could be the most skilled environmental professional in the world, but when your directive and your legal framework within the bill is essentially to rubber stamp development at all costs, then there’s still very little to no scope for any meaningful environmental protections.”

Support for the changes from business

The business community appears to favour the Government’s announced changes to the Fast Track legislation. For example, the mining lobby group Straterra has voiced its support today, with chief executive Josie Vidal reported by BusinessDesk’s Dileepa Fonseka as being satisfied because “the government's changes left parts of the bill that the mining sector supported intact.”

Vidal says the most significant change announced yesterday was predictable and made sense: “We were never bothered by the ministerial decision-making because ministers make decisions all the time, but it did seem to agitate a lot of people, so it had been signalled for some time that that was possibly going to go.”

Fonseka also reports that law firm Dentons Kensington Swan, which has clients that will use the new Fast Track processes, sees the merits in the changes. He writes that “partner Ezekiel Hudspith says the heat around the fast track bill has been too hot for some corporates to handle”.

Hudspith is quoted saying that businesses have realised that the original Fast Track was too negative to be associated with: “We’ve actually seen some clients be a bit reticent about using it, some clients have just said, 'actually we’re not going near that because of concerns of social licence', others have sort of indicated that they might be inclined to use it but haven’t exactly been publicly broadcasting that... I actually tried to organise a panel discussion about the bill, but it was quite hard to get representatives because no one really wanted to be out there in front of it.”

Another law firm, Russell McVeagh, is also reported by Fonseka as favourable. The firm’s partner and environmental lawyer Daniel Minhinnick says the change would increase the political appeal of the new law: “The removal of the final ministerial decision makes complete sense to me in that it always seemed to be unnecessary to achieve what the Government seemed to be after and just seemed to create additional political risk, or additional public opposition, to the framework.”

Avoiding judicial review

The other pragmatic reason that Bishop has removed ministerial discretion from the final decision-making process is because it will reduce the risk of decisions being challenged in the courts. Many critics had already pointed out that ministerial decisions are subject to judicial review, whereas decisions by experts are harder to challenge.

Bishop admitted this yesterday and said that business proposals would be less likely to be held up by judicial activism and that business would appreciate this greater certainty.

Several business groups had advocated that change, including the Electricity Sector Environment Group (ESEG) in its public submission to the Select Committee considering the Bill. Richard Harman covers this in his analysis of the changes today. He points out that “ESEG also argued that only one Minister should handle applications,” and Bishop adopted this, too. By only having one minister and only one government department involved, there would be less ability to argue for a judicial review of decisions.

Did the Government listen? Or is this just window dressing?

A number of opponents of the proposed Fast Track legislation celebrated a small victory in getting the Government to make these changes. Most significantly, Te Rūnanga o Toa Rangatira chief executive Helmut Modlik, who had previously led a hīkoi to Parliament against the legislation and damned the bill’s concentration of power as “an overreach and dangerous”, was now full of praise for the Government.

Modlik was quoted in The Post today as saying he was pleased with the outcome, which showed that the Government was willing to listen to the people and make compromises: “In the first instance, the balance wasn't quite right. We spoke, the nation spoke, and they listened. So yeah, I want to acknowledge them for that.”

Documentary maker Bryan Bruce says that much more reform to the Fast Track is needed, but yesterday’s announcement  is “a bit of a win for the more that 20,000 of us who marched down Auckland’s Queen Street”. He says the decision shows “that protests, demonstrations and making submissions to select committees can all be effective in protecting our democracy”.

Others are less sure that this was a victory for opponents nor that the bill has been depoliticised. The Herald’s Claire Trevett’s excellent analysis in the newspaper today is nicely summed up in the Herald, which read: “Fast-track Approvals Bill backdown on ministers’ powers delivers a nod to the critics but not a buckling”. In the column, Trevett said the changes were “more a nod to the critics than a cave-in”.

She reported that environmentalists saw the alterations as “token”. In this regard, Greenpeace’s executive director Russel Norman put out a press release saying: “The key part of the fast track bill remains in place after these changes – projects will still be assessed on purely economic criteria which totally override environmental criteria.”

Newsroom’s Fox Meyer also backed this up, saying “the bill’s purpose was not changed to include mention of the environment” and “the bulk of the fast-track process remains in government hands”.

Interestingly, Russell McVeagh’s Daniel Minhinnick’s similar analysis was reported by BusinessDesk: “He said the real element in the bill that changed the game was the way the proposed Fast Track bill altered the ‘hierarchy’ of things that could be considered around consents, tilting the board in favour of national and regional development concerns.”

The Need for transparency about the Fast Track applicants

There are two separate phases in which businesses and groups can apply for Fast Track consenting: 1) Those that will be specified in the legislation and 2) those who will apply later.

This is well explained today by Thomas Manch in The Post: “Two categories of fast-track projects have been built into the legislation, and remain. The first is a list of projects determined by a fast-track advisory panel, whose work has already begun, which would go straight to the expert panel before being referred back to the ministers for sign-off. The second is a list of projects that apply directly to the minister, who decides which goes on to the expert panel.”

There is some confusion about these two lists of applicants. The first group’s applications are already being decided upon, and the Government will include them in the legislation. It was announced yesterday that for the first phase of applicants to be included in the bill, 384 applications had been made and passed onto the Minister for consideration.

For these, Chris Bishop, as Minister of Infrastructure, gets to make the final decision (but will do so with Cabinet approval). Therefore, the criticism about the potential for cronyism or the influence of lobbying and political donations still holds strong. As a result, there will need to be maximum transparency about the process. Plenty of sunlight will be needed to disinfect the process.

Yet, the signs are that this isn’t going to occur. Already, the Government has decided that the winning applications won’t be made available to Parliament until after the Select Committee has considered the bill. Only then will the official schedule of business projects be added to the legislation. The need for integrity should dictate that the Bishop’s decisions on who to give Fast Track consent to should occur before the bill is debated.

Unfortunately, the public isn’t even being told who the Fast Track applicants are. Yesterday, Bishop gave out some high-level information on the applications, such as what sort of industries and geography were involved, but nothing else was useful for public debate.

This has been the character of the whole debate since the Fast Track proposal was introduced – secrecy and unanswered questions. Many in the public have therefore become suspicious of the Fast Track legislation, and it’s become highly politicised. But as Russell McVeagh’s Daniel Minhinnick says today, the Government has come up with some changes aimed to “depoliticise the Bill”.  

There will be more changes to the Fast Track proposal. Note for example, the Government is now trying to change the terminology from “fast track” to “one-stop shop consenting”. And there will inevitably be further changes once the Government-dominated Select Committee reports back on legislation. However, much of this is really just spin rather than substantial changes. The cosmetics on the pig might change, but ultimately the Fast Track Bill will still be the same animal it was before.

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, School of Government, Victoria University of Wellington

Key Sources

Bryan Bruce: Fast Track Bill On Slighly Slower Track

Dileepa Fonseka (BusinessDesk): Govt tries to take heat out of fast track debate with changes (paywalled)

Richard Harman: Fast track to more electricity generation (paywalled)

Thomas Manch (The Post): Government guts ministerial powers from fast-track bill (paywalled)

Fox Meyer (Newsroom): Fast-track law changes no panacea for critics (paywalled)

Anneke Smith (RNZ): Fast-track bill: Critic 'very pleased' with government over changes

Claire Trevett (Herald): Fast-track Approvals Bill backdown on ministers’ powers delivers a nod to the critics but not a buckling (paywalled)