Submission on the Fast-track Approval Bill

Wind farm seen from above through clouds

Amnesty International Aotearoa New Zealand

Submission on the Fast -track Approval Bill

19 April 2024

INTRODUCTION

This submission is made on behalf of Amnesty International Aotearoa New Zealand (AIANZ). Amnesty International is a global movement of over 10 million people who protect human dignity and defend human rights. In Aotearoa New Zealand, there are over 40,000 supporters and we work on a wide range of human rights issues of both national and international significance. Amnesty International promotes and defends human rights enshrined in the Universal Declaration of Human Rights (UDHR) and other international human rights instruments.

AIANZ opposes this Bill. We are deeply concerned that this Bill overrides environmental protections, obligations under Te Tiriti o Waitangi, and public participation on projects affecting communities.

This Bill creates a permanent fast-track approvals regime for a range of projects. This process would enable just three Ministers (Ministers for Infrastructure, Transport and Regional Development) to decide on development projects without having to go through standard checks and balances.

The extensive powers of Ministers without environmental portfolios raises strong concerns that this Bill prioritises economic development over environmental protections. This is further highlighted by the purpose of the Bill to facilitate infrastructure and development projects with regional or national benefits.[1] Processes to properly scrutinise projects are vital to ensure we are adequately protecting our environment for the health and wellbeing of all communities.

In this submission we focus on three main concerns:

Disregard of Crown’s obligations under Te Tiriti o Waitangi both in the substance and development of the Bill.
Inadequate environmental protection.
Exclusion of meaningful community involvement and agency in decisions that impact them.
Inadequate analysis on the impact on human rights under the New Zealand Bill of Rights Act (NZBORA) and international obligations, especially under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

DISREGARD OF TE TIRITI OBLIGATIONS

We are concerned that along with the process of developing the Bill, the substance of the Bill fails to uphold Crown obligations under Te Tiriti, of working in partnership with Māori.
We are concerned that the Government has failed to adequately consult with Māori in leading up to this Bill, the Ministry for the Environment has stipulated:[2]

“Due to timeframes and limited opportunity to garner the views of Treaty partners on the specific policy proposals this Treaty impact analysis was unable to be as detailed or as thorough as would be expected for a Bill of this significance.”

Lack of meaningful engagement on a Bill that will likely significantly impact Māori is deeply alarming and undermines both democratic processes and Crown duties as a Treaty partner.
There is no Te Tiriti o Waitangi clause, the Bill only specifies that persons exercising functions under the Bill, must act in a manner consistent with existing Treaty of Waitangi Settlements and Customary rights.[3] We are concerned that this Bill violates Article 2 of Te Tiriti which affirms that Māori have tino rangatiratanga over their taonga katoa as well as the right for Māori to practise kaitiakitanga. Te Tiriti o Waitangi is a founding document of Aotearoa and inherent in our constitutional make up, such disregard for Te Tiriti obligations may set a harmful precedent of eroding Te Tiriti in legislation.
We note that there are references in the Bill to obligations for applicants to consult with relevant Iwi, Hapū and Treaty settlement entities but Hapū and Iwi that have not yet settled or are still in progress have no protections.[4]
We also note that once a Minister decides on which projects will be consented to, they send it to a panel of experts for consideration. This must include one representative of an Iwi authority.[5] However, there is no requirement for Iwi and Hapū engagement with the process of consenting.
Concentrated powers to a few over critical issues that affect people all over Aotearoa, with severely limited involvement of others, risks poor decision-making. It risks key information being missed, reducing the quality of decision-making and ultimately, risking decisions that may have devastating consequences.

ENVIRONMENTAL PROTECTIONS

This Bill poses a risk that decisions will be made that end up having a severely detrimental impact on the environment. We question what is the extent of the positive benefits that justify this risk. Projects that have been previously rejected by the courts for risk of environment damage are allowed to apply.[6] Therefore, projects such as oil drilling, seabed mining, housing developments on wāhi tapu and more will become eligible which carry deep risk of long-term negative consequences.
The Bill does not appear to value the importance of environmental impact assessments, expert advice and wider consideration and scrutiny of how projects may affect the ecosystem on a holistic and intergenerational level, leaving excessive power over the environment with individuals.

EXCLUSION OF COMMUNITIES IMPACTED

Given the significance of the Bill, the lack of opportunity for meaningful community input is alarming. Panel members are prohibited from consulting with communities and informing the public of the proposals, limited only to making recommendations. Furthermore, panel members are not required to have any expertise on the environment.
Adequate checks and balances, along with scrutiny, especially by people most impacted, are fundamental to ensuring robust decision making that stands up to the test of time. Poor decisions can cost far more in the long run than any short-term gains made from a fast process.
Sound, robust decision making in the areas this Bill covers need time and input from people who bring local expertise.

INTERNATIONAL RIGHTS AND THE NEW ZEALAND BILL OF RIGHTS (NZBORA)

We are concerned that there has been insufficient analysis under New Zealand’s international obligations, including the rights of Indigenous Peoples and human rights. The only international law that has been considered in this policy appears to have been the United Nations Convention on the Law of the Sea (UNCLOS), which was found to have ‘no conflicts’ without further explanation.[7]
This Bill has a clear impact on Indigenous Peoples in Aotearoa to exercise self-determination over their resources and their right to preserve and protect the environment.[8] Given this an assessment under the United Nations Declaration of the Rights of Indigenous Peoples is important.
We note that analysis against the NZBORA is still in progress, however the Government is pushing through this legislation without allowing the Attorney-General to provide their assessment on if this Bill meets the standard of human rights.[9]
Given the potential impact of this Bill, this is completely unacceptable, and risks undermining the human rights of present and future generations.

CONCLUSION

Fast Tracks Approval Bill (Government Bill) Explanatory Note, General policy statement Purpose of Bill (2024) Fast-track Approvals Bill 31-1 (2024), Government Bill – New Zealand Legislation

Departmental Disclosure Statement, Fast-track Approvals Bill, Ministry for the Environment (01 March 2024) Para 3.2 bill_government_2024_31.pdf (legislation.govt.nz)

Fast-Tracks Approval Bill Part 1, Section 6.

Fast-Tracks Approval Bill Part 2, Section 16 (1).

Fast-Tracks Approval Bill Schedule 3, section 3 (2) (b).

Fast-track Approvals Bill – Frequently Asked Questions | Forest and Bird

Departmental Disclosure Statement, Para 3.1 bill_government_2024_31.pdf (legislation.govt.nz)

United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly on 13 September, 2007) Article 3, 4, 29.

Departmental Disclosure Statement, Para 3.3 bill_government_2024_31.pdf (legislation.govt.nz)