New Zealand has a habit of creating official posts – the Overseas Investment Office, the Banking Ombudsman, the Grocery Commissioner – as a sop to public concerns, but where the terms of reference guarantee that such posts won’t interfere unduly with the conduct of business-as-usual.
Recently, the Grocery Commissioner gave us a classic example of this impotence in action. Taxpayers pay the Commissioner handsomely to protect them from the behaviours detected by the Commerce Commission in its report on the supermarket sector. Yet in his first report on the industry, the Grocery Commissioner left it to the public to detect and report – to the supermarket! – any pricing “errors” they discover between the shelf and the checkout.
Much the same faux checks and balances are now being offered regarding the “fast track” legislation. Public outrage erupted when a trio of Cabinet Ministers gave themselves the power to issue feudal decrees that would override the public’s ability to object to business projects that harmed them or the environment. Those protests have resulted in changes such that the final verdict (on whether a fast-tracked project will proceed) will now rest with an “independent panel of experts chosen by the government. These experts will be led by a former judge and include an expert on the environment and (under certain restrictive conditions) representatives of Māori interests.
In practice, these arrangements will not provide much of a safeguard, since the legislation will continue to prioritise what’s good for business over the implications for the environment, or the impact on the communities/iwi most affected. A separate ‘advisory” group reporting to Infrastructure Minister Chris Bishop will select the development projects that merit fast-tracking. At the other end of the process, the expert panel will make its final evaluation based on criteria provided by the government. These criteria may include the power to make approval of a project dependent on its compliance with further mitigating conditions.
Delay, however, will be the exception. The term “fast track” – and the priority being placed on getting these projects to market ASAP before anyone or anything get in the way – means that economic factors will trump other considerations. The obvious risk is that if any socioeconomic benefits whatsoever can be detected – whether that be extra foreign capital coming into the country, or jobs being created – this will render the project virtually immune from rejection.
At most, any compliance conditions will just involve tinkering around the edges. To head off legal challenges or judicial review, the fast track legislation also limits the grounds for appeal solely to the terms contained within the law itself, and not to the (arguable) merits or downstream impacts of the project.
Making the Public Good Disappear
In sum, the work of the “independent” expert panel is likely to be hamstrung from the outset, in that it will be all but obliged by the terms of reference (written by the Ministers who chose the experts) to rubber stamp the projects – which will inevitably be seen to comply in some way with the over-riding economic criterion. This is not a unique situation. Repeatedly, the Overseas Investment Office gives the tick to foreign investments/purchases on the narrow basis that fresh capital will be injected /jobs will be created, with little or no evaluation of the wider impacts on the public good.
Talking of which…the old maxim that “What’s good for General Motors is good for the country” may have fallen into disrepute over 50 years ago, but Infrastructure Minister Chris Bishop still seems to be a true believer in it. More than once, Bishop has said that since most fast track projects will have a public good and a private profit dimension, he finds it difficult to distinguish between the two.
Really? Surely, the fact that both factors may be present is no reason to abandon the attempt to discern where a particular project falls along the spectrum. It isn’t that hard to tell whether a project is mainly meeting a public need or is mainly a money-making exercise where the bulk of the benefits will go into the company coffers either here, or offshore. If Bishop can’t tell the difference (or can’t be bothered to try) he shouldn’t be doing the job. Yet here we are. The Minister driving the fast track process seems (a) disinterested and/or (b) unable to tell whether any given project is mainly meeting a public need, or mainly serving to line the pockets of corporate investors. That’s chilling.
Rest assured, the expert panel is not going to be given the tools to make such distinctions either. Even if it seeks to act in good faith, its work will be hobbled by the terms it will have been given by the Ministers involved, one of whom – Shane Jones – has been repeatedly contemptuous of environmental concerns. When you run so often with the wolves, it’s pretty hard to take seriously your claims to be a good shepherd.
Footnote One: The degradation of the consent process has been underlined by the fact that so-called “zombie” projects that have already been rejected by the Environment Court will now be eligible – under the fast track process – to re-apply for consent. So much for the experts on the Environment Court, whose negative judgements are being set up to be overruled.
Footnote Two: Of the initial 384 applications for fast tracking received, 40% are for housing and urban development, 24% are for infrastructure projects, 18% are for renewable energy projects, 8% are for primary industry projects, 5% for quarrying, and 5% for mining projects.
Footnote Three: As RNZ’s Russell Palmer has pointed out, while the fast track legislation is loosely based on Labour’s emergency Covid legislation on resource consents, it is far wider in scope:
[It] allows the applicant to bypass the usual consenting regime, and gain an exemption from or approval under various current laws, including: The Resource Management Act, the Conservation Act, the Wildlife Act, the Reserves Act, the Heritage New Zealand Pouhere Taonga Act, the EEZ and Continental Shelf Act, the Crown Minerals Act, the Fisheries Act, the Public Works Act, and Freshwater Fisheries regulations.
Some areas would still be protected: National parks; national, nature, and scientific reserves; wilderness areas and wildlife sanctuaries; land returned under Treaty settlements if there was no written agreement with the owner; other customary Māori land and fisheries; and projects in the open ocean prohibited by international law.
Footnote Four: As mentioned above, the courts are being fenced off as an avenue of recourse. Under the fast track legislation, appeals will be possible to the High Court (and beyond) only by groups that can first prove they would be impacted at a level “greater than the general public.”
Similarly even if judicial review of a panel decision can be got on the rails, the grounds for such reviews will be restricted solely to how the fast track law has been applied. There will be no scope for judicial review to re-consider whether the project’s likely harms or merits have been adequately assessed. Feeling re-assured?
Music as Political Therapy
All well and good when music functions as a calming diversion from the state of the world…Some days though, it is also good to make room for people being loud and shouty at the news bulletins. This track for example, is a fairly accurate sonic analogue for how I generally feel on seeing David Seymour on the nightly news:
Despite the levels of angst, political protest songs rarely name-check actual politicians, past or present. That’s one reason why I have a soft spot for this Dialup Ghost track. Republican senator Marsha Blackburn is running for re-election in Tennessee this year. The fact this track has earned less than 150 views over the past two years would suggest that it represents a minority opinion in Tennessee – but regardless, the band seem to hold her personally responsible for the fentanyl crisis: