A belated happy new year
And where to look out for a new species of zombie in 2025
It’s been a while since we trundled up and down the Waitaki, feeling surprised and exhausted at the end of last year – there hasn’t been quite enough sun or test cricket since then either. But there has been some, and Kane got a ton in Hamilton, and that’s sometimes almost enough.
Down here, meanwhile, weather-dodging was a big part of life, but we did all right. Particular highlights out in the hills involved lazing by alpine lakes; a couple of extraordinary flights off local mountains, warping life from snow to hay paddocks in minutes; and climbing what may have been a new route on a seldom-visited main divide peak, then to find a legible summit note recording a climb 44 years earlier, almost to the day. In between times, we enjoyed some lovely slow family time. And we positively destroyed several dozen cherries each on the now-customary annual pick-your-own orchard visit. The fruit hadn’t set so well this year after a late frost, and the cool early summer slowed it down even more, but everyone was happy – because it got there in the end.
Happy New Year
I’ve always enjoyed saying happy new year to people as late as I can get away with: I’ll keep trying until about June if I haven’t seen someone. Most people look at me like I am an idiot after about 15 January, and some are even uncomfortable with it. To me it’s a good if very oblique way to table questions about work ethic and how much to enjoy the summer sun in preference to working for the future. But we’ll spare readers further ruminations on that eccentric joke, and offer a happy new year today. Only a fraction late.
2025 seems to have opened with a hiss and a roar, both in the New Zealand and international public sphere. As such, it hasn’t been easy to decide when and where to kick these efforts off. Another factor has been the effort going in on other fronts.
I’ve been thrilled to get involved in some research into the New Zealand solar industry, and learn a lot talking many people working in it. Thanks to them all. Finally and most of all I’ve been setting up a law firm, Brent & Partners. That’s been a big challenge, often daunting and requiring a fair measure of grit at times, but with the help of some amazing people I’m down the last few set-up details now. Thanks to these people too, who know who they are. I would be pleased to talk with anyone interested in talking about how we might work together. Readers can be assured that I won’t use these pieces to comment on firm endeavors again, unless there is a really good reason.
In 2025 I’ll aim to take the frequency with these efforts as it comes. I want to keep the quality as high as I can, and demands on time mean that efforts will need to be less frequent and perhaps even more sporadic than last year.
In terms of things to offer two cents on, I continue to welcome suggestions from readers. I had wanted to start with the two-pronged conservation law reform being led out of DOC – one on access charging to national parks and similar places, the other on “modernising” conservation law more generally. These are majors for anyone who cares about their individual relationship with this place, or our collective relationship.
But like an old dog with an old bone, for now I’ll stick with a 2024 focus for a little longer. This was the Fast Track.
What’s in a name?
Readers may recall that in early July last year, the government briefly tried to change the Bill’s name to the One Stop Shop. In short order it then appeared to abandon this attempt. In keeping with my judgement that the government has consistently shown deft political handling with the Fast Track, I began to wonder whether this abandonment might have been deliberate, perhaps making a virtue of the reality that the name “Fast Track” has stuck.
Referrals Applications and “Unlisted Projects”
It’s starting to seem possible that this may well be the case, because there is no real possibility that the Fast Track will be ‘fast’ for the many projects that are down the priority list of 149 now listed in the Act as “Scheduled Projects”. For most, there will be just too many important projects ahead in the queue, and New Zealand has a limited pool of people to work through the queue’s processes.
Today, there is even less chance again that the Act’s processes will be ‘fast’ for another set of projects. These are the many projects that may now try to access the Fast Track regime on top of the 149. Unless I have made a very basic mistake of statutory interpretation, new projects are able to do this through the “referral application” route in Part 2 Subpart 1 of the Act. To cut the legalese, it seems that people who thought that 2024’s list of 149 projects “was it” were mistaken. While there are inevitable hoops to jump through, the “referrals application” process makes the Fast Track potentially available to anyone for any sufficiently “important” project, permanently.
The MBIE website has a link to “unlisted projects”. Currently there are about 230 projects listed at this link. Using basic arithmetic, it seems that these 230 were all, or almost all, projects that “applied” to Fast Track Advisory Group, or FTAG, process in 2024 and back when the Act was a Bill,[1] then were declined through that process by omitting to put them in the Bill.[2]
It is not clear whether MBIE will disclose whether any of these 230 are now trying to use the Act’s “referrals application” process. In other words, whether the public will get any detail who may be trying to work their way into the “Fast Track” in 2025.
[Update 5 February: I now understand that the 230 were all projects that “applied” to FTAG process and were declined. A permanent “referrals application” process website will open very soon.]
A new kind of zombie?
Competent firms cannot have failed to discern what remains on offer through the “referrals application” process, namely some additional project certainty borne of:
Much more restricted opportunities for public involvement; and
Access to lower tests for environmental effects.
Some firms will make social license calculation and weigh it off against these prizes. For example, some firms might assess a planning regime and discern that “they’ll get consent” with some reasonable conditions. They may not want to risk taking the social license hit often thought to be associated with the Fast Track in those circumstances. Others firms, of course, will not be interested in such calculations.
Readers will recall that some projects admitted to the Fast Track Act’s schedules - projects like Taranaki seabed mining, the Waitaha Dam in Westland and Ruataniwha Dam in Hawkes Bay - attracted the name ‘Zombie projects’. They attracted this name because they had already been denied planning permission, often more than once, including through adverse Court decisions.
Today, there are many anecdotal tales in communities that projects on the list of 230 rejected projects, may be trying to get into the Fast Track again. One example may be the Taheke 8C Hydro Development Project near Okere Falls, Rotorua, where I am given to understand public meetings have occurred. To say nothing at all of the merits of any such project, if any of these “unlisted projects” make it into the Fast Track at the second time of asking, the Act will bring to life a whole new kind of ‘zombie’.
Some of the “listed” zombie projects had had many previous lives and deaths. Should anyone try to revive this new kind of zombie, one that was almost killed by the Fast Track itself, there will be a strong pointer to a set of developers who have not been able to accept that “no means no”. There will also be a clear intimation that this form of denial is what many zombie projects are really all about. Because after all, developers of original zombie projects had the excuse that they were testing their project against a new legal regime – but not so for “unlisted projects” zombies trying to enter the Fast Track twice.
In all juridical processes, some prosect of finality is pivotal – if disagreements or tests of facts against legal standards can be forever revisited, people will start to ask why they would bother submitting to the jurisdiction of any judge or Court at all. It is, then, a sad prediction that the health of finality in consenting is going to get much worse before it gets better, even with a development-friendly Fast Track. But for the well-resourced party, the cascade of questions raised by the permanent existence of a Fast Track regime is becoming as clear as it is damaging to the rule of law.
What is in a name.
Which comes back to the Fast Track’s name. The Act seems unlikely to offer a material speed advantage to many of the 149 “listed projects”. It seems less likely again to offer that advantage to any project that might enter the Fast Track through the “referrals application” process. But lack of consenting speed has been a widespread and well-understood problem. A need for speed is correspondingly unobjectionable for Joe or Jane Public.
The position of “referrals applications” shows as clearly as anything that speed is not what the Act is about. The Act is an attempt to offer certainty and access to legal tests with lower environmental standards. The certainty offered by the Act will be to some extent real, particularly for projects generally regarded as non-controversial but facing a high consenting burden. But it will be more illusory than many would like, especially for controversial projects. That’s for reasons (among others) explored in detail in previous posts. And that leaves the Act largely with just the permanent ability to access lowered legal tests - at best with outcomes of “meh”, and worst with much worse.
Seen another way, then, even the decision to go the public and stick with the name ‘Fast Track’ back in July 2024 seems another example of deft political management.
The Fast Track is where the key action of 2025 will be
Shane Jones made comments about mining Stewardship land this week. A release is here. He said Stewardship land was land that “should be mined”, called it “scrub”, and implied it was not DOC land. These comments were little more than trolling. A more complete account – including the way in which such comments have their validity as well as severe limitations – is here. That was my comment, and here is another - unfortunately some others rose to the bait a bit more.
But to give everyone their due, some serious issues are at stake. If we combine Jones’ comments with the possibilities available through the “referrals application” process discussed here, we can make a firm prediction about mining consents this year. It is that despite a complete disinterest in speed, mine developers will try to take their projects into the “referral application” Fast Track lane purely to gain access to lower environmental tests. Many may not make the social license calculation mentioned above, reasoning that the New Zealand legal regime for bonds will not be strongly applied, so that “cutting and running” will be an option at the end of a mine’s life and social license either less or irrelevant. Indeed, they have every reason to think along these lines, because it appears a Crown Minerals Amendment Bill might weaken the bond regime - see clause 41 of the Bill here.
Whether all this will make a mockery of recent comments from the Minister of Finance, Hon Nicola Willis, about quality mining environmental outcomes is for people to judge for themselves. If like me they think it might, it is not yet all “poor Minister” though: she can choose whether or not she opens herself to further mockery by whether or not she chooses to cultivate a serious discussion about economic return – taking in issues like royalties and the place of mining within the wider economy. Of course, if she wants to do that she will have to overcome Jones’ own apparent refusal to entertain royalty changes in July last year (see reference in my piece here).
Last year I argued in many pieces that the Fast Track was important, but had its side-show quality. That was because focus on it allowed the government to take the focus away from important freshwater issues. This was the correct diagnosis then and now because in 2024, the government achieved the remarkable feat of becoming the first in a generation or more to weaken truly bottom-line freshwater protections – virtually without fanfare (see new section 127(3A) of the RMA and commentary here and elsewhere).
This year the legislative focus will be on the reform of the Resource Management Act. A media focus will follow, and for some policy wonks in places like NGOs and the commentariat too, the future arrangement of abstract “RM” documents will prove irresistible. We can, then, expect a lot of noise about this. For you and me, the common person, this focus will also have its logic: at some point we will have to deal with that “RM” regime. And in the final analysis, the future resource management system is important too, so let’s not be too hard on anyone wanting to focus on these issues.
But the permanent ability to walk around the RM regime through “referrals applications” means that in important ways reform in this area could be one of this year’s big distractions.
Put the other way around, this year much of the action with real potential to advantage developers, or from another perspective to sneak through environmentally damaging projects, will be with the Fast Track’s “referrals application” process.
With luck MBIE can be relied on to do the right thing and make “referral application” materials available in a timely and proactive way.
Once again, happy new year! And thanks again for your interest in Brenty’s Two Cents
AB
3 February 2025
[1] Long time readers will recall that the FTAG operated similar process to the one for “referral applications” – people interested can find my previous FTAG comments summarised here.
[2] Summary MBIE information is that the FTAG reviewed 384 “applications” and the government selected 149 of these, leaving 235 which were not admitted to the Schedules as “Listed Projects”.