More on freshwater bottom lines and the Fast Track

Welcome back and thanks again for your interest.

A couple of weeks ago, I said hello and established an aim for these pieces.

Last week I gave readers some impression of myself, my motivations, and where I stand in all this.  I then went on to discuss existing legal bottom lines for freshwater quality in the New Zealand law. These bottom lines were forgotten or perhaps even deliberately buried between 1991 and 2008.  The government is now looking to drop them, ever so quietly.

My perspective on the RMA’s freshwater law is not common.  As such, I’ve had a range of reaction.  So please do mention this Substack to anyone you think might be interested in adding to the discussion. 

For my part I’ll look to keep going weekly or weekly-ish for a little while and as time allows.  That will be all the more worthwhile if these pieces really do form conversation starters. Some will not be as long as today’s, and not all will be in the legal weeds quite so much.

Last week’s discussion finished up with some comments on the government’s Fast Track Approvals Bill, and its relevance to recent developments in freshwater quality law in Canterbury.

This week I’ll continue with the latter theme for a bit. Then I’ll come on to the Fast Track Approvals Bill, or Bill, itself. 

Some more thoughts on the Fast Track Approvals Bill and recent Canterbury freshwater legal developments

Some people asked me last week about my comments on the relationship of the Fast Track Bill and Canterbury water.  To recap, I suggested that the Fast Track was obscuring the appropriate focus for Canterbury issues, which issues attach to the underlying and existing law.  That underlying law is where the real game is, and it important to keep sight of this.

I thought I’d try to say a similar thing another way, because in my view not enough people are seeing that the Bill is both important and something of a sideshow.  The result is not enough light on the right issues.

Let’s start with the old phrase that “I’m not a betting man, but…”.  This is where I am on Canterbury irrigation schemes looking for Fast Track consents of various kinds.  At its most basic, this is because people want to keep going down tracks they feel themselves committed to – continual dairy growth and squeeze etc.  The Fast Track offers an easy way to do this.  It does this by displacing the rest of the existing environmental law, which is generally understood to be tightening.

Of course, not everyone will get into the Fast Track.  Some will miss out because other projects are priorities; some will miss out because the government doesn't see their project as important enough; and still others will miss out because their project is just too politically risky.

We know that not even the government thinks the Fast Track will last, for reasons covered last time.  If we add that not everyone will get into the Fast Track, then it becomes obvious why a focus on calibration of more durable legal tools is needed.  That’s the case for a number of actors and perspective.

The kicker for freshwater law is that the country has been living on a legal fiction for a generation.  For various reasons covered last time, different actors have internalised this fiction:  the almost universal story is that freshwater law was weak for half a generation from 1991 and has been strengthening ever since.  This happened, the fiction goes, through the promulgation and iteration of various National Policy Standards for Freshwater Management, or NPSs, from 2011.

This is a potent fiction in that it is partially true, even though it is false when presented as the “whole story”.  It’s true because some of the specificity in the various NPSs has had a positive effect.[1] 

Unfortunately the progress stories associated with the NPS era obscure another important aspect of the truth.  Which is that New Zealand freshwater law has long been underwritten by very strong but appropriately flexible bottom lines, which have very seldom been asserted.  As soon as they were, as in ELI’s recent Canterbury case, ECan asked the government to weaken them. 

The government seems to have taken ECan up, and as such may be the first government since the 1970s to unambiguously weaken New Zealand freshwater law.  Let that sink in.

Such a step has adverse environmental potential, obviously. But it’s not even clear such a step is economically wise.  And after living a legal fiction for so long, we can add adverse effects on our commitment to the rule of law. 

All of that is why there is a need to focus both on the Fast Track, and the underlying freshwater legal settings.

My view is that where a change involves something so fundamental as a bottom line for freshwater law, it should be properly and openly debated.  There is a legitimate debate to be had, and the back room is no place for such a change. 

For that reason I hope readers will join me in helping create this discussion by sharing these ideas a little more widely.  Feel free also to contact me if you’d like to understand my freshwater legal perspective better.

The Fast Track Approvals Bill

I made a personal submission on the Fast Track Approvals Bill.  It was a bit tongue-in-cheek in places, and also done in a rush.  I was also involved in the ELI and FMC submissions.  All this allowed me time to have a good think about the Bill in terms of its detail, its architecture and its context.

We’ll get into some of that today.

I made a conservative case against the Bill, ELI offered an environmental case, and FMC a recreational one.  Of course, 16,300 others made their own comments.  As such most of the basic case for and against the basic elements of Bill is now quite well traversed.

Here I’ll discuss two issues – both of which I hope are outside the usual scope of the public discussion on the Bill.

The character of Select Committee discussions

The first point is about the character of the Select Committee discussion on the Bill.

As Hon Chris Bishiop said openly on Q+A as long ago as 10 March 2024, the government only wants to talk about the mechanics of the Bill.  It has since gone to great lengths to keep things away from the more or less open-ended list of projects that the Bill might enable. 

To me it is striking just how comprehensively the government has succeeded in keeping the discussion focused exactly where it wants.  But standing back, the focus on the mechanics of the Bill has made for an almost nonsensical public discussion.  Why is that so?

We can start by noticing the abstracted character of this focus.  It misses almost anything on the actualities of environmental or economic loss or gain, or whatever else we might find associated with actual project proposals in actual places. 

Even if we trust the individual Ministers or processes expected to deal with these yet-unknown actualities, in the abstracted discussion we seem to be expected to ignore too many questions.  What happens when the shoe is on the other political foot?  Is the Bill intended to articulate a permanent relationship between consenting and planning?  If so, given it overrides almost everything, what is the point in planning anymore at all?  And so on.

But even these kinds of questions treat the Bill as if it were being introduced into some idealised New Zealand, one existing outside an actual moment in history.  What about the real country? The one in which all agree that planning law is too gummed-up and contributes to a national housing crisis?  Or the real country debating what is effectively an emergency Bill outside, but soon after, emergency circumstances that caused some of the biggest shows of mistrust in institutions in living memory?

In this real New Zealand, the Bill’s mechanics, its means, are seen to be so inappropriate that the opposition has unambiguously said it will repeal the Bill.  It has even intimated that it may cancel or review consents obtained through the Bill (which is an appropriate and under-emphasised position in my view, for reasons I won’t get into).

…But the opposition is irrelevant in the real New Zealand, I hear you say.  So what about the government itself? 

On that side of the House, the government’s current work programme includes work on other RMA amendments.  As covered last time, we need only notice that the Bill would otherwise make this work more or less irrelevant.  So why work on these things?  The simplest guess is that the government sees no long-term future for the Bill.

There are a few other possibilities here, but many are not flattering for the government.  Perhaps, for example, the government knows that mums-and-dads-building-their-first-home will always need access to standard laws – indicating that the Fast Track is not about getting more houses built, as has sometimes been said.  Another possibility is that the government really would be content with all this effort to get a few big-ticket projects ticked off.  But if so, in the absence of information and the presence of secrecy, we might ask which projects?  We know that the Fast Track cannot be about getting only public infrastructure built – because it does not limit its “national” or “regional” “benefit” tests to “public benefits”, as the Parliamentary Commissioner aptly observed.  So is the Fast Track really more about private benefits for the “Big End of Town”?

A focus on the mechanics of the Bill obscures many of these kinds of questions.

It is probably right to show concern about the mechanics or means of a Bill this unusual.  The Bill can and likely will eventually be used to consent one or two big projects, with whatever environmental, social and economic properties these will have – just as the National Development Act paved the way to the Clyde Dam but not much else.  Projects could be anything from visionary goods to white-elephant disasters.  As at Clyde, only time will tell and nature will lose something in the meantime.

All told, though, focussing too closely on the shape of inappropriate tools that won’t last must represent wasted effort.  Once again there is a need to focus both on the mechanics of the Fast Track and the actual gains and losses it might bring about. 

Seen this way, the opportunity cost in a mechanical focus is to effort in undermining or even shoring up case for actual, real, concrete, projects – the very things the government wants us not to discuss. I may be getting long-winded, but my view is that the focus needs to come on to actual projects, yesterday.

To take one explicit example, where is the detailed public scrutiny of the consequences for Hon Shane Jones’ public utterances in support of various mines or aquaculture proposals? While there has been some media cataloguing of his utterances, there has been relatively little said about their consequences.  It would not take many questions for the legal community to give a feel for this. 

For what it is worth, my own view is that the legal tests for predetermination or “apparent bias” are very high, and even higher for Crown Ministers than other decision-makers.  Nonetheless, Mr Jones’ comments must be already have put the future approval of certain projects at severe risk of legal proceedings on these grounds.  The bold and resourced actor with initiative and flair might even be able to fashion these issues into legal proceedings now, if they have something to save or a competitor to frustrate.  Whether or not such proceedings eventually succeeded, they would destroy the possibility for fast or efficient consenting.

Let’s take another example.  Where there is a rush – as there has been with the projects being considered for the inclusion in the Bill – there will be an evidential hole.  An evidential hole will always present risks and opportunities to different people.  Worrying about the Bill’s mechanics takes opponents’ or competitors’ time away from finding the holes, or even protagonists’ time from shoring them up. 

Given the avalanche of project details coming, is this a wise opportunity cost for anyone to be paying?

The Fast Track Advisory Group

There is one mechanical aspect of the Bill that is important and under-discussed.  This is the story of the Fast Track Advisory Group, or FTAG.

Non-legal geeks may need to bear with me a bit from here on out, but I do hope you will, because the FTAG could be one of the more important stories yet.

Recently, Environmental Defence Society, or EDS, secured release of a tranche of documents about the FTAG.  Kudos to EDS.  It had been clear from the outset that the FTAG is a very strange group with unique properties, and the EDS release helped clarify that. 

The FTAG was appointed by the cabinet to operate processes to decide which projects will end up in the Schedules to the Bill, and thereby getting automatic access to one of two different Fast Track processes.  It is completely different to the Expert Panel groups who will be chaired by judges and consider projects eventually admitted to the Fast Tracks.

The processes the FTAG operates were not even decided when it was appointed. They appear to prefigure the process that people will be able to use to get into the Fast Track Act later if they do not get into a schedule in the Bill now.  Previously available documents appeared to indicate that applicants to the FTAG had been asked to withdraw their applications under the existing laws like the RMA, though this no longer seems to be the case.

Because the application requirements to the FTAG were so clear, its process probably becomes something an applicant could expect to operate “as advertised”, and not arbitrarily.

In this way, the FTAG process starts to look decidedly odd.  The situation almost is “as if” the “applications bit” of the Bill is already the law now.

It is not illegal to pre-empt something that might be in a law in the future.  Think of double-glazing a new house before the Building Code changed to require it.  However, if the act cuts across or suspends some existing law, there will be problems.  The famous case in New Zealand on this is Fitzgerald v Muldoon, where the former Prime Minister suggested that the operation of an established superannuation scheme be suspended.  More recently the same legal ideas got airtime in a key lockdown legality case in 2021, and when Associate Minister of Agriculture Andrew Hoggard suggested Councils stop implementing “Significant Natural Areas” or “SNAs”, something he didn’t like.  He had to u-turn almost the next day.

Others may be interested in who is on the five-member FTAG, what their associations are to Ministers and would-be Fast Track applicants, etc.  Others might want to know if the FTAG members know what it is like under the bus, and whether they are being paid up to $1600 per day in part because they risk being thrown there.  And so on.  These are all interesting and under-explored questions that remain relevant to the public discussion, because documents indicate that the FTAG’s work is ongoing.

My question is legal or constitutional:  it is whether the FTAG process does cut across existing law, and is therefore unconstitutional or unlawful.

To sketch out an analysis of that question, we can start by noticing that making Bills is something Parliament does.  Choosing the words that will go in a Bill, and will become an Act, is a job for MPs.  Of course, they always get advice when they make these choices.  Documents explicitly show that the FTAG is not operating under statutory power.  For this reason, if challenged over the FTAG, the Crown would almost inevitably say that it is operating under Parliamentary power – and Parliamentary proceedings cannot be brought before Courts.

Equally, it is possible to argue that the FTAG is operating under what is known as a “third source” legal power.  This is like a fancy way of talking about the Crown doing Crown things when it’s hard to point to other legal authority.  There are at least three reasons why.  First, the FTAG was appointed by Cabinet, not by motion of Parliament.  Second, it is operating what walks, flies, eats, and quacks like an administrative process.  Third, it cannot ultimately “decide” anything.  As documents show, MPs themselves will eventually have to bring amendments to the Bill containing the projects to be scheduled before the House.

It would have been possible to make a practically identical arrangement where the FTAG operated once the Bill became law. In this situation it would clearly have been operating under statutory powers, which are practically always able to be supervised by the High Court. 

Because the FTAG arrangement allows the Crown the ability to offer a “parliamentary proceedings” defence to challenges on Group processes, which are all but statutory or administrative, it may also mark out the arrangement as an unusual and undeclared attempt to infringe on the inherent supervisory jurisdiction of the High Court.  The Court usually supervises administrative processes through judicial review, and routinely dismisses other Parliamentary attempts to circumvent such supervision, most commonly through privative clauses.

If the FTAG operates under Parliamentary authority, this is a new development in ways for governments to avoid judicial scrutiny using Parliament as a shield.  It is the kind of device that arguably upsets the separation of powers (which in our Westminster system harks back to at least 1688).  Ongoing use and ab-use of this device would deserve serious discussion, and probably the development of some convention - its over-use would represent a grave turn in constitutional stewardship.

If the FTAG operates under “third source” authority, it will have procedural fairness obligations.  As such, the FTAG process might cut across Parliamentary sovereignty in binding the Parliament to obligations it did not agree to.  This arrangement may be amenable to judicial review, and once again the arrangement would seem to upset the appropriate separation of powers.

Eminent legal minds will have their views on all this.  It is puzzling why the debate has not traversed this territory – or it may simply be that I am off base. Indeed available documents show no inkling whatever of these issues, and only small redactions for legal privilege. 

To finish, what seems certain is that the FTAG process is no more and no less than a device to give political cover if details of the Fast Track projects leak, and the public response to particular projects is sufficiently adverse.  In such cases the government can and will recount the excuse offered long ago by the singer Shaggy.  They will say the inclusion of the offending project/s in the Bill “wasn’t me”. 

Seen this way, the FTAG arrangement is that of a government lacking the political conviction to take full responsibility for potentially unpopular Fast Track projects. This offers yet another suggestion that the projects coming will not pass muster with the New Zealand public.

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[1]                  As an aside, to the extent the legal strengthening hasn’t shown up in the physical world, this is part of why most have focussed on the content of the NPSs themselves.  It is also part of why most have missed the basic fact that pieces of paper will say what they say – and that they will mean little unless enforced in the real world.  In other words, too few have looked to chronic shortcomings with compliance, monitoring and enforcement – a subject ELI has taken up in several ongoing cases.