The Fast Track List aka More Distractions
The list of 149 Fast-tracked projects is out. There has been a lot of commentary on it. This short post will:
Ask why we have a list now,
Suggest what “the list” reveals and obscures, and what that means, and
Suggest that the Fast Track is still having an unwelcome distracting effect on more important issues.
Why a list now?
Several groups have claimed credit for the release of the list. Doubtless some credit needs to go to these groups, where it is due. But we need to take care before popping the corks on the bottles of Château du Transparency: the release of the list may not be what we think it is. Whatever we might think of it the Fast Track, the government has always done an excellent job with the Bill’s political management and there is no reason to expect that it might now have fumbled. For example, as I pointed out in early June, the government achieved remarkable success in keeping the public discussion focussed on the mechanics of the Bill and away from “the list”.
For these reasons, my hypothesis is that we have “the list” largely because the government now feels that it is safe to give it to us, and sees utility in doing so. In this way, it may be that the list is a device more of theatre than of substance and transparency.
Readers might remember back to the shorter days of winter, not so long ago, before the daffodils had come up. At that time and in the Fast Track world there was the absence of “a list”, and the character of public Fast Track discussion had an abstracted quality.
Using that quality, the government could, and did, tar opponents with a “Cassandra”- or “cried wulf-” type brush. There was – and could be – no focus on the actualities of environmental or economic loss or gain, or whatever else we might have found associated with actual project proposals in actual places.
To add insult to injury, the abstracted quality the government had encoraged matched well with the disposition of many in Wellington “beltway” type circles. Some wanted endlessly to discuss the mechanics of a Bill about which we knew of no concrete application. These people looked silly to many others for doing that, as if they were worrying about castles in the sky. Many people seemed to have difficulty seeing this, or the political trap into which they had been lured. Too-large claims were made about issues that didn’t widely resonate: final Ministerial decision-making, for example. It wasn’t that these weren’t serious issues. It was that they were not the only serious issues with the Bill, perhaps not the most serious ones, nor the kinds of issues on people’s minds. All this created the space in which the government could make a centrepiece of a concession on Ministerial decision-making - saying it had “listened” in a desire to make “sensible changes” - when the changes to “what might actually get built” as a result of this change went largely unexamined. (Hint: it is still to early to say but the smart money is on “this will make no difference”.)
Now we have “the list” and we find what many see as “the good and the bad”. There is also quite a lot of “meh”. For example, there are offshore mines or prison extensions many would dislike, but there are also are motorway improvements many would like, and lots of houses. Some of the houses will be in strange places, but we can all understand the SME landowner taking the opportunities many of us would if we could, can’t we?
What the list means
In this way, and by releasing this list now, the government has engineered another shift in the territory for the public debate of the Fast Track. On this new territory, opposition to the Bill will seem overblown for new reasons.
Now, it seems, we can see something of the actualities of environmental or economic loss or gain, and whatever other plusses and minuses, that the Fast Track might bring about.
But this new detail potentially obscures as much as it reveals.
For example, the 149 projects came from at least 384 “applications”. How the “Fast Track Advisory Group” and/or Cabinet made this selection is not entirely clear. We are assured on the one hand by Hon Chris Bishop that the process was “robust”, but on the other hand Hon Shane Jones has simply been criticising those who would ask questions. Of course, Andrea Vance has raised still-answered questions about all that, I have raised issues of the process’s constitutional propriety (and perhaps even legality issues), and many others have made their contributions. We can remain only puzzled about what the failed 235 or more “applications” were, where they went and why.
Given the government’s high-quality political management of the debate to date, and the decidedly “good, bad and meh” atmosphere achieved through the release of the list, we can fairly imagine its careful government cultivation. Was any such cultivation in service of the public better understanding of the actualities the Bill might create, or in service of some other end?
Above all, though we might have a seemingly detailed list, and project approvals might seemingly be foregone, we might reflect that we still have no idea at all about the actualities that will emerge from the Fast Track. We simply don’t know yet what’s going to be built, let alone many details about much of it at all.
Even within the 149-project list, it’s not clear what’s going to get into the hearing processes first, and within what timeframe all 149 projects might be delivered. Is there really enough expert panel capacity to robustly deliver fast track consents for all the projects in a timely manner? What about engineers and others? Which projects are ready to go now? Which might need a bit more care, even if we are going to move fast? Which might cut across one-another and how? What would we do about that? And so on.
For all these reasons, the “good, bad and meh” quality of the list will in time prove that it is more theatre than it is a picture of future New Zealand. As to what the list actually offers, its certainty is a phantom only – both to the public and to would-be builders. By the time we feel the inevitable change in political winds, whether we think this is good or bad, we might have ended up with only the good, only the bad, only the meh, or anything in between.
To reiterate, then, the Fast Track’s outcomes could yet be almost anything. At one end they might reflect elements of a carefully thought-out long-term infrastructure plan for New Zealand, even if that thinking is contested. At the other, something some might see as Matua Jonsie giving back to his mates. We just don’t know.
Seen in this way, “the list” is another example of partial information, revealing as much as it obscures, and continuing the government’s track record of excelletnt political management of the Fast Track. But as I’ve said before, it might also reflect a government lacking the true confidence in its convictions, and unprepared to wear the full political cost for unpopular infrastructure or industry it believes in.
More Distractions
In the Brenty’s Two Cents of 6 June I suggested that the Fast Track is at once important and something of a sideshow. If the public discussion focussed on it too much, the resulting focus would not be on the right issues. Albeit that “I would say so”, the obvious phantom-like quality of the list seems to be bearing this out.
With all the recent media coverage on the Fast Track, there has been relatively little on the Resource Management (Freshwater and Other Matters) Amendment Bill. What commentary there has been has tended to focus on the treatment of the National Policy Statement for Freshwater, including the diminishment of “Te Mana o te Wai”.
That diminishment is regrettable in my view. It also sounds like it will get complex (see commentary under other matters), and undoubtedly this will only benefit of lawyers, planners and the well-resourced. But as I suggested in early July, even Te Mana o Te Wai changes are a relative sideshow, at root confusing the intention of a document (the NPS) with its effect out in the physical world (precisely none). The trick with Te Mana o Te Wai is not to worry too much: in the New Zealand common law, in Lex Aotearoa, freshwater has mana. The water’s mana may be so strong that it cannot be killed even if Parliament explicitly says it has no respect for that mana. As such, Te Mana o Te Wai will very likely live on – and will be capable of use in Courts etc – whether or not it shows up explicitly in legislative documents.
The real story from the freshwater Bill, then, was predictable in May. It is that this Bill will weaken protections for freshwater in a way that no government has for one or maybe two generations. It will alter a Resource Management Act 1991, or RMA, provision called section 107, which is one of the few core RMA provisions never to have been amended. The reason for all this? A Court decision that Environment Canterbury, or ECan, and the government didn’t like.
Properly understood, and as it was once understood, section 107 is a bottom line for freshwater quality, operating by restricting discharges of contaminants. It only works for limit cases - as a backstop - when effects on aquatic life might get “significant”. Arrangements in and around section 107 go back to 1967 in legislation, and these seem to reflect more ancient English common law. As I suggested in May and later posts, the forgetting or pushing away of this bottom line has been a defining feature of the previous generation of freshwater discussion. Making and iterating freshwater NPSs since about 2010, including through Land and Water Forum processes, has helped with this forgetting or pushing away, as we now we find again in the rationale for the Bill. (See notes at “consenting discharges” where the intention is to align with the “NPS approach” of slow reductions in pollution. As an aside, this raises real questions as to whether freshwater NPSs have on balance done more harm than good - but we’ll leave that for now.)
Right now, and since the RMA was enacted in 1991, the law has unambiguously said we cannot discharge contaminants to water or groundwater in ways that might “significantly affect” aquatic life. Not from towns, factories, or farms. The reasons we see significant effects on aquatic life all around us in New Zealand are explained in the posts linked above. They do not include a reason that “the law always allowed it”.
The changes in the Bill will allow large polluters to merely “reduce” their effect on aquatic life over the duration of a permit. For a large irrigation scheme, this might mean a mere “reduction” of effects on groundwater over 35 years, rather even than a need to eliminate “significant” effects over that timeframe. For a city like Auckland, the need to sort out sedimentation issues to the Gulf may be much reduced.
Gone, then, seem to be any notions of cleaning up, even over a generation or so.
We can already see that the adverse outcomes of this arrangement, if they are measurable at all, will be in the order of billions of dollars of drinking water cleanup, over an indefinite period, not to mention the unknowable possibilities for adverse human health outcomes. It’s not conceivable that everyone will consent to this, so Te Mana o Te Wai ideas and others will come before the Courts, and not everyone will like all of the outcomes. (Least of all, perhaps, those multi-generation family farmers lumped in with their corporate - utterly different and increasingly remote - counterparts.)
Predicting the future is a mug’s game, but for a moment let’s locate ourselves in 2050. Let’s simply extrapolate the patterns that will be locked in by this Bill, and assume they will go on unchanged. We will have, for example, another 30 or so years of nitrogen into aquifers, well above dissolution rates. We might also have a different aquifer recharge regime given much less ice out the back of eastern South Island areas. There will also remain a smoldering disrespect for significant Court decisions seen to “go against” the government or “Big End of Town”.
Let’s reflect on the 2050 certainties associated with what we might call a “fishtank New Zealand” – an image coming to me through other authors. In this fishtank, this substantially artificial environment, we presume to “manage”, and to be able to manage everything by this or that intervention. In making interventions, we are advised always and solely through this or that model, and much less through measurements of the physical world. But the physical world won’t go away, and is frustratingly visible to passers-by. So sometimes, when things are too embarrassing, we are forced to try physical interventions. But always last, and always after first trying to change words of pieces of electronic paper.
One certainty in fishtank New Zealand is widespread and poor natural water quality. It wasn’t for lack of efforts in the political arena, or in the several Court cases pulling the other way. The lower quality is okay, the authorities and Big End of Town tell us, because we can handle things via technical fixes – and of course, okay or not, we have no alternative to our current high cost/output models, or our present export industries.
We find surprise one day in the library, happening upon an old book by G E Mannering called Eighty Years in New Zealand. It’s from 1943 and smells musty in a way few things seem to now. It has two chapters on “Fifty years of fishing in New Zealand”. We read of swimming in Christchurch’s Avon River; of fishing at the Rangitata mouth. It’s a funny thing: we don’t recognise the places or acts of which we are reading, though we know their names and we know the places themselves well. The stories echo the ones granny told us about her grandpop, of the trout in the Tongariro, Selwyn or Mataura Rivers.
When, we might ask, did our certainties of 2050 begin to crystallise? When did something other than our world become unimaginable? When did the need for ever-more and ever-less-affordable infrastructure with which to treat water for drinking, both for stock and animals, come to feel so inevitable? Was there a time when someone perceived something other than the brittle quality we perceive in our fish tank New Zealand arrangements of today? And how on earth did we get to the situation where governments felt they need to stack the Courts, like grandad used to chortle at the Americans about?
It seems possible that we will come to catalogue 2024 as one such moment. Even with the Freshwater Bill that year, we find that preceding that year were fifty years’ forgetting or pushing away clearly agreed commitments to a life lead within our means, within limits. But until then, and even despite the pushing away or forgetting, there were still intimations of todays that might have been different: even conservative politicians of the 2010s spoke of a generation’s work in cleaning up. In 2024, there seemed a decisive turning away from that commitment, and combined strangely, sadly, or even perhaps predictably with barely a national murmur.
Here, then, was a crystallisation of the certainties that make up our relationship with freshwater in our fishtank New Zealand of today.
We’re interrupted from the historical reverie by the arrival of ECan’s rates bill, via antiquated email. Same as last time: can’t afford it, but what were they doing again?
It is great to see some of New Zealand’s freshwater experts starting to see the penny drop on the importance of this issue. Whether you think my future is fanciful or not, the issues are no sideshow, and at the very core of how we want to relate to our place. Once again, it seems time to begin a conversation towards something more durable and widely-agreed than the lobbied-for and narrow fixes of the 2024 Bill.
Thanks to readers who got in touch about my post the Treaty principles discussion last week. And thanks again for your interest in Brenty’s Two Cents.
PS As this effort went to press, RNZ reported that Southland Regional Council has asked the government to urgently amend section 70 of the RMA. As also explained in previous posts, section 70 is the mirror or twin of section 107. It too has sat untouched for over a generation. As it stands, it prevents regional rules that would simply allow people to discharge contaminants to water, without getting a consent, if the rule involved discharges causing significant aquatic effects on aquatic life. Southland would seem to have it that people should simply be allowed to cause such effects. Almost breathtakingly, it would seem that a longstanding (and surely unsurprising) law preventing this is a “technicality” to them. The reason? You guessed it - a Court decision the Council didn’t like. We can predict an urgent supplementary order paper amending the 2024 Freshwater Bill at a late stage.