New Zealand is about to embark on its largest infrastructure programme in a generation and the Government has proposed avoiding public input to speed up the delivery of projects. We outline an alternative, which accommodates valuable public input, without delaying delivery and avoiding our children and grandchildren having to live with short-sighted decisions.
The Resource Management Act (RMA) is New Zealand’s key piece of legislation that sets out how natural and physical resources should be sustainably managed. This involves considering the effects activities have on the environment in the present and future when making resource management decisions. There is always a delicate balance between development and safeguarding the environment for future generations, however in seeking to boost the economy in response to Covid-19, the scale must not be tipped so far that our future generations pay the price.
To accelerate post COVID-19 infrastructure projects by fast-tracking the RMA process, the Government is planning to side-step public input into planning and consenting. This approach risks overlooking potential negative impacts, failing to deliver maximum benefits for communities and being delayed by factors that could have been avoided if known earlier.
In this article, we consider the positive and negative outcomes observed in response to previous crises – the Kaikōura and Christchurch earthquakes, and propose an alternative that will accommodate time constraints and improve project outcomes.
Photo : Sperm Whale, Kaikōura (Patrick O’Neill)
What is proposed
In order to assist projects during the Covid-19 recovery period, the Government is seeking to create an alternative consenting pathway with the COVID-19 Recovery (Fast-track Consenting) Bill. The Ministry for the Environment states in its 12 May Cabinet Paper that the bill “…will enable acceleration of different sized and located infrastructure and other development projects, to provide certainty of ongoing employment and investment across New Zealand, while also achieving the Government’s objectives for economic, environmental and social wellbeing.”
To do this, the Bill will bypass the public notification process that is contained in the current Resource Management Act 1991 (RMA). The importance of public participation is to recognise and protect affected parties' rights and general public interests, while also improving decision making standards. Under current law, the step-by-step process for determining whether public notification is required is set out in section 95A of the RMA. Public notification is currently mandatory where; (a) The applicant has requested public notification; (b) The consent authority makes a request for further information and it is not provided, or the consent authority notifies the applicant that a report will be commissioned prior to making a notification and the applicant does not agree to the commissioning; and (c) The application is made jointly with an application to exchange recreation reserve land under section 15AA of the Reserves Act 1977.
Under the proposed COVID-19 (Fast Track Consenting) Bill, specific large-scale Government-led projects could proceed without any further decision or consent, and a category of central and local government projects could occur as of right, subject to meeting specific criteria. Specific details of these projects have not been announced, but are likely to include roading and active transport projects, freshwater projects, maintenance and establishment of public tracks and huts, and water and sewage infrastructure.
For all other resource consents for publicly or privately led projects, applications must be made to the Minister for the Environment, and will then be evaluated to decide whether the project should be fast-tracked. If the project is not approved to be fast-tracked, it must follow the usual process prescribed in the RMA. The Minister can refer a project to an Expert Consenting Panel if the Minister considers the project meets the purpose of the fast-track legislation. The Minister may take into account criteria such as economic benefits for those affected by COVID-19, social and cultural wellbeing of current and future generations. The use of the word “may” in the drafting means that there is no requirement to meet these factors. The Minister also has the discretion to decline an application.
The cabinet paper identifies likely constraints which include that a proposed project cannot be a prohibited activity under any current planning documents, and applicants with a poor compliance history are unlikely to be successful. Once a project is accepted as eligible, opportunities for public participation will be very limited although could involve consultation with key entities such as ministerial departments, local authorities, iwi authorities, environmental NGOs and adjacent landowners. This input is provided for at both stages of the proposed fast-track process but the timeframes for comments will be shortened.
Reduced requirements for RMA consultation have been applied in the past, in the wake of the Kaikōura and Christchurch earthquakes, with mixed success.
The risks of the proposed approach - what can go wrong
The Hurunui/Kaikōura Earthquakes Recovery Act 2016 was enacted to facilitate economic recovery, repair of land and infrastructure, safety and resilience, and restoration of social and cultural wellbeing following the 2016 Kaikōura earthquake.
The Act allowed for Orders in Council (OIC), such as the Hurunui/Kaikōura Earthquakes Recovery (Coastal Route and Other Matters) Order 2016, as “necessary and desirable” mechanisms to achieve the purpose of the Act. The OIC process meant that repair works were a controlled non-notified activity, only required limited engagement and consultation, and allowed no objections or appeal rights.
This caused ongoing problems with the proposed Picton to Kaikōura Coastal Cycleway (shared use path), a project being constructed by the North Canterbury Transport Infrastructure Recovery Alliance (NCTIR) as part of the Kaikōura infrastructure rebuild.
ISSUE ONE: MĀNGAMAUNU SURF BREAK AFFECTED
Māngamāunu Point, a surf break of national significance just north of Kaikōura was potentially affected by infrastructure work needed for the new coastal cycleway and a new car park. In 2018 Surfbreak Protection Society (SPS), a national surfers’ environmental organisation, claimed NCTIR and Kiwirail had bypassed the Resource Management Act (RMA) by using emergency powers instead of normal RMA processes to obtain consents. SPS filed judicial review proceedings to get the work stopped, as Stuff reported.
In late 2018 NZTA and Kiwirail agreed not to proceed with the cycleway under the current consents, and committed to using normal RMA processes thus guaranteeing the community participation in future decision making.
Photo: Rail lines North of Kaikōura pre-quake (Patrick O’Neill)
If the work had been allowed to proceed then a surf break considered one of the best of the best in New Zealand, highly valued for local recreation and international tourism could have been irreparably damaged. An existing highly valued natural feature would have been sacrificed for an alternative recreation asset, a cycleway. If the usual inclusive process had been run from the start, a compromise could have been arrived at which avoided the loss of the surf break, the cycleway could have been on an alternative route and the process wouldn’t have stalled.
ISSUE TWO: WĀHI TAPU SITES AFFECTED
Local tangata whenua criticised the proposed cycle way for intersecting ancient pā sites and urupā and called for a stop to the desecration of wāhi tapu (sacred sites). NCTIR received the backlash after plans to build a 30km shared user pathway were put forward under emergency legislation. This meant tangata whenua groups and other locals were not given an adequate opportunity to identify wāhi tapu sites and work with KiwiRail, the New Zealand Transport Agency (NZTA) and the North Canterbury Transport Infrastructure Recovery Alliance (NCTIR) on alternative routes.
In January 2020, Stuff reported NCTIR confirmed that following ongoing engagement with mana whenua and Te Rūnanga o Kaikōura/Kati Kuri the decision was made not to construct the remaining sections of the Shared Use Path between Irongate Bridge and Ōkiwi Bay.
A potentially useful and valuable piece of community infrastructure that may have benefited locals and tourists did not go ahead because, in using emergency powers and bypassing the usual RMA process, NCTIR neglected to engage and consult the Kaikoura community.
Collaborating and tapping into the local knowledge would have again yielded a more positive outcome - working with the community does not have to be a slow necessary evil and can significantly increase benefits.
Including the public in a sped-up process - what can go right
Following Canterbury’s Earthquakes, The Canterbury Earthquake Recovery Authority (CERA), Environment Canterbury (ECAN) and local councils partnered to prepare the Land Use Recovery Plan - Te Mahere Whakahaumanu Tāone (LURP).
The Land Use Recovery Plan rezoned Canterbury’s residential, commercial and industrial land for the coming 15 years. While this sounds a pretty dry exercise, it was needed so that Canterbury could recover with certainty. It not only prescribed where new homes could be built and businesses could operate from, it assisted decision making about infrastructure and community services such as public transport, health services, educational facilities and recreational facilities. It likely had as large a significance as any of the new shovel ready projects the Government is soon to announce.
The plan was necessary because land damage meant a large proportion of Canterbury could not continue to be used for its current purpose and new development areas needed to be identified, without compromising social, cultural, economic and environmental aspects that contribute to the quality of life for communities.
The value of engagement was made very clear by Hon. Gerry Brownlee, Minister for Canterbury Earthquake Recovery in his description of the finalised LURP, when he stated:
“Consultation during the development of the draft Land Use Recovery Plan showed that people of greater Christchurch wanted a clear vision and certainty about development in the recovery period and into the future. There was a call for well designed, people-focused and sustainable developments, affordable housing, reduced urban sprawl, a greater diversity of housing types, and greater integration with infrastructure provision.”
The public engagement process deployed, also held up against court challenges, Justice Gendall of the High Court, when the LURP was challenged by disgruntled parties stated, “The Minister and the UDS Partners in my view made admirable efforts to consult, engage and communicate widely.” The case was dismissed and the plan’s implementation continued without a costly and project-delaying court process.
The whole plan, from initial preparation to the final Gazettal took just 13 months. And within that time, two public-engagement processes were completed. The public engagement process included online and face to face public engagement exercises as well as the opportunity for submitters to provide submissions in their own formats. Two engagement periods were open for three weeks each, first to prioritise issues and then to comment on the Draft Plan. The information collected was invaluable for the process and resulted in locally and expertly -informed, improved decision making.
Global Research completed the analysis and reporting on the public engagement processes, and so we are well-placed to explain how the reporting happened so quickly. Every public, expert and stakeholder comment was read and classified into relevant themes and topics and then synthesised into reports that comprehensively informed planners of what Canterbury’s community wanted for its future. Across both engagement periods the analysis and reporting took five weeks (three weeks for the first and two weeks for the second process) from the close of public comments to the final reports. The analysis did not delay the process; concurrently planners were receiving interim high-level and then more refined updates on what the community had said and were themselves getting on with the task of writing the next draft of the plan.
In this instance, public, expert and stakeholder input significantly improved the LURP and resulted in better current and long-term outcomes. The process reduced time through avoiding lengthy court battles which arise when processes are effectively challenged (as we have seen in Kaikoura) and better well-informed decisions were made. The thoughts of local, informed communities, the people whose children and grandchildren will live with the consequences of decisions, often made by those quote won’t, were able to alter and improve future outcomes.
Without community input, government planners would have been guessing about local issues, what was important to the community, the type of future they wanted, and remained unaware of potentially crippling impediments to what was planned. This public engagement ensured benefits were identified and mistakes were avoided, while at the same time not delaying the process.
Photo: Annie, Jackson Bay, NZ South Island (Patrick O’Neill)
At a time when public engagement is proposed to be sidelined, considered an unnecessary impediment when speed is imperative, we believe a more balanced approach is a better course to follow. Let’s hope the Government can arrive at a place where the benefits of public input can be captured and the negative side-effects of poor decision making don’t need to be endured for years to come.
It is possible to speedily involve our communities and deliver the best possible legacy for our grandchildren.