RMLA - Fast Track Consenting Bill update

The Covid-19 Recovery (Fast Track Consenting) Act came into force this Thursday. A number of changes made their way into the final provisions last week following the Environment Select Committee recommendations and Supplementary Order Papers, and include several changes proposed by the RMLA in its submission. The key changes relate to listed and referred projects, and how the Act sits with standard RMA processes, the principles of the Treaty of Waitangi and Treaty settlements.

Queenstown Arterials Project, as well as a number of enabling works by Transpower on projects already listed, have been added to the schedule of listed projects that would automatically be referred to an expert consenting panel.

The key referral process changes were:

• Other Ministers invited for comment as part of the referral process must now abide by the same 10 working day timeframe as other parties.
• Identified entities to be invited to comment on referred projects will now also be invited to comment on listed projects.
• Heritage New Zealand Pouhere Taonga and affected requiring authorities must now be invited for comment on both listed and referred projects.
• The Climate Change Commission has been removed from the list of entities that must be invited for comment. This was on the basis that it did not support inclusion for resourcing reasons.
• The Minister may now also specifically consider greenhouse gas emissions when considering whether there is potential for the project to have significant adverse effects.

Changes were made to the provisions on infrastructure maintenance, including removing the ability to clear indigenous vegetation within a significant natural area or significant ecological area. This change was recommended in the RMLA's submission.

A Supplementary Order Paper reverted the drafting of the overarching Treaty of Waitangi provision, and consequential amendments, back to the wording from the introduced version of the Bill. This means those persons performing functions and exercising powers under the Act must act in a manner that is "consistent with" the principles of the Treaty and Treaty Settlements, rather than "take into account".  The RMLA supported the “consistent with” language.

An additional change allows the expert consenting panel to also decline consent for a listed project where it would be inconsistent with the principles of the Treaty. Previously this discretion was limited to inconsistency with any national policy statement or Treaty settlement, but now aligns squarely with section 6 of the Act.

Considerations on consent applications by the expert consenting panel are now clearly subject to both Part 2 of the RMA and the purpose of the Act, and any conditions imposed by the panel cannot be more restrictive than those that could be imposed under a relevant plan.