'Fast Track Bill' could breach free trade deals, environmentalists claim

Proposed 'Fast Track' legislation to accelerate major projects could put New Zealand in breach of its latest free trade deals, an environmental lobby group claims.

Forest & Bird cites clauses in the UK and European Union free trade agreements requiring environmental protections and due process for feedback as in conflict with the Fast Track Bill, which creates a "one-stop shop" for consents and approvals on some big infrastructure and development projects.

Read more: The unprecedented power the government is handing three of its ministers under its new Fast Track Approval Bill

The Ministry of Foreign Affairs and Trade (MFAT) did not provide advice before the bill was read in parliament, in a move a trade expert labelled "highly unusual", though he doubts the proposed legislation will breach free trade agreements.

New environmental protections in latest FTAs

The FTA with the UK, which took effect in June last year, was estimated to boost exports to the UK by 50 percent, and add $1 billion a year to the economy.

The EU deal, which takes effect in May, is expected to deliver new quota opportunities worth more than $600 million in annual export earnings, with an eight-fold increase to the amount of beef able to be sold into Europe.

Both agreements have clauses requiring environmental protections to be upheld. The EU trade agreement also requires ample time for public and advocacy groups to give feedback on environment impact assessments for mining projects.

Traditionally, trade agreements have attempted to ensure countries don't have unfair advantages over each other by banning subsidies paid to industries, or removing tariffs. The new environmental conditions are designed to address countries having an unfair advantage from companies being exempted from environmental laws.

What the Fast Track Bill would allow

The Fast Track Approvals Bill, which passed its first reading on 7 March, allows selected projects to sidestep current rules in place to protect the environment. It also explicitly stops expert panels considering projects from seeking input from the public or advocacy groups.

Forest & Bird spokesperson Geoff Keey says the bill goes beyond speeding up projects. "It's really a bill to override environmental laws. It's not really fast tracking."

Flouting environmental laws can mean lower overheads, which Keey says typically come with a cost to nature.

"One example is you don't have so much pollution control. Another example is you don't have to be careful about avoiding threatened species, so you can just go in and destroy an area."

The bill also proposes allowing projects which include currently prohibited activities to be considered for fast-tracking and there's the ability for projects which may not currently get consent under a wide range of acts, such as the Wildlife and Conservation Act, to get approval.

Projects which courts have previously rejected could also be back on the table with ministers having the final say on what projects go ahead.

It is still unclear which projects will be chosen for consideration under the bill. Minister for Infrastructure Chris Bishop told TVNZ potential projects hadn't been made public because the list might "overwhelm" the select committee considering.

Keey says there are a number of clauses in the free trade agreements which fast-tracking approval may breach, depending on what projects get approved and what conditions are placed on them. It's still seeking advice on individual conditions, "but there's a really clear principle in both the European and UK trade agreements with New Zealand that countries shouldn't undermine environmental protections to promote trade and investment".

Should exporters be worried?

Sanders Unsworth consultancy partner Charles Finny was the lead negotiator of the China-New Zealand Free Trade Agreement in 2008. In his view, exporters shouldn't be worried.

"Forest & Bird are wrong," he says. The free trade agreements give the government the right to regulate. "It's our law that we have to uphold and we are proposing to change our law."

If a minister refers a project for fast tracking, an expert panel needs to assess the project carefully when making recommendations back to ministers.

"Environmental considerations would be very much part of that consideration, so I just don't think that Forest & Bird have got it right I'm sorry."

The proposed fast track legislation gives ministers the ability to push back on conditions expert panels recommend and allows them to provide direction to panel members on what to consider.

Finny says he would be gobsmacked if free trade agreements were put in jeopardy by the fast tracking legislation.

"No piece of legislation that has international implications would go through without having been carefully considered by the MFAT legal team and the MFAT legal team would not have allowed this bill to go through if there was any risk of there being a breach of international commitments."

Where did official advice come from?

It's unclear whether any potential clash between what's proposed in the fast track bill and commitments in free trade agreements was considered by relevant officials before the bill's first reading in parliament.

Keey says an Official Information Act response suggests the Ministry for Foreign Affairs and Trade (MFAT) hadn't prepared or provided advice to ministers before the bill had its first reading on 7 March.

An MFAT spokesperson said advice was prepared after 11 March but wouldn't share it, citing "legal professional privilege".

Minister for Infrastructure Chris Bishop told RNZ said initial advice was given by the Ministry for the Environment, including advice "around international obligations".

A Regulatory Impact Statement, which would likely include this advice has been prepared, but is also not publicly available. However, an appendix has been published by the Ministry for the Environment.

The Supplementary Analysis Report: Fast Track Approvals Bill makes a one sentence mention of international obligations regarding prohibited activities under the Economic Exclusive Zone Act. "Prohibited activities under the EEZ Act will still be ineligible for applications to the fast-track process as these prohibited activities relate to international obligations, removal of this prohibited activity status may result in New Zealand breaching international obligations".

There is no mention of free trade agreements.

The document flags that the analysis provided by the Ministry for the Environment had been completed in a "compressed timeframe" and that "reduced consultation timeframes from best practice for delegated decision making briefings and for Cabinet papers" which it called a limitation. "The analysis therefore is unable to be as detailed or thorough in relation to the consulted criterion for SAR (Supplementary Analysis Reports) as would usually be expected for a Bill of this significance."

Quality assurance of regulatory impact statements related to items such as the Fast Track Approvals Bill, which is part of the government's 100-day plan, has been suspended.

Bishop's response to a question from Te Pāti Māori's Debbie Ngarewa-Packer asking what advice he received regarding the fast track consenting bill does not appear to include any specific advice on international obligations.

Finny says MFAT's lack of involvement before the bill was read in Parliament, "does seem a little strange". In his experience, a cabinet paper seeking approval for the drafting of legislation would include consideration of international obligations.

The public can make submissions on the bill until 19 April. If the bill passes, the public will be unable to make submissions on individual projects.