Concern Govt's fast-track legislation may breach Treaty rights

There's mounting concern the Fast-track Approvals Bill may breach Māori rights under the Treaty of Waitangi — with a leading environmental consultant saying it will have "grand repercussions for hapū and iwi".

The bill was intended to speed up consents for major development and infrastructure projects considered to have regional or national benefits.

It would allow bypassing consent requirements under multiple laws including the Resource Management Act (RMA), a process that can take years and cost more than $1 billion a year, according to the Infrastructure Commission.

Even projects previously declined by the courts would be eligible to apply.

Environmental consultant Tina Porou said iwi and hapū should be very concerned.

"The proposed fast-track bill, in its current form, is unfortunately pro-development, constitutionally flawed, and concentrates power into three ministers," she said.

"It has grand repercussions for hapū and iwi customary rights and Te Tiriti o Waitangi."

Unlike the Covid-19 Recovery (Fast-track Consenting) Act 2020 or the RMA, the legislation doesn't include a treaty principles clause.

"The bone-chilling part of it is that it excludes hapū and iwi from having a substantive role in decision-making within the system to protect the environment," said Porou.

"Te Tiriti is a constitutional document. I has to be in every layer, it is in every layer, and to think you can remove those rights just by a pen is naive."

Iwi around the country, including Waikato and Ngāi Tahu, have publicly declared concerns around the Government upholding its commitment to Te Tiriti o Waitangi and treaty settlements.

The Fast-track Approvals Bill does have an overarching Treaty clause requiring "all persons exercising functions to act in a manner that is consistent with existing Treaty of Waitangi settlements".

That means developers would be unable to seek fast-track approval to build on land returned to iwi as part of settlements.

'Unintended consequences'

Infrastructure Minister Chris Bishop said generic clauses in the legislation could sometimes lead to "unintended consequences".

"The commitment is to uphold and protect the Crown's commitments to iwi and mana whenua through the Treaty of Waitangi Settlement process, that is a bottom line, core commitment for the coalition Government," he said.

Infrastructure Minister Chris Bishop. (Source: RNZ / Angus Dreaver)

"There are extensive provisions written into the bill to require consultation with relevant iwi and mana whenua as part of any project that will potentially be fast-tracked."

But lawyer Maia Wikaira said the protections for treaty settlements were significantly limited in the Fast-track Approvals Bill.

"Treaty settlements were negotiated in the context of existing legislation like the RMA, which contains other protective Māori provisions, such as sections 6(e), 7(a) and 8 of the RMA. Those provisions formed the backdrop to settlement negotiations so similar provisions were not required in the settlement legislation itself."

"References to act consistently with Treaty settlement arrangements therefore risk offering little real protection when the majority of those arrangements require engagement in processes set out in existing legislation that is being overridden or diluted by this bill. That should be of fundamental concern to iwi and hapū."

There were around 50 iwi yet to reach treaty settlements, including the country's largest iwi Ngāpuhi.

"They are arguably not contemplated by the Treaty of Waitangi settlements clause, and the ineligibility criteria does not protect land or other resources under consideration for return through settlement," said Wikaira.

Bishop said some hapū and iwi would benefit from the fast-track process.

"To take a generic example of an iwi with extensive interests in our natural resources, take Ngāi Tahu, which recently had an aquaculture development in the South Island declined as part of the environmental consenting process. That is an example of an iwi who wish to use resources in their takiwā to provide for jobs and growth for their people, and also the wider economy."

Public submissions on the Fast-track Approvals Bill close at midnight Friday, April 19.