“The bill enables a new wave of excluding Māori from the protection and use of the lands they are related to,” says Professor Elizabeth Macpherson about the coalition government’s fast-track bill.
The full list of projects proposed for fast-track consenting has now been released. What’s especially concerning about the process being revealed, writes Professor Elizabeth Macpherson, is that it may open up conservation land, QEII-protected land, and yet to be settled Māori land for extractive development.
Striking a balance between the productive use of natural resources on the one hand, and environmental preservation on the other, is an inherently contentious exercise, mired in political trade-offs and interest-group standoffs.
These tensions have come to a head this year with the coalition government’s Fast-track Approvals Bill, proposing a streamlined resource consenting process that prioritises development interests above all else.
The bill seeks to bypass approval processes under a range of environmental legislation, including by providing a separate decision-making process, applying development-enabling criteria, and circumventing usual environmental impact assessments and public consultation processes.
Serious concerns have been raised about the impact of the bill on Māori rights and interests in land and resources, and for failing to give effect to Te Tiriti o Waitangi.
One particular point of controversy is that the legislation facilitates development on lands intended to be strictly protected under conservation laws.
Conservation: Humans versus nature?
Conservation law has grown out of human awareness of the impact that our extractive resource use has had on the environment around us. The modern idea of conservation was imported to Aotearoa’s shores from Europe and North America, reflecting a desire to conserve and preserve pristine natural landscapes for scenic and recreational purposes. The western worldview underpinning conservation is one of separation: it sees nature as something to be cordoned away from humans who would harm it.
The objective of preservation is evident in many of our conservation statutes, including the Conservation Act 1987 and Reserves Act 1977, both of which seek to conserve and protect conservation values through restrictions on human activities. Conservation values on private land can also be protected, including under the Queen Elizabeth the Second National Trust Act 1977, which enables private landowners to register a covenant against their land to protect biodiversity or conservation values in perpetuity.
QEII covenants are the key means of protection for privately-owned land in Aotearoa, with over 5,000 covenants, protecting over 180,000 hectares of land, having been registered since 1977.
For Māori, conservation has been a largely colonial process, as traditional Māori lands have been acquired, sometimes forcibly, for national parks and reserves, and Māori excluded from their social, economic and cultural benefits over generations.
In other parts of the world, similar legal processes have been dubbed “fortress conservation”, for locking Indigenous peoples out of the management, protection and use of their traditional territories.
However, Māori have increasing influence in the management of the public and private conservation estate in Aotearoa, as a result of Treaty of Waitangi settlements and evolving conservation policy and practice, in which Māori exercise their inherent rights of rangatiratanga and kaitiakitanga in the care of their lands, resources and taonga.
The influence of Māori on Aotearoa’s conservation systems is beginning to shift the objectives of conservation law away from binary understandings of nature protection versus human use, towards a “relational” understanding of human connection to, and embeddedness in, the environment.
According to a relational worldview, lands and resources are looked after in order to support the intergenerational physical and socio-economic wellbeing of communities.
This relational worldview is reflected in Te Mana o Te Taiao: Aotearoa New Zealand Biodiversity Strategy, which recognises that “people are a part of nature — and that we can only thrive when nature thrives”. This entails recognising the objectives of nature restoration alongside sustainable resource use.
Driving development down the ‘fast-track’
The Fast-track Approvals Bill shifts the balance away from conservation and towards extractive development.
It will allow developers to apply under the fast-track process for approvals usually required and assessed under environmental or conservation legislation. There are some circumstances when a project will be ineligible for the fast-track process. However, conservation land, QEII protected land, and unsettled Māori land are notably absent from the list of ineligible exclusions.
The bill includes some basic safeguards in terms of Māori rights and interests, including the need to consult with and invite comments from Māori and iwi groups on project applications. However, there is no legal requirement under the bill, as it stands, to decline an eligible project based on Māori rights and interests or on conservation or environmental grounds.
The fast-track process provided for in the bill can be used to facilitate development on high conservation-value lands by avoiding the need for project owners to obtain concessions under the Conservation and Reserves Acts.
The bill also expressly allows for conservation covenants over privately owned land to be amended or revoked, in favour of development or infrastructure projects. Approvals under the QEII Act are not mentioned in the bill and projects on QEII covenanted land are not expressly “ineligible”.
Developers have already expressed an interest in listing projects for the fast-track on land protected by QEII covenants, and, given the QEII approvals process is not currently captured by the bill, the courts will likely be left to address the tension. In this way, the bill actually increases the risk of costly and uncertain litigation, something that the Crown and developers don’t want.
The fast-track bill also provides much more limited protections for Māori rights and interests than is required under Te Tiriti o Waitangi and has been typically included in environmental or conservation legislation.
Private development encroachment into the conservation estate comes on top of a historical legacy of locking Māori out of these highly valued ancestral territories, and in which iwi and hapū are increasingly engaging in and influencing conservation management outcomes.
Of even greater concern, development projects could be fast-tracked on “unsettled” Māori land, which is subject to unresolved Treaty claims and undetermined Māori marine and customary rights and interests under the Marine and Coastal (Takutai Moana) Act 2011.
The bill therefore enables a new wave of excluding Māori from the protection and use of the lands they are related to.
Towards a new era of relational conservation
The fast-track bill is problematic for a range of moral and legal reasons. It excludes development projects from safeguards under environmental and conservation legislation, and it fails to properly respect and protect the rights, relationships and rangatiratanga of Māori, as required by Te Tiriti.
If there is anything that the successive rounds of environmental law reform in Aotearoa have taught us, it’s that pitting development and conservation against each other leads to losses on both sides.
Upholding Te Tiriti opens new ways to shift beyond the preservationist conservation of the past, towards a relational understanding of people as connected to the natural environment for a range of environmental, cultural, social and economic purposes.
Dr Elizabeth Macpherson (who is Pākehā) is a professor of law and Rutherford Discovery Fellow at the University of Canterbury. Her research interests are in comparative environmental and natural resources law and Indigenous rights in Australasia and the Americas. She is the author of the award-winning book Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (2019, Cambridge University Press) and leads the Rutherford Discovery Fellowship programme Blue Carbon Futures in Aotearoa New Zealand: Law, Climate Resilience funded by Te Apārangi The Royal Society.
Rachael Mortiaux (who is Pākehā) is a research associate and PhD candidate at the University of Canterbury Faculty of Law. Rachael’s research interests are in environmental and natural resources law and policy, oceans and coastal marine governance, and climate change law. Before joining academia Rachael worked as a practising environment and planning lawyer at a top-tier law firm.
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