Wednesday, May 22, 2024
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HomePoliticalFast-track Approvals Bill Presents A Serious Risk To New Zealand Exporters

Fast-track Approvals Bill Presents A Serious Risk To New Zealand Exporters

On 1 May, New Zealand’s new free trade agreement with
the European Union – our fourth largest trading partner –
comes into force. The enforceable commitments by the Parties
under its Trade and Sustainable Development Chapter have
been described as a significant step up in accountability on
key sustainability issues.

This is particularly so in
relation to the Parties’ commitment to “refrain from any
action or omission which materially defeats the object and
purpose of the Paris Agreement”, which is subject to
dispute settlement provisions and potentially trade
sanctions if breached.

“Our exporters
should, therefore, be deeply concerned that the Fast-track
Approvals Bill was not assessed for consistency with any of
our free trade commitments prior to being introduced to the
House,” says Gary Taylor, Chief Executive of the
Environmental Defence Society

“EDS has conducted its own
detailed peer-reviewed analysis of the Bill against those
commitments. It concludes that, without significant
amendment, the Bill could breach several of the legally
binding commitments New Zealand has agreed to under free
trade agreements with the UK, EU, and the Trans-Pacific
Partnership. These include commitments:

  • To
    provide for a high level of environmental protection and
    continue to improve environmental
  • Not to weaken, reduce, waive, or
    otherwise derogate from environmental laws to encourage
    trade or investment
  • To require evidence-based
  • To transparency,
    including requiring a reasonable opportunity for interested
    persons, stakeholders and the other Party to review and
    comment on any proposed measures that might affect the free
    trade agreement’s environmental provisions or the free
    trade agreement generally
  • To ensuring that all
    interested persons, including non-governmental
    organisations, have an early and effective opportunity, and
    an appropriate time period, to participate in and comment on
    the environmental impact assessment for activities related
    to the production (i.e. extraction / mining) of energy goods
    or raw materials.
    The definitions of “energy goods”
    and “raw materials” include coal, oil and gas, and a
    range of chemicals, minerals and metals
  • To
    effectively implement the multilateral environmental
    agreements to which New Zealand is a party, including the
    Paris Agreement and commitments with regard to nationally
    determined contributions

    • Under New Zealand’s
      free trade agreement with the EU, that obligation
      specifically “includes the obligation to refrain from any
      action or omission that materially defeats the object and
      purpose of the Paris Agreement” – yet there is no
      requirement under the Bill for projects to demonstrate how
      they align with New Zealand’s emissions reduction plan,
      budgets, climate targets, or otherwise support our
      country’s transition to a low emissions economy. Indeed,
      supporting petroleum production can be deemed to be
      nationally or regionally significant for the purposes of
      fast-track referral eligibility;
  • To:
    • Fossil fuel subsidy
    • Protect and conserve endangered
      species and promote the conservation and sustainable use of
    • Promote sustainable agriculture
      and reduce agricultural emissions
    • Promote the
      conservation and sustainable management of
    • Implement a precautionary, science
      and ecosystem-based fisheries management system, consistent
      with international best

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“Therefore when we
consider, for example, whether the Bill is consistent with
our commitments to ensure that New Zealand’s environmental
law provides for and encourages a high
level of environmental protection and continues to
its level of environmental protection, we
think that the Bill’s pro-development purpose and
relegation of environmental safeguards (among other flaws)
are plainly inconsistent with that obligation.

Bill clearly represents a significant weakening of existing
environmental laws. Ministers have said that is to encourage
trade. This constitutes an implicit subsidy for our
exporters, a point made clearer by additional intentions to
weaken freshwater and biodiversity protections to reduce
costs to farmers. Free trade agreements are specifically
designed to prevent such subsidies.

“In response to
the proposition that New Zealand is a relatively small
market and there is little risk that a counter-party would
pursue enforcement action for non-compliance, we say that is
a very low-integrity position for New Zealand to take, akin
to ‘we can get away with it’. And it makes it very hard
for us to then bring proceedings against our counterparts
for any non-compliance on their part.

“It also
overlooks the dynamics playing out in key export markets,
where producers in those countries, particularly farmers,
are struggling economically, are particularly alive to the
prospect of unfair competition from foreign export markets
and are looking for any justification to shut out our
products. It is naïve to assume New Zealand is too small a
player to matter.

“There is also the related, more
critical danger of reputational harm from law that downplays
environmental considerations, including climate change,
excludes public input, enables species extinction, and
facilitates executive overreach. These key features of the
Bill’s design present a significant risk for exporters,
who trade heavily on New Zealand’s ‘clean, green’

“We need to be alert not just to legal
compliance with free trade agreements, but also the
perceptions of our offshore customers.

“We already
have existing fast-track law that is issuing resource
consent decisions within an average of around 90 days and
does not imperil our trade relations or enable harm to our
natural world. There is no need to place our exporters at
risk,” Gary Taylor

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