1. Introduction
Governments around the world are facing increasing pressure to deliver meaningful progress towards climate, environment, and biodiversity targets as part of the sustainable development agenda,Footnote 1 including through the design of robust and just legal and policy frameworks.Footnote 2 Yet, through the lens of sustainable development, policymakers often cite a need to balance, or trade off, the protection and restoration of the natural environment on the one hand, and the extractive use of the environment for the stability of the economy on the other. This tension has led some to observe that the goal of sustainable development is inherently paradoxical.Footnote 3 Because modern development is inherently consumptive, it is also ecologically destructive.Footnote 4
A perceived tension between the development and use of land, resources, and the environment versus their protection is currently being weaponized in Aotearoa New Zealand (Aotearoa) in a range of legal and political debates across sectors and scales. There, a right-wing coalition government expresses a need to ‘rebalance’Footnote 5 short-term economic pressures against long-term environmental and cultural interests. The tension has characterized policy discussions around resource management reform affecting landFootnote 6 and freshwater,Footnote 7 oceans and coastal policy development,Footnote 8 and climate change response.Footnote 9 Recent remarks by Aotearoa’s Parliamentary Commissioner for the Environment – that ‘it is no longer reasonable or credible to organize our economy and society on a basis that regards natural capital as infinitely substitutable’ – reflect this idea that people need somehow to strike a ‘balance’ between economy and nature.Footnote 10
In the settler-colonial context of Aotearoa, as political decisions are made about the extent to which and ways in which the environment is utilized and conserved, the pre-existing rights, and political and legal authority, of iwi and hapū Māori (First Nations and kin groups) have routinely been ‘balanced out of existence’ when confronted with powerful development interests.Footnote 11 However, Māori have a significant stake in the national economy, with the Māori economy estimated to surpass NZ$100 billion in value by 2030, including significant investment in the resources sector.Footnote 12 Iwi and hapū also claim a distinctive ‘relational’Footnote 13 ontological positionality with regard to the natural world,Footnote 14 in which they have obligations to care for related lands, waters and all parts of their surrounding territories for the benefit of present and future generations.Footnote 15 This, as Indigenous scholars and allies of Indigenous peoples have explained, is not the ‘wilderness’ or ‘fortress’ approach to conservation – characteristic of non-Indigenous, settler-state, or WesternFootnote 16 legal frameworksFootnote 17 – but an embedded, co-constitutive relationship in which using and protecting the environment are not internally inconsistent.Footnote 18 Proponents of relational approaches to environmental management argue that they offer new, alternative futures in which human societies are supported in thriving for collective benefit, which depends on (rather than being something against which to trade off) the life-supporting capacity of ecosystems.Footnote 19
The tensions between protection and use, environment and development reached a crescendo in Aotearoa in 2024, provoked by the coalition government’s one-stop-shop approvals process for regional and national development and infrastructure projects, enacted under the Fast-track Approvals Act 2024. As well as being intended to ‘fast-track’ economic development, the legislation lifts administrative decision-making to a politically handpicked panel, without an environmental protection mandate, and with few administrative criteria, checks and balances.Footnote 20 The Act has been welcomed by industry, who claim that the existing environmental planning and resource consenting system is ‘broken’,Footnote 21 and by right-wing politicians, who describe it as ‘the most permissive regime to effect growth and development in Australasia’.Footnote 22
However, the Act has faced significant criticism from its opponents, including on the basis that it is anti-democratic,Footnote 23 obstructs public participation,Footnote 24 enables power imbalances through unfettered political influence,Footnote 25 fails to account for Aotearoa’s international biodiversity and climate change obligations,Footnote 26 disregards potential environmental impacts,Footnote 27 promotes commercial interests over biodiversity protection,Footnote 28 lacks sufficient consideration of unsettled iwi interests,Footnote 29 and fails to take into account Te Tiriti o Waitangi (Aotearoa’s founding constitutional document).Footnote 30 The media have reported the legislation as akin to ‘nuclear war on the environment’,Footnote 31 generating widespread protests throughout Aotearoa.Footnote 32 The Act is anticipated to have major implications for conservation lands (both public and privately owned) as well as Māori rights and interests.
In this article, we consider whether centring relationality in environmental law frameworks can help in shifting away from binary approaches, which seek to balance or trade off economic development, environmental and cultural values and interests. We test our ideas through two vignettes, which show the ways in which the New Zealand government’s Fast-track Approvals Act enables the prioritization of economic development interests over the interests and worldview of Indigenous peoples and environmental objectives. Our findings have significant implications for the design of environmental governance, decision-making, and impact assessment processes in transnational contexts, and for the study of environmental law and governance by Indigenous peoples and other non-state actors, which is a key preoccupation of transnational environmental law.
We are Pākehā (the Māori language word for a New Zealander of European descent) scholars of European settler heritage working on environmental law and policy design and implementation in research and community settings. For this article, we are interested not just in the law but also its social and environmental context.Footnote 33 We adopt the ‘reparative’ approach advocated by Stein and co-authors to our engagement with Indigenous knowledge, including a conscious effort to decentre Western law.Footnote 34 Our arguments in this article are informed by our detailed analysis of a combination of legal documents (legislation, case law, policy, legislative debates and submissions), as well as literature and media releases/reports.
The article is organized as follows. In Section 2, we consider the values and assumptions underlying the notion of sustainable development and the way in which its logic has underpinned the development of environmental and conservation law frameworks, as well as the challenge directed at sustainable development by relationality. In Section 3, we sketch out the convoluted and development-enabling Fast-track Approvals Act and in Section 4 we use two vignettes to show how the legislation prioritizes economic development interests. Following a discussion in Section 5, we conclude by positing that relational approaches offered by Te Ao Māori (the Māori world) presents a potential ‘third space’Footnote 35 for moving beyond the dichotomized, or trade-off, thinking inherent in many environmental law frameworks via the underpinning notion of sustainable development (Section 6). In a global context in which environmental and cultural outcomes have so often been positioned as the other side of the coin from economic prosperity, we argue that centring relationality in the design of environmental legislation, and the supporting legal frameworks for their implementation, provides a much-needed challenge to Western conceptions of sustainable development.
2. Sustainable Development, Environment, and the Relational ‘Third Space’
It is undeniable that economic development, as it is being mobilized in the global north, is a significant contemporary risk to the natural environment.Footnote 36 The United Nations Environment Programme has reported that we are experiencing a triple planetary crisis: of anthropogenic climate change, biodiversity loss, and environmental waste and contamination.Footnote 37 Economic growth and resource extraction are key drivers of these three key threats.Footnote 38 Some degree of economic development and resource extraction may be beneficial to society, including through public revenue-raising for environmental and redistributive policies and the development of new technologies that reduce environmental harm. However, the world faces new and compounding environmental challenges from increasing levels of industrial pollution in developing economies and from advancing technologies and other large-scale anthropogenic environmental events.Footnote 39
The notion of ‘sustainable development’ gained prominence in the 1980s as environmental concerns began to arise around the impacts of unlimited economic growth.Footnote 40 Sustainable development is understood to comprise the exploitation of resources in a manner that is ‘sustainable’: the preservation of resources for future generation use, the equitable use of resources between states, and the need to consider economic and development plans and objectives.Footnote 41 However, its critics argue that the goal of sustainable development is unachievable within a system of capitalist economic growth, which ultimately allows environmental exploitation to proliferate.Footnote 42 Natarajan and Khoday explain that, while sustainable development does challenge ideas of economic growth, it is seldom used ‘to call for less development’.Footnote 43 Further, as pointed out by Purvis, Mao and Robinson, connecting the concept of ‘development’ to the pursuit of ‘sustainability’ provides a sort of smokescreen, enabling ‘this fuzzy concept to be utilized by any actor for their own means’.Footnote 44 Kotzé and Adelman argue that sustainable development, when embedded within environmental law and governance, legitimizes a wide range of socio-ecologically destructive practices.Footnote 45
Nonetheless, sustainable development has become the dominant principle of international (and transnational) environmental law and policy.Footnote 46 In countries like Aotearoa, the concept of sustainable development is reflected in legal frameworks that seek to manage the impacts of economic development on the environment and nature.Footnote 47 These legal frameworks have procedural and substantive implications, as they seek to institutionalize a fair and robust process for understanding the impact of development on the environment, and set ‘bottom lines’ for where development cannot be allowed to occur.Footnote 48
International environmental law, and the environmental law of many domestic jurisdictions globally, encourage the implementation of legal frameworks to assess or evaluate the environmental effects of development, and adopt the ‘precautionary principle’, which guides decision-makers to take a precautionary approach when environmental impacts are unknown or not well-understood.Footnote 49 There are key procedural requirements of environmental impact assessments and a precautionary approach, which include rigorous scientific assessment of risks and the opportunity for affected peoples to be heard,Footnote 50 especially Indigenous peoples in respect of their ancestral territories.Footnote 51 Still, these impact assessment processes have been criticized in diverse jurisdictional contexts for being procedurally rather than substantively driven, and inherently enabling of economic development.Footnote 52
Legal scholars and practitioners sometimes demarcate environmental law from conservation law, although the boundaries of these legal categories are typically blurred and overlapping.Footnote 53 While environmental law provides a broad framework for managing the impact of development on the environment and promoting sustainable use of natural resources,Footnote 54 conservation law aims to maintain or increase species diversity and ensure the sustainable and equitable use of the resources and benefits that flow from biodiversity.Footnote 55
The leading international conservation instrument, the Convention on Biological Diversity (CBD),Footnote 56 requires states, among other things, to ‘[d]evelop national strategies, plans or programmes for the conservation and sustainable use of biological diversity’.Footnote 57 The main tools of conservation law seek to conserve biodiversity (including species, wildlife and habitats) and prevent biodiversity loss and extinction.Footnote 58 Like environmental law, conservation law is associated with the sustainable development paradigm, ‘which means efforts to mitigate biodiversity loss and prevent a species extinction are often balanced with competing social and economic interests’.Footnote 59 However, the origins of Western conservation law go back much further, to the national parks movement in North America from the nineteenth century, which sought to protect ‘pristine’ landscapes from development, for reasons driven by Western pioneering and recreation values.Footnote 60 As with environmental law, conservation laws have been criticized for being rooted in a Western ontology in which nature is seen as scenery to be excluded from human extractive use,Footnote 61 which reinforces a conceptualization of humans as existing independently of, and diametrically opposed to, nature.Footnote 62
The preservationist approach to conservation has been described as ‘environmental colonialism’,Footnote 63 based on its negative impacts on Indigenous peoples throughout the world, sometimes replicating the colonial displacement and exclusion of Indigenous peoples from ancestral territories and economies.Footnote 64 Western conservation has also focused primarily on the protection of seemingly ‘pristine’ environments untouched by humans, while overlooking the need for restoration in areas that have been subject to more intensive human development or settlement. Tănăsescu warns against assuming that people are inherently bad for nature, because there are multiple ways of being in relations with land and water, multiple ways of seeing and being in the world, and people can and do behave in ways that are mutually beneficial and restorative.Footnote 65
There is growing awareness about the impact of dualist or binary thinking on environmental use and protection in the critical literature about environmental law and policy.Footnote 66 In this context, ‘relationality’ has been put forward as an alternative way to conceive human–nature relations,Footnote 67 the foundation of which is reciprocal, interconnected relationships between humans and the more-than-human,Footnote 68 in which people are embedded within a larger web of relationships, involving both responsibilities and duties.Footnote 69 While it seeks to impose some limitations on resource exploitation, the concept of sustainable development also ‘reinforces the idea that nature exists for the sole or dominant purpose of human exploitation and utilisation’Footnote 70 rather than something humans should care for.Footnote 71 By contrast, a relational perspective would hold that, because people are inherently related to land, water, oceans, and the broader environment, then people can thrive only when they care to ensure that those places thrive too.
Advocates of relational environmental and resource governance emphasize interconnectedness rather than dualism, and decry human exceptionalism.Footnote 72 Relationality can be seen in many Indigenous natural resource governance models around the world, such as the management framework for the Whanganui River in Aotearoa, positioned as a living entity under the care of related communities, but providing reciprocal community benefits through food, local economies, and spiritual sustenance.Footnote 73 A recent values assessment for the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) recognizes that humans relate to nature in a range of ways, through their framework of living from, in, with and as nature.Footnote 74 The IPBES argued for a shift in the framing of decision-making towards better outcomes for people and nature, which can be supported by:
(i) reducing the dominance of those broad values that mostly relate to individualism and materialism, whilst mobilizing broad values that are consistent with living in harmony with nature; and (ii) reducing the dominance of specific values to remove the dominance of market-based instrumental values, whilst mobilizing relational, intrinsic and non-market instrumental values.Footnote 75
Relational approaches reflect the idea that there is no binary choice between using or protecting nature, but that human societies should seek to uphold sustainability and justice when designing environmental law frameworks. Lim explains:
What is needed is a movement beyond mere platitudes and a transformation of understanding across the international community of the interdependence of resilient ecosystems and thriving human societies. This is not a call for fortress style conservation but, rather, for acknowledgement that humans and nature are intricately interconnected. Therefore, our responsibilities to other species and to each other require urgent action to ensure that the drivers of biodiversity loss are addressed in a just and sustainable manner. To achieve this goal, Indigenous peoples and local communities (IPLCs), their knowledges, and their world views must play a central role.Footnote 76
Stephenson and co-authors argue that such a relational approach enables a ‘third space’ of biocultural environmental management and conservation, which ‘differs quite radically from the polarizing all-or-nothing’ regimes of commercial exploitation versus exclusive preservation.Footnote 77
3. Trading Off Protection and Development under Aotearoa’s Environmental Law
Prior to British settlement, Māori iwi and hapū occupied and exercised sovereignty over all of Aotearoa pursuant to an established system of laws, customs and institutions (known as tikanga and kawa).Footnote 78 The origins and legitimacy of the settler-state are sourced in Te Tiriti o Waitangi (and the English-language – and significantly different – version, called the Treaty of Waitangi). Te Tiriti and the Treaty were signed by the colonial Crown and certain Māori chiefs in 1840, becoming the basis upon which the British established a constitutional monarchy in Aotearoa. By that time, Aotearoa was known by settlers as New Zealand, having been named by Dutch explorer Abel Tasman after his European homeland, when he passed by some 200 years earlier.Footnote 79
As the founding constitutional document in Aotearoa,Footnote 80 Te Tiriti protects Māori rights and interests in their lands, forests, fisheries, and other taonga (treasures).Footnote 81 Aotearoa is a common law country with a national parliamentary system of government and an unwritten constitution involving multiple pieces of legislation, rules of the common law, and conventions.Footnote 82 There is no general constitutional protection of environmental rights in Aotearoa. The Crown increasingly recognizes its constitutional obligation to partner with iwi and hapū in environmental management,Footnote 83 while still routinely attempting to unilaterally exercise sovereignty and control of resource rights and management.Footnote 84
Successive New Zealand governments have been locked in a highly politicized resource management reform process since the early 2000s.Footnote 85 Aotearoa’s environmental planning regime is framed around a hierarchy of legal and policy directives at national, regional, and district scale under the Resource Management Act 1991 (RMA). Environmental planning and decision-making under the RMA is largely devolved to regional or local government authorities, in accordance with regionally developed planning documents. However, the Minister for Conservation also has important functions under the RMA, including preparing and monitoring implementation of the New Zealand Coastal Policy statement, and approving regional coastal plans.Footnote 86 The Ministry for the Environment and the Parliamentary Commissioner for the Environment also have regulatory functions under the Environment Act 1986,Footnote 87 which requires decision-makers to take full and balanced account of ‘the intrinsic values of ecosystems’, Treaty rights, and the rights of future generations.Footnote 88
The RMA is an effects-based regime; it seeks to manage the effects of activities (including development) on the environment. It does this by regulating what people can and cannot do in relation to land and water,Footnote 89 by classifying activities into six main categories: permitted, controlled, restricted-discretionary, discretionary, non-complying,Footnote 90 and prohibited.Footnote 91 Authorization to carry out an activity (resource consent) is required for all categories of activity except a ‘permitted’ activity (which can occur as of right provided that any required planning conditions are met) and prohibited activities (which must not occur and cannot be authorized by resource consent). The authorization threshold varies for each activity category, with a non-complying activity requiring the greatest degree of scrutinyFootnote 92 – a person seeking resource consent for a non-complying activity must demonstrate that the adverse effects of the activity on the environment will be minor or that the activity will not be contrary to the objectives and policies of the relevant plan/proposed plan.Footnote 93
The overall purpose of the RMA is to promote the ‘sustainable management’ of natural and physical resources, defined as:
[M]anaging the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and avoiding, remedying, or mitigating any adverse effects of activities on the environment.Footnote 94
Adopting the purpose of sustainable management in the RMA 1991 reflected the global influence of the concept of sustainable development at the time, although, according to Curran, sustainable management is an even more limited and less sustainable concept than sustainable development.Footnote 95 A leading court decision on the application of the purpose of the RMA, the King Salmon case,Footnote 96 confirmed that section 5 of the RMA sets an ‘environmental bottom line’ rather than a series of objectives that can be traded off against development objectives as part of an overall broad judgment.Footnote 97 However, the implementation of the legislation in line with the core purpose of sustainable management has routinely enabled decision-makers to prioritize ‘social and economic wellbeing’ over culture, the needs of future generations and the life-supporting capacity of ecosystems.
The RMA also provides for a number of overarching obligations to Māori.Footnote 98 These include requirements that decision-makers recognize and provide for the relationship of Māori, their culture and traditions with their ancestral lands, water, sites, wāhi tapu (sacred sites), and other taonga;Footnote 99 have particular regard to kaitiakitanga (defined as the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources, including the ethic of stewardship);Footnote 100 and take into account the principles of the Treaty.Footnote 101 These requirements have been characterized as ‘strong directions, to be borne in mind at every stage of the planning process’.Footnote 102 However, they do not fully reflect the Crown’s constitutional pact with Māori under Te Tiriti.Footnote 103 The Waitangi Tribunal has observed on multiple occasions that the Crown should ‘compensate for the prejudice suffered from the current RMA regime’.Footnote 104
4. Driving Development Down the ‘Fast Track’
Partly as a result of political posturing about environmental and cultural advocacy holding up economic development,Footnote 105 in 2024 the right-wing National-led coalition government introduced a Bill ‘to provide a streamlined decision-making process to facilitate the delivery of infrastructure and development projects with significant regional or national benefits’.Footnote 106 The Fast-track Approvals Bill was initially limited to establishing a rapid consenting process for regional and national infrastructure projects, triggered by a ministerial referral for suitable projects;Footnote 107 however, the recently passed Fast-track Approvals Act applies broadly to any development project.Footnote 108 To facilitate such projects, the Act seeks to bypass the regular approval process under a range of environmental legislation, including the RMA and Conservation Act,Footnote 109 by providing for a separate, streamlined decision-making process, based on fewer development-focused criteria.Footnote 110
The Fast-track Approvals Act sets up a procedurally convoluted, development-enabling, process for approving environmental consents and conservation concessions, which we have summarized in Figure 1. It provides two pathways to fast-track a project. The first pathway is via an approved list of projects for the fast track, which happened prior to the Act coming into force.Footnote 111 This did not equate to project approval, and those applications still have to go through a substantive evaluation (discussed further below in relation to referred projects).Footnote 112 However, the listing process alone was subject to significant political controversy, with ministers being seen to sponsor ‘favourite’Footnote 113 economic development projects to push through on the fast track.Footnote 114
Summary of the Fast-track Referrals Process
Other than for these listed projects, a developer who wants to fast-track a project is required to lodge a ‘referral application’ with the Secretary for the Environment.Footnote 115 Provided the application is complete and within scope, the application is passed to the Minister for Infrastructure, who is then required to decide whether to accept the application into the fast-track process, in which case the consents or permissions that would usually be required for the project under environmental or conservation legislation will be decided in the fast-track process instead.
The Act includes some basic safeguards in the referrals process in terms of Māori rights and interests. There is a general obligation in section 7 of the Act for all persons performing and exercising functions, powers and duties under the Act to act in a manner consistent with obligations arising under existing Treaty settlements and customary rights in the marine and coastal area.Footnote 116 However, this is narrower than Treaty clauses usually included in environmental legislation, which require decision-makers to take into account, have particular regard to, or give effect to the principles of the Treaty of Waitangi.Footnote 117 A developer applying for the fast track must consult with relevant iwi authorities, hapū, Treaty settlement entities, and local government authorities before lodging their application,Footnote 118 and the Minister is required to invite comments on the referral application from a range of government authorities and Māori and iwi groups.Footnote 119 The Minister is also required to obtain a report from the responsible agency detailing Treaty settlements and other obligations to Māori, including the relevant iwi authorities, any relevant Treaty settlements or current Treaty negotiations, or applications or determinations of Māori customary marine title.Footnote 120
The criteria for the Minister’s decision whether to fast-track an application completely bypasses any environmental criteria that would apply if the project was evaluated under the originating environmental or conservation legislation. The Minister is required only to consider whether the project is an infrastructure or development project that would have significant regional or national benefits, and the effect that referring the project will have on the efficient operation of the fast-track process and will enable the project to be processed in a more timely and cost-efficient process.Footnote 121 In considering whether the project would have significant regional or national benefit, the MinisterFootnote 122 may consider a range of development, infrastructure, and environmental matters, but there is no requirement to consider environmental impacts.Footnote 123 Although the Act requires the developer to provide some assessment of the project’s compliance with environmental legislation, those matters do not need to be taken into account by the Minister.Footnote 124 The Minister is required to decline a referral application only if the Minister considers that they have inadequate information or that the project is ‘ineligible’, based on prescribed criteria.Footnote 125
The fast-track process itself, and ultimately the substantive evaluation of the applicationFootnote 126 for enabling permits, consents, and concessions, is conducted by an ‘expert panel’,Footnote 127 hand-picked by the Minister.Footnote 128 The expert panel is unable to seek public submissions and is not required to conduct a hearing,Footnote 129 although it is required to seek and consider comments from other Ministers, relevant local authorities, Māori groups, landowners, and other groups listed in the Act.Footnote 130 When assessing a project, the expert panel must give greatest weight to the Fast-track Approvals Act, focusing on the regional or national benefits of the project,Footnote 131 and does not have to apply the criteria under environmental or conservation legislation.Footnote 132
There are limited circumstances in which the panel must refuse to grant authorization to enable the development.Footnote 133 These include where approval is for an ineligible activity (discussed above). They also include where doing so would breach obligations arising under existing Treaty settlements and recognized customary rights in the marine and coastal area,Footnote 134 but, again, there is no requirement for the panel to consider or uphold the principles of the Treaty of Waitangi or consider impacts on Māori land and resource interests. While the panel has the ability to decline a project proposal if it may have ‘adverse impacts out of proportion to regional or national benefits’, there is no requirement to do so.Footnote 135 Significantly, development consent may be granted under the Fast-track Approvals Act for an activity that would be impossible to approve under the RMA,Footnote 136 and even revive ‘zombie projects’ that have already failed environmental impact assessment processes under environmental or conservation legislation.Footnote 137 The legislation also limits rights of appeal to questions of law, via judicial review.Footnote 138
The fast-track legislation has been widely criticized, especially at the Parliamentary select committee stage, for conferring a broad discretion to approve development projects that present potential environmental damage or risk to biodiversity.Footnote 139 The Parliamentary Commissioner for the Environment observed that the legislation:
introduces the possibility of many one-off, private developments that involve significant environmental harm … [u]nlike much infrastructure, the risks and trade-offs will not be well understood, and the benefits are largely private in nature.Footnote 140
In the following section we use two vignettes to show how this legislation enables the prioritization of economic development interests over the values and interests of biodiversity conservation and Indigenous peoples.
4.1. Vignette: Fast-Tracking Development on Conservation Lands
Aotearoa has a large conservation estate, covering approximately 2.7 million hectares (ha); over one third of New Zealand.Footnote 141 As mentioned above, Aotearoa is a party to the CBD, which entails obligations to protect and safeguard biodiversity, including the relationships of Indigenous peoples to it.Footnote 142 However, Aotearoa’s conservation legislation is widely considered to be inadequate and overdue for reform.Footnote 143 The Department of Conservation is the main government institution responsible for implementing conservation laws¸ working under multiple conservation policies and strategies.Footnote 144 Aotearoa’s conservation system has a poor legacy with Māori,Footnote 145 routinely seen as a preservationist tool to enclose lands and resources away from Indigenous access and control.Footnote 146
Aotearoa’s current Biodiversity Strategy, developed in 2020 (Te Mana o Te Taiao), is an exception to this preservationist approach. It recognizes that people are a part of nature and living ecosystems, with reference to Te Ao Māori (the Māori world). Te Mana o Te Taiao also acknowledges the complexity the conservation system, which ‘isn’t working as well as it should be, as it is failing to tackle issues at the scale needed to address the ongoing and cumulative loss of [I]ndigenous biodiversity’.Footnote 147 The former government, in 2022, undertook to reform the outdated conservation legislation in line with Te Mana o Te Taiao.Footnote 148 However, the incumbent right-wing coalition is currently reviewing Te Mana o Te Taiao and has reversed policy development in key areas such as the National Policy Statement on Indigenous Biodiversity,Footnote 149 overturning obligations for local authorities to identify and map in their plans areas of significant Indigenous vegetation or significant habitat of Indigenous fauna.Footnote 150
Aotearoa’s conservation protections are spread across multiple statutes.Footnote 151 The key statutes addressing conservation on public lands are the Conservation Act 1987 and Reserves Act 1977. The purpose of the Conservation Act is to promote the conservation of Aotearoa’s natural and historic resources by enabling particular land and waters to be classified and managed as a conservation area.Footnote 152 Land can also be designated as a reserve under the Reserves Act, which acquires, preserves, and manages areas for their conservation, public recreational, and educational values.Footnote 153 The level of protection varies depending on the categorization of a conservation area or reserve; however, activities are generally highly restricted and do not enable commercial development or infrastructure projects. Under the Conservation Act, for example, no activity can be carried out in a conservation area unless that activity is authorized by a concession.Footnote 154 The power to grant a concession sits with the Minister for Conservation, who must decline a concession if the proposed activity is contrary to the purpose or provisions of the Conservation Act.Footnote 155 Similarly, only activities that are expressly authorized by the Reserves Act may occur in a reserved area, depending on the type. A ‘wilderness area’, for example, must be maintained in a natural state with no construction in the area.Footnote 156
There are also a number of mechanisms under New Zealand law for protecting Indigenous biodiversity and other conservation values on privately owned land. These include conservation covenants on privately owned land under the Conservation Act or Reserves Act, which are set aside for conservation purposes or to preserve the natural environment.Footnote 157 Statutory conservation covenants have evolved from restrictive and beneficial covenants provided for in English common law and the law of equity.Footnote 158 They are registered on land title upon application by the landowner and run with the land, binding future landowners, and protecting biodiversity conservation values in perpetuity.Footnote 159
Private lands with high biodiversity valuesFootnote 160 can also be protected under the Queen Elizabeth the Second National Trust Act 1977 (QEII Act), which established the Queen Elizabeth the Second National Trust to promote the protection, preservation, and enhancement of open space.Footnote 161 Open space covenants under the QEII Act are the primary covenant protection for private land in Aotearoa, with over 5,023 covenants protecting over 180,258 ha of land having been registered since 1977.Footnote 162 They are considered to be a particularly robust and legally effective protection mechanism,Footnote 163 and have been successfully defended in the New Zealand courts against development interests.Footnote 164
The QEII Act enables private landowners or lessees to enter into an open space covenant with the Trust, which, once registered on title, protects the land as ‘open space’Footnote 165 and governs how the land may be used by placing obligations or restrictions on the landowner or lessee.Footnote 166 These covenants also run with the land,Footnote 167 and operate either for a specified term or in perpetuity.Footnote 168 If executed in perpetuity and the land subject to the covenant is sold or transferred, it is the responsibility of the Trust, as the covenanting organization, to ensure that the new landowner complies with the terms set out in the covenant.Footnote 169 There are very limited circumstances in which a covenant can be varied,Footnote 170 and they typically operate in perpetuity.Footnote 171 There is no mechanism under the QEII Act that allows for the removal or revocation of an open space covenant.Footnote 172 The key advantage of such covenants is that they allow landowners to manage the environmental and conservation values of their property and provide legal security for that protection into the future, regardless of any changes in property ownership.Footnote 173
Despite the existing legal protection applying to conservation lands, the Fast-track Approvals Act can be used to facilitate development on high conservation-value lands.Footnote 174 Neither public nor privately owned conservation land under the Conservation Act or QEII Act are mentioned in the list of ‘ineligible’ exclusions from the fast-track procedure, and only land held as ‘national reserve’Footnote 175 or privately heldFootnote 176 under the Reserves Act are ineligible. Otherwise, there are only non-binding requirements for the fast-track panel to consider the purposes for which the land is held and the existing status of the land.Footnote 177
The Fast-track Approvals Act also expressly allows for conservation covenants over privately owned land under the Conservation and Reserves Acts to be amended or revoked.Footnote 178 While this requires the written consent of the current landowner and any affected adjacent landowners, there is no requirement to consider the interests or desires of the person who originally placed the covenant, and any consideration of conservation values comes secondary to the purpose of the Fast-track Approvals Act.Footnote 179 The panel is otherwise required only to take into account whether the amendment or revocation will ‘compromise values of regional, national or international significance’.Footnote 180 As observed by the Environmental Defence Society in its select committee submission, ‘there is substantial latitude for the Minister to prioritise development over conservation even where values are internationally significant’.Footnote 181
The implications of the Fast-track Approvals Act for QEII conservation land are unclear despite being a significant conservation tool in Aotearoa. Approvals under the QEII Act are not referred to in the Act, projects on QEII covenanted land are not expressly ‘ineligible’ from the fast track, and the Act does not provide for the amendment or revocation of QEII covenants.Footnote 182 It is unclear whether this is an intentional omission, as the cabinet documents, Parliamentary speeches, and select committee report are all silent on any potential impact of the Act on QEII covenanted land. Developers have already expressed an interest in fast-tracking development on land subject to open space covenants. For example, quarry developers J Swap Contractors Limited wanted land protected by QEII covenants to be available for quarrying,Footnote 183 claiming there is ‘“no valid reason” why QEII covenanted land is excluded from the Act when conservation land is up for development’.Footnote 184 The same quarry developer has been involved in litigation involving associated companies and the QEII Trust,Footnote 185 the latter of which has successfully blocked various attempts by the company to extend a quarry onto land protected by a QEII open space covenant.Footnote 186 The High Court and Court of Appeal have both held that quarry activities that are contrary to such covenants are inconsistent with the purpose and scheme of the covenants and the QEII Act, which is to protect the environmental value of the land in perpetuity.Footnote 187 However, because the QEII Act does not enable the revocation of QEII covenants, such covenants would remain in force even if a fast-track project is approved on QEII covenanted land. Such a scenario would be likely to result in litigation between the project owner and the QEII Trust, leaving the courts to address the tension.
The Fast-track Approvals Act has received widespread condemnation from environmental interest groups for allowing political interference to override longstanding forms of protection under conservation legislation,Footnote 188 and facilitating development on conservation land that was strictly intended to be protected. The New Zealand Conservation AuthorityFootnote 189 pointed out that the legislation undoes decades of bipartisan advances around environmental management, effectively dismissing hard-won consensus between developers, government, conservationists, and the public.Footnote 190
In submissions to the Parliamentary select committee, the QEII Trust argued that the Fast-track Approvals Bill would undermine the Trust’s role as an advocate for the protection of conservation values on private land because the Trust may not be considered an affected party; it therefore may not be invited to comment on, and may not even be aware of, a project that affects QEII covenanted land.Footnote 191 Other than landowners and relevant Māori groups, decision-makers are not required to consult with or invite comments from those with an interest in the land affected by the development. The New Zealand government has expressed a firm commitment to protecting New Zealanders’ property rightsFootnote 192 and, in the context of its recent suspension of requirements to map Indigenous biodiversity (discussed above), the government has expressed its intention to work collaboratively with private landowners whose land is subject to a QEII covenant, rather than undermining their rights.Footnote 193 Whether this means the government will uphold covenanting landowner intentions, or will abide by the wishes and interests of successor landowners who seek to develop the land, remains unclear.
4.2. Vignette: Fast-Tracking Development on Unsettled Māori Land
Serious concerns have also been raised about the potential impact of the Act on Indigenous rights in Aotearoa. Te Tiriti o Waitangi protects Māori rights and interests in their lands, forests, fisheries, and taonga.Footnote 194 Since the 1970s, Aotearoa has been engaged in a process of Māori land claims resolution and reconciliation, enabling a patchwork of Māori land tenure, interests, and legal frameworks throughout the country. Still, the process of resolving colonial injustices against Māori is ongoing, and much ancestral Māori territory is today in the hands of private landowners or ‘locked up’ in the conservation estate.Footnote 195 This means that Māori are often an uneasy partner in conservation law frameworks, and have at times had to leverage conservation mechanisms as the only available means to protect their relationships, rights, and interests in their traditional territories.Footnote 196 They have had to do so despite inconsistencies between Te Ao Māori, in which reciprocal relationships of care are central, and Western preservationist approaches to conservation.Footnote 197 It also means that development encroachment into the conservation estate, highlighted in the previous section, can be perceived as a further encroachment into ancestral Māori territories.
As outlined above, the Fast-track Approvals Act requires all persons exercising functions under it to act in a manner that is consistent with the obligations under existing Treaty of Waitangi settlements and customary marine rights and interests recognized under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).Footnote 198 However, this is a weaker obligation than is usually provided for in environmental legislation. The RMA, for example, requires decision-makers to ‘take into account the principles of the Treaty of Waitangi’Footnote 199 and the Conservation Act requires decision-makers to ‘give effect to the principles of the Treaty of Waitangi’.Footnote 200 As discussed above, certain types of Māori land are ineligible for fast-tracking under section 5 of the Act.Footnote 201 However, it is legally possible for development to be fast-tracked on ‘unsettled’ Māori land, subject to claims under Te Tiriti o Waitangi and the MACA Act.
Decision-makers under the Fast-track Approvals Act are required to ‘consider’ Treaty settlementsFootnote 202 – including ‘any recognized negotiation mandates for, or current negotiations for, Treaty Settlements that relate to the project area’.Footnote 203 However, there are still numerous historical and contemporary Treaty of Waitangi claims that have not been settled by the Crown, and almost the entire coastline of Aotearoa is subject to unsettled claims under the MACA Act that are yet to be heard by the High Court or directly negotiated with the Crown.Footnote 204 There are no preservations or safeguards for lands affected by fast-track applications that are subject to Treaty claims but not in active negotiations at the time of the application (that is, future settlements).Footnote 205
The failure to consider impacts on unsettled Māori rights and interests is reminiscent of the historical situation in respect of the vesting of Crown-held assets prior to fair settlement processes, as has been the case, for example, with Crown lands, forestry, and fisheries assets.Footnote 206 It is also inconsistent with recent jurisprudence, in which the Supreme Court emphasized that the processes provided for by the MACA Act in order to determine marine customary title and rights are not the source of the customary interest, but merely a mechanism by which recognition of a pre-existing interest can be obtained, and so the decision-maker could not disregard marine and customary title claimed by iwi or hapū Māori, pending their determination.Footnote 207
The fast-track expert panel must invite comments from the Minister for Māori Development and the Minister for Māori Crown Relations,Footnote 208 but the panel has full discretion to deviate from the report recommendations. The Fast-track Approvals Act does specify some requirements in terms of Māori consultation (outlined above), which mean that Māori with an interest in the project land are likely to be consulted during the fast-track process. However, there is no requirement to decline a project based on its impacts on Māori rights or interests, except in the narrow case of direct inconsistency with Treaty settlements and recognized customary rights.
Ultimately, any procedural requirements related to Māori rights and interests in the Fast-track Approvals Act are significantly more limited than those guaranteed to Māori under Te Tiriti o Waitangi, and which have at other times been recognized in environmental legislation and by the courts.Footnote 209 Unsurprisingly, the Fast-track Approvals Act has received widespread condemnation from iwi Māori and environmental advocacy groups for its potential impacts on Māori rights and interests.Footnote 210 Submissions by iwi organization Te Rūnanga o Ngāti Awa describe the Act as having a pro-development premise which ‘prioritises development above all else’ and is fundamentally unsound and directly at odds with international best practice for being ‘wholly inconsistent with the rights, responsibilities, and obligations of Māori as kaitiaki [caretakers]’.Footnote 211 This vignette exemplifies the risk that Western environmental laws may enable development despite negative impacts on the rights of Indigenous peoples.
5. Discussion: Towards a ‘Third Space’ of Biocultural Environmental Management
We began this article by highlighting how policymakers in Aotearoa routinely cite a need to trade off environmental interests versus extractive economic interests. This tension has led some to observe that the goal of sustainable development, which broadly underpins environmental legal frameworks in Aotearoa and comparable legal systems, is inherently paradoxical; it enables extractive economic interests to outweigh those of an environmental nature.Footnote 212
The risk that environmental law predicated on ideas of sustainable development becomes development-enabling is clear in the example of the Fast-track Approvals Act. This legislation circumvents procedural safeguards under previous environmental and conservation legislation to prioritize economic development interests, allowing lands with high conservation or cultural values to be available for development. The Minister behind the legislation, the Hon. Chris Bishop, is unapologetic about the purposes of the Act:
The Government’s view is that the status quo is unacceptable when it comes to speed, when it comes to condition setting, when it comes to environmental protections weighed against the economic interests. So we are disrupting that – we are quite explicit about that. We want more houses built more quickly, we want renewable energy built more quickly, we need more quarries, we need more mines, we need more infrastructure built.Footnote 213
So how did we arrive at a situation where economic interests outweigh environmental ones, even though peoples’ social and economic wellbeing is dependent on the environment? The Fast-track Approvals Act may be an extreme example of the prioritization of economic development interests in environmental impact assessment processes. However, it also exemplifies the limitations inherent in environmental laws developed within a paradigm of sustainable development, under which socio-ecologically destructive practices have proliferatedFootnote 214 and powerful political actors have been able to co-opt evaluation processes for their own economic means at the expense of other interests.Footnote 215
The prioritization of resource exploitation under the Act, and further encroachment into unsettled Māori land, reflect a failure to properly respect and protect the substantive and procedural rights of Indigenous Māori, or accord proper status to Te Tiriti o Waitangi. As a result, the Act falls foul of constitutional norms and is inconsistent with a range of relevant international law documents.Footnote 216 These include the CBDFootnote 217 and the Kunming-Montreal Global Biodiversity Framework,Footnote 218 which set targets with regard to the protection and conservation of biodiversity, and the United Nations Declaration on the Rights of Indigenous Peoples,Footnote 219 which recognizes the rights of Indigenous land and resource rights and the rights of Indigenous peoples to self-determination and free, prior and informed consent in respect of decisions that affect them and their territories.Footnote 220
In Aotearoa, as in many parts of the world, the boundary between environmental exploitation and protection is inherently susceptible to political interference.Footnote 221 New Zealand’s current government, while expressing perceived frustration about ‘green tape’ holding up economic progress, has designed an enabling impact evaluation system to prioritize development interests over conservation and Māori rights and interests. Statements made during the second reading speech before Parliament by the Hon. Shane Jones exemplify this clearly when he says that the legislation will ‘move beyond the cobweb of green, red, and brown tapeworm-like obstructiveness that has impeded the development of our economy – because projects in mining, energy, infrastructure, and other such developments have been blighted’.Footnote 222
It is not without irony that although a key motivation behind the fast-track regime is to give developers greater certainty in order to get on with their projects, the Act is more likely to increase the risk of legal conflict, through costly and lengthy judicial review applications before the already under-resourced courts.Footnote 223
Yet, what if we did not need to balance or trade off protecting and using the environment as we have been led by the goal of sustainable development? While sustainable development seeks to impose some limitations on resource exploitation, the concept of sustainable development also ‘reinforces the idea that nature exists for the sole or dominant purpose of human exploitation and utilization’Footnote 224 rather than something that humans should care for.Footnote 225
However, there are other potential framings for environmental law than sustainable development. For example, relational approaches to environmental law can enable a ‘third space’ of biocultural environmental management and conservation, which ‘differs quite radically from the polarizing all-or-nothing’ regimes of commercial exploitation versus exclusive preservation.Footnote 226 The worldview expressed by Māori iwi and hapū, often described as being relational, does not exhibit a defined separation or opposition between the interests of humans and nature in the same way as Western or settler-state legal frameworks.Footnote 227 Rather, humans are positioned as inherently ‘entangled’ with nature for a combination of protective and utilization purposes.Footnote 228 Nature provides, and people care in return. If the resource is not cared for, then there can be no human thriving.
Aotearoa already has limited examples of relational approaches to natural resource governance, which reflect and uphold the connections between communities, including their economies, and the environment. A clear example is the governance model for Te Awa Tupua, the Whanganui River, recognized as a legal person as part of a Treaty settlement,Footnote 229 founded in the law and ontology of the local iwi.Footnote 230 The legal framework underpinning this model is anchored by kawa (overarching legal norms) that recognize entangled human–river relationships, in which there can be no thriving human communities and economies without a thriving river; therefore, it makes sense to put the river first.Footnote 231 The Whanganui model is not a ‘fortress’ style conservation model in which people are excluded from river-related livelihoods, but it is also a model where careful attention has been paid to the need for procedural fairness in decision-making.Footnote 232 It is a model in which environmental impact assessment occurs in a way that is inclusive of a wide range of interests in the region, including economic interests, enacted through Indigenous values of reciprocity, relatedness, and obligations of care.
Adopting a relational approach to the design of environmental law frameworks may help decision-makers to avoid the binary conclusion that we either develop or we protect, and so it is better (and somehow even more sustainable) to develop.Footnote 233 Relational approaches to environmental management turn the notion of sustainable development on its head, and show that if we secure the life-supporting capacity of ecosystems, people can continue to live well within that system. Adopting a relational approach to environmental law would necessitate moving away from the Fast-track Approvals Act, with its prioritization of extractive economic interests, towards more collaborative, environmental governance frameworks, which put the environment at the centre of decision-making processes and which involve all affected interests in the evaluation of environmental affects.
6. Conclusion
In this article, we asked whether centring relationality in environmental law frameworks might help to shift away from binary approaches, consistent with the notion of sustainable development, which seek to balance or trade off economic development, environmental, and cultural values and interests. Our analysis of the Fast-track Approvals Act revealed an evaluation system designed by powerful actors (politicians and development interest groups) to circumvent environmental and conservation law safeguards, as well as constitutional protection for the rights of Indigenous Māori, iwi, and hapū, in order to prioritize economic development. In October 2025, the New Zealand government proposed new changes to the legislation, rushed through Parliament before the end of the year, which further constrained decision-making time frames, reduced consultation requirements, and restricted the rights of appeal of affected parties.Footnote 234 We argued that a relational worldview presents a potential ‘third space’Footnote 235 for moving beyond Western conceptions of sustainable development, in which environment and culture are typically ‘trumped’ by the economy.Footnote 236 Our findings hold particular significance in the context of scholarly and policy debates about transnational environmental law, especially the contribution of non-state actors, and an awareness of the multi-level governance context of contemporary environmental law. Specifically, we argue that relational governance approaches, apparent in the worldview of Indigenous Māori peoples in Aotearoa, may offer a potential way to rethink binary trade-offs between economic development and environmental protection. People are inherently reliant on the environment for economic, social, and cultural wellbeing, so it is essential to bring all of those interests into environmental decision-making processes that centre the interdependencies between people and environment.
Critics argue that sustainable development is unachievable within a system of capitalist economic growth, which ultimately allows environmental exploitation to proliferate.Footnote 237 So maybe we need to try something new? If Aotearoa, and indeed other countries, are to achieve a relational, and inherently more sustainable, approach, then rather than seeking to exclude or encroach upon Indigenous legal systems, rights, and interests, they should seek to honour and uphold them.Footnote 238 Those same Indigenous legal systems may well hold the key to transcending limiting, dichotomized thinking that pits development against conservation, and through which the environment and related peoples are sure to lose. By decentralizing Western ontology and decolonizing decision-making,Footnote 239 we might just enable people and nature to thrive together as part of a ‘third space’ of biocultural environmental management.Footnote 240 More research is needed to develop transnational environmental law agendas beyond approaches underpinned by sustainable development, unlimited economic growth, and dualist approaches to conservation. We encourage other scholars to find new study sites for exploring the transformative potential of relational environmental law.
Acknowledgements
We acknowledge the helpful research assistance of Karen Grant.
Funding statement
This research was supported by a Rutherford Discovery Fellowship, Te Apārangi, The Royal Society of New Zealand.
Competing interests
Both authors have acted as lawyer and policy adviser for governments (central, regional and local), Indigenous peoples, and developers on matters related to local government law, environmental law, resource management, and Indigenous rights and interests.
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