In yet another round of climate change litigation, a group of students has failed in its judicial review of decisions made by the Minister of Energy and Resources to grant petroleum exploration permits in the Taranaki.

Background

The case challenged the decision by the Minister of Energy and Resources to grant petroleum exploration permits to two companies, allowing them to conduct onshore oil and gas prospecting in Taranaki. The Minister had granted the permits under s 25 of the Crown Minerals Act (CMA).

The applicant, Students for Climate Solutions Incorporated (SCSI), was formed to enable students to develop and support climate friendly initiatives. SCSI alleged that the Minister:

• did not take into account mandatory relevant considerations, namely the climate change implications of the decision;
• made a decision that was unreasonable; and
• did not have proper regard to the principles of the Treaty of Waitangi (as required by the CMA).

The decision

The High Court delivered a resounding judgment, sending a clear message that it is Parliament’s job to respond to the climate crisis and that judges will not adjust the level of scrutiny they bring to a decision simply because it is “political”, or even one of “the most important issues facing present day humanity”.

The Court dismissed the challenge on all three grounds and said:

• Not only were climate change issues not mandatory relevant considerations, but that they were irrelevant considerations – it would have been illegal for the Minister to take them into account under the CMA. The CMA was carefully crafted, and set out required considerations for the Minister. These did not include climate change issues. In fact, the Court noted that there was a significant disconnect between climate change considerations and the purpose and function of the CMA.

• There was no room to set the Minister’s decision aside as unreasonable simply because she did not consider climate change issues. She was required to ignore these issues because they were irrelevant considerations. It was also inappropriate to apply the “residual” unreasonableness ground when more precise grounds of challenge were available.

• The Minister had to abide by the principles of the Treaty of Waitangi as required by the CMA. She had done so by consulting the relevant iwi in relation to the proposed permits.

Ultimately, while there was a conflict between the CMA and climate change considerations, the Court’s view was that this needed to be balanced at a policy level, rather than by the Minister making decisions under the CMA.

What next?

Although the claimant was unsuccessful in this case, the decision is by no means the end of the road for the courts and those looking to hold decision makers account:

• Activism via judicial review: The judicial review process is one of the most widely used tools in climate change litigation. Claimants are increasingly using this approach to try to hold governments to account to meet emissions reduction targets.

• A strict view of the courts’ constitutional role: Recent decisions internationally have shown that courts are increasingly willing to contemplate novel claims in climate change litigation, and SCSI argued that the Court should approach such claims with heightened scrutiny. Despite this, the decision signals that New Zealand courts may take a more conservative approach, leaving Parliament to respond to the climate crisis as a political issue. Whether this conservative approach is adopted more broadly will become clearer once the Supreme Court delivers its reserved judgment in the Smith v Fonterra litigation.

• Climate change litigation still likely to increase: Until the superior courts adopt this stricter approach, we expect actions of this kind to be brought with increasing frequency by interested groups.

Special thanks to Julia Marshall-Mead for her assistance in writing this article.