Two recent High Court decisions have highlighted the obstacles faced by those looking to challenge administrative decisions for failure to take into account, or give sufficient weight to, potential impacts on climate change.

In 2019 the Thames-Coromandel District Council decided not to approve the Mayor signing the Local Government Leaders’ Climate Change Declaration. That decision was quashed by the High Court in 2020 as a result of judicial review proceedings (Thames-Coromandel decision).^[1]

In its decision, the Court provided a general commentary on public decision-making that relates to climate change, and said that where a public decision concerns climate change, the courts should apply the same degree of scrutiny to the decision as it would to cases concerning fundamental human rights.^[2]

That judgment had encouraged climate advocacy groups to bring judicial review proceedings against public decision-makers, with the aim of overturning decisions or preventing activities that they argued were counter-productive to New Zealand reaching its climate goals.

However, in the past fortnight, the High Court has released two decisions dismissing applications for judicial review:

1. In Movement v Waka Kotahi the Court dismissed a challenge to Waka Kotahi’s decision to adopt its national land transport programme;^[3] and
2. In Royal Forest & Bird Protection Society v Southland District Council the Court dismissed a challenge to a Council decision to grant access rights over land that the Council owned to mining company Bathurst Resources Limited.^[4]

Along with High Court’s decision in All Aboard Aotearoa v Auckland Transport^[5] released last year, there is now a clear trend that where public powers have been exercised consistently with the relevant statutory framework, and a sound decision-making process has been followed, the Court will be reluctant to overturn public bodies’ decisions based on their potential impact on climate change.

Simpson Grierson acted for successful parties in all three of these cases, and continues to act for Auckland Transport and Auckland Council in the All Aboard Aotearoa case which is awaiting a further hearing in the Court of Appeal. In this FYI, we summarise the recent Movement and Forest & Bird cases, and what these decisions mean for future climate change-related litigation.

Movement v Waka Kotahi

Movement, a sustainable transport and climate change advocacy organisation, sought judicial review of Waka Kotahi’s decision to approve the 2021-2024 National Land Transport Programme (NLTP).

Movement argued that in preparing and adopting the NLTP, Waka Kotahi failed to meet requirements under the Land Transport Management Act 2003 (LTMA) to ensure that the NLTP:

1. contributes to the purpose of the LTMA; and
2. gives effect to the Government Policy Statement on Land Transport 2021 (GPS).

In particular, Movement argued that to meet these requirements, Waka Kotahi needed to assess and consider various matters related to greenhouse gas (GHG) emissions that would be generated by projects included in the NLTP, undertake quantitative modelling of emissions, and assess alternatives. Movement’s position was that Waka Kotahi failed to take these steps, with the result that its decision to approve the NLTP was unlawful.

The Court has dismissed Movement’s arguments. In reaching its decision, the Court found that:

1. while climate change is an important issue for the land transport sector, the Court’s role in judicial review is limited to ensuring that the decision-maker (here, Waka Kotahi) exercised its decision-making regarding the NLTP in line with the requirements under the LTMA and GPS;
2. climate change considerations are not a specific purpose under the LTMA. While climate change is one of the four strategic priorities in the GPS, it does not have primacy over the other strategic priorities;
3. the NLTP activities were assessed as contributing to the short to medium term results of reducing transport sector GHG emissions. The qualitative assessments undertaken by Waka Kotahi met its requirements under the LTMA and the GPS; and
4. Waka Kotahi was not required under the LTMA or the GPS to undertake quantitative measurements of land transport GHG emissions.

Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council

At a full Council meeting in April 2021, the Southland District Council resolved to:

1. enter into an access arrangement with Bathurst Resources Limited, regarding Council-owned commercial forestry land at Ohai, for exploration purposes; and
2. authorise its officers to negotiate an access arrangement with Bathurst regarding the land, for mining purposes.

Forest & Bird challenged the decision, and advanced eight separate grounds on which the Council had acted unlawfully. Three of these arguments were that the Council had:

1. failed to consider mandatory considerations, key among these being the scientific consensus on climate change, the Local Government Leaders’ Climate Change Declaration and the communities' views and preferences on the matter;
2. failed to properly apply its Significance and Engagement Policy, which required the Council to determine that the decision was “significant” under part 6 of the Local Government Act 2002 (LGA).
3. made a decision that was unreasonable.

The Court dismissed all eight grounds and upheld the Council’s decision. Distinguishing the case from the Thames-Coromandel decision, it determined that the Council’s decision was narrowly concerned with whether to grant access over Council-owned land. The decision did not authorise coal mining, that being a matter for the responsible Minister under the Crown Minerals Act 1991. The Court further found that the Council had followed a sound decision-making process, and had complied with the LGA’s decision-making provisions.

The Court also found that the decision did not fall into the category of decisions that the Court in Thames-Coromandel said required “heightened scrutiny” due to gravity of the subject matter, namely a decision about climate change. The court noted that the variable standard of review identified in the Thames-Coromandel decision was not settled law, but it did not need to engage in that issue.

Our assessment

The court’s function in judicial review proceedings is to determine whether a decision-maker, exercising a public power, has exercised that power lawfully. The court will rarely wade into a debate on the merits of any decision, including decisions that may have climate change implications. To do so, there will need to be a clear reason, for example where the empowering legislation requires that consideration be given to climate change, or where the decision is centrally concerned with climate change (as was the case in the Thames-Coromandel decision). Even in those circumstances, provided the right factors were considered, and the decision made was reasonably open to the decision-maker, it is not the court’s place in judicial review to substitute its view about the merits of any decision.

The position is well summarised in the opening paragraphs of the Movement case:

1. The Courts are aware of the significant concerns that many New Zealanders have about climate change and the steps being taken to address the problem. Judicial review allows the Court to ensure that public bodies act within the limits of their legal powers in accordance with the relevant procedures and legal principles governing the exercise of their decision-making function. That function has been emphasised in a number of cases challenging decision-making in the context of climate change.
2. The Court however is not in a position to make political, social and economic choices. Those decisions are entrusted to Ministers and other public bodies. There will be choices as to the approach taken by public bodies made legitimately within the statutory and policy framework.

Despite these recent cases, decisions that could have climate change impacts will remain contentious. In making such decisions, public authorities will need to ensure that robust decision-making processes are followed.

With recent RMA amendments, effects on climate change can now be considered in planning and consenting decisions, and in turn by the Environment Court. In other respects, however, New Zealand courts have confirmed that the baton remains with Parliament and the Executive (both central and local government) to lead our country’s response to the challenges of climate change.

Special thanks to Sam Hart for his assistance in writing this article.