Climate change litigation is increasingly a global trend, where individuals or groups seek to use the Court to force change.^[1]

In the recent case Students for Climate Solutions Incorporated v Minister of Energy and Resources, the Court of Appeal has reinforced that Parliament’s legislative intent reigns supreme. The Court found that the purpose of the Crown Minerals Act 1991 (CMA) on mining is for the economic development of New Zealand. In doing so, they emphaised the importance of statutory purpose and intent when considering the relevance of climate change matters within a legislative scheme. 

There were also interesting comments on how decision-makers can meet their obligations under te Tiriti o Waitangi to have regard to the impacts of climate change on Māori. 

Summary of the judicial review

Students for Climate Solutions Inc has been unsuccessful in the Court of Appeal challenging a decision of the Minister of Energy and Resources to grant two petroleum exploration permits in Taranaki under s 25(1) of the CMA. They argued that the decision to grant the permits was unlawful because the Minister failed to consider the climate change implications of the decision, as required either as a mandatory relevant consideration or to have proper regard to the principles of the Treaty of Waitangi|te Tiriti o Waitangi.

Basis of the challenge

Student for Climate Solutions argued that the decision-maker was obliged to consider climate change when granting the permits on the bases that:

1. The purpose of the CMA is to promote exploration and mining “for the benefit of New Zealand.”  Therefore, if the proposed permit would not be for the benefit of New Zealand due to climate change reasons, this is relevant for the Minister to consider.
2. The Treaty principle of active protection requires that climate change is considered in decision-making concerning fossil fuel extraction because of the particular vulnerability of Māori to the effects of climate change.

High Court decision

The High Court dismissed the judicial review, finding that having regard to the scheme and purpose of the CMA, climate change considerations were not relevant to the decision. The Court also considered that the Minister had adequately considered the principles of te Tiriti through a consultation process with affected iwi and hapū, and warned against non-Māori bringing claims alleging a breach of the principles of Te Tiriti without evidence of support from affected iwi and hapū.

Court of Appeal decision

In dismissing Students for Climate Solutions’ appeal, the Court of Appeal agreed with the High Court decision.

Were the climate change implications of granting the permits a mandatory relevant consideration?

While the Court acknowledged the seriousness of climate change, it found that climate change implications were not a mandatory relevant consideration under the CMA. The Court considered that the purpose of the CMA was focused on mining for the economic “benefit of New Zealand”.^[2] In reaching this conclusion, the Court noted that it “cannot strain legislation to the point that it no longer gives effect to Parliament’s intention.”

The Court was also asked to consider the implications of international climate change obligations and the Climate Change Response Act 2002 (CCRA), which identifies New Zealand’s 2050 target and emissions budget as permissive considerations for public decision-makers, on the decisions.

The Court found that the granting of the permits did not breach New Zealand’s international climate change obligations. This was because the permits themselves would not prevent New Zealand from meeting its 2050 target, and because the importance of a “just transition” is explicitly recognised in international instruments. Even if the permits had breached New Zealand’s international obligations, the Court considered that these obligations could not defeat the “clear and unambiguous” scheme and purpose of an Act.

The majority (French and Gilbert JJ) considered it unnecessary to comment on the relevance of permissive considerations under s 5ZN of the CCRA, as these considerations are clearly not mandatory. Mallon J in her minority judgment differed from the majority and considered that s 5ZN factors were permissible considerations that the Minister could take into account, and that the CMA did not preclude this.

Did the Minister fail to have proper regard to the principles of te Tiriti?

The Court held that the Minister had proper regard to the principles of te Tiriti, having consulted with affected iwi and hapū and taking actions in response to this consultation (as part of an earlier statutory process).

The impact of climate change on Māori generally was recognised as relevant to the Crown’s te Tiriti obligations. The Court also accepted that climate change considerations could become relevant under the CMA’s te Tiriti provision and the principle of legality.

However, the Court held that the Minister in this case was not required to broadly inquire into the potential impacts of climate change on Māori generally, this being the responsibility of other Crown bodies. Rather, the Court considered that the Minister was entitled to focus her decision on the localised issues presented to her and the engagement conducted with iwi, which she did “in a meaningful way.”

Conclusion

The case demonstrates that despite the seriousness of climate change, the courts will not read climate change obligations into legislation if to do so would work contrary to the legislative purpose. While the courts have a role in holding the Government to account through the judicial review process, they must be true to their constitutional role - and not impose their own policy views.

More specifically, climate change impacts generally will not be enough in and of themselves to prevent the granting of fossil fuel exploration permits under the CMA where such exploration offers significant economic benefit to New Zealand and is pursued in a te Tiriti-compliant way. We expect that this area of the law will develop further, especially in light of the continuing Smith v Fonterra litigation which is addressing the common law obligations of mining companies (and others) in terms of climate impacts.

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Special thanks to Louise Goodwin for her help in preparing this article.