By Jenny Cooper
Jenny Cooper QC is a New Zealand corporate lawyer and president of Lawyers for Climate Action NZ. She spoke on 10 August 2020 at “All aboard! The race to decarbonise Auckland’s transport.”
All decision-makers who are exercising any form of public power have to act lawfully. That includes cabinet ministers, ministries, councils, and statutory bodies like the New Zealand Transport Authority. If they make decisions that aren’t consistent with the law or with their statutory powers, then anyone affected can apply to the court for judicial review to determine if the decisions are legal or not.
Decisions can be found to be unlawful if they are outside the scope of the decision-maker’s legal powers or lawful purpose under the relevant Act; if irrelevant considerations were taken into account, or mandatory considerations were not taken into account; if they are unreasonable or irrational; or if they have been affected by bias.
Often, an Act will spell out the considerations that a decision-maker must take into account, but, in addition, a court may find that some things which are not explicitly referred to are so obviously relevant that they should have been taken into account.
The usual result of a decision being found to be unlawful is to render it invalid and of no effect. The court will typically ask the decision-makers to do their work again, lawfully this time.
What is clear is that both in New Zealand and overseas, the courts are increasingly willing to get involved in decisions relating to climate change. This was the case in Thomson v Minister for Climate Change. Sarah Thomson challenged the failure by the then-Minister for Climate Change to review New Zealand’s Nationally Determined Contribution under the Paris Agreement. The court was willing to get involved and did find that there were problems with the decision, but that since the government had recently changed, there was no need to order a review.
In New Zealand, sources of the legal duty to decarbonise lie in international and domestic law, and in Te Tiriti o Waitangi.
International law, such as the Paris Agreement, is not directly enforceable in New Zealand courts. But courts do interpret domestic law in a manner consistent with international obligations where possible, for example in Helu v Immigration and Protection Tribunal (see paragraphs 143-145 of the decision). International obligations can also be found to be mandatory considerations for decision-makers. The best recent example is the Heathrow runway case from the UK. In R Plan B v Secretary of State for Transport, the court found that even though the Minister had no statutory obligation to consider the Paris Agreement in approving the third runway, “There can be some unincorporated international obligations that are so obviously material [to a decision] that they must be taken into account. The Paris Agreement fell into this category.” This was an incredibly powerful lawsuit and an incredibly powerful finding by the court.
The centrepiece of New Zealand’s climate law is the Climate Change Response Act 2002, amended in 2019 (the “Zero Carbon Act”). All powers under the Act must be exercised in a manner consistent with its purposes, which include contributing to the global effort under the Paris Agreement to limit global warming to 1.5ºC.
Section 5ZN permits all public decision-makers to take the 2050 zero carbon target and national carbon budgets into account in performing a public function, power, or duty. During deliberations over the bill, Lawyers for Climate Action NZ argued that the subsequent clause (which said that there could be no legal remedy if the 2050 target or carbon budgets were not taken into account) should be deleted. We argued that the courts must have the power to determine the appropriate remedy if the decision-makers are not taking the right things into account, and this was accepted.
On this basis, Lawyers for Climate Action NZ hold the view that the 1.5ºC target, the 2050 target, and the carbon budgets are so obviously material to decisions in some areas, like the transport system, that they must be taken into account. We’re looking forward to testing this in court, if necessary!
There are also many Acts that govern local government and the regulations applying to various polluting activities. For example, the Local Government Act provides a legal duty to “promote the social, economic, environmental, and cultural well-being of communities in the present and for the future”, and to “maintain and enhance the quality of the environment”; the transport system must be “in the public interest”. A transport system pumping out ever-increasing amounts of greenhouse gases simply cannot be in the public interest.
The right to life
Urgenda is a civil society group in the Netherlands, active on climate issues. For several years they have been arguing in the Dutch courts that the Dutch government’s efforts to cut emissions are insufficient: specifically, that they were not consistent with 1.5ºC and that therefore they are not consistent with the right to life, because climate change creates a foreseeable risk of loss of life. On 20 December 2019 the Dutch Supreme Court agreed.
Like the European Convention on Human Rights on which this case depended, the New Zealand Bill of Rights includes a right to life. Lawyers for Climate Action NZ argue that a similar positive legal obligation also applies in New Zealand and that decisions inconsistent with protection of the right to life are unlawful.
Te Tiriti o Waitangi
Article 2 of Te Tiriti o Waitangi protects Māori tino rangatiratanga over Māori whenua, kāinga, and taonga, which extends to climate and the environment.
In 2013, the Supreme Court in NZ Māori Council v Attorney General held that Te Tiriti imposed a duty on the Crown to actively protect Māori use of their lands and waters to the fullest extent practicable.
The Waitangi Tribunal, in Wai 262, found that Te Tiriti imposes a duty of active protection of the environment and a duty to recognize the continuing role of Māori as kaitiaki of environmental taonga.
Two claims are pending, one in the Waitangi Tribunal (Wai 2607) and one in the High Court (Smith v Attorney General) alleging breaches of the Crown’s obligation to take positive action to protect Māori against the threat of climate change.
To sum up, Lawyers for Climate Action NZ hold that Ministers must take our obligation under the Paris Agreement to pursue efforts to limit global warming to 1.5ºC into account; that they must comply with the Crown’s obligation to Māori under Te Tiriti to protect against climate change; that they must take into account the 2050 target and successive carbon budgets, as set out in the Zero Carbon Act; and that they must act consistently with the right to life. Failure to do so will make their decisions unlawful.