On 20 August 2017 the then Labour opposition leader, Jacinda Ardern, announced that climate change would be a priority issue if the Labour party was elected to govern New Zealand, stating that “Climate change is my generation’s nuclear-free moment”. Against this background, the recent High Court decision in Sarah Thomson v Minister for Climate Change[1] provides compelling reading.
At issue was whether following the release of the Fifth Assessment Report (AR5) by the Intergovernmental Panel on Climate Change (IPCC), the Minister for Climate Change should have amended New Zealand’s 2050 greenhouse gas emissions reduction target under s 224 of the Climate Change Response Act 2002 (CCRA), and whether the Minister should have taken account of AR5 when setting New Zealand’s 2030 nationally determined contribution (NDC) under the Paris Agreement. The legality of the Minister’s actions were challenged by judicial review.
Climate Change Response Act
The Court found that setting emissions reduction targets under s 224 of the CCRA by Gazette notice provided the Minister with a discretion to amend or revoke the targets “at any [subsequent] time” by following the same process. While the previous Government had reviewed AR5, the affidavit evidence indicated that the Minister had not considered whether this discretion should be exercised. Although the Court noted that the 2050 target was consistent with AR5 and that this counted “against any remedy”, it went on to state:[2]
But for the change in Government … this may not have been decisive. That is because the Minister did not in fact consider whether to adjust the 2050 target and there may be other matters in AR5 that would cause the Minister to consider a more ambitious 2050 target. (Emphasis added)
Put simply, the Minister had failed to exercise the discretion in s 224 of the CCRA, and had he done so this could have resulted in an amended and more ambitious 2050 target being set.
Based on the new Government’s intention to amend the 2050 target, the Court declined to grant a remedy or make a declaration, notwithstanding the fact that no timetable was in place for amending the target and the Gazette notice procedure under s 224 of the CCRA had not been commenced. The position adopted by the High Court contrasts with the decision of the United Kingdom Supreme Court in R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs where in similar circumstances the Supreme Court made “a mandatory order requiring new plans … to be prepared within a defined timetable” while reserving leave for the relevant minister to apply to vary the timetable if required.[3] In the author’s view, this approach would have been appropriate in Thomson for two reasons. First, given the acknowledged need for “action” regarding climate change recorded by the courts. Second, based on the constitutional principle that ministerial or political statements do not have the force of law.[4] What is however clear is that the Court in Thomson would have sought further submissions on the question as to whether anything more could reasonably be done to secure compliance with the “2050 target in light of the AR5” report, but for the turn of political events following the 23 September 2017 general election.[5]
Paris Agreement
More dramatic than the Court’s findings regarding the question of compliance with the discretionary power in s 224 of the CCRA is the Court’s conclusion regarding compliance with the Paris Agreement, namely, that the previous Government failed to have regard to relevant considerations when putting forward New Zealand’s NDC under the agreement. In reply, the Minister contended that this claim was not justiciable because the Paris Agreement had not been transposed into New Zealand law by statute and that compliance with the agreement was therefore merely “a political matter which is not reviewable”, and because the decision regarding the 2030 target set by the NDC was polycentric and required the balancing of a number of matters that were not susceptible to legal review.[6]
The Court was not persuaded by these submissions on behalf of the Minister and embarked on a detailed review of climate change cases (including ClientEarth) from a variety of civil and common law jurisdictions which led the Court to find conclusively that it had jurisdiction to consider the claim regarding the adequacy of New Zealand’s NDC. The Court stated:[7]
… The courts have not considered the entire subject matter is a “no go” area, whether because the state had entered into international obligations, or because the problem is a global one and one country’s efforts alone cannot prevent harm to that country’s people and their environment, or because the Government’s response involves the weighing of social, economic and political factors, or because of the complexity of the science. The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change. The various domestic courts have held they have a proper role to play in Government decision making on this topic, while emphasising that there are constitutional limits in how far that role may extend. The IPCC reports provide a factual basis on which decisions can be made. Remedies are fashioned to ensure appropriate action is taken while leaving the policy choices about the content of that action to the appropriate state body. (Emphasis added)
The Court then went on to hold that:[8]
This approach is consistent with the view that justiciability concerns depend on the ground for review rather that its subject matter. The subject matter may make a review ground more difficult to establish, but it should not rule out any review by the Court. The importance of the matter for all and each of us warrants some scrutiny of the public power in addition to accountability through Parliament and the General Elections. If a ground of review requires the Court to weigh public policies that are more appropriately weighed by those elected by the community it may be necessary for the Court to defer to the elected officials on constitutional grounds, and because the Court may not be well placed to undertake that weighing. (Emphasis added)
Effectively, the Court applied a reasonableness or proportionality test for scrutinizing the adequacy and appropriateness of the Minister’s decision.
While the Court found that vulnerable low-lying small island states are a matter of concern under the Paris Agreement,[9] and (in particular) that “the impact on Tokelauans is a mandatory relevant consideration when New Zealand is considering its responses to climate change”,[10] the Court was not ultimately persuaded that the NDC put forward by New Zealand “was outside the proper bounds of the Minister’s power”.[11] Accordingly, the ground for review based on the Paris Agreement failed in this case.
Overall, the Court’s approach to the Paris Agreement was consistent with the general approach of New Zealand courts regarding the “implicit relevance” of international obligations and the role they can play in “informing the exercise of discretion”.[12] The real impact of the decision, however, derives from the Court’s clear findings that the Minister’s decision under the CCRA was reviewable and that a remedy may have been granted absent the change to the political landscape following the 23 September 2017 general election; and that climate change litigation is firmly justiciable before the New Zealand courts notwithstanding questions about dualism or polycentricity.
Conclusion
Scientifically, a nuclear moment is the magnetic shift of an atomic nucleus arising from the spin of the protons and neutrons. Whether legal comparison with this aspect of physics is apt, the High Court decision in Thomson is true to the New Zealand’s ethical position on the world stage evidenced by the Nuclear Tests cases 1974 and 1995 and David Lange’s 1985 Oxford Union debate, and is likely to have a lasting seismic effect on both the justiciability of climate change litigation in New Zealand, and New Zealand’s wider international obligations to provide leadership across the Pacific regarding the plight of low-lying small island state neighbours.
Dr Trevor Daya-Winterbottom, Faculty of Law, University of Waikato
[1] [2017] NZHC 733.
[2] [2017] NZHC 733 at [97].
[3] [2015] UKSC 28 at [31].
[4] Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) at 622.
[5] [2017] NZHC 733 at [97].
[6] [2017] NZHC 733 at [102].
[7] [2017] NZHC 733 at [133].
[8] [2017] NZHC 733 at [134].
[9] [2017] NZHC 733 at [33].
[10] [2017] NZHC 733 at [137].
[11] [2017] NZHC 733 at [160].
[12] Matthew Smith, New Zealand Judicial Review Handbook (2nd edn Thomson Reuters, Wellington, 2016) 198.