The New Zealand High Court recently released a judgment in the case of Students for Climate Solutions Inc v Minister of Energy and Resources. The judgment discussed whether the enactment of the CCRA has introduced an obligation for decision-makers to consider the potential climate change implications of their decisions under the Crown Minerals Act 1991 (CMA). 

Justice Cooke found that decision-makers are not required, and in fact not permitted, to take into account climate change considerations under the CMA, as this would be a direct contradiction of the Act’s purpose. However, the Court found that the climate change implications of a decision may be addressed under the section 4 requirement for any decision to be consistent with the principles of the Treaty of Waitangi (Treaty). This judgment provides guidance on the application of the CCRA and the wider relevance of climate change considerations for official decision-making in New Zealand.

Factual background

Climate Solutions Inc. (Applicant) applied for judicial review of the Minister of Energy and Resources’ (Minister) decision to grant petroleum exploration permits under section 25 of the CMA. As outlined in section [1] of the judicial review, the application related specifically to permits granted to Greymouth Gas Turangi Limited and Riverside Energy Limited. As outlined in section [3], the Applicant applied on three grounds: 

• that the Minister failed to consider the climate change implications of the decision as mandatory relevant considerations; 
• that, for similar reasons, the decision was unreasonable; and
• that there was a failure to have proper regard to the principles of the Treaty.

The Court considered the climate change considerations in the context of the CCRA. 

General discussion

The statutory framework 

The Court began by analysing the statutory framework of the CMA. The Judge considered the overall purpose of the CMA, outlined under section 1A of that Act. The Court found that section 1A(1) of the CMA expressly provided that the CMA’s purpose is to promote prospecting for, exploration for, and mining of Crown minerals for the benefit of New Zealand. 

The Judge further ruled that section 25 of the CMA provided the Minister with the delegated power to grant the permits. Section 25 provides that the Minister may grant an exploration permit in respect of minerals in land to any person, subject to any conditions that the Minister may impose as they see fit. Under section 25, the Minister must not grant a permit for petroleum in respect of any land outside the onshore Taranaki region. Section 29A of the CMA specifies the considerations that a decision-maker must have regard to when acting under the authority of the CMA.

The Judge continued by outlining the framework for addressing climate change issues under New Zealand law. The Judge found that the CCRA, international initiatives, and New Zealand international obligations were all relevant considerations. The Court considered the relevant international initiatives and obligations to include the United Nations Framework Convention on Climate Change 1992 (Convention), the Kyoto Protocol (Protocol), and the Paris Agreement. The judicial review discusses in section [5] that Section 3 of the CCRA outlines the Act’s purpose, which includes a framework for New Zealand to meet its international obligations.  

Statutory interplay 

Under section [29] of the review, the Judge found that the CMA and CCRA overlapped in two key ways. The first was predicated on the Government’s 2018 policy move away from petroleum exploration and production, which included the introduction of a ban on new off-shore petroleum permits. This policy decision provided the basis for the Crown Minerals (Petroleum) Amendment Act 2018. The second related to the Climate Change Response (Zero Carbon) Amendment Act 2019. Section 5ZN of that Act inserted a power for a public official to take into account New Zealand’s emissions target and budget. 

The role of the Court in climate change judicial review

The Applicant argued that the Court should approach judicial review proceedings relating to climate change, with reliance on section [280] Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council. In Hauraki, Justice Palmer found that the intensity of the review of public decisions relating to climate change is similar to that for fundamental human rights. As a result, such public decisions deserved heightened scrutiny as outlined in section [51]. In Climate Solutions Inc v Minister of Energy and Resources [2022], in section [41] Justice Cooke did not accept heightened scrutiny, or variable intensity, to be of assistance in the realm of judicial review. The Judge found that the role of the Court in judicial review is to identify the legal limits and controls on relevant powers, and ensure that those powers were exercised as the law intended. As outlined in section [41], the degree of scrutiny should not change. 

The Minister submitted, as outlined in section [43], that there were constitutional restraints on judicial intervention in cases involving significant public policy issues. The Judge also rejected this submission, on the basis that the power for judicial intervention depended whether the decision-maker in question acted in accordance with the relevant legal requirements and empowering instrument. The Judge found that the power of the Court to conduct judicial review should not be affected by the “polycentric” nature of the issues at hand, as outlined in section [43]. Justice Cooke concluded that the Court had jurisdiction to consider the application for judicial review in the circumstances. 

Grounds of judicial review

Failure to consider mandatory relevant considerations and unreasonableness

The Applicant advanced its first ground of review, as outlined in section [51], on the basis that the international community and the New Zealand Government had failed to address the seriousness of the risks associated with climate change, giving rise to mandatory relevant considerations that the Minister did not address. Justice Cooke referred to CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) to outline the distinction between mandatory and permissible considerations. In section [182] of CREEDNZ, the Court found that an authority was only required to take into account considerations that were expressly or impliedly identified as mandatory considerations. Additionally, it was not sufficient that a non-mandatory consideration was relevant, or one most decision-makers would have taken into account. 

In Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116 at section [75], Justice Cooke ruled that climate change, climate change targets, and related compliance, did not fall within section 29A of the CMA. This was supported by the language in section 1A of that Act, which confirmed that the promotion of mining played a predominant role in decision-making under the CMA. In section [79], the Judge found that any “free floating” relevant considerations arising from the CCRA did not displace this specific intention of Parliament. Consequently, Justice Cooke dismissed the challenge on this ground.

In section [86], Justice Cooke also ruled that, due to the finding that climate change issues were not mandatory considerations under the CMA, the challenge of unreasonableness on that basis could not succeed. 

Compliance with the principles of the Treaty

The Judge ruled, in section [91], that Treaty principles should be considered as part of the principle of legality under New Zealand law, due to the Treaty’s constitutional significance. Justice Cooke distinguished the Treaty principles from general climate change considerations on the basis that the Treaty principles could be considered under section 4 of the CMA. In this way, climate change considerations could theoretically be introduced as a mandatory consideration, if they were raised by Māori whose traditional lands were subject to the decision in question as outlined in section [99]. 

However, the Judge found that section 4 of the CMA did not necessarily require a decision-maker under the CMA to undertake a broader assessment than that required by section 29A of that Act. In section [103], the Judge ruled that a decision-maker was only obliged to consider Treaty principles in relation to climate change if such an issue was raised by or on behalf of the local iwi. The Court also found, in section [108], that the views of Māori on climate change and recommended measures to address the impact of climate change on Māori, were already taken into account in a number of ways under the law. 

Conclusion 

Justice Cooke concluded that the Minister acted in accordance with the relevant power and the purpose of the CMA when granting the exploration permits. The Court ruled, in section [115], that climate change considerations were irrelevant for the exercise of this power and, if the Minister had taken them into account, she would have been acting unlawfully. The Court also concluded that, whilst climate change considerations could become relevant under the principles of the Treaty, the potential impact of climate change on Māori is addressed through other processes. Therefore, the Court found that the application failed.

This case raises interesting questions in relation to the practical significance of climate change considerations and legislation under New Zealand law. The judgment also provides guidance in relation to the authority of the judiciary to review official decision-making and how the Courts may undertake this process.