In New Zealand, there has been at least one case against private actors for allegedly breaching the law by carrying out operations that contribute negatively to climate change.
In Smith v. Fonterra Co-operative Group Limited, the New Zealand High Court allowed a claim to proceed that is grounded in a duty of care of corporations to the public for their emissions. Smith brought tort claims against several operators of greenhouse gas emitting facilities, including dairy farms, a power station, and an oil refinery. Smith alleged that the defendants’ contributions to climate change constitute a public nuisance, negligence, and breach of a duty to cease contributing to climate change. The Court held that Smith could not demonstrate public nuisance or negligence but declined to strike out the common law duty of care claim, although the Court indicated significant hurdles existed for such a claim to succeed. Resolution of that claim is pending trial. The Court rejected the public nuisance claim on the grounds that the plaintiff did not demonstrate special or particularised damages and the connection between the pleaded harms and defendants’ activities were too indirect and not sufficiently linked to the relief sought, as a grant of relief would not stop the harm. Defendants’ compliance with statutory and regulatory requirements presented an additional hurdle to a successful public nuisance claim. The Court found Smith’s negligence claim was premised on a novel duty of care that was untenable.
As this case demonstrates, the necessity to show particularised damages caused by the alleged tortious conduct may limit the availability of tort causes of action for climate-induced harms. However, where these thresholds can be met, there are several potential remedies available, including injunctive relief to prevent the continuation of certain damaging activities or to impose necessary mitigation or adaption measures.
In New Zealand, project approvals have been challenged based on their climate impacts.
Climate advocacy groups recently sought judicial review of the New Zealand transport agency’s decision to fund and build the Mill Road project, asserting the highway would increase carbon emissions by inducing more road traffic and enabling urban sprawl. The government subsequently withdrew the project, citing the project’s costs.
In the planning law context, cases have deemed the consideration of future climate impacts appropriate in the context of development projects. Nearly a decade ago, the Environment Court upheld a Council decision declining consent for the development of residential property in a coastal area likely to be affected badly by erosion and inundation within a 50-year time period.
There has also been a series of cases alleging that project-specific approvals by local authorities have failed to properly take into account greenhouse gas emissions. These cases have manifested in the context of challenges to local authority consents for specific projects. Environmental organisations have mounted challenges to local bodies’ decisions to grant consent for activities involving the discharge of greenhouse gases in a number of instances. Since 2004, New Zealand legislation has specified that Councils must exclude from consideration the effects of discharges on climate change, except where use or development of renewable energy enables a reduction in discharges. In the context of project-specific authorisations, the Supreme Court has examined the legislation, making similar findings to this effect in both instances. New legislation in the form of a proposed new Natural and Built Environments Act (NBA) may carry forward this policy orientation of nationally centralised management of climate change mitigation, rather than delegating this task to Councils via approval decisions.
As to the potential for judicial review of administrative decision-making concerning the implementation of New Zealand’s international climate change commitments, including the authorisation of major new infrastructure, the Thomson case provides some indication of the likely complex scientific and justiciability issues that would be raised. As discussed under scenario 1, the decision in Thomson signals that courts in New Zealand may be inclined to adjudicate challenges to national climate policies provided they can be framed within the limits of justiciability.
In New Zealand, litigants have brought cases alleging that the state’s climate policy does not adequately contribute to climate change mitigation efforts or provide for adaptation to climate change. The following cases illustrate circumstances under which private actors have sought judicial review of implementation of New Zealand’s national climate policy.
Litigants have sought judicial review of decisions relating to implementation of New Zealand’s climate specific legislation, the Climate Change Response Act. In 2019, amendments in the Climate Change Response (Zero Carbon) Amendment Act (2019/61) introduced the goal of carbon neutrality by 2050 and established He Pou a Rangi, the Climate Change Commission, to advise government. In 2021, Lawyers for Climate Action New Zealand (LCANZI) initiated proceedings seeking judicial review of the Commission’s recommendations to the Minister for Climate Change (Lawyers for Climate Action NZ v. The Climate Change Commission ). The group alleges that the Commission’s recommendations for emissions budgeting violate the Act and the government’s obligations under the Paris Agreement. For example, the group asserts that the Commission’s emissions budgets are inconsistent with holding warming to 1.5C and that the Commission misplaces reliance on uncertain offshore mitigation. That action is currently pending in the High Court of New Zealand.
Challenges to government action in New Zealand courts frequently take the form of proceedings seeking the judicial review of decisions by the executive branch of government, including those based on established common law grounds. In the climate change arena, these types of cases are likely to encounter the doctrine of non-justiciability, which excludes the Courts from looking into public policy matters that the executive branch of government is uniquely placed to address. However, the High Court’s decision in 2018 in Thomson v Minister for Climate Change Issues, signalled that courts in New Zealand may be inclined to adjudicate challenges to national climate policies provided that they can be framed within the limits of justicability. Thomson noted that domestic courts elsewhere had declined to view the entire subject matter as non-justiciable, whether because of the social, economic and political dimensions, scientific complexity, international legal character or global nature of the climate change problem.
The Thomson decision also indicates that the New Zealand courts will engage with complex expert scientific evidence in reviewing whether New Zealand has complied with its statutory and international obligations. Plaintiff Sarah Thomson, then a law student, asserted New Zealand’s emissions reductions targets had breached domestic and international obligations. Thomson’s first claim complained about the faliure of the Minister to consider reviewing New Zealand’s 2011 target of a 50% reduction in greenhouse gas emissions by 2050 and set an appropriate new target if needed, following the release in 2015 of the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC). Thomson argued successfully that the Minister had failed to exercise properly the discretionary power to review the climate change target set by the Minister under section 224 of the Climate Change Response Act of 2002. However, although the Court found in favour of Thomson, the Court deemed relief unnecessary and of “historic interest only,” as the newly elected Government had since announced its intention to set a new 2050 target. As to the remaining claims challenging New Zealand’s Nationally Determined Contribution as set under the Paris Agreement in the exercise of the Crown’s prerogative powers, which were brought for review on common law grounds, the Court found that the appropriate decision-making processes had been followed and no reviewable error had occured that warranted intervention.
Courts have also weighed in on local government resolutions concerning climate change. In Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, the New Zealand High Court recently considered whether a district council properly assessed and considered a Local Government Leaders’ Climate Change Declaration. The High Court quashed the council decision to decline to approve the declaration for mayoral signature, noting the effects of climate change are of highest public importance, and the council was required to undertake a proper assessment of the climate change issues following the statutory process applicable to local government decision making.
Remedies that could be sought in future cases include: requesting that the State be called to maintain its international commitments, reviewing its NDCs on the basis of the most up-to-date scientific evidence on climate change and modifying them where necessary (writ of mandamus), and the invocation of the duty for the State to review and update the national targets, both on the basis of the scientific reports made available to the IPCC and on the basis of the Zero Carbon Bill.
Proceedings for inadequate action to address climate impacts are also possible against the government before the Waitangi Tribunal, a permanent Commission of Inquiry with recommendary power that arise from promises made in the Treaty of Waitangi signed by M?ori chiefs and the Crown in 1840. Representatives of the Mataatua District Maori Council have initiated proceedings alleging that New Zealand has breached its obligations to M?ori by failing to implement policies that will address climate change. The claimants seek to establish that government policies are leading to adverse climate impacts, relying on provisions of the Waitangi Treaty that make the government responsible for the “active protection” of natural resources such as forests and fisheries on behalf of M?ori, to argue a breach of an obligation has occurred. The action remains pending.
Private actors may also seek review of implementation of climate policies on human rights grounds. Under New Zealand’s constitutional system, compliance with both domestic and international human rights law would be most likely raised within the context of judicial review. Human rights concerns could generate mandatory relevant considerations for administrative decision-makers, and under the New Zealand Bill of Rights Act 1990, could require the interpretation of climate change or other legislation and regulations consistently with the civil and political rights protected in the Act. There could potentially be circumstances giving rise to claims of discrimination under the Bill of Rights Act 1990or the Human Rights Act 1993, concerning the right of ethnic minorities to enjoy their culture, again most likely to come before the courts in the context of judicial review.
Legal proceedings also have addressed New Zealand’s application of immigration policies to those displaced by climate impacts. In Teitiota v Ministry of Business Innovation and EmploymentNew Zealand courts denied a challenge to the government’s decision on the asylum claim of a Kiribati citizen seeking asylum in New Zeleand on the basis that the effects of climate change and sea level rise forced him to migrate. Teitiota subsequently filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Civil and Political Rights (Article 6). The Committee found the claim admissible, as removal to Kiribati presented an imminent risk of arbitrary deprivation of life due to the effects of sea level rise. Although the Committee recognised that harms from climate change can threaten the ability of present and future generations to enjoy the right to life, the committee dismissed the action on the merits, upholding New Zealand’s determination that Teitiota had not provided evidence sufficient to show he would face personal harm, as opposed to harms rooted in general conditions of the state. Although Teitiota’s claims were not successful, the New Zealand courts did not rule out the possibility that environmental degradation caused by climate change or other natural disasters may provide a basis for protection under the Refugee Convention or protected person jurisdiction.