Defining our legacy to all future generations

ABSTRACT

The face of climate action is increasingly young, well informed, and active. But despite the growing rumble of this youth-quake, the New Zealand political system has to date been slow to respond to climate change mitigation. This article will therefore critically explore the apparent paradox between the image of New Zealand as a leading progressive democratic society, and its current response to the climate emergency. In particular, the paper will interrogate this theme from the perspectives of the international critique of New Zealand’s current legal and policy response, the dynamic lens of climate change litigation and its potential to influence public policy, and the increasing impact of tikanga Māori as a primary source of New Zealand law and its relational approach to the wellbeing of the environment and the underlying ethic of stewardship. The overall thesis of the paper will be that cumulatively these trends will have the energy to generate an effective response to climate change and mobilise the urgent joined-up action required to reduce greenhouse gas emissions and build adaptive capacity within the closing opportunity of the next two decades.

KEYWORDS:

• Climate change litigation
• future generations
• Tikanga Māori
• legal and policy response
• ethic of stewardship

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 newshub.co.nz (27 September 2019).

2 rnz.co.nz (23 September 2022).

3 Parliamentary Commissioner (Ombudsmen) Act 1962, Ombudsmen Act 1975, Official Information Act 1982, Local Government Official Information and Meetings Act 1987, New Zealand Bill of Rights Act 1990, Human Rights Act 1993.

4 Environment Act 1986, pt 1.

5 NZBORA, s 4, s 5, and s 6; Rio Declaration on Environment and Development 1992, Principle 10; IUCN World Declaration on the Environmental Rule of Law 2016, Principle 10.

6 NZBORA, s 5.

7 NZBORA, s 7.

8 CIV-2021-485-341. The case was heard by the High Court 28 February to 4 March 2022 and the decision is currently reserved.

9 RMA, s 70A.

10 RMA, s 104E.

11 Climate Change Response (Emissions Trading) Amendment Act 2008.

12 Climate Change Response (Zero Carbon) Amendment Act 2019.

13 Climate Change Response (Emissions Trading Reform) Amendment Act 2020.

14 climateactiontracker.org (accessed 25 June 2021).

15 climateactiontracker.org (n 29).

16 climateactiontracker.org (n 29).

17 climateactiontracker.org (n 29).

18 climateactiontracker.org (n 29).

19 Environmental Defence Society Inc v Auckland Regional Council [2002] NZRMA492; Genesis Power Ltd v Greenpeace New Zealand Inc [2008] NZSC 112; West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 133.

20 549 US 497 (2007), 127 S CT 1438 (2007).

21 Hague DC C/09/456689/HA 2A 13-1396.

22 [2017] NZHC 733, [94].

23 [2017] NZHC 733. [97].

24 [2017] NZHC 733, [133], [134].

25 R (on application of Client Earth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.

26 CCRA, s 5ZN (inserted by the Climate Change Response (Zero Carbon) Amendment Act 2019, s 8).

27 CCRA, s 5ZM (inserted by the Climate Change Response (Zero Carbon) Amendment Act 2019, s 8).

28 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228.

29 All Aboard Aotearoa Inc v Auckland Transport [2022] NZHC 1620.

30 Students for Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116.

31 Lawyers for Climate Action New Zealand Inc v Climate Change Commission CIV-2021-485-341.

32 Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2021] NZCA 522, [2022] NZSC 35.

33 Urgenda (n 41).

34 All Aboard Aotearoa (n 52).

35 Students for Climate Solutions (n 53).

36 Thomson (n 43).

37 Hauraki Coromandel Climate Action (n 51).

38 Hauraki Coromandel Climate Action (n 51).

39 All Aboard Aotearoa (n 52).

40 Lawyers for Climate Action (n 54).

41 (1993) 224 SCRA 792.

42 217 F. Supp. 3d 1224.

43 Smith (n 49).

44 Climate Change Response Act 2002, sch 1; Conservation Act 1986, s 2; Energy Efficiency and Conservation Act 2000, s 6(c); Environment Act 1986, Long Title; Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 10(2)(a); Hazardous Substances and New Organisms Act 1996, s 5(b); Resource Management Act 1991, s 5(2)(a).

45 [2022] NZSC 114, [117], [118].

46 [2022] NZSC 114, [267] (Williams J).

47 Draft for Consultation, Natural and Built Environments Bill, s 5.

48 Juliana (n 66) 64 (Staton DJ dissenting).