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

Introduction

Before the Covid-19 pandemic thousands of New Zealand students from High Schools and Universities converged on the central business districts in the metropolitan centres of Auckland, Christchurch, Dunedin, Hamilton, and Wellington on 27 September 2019 to strike for climate action.¹ While the total number of students engaged in the protests (140,000) may appear to have been modest, cumulatively in a New Zealand context the number of students involved was larger than the population of the fourth largest city in the country. Thousands of students were back on the streets again on 23 September 2022 striking for the future of the planet, including 200 students who gathered outside Parliament in Wellington to make their voices heard.² More importantly, the students represent the face of climate change, that 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.

The image of New Zealand as a progressive democratic society

Carol Harlow and Richard Rawlings observed that ‘behind every theory of administrative law there lies a theory of the state’ and stressed the critical role played by constitutional traditions by providing ‘coherence within a legal order’ on the one hand and (perversely) by limiting transnational approaches across jurisdictions on the other hand (Harlow and Rawlings 2009, p. 1). The coherent constitutional tradition within the New Zealand state is one of ‘a free and democratic society’ (Joseph 2014, p. 319). This theory of the state is articulated through constitutional statutes that affirm New Zealand’s commitments to freedom of information and civil and political human rights.³ Likewise from an environmental perspective New Zealand legislation has played a similar pioneering role by establishing a ‘green guardian’ through the office of the Parliamentary Commissioner for the Environment,⁴ and by legislating for sustainability via the Resource Management Act 1991 (RMA) and for a zero carbon future to underpin ‘New Zealand’s clean, green image’ (Cabinet Paper 2020, [25]).

For example, the civil and political rights affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA) –

• Provide for the consistent interpretation of New Zealand legislation with the rights and freedoms contained in the NZBORA (including the right to environmental justice which is affirmed via judicial review under s 27 of the NZBORA – and provides the ultimate safeguard for an environmental rule of law);⁵

• Restrict the limitations that can lawfully be placed on the NZBORA rights and freedoms (which are restricted to the limits that ‘can be demonstrably justified in a free and democratic society’);⁶ and

• Impose a duty on the Attorney-General to bring to the attention of Parliament the provisions in any draft legislation that appear to be inconsistent with the rights and freedoms contained in the NZBORA.⁷

The application of s 7 of the NZBORA, in particular, provides a practical example of the New Zealand theory of the state. Under the New Zealand constitutional system Bills introduced into Parliament are scrutinised by public servants in the Ministry of Justice before they become law, to determine whether they are consistent with the rights and freedoms affirmed by the NZBORA. Where a Bill is considered to be inconsistent with the provisions of the NZBORA and the Attorney-General agrees with the Ministry’s conclusion, a report must be tabled in Parliament under s 7 of the NZBORA to bring the matter to the attention of legislators. The reports are not binding and ‘a significant amount of legislation has been passed notwithstanding negative reports by the Attorney-General’ (New Zealand Human Rights Commission 2016, p. 11). For example, Geoffrey Palmer observed (Palmer 2015, pp. 12–13):

In total, 67 such reports have occurred in the life of the Bill of Rights Act, half concerning Government Bills and half other Bills. On thirty-eight occasions parliament has passed Acts with provisions that contained in the opinion of the Attorney-General a breach of the Bill of Rights – meaning not only that a right or freedom has been breached but also that the breach cannot be justified in a free and democratic society, as required by section 5. … The conclusion that flows from these figures is that bills that breach the Bill of Rights are no big deal so far as the parliament is concerned. It is not a matter of great moment and handled in a rather casual way. One would have thought that derogation from legal human rights standards should be regarded as a serious step, not to be taken lightly. Such does not appear to be the case.

More recently when analysing the record of s 7 of the NZBORA, Philip Joseph found that these statistics evidence a ‘pragmatic indifference to constitutional norms’ (Joseph 2014, p. 1378).

Palmer also reflected on the negative implications of this approach to the rights and freedoms affirmed by the NZBORA on the rule of law (Palmer 2015, p. 2), and the vigour invested by the Crown and public authorities in litigating the application of the NZBORA by the courts where they ‘give up territory very reluctantly’ – which was illustrated neatly by the wait and see game played by the Minister of Climate Change regarding the judicial review proceedings in Lawyers for Climate Action New Zealand Inc v Climate Change Commission⁸ that challenged the mathematical accuracy of the advice that underpinned New Zealand’s unambitious 2030 target for holding global temperature rise to 1.5°C, where the Minister had agreed to revisit the target only if the judicial review succeeded (Palmer 2015, p. 11).

It is also for note that the Attorney-General’s powers under s 7 of the NZBORA were not exercised when the Resource Management (Energy and Climate Change) Amendment Act 2004 was enacted that precluded local authorities from considering the effects of climate change when including rules in plans⁹ or deciding resource consent applications during the period 2004–2022,¹⁰ or when the Climate Change Response (Zero Carbon) Amendment Act 2019 was enacted which (inter alia) restricts the remedies available on judicial review – notwithstanding the clear adverse effect of these statutory amendments on access to environmental justice (Ebbesson 2007, p. 684)

International critique of New Zealand’s current legal and policy response

During the period 1990–2020 New Zealand’s gross greenhouse gas (GHG) emissions increased by 21 per cent, caused primarily by methane from livestock digestive systems, nitrous oxide from fertiliser application to agricultural soils, and carbon dioxide from road transport:

• GHG emissions from the agriculture sector increased by 17 per cent during the period 1990–2020, driven mainly by the increase in the size of the national dairy herd (80 per cent), and the increase in the application of synthetic nitrogen fertiliser (693 per cent) to improve pasture, during this period (Ministry for the Environment 2022, p. 7).

• Similarly, GHG emissions from the energy sector overall increased by 32 per cent during the period 1990–2020, and GHG emissions from road transport in particular increased by 76 per cent during the same period (Ministry for the Environment 2022, p. 7).

• The increase in GHG emissions from road transport was not surprising given the relatively high rate of vehicle ownership in New Zealand when compared with other OECD states, the relative age of the vehicle fleet (approximately 14 years) (Ministry of Transport 2018, p. 7), and the fact that in 2018 the vehicle fleet comprised primarily petrol (79.63 per cent) and diesel (19.18 per cent) vehicles and only 0.92 per cent petrol/electric hybrid vehicles (Ministry of Transport 2018, p. 7).

• While New Zealand’s gross GHG emissions are ‘globally small’ (0.17 per cent of world gross GHG emissions), this viewpoint masks the reality that New Zealand’s per capita GHG emissions remain above average at 17.2 tonnes CO2-equivalent (especially when compared with the global per capita GHG average of 6.25 tonnes) (Ministry for the Environment 2022, p. 10).

From a legal perspective these sobering statistics are not surprising because the New Zealand political system has been slow to respond to climate change mitigation. For example, the ambitious all gases, all sectors, New Zealand Emissions Trading Scheme (NZ ETS) was not established until 2008,¹¹ biogenic methane emissions from agriculture were not regulated until 2019,¹² and a cap on GHG emissions was not put in place under the NZ ETA until 2020.¹³ As the sole policy response to climate change mitigation, the NZ ETS had a chilling effect on climate change litigation as the prohibition on litigation focused on consenting specific projects (introduced by the Resource Management (Energy and Climate Change) Amendment Act 2004) gradually took effect as noted below.

The Paris Agreement 2015 sets a strong commitment to keep global warming below 2°C. Recent work by Lavanya Rajamani has focused on determining national fair shares in GHG mitigation commitments consistent with international obligations (Rajamani 2021), based on scientific analysis produced by a consortium led by the New Climate Institute that quantifies and evaluates climate change mitigation commitments,¹⁴ and found that New Zealand’s pledges, targets, and policies are ‘insufficient’ to meet the Paris Agreement commitment – and are on track for a global warming future of 3°C.

In particular, the scientific analysis focuses on New Zealand’s GHG profile and agriculture where ‘significant’ policy work remains to be done to cap methane emissions. While the Climate Change Response (Zero Carbon) Amendment Act 2019 is recognised as innovative in legislating for zero carbon by 2050, the separate targets for GHG emissions from agriculture will require more aggressive decarbonisation in the energy sector in particular in the approach to 2050 to make up for the shortfall in methane emissions reduction. For example, it is estimated that between 18–25 MtCO2e GHG emissions from agriculture will not be mitigated under the current statutory targets by 2050.¹⁵

New Zealand has relied on forest sinks as a key component of its GHG emissions reduction strategy. However, planted production forest harvests are likely to reduce forest sinks in the short-term, and it is estimated that planted production forest cover would need to increase by 140 per cent compared with 2018 levels if New Zealand is to remain on track to meet zero carbon by 2050.¹⁶

The scientific analysis also noted that the reforms introduced by the Resource Management (Energy and Climate Change) Amendment Act 2004 that precluded local authorities from considering the effects of climate change when deciding resource consent applications have been ‘a major impediment’ on reducing GHG emissions.¹⁷ While these restrictions on local authority discretion have been repealed from 1 December 2022, the focus on decarbonising industry by banning the use of new coal boilers, phasing out coal use on existing industrial sites by 2037, and requiring a switch from diesel and natural gas to electricity, remains arguably narrow – and fails to address increasing GHG emissions from land transport.

Absent any substantive change to New Zealand’s current policy settings regarding carbon zero, the scientific analysis indicates that their long-term effect would be ‘highly insufficient’ and on track for global warming of ‘over 3°C and up to 4°C’.¹⁸ Put simply, on the basis of this analysis from the New Climate Institute, New Zealand’s current GHG emissions reduction commitments are not consistent with addressing its ‘fair share’ of global GHG emissions compatible with holding global warming within the 1.5°C to 2°C range.

Mitigating methane (CH4) emissions, in particular, is a real issue for New Zealand. They total 43.5 percent of total GHG emissions, primarily from livestock digestion (Statistics NZ 2020). However, Eric Peshkin suggested that ‘substantial’ CH4 emissions reductions may be possible, but will require ‘innovative regulation and incentive programs’ to encourage the uptake of science-based methods and techniques (e.g. cattle diet alteration) by the agricultural sector (Peshkin 2021). The uptake of these methods and techniques is important for two reasons. First, because CH4 emissions are 28 times more potent than carbon dioxide (CO2) emissions. Second, because CH4 emissions have a relatively short (12 years) atmospheric life. This suggests that a ‘go hard and go early’ strategy may be appropriate (Ardern 2020) Generally, Peshkin suggested that a ‘rapid response’ is required to reduce CH4 emissions and argued that (Peshkin 2021):

The most compelling interventions are those which not only inhibit methane emissions but also conserve expensive or ecologically vital resources; remain effective in the long term; can achieve economic scale; improve animal or crop productivity and nutritional value; and lack harmful health or environmental side effects.

The dynamic lens of climate change litigation and its potential to influence public policy

Michael Gerrard and Meredith Wilensky noted the general trend of climate change litigation focused on consenting specific projects, such as, coal and gas fired power plants and coal mine extensions and the likely GHG emissions arising from them, to ensure that climate change effects are taken into account by the relevant consent authority (Gerrard and Wilensky 2016, pp. 367–369). This trend was reflected in climate change litigation in New Zealand during the period 2002–2013.¹⁹ However, Gerrard and Wilensky also noted the increasing trend, in the wake of Massachusetts v EPA²⁰ and Urgenda Foundation v Netherlands,²¹ for climate change litigation to drive public policy (Gerrard and Wilensky 2016, pp. 366–367). Again, this trend has been reflected in climate change litigation in New Zealand since the landmark decision of the High Court in Thomson v Minister of Climate Change Issues (Foster 2021, pp. 227–234).

Sarah Thomson, a 24-year old law student, challenged the failure of the Minister of Climate Change Issues to review New Zealand’s 2050 emissions reduction target under the Climate Change Response Act 2008 (CCRA) following the publication of Assessment Report 5 by the Intergovernmental Panel on Climate Change in 2014 (Pachauri and Meyer 2014). She argued that publication of the report required the Minister to consider whether the target should be reviewed, and that the Minister had failed to have regard to relevant considerations when putting forward New Zealand’s nationally determined contribution (NDC) under the Paris Agreement.

The High Court in Thomson agreed that publication of the report triggered a requirement for the Minister to consider whether an existing target should be reviewed under s 224 of the CCRA. In particular, it found that this was a mandatory consideration. Put simply, the Minister was required to consider whether the information in the report materially altered the information on which the target was based. Justice Jillian Mallon stated:²²

To give effect to the Act and what New Zealand has accepted, recognised, and committed to under the international instruments, and in light of the threat that climate change presents to humankind and the environment, I consider that the publishing of the new IPCC report requires the Minister to consider whether a target set under s 224 should be reviewed … it is a mandatory relevant consideration.

More importantly, the High Court in Thomson found that the Minister had not considered these matters, and observed that there may have been information in the report (had it been considered properly) which could have caused the Minister to consider setting a more ambitious 2050 target.²³

In relation to the question of whether the Minister had failed to take relevant considerations into account when submitting New Zealand’s NDC under the Paris Agreement, the Minister contended that there was no jurisdiction to consider this matter because the Agreement had not been transposed into New Zealand domestic law. However, the High Court was not persuaded that the Agreement was a ‘no go’ area. Based on the overseas decisions in Massachusetts and Urgenda, Justice Mallon stated:²⁴

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 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.

However, the change of Government following the 2017 General Election and the incoming Government’s commitment to revisit the 2050 target at some point in the future was decisive in terms of the final result in Thomson. While the High Court could have exercised its discretion make a prerogative order for mandamus, compelling the Minister to revisit the target within a fixed time period similar to the approach adopted by the United Kingdom courts,²⁵ it chose not to do so on this occasion.

Although the High Court decision in Thomson was not appealed by the Crown, the Government’s response when enacting the Climate Change Response (Zero Carbon) Amendment Act 2019 was to downgrade climate change targets from a mandatory consideration to merely a permissive consideration,²⁶ and to restrict judicial review remedies to the power to make declarations only where compliance with GHG emissions reduction targets or budgets is in issue.²⁷ Effectively, these statutory amendments remove the ability of the courts to decide such matters in the same way as the High Court in Thomson, but they have not abated the continued flow of climate change litigation or constrained legal imagination. For example, the High Court has continued to interrogate a wide range of decisions – the failure by a local authority to declare a climate change emergency,²⁸ whether a regional land transport plan would increase GHG emissions,²⁹ challenging the grant of gas prospecting permits,³⁰ alleging critical mathematical errors in Ministerial advice about carbon budgets,³¹ and the creation of a novel duty of care in tort requiring companies to reduce net GHG emissions to zero.³²

The High Court decisions in these cases illustrate the point made by Elizabeth Fisher, Eloise Scotford, and Emily Barritt, that climate change is ‘legally disruptive’ because it is controversial and polycentric (Fisher et al. 2017, p. 173, 177, 179), it involves difficult issues around jurisdiction and justiciability in terms of whether litigants have the legal standing to pursue proceedings before the courts and the courts ability to grapple with the complexity of climate change (Fisher et al. 2017, p. 184, 186), and the need to contemplate new doctrinal approaches – for example, the duty of care to radically reduce GHG emissions explored in Urgenda³³ and more recently in Smith (Fisher et al. 2017, p. 189). Subsequently, Joanna Bell and Elizabeth Fisher drew attention to the different approaches to judicial review (Bell and Fisher 2022, p. 12), for example where ‘mainstream public law doctrine’ has arguably been applied thinly to decline judicial review as in All Aboard Aotearoa³⁴ or Students for Climate Solutions,³⁵ or where public law principles have been applied more dynamically (thickly) by engaging with the background context of climate change in a more creative way as in Thomson³⁶ and Hauraki Coromandel Climate Action.³⁷

More broadly, these decisions also confirm the point made by Neil Gunningham that while climate action by the next generation (for example, Extinction Rebellion) can produce real impact, it is likely through the creation of ‘broader coalitions of business and civil society actors’ that enduring impact on public policy can be generated (Gunningham 2020, p. 10, 24–30). For example, the High Court decisions in Hauraki Coromandel Climate Action,³⁸ All Aboard Aotearoa,³⁹ and Lawyers for Climate Action⁴⁰ readily illustrate the dynamic ability for climate action by the next generation to energise much broader coalition building across New Zealand civil society – including, pro bono action by the legal community (Preston 2021). Separately, Manuela Niehaus and Kirsten Davies emphasised the similarity between climate action and previous community-based movements, such as, anti-nuclear protests and women’s rights (Niehaus and Davies 2021, p. 228, 231–236). They also drew attention to the direct connection between climate action and future generations, for example, Minors Oposa v Factoran⁴¹ and Juliana v United States;⁴² and with the emerging rights of nature based on the statutory recognition given to the personality of the Te Urewera Ranges and the Whanganui River (Niehaus and Davies 2021, p. 241–245, 247–248). The issues of standing encountered in Oposa and Juliana have not arisen directly before the High Court, but Smith engages both future generations and the wider environment as a result of Michael Smith’s concern for his grandchildren’s future and for the environment as kaitiaki or guardian.⁴³ It is also for note that New Zealand statute law engages directly with future generations as a relevant consideration in decision-making in a number of instances that have not yet generated any jurisprudence from the courts.⁴⁴

System reinvention: a new political agenda to confront climate change

Twenty-eight year old Max Harris was also motivated to embark on The New Zealand Project by the complexity, scale, and unprecedented nature of current issues (such as climate change) that face New Zealand, the apparent absence of political debate or imagination to confront such issues, and the ‘gulf’ between the political establishment and ‘young New Zealanders’ and their vision regarding how such challenging issues should be addressed. Like Sarah Thomson, his work is representative of the next generation of New Zealanders. The vision for a new political agenda to confront the challenge of climate change reimagined by Harris in The New Zealand Project articulates three interconnected themes that underpin an agenda for achieving a clean environment, namely, pursuing an ethical and independent foreign policy, decolonisation, and constitutional transformation (Harris 2017, ch 1).

Harris noted the historical trend of justifying New Zealand’s foreign policy in ethical terms (Harris 2017, p. 36). Perhaps, the best illustration of this approach to crafting an independent foreign policy was the participation by David Lange (then Prime Minister) in the Oxford Union debate on 1 March 1985 regarding nuclear disarmament. Lange focused on the absence of any moral justification for nuclear weapons, and their propensity to corrupt the political intentions of the countries who possess them. Harris noted that (Harris 2017, p. 36):

What is notable is Lange’s reliance on ethical language and argumentation. He speaks not of the place of nuclear weapons in the power politics of the world, but of the rightness and wrongness of nuclear weapons and those who use them.

Critically, Harris observed that New Zealand’s position could be rationalised on the basis of its relative size in the international world order, and the possibility that it can therefore ‘afford’ the relative comfort of avoiding ‘realpolitik reasoning’ by retreating to ‘ethical language’ (Harris 2017, p. 36). However, in practice the moral justification for failing to address climate change mitigation may require an ethical counterfactual as the catalyst for moving political action forward both nationally and internationally. In this sense, the relative comfort derived from New Zealand’s perceived weight in international debates could provide the basis for challenging complacency through its willingness to describe climate change as this ‘generation’s nuclear-free moment’ (Ardern 2017). Overall, Harris considered that New Zealand could do much more. He stated (Harris 2017, p. 81):

… New Zealand is close to Pacific countries that are affected by climate change, and New Zealand has skills and ties with other countries that – if harnessed in the right way – could be useful for climate advocacy.

Harris also relied on the work of Geoffrey Palmer and Andrew Butler who noted the international trend to link human rights with the response to ‘the magnitude of the global environmental crisis’ (Palmer and Butler 2016, p. 169). This led them to propose that any future written constitution for New Zealand should include environmental rights. In particular, they observed that the ‘aim’ of such a provision would be (Palmer and Butler 2016, p. 171):

… to ensure that people can enjoy an environment that is not harmful to their health or wellbeing and to protect the environment for the benefit of present and future generations by ensuring that economic development is sustainable. This is an important principle reflected in the New Zealand Resource Management Act 1991. The provision in the Constitution gives constitutional status to that principle.

As a result, Harris observed (Harris 2017, p. 98):

Written constitutions matter. They provide backstop protections when things go wrong. They help to provide clarity on values and the protections that do exist in our laws.

This led him to conclude that adopting a written constitution could ‘structure and harness’ transformative change regarding (inter alia) climate change and environmental policy (Harris 2017, p. 98).

Harris applied these overarching themes to climate change policy. For example, he noted that New Zealand’s relative size in the international world order was not decisive in terms of its decision to pursue a nuclear-free policy. Likewise, he considered that it should not be decisive in terms of determining New Zealand’s commitment to reducing GHG emissions. He found that New Zealand’s total contribution to gross global GHG emissions (0.17 per cent) was ‘not insignificant’, and that New Zealand should not ‘shirk’ its responsibilities because it could ‘make genuinely global action more likely by contributing to global reductions in emissions’ (Harris 2017, p. 203). Put simply, ‘being small has never stopped’ New Zealand ‘from tackling tough goals’ and it should not ‘stop us from tacking climate change cuts seriously’ (Hayward 2017, p. 36).

The increasing impact of tikanga Māori and its relational approach to the wellbeing of the environment

Harris also argued for the need to decolonise the New Zealand legal system by integrating ‘Māori world views into policy solutions’ (Harris 2017, p. 200). This is important because tikanga Māori is focused on whanaungatanga or ‘the interconnectedness of all things’ (Harris 2017, p. 200); Bargh 2019, p. 189). For example, Harris noted that (Harris 2017, p. 200):

… Māori values – such as mauri, wairua, kaitiakitanga and utu – offer a powerful way to ensure that there is balance, collective custodianship or guardianship and respect for the spirit or force of the natural world.

As a result, he observed that integrating Māori world views into environmental policy would provide a promising start for developing solutions to address climate change and other environmental crises.

Most recently, the Supreme Court in Ellis v R was required to determine whether tikanga Māori was relevant in the context of preserving criminal appeal rights. The decision provides the most authoritative statement on tikanga Māori as law. For example, Justice Susan Glazebrook found that ‘tikanga will need to be considered where it is relevant to the circumstances of the case’ and stated:⁴⁵

In some cases, tikanga and its principles may be controlling: for example, where Treaty principles and/or tikanga have been incorporated into statute in a manner that makes them so, or where the factual context justifies it. In other cases, tikanga principles or values may be relevant considerations alongside other relevant factors. Tikanga may be relevant to explain the social and cultural framework for the actions of Māori parties. In still other cases tikanga principles and values may have an influence on the development of the common law. They can also provide a new vocabulary or a new way of thinking about new concepts of law or a new intellectual framework for those concepts … 

The Supreme Court decision in Ellis is likely to have a profound effect on environmental decision-making.⁴⁶ For example, tikanga is referenced in 142 statutes including the Climate Change Response Act 2002 (CCRA) and the RMA. Beyond that, s 3A of the CCRA details the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi, while s 8 of the RMA requires all persons having duties and powers under the RMA to take the principles of the Treaty into account.

Additionally, the resource management reforms currently under construction are likely to result in the repeal and replacement of the RMA by the proposed Natural and Built Environments Act which is focused more strongly on the wellbeing of the environment, including, the health of the environment, the intrinsic relationship between Māori and the environment, the interconnectedness of all parts of the environment, and the essential relationship between the health of the environment and its capacity to sustain all life.⁴⁷ Arguably, this approach to protecting and enhancing the environment more closely reflects the interconnectedness of all things which lies at the heart of tikanga Māori.

Equally, the potential for developing new ways of thinking about legal concepts (like giving legal personality to mountains and rivers) articulated by Justice Glazebrook in Ellis also provides a basis for developing a duty of care to radically reduce GHG emissions that could be enforced via tort based civil litigation – certainly by kaitiaki like Mr Smith, and potentially as a result of the dynamic application of tikanga Māori by the Supreme Court in Ellis to all persons as part of New Zealand law generally – by anyone who may be motivated by the ethic of stewardship.

Beyond that, the Waitangi Tribunal claim by the Mataatua District Māori Council ‘breaks new ground for indigenous rights and climate change’ (Hayward 2017, p. 51). Based on the obligation of active protection of Māori interests under art 2 of the Treaty of Waitangi, the claimants argue that the Crown has breached this duty by ‘failing to implement adequate national policies to address ongoing detriment and future threats posed by global climate change’ (Foster 2021, pp. 234–235). For example, Bronwyn Hayward observed presciently (in light of the effects of cyclone Gabrielle) that the claim ‘has the potential to require government to consider adaptation and mitigation issues that impact on Māori … with regard to flooding and forestry’ (Hayward 2017, p. 51).

Overall, these cases demonstrate the dynamic capacity for tikanga Māori to reshape how New Zealand addresses climate change (Sharp et al. 2020; Pirini and Morar 2021; Williams 2021; Hughes 2022).

Conclusion

Climate action by the next generation has been generated by the absence of imagination and inadequate efforts by the Government to respond to climate change. It has produced real impact by providing the catalyst for a broader civil society coalition that has been mobilised to take action to reduce GHG emissions. The continued flow of imaginative climate change litigation remains unabated and is unlikely to subside. But it remains unclear whether ‘systemic change is best achieved via system coercion through the courts; or system reinvention on the streets’ (Maynard 2019, p. 24).

It is therefore vitally important that New Zealand should play a substantive role in reducing GHG emissions. Leading by example is important, to show that we have listened to the next generation and that we have done something real to address their concerns, and to encourage larger nations to do as much as they can to address climate change. If we do not, future generations will not judge us kindly (Shue 2014, pp. 61–64), and neither will the next generation:⁴⁸

When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

However, the dynamic impact of tikanga Māori (as law) and the underlying values of whanaungatanga (interconnectedness) and kaitiakitanga (guardianship) and the ethic of stewardship may provide some real hope for the future.

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).