Students For Climate Solutions Incorporated v Minister of Energy and Resources - [2024] NZCA 152
Date of Judgment
07 May 2024
Decision
Students For Climate Solutions Incorporated v Minister of Energy and Resources (PDF 517 KB)
Summary
JUDICIAL REVIEW — Appeals, Ministerial decision, climate change, Crown Minerals Act
This appeal concerned a review of the decision, by the delegate of the Minister of Energy and Resources, to grant two petroleum exploration permits under s 25(1) of the Crown Minerals Act 1991.
Students for Climate Solutions Inc challenged the decision to grant the permits in the High Court. It argued the decision-maker was obliged and failed to consider the climate change implications of the decision — either as a mandatory relevant consideration or in having regard to the principles of the Treaty of Waitangi | Te Tiriti o Waitangi, rendering the decision unlawful. These arguments remain substantively the same on appeal. In the High Court Cooke J rejected the arguments. Although he accepted there were genuine climate change issues arising from continuing to grant permits allowing exploration for fossil fuels, he was satisfied having regard to the scheme and purpose of the Act climate change considerations were irrelevant and accordingly the decision to grant the permits was not unreasonable. He acknowledged that the decision-maker was obliged to take into account the principles of the Treaty of Waitangi but held that obligation had been discharged.
The panel agreed the appeal should be dismissed, however Mallon J wrote separate reasons in relation to the relevance of s 5ZN of the Climate Change Response Act 2002.
Were the climate change implications of granting the permits a mandatory relevant consideration?
Held: No
French and Gilbert JJ
The majority noted that although the seriousness of climate change is beyond argument that does not mean that the Courts can strain legislation to the point that it no longer gives effect to Parliament’s intention.
The majority supported Cooke J’s interpretation of the purpose section (s 1A), that the purpose of the Act was to promote mining and the phrase “for the benefit of New Zealand” was simply Parliament’s indication it desired those activities to take place because they would be of economic benefit to New Zealand. Support for this interpretation was drawn from legislative materials surrounding the section’s enactment, as well as the minerals programme for petroleum. The exploitation focus of the Act was also identified in a number of High Court decisions.
Further French and Gilbert JJ noted the 2018 amendments to the Act — in which sections concerning limiting permits to onshore Taranaki were expressly stated to be “despite” s 1A — and the 2023 amendments — which changed the purpose from to “promote” mining to “manage” mining. In relying on the legislative materials concerning subsequent amendments, the Judges relied on the assumption that if Parliament in drafting legislation does so on the assumption that an earlier Act had a particular meaning, the Court should assume the later Parliament is not mistaken.
French and Gilbert JJ also noted that the phrase “for the benefit of New Zealand” must be considered in its specific context and does not have one singular meaning across the statute book.
In reaching its conclusion that climate change was not a mandatory relevant consideration the majority also relied on the absence of any reference to climate change considerations in the Crown Minerals Act
(including the section specifying what the decision-maker is required to take into account), the minerals programme and the absence of any guidance or machinery to assist the decision-maker in how to consider climate change.
The Judges considered that the granting of the permits at issue did not breach New Zealand’s international obligations, and even if it did, those international obligations could not defeat the clear and unambiguous scheme and purpose of the Crown Minerals Act, to promote mining.
It was noted that prior to making her decision to grant the permits the decision-maker reviewed advice from officials. The advice referred to s 5ZN of the Climate Change Response Act as a permissive consideration and considered that granting the permits would not be inconsistent with New Zealand’s 2050 emissions reduction target. The decision-maker herself said that she had considered climate change considerations were relevant and agreed with the advice given to her.
In the High Court Cooke J held that climate change considerations, including those invited by s 5ZN, were irrelevant in decisions made under the Crown Minerals Act. In finding this he considered the decision-maker’s consideration of climate change matters was nominal.
French and Gilbert JJ declined to consider whether the Judge was wrong that the matters listed in s 5ZN were irrelevant considerations, as it had no impact on the outcome of the appeal. Though they did note the matters were clearly not mandatory.
Mallon J
Mallon J considered that the matters in s 5ZN were permissible considerations, and it was open to the decision-maker to take them into account.
This was because the decision maker was not mandated to allow the permits, the Crown Minerals Act required considerations were not the only considerations which could be taken into account, and the mandatory consideration of Treaty principles indicated and the minerals programme recognised that the benefits to New Zealand did not need to be solely economic. She considered that the Crown Minerals Act did not preclude consideration of the matters listed in s 5ZN and given the climate emergency and the contribution of fossil fuels towards it, it would be odd if the decision-maker was unable to consider climate change in making her decision. Further, she considered that neither case law nor the later amendments of the Crown Minerals Act precluded consideration of s 5ZN when exercising discretion under s 25 of the Crown Minerals Act.
Did the decision-maker fail to have proper regard to the principles of the Treaty of Waitangi?
Held: No.
Section 4 of the Crown Minerals Act, and the principle of legality, required the decision-maker to have regard of the principles of the Treaty of Waitangi. In this case the decision-maker had given regard to the relevant principles, and in line with requirements, affected iwi and hapū had been consulted and actions taken in response to this consultation.
The Court noted that climate change issues were not raised by an iwi or hapū whose rohe overlapped with the permit area and that other Government work programmes were addressing the impact of climate change on Māori. The Court held, as found by Cooke J, the decision-maker was not required to undertake a wide-ranging inquiry into the broad potential climate impacts on Māori, they were being addressed elsewhere. Her decision was to be focused on more localised issues, which she adequately considered. The decision-maker did not backfill her decision.
The appeal was dismissed and no costs award was made.
This appeal concerned a review of the decision, by the delegate of the Minister of Energy and Resources, to grant two petroleum exploration permits under s 25(1) of the Crown Minerals Act 1991.
Students for Climate Solutions Inc challenged the decision to grant the permits in the High Court. It argued the decision-maker was obliged and failed to consider the climate change implications of the decision — either as a mandatory relevant consideration or in having regard to the principles of the Treaty of Waitangi | Te Tiriti o Waitangi, rendering the decision unlawful. These arguments remain substantively the same on appeal. In the High Court Cooke J rejected the arguments. Although he accepted there were genuine climate change issues arising from continuing to grant permits allowing exploration for fossil fuels, he was satisfied having regard to the scheme and purpose of the Act climate change considerations were irrelevant and accordingly the decision to grant the permits was not unreasonable. He acknowledged that the decision-maker was obliged to take into account the principles of the Treaty of Waitangi but held that obligation had been discharged.
The panel agreed the appeal should be dismissed, however Mallon J wrote separate reasons in relation to the relevance of s 5ZN of the Climate Change Response Act 2002.
Were the climate change implications of granting the permits a mandatory relevant consideration?
Held: No
French and Gilbert JJ
The majority noted that although the seriousness of climate change is beyond argument that does not mean that the Courts can strain legislation to the point that it no longer gives effect to Parliament’s intention.
The majority supported Cooke J’s interpretation of the purpose section (s 1A), that the purpose of the Act was to promote mining and the phrase “for the benefit of New Zealand” was simply Parliament’s indication it desired those activities to take place because they would be of economic benefit to New Zealand. Support for this interpretation was drawn from legislative materials surrounding the section’s enactment, as well as the minerals programme for petroleum. The exploitation focus of the Act was also identified in a number of High Court decisions.
Further French and Gilbert JJ noted the 2018 amendments to the Act — in which sections concerning limiting permits to onshore Taranaki were expressly stated to be “despite” s 1A — and the 2023 amendments — which changed the purpose from to “promote” mining to “manage” mining. In relying on the legislative materials concerning subsequent amendments, the Judges relied on the assumption that if Parliament in drafting legislation does so on the assumption that an earlier Act had a particular meaning, the Court should assume the later Parliament is not mistaken.
French and Gilbert JJ also noted that the phrase “for the benefit of New Zealand” must be considered in its specific context and does not have one singular meaning across the statute book.
In reaching its conclusion that climate change was not a mandatory relevant consideration the majority also relied on the absence of any reference to climate change considerations in the Crown Minerals Act
(including the section specifying what the decision-maker is required to take into account), the minerals programme and the absence of any guidance or machinery to assist the decision-maker in how to consider climate change.
The Judges considered that the granting of the permits at issue did not breach New Zealand’s international obligations, and even if it did, those international obligations could not defeat the clear and unambiguous scheme and purpose of the Crown Minerals Act, to promote mining.
It was noted that prior to making her decision to grant the permits the decision-maker reviewed advice from officials. The advice referred to s 5ZN of the Climate Change Response Act as a permissive consideration and considered that granting the permits would not be inconsistent with New Zealand’s 2050 emissions reduction target. The decision-maker herself said that she had considered climate change considerations were relevant and agreed with the advice given to her.
In the High Court Cooke J held that climate change considerations, including those invited by s 5ZN, were irrelevant in decisions made under the Crown Minerals Act. In finding this he considered the decision-maker’s consideration of climate change matters was nominal.
French and Gilbert JJ declined to consider whether the Judge was wrong that the matters listed in s 5ZN were irrelevant considerations, as it had no impact on the outcome of the appeal. Though they did note the matters were clearly not mandatory.
Mallon J
Mallon J considered that the matters in s 5ZN were permissible considerations, and it was open to the decision-maker to take them into account.
This was because the decision maker was not mandated to allow the permits, the Crown Minerals Act required considerations were not the only considerations which could be taken into account, and the mandatory consideration of Treaty principles indicated and the minerals programme recognised that the benefits to New Zealand did not need to be solely economic. She considered that the Crown Minerals Act did not preclude consideration of the matters listed in s 5ZN and given the climate emergency and the contribution of fossil fuels towards it, it would be odd if the decision-maker was unable to consider climate change in making her decision. Further, she considered that neither case law nor the later amendments of the Crown Minerals Act precluded consideration of s 5ZN when exercising discretion under s 25 of the Crown Minerals Act.
Did the decision-maker fail to have proper regard to the principles of the Treaty of Waitangi?
Held: No.
Section 4 of the Crown Minerals Act, and the principle of legality, required the decision-maker to have regard of the principles of the Treaty of Waitangi. In this case the decision-maker had given regard to the relevant principles, and in line with requirements, affected iwi and hapū had been consulted and actions taken in response to this consultation.
The Court noted that climate change issues were not raised by an iwi or hapū whose rohe overlapped with the permit area and that other Government work programmes were addressing the impact of climate change on Māori. The Court held, as found by Cooke J, the decision-maker was not required to undertake a wide-ranging inquiry into the broad potential climate impacts on Māori, they were being addressed elsewhere. Her decision was to be focused on more localised issues, which she adequately considered. The decision-maker did not backfill her decision.
The appeal was dismissed and no costs award was made.