Lawyers for Climate Action NZ Inc v Climate Change Commission

COURT OR TRIBUNAL

Court of Appeal of New Zealand, High Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

22/10/2021

LITIGATION TYPE

Access to Justice, Constitutional and Human Rights / State Accountability, Access to Justice

SUBJECT MATTER

Costs, Statutory Duty, Transparency and disclosure

REVIEW TYPE

Judicial review

SUMMARY

Practice and procedure — Applications — Access to court files — Publication of court documents Determination on order. Substantive proceeding concerned applicants' challenge to decisions by first respondent in proposing emissions budgets under (NZ) Climate Change Response Act 2002. Applicant sought publication of amended statement of claim, statements and amended statements of defence, and replies and amended replies. Sought to publish own evidence, respondents' evidence, and evidence in reply. Finding that public access to documents sought to be published was not likely to impinge on orderly and fair administration of justice. Finding that no issues of confidentiality or privacy arose. Finding that each party was allowed to publish own pleadings on own website and may publish links to other pleadings on other websites. Finding that parties were respectively allowed to make own evidence and submissions publicly available from commencement of hearing.

On 28 February 2022, LCANZI’s judicial review of the Climate Change Commission’s advice to the Minister of Climate Change, and the Minister’s subsequent decision to amend Aotearoa New Zealand’s nationally determined contribution under the Paris Agreement, commenced in the High Court in Wellington. The hearing ran until the end of Friday 3 March 2022. On 24 November 2022, The High Court dismissed LCANZI's application for judicial review. The Court concluded, inter-alia, that “LCANZ was correct that neither the NDC Advice nor the Budgets Advice put New Zealand on track to reduce domestic net emissions by 2030 as per the IPCC global pathways but the legislation did not require this in order to contribute to the global 1.5˚C effort. There were a range of considerations the Commission was required to take into account. Amongst other things, the Commission concluded that there was the risk of severe social and economic impacts on New Zealand communities, people and businesses, with legacy impacts on other generations and Māori, by trying to make a contribution solely through domestic action at this early stage of New Zealand’s transition to a low emissions economy. The Advice would put New Zealand on track to reach the net zero carbon target sooner than the 2050 Target. The Commission’s reasoning and the material on which was based justified its Advice. No error in that reasoning or the material on which it was based has been shown.”

In the costs judgment, the court held that there were reasons to depart from the general principle i.e. costs follow the event. As per to court: “In this case, I consider it is appropriate in the circumstances to depart from the general principle. Pursuant to the significant amendments to the Act that established the Commission, the Commission’s role is to provide periodic advice to the Minister and to review the Government’s progress towards emissions reduction and adaptation goals. LCANZ’s proceeding concerned the first occasion that the Commission advised the Minister pursuant to those amendments. It did so as a not-for-profit group formed for the purposes of promoting more ambitious climate change action in the face of the climate change emergency. It was not seeking a pecuniary or other direct benefit for itself. It was a group qualified and skilled to consider the legal issues on which the grounds of review were based. It advanced high-level principles and interpretation issues of general application rather than minor or narrow issues of limited significance. In doing so, subject to the outcome of any appeal, its challenge has settled points that will not require re-litigation. Adopting the words of the Supreme Court in West Coast Inc v Buller Coal Ltd, “the underlying [issues were] difficult and [their] resolution [have] a significance which went well beyond the present case”…”

Lawyers for Climate Action NZ have appealed the High Court’s judgment.

CASE DOCUMENTS

Lawyers for Climate Action NZ Inc v Climate Change Commission [2021] NZHC 2832
Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064
Lawyers for Climate Action NZ Inc v Climate Change Commission [2023] NZHC 527
Lawyers for Climate Action NZ Inc v Climate Change Commission [2023] NZCA 443
Court of Appeal documents