Students for Climate Solutions (SCS) Inc unsuccessfully judicially reviewed decisions made to grant petroleum exploration permits under s25 of the Crown Minerals Act 1991 (CMA).
SCS is a body established to enable students to develop and support climate-friendly initiatives. SCS opposed petroleum exploration as it is a component of fossil fuels exploitation and contributor to climate change. This led the students to challenge the decisions made to grant petroleum exploration permits to both Greymouth Gas Turangi Ltd and Riverside Energy Ltd.
The Minister delegated the decisions to grant permits to the chief executive of the Ministry of Business, Innovation, and Employment. However, delegation does not affect a Minister’s responsibility for decisions and actions taken by a person acting under a delegation. Therefore, despite the decision being made by the chief-executive, the case is against the Minister.
SCS argued that the Minister for Energy and Resources failed to substantively consider the climate change implications when making the decision to grant the permits. They further emphasised that the adverse impacts of climate change mean the court should take a heightened scrutiny approach given the environmental consequences of petroleum exploration and therefore the decisions to grant permits. However, the Judge identified the role of the Court is to ensure the decision was made correctly within the relevant legal framework. The intensity of this review therefore should not change with the topic.
There were three grounds of judicial review raised by the applicants.
SCS alleged that there was a failure by the Minister’s decision-maker to adequately consider climate change as a mandatory relevant consideration. However, the Judge did not accept that either climate change or New Zealand’s international obligations were a relevant consideration.
The first reason for this conclusion held that the mandatory relevant considerations are listed in the CMA. While this does not inherently restrict other considerations being relevant, it gives a good indication as to what is and is not relevant. Climate change is not mentioned in the list.
The decision must also be consistent with the purpose of the CMA, “… to promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand”. Despite environmental consequences, the purpose clearly promotes mining.
Section 5ZN of the Climate Change Response Act 2002 permits any person performing a public function or duty to consider the 2050 zero carbon target, emissions budgets and emissions reduction plan. However, the Judge stated the section does not make these considerations mandatory, it simply permits their consideration where decision-makers see fit.
The Judge therefore dismissed the challenge to the decisions on the basis of a failure to take into account mandatory relevant considerations.
The applicant also argued that the decisions are unreasonable and ought to be set aside by the Court. The applicant relied on the same factors as above.
The test used by the Judge to assess unreasonableness was that a decision can be set aside where it was not reasonably open to the decision-maker.
However, since climate change considerations are irrelevant under the CMA, they will not be sufficient to amount to unreasonableness. The challenge on the ground of unreasonableness was therefore dismissed.
The applicant also claimed that the decision-maker had failed to engage with the principles of the Treaty of Waitangi in a meaningful way and that s4 of the CMA required them to do so. The Judge said that the principles of the Treaty are made relevant through s4 and through the principle of legality.
The Judge accepted that climate change concerns become relevant if they are engaged by Treaty principles. However, this does not mandate a particular outcome. The Judge said that the decision-makers had engaged with the principles sufficiently.
The Judge concluded that there was nothing before the Court indicating the consultation had been inadequate or that the principles had not been properly addressed. This claim was therefore dismissed.
Students for climate solutions were unsuccessful and the Judge dismissed the application.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
