Police v Brorens

The defendant participated in an Extinction Rebellion protest on December 4, 2021. The intention of the protest was to disrupt the journey of a freight train which, in part, comprised a shipment of coal destined for a Fonterra plant. The protest succeeded in causing the train to stop, and due to the protesters’ actions, the train was prevented from resuming its journey that day. The defendants were arrested when they refused to leave their positions on the track and in, or on, rolling stock. The defendants faced various charges, including entering railway infrastructure without the express authority of the appropriate licensed access provider, and to knowingly obstructing employees of the New Zealand Railways Corporation in the performance of their duty which was amended to trespass. The defence argued that the defence of necessity applied - that the defendants were acting to save lives that would be lost if climate change continued unabated, with particular reliance placed on the article “The mortality cost of carbon” by R Daniel Bressler. The central thesis of that article is that every 4,434 metric tonnes of carbon dioxide added to the atmosphere from 2020 will lead to one excess death globally between 2020 and 2100 ([72]). The Court accepted that it is indisputable that climate change threatens human wellbeing and planetary health, and did not doubt there the defendants believe that there is an impending catastrophic disaster in which lives will be lost as a consequence of climate change and unabated carbon dioxide emissions from the use of coal ([84]). However, the Court ultimately rejected the argument that the defence of necessity applied, in large part because the actions were to draw attention to climate change, and cannot be construed as “necessary to save lives” ([97]). Further, the Court found that necessity is not available in “direct action” cases, where “defendants essentially take the law into their own hands to interfere with lawful activities despite the availability of appropriate fora for addressing their concerns” ([101]). The Court also considered whether the threat must be imminent or immediate for the defence to apply, finding that all indicators pointed to the defence requiring an immediate risk of actual physical harm to a readily identifiable person or class of persons, which was not satisfied in the present case. The Court noted that while there is academic support for recasting the defence or broadening the concept of imminence to reflect the impending catastrophe of climate change, it was not open to the Court to interpret this element as sought, and instead “academic acknowledgement that the approach to imminence needs to be changed confirms that necessity is not available as the law currently stands” ([106]).