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Police v Brorens - opinion

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Police v Brorens - ruling

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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, on September 23, 2024, 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]). 

Sentencing decisions were made on December 17, 2024, finding all six defendants guilty of trespass, in breach of § 3 of the Trespass Act 1980.

Police v Brorens

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves the wholesale and retail selling of goods.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

Actions or measures to adapt terrestrial systems to climate change.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

A company that is owned wholly or partially by the state, typically operating in key sectors.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

woman and genders outside of the gender binary

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector involves activities to move goods and people, alongside the storage of products.

Police v Brorens - opinion

Policy instrument

Risk

Impacted group

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance