decision

Students for Climate Solutions Inc v. Minister of Energy and Resources - decision

Litigation

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In 2021, Students for Climate Solutions brought a case against the Minister of Energy and Resources. The plaintiff argued that the defendant Minister, in granting petroleum exploration permits under the Crown Minerals Act 1991 (CMA), had failed to adequately consider the effects of the exploration on climate change. Specifically, the plaintiff claimed that: (1) climate change was a mandatory relevant consideration for the purposes of New Zealand administrative law; (2) that the failure to consider climate change rendered the decision unreasonable; and (3) that the minister had failed to have proper regard for the Treaty of Waitangi, New Zealand’s founding document.

The Court rejected all three grounds of review. On the first ground, the Court found that the CMA was intended in part to promote the exploitation of natural resources, and that climate considerations were absent from the statutory scheme (which was instead designed to promote fossil fuel mining). Secondly, the Court found that the Minister’s decision was not unreasonable. And finally, the Court found that the decision did not violate principles of the Treaty of Waitangi. The Court accepted that the CMA should be interpreted, as far as possible, consistently with Treaty principles. However, in this case the Court found that the Minister sufficiently considered such principles, and they had been appropriately weighed against other factors – the Minister was not required to engage in any broader policy assessment. The Court also expressed concern that the relevant Māori authorities were not represented in the proceedings.

The Court also made general observations about the significance of climate change in the scrutiny of judicial review applied under New Zealand law. The Court both rejected a submission by the plaintiff that a more intense level of scrutiny was necessary, as well as a submission by the defendant that greater deference should be applied given the complex nature of climate change. 

SFCA appealed to New Zealand’s Court of Appeal. The Court unanimously rejected the challenge on May 7, 2024. The majority observed that climate change was not an explicit consideration listed under the factors the Minister was required to consider under s 29A of the Crown Minerals Act. It further rejected SFCA’s argument that climate change considerations were impliedly required by the Act’s purpose, relying instead on the Crown Minerals Act’s legislative history to determine that the Act was intended to: (1) support mineral exploration and mining for New Zealand’s economic benefit; and (2) allow for petroleum exploration in the Taranaki region in the interests of facilitating a “just transition”. The majority of the judges took no position as to whether a decision-maker under the Crown Minerals Act was permitted to consider climate change, as set out in s 5ZN of the Climate Change Response Act 2002. The Court specifically distinguished the Minister’s obligations from that of the decision-maker in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6), an Australian case, where the relevant statute expressly required the decision-maker to consider principles of “ecologically sustainable development”. However, Justice Mallon, in a concurring opinion, took the view that s 5ZN of the Climate Change Response Act does permit a decision-maker in this context to consider New Zealand’s overall 2050 emissions target, emissions budget, and relevant emissions reduction plans.

On the Treaty of Waitangi challenge, the Court of Appeal accepted that climate change might be relevant as a component of the Minister’s overall obligation toward Māori. However, it was sufficient that the Minister had considered localized impact on Māori iwi (tribes) in the neighboring area, rather than climate change’s long-term disproportionate impact on Māori as a whole. 

On February 24, 2025, the Supreme Court granted leave to appeal the Court of Appeal's decision. Without limiting the scope of the appeal, the Court has directed counsel to address whether the climate change considerations set out in section 5ZN of the Climate Change Response Act 2002 are mandatory, permissive, or irrelevant considerations when granting a petroleum exploration permit. 