Hauraki Coromandel Climate Action Incorporated v. Thames-Coromandel District Council

Summary:

On April 2nd, 2019, the Thames-Coromandel District Council (the Council) decided not to approve the Mayor’s signature of the Local Leaders’ Climate Change Declaration (the Declaration). The Declaration is a three page document that declares “an urgent need for responsive leadership and a holistic approach to climate change.” It calls on the government of New Zealand to prioritize an ambitious transition plan, underpinned by an assessment of the country’s “economic vulnerabilities and opportunities”. It commits the Council to develop and implement ambitious action plans that reduce greenhouse gas (GHG) emissions and support resilience within communities, as well as work with the central government to deliver on national emissions reduction targets.

On June 28, 2019, Hauraki Coromandel Climate Action Incorporated (HCCA), an NGO, applied for judicial review of the Council’s decision. The Council applied to strike out the claim. On March 20, 2020, Judge Gault issued a judgement that declined to strike out the claim, “holding it was arguable the Council decision is amenable to judicial review and the claim is not so clearly untenable that it cannot possibly succeed."

On August 31, 2020, the High Court made a further determination that the claim was justiciable, citing Thomson v Minister for Climate Change Issues, and stating that “the existence of a policy dimension to a decision does not immune it from judicial review” but “rather, the reverse.” The Council’s decision holds strong public interest. Therefore, given the nature, effects, including potential legal implications, and the decision's significance, it is reviewable by the Court.

The High Court accepted the expert evidence that anthropogenic climate change is occurring and cited the Supreme Court’s decision in the Netherlands (Urgenda Foundation v. State of the Netherlands) in its finding that "the inhabitants and environment in the Thames-Coromandel District, and the cost of Council infrastructure, are likely to be significantly impacted by the effects of anthropogenic climate change.”

In establishing whether the Council’s decision not to approve signing the Declaration was reasonable, the Claimant asserted that the Court should view the decision along a “sliding scale of intensity” and that “the effects of climate change are such that the intensity of review approaches that which is adopted for human rights.” The Claimant further claimed that "It was unreasonable for the Council to decline to sign the Declaration, given the global consensus on anthropogenic climate change and its predicted effects on the District... Only if a council had taken sound and sensible mitigation steps that went far beyond the Declaration might it be reasonable for them not to sign it. The Mayor was precluded from taking an objective perspective on the matter by her own prejudices."

The Defendants submitted that the Council’s decision was the most reasonable it could make, given the Council’s lack of capacity to compel the Mayor’s signature. It was also reasonable for the Council to “decline to make a decision about its future policy on climate change response to Council Peters’ motion,” as the considerations had not been properly analyzed by the Council. Furthermore, while the Declaration may create reviewable expectations, an application based on that ground would be unlikely to succeed because the commitments stated in the Declaration are very general.

However, the Court accepted the Claimant's argument that the intensity of review of decisions about climate change by public decision-makers is similar to that for fundamental human rights and that heightened scrutiny is deserved in this case. The reasons for the decision indicated the need for further analysis and consideration of the issue.

As such, the Court has ordered the following remedies: (i) It has declared that the Council’s decision was inconsistent with the requirements of the Local Government Act 2002 and the Council’s Significance and Engagement Policy; (ii) It has directed the Council to reconsider and determine, consistently with the requirements of the Local Government Act 2002, the Council’s Significance and Engagement Policy, and the Court’s judgement, whether or not to approve the Mayor signing the Declaration. The Court has awarded costs to HCCA.

At Issue: Whether the Thames-Coromandel District Council’s decision not to approve the Mayor’s signature of the Local Government Leaders’ Climate Change Declaration was legal.