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Māori collective fails to halt release of climate discussion document

23 Jun 2023

| Author: Anna Longdill

Judicial Review Procedure Act 2016, s 15 – application for interim relief – judicial review of process leading to discussion document on review of the New Zealand Emissions Trading Scheme– Climate Change Response Act 2002, s 160 – duties and powers of Minister of Climate Change – procedural fairness – legitimate expectation – responsibility to give effect to principles of te Tiriti o Waitangi – is interim relief necessary to preserve applicant’s position? – strength and weaknesses of intended claim – repercussions of granting relief

Insley v Minister of Climate Change [2023] NZHC 1388 per Gault J.

The Minister of Climate Change initiated a review of the New Zealand Emission Trading Scheme (ETS) pursuant to s 160 of the Climate Change Response Act 2002 (CCRA) in September 2022. The Cabinet decision minute noted that engaging with iwi/Māori throughout the review process would be critical.

A discussion document was subsequently prepared, which was to be publicly released, along with public announcements relating to the government’s proposals in June 2023. The minister intended to consult for eight weeks on the discussion document.

Te Taumata is a collective representing Māori interests in trade, including the interests of Māori forestry owners within the ETS. The applicant, Chris Insley, chairs Te Taumata.  There had been failed attempts at pre-engagement on the discussion document with Insley and Te Taumata from March to May 2023; the first engagement had stalled due to a dispute regarding non-disclosure agreements.

Insley brought these proceedings to prevent any release of the discussion document or any public announcement relating to the ETS review pending the determination of a substantive judicial review application.

The substantive proceeding challenges the process followed by the minister and his officials as breaching the obligation of consultation in s 160(5)(b) of the CCRA, being procedurally unfair, breaching a legitimate expectation of meaningful pre-engagement (arising from the minister’s repeated commitments), breaching the principles of te Tiriti o Waitangi, and breaching the obligation of good faith.

Applicable principles: Judicial Review Procedure Act 2016, s 15 – application for interim declarations against the Crown – is interim order reasonably necessary to preserve Insley’s position pending final determination of judicial review application? – do circumstances of the case (strengths and weaknesses of claim and public and private repercussions) weigh in favour or against granting interim relief?

Held: The application for interim orders is dismissed.

Insley did have a position to preserve (the opportunity for meaningful pre-engagement). The intended claim’s strengths and weaknesses are at best neutral: s 160 of the CCRA says nothing about pre-engagement as opposed to consultation; even if pre-engagement was required by the Cabinet direction or s 160 was interpreted in light of te Tiriti clause, the applicant may have contributed to the lack of meaningful pre-engagement by the stance taken on the non-disclosure agreements; failure to pre-engage meaningfully might also be remedied during the consultation. The dispute about pre-engagement is delaying wider consultation with others who have an interest in the ETS review and is ultimately delaying the review’s completion. The court should exercise restraint where there is a clear right to consultation but the claimed right to additional pre-engagement would have wider ramifications.

INSLEY v MINISTER OF CLIMATE CHANGE – BC202361398

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