New Zealand Law Society - The right to a sustainable environment

The right to a sustainable environment

The right to a sustainable environment

Lawyers for Climate Action NZ are calling for protection of the environment to be woven into our legal and economic structures. A functioning legal system and economy can only exist within an environment that is capable of supporting human wellbeing. Therefore, our current laws and actions should be directed to reducing the impact of climate change and ensuring a just transition to a carbon neutral society.

When asked why lawyers should back efforts to reduce New Zealand’s contribution to global warming, the answer from Jenny Cooper QC, President of Lawyers for Climate Action NZ Incorporated is simple – because everybody should.

“We’re all human beings on the same planet and this should be everyone’s number one priority to safeguard our future,” she says.

“We’re also stuck with some of the effects of global warming already, so no matter what we do now, we are going to need to have some adaptation.”

LCANZI has begun pursuing the changes needed to ensure action against climate change in New Zealand is as effective as possible. This is to make sure New Zealand not only makes good on its promises in terms of limiting global warming, but also that those promises will achieve the changes needed to keep the consequences of global warming minimal.

A major step has been campaigning to include the right to a sustainable environment in the Bill of Rights Act 1993, a change that would have wide implications for New Zealand’s lawmaking both retrospectively (in terms of interpretation of existing legislation) and prospectively. The aim being to weave stewardship for the environment into all public decision-making.

That campaign has yet to result in legislative change but LCANZI remains committed to the campaign and is optimistic that it will eventually be successful.

In the meantime, LCANZI has been engaged in consultation with the Climate Change Commission – the independent Crown Entity set up to advise the Government on climate action – over its draft advice to the Minister for Climate Change under the Climate Change Response Act 2002. Under the Act the Commission has been asked to provide advice on the first set of national emissions budgets, the strategic policy direction to achieve those budgets, and what New Zealand should commit to as a new nationally determined contribution (NDC) under the Paris Agreement.

About the Paris Agreement

In 2015, 196 nations meeting in Paris for the UN Climate Change Conference bound themselves to limit their greenhouse gas emissions to prevent global temperatures from increasing more than 1.5(deg)C above the temperature benchmark; the ordinary average temperature set before the beginning of the industrial revolution.

As of February 2021, the Climate Change Commission released their first batch of advice for public consultation, which is open now until 28 March 2021. At the time of writing, LCANZI’s submission is still being finalised, but on current plans LCANZI will be asking the Commission to make some significant changes to its advice.

“There are certainly many elements of the advice we agree with and welcome”, says Jenny.

“But we question whether the overall level of ambition is high enough. While we are still finalising our views, our current assessment is that the budgets proposed in the draft are too high to meet the purpose of the Act of contributing to the global effort to limit the global temperature increase to 1.5°C or to meet New Zealand’s Paris Agreement obligations.”

As well as how high or low future emissions should be, another key issue raised by the draft advice is how much effort New Zealand should make to reduce its emissions domestically, as opposed to paying for emissions reductions overseas. LCANZI is supportive of the idea of New Zealand helping less wealthy countries to decarbonize. However, it considers that this should be in addition to, not instead of, New Zealand doing its fair share at home.

“New Zealand is extremely well placed to achieve rapid decarbonization thanks to its abundant renewable energy,” says Jenny.

“There is simply no excuse not to cut domestic emissions to at least the global average required to keep warming below 1.5°C. In fact, we should be aiming to do far more to reflect that our historic and current emissions are well above the global average and also that many other countries are less well off and will find it more difficult to transition to zero carbon.”

Advocacy for science

LCANZI sees the role of lawyers in the climate debate as vital. It’s difficult to dismiss a group of senior lawyers as “a bit fringe” when weighing in on what is understood now to be such an important debate.

“As lawyers, part of our training is to pick up scientific expert evidence and explain it in layperson’s terms to judges, juries and clients.

“If we can also come into the debate and support the likes of climate scientists in what they’re saying, maybe that will help us communicate to different parts of the population and drive action.”

In 2019, they weighed into the fray with a letter calling for the amendment to NZBORA, addressed to the Minister for Climate Change, the Minister of Justice and the Attorney-General. Signed by 60 Queen’s Counsel, it stated:

“… the rights to peaceful assembly, freedom of expression, manifestation of religion and freedom of movement all presuppose that there will be a safe environment within which they may be exercised.”

The design of the Bill of Rights aims to reflect the set of culturally normative behaviours fundamental to New Zealand. Including the right to a sustainable environment in that line-up would ensue in significant changes across New Zealand’s legal landscape. Those making new laws would be required to vet them against compliance with the right. Existing legislation would have to be interpreted in a way that is consistent. And public decision makers would be bound to engage with whether their actions are justified if their decisions affect the right.

“This is instilling what has been coined as a ‘climate lens’ over decision making processes,” Jenny says. And as those decisions around rules adapt, so too will the treatment of our environment as resources increase in scarcity.

“We will need new rules to manage that, and on the other hand of course, disputes will arise from that scarcity. Lawyers have an important role to play in ensuring a just transition can occur.

“This includes, of course, maintaining the rule of law, human rights, Te Tiriti o Waitangi, and the stability of New Zealand’s democracy. In short, making sure that we’re doing things in a way that is fair, equitable and orderly.”

Pushing what is fair and equitable in the realm of business has already begun. Directors are the first group of actors who must be attuned to the material risks their business decisions pose to climate change. The Zero Carbon Amendment itself permits directors to consider the goal of New Zealand being “zero carbon” by 2050 in their decision making. Meanwhile, mandatory climate-related financial disclosures are looming.

What is “Zero Carbon”?

To be “Zero Carbon” is to have produced carbon emissions equally offset by carbon sinks (which remove CO2 from the atmosphere). This is the target for New Zealand to reach by the year 2050. In current terms, this means reducing net emissions of greenhouse gases (except biogenic methane) to zero, and reducing biogenic methane (from plants and animals) to 24-47% below 2017 levels by 2050.

There is also a need for legal support beyond the boardroom. LCANZI’s pro bono panel is set up for community groups involved in local-based climate action initiatives.

“So far, most of this has been advising on the legal mechanisms these groups have to achieve change in their area, not only in environmental law with the likes of the RMA, but also in public law,” Jenny explains. The realm of government, starting at the local level, is realizing its obligations through these sorts of changes. The recent High Court judgment overturning the Thames-Coromandel District Council’s decision not to sign a national declaration on climate change due to its unlawful decision-making process is an early example, while central government is in the crucial development phase of how New Zealand reaches zero carbon by 2050.

With the introduction of the Climate Change Commission and its first draft report, the transition to a zero-carbon society is now on the cards. How we value the environment; how laws change and how businesses react to them, particularly industries with larger emission contributions, will demonstrate New Zealand’s appetite for transition. Jenny Cooper QC and LCANZI see lawyers as crucial in helping that transition start in the best possible direction.

Lawyers for Climate Action NZ has members in all areas of the profession all over Aotearoa. Anyone holding a law degree is eligible to join as a full member – a practising certificate is not required. Associate membership is also available for law students and non-lawyers. For more information on LCANZI, how to join, or to make a donation, go to

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