Royal Forest and Bird Protection Society of New Zealand Incorporated v Minister of Conservation  NZCA 411
The phrase 'net environmental gain' appears nowhere in the Department of Conservation’s governing legislation. But, in various forms, including ‘no net loss’, ‘net environmental benefit’ or ‘net conservation benefit’, the concept has emerged as an increasingly integral part of environmental policy within New Zealand’s single largest landowner in recent years. It was the guiding criterion for significant land swaps involving DOC 'stewardship land' including the divestment of DOC land at Crystal Valley to Porter Heights Ski Field to build an alpine lodge and the proposed (now withdrawn) Meridian Mokihinui hydro scheme on the West Coast of the South Island. Drawing on international guidelines, it underpins DOC guidelines on biodiversity offsets, and the principle has been recognised and applied in that context in a number of leading court decisions under the Resource Management Act 1991.
So it was noteworthy that a majority of the Court of Appeal (Harrison and Winkelmann JJ, France J dissenting) last week agreed with the Royal Forest & Bird Protection Society that DOC’s use of ‘net environmental gain’ as a touchstone for a proposed land swap as part of the controversial Ruataniwha dam project was misconceived and invalid.
The decision has obvious implications for the use and protection of large parts of the conservation estate New Zealand designated as 'specially protected' under Part 4 of the Conservation Act 1987 (CA), as well as other CA contexts where recourse to statutory purpose is required, such as the granting of concessions. It also contributes to New Zealand public law jurisprudence on judicial treatment of ‘outside of statutory purpose’ challenges to decision-making which potentially extends beyond the CA context of the particular case.
Background to the litigation
The land at issue was a 22 ha area of the Ruahine Forest Park in the Hawkes Bay region. The land is intended to be flooded under the Ruataniwha Water Storage Scheme. This is a proposal (as explained by Harrison J) “to capture and store about 90 million cubic metres of water within a dam to be constructed across the Makaroro River, allowing the irrigation of 25,000 to 30,000 hectares of land on the Ruataniwha Plains.”
The 22 ha is designated “conservation park” under the Conservation Act 1987 (shown in purple in the DOC plan below). DOC staff had assessed the conservation values of the area as “high”, and it was common ground that the land was ecologically “significant”. Against this background (and as part of a much broader package of environmental mitigation measures approved by a government-appointed Board of Inquiry under the Resource Management Act 1991), the Scheme proponent Hawke’s Bay Regional Investment Company (HBRIC) secured conditional rights to a larger (170 ha) area of farmland in the vicinity (darker green in the plan below) which was offered to, and accepted by, DOC in exchange for the land to be flooded.
There is no provision in the CA for specially protected ‘conservation park’ land to be disposed of or exchanged. There is however provision for a lower protection status category of DOC land known as ‘stewardship’ land to be dealt with. So DOC decided that it would first revoke the conservation park designation of the 22 ha area and declare it ‘stewardship’ land. Then it would dispose of that land in exchange for the 170 ha block. The way in which it approached its decision to revoke conservation park status of the 22 ha was the focus of the litigation.
Rightly anticipating that the process would come under scrutiny - the Ruataniwha Scheme has been one of the most hotly contested development projects in New Zealand in the last 10 years - DOC commissioned the ecological assessment of the 22 ha mentioned above. It also commissioned a study of the 170 ha block to be acquired through the exchange. It undertook a careful assessment of the net conservation position that would result from the 22 ha being lost and 170 ha being placed in DOC ownership under statutory protection. But it’s not clear that DOC directed as much attention to the legal framework as it did to the ecological assessments.
Key parts of the documentation recorded the Director-General of DOC’s decisions:
To agree…to revoke the purpose of the [22 ha] as a conservation park on the basis that I wish to progress the proposed exchange of the [22 ha] for the [170 ha of farmland the vicinity]
To authorise the proposed land exchange under s 16A(1) of the Act on the basis that I am satisfied on the information that the proposed exchange will enhance the conservation values of land managed by the Department and promote the purposes of the Act as required by s16A(2).
In the High Court: close to illegal, but not quite
It wasn’t surprising that in the High Court, judicial eyebrows were raised at the emphasis in the D-G’s decision on the finding that overall, the exchange arrangement would “enhance the conservation values of land managed by the Department”. That was because the “will it enhance the DOC estate?” test under s16A(2) is an obligation that applies specifically to exchanges of stewardship areas. It is not the test under the statute for the prior decision to revoke the ‘conservation park’ status of the 22 ha.
In the High Court, Palmer J said of one of the DOC reports relied upon by the D-G that it “came perilously close to risking the wrong legal test being applied to the revocation decision”. Ultimately however he (at ) “was not satisfied…that the D-G had taken too narrow a view of the revocation decision by applying to it the test for exchange.”
Broad or narrow approach to the statutory purpose?
A related issue raised by RFB in the High Court concerned the correct approach to identifying the test for revoking the status of conservation park land.
Section 18(7) CA confers a general power to vary or revoke the purpose of land held by DOC. The s 18 revocation process requires public notice, with rights of objection and the right to appear in support of submissions. All of those steps had occurred in this case. But the Act does not specify the basis on which DOC’s ultimate decision to revoke or otherwise should be made. Following established public law principles, the decision would need to be guided by the relevant statutory purpose.
The long title to the CA is:
To promote the conservation of New Zealand’s natural and historic resources, and for that purpose to establish a Department of Conservation.
But – and this was really the nub of the contest between RFB on the one hand and DOC and HBRIC on the other hand – how should the above statutory purpose, read and understood in light of related statutory provisions (including definitions of “conservation” and other relevant terms) and the legislative history, be interpreted?
In the High Court, Palmer J sided with DOC. At :
It would be artificial and inimical to good public administration for public objections and submissions on a revocation, and the revocation decision itself, to be prevented by law from taking into account the merits of the proposed land exchange. Rather, I consider that doing so may well constitute failing to take into account a relevant consideration which would be contrary to the law of judicial review.
In preferring the broad approach, Palmer J relied on a 2007 decision of the New Zealand Supreme Court in Unison Networks Ltd v Commerce Commission, holding that the test for the court is “whether taking into account the proposed land exchange can or cannot be rationally regarded as coming within the statutory purpose…”. He went on to find that:
There is nothing in the text of the statute that requires the intrinsic value of a single resource to be preserved or protected if that diminishes conservation purposes in New Zealand more broadly conceived.”
In the Court of appeal: the narrower approach affirmed
The majority Court of Appeal was having none of this.
It regarded Palmer J’s reliance on Unison Networks as misplaced. Whereas in Unison, the Supreme Court was dealing with the legality of “an expert public body exercising broadly expressed powers to achieve economic objectives” this case concerned a situation where, as the legislative history demonstrated, “Parliament has deliberately demarcated separate designations, each being subject to distinct management regimes, to advance the core objectives of the Act”.
In a key passage, Harrison J for the majority concluded (at ):
Once the land crossed the threshold of special protection – in the present case, by way of the Director-General’s declaration and the deeming provisions under s 61 – its designation could only be revoked if its intrinsic values had been detrimentally affected such it did not justify continued preservation and protection; for example, if the park purposes for which it is to be held were undermined by natural or external forces.
DOC’s decision to revoke the status of the 22 ha of the Ruahine Forest Park has been set aside. DOC now needs to reconsider the proposed land swap in light of the CA’s judgment.
The period for applications for leave to appeal to the Supreme Court runs for 20 working days from 31 August 2016. At the time of writing no party has publicly indicated an intention to appeal.
Firstly and importantly, the Court of Appeal judgment does not sound the death knell for the “no net loss/net environmental benefit” principle in all DOC policy and decision-making. ‘Net environmental gain’ as a criterion remains relevant to proposals to exchange stewardship areas under s16A of the CA. Nor is there is any obvious reason to think that the judgment impacts on the ongoing application of “no net loss” for biodiversity offset arrangements under the RMA.
The decision has most direct impact on proposed land swaps or offset schemes where DOC land under one of the special protection categories is involved. Revocation and land swap arrangements involving Part 4 CA specially protected land will only be able to go ahead if there is a reasonable basis for downgrading the protection status of the land at issue, having regard to the intrinsic value of that land, and that land only.
In practice, it's likely to be a whole lot more difficult for developments which require use of DOC land under special protection to proceed. This could present planning and development challenges for a range of infrastructure projects such as state highways, transmission lines, electricity generation and large irrigation schemes, as well as other major private developments such as mining proposals in the vicinity of conservation areas. No doubt some projects under development will be reconfigured to avoid DOC land under special protection altogether. (That is, after all, the purpose of the protection.) Absent specific legislative provision, it's conceivable that some projects may not be able to proceed at all.
The judgment may also impact on the way DOC handles other parts of its operations, including concessions which, under s17U(3) CA are prohibited "if the proposed activity is contrary to the provisions of this Act or the purposes for which the land concerned is held."
A question on the minds of many is whether the judgment signals the end of the road for the Ruataniwha project. It is probably too early to say. RFB lawyer and co-counsel before the Court of Appeal Sally Gepp is on record as saying that it is "hard to see how [the project] could proceed" in light of the recent judgment. A different view, not surprisingly, has been offered by HBRIC chairman Andy Pearce, who has said that "the decision does not spell the end of the Ruataniwha project, and the company is “contemplating our process with DoC”."
The possibility of a legislative amendment to broaden the scope for land swaps involving conservation land must be on the cards. A January 2016 report from the New Zealand Conservation Authority to the Minister of Conservation Net Conservation Benefit Assessments in Land Exchanges focuses on the question of the need for clearer statutory criteria for exchanges involving stewardship land. It also flags for Ministerial consideration changes to the statutory framework for revocation/exchange of specially protected land. At [2.22]:
We see no reason why the power to authorise exchanges should not be extended to other categories of conservation land – in particular conservation parks. This would mean, for example, that boundary adjustments to conservation parks could be considered as an exchange, rather than, like the Ruataniwha dam proposal, requiring a revocation of the 'specially protected' status to become stewardship land, so it can then be the subject of an exchange. Given that, in many instances, the boundaries of conservation parks have arisen for historical reasons rather than having been through a particular assessment of conservation values, the Authority considers that enabling you to authorise exchanges, at least for these sorts of boundary adjustments, has potential benefits.
So it's clear the issue is being looked at by officials and lawmakers. This decision will only have heightened attention - and developer pressure - towards legislative reform.
Whether Cabinet - already facing political heat for other water-related issues in the Hawkes Bay and other parts of the country - judges the time as right to take on what would be a bruising environmental stoush heading into election year remains to be seen.
One of the topics under scrutiny at the December 2015 climate talks in Paris was the role of the UNFCCC governance and legal framework in responding to ‘climate change induced displacement, migration and planned relocation’.
Many media commentators continue pitch this issue as a question of how developed nations should deal with ‘climate refugees’. Accompanied by the obligatory image of a Palm-fringed low-lying atoll in king tide conditions, the thrust of much of stock-narrative is something like this. Idyllic, but under-developed Pacific island states are in imminent danger of sinking beneath rising seas. The only hope of salvation for their residents lies in the ability to migrate to safer havens in developed countries – in this region, Australia and New Zealand. But authorities and the courts in those countries won’t or can’t respond. Conventional refugee protection pathways are not available, because the current international regime doesn’t recognise environmentally displaced people as refugees. We should change update our interpretation of the Refugee Convention, or change it, or make a new convention.
The issue is, of course, more far more nuanced than that. The phrase ‘climate refugee’ is itself fraught, at least in a strict legal sense. Even the more neutral phrase ‘climate changed-displaced’ person has its shortcomings. Climate change is best understood as a ‘threat multiplier’ rather than single cause of displacement – especially in the case of ‘slow onset’ climate change-related pressures, such as sea-level rise and some forms of drought or sustained meteorological changes. This suggests that simplistic analyses of the causes for or solutions to displacement or migration are not especially helpful. Appropriate responses need to take into account the complexity of environmental, economic, cultural and other contributors to decisions to move from locations and countries vulnerable to the impacts of climate change.
The issue of climate-related displacement has been lurking on the fringes of the UNFCCC framework for a number of years. In 2010 in Cancun, parties agreed that under an adaptation framework, consideration should be given to ‘measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation’. However, progress in the area has been slow, in part, perhaps, because not all countries at risk from the effects of climate change have been enthusiastic about offering a ‘free pass’ to developed countries to continue to emit greenhouse gases by supporting a climate change-migration scheme.
Early drafts of the Paris climate package included an explicit reference to the need to develop approaches to address climate change induced displacement, migration and planned relocation in the operative text of the agreement, supplemented by words in the accompanying Conference decision. The President’s draft text released on Wednesday 9 December 2015 contained the following as a bracketed option in the much-debated ‘loss and damage’ section:
A climate change displacement coordination facility shall be established under the Warsaw International Mechanism…to help coordinate efforts to address climate change induced displacement, migration and planned relocation.
Those words were steadily watered down over the remaining 4 days of negotiations. The final adopted text of the Agreement contains no explicit reference to climate-related displacement in the operative agreement, however paragraph 50 of the accompanying COP decision requests the:
Executive Committee of the Warsaw International Mechanism [for Loss and Damage] to establish, according to its procedures and mandate, a task force to…develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.
The removal of legally binding obligation to establish a climate change displacement coordination facility in the final Agreement will have come as a disappointment to a number of states and international organisations, as well as many among the thousands of activists who – defying a French government ban – gathered in central Paris for a ‘red lines’ protest on the final day of the talks.
However, an explicit acknowledgement of the importance of addressing climate-related displacement in the COP decision will, it is suggested, continue to strengthen momentum building elsewhere on this issue – including through the UN High Commissioner on Refugees, International Organisation on Migration, the Nansen Initiative and other international organisations – inching towards a coordinated framework for oversight and collaboration on displacement responses, and potentially a system of legal protection for environmentally displaced people.
At a side event at the Paris-Le Bourget Conference Centre on 10 December, some common themes emerged in presentations by UN experts in this area. One was the need for proactivity.
“We must focus more on prevention and preparedness” was the message from Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator Kyung-wha Kang, “so that the losses, and the need for humanitarian interventions are minimized when disasters do strike. And they will strike.”
Speakers also highlighted the potential positive effects of climate-related migration, not only for affected communities, but for their future hosts, in the event that permanent movement is necessary. Michelle Leighton of the International Labour Organization put it like this:
“We have to stop seeing migration as a failure of development, and we have to start looking at it as an opportunity and potential solution for a climate changed future…These are people who bring skills, and talents, and ideas that can help fill labour shortages (of which there are many) not only from countries within their region, but in other regions. They can become entrepreneurs, run small businesses, and contribute to the economies of their host communities. And at the same time, these movements reduce pressure on climate-affected landscapes.”
New Zealand government representatives have participated in discussions on development of international frameworks for disaster response, including the Sendai Framework for Disaster Risk Reduction 2015-2030 and the Nansen Initiative. The Nansen ‘Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change’ adopted in October 2015 identifies as ‘effective state practices with regard to preparedness’:
Including cross-border displacement scenarios within bilateral or regional disaster contingency planning exercises…
Reviewing existing legal frameworks at the regional and national level and, if relevant, harmonizing them, with respect to receiving cross-border disaster-displaced persons.
Neither of those common-sense actions are, publicly at least, on the government’s current agenda. The administration has effectively adopted a ‘wait and see’ policy under which (according to a January 2013 MFAT briefing paper to the Associate Climate Change Minister), New Zealand would “continue to respond to climatic disasters in the Pacific and manage changes as they arise…” but otherwise has no active planning for responses to climate-related displacement underway. The renewed call for purposeful and pre-emptive policy towards climate-related displacement in the Paris package is a timely reminder for the need for a refreshed approach in New Zealand towards this emerging and critical issue.
(This piece was originally published on Victoria University's Deconstructing Paris page on 17 December 2015)
On the whole, human beings want to be good, George Orwell famously quipped. But not too good. And not quite all the time.
During the first nine days of the Paris climate talks, a lot of people have said that they want to be good. President Obama wants to be good. “We are the first generation to feel the impact of climate change,” he told the UNFCCC plenary last Monday, “and the last generation that can do something about it.” China’s president Xi Jinping wants to be good. “Going forward, ecological endeavours will feature prominently in China’s 35 year plan.” Prime Minister Cameron, Chancellor Merkel and President Putin all want to be good. President Mugabe wants to be good. He is disappointed that other states are not as good as they should be. “It is unconscionable that not only are developed countries miserly in providing the means for implementation of the Convention, but also want, inordinately, to burden us with cleaning up the mess that they themselves have created.”
Prime Minister Key also wants to be good. He appeared on the first day of the Conference to present a Communiqué to the UNFCCC calling on the international community to remove fossil fuel subsidies. “New Zealand is leading this international effort because we strongly feel that it is the missing piece in the climate change puzzle.” “We have one critical message. The time for action, global action, on fossil fuel subsidies is now.” Almost 40 countries, and at least 60 international organisations and major corporate entities joined New Zealand and the 8-nation coalition that it leads, the ‘Friends of Fossil Fuel Subsidy Reform’, in affirming the document.
But amid this cornucopia of goodness, hints of less-than-goodness appeared. New Zealand was rewarded for its fossil fuel subsidy reform efforts last Monday by receiving the first “Fossil of the Day” of the 2015 talks. In making the award, the Climate Action Network said, “New Zealand claims a top spot for rather hilariously, or not, urging countries to phase out fossil fuel subsidies while shelling out big bucks to prop up fossil fuel production to the tune of $80 million.” The $80 million figure comes from a 2013 WWF-NZ report which also says that New Zealand has increased its support for fossil fuel production sevenfold since 2008. New Zealand’s big moment at the historic climate talks received widespread international attention, but not the kind of attention that one suspects the MFAT team had hoped for. The thrust of much of the international coverage was either on the perceived hypocrisy identified by environmental groups of New Zealand’s international position, or on the refusal of Australia – long, an enthusiastic subsidiser of fossil fuel production – to sign up to the document.
Some of the cracks in the rhetoric surrounding the Friends’ Communiqué were revealed in a side-event on fossil fuel subsidy reform hosted by the IISD Global Subsidies Initiative and Friends of Fossil Fuel Subsidy Reform at the Paris Le Bourget conference venue yesterday.The representative of Finland, another member of the Friends group, proudly announced that Finland had eliminated all direct subsidies for fossil fuel consumption and production. He conceded that a range of indirect production subsidies for fossil fuels remained. It has developed a ‘traffic light’ system for its production subsidies: the “good, the bad and the ugly”, taking into account the harmful environmental effects and well as “social and economic benefits” of subsidies. Only the bad and the ugly will attract the ire of the Finnish officials. But what is ‘good’? Beauty, after all, tends to be in the eye of the beholder, especially where economic benefits are involved.
This is where it’s important to read the fine print of the Communiqué. The final paragraph records that the commitment is to “eliminate inefficient fossil-fuel subsidies in an ambitious and transparent manner as part of a major contribution to climate change mitigation”.
Inclusion of as flexible a qualifier as “inefficient” wouldn’t necessarily be an issue, as long as there is a common understanding of what the term covers. However, no definition is included, referenced, or even hinted at. The Communiqué is worthy initiative. But it suffers from the same fundamental problem that plagues other international initiatives developed to address fossil fuel subsidies – the 2009 G20 Pittsburgh Leaders Statement and APEC Singapore Statement – both of which have been championed by New Zealand and the Friends. The central concept of what is an undesirable fossil fuel subsidy (as opposed to benign, or even helpful subsidy) is left up to countries to determine on their own.
In New Zealand’s case, the open nature of its APEC commitment to “rationalise and phase out over the medium term fossil fuel subsidies that encourage wasteful consumption” allowed it a clear run through a 2015 international peer review (PDF) of 8 selected fossil fuel support policies. They included a non-resident off-shore drilling rig and seismic ship tax exemption, government funding for research and development the oil industry, and group of fiscal support measures for the ailing state-owned coal producer Solid Energy comprising a $25M equity injection, $130M secured loan facility, and government assumption of a $103M environmental liability indemnity. None of these policies were inefficient or led to wasteful consumption, officials submitted. The peer reviewers agreed. Who can argue when there is no clear yardstick to measure these policies against?
In yesterday’s session, Minister Groser was asked to comment on a $4 billion Australian scheme providing for diesel tax rebates in the mining and aquaculture industry.
“This is a game of progress,” he said. “And remember the old phrase: an exaggerated concern for consistency is the hobgoblin of small minds.”
Not too good, and not quite all the time.
(This article was originally published by Idealog on 9 December 2015.)
The origin of phrase “environmental refugees" is typically credited to a United Nations Environment Program researcher Essam El-Hinnawi in a 1985 paper with that phrase as its title. The concept of “Climate change refugees” had been in circulation amongst academic and NGOs circles since the late 1970s and in recent years has entered popular consciousness through widespread media coverage assuming ever-increasing levels of drama and sensationalism.
In the South Pacific context, the high water mark of media spin on the issue might be represented by Al Gore's mention in his 2006 documentary An Inconvenient Truth of the supposed evacuation of the residents of a number of low-lying islands in the Pacific Ocean to New Zealand because of the effects of global warming, an observation specifically rejected as baseless in the 2007 UK High Court decision in Dimmock v Secretary of State for Education and Skills.
Widespread and consistent rejection within academic and policy circles of both the concept and terminology of "environmental refugee" or "climate change refugee" has not, it seems, deterred commentators (and even some non-governmental organisations (PDF) who should know better) from continuing to adopt the labels.
So it has been no particular surprise that when a family from Tuvalu holding expired visitors permits appealed to the New Zealand Immigration and Protection Tribunal against deportation citing, amongst other things, hardship resulting from climate change-related environmental degradation in their home country - and secured the right to stay (PDF) - another round of sensationalist international media coverage has ensued.
As is typically the case with the reporting of court decisions, within the confines of a six-sentence story or three-minute clip, subtle (and sometimes not so subtle) points are overlooked or misreported. The surface needs scratching a little deeper.
This article by Prof Jane McAdam at UNSW Law does exactly that. Prof McAdam has published widely on issues of forced migration and has rightly established a reputation as a leading international academic researcher, analyst and advisor on displacement/forced migration and refugee law. She's been living and breathing climate change-related international and domestic law for many years and has unsurprisingly become the ‘go to' legal academic for commentary and advice on these issues.
My analysis generally lines up with hers on the interpretation and significance of the NZ IPT Tuvalu decision. But I draw some additional, and possibly slightly different, points from the case to those outlined by Prof McAdam.
We both agree that media descriptions of the IPT decision as "the first climate refugees" are wildly off the mark. The Tribunal devoted 37 pages of carefully reasoned analysis to conclude exactly the opposite. Like the earlier case dealing with i-Kiribati national Ione Teitiota and his family, the IPT (affirmed on appeal by New Zealand's High Court, and then Court of Appeal) held - uncontroversially from the perspective of most refugee practitioners and commentators - that although the impacts of climate change on low-lying atoll such as Kiribati and Tuvalu are real and concerning, except in very specific circumstances (which did not apply in either case) people fleeing climate change are not "refugees" in the legal sense. Nor could they be regarded as "protected persons" under the International Covenant on Civil and Political Rights or the Convention against Torture.
Where the recent case involving a Tuvaluan family differed from the line of decisions in the Teitiota litigation was that the appellants from Tuvalu were able to appeal against deportation under a particular provision of New Zealand's immigration legislation: section 207 of the Immigration Act 2009. It states:
The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that--
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
The statutory references to "exceptional circumstances" and "in all the circumstances" require, as you would expect, the full factual matrix surrounding the appellants and their appeal against deportation to be analysed. That is what the Tribunal did.
There were a number of compelling circumstances which took the case out of the ordinary. The Tuvalu-based husband was among the remnants of a sizeable family which had effectively relocated to New Zealand. All but one of his six sisters had secured residency in New Zealand and established a strong family base here. His elderly mother - also resident in New Zealand - required care and support relying on her son to perform that role. The couple had produced two children while in New Zealand. They were well settled and integrated into their New Zealand family and society. It appeared that there may have been legitimate “pathways” to legal residency which, had they been better pursued at the right time, would have regularised their New Zealand residency.
Alongside the family circumstances and facts relating to the residency process, factors relating to climate change were also advanced, and accepted as factually credible by the Tribunal. These included regular events of seawater inundation resulting in coastal erosion and impact on food production. Referring to the 1989 United Nations Convention on the Rights of the Child, the Tribunal recorded a specific finding (at paragraph 25) that the young age of the two children (five and three years):
“…makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.”
As Professor McAdam notes, “in the end, the Tribunal allowed the family to stay in New Zealand on humanitarian grounds.” She goes on to note:
“The Tribunal’s decision to let the family stay in New Zealand as permanent residents was not based on the impacts of climate change in Tuvalu. Indeed, the Tribunal deliberately refrained from making a finding on this point. It did not need to do so because there were other exceptional humanitarian circumstances – namely, strong family ties – that justified granting them resident visas.”
I agree that the decision was not "based on” the impacts of climate change in Tuvalu. The evidence and submissions relating to climate change-related hardship that would be suffered if the family were required to return would not, alone, have been enough to satisfy the stringent "exceptional humanitarian grounds" test. It’s fairly clear that the family would have been granted humanitarian relief in any event because of the other compelling factors at play.
However – and this is where I take a slightly different tack to Professor McAdam – that is not to say that the climate change-related factors were not taken into account at all as part of the wider factual assessment required under section 207.
As I read the decision, the Tribunal accepted not only that the climate change-related factors cited on behalf of the Tuvaluan family were legally relevant in principle, but were in fact taken into account when reaching a conclusion on exceptional circumstances of a humanitarian nature. I take that point from paragraph 30:
 The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.
The “above matters” were not specifically identified in paragraph 30. Paragraph 30 is immediately preceded by three paragraphs under the heading "Climate Change and Environmental Degradation as a Humanitarian Circumstance”. In paragraph 29 (directly “above” paragraph 30) the Tribunal refers to the companion refugee and protection decision in the same set of appeals, and cites a passage from para  of that decision:
“…Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”
I think the natural interpretation of the words in paragraph  is that the Tribunal had regard to all of the surrounding facts and circumstances - the climate change-related ones alongside the family connections and other matters. Climate change was not an overriding factor. But it was there as part of the mix. The combination of the strong familial connections in New Zealand, the husband’s obligations towards his mother, the peculiarities of his residency application process, and the climate change considerations cumulatively amounted to "exceptional circumstances of a humanitarian nature, which would make it and just or unduly harsh for the appellants to be removed from New Zealand."
The Tribunal - no doubt acutely alive to the potential for further applicants relying on climate change-related circumstances - considered it necessary to manage expectations regarding that issue. At paragraph 33, it said:
“It is not, however, necessary on the facts of this appeal to reach any conclusion on this [climate change] issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian”
In the context of the decision as a whole, I don’t read that as inferring that the climate change factors were put to one side entirely.
If that had been the intention, paragraph 30 would sit a little awkwardly: at best ambiguous (was the reference to "above matters" meant to be to everything above except climate change, or, something broader?) at worst, just inconsistent with paragraph 33. And I'm not sure that the acceptance of the “inherent vulnerability of the young children to natural disasters and the adverse impact of climate change” would have been conveyed in the unqualified words of paragraph 25 if, ultimately, the Tribunal proposed to put all of this to one side.
So does it matter if climate change factors were or weren't taken into account as part of the assessment on exceptional humanitarian grounds in this particular case? I think so.
It's one thing to hold that the hardships on adults and children resulting from climate change in low-lying states such as Tuvalu and Kiribati might theoretically be relevant humanitarian circumstances but No Finding is Made In This Case. It’s something else to say that these climate change related factual circumstances are relevant, and because they are relevant, form part of the (inevitably wide) matrix of circumstances that will always need to be assessed cumulatively, on a case by case basis. Perhaps in a future IPT decision the point will be clarified. I think the latter interpretation fits, not only with a natural reading of the case, but the policy and legal framework. There’ll be other views, of course.
The Tribunal appropriately clarified that it is not enough to claim to be impacted by climate change to get over the line on exceptional humanitarian grounds.
To my mind, it is not necessary to read down the decision any more than that.
A feature of any international negotiation process, and the latest round of international climate talks in Warsaw is no exception, is the entirely predictable – but almost always interesting – tendency for domestic policies and politics to inconveniently crop up at the precise moment that Ministers and diplomats are attempting to nobly position themselves on issues of global significance.Sometimes where especially contentious domestic policies are being implemented, the heat is expected to be just too much. National political representatives simply don’t turn up to international negotiations to face the scorn of their convention counterparts. But more often than not, negotiators and Ministers doggedly press on, expecting (not unreasonably perhaps) that party and public criticism will go unnoticed, or pass quickly, and will in any event not overly impede them from sailing their charted course.
Along these lines, an intriguing interchange on aspects of New Zealand’s domestic energy policy took place at a session in Warsaw on Tuesday evening. It was a side-event to the official talks fronted, amongst others, by Trade and Climate Change Minister Tim Groser, and former Minister for the Environment, now head of the OECD Environment Directorate, Simon Upton. The event was co-hosted by the ‘Friends of Fossil Fuel Subsidy Reform’ and the Geneva-based NGO, Global Subsidies Initiative to raise awareness for fossil fuel subsidy reform. This is an issue which Minister Groser has pursued in the international arena with enthusiasm (and some success) for over 3 years, including as de facto head of the ‘Friends’, a group of eight non-G20 countries who have all confirmed their support and interest in advancing fossil fuel reform efforts around the world.
The case for limiting fossil fuel subsidy policies is compelling. Estimates vary according to definitions and methodologies, but a commonly cited figure published recently by the IEA has the global sum of fossil fuel subsidies at $544 billion in 2012. To put this in context, it has been reported that domestic subsidies in developed countries outstrip international climate finance provided to help address climate change in developing countries by a ratio of 7:1.
Almost all economists, and most politicians, if pressed, will concede that although well-designed and targeted subsidies can play a useful role in supporting some aspects of public policy, on the whole, subsidies are Not a Great Thing. They distort markets and create a drain on public resources. From a resource use and environmental perspective, subsidies create excess demand for products which, in turn, causes a range of negative environmental impacts. The role of subsidies in contributing to the current collapse of fish stocks is well documented. In the climate change area, fossil fuel subsidies lead to excess demand and use of fuels which result in greenhouse gas emissions. They ‘tilt the playing field’ against emerging renewable energy technology, making it more difficult to transition to cleaner energy sources.
Fossil fuel subsidies are typically divided into two categories. The first – ‘consumption subsidies’ describes forms of government support which make fuels cheaper for consumers. The IEA observes that countries that export fossil fuels see fuel subsidies as a way to “share out” the benefits of energy exports among their population. It is often argued (often not convincingly) that subsidising fossil fuels is to help lift poorer members of society out of energy poverty.
The second category is ‘production subsidies’. These are various forms of government support for the fossil fuel industry: often hidden within layers of complex tax, favourable royalty, insurance or other indirect means of support. Like consumption subsidies, they distort the market, by making it easier for firms to enter and operate within the fossil fuel exploration, production and processing sector, implicitly gaining a competitive advantage over non- or less-subsidised industries, such as renewables.
There are very strong arguments for why fossil fuel subsidies should be curbed, and ultimately eliminated. The ‘Friends’ group has played an important role in raising the profile of the issue. Along with his panel colleagues Minister Groser presented a typically energetic, and engaging précis of the case for the affirmative.
So far so good. Then came a question from a young woman from Norway, Live Kvelland, a member of environmental NGO ChangeMakers. In imperfect English, she asked, a little hesitantly:
In Norway we have.. [energy production support systems] such as R&D, discount rates and exploration support. I’m wondering if you also have this in New Zealand? And if you do consider them to be subsidies, do you want to phase out the subsidies as well, now that you are doing this good job with consumption subsidies?
The question was neither naïve, nor irrelevant. Earlier this year, WWF published a report on fossil fuel subsidies in New Zealand, estimating that New Zealand government support for the oil and gas industry was worth around $46M in 2013. In international terms, that figure is low. But it contributes to a much larger chunk of funds spent globally on production subsidies for fossil fuels. (An OECD inventory complied in 2013 identified over 550 measures that support fossil-fuel production or use in its 34 member countries, with an overall value of around US $55-90 billion a year between 2005 and 2011.)
There is also the small matter of a proposed New Zealand government bailout of the troubled state owned coal mining company Solid Energy – difficult to describe in terms other than Large Government Subsidy. So there were fair questions to ask, and a fair expectation of a response.
Kvelland’s query elicited the following response from Minister Groser. He didn’t answer the question. Instead, he said:
… Don’t get hung up about every single little thing that you might say was a subsidy in one form or another. Just tackle the big issues that are spending between 6 and 700 billion dollars a year. It’s a question of going for the money, and not getting carried away with trying to have a completely purist approach … I would strongly encourage those of you who are interested in this policy area not to go down the path of trying to get too pure on what is a subsidy and get the last bit of economic rationality into this. The problem is huge. Let’s just get going and look at the obvious issues. It will be for the next generation to take the step further.
Earlier in the presentation (perhaps anticipating a question along the lines of Kvelland’s, the Minister had said:
This [Friends initiative] is not an attack on the whole system and use of fossil fuels, and quite deliberately so. That is decades away: the complete removal of fossil fuel from the fuel and energy system. What this is, is the process of an attack, a concerted attack, on inefficient subsidies. I know that sometimes political commentators, political players, in this field find it very difficult to get their head around those qualifiers. But it’s very important, because, that’s already beyond what the traffic will bear. Extend this further, into a wholesale attack on the use of any fossil fuel, and I’m sorry, this will be a rhetorical exercise only.
The young Norwegian observer’s question, and Minister Groser’s response provoked a cascade of further questions and comments. Another Norwegian observer, referring to a long-standing Norwegian policy of allowing oil exploration subsidies, asked the Minister how he would regard them in terms of the Minister’s preferred “traffic light” categorisation (red – damaging, not OK; green – not damaging, OK; orange – not clear).
The Minister said
Intuitively I would put [the Norwegian oil production subsidies] into the green or the orange, but not the red. Because the real damage is being done, frankly, by consumption subsidies. I’d have no question in saying where the real target is at this point.
It’s worth reflecting for a minute or two on these responses. Perhaps there are some subtleties to the Minister’s views. But if there were, they were not articulated. In the space of few short statements, the Minister swept off the table up to $90 billion of fossil fuel subsidies. Production subsidies are either non-issues, or not worth devoting any significant attention to (at this stage at least) in the grander aim of eliminating consumer subsidies in countries such as Malaysia, Indonesia, India, Saudi Arabia or other similar countries.
It will escape few that the particular subsidies in place in New Zealand are, on the whole, production subsidies. A similar situation exists in many other developed countries. New Zealand, and potentially other members of the Friends group, has narrowed the scope of its attention to one category of subsidies – admittedly the largest – which tend to be administered by developing countries. Tackling fossil fuel production subsidies is a job for the next generation.
Unsurprisingly, other views were voiced. Steve Kretzmann, a respected US commentator on energy subsidies, responded in this way:
Without a doubt, we have to think about putting production subsidies, and particularly, subsidies for new exploration, in the red category. And that’s because we have IEA, and IPCC telling us we need to leave roughly two thirds of the existing fossil fuels in the ground if we’re going to meet our goals of staying under 2º of climate change. Why, in God’s name, are we spending millions more incentivising companies to find more of something that we can’t burn. It makes absolutely no sense.
Speaking with Kretzmann after the event, he added:
There’s also an equity issue, which I find, frankly, offensive, where…people..want to focus on consumption subsidies in the developing world and not on their own subsidies, putting aside what the historical subsidies for the oil industry and the rest of fossil fuel industry in the developed have been, which actually stretch back much farther than many of the consumption subsidies…
It was telling that Simon Upton took care to distance himself and the OECD from Minister’s Groser’s approach:
I’m not sure that I’d agree with [the Minister] that you just say, well “consumption is the thing” and we won’t worry about production… And we know that the United States has actively tried to get rid of some production subsidies. They’re not trivial. They’re in the billions. But the [US] government decided that it wanted to go for that. It had labelled them itself, which was at least in the amber box. So in the first instance it is actually getting the stuff out there, and then you can argue over the priority with which you attack it.
Upton’s approach – and that of the OECD – has the advantages of logic, consistency and pragmatism. Not all fossil fuel subsidies, whether production or consumption, are born equal. Nor should their continuance or demise necessarily be equal. A case might be made for some New Zealand, Norwegian, and other developed country production subsidies. Most are likely to be found wanting. But to discard the possibility of putting a global total of up to $90 billion annually of production subsidies under the microscope represents a deeply myopic view unbecoming of the Friends initiative, which in all other respects deserves applause and support from the international community.
Over the last fortnight, international media have lavished attention on a decision (PDF) of the humble New Zealand Immigration and Protection Tribunal with an energy usually reserved for political scandals or celebrity breakups. Outlet after outlet have breathlessly heralded the bid for asylum in New Zealand by a 37-year old resident of low-lying Pacific atoll Kiribati as 'the world's first climate refugee', seemingly oblivious to the fact that 'first’ label has already been used to describe climate-displaced communities in Alaska, Papua New Guinea, and Tuvalu.
In fact, the Kiribati citizen’s attempt to secure refugee status in New Zealand because of climate change is not the first case of its kind to come before our immigration authorities. In 2000, a group of applicants from Tuvalu unsuccessfully sought refuge in New Zealand, citing rising sea-level and other challenges as grounds for asylum. The IPT’s predecessor, the New Zealand Refugee Appeals Authority, dismissed the claims (PDF), saying “This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five [Refugee Convention] grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu.”
What makes the most recent IPT decision notable is the depth of analysis of Member Bruce Burson's examination of the i-Kiribati case under international refugee and New Zealand domestic immigration law.
And what makes the case news - big news all over the world - is that unlike most applications of this sort, this one has been taken to the High Court. So there is significant interest in what will be one of the first appellate rulings on issues which have been the subject of widespread academic debate, but hardly ever face detailed scrutiny by appellate judges.
The IPT's findings in its 25 June decision reflected mainstream views on the status of so-called ‘climate refugees’ at international law. The 1951 Refugee Convention, originally designed to address the legal status of millions of displaced people after the Second World War was crafted with quite different purposes in mind, and certainly well before the spectre of climate-displaced persons had entered public consciousness.
Despite the creative attempts of some lawyers and academics to argue otherwise, the Refugee Convention doesn't cover environmentally displaced people. It is almost certain that the High Court will confirm this in its reserved decision in a few weeks.
Acknowledging the widely accepted 'protection deficit' (PDF) at international law, international organisations have, for some time, been working on possible solutions. Earlier this year, the Norwegian and Swiss-led Nansen Initiative held a first round of consultation meetings in Raratonga to work towards arrangements to address the ‘needs of people displaced across international borders by natural disasters, including the effects of climate change.’
In light of predictions (PDF) of hundreds of thousands of climate-displaced people in the South Pacific by 2050 – a reasonable number of which can be expected to look towards New Zealand’s relatively safer shores for homes - is the Government working on a proactive response plan? Not so much. Papers that I obtained from MFAT under the Official Information Act earlier this year confirm that the government is aware of the issue, but is content, at this stage, to adopt a 'wait and see' approach. In a January 2013 MFAT briefing paper to the Associate Climate Change Minister, officials advised:
“‘[E]nvironmental refugees’… have no current status under international law…New Zealand has indicated that it will continue to respond to climatic disasters in the Pacific and manage changes as they arise…"
Media reporting that New Zealand has agreed to take ‘environmental refugees’ from Tuvalu…is incorrect. There is no such policy. However New Zealand will continue to monitor the situation and provide climate change assistance and disaster relief as it has always done.”
For now at least, would-be climate migrants from the Pacific and elsewhere seeking refuge in New Zealand continue to face deportation and an uncertain future in home countries increasingly at risk from the effects of global warming.
A blog on public, international & environmental law
I'm a New Zealand academic lawyer, lecturer, & writer, researching & teaching public, international & environmental law at AUT Law School, Auckland. I'm particularly interested in sustainability, climate change, fossil fuel subsidy reform & climate displacement.