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I S S U E 9 4 5 · A utu m n 2 0 2 1
Seeking a
just transition
How lawyers can contribute to mitigating
the effects of climate change
The right to Preparing for He atua, he Why I practise?
a sustainable climate-related tangata, he atua, Nan Jensen
environment financial he tangata
disclosures
Page 6 Page 14 Page 22 Page 28
06 14 18
Contents
03 · Our priorities for 2021 L AW R E F O R M
32 · DNA collection and retention
Seeking a just transition in proposed new regime
▹ BY KATE MCKENZIE-BRIDLE
04 · Seeking a just transition
▹ BY EMILY SUTTON
JURY SELECTION
06 · The right to a sustainable 34 · Transparency lacking in
environment ▹ BY JAMIE DOBSON juror occupations
10 · The legal enforceability of PERSONAL FINANCE
climate change declarations 36 · How to invest to effect positive change
▹ BY AIMEE DARTNALL
TA L K I N G A B O U T M E N TA L H E A LT H
12 · Climate lawfare 37 · What really is the state of our
▹ BY DR SAM MCGLENNON wellbeing and mental health?
▹ BY JACQUI MAGUIRE AND AARON JARDEN
14 · Preparing for climate-related financial
disclosures ▹ BY MORWENNA GRILLS COLLEGIALITY
40 · AIJA – what it is, what does it
18 · Climate Change and the RMA
do and why you should join
▹ BY HANS VAN DER WAL
▹ BY KATE DAVENPORT QC
20 · The Proposed Managed Retreat and
TECHNOLOGY
Climate Change Act & Local Authorities
42 · Demystifying cloud-based software
22 · He atua, he tangata, he atua, with OneLaw ▹ BY EMMA-JANE GRAY
he tangata ▹ BY EDMOND CARRUCAN
L AW S O C I E T Y | T E K Ā H U I T U R E N E W S
WHY I PRACTISE? 45 · Changes to Professional Indemnity
28 · Nan Jensen Insurance Minimum Standards
LEGAL AID 47 · Crossword
29 · How services developed in the past
two years ▹ BY TRACEY BAGULEY
B U S I N E S S O F L AW
30 · How succession planning can save
you time, money and stress
2
22 30 37
Our priorities for 2021
Tē tōia, tē haumatia
Nothing can be achieved without a plan, a
workforce and a way of doing things
As I head into my final year as President,
it is evident we are moving forward to a
new ‘normal’ where we will be having to
be adaptive and responsive to an uncertain
external environment. This whakatauki
speaks to the importance of having a plan
and the resources to deliver.
Within this context, I am focusing on
three important areas of work for the
Law Society. These have the potential for
significant and long-lasting changes to the
profession, and Aotearoa more generally.
The first is changes to the rules that
govern the conduct of lawyers; the second Survey. I’m grateful to everyone who has before any recommendations are made.
is the Independent Review into the future provided valuable feedback and helped And finally, I will continue to progress
of the statutory framework in which we shape these important changes. our work towards access to justice this year.
operate; and, the third is advocating for We all want healthier, more respectful and Our access to justice ‘stocktake of ini-
improvements to access to justice. inclusive work environments. Your engage- tiatives’ has been very well received by
We expect changes to the Lawyers and ment gives me confidence that the changes many of the leaders in the justice sector and
Conveyancers Act (Lawyers: Conduct and articulate a shared set of expectations to help within our profession. It revealed significant
Client Care) Rules 2008 (RCCC) to come into and support culture change. I know that many over-lap and repetition. We want to build
force in the middle of this year. This follows of you have been working on changes at your on this and identify where the Law Society
extensive consultation with the profession. workplace as well. If we all change a little, should be partnering with stakeholders and
The Rules will include clear definitions of then the whole profession will change a lot. organisations. We also want to identify where
discrimination, bullying, harassment and The second element of my plan is the we are uniquely placed to have the greatest
sexual harassment and other unacceptable Independent Review. The Review is a timely impact in improving access to justice. We
conduct, with a threshold for reporting to opportunity to consider the optimal organ- should all be concerned with ensuring the
the Law Society. Each law practice will need isational and governance arrangements for most vulnerable of consumers are protected
to have a process for addressing complaints. the Law Society. I met with Minister Faafoi through a proper functioning legal aid system,
In addition, each practice will nominate in late February, and he has provided useful and so one area we will be focusing our
a designated lawyer who reports on com- feedback on the draft Terms of Reference. advocacy is the triennial review.
plaints to the Law Society every 12 months. The next stage is consultation led by This is an ambitious plan of action. But
We recognise this is a significant change Steering Group Chair, Whaimutu Dewes, as I head into the final leg of the 1000-day
and we will be providing guidance to the on the draft Terms of Reference. Following marathon of my President run, I think it is
profession in advance of these changes. that an individual or organisation will be a time to be ambitious. We need to keep
The changes to the Rules draw upon the appointed to conduct the Review. moving forward. ▪
recommendations of the Cartwright Report The Review is expected to take nine
and the 2018 Legal Workplace Environment months and will include wide consultation Tiana Epati
3
SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5
Seeking a
just transition
BY EMILY SUTTON
4
SEEKING A JUST TRANSITION
W
elcome to the Autumn 2021 edition sends a clear message, but how does New Zealand
of LawTalk and our themed edition fare against other countries action on climate issues?
focussed on climate change and the Increasing awareness of climate change has
law. I’m a passionate advocate for the unique and triggered litigation challenging government and
impactful role lawyers can play in climate activism. industries to act. Dr Sam McGlennon looks at claims
Working at the New Zealand Law Society | Te being brought around the world and explores how
Kāhui Ture o Aotearoa as a Law Reform and Advo- these cases are impacting businesses. We hear from
cacy Adviser has given me a close up view of the three different lawyers about how they’re preparing
massive amount of volunteer energy and expertise for mandatory reporting of climate related financial
that we have in our Profession for a range of causes. disclosures.
On a global scale, the International Bar Asso- Another significant regulatory change will be
ciation last year issued a call to arms on climate the impending Resource Management Act 1991
action urging lawyers to take on a leading role in reforms. We hear how these may impact decision
“maintaining and strengthening the rule of law and making at a local authority level from the Advocacy
supporting responsible, enlightened governance in and Practice Integration Manager at Marlborough
an era marked by a climate crisis”. District Council.
Here in Aotearoa, I’ve seen first-hand the Finally, we close our feature with a look at climate
fearless work of groups like Lawyers for Climate change through a te ao Māori perspective. Edmond
Action NZ Inc. who are leading the charge for Carrucan discusses how climate change will impact
Kiwis. As the group’s President Jenny Cooper QC Māori identities.
notes in our first feature article, “we’re all human In February the Climate Commission released
beings on the same planet and this should be their draft advice which proposes the first three
everyone’s number one priority to safeguard our emissions budgets for Aoteoroa, recommendations
future.” If you are struggling to figure out how you on our first emissions reductions plan, and finds
can get involved in climate action then LCANZI is that our Nationally Determined Contribution is not
an excellent place to start. consistent with NZ’s commitment under the Paris
There’s no doubt that climate action is a big and Agreement to limit global warming to 1.5C above
complex issue – so we’ve made sure a range of pre-industrial levels.
different perspectives are reflected in this feature. However, the Commission is hopeful that if we
Lawyers working on climate issues include in-house take strong and decisive action to address climate
corporate teams, local authorities, litigators and change we can look forward to a “thriving cli-
law firms. mate-resilient and low emissions Aotearoa where
The role of lawyers is only likely to increase as the our children thrive”.
issue gains traction with more countries making I would like to see us create clear pathways for
declarations about the threat of climate change. students and young lawyers coming up to work in
We take a look at the legal enforceability of these climate law. Now, more than ever, we need to work
declarations at a local and national level. The New collectively and seize this opportunity to safeguard
Zealand government’s declaration of a national the health of our planet and our people. I’m proud
climate emergency in December last year alongside to be a lawyer, and like so many others am seeking
the carbon neutral public sector promise by 2025 to play my part in this great challenge of our time. ▪
5
SEEKING A JUST TRANSITION
S eeking a just transition
The right to a
sustainable
environment
BY JAMIE
DOBSON
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.
wide implications for New Zealand’s
When asked why lawyers lawmaking both retrospectively (in
should back efforts to reduce New terms of interpretation of existing
Zealand’s contribution to global legislation) and prospectively. The
warming, the answer from Jenny aim being to weave stewardship Change under the Climate Change
Cooper QC, President of Lawyers for for the environment into all public Response Act 2002. Under the Act
Climate Action NZ Incorporated is decision-making. the Commission has been asked
simple – because everybody should. That campaign has yet to result to provide advice on the first set
“We’re all human beings on the in legislative change but LCANZI of national emissions budgets, the
same planet and this should be remains committed to the cam- strategic policy direction to achieve
everyone’s number one priority to paign and is optimistic that it will those budgets, and what New
safeguard our future,” she says. eventually be successful. Zealand should commit to as a new
“We’re also stuck with some In the meantime, LCANZI has nationally determined contribution
of the effects of global warming been engaged in consultation with (NDC) under the Paris Agreement.
already, so no matter what we do the Climate Change Commission – As of February 2021, the Climate
now, we are going to need to have the independent Crown Entity set Change Commission released their
some adaptation.” up to advise the Government on first batch of advice for public
LCANZI has begun pursuing the climate action – over its draft consultation, which is open now
changes needed to ensure action advice to the Minister for Climate until 28 March 2021. At the time of
against climate change in New writing, LCANZI’s submission is
Zealand is as effective as possible. still being finalised, but on current
This is to make sure New Zealand plans LCANZI will be asking the
not only makes good on its promises About the Paris Agreement: in 2015, Commission to make some signifi-
in terms of limiting global warming, 196 nations meeting in Paris for the UN cant changes to its advice.
but also that those promises will Climate Change Conference bound “There are certainly many ele-
achieve the changes needed to keep themselves to limit their greenhouse gas ments of the advice we agree with
the consequences of global warming emissions to prevent global temperatures and welcome”, says Jenny.
minimal. from increasing more than 1.5(deg)C “But we question whether the
A major step has been campaign- above the temperature benchmark; the overall level of ambition is high
ing to include the right to a sustaina- ordinary average temperature set before enough. While we are still finalising
ble environment in the Bill of Rights the beginning of the industrial revolution. our views, our current assessment
Act 1993, a change that would have is that the budgets proposed in
6
L AW TA L K 9 4 5 · A u t u mn 2 0 2 1 SEEKING A JUST TRANSITION
the draft are too high to meet the should be aiming to do far more to
purpose of the Act of contributing reflect that our historic and current
to the global effort to limit the emissions are well above the global
global temperature increase to To be “Zero Carbon” is to have pro- average and also that many other
1.5°C or to meet New Zealand’s Paris duced carbon emissions equally offset by countries are less well off and will
Agreement obligations.” carbon sinks (which remove CO2 from the find it more difficult to transition to
As well as how high or low future atmosphere). This is the target for New zero carbon.”
emissions should be, another key Zealand to reach by the year 2050. In
issue raised by the draft advice current terms, this means reducing net Advocacy for science
is how much effort New Zealand emissions of greenhouse gases (except LCANZI sees the role of lawyers
should make to reduce its emis- biogenic methane) to zero, and reduc- in the climate debate as vital.
sions domestically, as opposed to ing biogenic methane (from plants and It’s difficult to dismiss a group of
paying for emissions reductions animals) to 24-47% below 2017 levels by senior lawyers as “a bit fringe” when
overseas. LCANZI is supportive of 2050. weighing in on what is understood
the idea of New Zealand helping now to be such an important debate.
less wealthy countries to decar- “As lawyers, part of our training is
bonize. However, it considers that to pick up scientific expert evidence
this should be in addition to, not and explain it in layperson’s terms to judges, juries and
instead of, New Zealand doing its clients.
fair share at home. “If we can also come into the debate and support the
“New Zealand is extremely well likes of climate scientists in what they’re saying, maybe
placed to achieve rapid decarbon- that will help us communicate to different parts of the
ization thanks to its abundant population and drive action.”
renewable energy,” says Jenny. In 2019, they weighed into the fray with a letter call-
“There is simply no excuse not to ing for the amendment to NZBORA, addressed to the
cut domestic emissions to at least Minister for Climate Change, the Minister of Justice and
the global average required to keep the Attorney-General. Signed by 60 Queen’s Counsel,
warming below 1.5°C. In fact, we it stated:
7
SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5
Lawyers for Climate Action NZ has
members in all areas of the pro-
fession all over Aotearoa. Anyone
holding a law degree is eligible
to join as a full member – a prac-
tising certificate is not required.
Associate membership is also
available for law students and
non-lawyers. For more informa-
tion on LCANZI, how to join, or
to make a donation, go to www.
lawyersforclimateaction.nz
are looming.
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 environ-
mental law with the likes of the
RMA, but also in public law,” Jenny
“… the rights to peaceful assembly, of our environment as resources explains. The realm of government,
freedom of expression, manifes- increase in scarcity. starting at the local level, is realizing
tation of religion and freedom of “We will need new rules to its obligations through these sorts
movement all presuppose that there manage that, and on the other of changes. The recent High Court
will be a safe environment within hand of course, disputes will arise judgment overturning the Thames-
which they may be exercised.” from that scarcity. Lawyers have an Coromandel District Council’s
The design of the Bill of Rights important role to play in ensuring a decision not to sign a national dec-
aims to reflect the set of culturally just transition can occur. laration on climate change due to its
normative behaviours fundamental “This includes, of course, main- unlawful decision-making process
to New Zealand. Including the right taining the rule of law, human is an early example, while central
to a sustainable environment in that rights, Te Tiriti o Waitangi, and the government is in the crucial devel-
line-up would ensue in significant stability of New Zealand’s democ- opment phase of how New Zealand
changes across New Zealand’s legal racy. In short, making sure that reaches zero carbon by 2050.
landscape. Those making new laws we’re doing things in a way that is With the introduction of the
would be required to vet them fair, equitable and orderly.” Climate Change Commission and
against compliance with the right. Pushing what is fair and equitable its first draft report, the transition
Existing legislation would have to in the realm of business has already to a zero-carbon society is now
be interpreted in a way that is con- begun. Directors are the first group on the cards. How we value the
sistent. And public decision makers of actors who must be attuned to environment; how laws change
would be bound to engage with the material risks their business and how businesses react to them,
whether their actions are justified decisions pose to climate change. particularly industries with larger
if their decisions affect the right. The Zero Carbon Amendment itself emission contributions, will demon-
“This is instilling what has been permits directors to consider the strate New Zealand’s appetite for
coined as a ‘climate lens’ over deci- goal of New Zealand being “zero transition. Jenny Cooper QC and
sion making processes,” Jenny says. carbon” by 2050 in their decision LCANZI see lawyers as crucial in
And as those decisions around rules making. Meanwhile, mandatory helping that transition start in the
adapt, so too will the treatment climate-related financial disclosures best possible direction. ▪
8
EXPERIENCE MAKES
THE DIFFERENCE
IN LEGAL RECRUITMENT
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A reminder that the CPD year ends
Whether you’re an individual considering the next stage in your
legal career, or seeking to build your talent pipeline, contact on 31 March 2021 and your CPD
Mark Simpson for a confidential chat:
declaration is due no later than 5
mark@convergencepartners.co.nz | 09 300 6876 working days after this date.
Now is a good time to check your
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SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5
S eeking a just transition
The legal enforceability of
climate change declarations
BY AIMEE
DARTNALL
potentially binding document as it public decision-makers is similar to
The Court has sent a strong commits the Council to developing that for fundamental human rights.
signal that local authorities signing and implementing an ‘ambitious Depending on their context, deci-
up to the Local Government Leaders’ plan’.” The Mayor believed that sions about climate change deserve
Climate Change Declaration (‘Local signing the Local Declaration would heightened scrutiny. That is so here.”
Declaration’) could expect legal come with enforceable obligations New Zealand courts take a wide
consequences if they don’t follow to take action on climate change. view of the extent of the powers,
through on their commitments. Aimee She suggested that the Council privileges and duties that could be
This could potentially be extended Dartnall resolve to receive the report and subject to review, which is designed
to cover Parliament’s recent decla- continue to take action, following to curtail potential abuses of power.
ration of a climate emergency. a robust decision-making process, In this case, Palmer J found that the
in response to climate change. rights and duties of citizens and
The case Another Councillor countered ratepayers could be affected by the
Last December in Hauraki Coro- this proposal and moved that the decision to sign (or in this case, not
mandel Climate Action Incorporated Council approve the Mayor signing sign) the Local Declaration, making
v Thames-Coromandel District Council the Local Declaration. That motion it reviewable. He also found that the
[2020] NZHC 3228, Justice Palmer was lost. Instead, the Council decision was important enough to
upheld Hauraki Coromandel Cli- adopted the Mayor’s suggestions. trigger the Council’s Significance
mate Action (‘HCCA’)’s application HCCA argued the Council should and Engagement Policy, which
for judicial review of the Council’s have approved the Mayor signing wasn’t followed before making the
decision to not approve Mayor the declaration. They agreed with decision.
Sandra Goudie signing the Local the Mayor that signing the Local
Declaration. Declaration would give rise to The courts’ position on
The Local Declaration was drafted a legally enforceable legitimate climate change policy
by Local Government New Zealand expectation that the Council will This isn’t the first time courts have
(LGNZ) and circulated to mayors follow through on its climate change considered the justiciability of
and regional council chairs in the commitments. Palmer J agreed with decisions involving climate change.
lead up to COP21 in December HCCA and agreed with their submis- In Thomson v Minister for Climate
2015. It called for an urgent and sion that the Council did not follow Change Issues [2018] 2 NZLR 160,
holistic approach to address climate proper decision-making processes Justice Mallon considered whether
change and included a number of before reaching its decision, making the Minister was wrong not to
‘Council Commitments’, including to the decision unlawful. re-evaluate the government’s 2050
develop and implement ambitious His Honour ruled that “decisions target for reducing greenhouse
action plans to reduce greenhouse about climate change deserve gas emissions in light of the fifth
gas emissions. By 2017, around 65 heightened scrutiny on judicial Assessment Report (‘AR5’) of the
mayors and chairs signed the Local review, depending on their context” Intergovernmental Panel on Climate
Declaration. and that “the potential and likely Change (‘IPCC’). AR5 was published
The exact legal status of the Local effects of climate change, and the in stages between September 2013
Declaration was unclear. LGNZ measures required to mitigate and November 2014 and is the most
thought that it was a non-binding those effects, are of the highest comprehensive assessment of scien-
leaders’ declaration. In a report to public importance”. He concluded tific knowledge on climate change
the Council, Mayor Goudie stated that “the intensity of review of since AR4 was published in 2007.
that the Local Declaration is “a decisions about climate change by After an extensive review of
10L AW TA L K 9 4 5 · A u t u mn 2 0 2 1 SEEKING A JUST TRANSITION
New Zealand’s climate change commitments, both will not necessarily act as a trump
internationally and domestically, Mallon J agreed that card against all Ministerial deci-
the Minister would be obliged to consider whether sion-making. Many other factors
AR5 materially alters the information against which will be at play and these will often
the existing 2050 target was set and whether a review be embedded in the legislation
is required. empowering the Minister to make
This is in line with other courts around the world the decision. Climate change con-
which have recognised that decisions on climate change siderations will not give Ministers
are and should be subject to judicial review. carte blanche to ignore considera-
tions required by Acts of Parliament
What does this mean for or to make unreasonable decisions.
decision-makers? The overhaul of the Resource
The question now is whether this will extend to Management Act may change
Parliament’s recent declaration of a climate emergency. where climate change sits in the
In her speech supporting her motion, Prime Minister hierarchy of decision-making con-
Jacinda Ardern said that the declaration “now serves siderations for both central and
as a directive to all aspects of the public service around local government, particularly if
the urgency that we as a Government require and the the Government goes ahead with
urgency that we require around action.” Ministers and the Managed Retreat and Climate
government officials are expected to put climate change Change Adaptation Act. For exam-
at the forefront of their minds when making decisions. ple, the Act would change the way
This is at odds with the Prime Minister’s announce- local authorities deal with infra-
ment in July 2019 that “a declaration in Parliament in structure management by elevating
itself actually doesn’t functionally change what’s being climate change adaptation to the
done on the ground”, which is echoed in National’s top of the list of considerations
current objections to the Parliamentary declaration. for decisions in coastal areas. For
Practical and sensible solutions are needed, said now, the priority of climate change
National’s climate change spokesperson, Stuart Smith is unclear but decision-makers at all
MP, not “extreme policies”. levels should be alive to the possi-
But the Prime Minister’s current approach is in line bility of a successful legal challenge
with the court’s attitude towards local government if they refuse to factor it into their
commitments. Local authorities have the choice to sign decision-making at all. ▪
up (or not) to the Local Declaration. Once they do, they
may be legally bound to follow a list of binding Council Aimee Dartnall is a Solicitor at
Commitments, although these are likely to be interpreted Wellington based firm Franks
in the context of the general purpose and functions of Ogilvie. Her expertise is in local
local government in the Local Government Act 2002, government regulations as well
including economic considerations. Even if they don’t as the Sale and Supply of Alcohol
sign the Local Declaration, they may still be obliged to Act 2012. Aimee has worked with
consult or consider consulting, their constituents before trusts, Resource Management Act
making decisions on climate change policy and action. The declaration issues, and has growing expertise
The status of the Parliamentary declaration is less “now serves in litigation. Aimee has appeared
clear cut. Parliament has approved the declaration and as a directive in a number of High Court cases,
in a sense the directive to put climate change to the to all aspects including for judicial review and
forefront of Ministers’ minds when making decisions. of the public Marine and Coastal Area (Takutai
But this is much more abstract than a pledge to adhere service around Moana) Act 2011 claims, as well as
to a prescribed list of commitments. the urgency in the District Licensing Committee
The potential success of a judicial review claim will that we as a and the Court of Appeal.
depend on the nature and circumstances of an indi- Government
vidual case. Non-compliance with either declaration require and Since this article was written,
is unlikely to be fatal on its own except in the most the urgency Franks Ogilvie has been instructed
extreme cases. It is only one criteria that decision-mak- that we require by Thames-Coromandel District
ers must consider. It will be an important one, but it around action" Council in this matter.
11SEEKING A JUST TRANSITION
S eeking a just transition
Climate lawfare consequences can be severe.
A sign of the stakes comes via
the Californian utility company,
Business in the firing line
Pacific Gas and Electric, which in
2019 became widely regarded as the
first ‘corporate casualty of climate
change’, after it filed for bankruptcy
BY DR SAM in light of legal liabilities for its role
MCGLENNON in sparking various Californian
wildfires between 2015-18. While it
ultimately managed to resolve these
liabilities with a $25.5bn payment in
In brief emissions. In 2015, Sarah Thomson, mid-2020, experts suggest the utility
Litigation is gaining traction as a then a Waikato law student, made remains exposed to similar liabilities
new and promising means to force a Statement of Claim against the for future wildfires.
adequate corporate responses to the Minister of Climate Change Issues
climate crisis. Legal activists view to do just that. It failed, but the case A case history
this as the climate equivalent of the Ms Thomson’s mimicked – filed by accumulating
moment when litigation began win- Urgenda, a Dutch NGO, against the Claims against business are being
ning concessions from big tobacco. Dr Sam Dutch Government that same year – launched by an expanding array of
The climate remains a new fron- McGlennon was ultimately successful. Just last litigants, who tend to make one – or
tier of practice. Courts globally month, in February 2021, a coalition more – of four broad demands (see
remain in a period of legal testing of NGOs won a similar case against accompanying graphic). Several
on climate grounds, with rapidly the French Government. recent and current cases serve to
evolving subject matter and a case Other cases against government illustrate the variety on show.
history accumulating in real time. implicate business, however, by In 2018, Mark McVeigh launched
These factors place us in the midst challenging the approval or consent- a lawsuit against his Australian
of a very exciting decade in legal ing of particular projects. An iconic superannuation provider, REST,
history, with an undeniable thrill of example is the legal challenge to the for ‘failing to have, and failing to
the unknown. expansion of Heathrow Airport, disclose, strategies to deal with
For the businesses involved in which was upheld by the Court climate-related risks’ relevant to his
defending, settling or positioning of Appeal in February 2020, then retirement savings. This case was
to avoid climate lawsuits, however, ultimately denied by the Supreme notable for the customer-provider
there can be no doubt about how Court last December. (It is still not relationship underpinning it. In
dangerous litigation risk has quickly guaranteed that the project will November 2020, the case was settled
become. proceed.) out of court, with REST acknowledg-
Globally, by late 2019, there had ing climate change as a ‘material,
The state of play been 135 cases where businesses direct and current financial issue’ for
A survey in late 2019 counted a were named as defendants. These its activities, and promising align-
cumulative, global total of 1400 came predominantly, though not ment with global best practice in
climate-related litigation cases, with exclusively, against mainstays of the identifying, considering, mitigating
annual case volumes experiencing energy industry, as well as extrac- and disclosing the climate-related
a sharp uptick from 2007 and a tors of other natural resources. risks to its portfolios.
further jump from 2016. More than Strictly speaking, the legal suc- Local and regional governments
1000 of those cases have been filed cess rate of these lawsuits has been have also been active in litigating
in the United States, with – by this relatively low, with many cases against business. In 2018, the Mayor
count – 18 here in New Zealand and successfully defended. That in itself and City of Baltimore sued 21 mem-
another 104 in Australia (the second does not tell the whole story. Like all bers of the oil industry, noting the
highest number globally). legal battles, these climate cases are City’s vulnerability to rising sea
The vast majority of these climate costly to defend (financially and rep- levels and flooding, and seeking
cases have targeted governments utationally). Some cases are settled damages for costs already borne
and their agencies. Some cases have in favour of the claimants, creating and expected in future. Attorneys
been grandiose in scope, for exam- a victory in all but the strict legal General from a host of other U.S.
ple demanding that governments up sense. And in the instances where states, including California and New
their ambition in reducing national cases do win a legal victory, the York, have signed an amicus brief
12SEEKING A JUST TRANSITION
in support of the lawsuit (as well C L I M AT E C A S E S : W H O' S TA R G E T I N G W H O, A N D W H Y ?
as a comparable one filed by Rhode
Island against the same defendants). BASIS OF SELECTION OF LITIGANT
The Baltimore case is currently LEGAL CLAIMS EXAMPLE CASES TYPES
before the Supreme Court, not on
Lack of climate Mark McVeigh v his Customers
its merits but instead tangled up disclosure or strategy 1 superannuation provider, REST
in a question over the appropriate AUSTRALIA
Shareholders
jurisdiction to hear it.
Mayor and City of Baltimore v
Perhaps one surprising climate Challenge to 2 the oil industry
lawsuit is the case of Saúl Luciano specific projects U N I T E D S TAT E S
NGOs
Lliuya, a Peruvian farmer from
Mike Smith v seven
Huarez, who sued a giant German 3 high-emitting NZ companies
energy company, RWE, for its share NEW ZEALAND
Local &
of cumulative historical emissions regional
Demand to Saul Luciano Lliuya v governments
(calculated to be 0.47%). Those emis- reduce 4 the energy company, RWE
emissions
sions have contributed to melting GERMANY
Directly affected
the Andean glaciers above his farm, individuals
ClientEarth v
threatening it with flood damage. 5 the energy company, Enea & groups
The case is open and ongoing, Compensation for POLAND Distantly affected
emissions individuals & groups
currently awaiting Covid-19 restric-
tions to lift so experts can visit the
plaintiff ’s farm and adjacent area. likely to unleash a host of ‘chaser’ lawsuits leveraging any course is currently unknowable. The
However, an independent study by new precedents, as well as setting business scrambling ultimate verdict on business’ respon-
University of Oxford and University to reposition their activities and strategies. sibilities on climate will emerge not
of Washington scientists recently just from the world’s courtrooms,
supported the claim by concluding Implications for everyone but from the corner offices of finan-
that human activity had caused ‘at Business is under increasing pressure to account for its cial stability agencies, the halls of
least 85 percent’ of glacial melt past activities and to publicly convince us of its com- government, and the boardrooms
above Huarez. patibility with a carbon-affected, carbon-constrained, of business themselves. The waves
Closer to home, several NZ busi- world. Any business that has not been paying heed risks of change in each of these places
nesses have also begun to feel the a tightening noose. And the litigation risk is not only are running together to recalibrate
scrutinising gaze of the court. The real, but urgent. business behaviour, both here in NZ
most high profile case comes cour- There is a clear intention from a wide range of stake- and elsewhere around the world.
tesy of Iwi Chairs’ Forum’s climate holders to use the law to challenge previous, current In that sense, it may not matter
spokesperson, Mike Smith. Mr Smith and future corporate activity. Some of these cases have how much of the change in busi-
filed a claim – in his personal capac- resulted in legal victories, while others have been suc- ness behaviour will be attributed
ity – against seven NZ businesses cessful in other ways. Legal advisory services, including to litigation. There will certainly be
with large emissions footprints, Lawyers for Climate Action here in NZ, have sprung up headline-grabbing instances when
including Fonterra, Genesis Energy to deploy their skills in pursuit of future cases as they it plays the hero role, and likely
and Z Energy. In March 2020, the are needed. As a side-note, in February 2021, climate many others when the mere threat
High Court struck out two of the advocates – with the support of Lawyers for Climate of litigation effectively shuffles busi-
three causes of action in the suit, but Action – noted in a presentation to Auckland Council that ness along the path to wiser, more
was unwilling to strike out the third, the latter could face legal action for failing to adequately future-oriented corporate behaviour.
which proposed that the defendants reduce the region’s emissions. A safer climate than the one we’re
had failed the plaintiff in a novel As New Zealand’s Chief Justice, Helen Winklemann, currently headed for is the only real
‘duty of care’. If parties opt not to and colleagues articulated in their working paper end game. ▪
appeal the High Court’s decision, the ‘Climate change and the law’, climate is shifting from
merits of this third cause of action being an ethical issue to a financial issue. That shift trig- Dr Sam McGlennon is the New
could be determined at trial. gers a variety of legal obligations for both companies and Zealand Associate for BWD
Collectively, these cases illustrate their directors, whose responsibilities go hand in hand Strategic, based in Whaingaroa/
how courts are testing legal argu- with the material and financial risks of the companies Raglan. He is a climate educator
ments on climate grounds. Litigants they oversee. For businesses, the urgent challenge is and advises New Zealand and
are pursuing multiple potential to expand their thinking about, and augment their Australian businesses on climate
business vulnerabilities in multiple responses to, the variety of climate risks they face. risk, strategy and reporting, as well
jurisdictions. Successful cases seem In closing, climate litigation’s role in altering our future as modern slavery.
13SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5
S eeking a just transition
Preparing for climate-
related financial disclosures
BY MORWENNA
GRILLS Organisations will be expected to report
against four thematic areas that represent core
elements of how organisations operate
Last year Climate Change
Minister James Shaw announced
that New Zealand is aiming to
become the first country in the
world to make climate-related
financial disclosures mandatory.
“To be first in the world to intro-
duce mandatory reporting on the
potential financial impact of climate
change is a major milestone and a Governance – The Board’s over- Strategy – Identifying the climate
real challenge,” says Nicola Swann, sight of climate-related risk and related risks over the short, medium
Partner at Chapman Tripp. opportunities and management’s to long term and their impact on
“Having worked in the UK I role in assessing and managing the organisation and its future
know that many countries are those risks and opportunities. plans.
gearing up to bring in reporting
based on the recommendations of
the Taskforce on Climate-related
Financial Disclosures (TCFD) which
were made in 2017. The difference in
Aotearoa is that we are the first, with
the UK also now having announced
its own regulation, to make this a
legal requirement.”
The TCFD grew out of a meet-
ing of G20 Finance Ministers and Risk Management – Describing Metrics and Targets – Measuring
Central Bank Governors in 2015. It how the organisation will manage how the organisation is tracking
was established to help avoid major the identified climate-related against the identified climate-re-
shocks to the global economy from risks, including from a regulatory lated risks and opportunities.
unpriced climate related financial perspective.
risk, and identify the information
needed by investors, lenders and
insurance underwriters to appro-
priately assess and price climate investment schemes with greater greater than $1 billion in total
related risks and opportunities. than $1 billion in total assets assets under management.
There are around 200 entities in under management. The Government is seeking to intro-
New Zealand that will be required • All licensed insurers with greater duce mandatory reporting from 2023
to produce climate-related financial than $1 billion in total assets at the earliest. Some organisations
disclosures. These include: under management or annual are well ahead, already voluntarily
• All registered banks, credit premium income greater than publishing climate related disclo-
unions, and building societies $250 million. sures. Others are just starting to
with total assets of more than $1 • All equity and debt issuers listed understand what’s required of them,
billion. on the NZX. and some are yet to even begin
• All managers of registered • Crown financial institutions with considering the impact climate
14change will have on them, rather a good position to ensure we’re ready for when the
than their own impact on climate regulations come into force.”
change via their GHG emissions, Over at Air New Zealand, Senior Legal Counsel, Sam
which has been the traditional way Bailey, has had a similar experience as his organisation
that businesses have engaged with prepares for the regulations to come in.
climate change. “My team has been involved in looking at the TCFD
So, what can lawyers be doing to framework to help the business understand what they
support organisations preparing for have to do from a regulatory perspective.
this new regulation? “It’s been a really interesting exercise to switch how
we’ve traditionally thought about climate change. Like
Role of lawyers most businesses, we’re used to considering the impact
Meridian Energy was one of the that our business is having on the climate but the TCFD
first organisations in Aotearoa ▴ Nicola Swan framework flips that lens and is asking us to identify
to start reporting against the and prepare for the impacts that the climate will have
TCFD framework in 2019. General on our business.”
Counsel Jason Woolley and Head of Experienced climate risk lawyer Nicola Swan of
Sustainability Tina Frew say their Chapman Tripp sees the legal profession playing a key
teams have worked closely together role in tackling climate change.
to support the organisation to make “Lawyers have a responsibility to help their clients
these disclosures. respond to the challenge of climate change. For example,
“Our sustainability team has led thinking about climate change when drafting contracts,
the organisation on climate-related particularly those that contain supply or pricing com-
disclosures. Our role as in-house mitments for many years to come.
counsel is to work closely with “As a profession we need to upskill on climate change
them, look at the proposed disclo- ▴ Tina Frew risk and regulation, as this is increasingly impacting all
sures and apply rigour to ensure that areas of the law.”
we are fulfilling what’s required and
expected of us,” says Jason. Main challenges with TCFD reporting
“As we have looked to grow and Both Meridian and Air New Zealand’s legal teams agree
build out the detail of the climate-re- that the TCFD framework itself isn’t hugely complex,
lated disclosures we make each year with the four pillars of reporting allowing quite a bit
we’ve found it’s been important to of flexibility for what to include. However, there are
engage early with key people across some challenges:
the whole organisation to ensure we
have done the work necessary to Modelling
back up the disclosures we propose Scenario modelling is an important part of the work
to make. This hopefully puts us in ▴ Jason Woolley that needs to be done to quantify the impacts of climate
15SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5 change on your business. “We use climate science and modelling to understand what’s coming down the track,” says Jason at Meridian. “As a retailer and renewable electricity generator with a number of hydro stations and wind farms, understanding as much as we can about the weather is a core part of our business so we have some great people with highly skilled expertise in this area.” For Air New Zealand, Sam admits it’s been more challenging. “There are really two key chal- lenges,” says Sam. “The first is around educating busi- nesses to identify climate-change related risks. Businesses are used to looking at risks in the short term but are not quite as good at projecting what will be happening in five to ten years’ time and beyond – which is when many of the impacts of cli- Getting cross-organisational buy-in mate change will begin to manifest. “One of the key things we’ve learned in preparing for It’s a real shift in how you look at reporting is that it requires a broad cross-functional your risk horizon. group to provide input,” says Sam. “The second challenge is around “Meaningful disclosures will rely on every business how you go about quantifying those unit providing input to ensure you’ve considered all risks. There is a significant amount material risks. This kind of intense business analysis of modelling of forward-looking can be time consuming so be prepared.” data that is required to do this. At a Board level, Chapman Tripp has been helping Many businesses will need external directors work through their responsibilities under the help to do that, and I can see that governance pillar. this will be a significant challenge “There is already a focus on directors to be aware especially in the first few years of and to lead on managing climate related financial of reporting against the TCFD risk,” says Nicola. framework.” Businesses “We’ve been working with the Aotearoa Circle to Nicola Swan agrees that finding are used to provide practical advice for directors to manage this in-house expertise in modelling will looking at risk as we’ve seen how important it will be for directors be challenging. risks in the to upskill in this area.” “The government is aware that short term many organisations will need but are not The biggest risk is not doing it help in undertaking physical risk quite as good When Meridian came out in 2019 with their first round scenario analysis to help them pre- at projecting of reporting under the TCFD framework for Climate- pare their climate-related financial what will be related Financial Disclosures many were impressed disclosures. happening they’d jumped on board so early. At that stage there “We need to get better at forecast- in five to ten was no guarantee this would become the norm for New ing business impact in ten – twenty years’ time Zealand, let alone a regulatory requirement. When asked years’ time.” and beyond if there was a risk in forging ahead Jason turns that 16
L AW TA L K 9 4 5 · A u t u mn 2 0 2 1 SEEKING A JUST TRANSITION
Disclosures has been positive.
“Investors have been pleased to see us taking a respon-
sible approach and getting on board with TCFD before
it becomes mandatory. More than ever organisations
are looking at taking a sustainable approach, otherwise
investors are turning away.”
Even just doing the work to prepare for reporting
on climate risk disclosures has been beneficial for Air
New Zealand.
“It’s been a really useful process to go through to look
at what strategies we need to put in place to make us
more resilient to the impacts of climate change” says Sam.
“Identifying and quantifying the risks climate change
poses on us as a business will feed into what strategies
we adopt over a medium and long term. For example,
this work helps to support decisions around sustainable
alternative fuels as well as fleet efficiency and looking
at next generation aircraft.”
Advice for those preparing for
climate related disclosures
“From an in-house perspective start early,” says Sam.
“It takes time to get where it needs to go. Make sure
you have the right people in the room from the start – the
question on its head. decision makers are key. Learn lessons early so when
“The bigger risk for us was probably not picking mandatory reporting (and enforcement) comes in you’ve
up the recommendations of the TCFD and giving the got a good set of reporting already to hand.
reporting a go. It can feel uncomfortable making dis- “For those coming in from the outside – be patient!
closures based on forecast information that will almost In-house teams are pulled in every direction so provide
inevitably change, but for us it would have been more strong guidance and be flexible.”
uncomfortable not to adopt the TCFD framework and At Meridian, Tina says the best advice she has is not
start using it. Sustainability is at the core of what makes to do it alone.
Meridian who we are, so it made absolute sense to run “Talk to others and work out what will be best for you.
with this.” Look at examples. Whilst the reporting still feels really
Following seven years in London Nicola can see the new there are people who are well versed in this area
increasing global pressure being placed on organisa- and happy to share their knowledge and experience.”
tions to play their part in the fight against climate Jason agrees that using your networks is important.
change. He also says people need to recognise it will be hardest
“Even without the TCFD framework being made man- the first time round.
datory, most organisations would want to be looking at “The reporting will get easier year on year as people
how climate change will impact them. Organisations become more comfortable with the process. Our first
need to understand that climate risk is also financial and year was really challenging – now we have a benchmark
reputational – the best indicator of your future litigation and figures to compare against having published two
risk from climate change is what your stakeholders are reports so far.”
thinking about the issue and you want to be on the From her experience, Nicola’s advice is also to start
right side of this one.” early.
“The more businesses can dedicate resource to think-
The opportunities TCFD ing through the implications of climate change the better.
reporting can bring The earlier you start planning the better prepared you
Head of Sustainability at Meridian, Tina Frew says will be and may potentially lessen any financial impact
the reaction to their first Climate-related Financial climate change will have on you.” ▪
17SEEKING A JUST TRANSITION A u t u mn 2 0 2 1 · L AW TA L K 9 4 5
S eeking a just transition
Climate Change and the RMA
A Sea Change Has Begun
BY HANS
VAN DER WAL
caused by climate change will make low-lying riverside and
Climate change is currently one of coastal areas unsuitable for building in the future. Increased
the hottest environmental topics, but droughts and higher temperatures may mean certain types of
this is not reflected by how the Resource farming will become unviable or require more irrigation water.
Management Act 1991 (RMA), our main
environmental statute, has been dealing Current status
with it. The Government has recently Surprisingly, under the current law, sections 70A, 104E and 104F
announced it is to repeal the RMA, replac- RMA (introduced in 2005), confine Councils to considering only
ing it with three separate Acts. However, one tiny aspect of the effects on climate change – the greenhouse
that doesn’t mean reforms won’t be hap- gas emission-reducing effects of renewable energy proposals. For
pening between then and late 2022 (the all greenhouse gas emissions themselves, the effects on climate
earliest the new legislation could come in). change must be disregarded when preparing planning documents
In fact, a key aspect is set to change on and processing resource consents. Supreme Court authority holds
31 December this year (unless an Order in that this also extends to activities likely to cause greenhouse gas
Council delays it), ushering in a sea change emissions indirectly, like mining coal.
in natural resources and planning law. As a result, climate change-focused “sustainable” initiatives
For environmental management and like converting to electric vehicles, or planting to promote carbon
planning purposes there are two separate, uptake, have been relegated largely to the sphere of public relations
but important aspects of climate change: and personal moral duty, playing almost no role under the RMA.
1. Effects on climate change – this refers Whether a proposal will indirectly increase or reduce greenhouse
to activities that discharge greenhouse gas loadings in the atmosphere is currently all but legally irrelevant
gases into the atmosphere, like burning under the RMA.
hydrocarbons and livestock farming. Only the effects of climate change, the other key aspect of the
These activities directly contribute climate change hot topic, have been something that Councils could
to climate change through those dis- manage through plans and resource consent processes under the
charges, while activities that fuel the RMA. It is already a matter to which section 7(f) RMA requires them
demand for these activities, contribute to have particular regard, even if this stops short of the national
indirectly. Others, like deforestation, importance status accorded by section 6 to issues seen as critical for
reduce uptake of greenhouse gases the entire country. Post-RMA this issue’s profile will be raised further
from the atmosphere, thereby likewise when it receives its own specific piece of legislation, the Climate
increasing greenhouse gases, while tree Change Adaptation Act. In the interim though, it is a legally relevant
planting will do the opposite. It is these matter for planning documents and resource consent applications,
activities that are the focus of efforts to in contrast with the effects on climate change, which remain almost
slow and eventually stop climate change entirely out of bounds – but not for long.
(hopefully).
2. Effects of climate change – these are What's changing
the effects caused by climate change. The momentous step of ending the legal irrelevance of the effects
Climate change will change the setting on climate change for resource consents and planning documents
in which activities occur that Councils has not been left to the RMA repeal and replacement but will
(regional and district/city) are seeking occur far sooner. Under sections 35 and 36 of the of Resource
to manage through resource consents Management Amendment Act 2020 (RMAA20) sections 70A, 104E
and planning documents (plans contain- and 104F RMA will be repealed on 31 December this year (barring
ing the rules and policies for resource an Order in Council postponing this). With these sections removed,
consents). For example, rising sea levels the previously binding Supreme Court authority, which had hinged
or more intense and frequent flooding on these sections, will no longer apply. When deciding whether or
18SEEKING A JUST TRANSITION
consents. The importance of this change is
underscored by the fact that the function
of a resource consent is to make something
lawful that would, without that consent,
be an offence under s338(1)(a) RMA. It
represents a fundamental shift of focus
that should bring an equally fundamental
change in the future design and form of our
built and natural environments.
Nine months is a very short time when
it comes to environmental planning and
consents. While applications lodged before
31 December this year may still dodge the
effects on climate change, Councils have
become adept at using short consent
durations to limit the extent of any ben-
efits applicants might receive from this.
Basically, the need to address effects on
climate change in all but our shortest term
is already upon us.
That the Government was not prepared
to put off making the reduction, avoidance
or compensation of greenhouse gas emis-
sions part of day-to-day environmental
management and planning, to the RMA
repeal reveals a great deal. It shows that
in the post-RMA world both aspects – both
the effects of and on climate change will
play a central role with important legal
consequences for consents and planning
documents, whatever form they take.
not to grant consent, or to adopt new rules and policies governing Compared with the current status, par-
consents, the resulting effects on climate change will no longer ticularly of the effects on climate change,
be out of bounds for councils. this is indeed a sea change. Due to the
This applies not only to discharges of greenhouse gases (like fast-approaching repeal of sections 70A,
those which come from hydrocarbon burners) that require or 104E and 104F RMA, it is a change that is
could be made to require resource consent, but also extends to not relegated to the post-RMA world but
activities that may not themselves involve discharge consents, has had its first steps already ushered in
but can, indirectly, cause increases or reductions in greenhouse by the RMAA20. It makes climate change,
gas emissions. Anything that could indirectly have an effect on especially the contributions made by daily
the level of greenhouse gases entering or being removed from the activities controlled by Council such as
atmosphere will be affected. For example, the fact that a subdivi- planning documents and resource consents,
sion is some distance from an urban centre and is likely to result legally relevant and something for which
in more vehicle trips burning fossil fuels, or conversely that it is we have to start planning for today. ▪
located right next to a railway station with electric passenger
trains, will become relevant. Likewise, the planting and retention Hans van der Wal is a resource manage-
of trees to promote carbon uptake will also be relevant, as will ment, environmental and local govern-
the opposite effect, from removing trees. ment law specialist. He acts for private
Under the RMAA20 this legal change will apply only to consents clients in enforcement and contentious
lodged and planning documents notified after the repeal takes resource consent, plan-related or other
place, so not before 31 December this year. For those though, regulatory matters and for insurers in
steps taken or not taken to lessen or counter the atmospheric environmental statutory liability claims.
build-up of greenhouse gases will for the first time have real legal Hans has worked with the Resource
consequences for whether planning and environmental approvals Management Act since 1996, first as a
can be obtained or not. Legally binding commitments to run only council officer, then, following his admis-
electric vehicles, or to set aside land for trees to take up carbon sion in 2003, as an in-house council lawyer,
could come with concrete legal benefits in helping get necessary and since 2008 in private practice.
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