Summary
Thames-Coromandel District Council (‘Council’) declined to approve Mayor Sandra Goudie signing the Local Government Leaders’ Climate Change Declaration (‘Declaration’). Hauraki Coromandel Climate Action Incorporated (‘HCCA’) applied for judicial review of this decision on the basis that the Declaration tackled important climate change issues and as such, the Council was under an obligation to follow proper decision-making processes when making this decision.
Justice Palmer agreed with HCCA. He declared the decision unlawful, quashed it, and ordered the Council to make it again following the correct decision-making procedures.
Background
The Declaration was drafted by Local Government New Zealand (‘LGNZ’) and circulated to mayors and regional council chairs on 15 October 2015 in the lead up to COP21 in Paris in December 2015. The Declaration outlined the urgent need for responsive leadership and a holistic approach to address climate change. In 2017, around 65 mayors and chairs signed the Declaration renewing the call for action. The Declaration included a number of ‘Council Commitments’, including to develop and implement ambitious action plans to reduce greenhouse gas emissions.
LGNZ did not have a legal opinion on the status of the Declaration but they confirmed that it was a leaders’ declaration and did not automatically bind local and regional councils.
Mayor Goudie provided a report to the Council on 19 March 2019 outlining her view that the Declaration is “a potentially binding document as it commits the Council to developing and implementing ‘ambitious plan’. The term ‘commit’ means ‘to pledge to a cause or a course of action’.” The purpose of the report was to enable the Council to consider signing the Declaration. She suggested that the Council resolve to receive the report and continue to take action, following a robust decision-making process, in response to climate change.
Councillor Peters proposed an alternative resolution. He moved that the Council approve the Mayor signing the Declaration. That motion was lost. Instead, the Council adopted the Mayor’s suggestions and resolved to receive her report, continue to take action following robust decision-making process and, in addition, to request staff take a broad view of the actions undertaken to mitigate the drivers of climate change and scan how other councils are responding.
The Case
HCCA accepted that the Declaration was not a legally binding contract but argued that it was a public promise that certain commitments would be kept. Because of this, the Declaration (if signed by the Mayor with the approval of the Council) could give rise to a legitimate expectation that the Council would adhere to the list of Council Commitments and turn these into policy initiatives. Interestingly, the Council argued that it was a “non-binding aspirational political statement by Mayors and Chairs that has little or nothing to do with the Council.”
Palmer J opened his judgment by stating that “[d]ecisions about climate change deserve heightened scrutiny on judicial review, depending on their context.” He accepted the evidence that anthropogenic climate change is occurring and will have severe environmental impacts and that this is unlikely to be avoidable unless substantial mitigation steps are undertaken immediately. The Ministry for the Environment’s National Climate Change Risk Assessment identifies the people most at-risk of climate change effects are those in low-lying coastal areas, people who rely on strong social networks like the elderly, people in lower socio-economic circumstances and Maori. Thames-Coromandel has a higher than average proportion of people in these categories.
The Judge found that the decision to accept or reject the Declaration could directly affect the rights and duties of ratepayers and residents.
He also agreed with HCCA that the decision could have legal implications and was of such strong public interest that it was susceptible to judicial review (unlike normal policy decisions, which are not). He found that the significance of the decision was such that it deserved heightened scrutiny, similar to a human rights case.
This all means that any decision the Council makes on climate change issues and strategy invokes the decision-making processes outlined in ss 76 – 80 of the Local Government Act 2002, as well as the Council’s Significance and Engagement Policy. These decisions must only be made following community engagement and a proper assessment of the effects of the proposed decision on the community. The Council did not follow these processes when making its decision and therefore the decision was unlawful.
What next?
Palmer J declared the decision unlawful, quashed it, and ordered the Council to make it again following the correct decision-making procedures in the LGA and the Policy. The Mayor has stated publically that she will not sign the Declaration in spite of the judgment, and has not done so as of June 2023.
Following publication of this case brief, Franks Ogilvie accepted instructions to act for Thames-Coromandel District Council.
