Insley v Minister of Climate Change [2023]
Case Brief: Insley v Minister of Climate Change [2023] NZHC 1388
Author: Mhairi Mackenzie Everitt, Solicitor, DLA Piper
Te Arotake Mahere Hokohoko Tukunga / Review of the New Zealand Emissions Trading Scheme (ETS) was announced on 19 June 2023 to much anticipation from landowners, businesses and sector professionals alike throughout the country. This follows advice from He Pou a Rangi / Climate Change Commission. The announcements themselves were subject to an urgent application to the High Court for interim orders, which sought to prevent any announcements or the release of the consultation document to the public before a hearing of judicial review proceedings. The interim orders failed, enabling the kickstarting of the ETS consultation process and opening of public submissions.
This case brief considers the decision on the interim order application: Insley v Minister of Climate Change [2023] NZHC 1388. The decision was issued on 5 June 2023, only three days after the urgent hearing was held. Mr Insley brought a claim in his capacity as chair of Te Taumata, a Māori trade collective made up of Rangatira with interests in Māori forests and carbon assets.
Background
Pursuant to s 15 of the Judicial Review Procedure Act 2016 (JRPA), the interim orders sought were that the Crown would not be able to:
(a) make any public announcement relating to the review of the Emissions Trading Scheme (ETS), including the Government’s proposals under it, until Mr Insley’s judicial review claim is determined or the Court rules otherwise; and
(b) release or announce the substantive proposal document for the scope of the ETS review until the claim is determined or the Court rules otherwise.
The interim orders were sought to enable Mr Insley to lodge a judicial review on behalf of Te Taumata against the Minister’s decision to not pre-engage with Māori on the proposals put forward for the ETS review (i.e., prior to public consultation). The orders were required to enable the judicial review as the relief the judicial review sought included an order requiring meaningful pre-engagement and co-design of the ETS proposals with Te Taumata, and an order preventing the Minister from publicly releasing the discussion document until that pre-engagement and co-design occurred.
As the Court considered the circumstances of the case (including the apparent strengths and weaknesses of the proposed claim) were relevant to the consideration of whether the interim orders should be granted, and therefore enable the judicial review proceedings to be brought, the draft statement of claim was reviewed in detail.