Opinion: Climate change issues can lead to court

Mayor K Gurunathan on Kāpiti Island during a kōkako release.

Weekly column by Kāpiti mayor K Gurunathan.

Last week, I wrote about the trip to Kāpiti Island to translocate 11 endangered kōkako species.

There were a number of highlights. Meeting the staff of Fonterra on the trip was one.

I found them highly dedicated professionals who valued and cared for the environment. Some might find that hard to understand given their role in the multimillion-dollar dairy industry which, over the years, have been accused of intensive methods that fouled the earth and waterways.

I learned of the imminent court battle where a farmer has taken Fonterra to court for refusing to accept milk from his farm. I understand Clause 22 & 23 of the Dairy Industry Restructure Amendment Bill gave Fonterra an ability to not pick up milk from farms which did not meet their terms of supply especially around environmental issues.

This amendment bill to increase environmental accountability on the dairy industry was supported by a group called Lawyers for Climate Action NZ. This 300-strong national group had also thrown their support behind the Government's new regulations to improve freshwater quality.

Recently, they have taken the Climate Change Commission to the High Court arguing its recommendations to the Government was too conservative to meet the Paris Agreement on emission levels.

This is the latest in the number of climate change issues ending up before the courts.

In 2020, Thames Coromandel Council refused to sign the Climate Change Declaration organised by Local Government NZ. The Hauraki Coromandel Climate Action took this to the High Court and won forcing council to reverse its stance. In another significant case, a number of Hawke's Bay councils created a highly commended joint report titled "Responding to Rising Seas".

But soon, the bickering between the councils on who should pay for adaptation works saw a retired High Court judge commissioned to provide legal guidance. His report put the legal responsibility squarely on the regional council. This should frighten regional councils across the country.

In March 2019, Local Government NZ had commissioned a report from Jack Hodder QC. His international research and report warned that in the absence of government leadership in providing a legislative framework on adaptation, individuals and communities were taking their issues to the courts. And the courts will end up creating via case law an ad hoc adaptation policy.

The above examples are clear indicators it will start to happen in NZ. The late David Cull, president of LGNZ, reacting to the Hodder Report, noted that councils are caught in a tough position. On the one hand there is no legislative framework to support decisions that reflect climate change risks. On the other, ratepayers, through their councils, potentially faced significant costs through legal action by not adequately factoring climate change risks into decision making that subsequently result in physical or economic harm. In other words, local authorities have been left operating in grey areas.

The third piece of the current RMA review, the Climate Change Adaption Act, is not due for another two years.

Speaking in Nelson recently, Climate Commissioner Dr Judy Lawrence, said while we change the RMA, there will be a hiatus between now and then because it won't be in effect for "probably ... my guess would be 10 years". "There needed to be an agreement between Government and local government about how adaptation would be paid for and by whom with creative solutions required for funding," she said.

A question from the audience asked Dr Lawrence what people can do to ensure climate change does not become a political football. Good question. There are some on the Kāpiti Coast who like nothing better than to turn this into political football.