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Home / New Zealand

QC: Councils at risk of lawsuits over climate inaction

Jamie Morton
By Jamie Morton
Multimedia Journalist·NZ Herald·
27 Mar, 2019 04:00 PM5 mins to read

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Councils may face lawsuits if the Government doesn't help them prepare for climate change, a leading QC says. Photo / File

Councils may face lawsuits if the Government doesn't help them prepare for climate change, a leading QC says. Photo / File

Councils could soon face lawsuits from angry ratepayers if the Government doesn't set clear rules to help them manage climate change risks, a leading lawyer says.

Lobby group Local Government New Zealand (LGNZ) commissioned Jack Hodder QC to look at the legal risks that councils faced by either recognising or ignoring the threat of climate change in their decision-making.

He found a growing number of cases brought by frustrated communities and individuals around the world, and concluded it was only a matter of time before similar actions were taken here.

One such case, by Hamilton woman Sarah Thomson, had already been brought against the previous National-led government.

Although her bid to seek a judicial review was dismissed by a High Court judge, it opened the door to future challenges.

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A key risk raised by Hodder's report was the absence of national climate change adaptation guidance in New Zealand, effectively leaving it to the courts to decide how to remedy climate change-related harms.

Hodder said it was possible to think that major cases like those brought overseas could not succeed here.

New Zealand had a "healthy judicial respect for parliamentary sovereignty" and its common law rules on negligence created major problems for climate change litigants who sought to establish a private law duty of care, or causation.

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"Nevertheless, there are local indications that, in some form, climate change litigation will get real traction."

He cited the Thomson case, along with 2013's Buller Coal case, in which the Supreme Court held that the Resource Management Act directed central, although not local government, to address global climate change issues.

But he also noted the leaky building cases, in which courts found clear signs in the Building Act that territorial authorities essentially had a duty of care owed to home and building owners - now and in the future.

"The strengthening consensus on anthropogenic climate change and its adverse consequences indicates issues which in some cases will materialise only over decades," Hodder said.

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"And there are many interests in play: owners and users of private assets; those undertaking local use changes and developments; insurers; publicly owned assets; central government and taxpayers; local government and ratepayers.

"If major climate litigation, involving large monetary claims, does occur in future years, it will involve an ad hoc inquiry into fault and apportionment of responsibility for any one or more of thousands of exercises of statutory powers, or alleged failures to exercise such powers."

That made the need for new national standards or legislation obvious, Hodder said.

He concluded: "The political and economic ramifications and difficulty of handling the risks which climate litigation would bring – and reflect – may also deserve the label 'super wicked'.

"But it seems to me that doing nothing requires a surprising level of bravery."

LGNZ president and Dunedin Mayor Dave Cull noted that Hodder's report shone "a vital spotlight" on the tough position councils were in.

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On one hand, there was no legislative framework to support decisions that reflected climate change risks.

On the other, ratepayers – through councils – potentially faced significant costs through legal action by not adequately factoring climate risks into their decision-making, which subsequently resulted in physical or economic harm.

"Without a national climate change adaptation framework, councils are in a grey area when working out how to protect their communities," Cull said.

"LGNZ engaged Mr Hodder to give councils a better understanding of their climate change litigation risks when operating in this grey area, and what could happen if the courts start setting legal precedents rather than the government."

Without the appropriate national standards and legislation, Cull said, the Government was at risk of allowing a situation where the courts would develop legal rules, which could likely result in ever-changing requirements and tensions.

"To the Government's credit it has started to focus on the problem, thanks to the efforts of Climate Change Minister James Shaw, but we need more action in the adaptation policy space, and urgently," Cull said.

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"A stark truth that we have to accept is that New Zealand is a climate-taker, not a climate-maker.

"While we have a clear duty to do our part to reduce our carbon emissions, New Zealand accounts for less than 0.2 per cent of global emissions, which means whatever our efforts in the mitigation space we will not move the dial in any meaningful way."

"What we are certain of is that we will bear the effects of a warming global climate in New Zealand, which we're seeing already."

One new Auckland Council report notable revealed how more than 43,000 Aucklanders were directly threatened by rising seas, prompting warnings that home insurers may be forced in future to hike prices - or withdraw coverage altogether.

"Unfortunately adaptation policy has not received the same attention as mitigation measures," Cull said.

"Mr Hodder's report makes it clear that these two areas need to receive equal attention from central government at a minimum."

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Earlier this year, Local Government New Zealand revealed $14 billion of ratepayer-owned infrastructure was at risk of climate change and called for a national adaptation fund, a new risk agency and a state-led review to give councils more clarity.

Shaw has said he was "acutely aware" of the impacts sea level rise could have on coastal communities.

The Government was already developing a new "risk assessment system" to help communities prepare and give guidance on how financial costs should be shared.

Under present projections, the sea level around New Zealand is expected to rise between 30cm and 100cm this century.

Temperatures could also increase by several degrees by 2100.

Climate change would bring more floods; worsen freshwater problems and put more pressure on rivers and lakes; acidify our oceans; put even more species at risk and bring problems from the rest of the world.

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Climate change was also expected to result in more large storms compounding the effects of sea-level rise.

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