New Zealand

CRIN would like to express our profound gratitude to our external reviewer, Dr Elizabeth Macpherson, Associate Professor of Natural Resources and Environmental Law, University of Canterbury Faculty of Law, for their comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

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I. National legal protections

A. Are environmental rights protected within the national constitution?

New Zealand does not have a written, codified in a single document, ‘national constitution’. Instead, New Zealand’s constitution is drawn from a number of sources, including crucial pieces of legislation, common law derived from court decisions, and established constitutional practices (known as ‘Conventions’).¹ There is no technical difference between ordinary statutes and law considered as ‘constitutional law’, which makes it difficult to identify precise constitutional principles.

Many of the more prominent sources of New Zealand’s Constitution (such as, for example, the Imperial Laws Application Act 1988² and the Bill of Rights Act 1990)³ make no reference to environmental rights. The Treaty of Waitangi, which is increasingly viewed as a founding document of government and Constitution in New Zealand, does not directly refer to environmental rights. However, a great number of environmental gains in New Zealand have been made with reference to the Treaty. The Treaty protects the Lands, Forests and Fisheries of Māori and the Māori version (Te Tiriti o Waitangi) uses the words tino rangatiratanga, meaning chiefly right of unqualified political authority, over their lands, villages and all their treasures (see part I.D).⁴

Support for codifying New Zealand’s Constitution has grown over the past few years, and this is important because environmental protections are expected to be a prominent feature of such a document. In a report by the Constitutional Advisory Panel on the Constitution in 2013, natural environment and resources preservation and protection was a strong theme, with some suggesting that the Bill of Rights Act 1990 should be amended to reflect environmental goals. Others suggested that obligations should be placed on the State to protect Papatūānuku (Mother Earth), referring to environmental protection as part of a right to intergenerational equity.⁵

Furthermore, in 2016 Geoffrey Palmer and Andrew Butler proposed the Constitution Aotearoa, which would codify New Zealand’s Constitution into a single document. Their proposal adds environmental rights to the New Zealand Bill of Rights Act 1990 to include the rights “to an environment that is not harmful” and “to have the environment protected, for the benefit of present and future generations”.⁶

New Zealand has also ratified various international environment treaties: including, the UN Convention on the Law of the Sea (UNCLOS), in July 1996, and the Convention on Biological Diversity (CBD), in December 1993.⁷ New Zealand also endorsed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2010. In New Zealand, implementation of international treaty obligations into domestic law only occurs if national legislation provides for such implementation.⁸ Nevertheless, all international law is an aid to interpretation in New Zealand.⁹ The courts have relied on international law in its judgements on landmark environmental cases. One of these, recently, is the Trans-Tasman Resources v Taranaki-Whanganui Conservation Board.¹⁰ In this case, Trans-Tasman Resources submitted an application under New Zealand’s Exclusive Economic Zone (EEZ) Act for consent to extract and process iron ore in the seabed of the South Taranaki Coast. The Supreme Court confirmed an “environmental bottom line” approach, suggesting the kinds of measures States should implement in order to comply with obligations towards seabed mining in international law.¹¹ This case suggests a growing desire to rely on international treaties and obligations to provide a baseline level of protection of environmental rights in New Zealand.

New Zealand has also ratified the UN Convention on the Rights of the Child (UNCRC) on 6 April 1993 and, similarly, the courts have preferred to interpret domestic legislation in a way that was consistent with New Zealand’s international obligations under the CRC, providing a set of principles which decision-makers must consider.¹²

B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

As mentioned in Section I.A, Constitutional rights protections with regards to environmental issues are difficult to precisely identify, and the lack of a written Constitution hinders the national courts’ ability to constrain exercises of power by other branches of government.¹³

New Zealand’s narrow interpretation of the separation of powers doctrine means that judicial discretion is usually restricted in favour of parliamentary sovereignty. To act in accordance with the separation of powers doctrine, the Courts avoid interfering with public policy, unless it is essential in order to protect highly significant legal interests.

For example, Lawson v Housing New Zealand, 1997 was an unsuccessful challenge to the government’s policy of charging market rents for state housing. The Plaintiff (Mrs Joan Lawson) brought the challenge as she and her husband, Thomas, faced eviction from the state house they lived in for decades because they were unable to meet the increased rent. She asserted that HNZ had failed to have proper regard to the interests of the community (as required by section 4 of the Housing Restructuring Act 1992) and that charging market rents without regard to the impact on living standards was in breach of her right to life under section 8 of the New Zealand Bill of Rights Act 1990.¹⁴ The High Court ruled that the policy of market rents was not able to be challenged by judicial review and an associated assurance that no one would lose their house was similarly not enforceable. Human rights and international law obligations which touched on the adequacy of housing also did not prevent the move to market rents.

Although this case does not relate to the right to live in a healthy and ecologically-responsible environment, commentators have deduced from this case that it is unlikely that section 8 would be interpreted so widely as to include such an indirect threat to life as allowing the continuation and escalation of climate change through the regulation, or lack thereof, of GHG emissions.¹⁵

In the context of climate change, the courts have shown a similar disposition to leave all decision making to Parliament as a policy consideration (e.g. in West Coast Ent Inc v Buller Coal Ltd).¹⁶ Indeed, there have been some attempts in the national courts to interpret provisions from key pieces of ‘constitutional’ legislation widely enough in the national courts so as to encompass environmental protections - but these have been unsuccessful.

That said, there is an increasing number of climate change litigation cases brought to the courts.¹⁷

Huakina Development Trust v Waikato Valley Authority, 1987:¹⁸ The Bowaters bought a dairy farm in 1985 where the previous owners had discharged untreated dairy water waste into a stream that feeds into the Waikato River. The Bowaters' request to build a pond to treat the water in accordance with the requirements specified by the Ministry of Agriculture and Fisheries was approved by the Waikato Valley Authority shortly after the purchase. Only the Huakina Development Trust ("The Trust'') opposed the application to the Waikato Valley Authority, objecting to the grant's set time limit, number of permitted discharges, and treatment requirements, and filed an appeal with the Planning Tribunal, claiming that the Authority had not sufficiently taken into account the magnitude of the contamination to the physical and spiritual sustenance of the treasured tribal resource. After the Planning Tribunal rejected the appeal, a 10-year water right was granted with the right to discharge treated dairy shed waste and water up to 7.5 cubic metres per day to an unidentified tributary of the Kopuera Stream, subject to certain restrictions. The Planning Tribunal was assigned the case again after the Trust's appeal to the High Court was partially upheld. This was the first case to explicitly require the Treaty of Waitangi (see part I.D) to be taken into account in decision-making. Particularly, the Court held that “[t]here can be no doubt that the Treaty [of Waitangi] is part of the fabric of New Zealand society. It follows that it is part of the context in which legislation which impinges upon its principles is to be interpreted.”¹⁹ Tom Bennion, former registrar of the Waitangi Tribunal, described this decision as “a marker, a significant new structure sticking out in the legal landscape, indicating the shape of arguments to come.”²⁰

When compared to other legal systems that are "trying to reconcile with their Indigenous peoples," Jacinta Ruru, academic and first Māori professor of law, contends that New Zealand's modern Treaty jurisprudence is in many ways expansive.²¹ However, she affirms that the cases show failed opportunities to modify the Resource Management Act 1991 (RMA) (see part I.D) procedures in new, creative ways.²²

In the context of the Treaty of Waitangi, in Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation (2018),²³ the Court examined the Department of Conservation (DOC)’s consideration of Treaty principles in the granting of two commercial tour concessions on Rangitoto and Motutapu Islands.²⁴ The decision made it clear that, in some circumstances, the DOC must take into account the prospect of giving iwi a degree of preference as well as any potential economic benefits that could result from doing so.²⁵ The ruling is relevant, among others, because it emphasises the fundamental relevance of Treaty of Waitangi principles in the Conservation Act of 1987's statutory framework.²⁶ As per the DOC, the ruling shows the need to carefully explore the potential partnerships with iwi/Māori for the achievement of conservation goals.²⁷

Thompson v Minister for Climate Change issues, 2017:²⁸ Sarah Thompson, a law student, challenged two decisions of the former Minister for Climate Change Issues alleging that the Minister had failed in several respects regarding the setting of greenhouse gas emissions reduction targets required by New Zealand’s Climate Change Response Act of 2002. The High Court confirmed that the Minister should have reviewed the target and that it was appropriate for domestic courts to scrutinise Government decision making about climate change policy.²⁹ This case has been seen as a move away from the courts’ traditional reluctance to intervene in matters of public policy.³⁰

Hauraki Coromandel Climate Change Action Inc v Thames-Coromandel District Council, 2020:³¹ the Local Government Leaders’ Climate Change Declaration, signed by mayors and regional council chairs, was not approved by the District Council because of its potential legal and financial implications. The Court directed the Council to reconsider its decision. Commentators highlighted that this will have significant effects on the way that local government and non-governmental organisations operate when making decisions relating to climate change.³²

Trans-Tasman Resources Limited v The Taranaki-Whanganui Conservation Board, 2021:³³ Trans-Tasman Resources Limited (TTR) applied for marine consents and marine discharge consents in 2013, under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, to give effect to its Minerals Mining Permit under the Crown Minerals Act 1991 to mine iron sands in an area of the South Taranaki Bight. This application was declined and TTR filed a second application in 2016, which was granted in 2017. Rūnanga o Ngāti Ruanui Trust, Te Kaahui o Ngaa Rauru, Te Ohu Kaimoana and others appealed this decision and the High Court upheld it. TTR appealed the High Court decision to the Court of Appeal, which dismissed the appeal, and, subsequently, the TTR appealed to the Supreme Court (SC). As stated above in Section I.A, the SC unanimously dismissed the appeal and ruled that s.10(1)(b) creates an environmental bottom line as its effect was to provide an operative restriction on marine discharges and dumping such that if the environment could not be protected from pollution through regulation, then the discharges or dumping had to be prohibited. The Court also addressed the approach to the Treaty of Waitangi clause in s.12 of the Act, holding that an expansive interpretation was required and that “an intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear”.³⁴

Smith v Fonterra Co-operative Group Ltd, (ongoing):³⁵ this case was brought by Michael Smith, of Ngāpuhi and Ngāti Kahu descent, against seven corporate defendants in relation to their emissions activities that have contributed to dangerous anthropogenic interference with the climate system and to the adverse effects of climate change. The High Court struck out the first two claims (nuisance and negligence), but allowed the third to proceed, which related to Mr Smith’s allegation that the defendants had a duty to cease contributing to climate change.³⁶ The court concluded that Mr Smith could not demonstrate public nuisance because the damage claimed was neither particular to him, nor the direct consequence of the defendants’ actions. As for the negligence claim, the court refused it because it found Mr Smith had not shown that the defendants owed him a duty of care. Mr Smith appealed the decision to strike out the first two claims, while the defendants cross-appealed the decision to allow the third claim to proceed to trial. In October 2021, the Court of Appeal dismissed the appeal submitted by Mr Smith and upheld the cross appeal.³⁷ The court held that tort law was not the appropriate vehicle for dealing with climate change. Commentators concluded that although the courts had “shut the door” on climate change-related tort claims, new claims could still be expected.³⁸ In March 2022, following an application by Mr Smith, the Supreme Court of New Zealand granted him leave to appeal on the question of whether the Court of Appeal was correct to dismiss the appeal and allow the cross appeal.³⁹

The High Court has also heard several cases related to wind farms. In Unison Networks Ltd. v. Hastings District Council,⁴⁰ 2007, citizen groups challenged the granting of resource consents to Unison Networks Limited to construct and operate a wind farm. The Environment Court allowed the appeal and concluded that the proposal did not comply with the Resource Management Act because the proposed project would have significant adverse effects on an outstanding natural landscape.⁴¹ Unison Networks appealed the court’s decision. The High Court found no error as a matter of law and dismissed the appeal. In Outstanding Landscape Protection Society Inc. v Hastings District Council, 2007, the Environment court already concluded that the adverse landscape impacts and associated cultural values outweighed the advantages derived from the generation of renewable electricity and reduced greenhouse gas emissions.⁴²

Greenpeace New Zealand has been an active player in climate change litigation. In Greenpeace New Zealand v. Northland Regional Council, 2007,⁴³ the High Court ruled in favour of Greenpeace holding that climate change was a relevant consideration in the government’s consent of greenhouse gas discharge from a proposed coal-fired power station.⁴⁴ However, in Greenpeace New Zealand Inc. v. Genesis Power Ltd, 2008, the appeal was dismissed.⁴⁵

Mataatua District Māori Council v. New Zealand (still pending): in 2016, representatives of the Mataatua District Māori Council brought a complaint before the Waitangi Tribunal, alleging that New Zealand has breached its obligations to the Māori by failing to implement policies that address climate change. The claimants point out that provisions of the Waitangi Treaty make the government responsible for the active protection of natural resources such as forests and fisheries on behalf of the Māori. They affirm that New Zealand’s Nationally Determined Contribution, submitted following the Paris Climate Conference in 2015, committed the country to reduce emissions by 11% relative to 1990 levels by 2030. It contrasts this target with the increase of GHG emissions in New Zealand of 24.1% relative to their 1990 levels by 2015 and the current expectation that they will increase to 30% by 2020. In addition, the claimants highlight that the government encourages oil and gas exploration, and controls an entity that mines coal and another entity responsible for much of the recent conversion of forests to dairy farms.⁴⁶

C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

Many commentators argue that the national courts in New Zealand have failed to adequately consider the needs of future generations and how best to provide for them in decision-making on environmental matters.⁴⁷ The concept of intergenerational equity has rarely been applied in recent decisions of the national courts, and the cases where it has been invoked often ended unsuccessfully.

Thomson v The Minister for Climate Change Issues, 2017: Sarah Thomson initiated judicial review proceedings concerning the Government’s response to climate change. Ms Thomson considered the response insufficient in the light of New Zealand’s obligations under international law, and one of the causes of action in this case included “failing to take into account intergenerational equity… [given that] delaying action now imposes unfair costs on future generations”.⁴⁸ The claims were eventually dismissed.

However, as mentioned in Section I.A, environmental rights may benefit from constitutional protection in the future, with a particular focus on the needs of future generations as questions of intergenerational fairness are more frequent.⁴⁹

It is worth noting that there is alignment between the concept of intergenerational equity and Māori law and custom (tikanga Māori). This is evident in the iwi (tribal) and government climate strategies, which emphasise the preservation and protection of the resources of future generations and present the intergenerational perspective as an essential one.⁵⁰

D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

Legislation is in place to regulate environmental protection. The main texts are:

The Forests Act 1949 (‘Forests Act’), which applies only to indigenous forest land – i.e. native forests on private land, covering the harvesting, milling, and exporting of native timber from existing or regenerating native forest.⁵¹ It focuses on managing forests ‘sustainably’, and defines sustainable forest management as: “the management of an area of indigenous forest land in a way that maintains the ability of the forest on that land to continue to provide a full range of products and amenities in perpetuity while maintaining the forest’s natural values”.⁵²

The Environment Act 1986 (‘EA’): The EA established the Ministry for the Environment, and authorised appointment of the Parliamentary Commissioner for the Environment.⁵³

In addition, the EA also entrenched the Government’s commitment to include environmental issues as a key element in its policy-making. One of its objectives is to ensure that full account is taken of the following factors in the management of natural and physical resources:

• the intrinsic values of ecosystems;
• all values which are placed by individuals and groups on the quality of the environment;
• the principles of the Treaty of Waitangi;
• the sustainability of natural and physical resources; and
• the needs of future generations.

The Conservation Act 1987 (‘CA’) is New Zealand’s principal act concerning the conservation of indigenous biodiversity.⁵⁵ It established the Department of Conservation (‘DoC’), and defines its mandate for managing and promoting the conservation of natural and historic resources on Crown-owned land. These resources include plants and animals; the air, water and soil they live upon or within; landscapes and landforms; and historic resources as defined under the Historic Places Act 1980.⁵⁶

Any management strategies and plans created under the CA have the overriding principle of “protection”, which contracts the RMA’s overriding purpose of “sustainable management” (see below). The CA has undergone a variety of amendments over recent years, most recently through the Conservation Amendment Act 2013⁵⁷ and the Conservation (Indigenous Freshwater Fish) Amendment Act 2019.⁵⁸

Conservation laws in New Zealand have received considerable criticism, including allegations that there are too many “outdated, confusing, and inconsistent rules”⁵⁹ and the system they created does not correspond to current values and priorities, which have evolved over time. To date, public participation in developing this system has primarily taken the form of either written submissions or participation in public meetings.⁶⁰ Requirements for this form of participation are embedded in significant legislation, including the Conservation Act 1987. The Act requires that the conservation plans and policies that shape the activities of the DoC be publicly disclosed and that public submissions to the Director-General are presented.⁶¹ However, scholars have deemed this as a limited kind of public participation.⁶² Māori have also demanded a greater say, but existing regulations have weak provisions for “Treaty-based iwi co-governance”.⁶³ In 2018, the Supreme Court stressed the need of the DoC to consider more actively the role of iwi/Māori in the delivery of conservation outcomes.⁶⁴ Critics affirm that important legislation such as the Marine Reserves Act of 1971 is completely outdated.⁶⁵

The Resource Management Act 1991 (‘RMA’) is the main piece of legislation governing the management of the environment and natural resources in New Zealand.⁶⁶ It establishes an integrated framework that has replaced a variety of resource-use regimes previously fragmented between agencies and sectors.⁶⁷ The RMA also recognises the treaty of Waitangi in decision making.

The single, overarching purpose of the RMA is to promote the “sustainable management” of natural and physical resources. Section 5 of the RMA defines this term as:

“[M]anaging the use, development and protection of natural and physical resources in a way, or at a rate which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystem; and (c) Avoiding, remedying or mitigating any adverse effects of activities on the environment”.

Part 2 of the RMA also introduces three principles in order to achieve the purpose of the act:

• Section 6 lists matters of national importance that shall be “recognised and provided for” in achieving the purpose of the RMA, such as outstanding natural landscapes, vegetation and the natural character of the coastal environment.
• Section 7 lists matters that all decisions “shall have particular regard to” in achieving the purpose of the RMA, including Kaitiakitanga, efficiency of the end use of energy, the quality of the environment and climate change.
• Section 8 states that in achieving the purpose of the RMA, “account shall be taken” of the principles of the Treaty of Waitangi.

Beyond its overarching guide on what is best for the environment, the RMA allows communities to make decisions on environmental management through regional and district management plans. Decisions on resource consents are made with consideration to these plans.⁶⁸

Regional Councils have a key role under the RMA, including preparation of regional policy statements and regional plans and monitoring of the state of the environment of the region, the efficiency and effectiveness of policies and methods in policy statements and plans and the exercise of resource consents within the region. There are currently 11 Regional Councils. As mentioned in part I.C, there is a wide range of emerging climate policies at iwi Māori (tribal) level. Several have developed intergenerational climate strategies, such as the Te Rūnanga o Ngāi Tahu Climate Change Strategy, the Te Ara ki Kōpū Te Arawa Climate Change Strategy and the Whanganui Climate Change Strategy.⁶⁹ The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which recognises the river as a legal person, is referenced in the climate strategy of the Whanganui District Council. Additionally, at a national level, the central government recently unveiled its national work programme focused on climate adaptation and emissions reduction plans.⁷⁰

The RMA has been subject to many criticisms for not protecting the environment enough, allowing for the loss of indigenous biodiversity and the degradation of waterways, and also due to the complexity of its procedures, which make the development of the law difficult.⁷¹ It has since undergone various amendments, such as through the Resource Legislation Amendment Act 2017.⁷² As part of planning for economic recovery following COVID-19, the Minister for the Environment announced on 3 May 2020 that the Government would amend the law to allow fast-tracking of selected projects through the RMA.⁷³ This has taken the form of the COVID-19 Recovery (Fast-track Consenting) Act 2020, which came into effect 9 July 2020.⁷⁴ The RMA underwent an independent review and the government, based on the findings, is planning to enact three new pieces of legislation to replace it: the Natural and Built Environments Act and the Spatial Planning Act, both introduced to Parliament in 2022, and the Climate Adaptation Act, which is expected to be introduced in 2023.⁷⁵

• Natural and Built Environment Act (NBA). It will be the main legislation to replace the RMA and, like the law that precedes it, it will be an integrated statute for land use and environmental protection. Te Oranga o Te Taiao, a notion taken from te ao Mori, is presented by the Government as essential to the NBA's goals.⁷⁶ It is a transgenerational ethic that emphasises the value of the environment’s (te taiao) health and wellbeing for both the present and the future.⁷⁷ The NBA will require any use of the environment to comply with the environmental limits and targets provided by the National Planning Framework, a key element, and will also set out how the environment is to be protected and enhanced. As stated by the Government, this system is also expected to improve the recognition of Te Ao Māori (the Māori world) and Te Tiriti o Waitangi (Waitangi Treaty).⁷⁸

• Spatial Planning Act. According to the Government, it “will provide a more strategic and coordinated approach to long-term regional planning” and “will integrate with the NBA and other legislation” (such as the Local Government Act 2002, the Land Transport Management Act 2003 and the Climate Change Response Act 2002). It will require regional spatial strategies in order to develop the spatial planning at the regional level.⁸⁰

The Hazardous Substances and New Organisms Act 1996 (‘HSNOA’):⁸¹ The purpose of the HSNOA is to protect the environment, the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms. There are 22 regulations under the HSNOA, covering various controls including fireworks and the packaging and transport of new organisms.⁸² Under the HSNOA, a “hazardous substance” is any substance that meets or exceeds the threshold level specified in the Hazardous Substances (Minimum Degree of Hazard) Notice 2017,⁸³ for any of the following hazardous properties, including: explosiveness, flammability, ability to oxidise, corrosiveness, toxicity (including chronic toxicity), and ecotoxicity (with or without bioaccumulation).⁸⁴

The HSNOA also established the Environmental Risk Management Authority (now the Environmental Protection Authority, ‘EPA’) to assess and decide on applications to introduce hazardous substances or new organisms into New Zealand. The EPA is a Crown Agent established under the Environmental Protection Authority Act 2011. The Act helps the Government achieve its goal of growing the economy, while effectively protecting the natural environment. The EPA reports to the Minister for the Environment and the Minister for Climate Change on issues relevant to their portfolios. The Ministry for the Environment monitors the EPA’s activities and is the Government's principal advisor on environmental policy and legislation.

Amongst other amendments, the HSNOA has most recently been amended by the Hazardous Substances and New Organisms (Schedules 1AA and 2A) Order 2016,⁸⁵ and a number of the regulations under HSNOA were revoked in 2017, particularly with regard to workplace controls.

The Fisheries Act 1996 implements a system for ensuring the sustainability of New Zealand’s fishing resources.⁸⁶ It aims to provide for the use, conservation, enhancement and development of fisheries resources so that people can provide for their social, economic and cultural well-being, whilst also ensuring that the potential of those resources to meet the foreseeable needs of future generations is maintained. The Fisheries Act therefore incorporates sustainability as its underlying principle, meaning that the long-term viability of stocks for each species, the biological diversity of the aquatic environment, and human interests in using fishing resources are all considerations under the management system.⁸⁷

The Ozone Layer Protection Act 1996 (‘OLPA’)⁸⁸ implements New Zealand’s obligations under the Vienna Convention for the protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, together with the Ozone Layer protection regulations 1996.⁸⁹ The OLPA lays down various controls on ozone-depleting substances, and its provisions include:

• Prohibiting the import, manufacture, sale or export of such substances except as allowed under the Regulations;
• Allowing exemptions for essential uses, such as the import of CFCs for metered dose inhalers for asthma and related conditions;
• Allowing the Minister for the Environment to require that people handling ozone depleting substances develop codes of practice and/or know their obligations under the Act and have sufficient knowledge to be able to fulfil them;
• Making it an offence to breach the above prohibition or to release controlled substances knowingly during installation, servicing, operating or dismantling equipment; and
• Enabling the making of regulations to control ozone depleting substances.⁹⁰

The OLPA was most recently amended by the Ozone Layer Protection Amendment Act 2011.⁹¹

The Climate Change Response Act 2002 (‘CCRA’) establishes a legal framework to enable New Zealand to meet its international obligations under the UN Framework Convention on Climate Change and the Kyoto Protocol.⁹² It is administered by the Ministry for the Environment, and covers seven regulations and four orders which encompass general exemptions, fishing allocation plans, eligible industrial activities, removal activities, stationary energy and industrial processes, synthetic greenhouse gas levies, unique emissions factors, waste, forestry, and fossil fuels.⁹³

The CCRA was most recently amended by the Climate Change Response (Zero Carbon) Amendment Act 2019,⁹⁴ which provides a framework by which New Zealand can contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels, as well as prepare for the effects of climate change. In particular, it amends clause 4 to introduce new section 3(ab) to provide that the framework addresses the effects of climate change on human rights, including its economic, social, health, environmental, ecological, and cultural impacts. However, the country's performance in fulfilling its pledges has been assessed as "highly insufficient".⁹⁵

The Treaty of Waitangi (ToW or The Treaty) (1840) has been described by the Courts as “part of the fabric of New Zealand society” (see part I.B) and it has been considered of fundamental constitutional importance.⁹⁶ The treaty was intended to be a partnership between the Māori and the British Crown.⁹⁷

There is an English version and a Māori version of the Treaty, which are not exact translations of each other.⁹⁸ The preamble of the English version provides that the British intentions were to “protect Māori interests from the encroaching British settlement”, “provide for British settlement” and “establish a government to maintain peace and order”.⁹⁹ The English version of the Treaty also states that, Māori give the British Crown “absolutely and without reservation all the rights and powers of sovereignty” over their lands, but are guaranteed “undisturbed possession” of their lands, forests, fisheries, and other properties.

However, there is different emphasis in the Māori version of the Treaty, which provides that the Crown’s main promises to Māori were kawanatanga katoa (complete governorship) and tino rangatiratanga (self-governance) - “the unqualified exercise of chieftainship over their lands, dwelling places, and all other possessions”.¹⁰⁰ This discrepancy between translations and meanings underlies Māori protests.

The Waitangi Tribunal, which was established in 1975, is tasked with determining whether any act or omission by the Crown is contrary to the principles of the Treaty (see some of the relevant principles in Section II.A).¹⁰¹ From the moment the Treaty of Waitangi was signed, Governments breached the Treaty on multiple occasions.¹⁰² The Crown's recognition of such violations and the provision of remedies underpin the claim settlement process of the Treaty.¹⁰³ To settle breaches of the Treaty with Māori, the Crown has attempted to “identify Treaty breaches and those affected by them”, “find their spokespeople” and “negotiate a deed of settlement (a legal document) outlining the settlement, often including land, money, some form of cultural redress such as the restoration of Māori place names and a formal apology on behalf of the Crown”.¹⁰⁴ As of August 2018, 73 settlements had been passed into law, such as the Whanganui River Claims Settlement (Te Awa Tupua) Act 2017 and the Te Urewera Act 2014.¹⁰⁵

The origin of the Treaty and the process by which it was signed in various parts of New Zealand has been a source of considerable historical debate.¹⁰⁶ The Waitangi Tribunal elaborated a report which provides a full account of the first signings.¹⁰⁷

It is also worth mentioning the Reserves Act 1977, the National Parks Act 1980, the Marine Reserves Act 1971, the Marine Mammals Protection Act 1987 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. Moreover, several pieces of legislation refer to the Treaty of Waitangi such as the Conservation Act 1987, the RMA, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 and the Marine Act Customary Area (Takutai Moana) Act 2012.¹⁰⁸ In the Māori culture, the link to the use and management of natural resources is essential as “natural environment – whenua, waters, coasts, oceans, flora and fauna – and how we engage with it, is crucial to our identity, our sense of unique culture and our ongoing ability to keep our tikanga and mahinga kai practices alive”.¹⁰⁹

E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

At time of writing, there is not a national policy addressing exposure to toxic substances that deals with children specifically. Rather, the Environmental Protection Authority (‘EPA’) manages the standards set for toxic substances in New Zealand as well as what levels of exposure are considered dangerous. Primarily in accordance with the HSNOA (see above), when a toxic substance is approved for use (either under a group standard or individually), controls are put in place for their use so that the risks are managed, which can be found in EPA Notices, group standards and individual hazardous substance approvals. These often refer to Tolerable Exposure Limits and Environmental Exposure Limits in relation to each substance, which are set to protect human health and the environment respectively, and the former can be used as a reference point for determining “safe levels of exposure”.¹¹⁰

Nevertheless, there are specific laws and policies that also deal with exposure to certain toxic substances, some of which refer explicitly to childhood exposure. For example, when considering toxicity in relation to child-resistant packaging, reference is made to the Toxic Substances Regulations 1983 in determining unsafe doses of particular substances to children.¹¹¹ Also, in 2022, New Zealand passed the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act aimed at preventing children from becoming smokers, which includes a lifetime prohibition on cigarette sales to everyone born on or after 1 January 2009.¹¹²

F. Is the country equipped with pollutant release and transfer registers? If yes, do these registers take into account child specific factors regarding the substances for which data is gathered and the type of data generated?

New Zealand is not yet equipped with pollutant release and transfer registers (‘PRTR’). The OECD originally recommended that New Zealand should adopt such registers in 2007,¹¹³ and again in its review of New Zealand’s environmental performance in 2017.¹¹⁴ Moreover, on 5 April 2019, the Parliamentary Commissioner for the Environment wrote to the Minister and Associate Minister for the Environment suggesting that there be an independent assessment into the case for New Zealand developing PRTRs.¹¹⁵ This issue is still under governmental review.

G. Does the State assert extra-territorial jurisdiction for any environmental issues?

Certain New Zealand statutes permit the State to assert extra-territorial jurisdiction for environmental issues, although this is rarely directly. A prominent example can be found in the Maritime Transport Act 1994 (‘MTA’), where criminal proceedings can be brought for a number of offences that occurred beyond the territorial sea of New Zealand provided that they are commenced against: a New Zealand citizen, a person who is ordinarily resident in New Zealand, or any other person with the consent of the Attorney-General on his or her certificate that it is expedient that they be commenced. Such offences relate to the pollution of the marine environment as well as the use of hazardous ships, structures and offshore operations.¹¹⁶

Additionally, Section 8 of the Crimes Act 1961 allows the State to assert extra-territorial jurisdiction in respect of crimes on ships or aircraft in three cases:

• where the act or omission occurs on board a Commonwealth ship;
• where the offender is a British subject on board any foreign ship, to which they do not belong, on the high seas; or
• where the offender arrives in New Zealand in the course of or at the end of a journey during which the offence was committed.¹¹⁷

Although the offences under the Crimes Act 1961 primarily relate to civil unrest or acts of terrorism, this can be applied to environmental protests occurring on board ships, and so the provisions of this Act could be applied through an environmental lens. However, commentators have highlighted problems with applying the provisions of this Act to such protestors. For example, whilst the provisions above refer to crimes committed “on board” a ship, the occasional tactic of protesters to jump into the water to attempt to divert fishing vessels potentially circumvents this requirement.¹¹⁸

II. Accessing courts

A. How can environmental cases be brought before national courts?

Part 11, section 247 of The Resource Management Act (‘RMA’) established a ‘court of record’ called the Environment Court, which consists of Environment Judges and Planning Commissioners. The Court is able to make its own findings of law, fact and policy on matters relating to environmental protection. The Environment Court is required to consider a mix of values when making decisions, many of which arise out of international environmental discourse about matters such as sustainability, intergenerational equity, and ecological diversity.

The Environment Court has both criminal and civil jurisdiction and has wide powers to issue enforcement orders under the RMA. “Any person” may apply to the Court for an enforcement order for numerous reasons, including the following:

• to enjoin a person from taking any actions that contravene any provisions of the RMA, any regulations, any rules in regional or district plans, or any resource consents;
• to enjoin a person from any action that “is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment”;
• to require a person affirmatively to act to ensure compliance with the RMA’s various provisions and instruments or to avoid, remedy, or mitigate any adverse effects on the environment caused by or on behalf of that person; and
• to compensate others for reasonable costs associated with avoiding, remedying or mitigating effects caused by a person’s failure to comply with one of several instruments, including rules in plans or resource consents. In addition, a local authority may also apply for enforcement orders in some additional circumstances.¹¹⁹

The far-reaching power to issue enforcement orders is a powerful mechanism to enforce statutory duties arising under the RMA, particularly the general duty under Section 17 to avoid, remedy or mitigate any adverse environmental effects. Whether or not to issue an enforcement order is a matter of discretion for the Environment Court. The burden rests upon an applicant to make the case for an enforcement order and the Court will give the benefit of doubt to the person against whom the order is sought.¹²⁰

To lodge an appeal, the applicant or their representative must sign the prescribed form and include a copy of the appeal or application. They must lodge these with the correct office of the Environment Court, and also with the council that made the decision and any submitters on the application, within the timeframe specified by the RMA. This is referred to as the council being served.¹²¹

The applicant must provide all the details required on the prescribed form, including the reasons for the appeal, the specific parts of the decision and why, and the outcome that the applicant seeks. The form also specifies the documentation that needs to be included with the notice of appeal; for example, a copy of the decision that the applicant is appealing, and any submissions made during the council process.¹²²

In reality, many planning cases that arise are heard by the Planning Commissioners who are based with regional councils. Often, planning cases are only heard in the Environment Court on appeal. Other environmental cases typically go straight to the High Court (for example, Judicial Review cases), and then on appeal to the Court of Appeal and Supreme Court. However, even when cases are heard by the High Court in the first instance, the High Court has tended to defer to the Environment Court when applying the principles of sustainability, intergenerational equity, and ecological diversity in judicial decisions.¹²³

Furthermore, most civil and criminal actions commence in the District Court. District Courts have the power to hear civil claims involving amounts up to $200,000. Civil cases involving amounts greater than $200,000 must be heard in the High Court. To initiate a civil proceeding in the District Court, the applicant will have to complete, file and serve on the other parties a Notice of Claim. District Courts generally hear minor criminal offences, but can also hear criminal trials for some serious offences, such as rape. Criminal proceedings in the District Court may be commenced in a number of ways under the Criminal Disclosure Act 2008 by the police or Crown Prosecutor.¹²⁴

The Human Rights Review Tribunal can also issue a number of remedies to complainants for breaches of the Human Rights Act (‘HRA’) 1993, including:

• a declaration that a breach of the HRA 1993 has occurred;
• an order requiring the defendant to act or cease to act in a certain way;
• damages; and
• a declaration that a piece of legislation is inconsistent with the New Zealand Bill of Rights Act 1990 (and, therefore, a breach of Part 1A of the HRA 1993). Where a declaration of inconsistency is made, the Government is required to prepare a report to Parliament setting out what it intends to do in response to the declaration.¹²⁵

For Māori people, it is also possible to submit a claim before the Waitangi Tribunal against an ordinance, Act or regulation, order, proclamation, notice or other statutory instrument, or policy or practice, or an act or omission of the Crown, which is inconsistent with the principles of the Treaty of Waitangi.¹²⁶

Relevant principles are: “(a) the primary duty of a tribunal charged with interpreting a treaty is to give effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of surrounding circumstances; (b) it is necessary to bear in mind the overall aim and purpose of the treaty; (c) in relation to bilingual treaties neither text is superior; (d) given that almost all Māori signatories signed the Māori text, considerable weight should be given to that version; (e) the contra proferentem rule that in the event of ambiguity such a provision should be construed against the party which drafted or proposed that provision (in this case the Crown) applies; (f) the United States Supreme Court ‘indulgent rule’ that treaties with indigenous people (American Indians) should be construed ‘in the sense which they would naturally be understood by Indians’ supports the principle (d) above; (g) treaties should be interpreted in the spirit in which they were drawn taking into account the surrounding circumstances and any declared or apparent objects and purposes.”¹²⁷

B. What rules of standing apply in environmental cases?

The Resource Management Act (‘RMA’) promotes public participation in environmental decision-making by eliminating restrictive rules of standing in both administrative and judicial fora. The RMA permits any member of the public to make submissions to local, regional or national entities regarding policy statements, plans, and notified resource consents. In Environment Courts, any person having an interest greater than the public generally and representing some relevant aspect of the public interest may participate in court proceedings, although the right to initiate an appeal is limited to those having made a submission to the first-instance decision maker.¹²⁸

In the ordinary courts, New Zealand has broad public interest standing. A claimant may bring a claim on behalf of a “class” if all members of the class share the “same interest” in the subject matter of the proceedings. The threshold for “same interest” is low and requires the representative claimant to establish three things: firstly, that there are issues of fact or law that are common to all members, secondly, that the representative group is capable of clear definition and finally, that the nominated representative claimant fairly and adequately represents the group. The New Zealand courts have generally shown a degree of flexibility and leniency in its approach to standing for class actions.¹²⁹

It is also possible for one or more people or an organisation to sue on behalf of a group of people with the same interest in the subject matter of a proceeding provided that the person with the same interest has given consent and an application has been made to the court by the intending party to the proceeding. NGOs or public interest groups may have standing to bring human rights proceedings on behalf of a class of people. Thus, it is possible that an NGO may have standing to bring a claim involving a violation of children’s rights, including a class action claim.¹³⁰

Furthermore, an applicant may also bring a judicial review claim without the need to prove standing in terms of being “directly affected”. This is usually via judicial review writs rather than ‘suing’ in the context of civil litigation.

C. Do these rules of standing differ when children are the complainants and if so in what way?

Generally, the presence of a litigation guardian is required to instigate proceedings.¹³¹

D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

The plaintiff shoulders the burden of proof; thereby leaving the negligent defendant to benefit from possible factual uncertainty.

The standard of proof in civil matters is that, on the balance of probabilities, the breach of duty caused or materially contributed to the injury. If the plaintiff is unable to establish this, then they must prove that “but for” the negligence, the injury would not have been sustained.¹³²

The standard of proof for criminal liability is generally beyond reasonable doubt.¹³³

E. What limitation periods apply in environmental cases?

In September 2019, the timeframe for enforcement under the RMA was extended from six-month statutory limitation period to 12 months in which charges need to be filed for certain offences.¹³⁴

In civil proceedings, there is a general six year limitation period for bringing an action or claim, according to the Limitation Act 2010.

In criminal proceedings, there is no general statute of limitation. Limitation periods are set down in the Crimes Act 1961 and the Summary Proceedings Act 1957 for specific types of offences:

• For offences that may only be dealt with summarily, unless specific provision is made to the contrary, the information must be laid within six months from the time the “matter of the information arose”.
• For offences punishable by less than three years imprisonment or a fine of less than $2,000, whether summary or indictable, a 10 year limitation period applies, unless a shorter period of limitation has been specified by statute.
• For greater penalties than these, unless there is specific provision about an offence in its own statute, no limitation period applies.¹³⁵

F. Is legal aid available in environmental cases? If so, under what circumstances?

The Ministry for the Environment has an Environmental Legal Assistance Fund. Applications can be made for assistance from the Fund to help pay for legal and other professional assistance in resource management litigation. However, it is difficult to access support from this fund and funding is limited. The fund is only available to New Zealand environmental, community, iwi and hapū groups, not individuals.¹³⁶

According to the Legal Services Act adopted in 2011, representatives may receive financial assistance if they are eligible for legal aid, or if someone is prepared to fund their work on a pro bono basis. An application for legal aid in respect of a civil matter for a person who is aged under 16 must be made by someone of "full age", and someone who is either the person’s parent, guardian or has the role of providing the day-to-day care for, or custody of, the person. Legal aid is usually granted on the condition that the applicant repays some of the grant according to repayment schedules contained in the regulations prescribed under the Act.¹³⁷

Free legal advice can also be sought from community law centres and organisations like the Citizens Advice Bureau¹³⁸ but these do not usually deal with environmental or planning issues and are more concerned with family or criminal law.

For complaints before the Waitangi Tribunal, once a claim is registered, claimants may apply for legal aid to assist them in meeting the legal costs of progressing their claim.¹³⁹ Māori may be able to access legal aid for the purposes of pursuing Treaty of Waitangi claims in the Waitangi Tribunal.¹⁴⁰

Overall, there are serious access to justice issues in terms of legal aid or pro bono in the environment context, as legal aid is available generally for family or criminal matters.

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

The different courts in New Zealand are empowered to impose different remedies in environmental cases.

The RMA provides for several options, such as infringement or abatement notices, and enforcement orders. For more serious breaches of the RMA, a polluter may also be prosecuted under criminal offences. There are three levels of offences:

• Grade 1 offences for which the maximum penalty for a person is imprisonment for up to 2 years or a fine up to $300,000. Entities may be subject to a fine up to $600,000. If the offence is a continuing one they may also be liable to a fine up to $10,000 for every day during which the offence continues (eg. undertaking a range of activities in the coastal marine area such as damaging marine life or discharging contaminants into the environment without resource consent).
• Grade 2 offences for which the maximum penalty is a fine up to $10,000 and, if the offence is a continuing one, a further fine up to $1,000 for every day during which the offence continues (eg. contravening any order made by the Environment Court)
• Grade 3 offences for which the maximum penalty is a fine up to $1500 (eg. wilful obstruction of people exercising powers under the Act).¹⁴¹

A breach of sections 9, 11, 12, 13, 14 or 15 of the RMA is a ‘strict liability’ offence and there is no need to show that the defendant intended to commit the offence. However, a defendant may rely on due diligence or ‘act of God’ defences. These defences are only available if the defendant informs the prosecution of his or her intention to rely upon such a defence within seven days of being served with a summons.¹⁴²

The Waitangi Tribunal has the power to make recommendations to the Government on Government policy in instances where that policy is in contravention of the Treaty of Waitangi. As there are limits on the extent to which non-domesticated treaty rights can be relied upon and enforced by courts, breaches of the Treaty of Waitangi are often settled by negotiations with the Crown through the Office of Treaty Settlements after the Waitangi Tribunal has issued a report and made a recommendation to the Government.¹⁴³

The Environment Court is an appellate court, meaning that it will consider matters afresh. The majority of the court’s work involves hearing appeals about issues that arise under the Resource Management Act 1991, with most of its workload coming from appeals brought against decisions of local authorities. These appeals are typically brought against decisions made on plan changes and policy statements and decisions made on resource consent applications. The court therefore has the authority to revoke resource consent.¹⁴⁴ The court has the authority to review the Government’s climate change policy (see below). In the ongoing Smith v. Fonterra litigation, it is being discussed whether the courts are empowered to grant a remedy for breach of a duty cognizable at law to cease contributing to climate change.¹⁴⁵

B. What remedies have courts ordered in environmental cases to date?

As mentioned in Section I.B, climate change litigation is still under development in New Zealand. The majority of remedies which courts have ordered in environmental cases are upholding or overruling resource consents granted under the Resource Management Act, per the case of Outstanding Landscape Protection Society Inc. v. Hastings District Council, 2007.¹⁴⁶

In Mataatua District Māori Council v. New Zealand (case still pending, see Section I.B), the applicants sought the following forms of relief:¹⁴⁷

• A declaration from the Tribunal that the government has breached its treaty obligations;
• A recommendation that New Zealand revise its emissions reduction targets upward to a level that corresponds with keeping the global concentration of greenhouse gas (GHG) emissions below 450ppm—the level that corresponds with the 2°C threshold that demarcates a stable climate from a potentially unstable one;
• A recommendation that New Zealand adopt different mitigation policies, including the restructuring or replacement of its Emissions Trading Scheme
• A recommendation that New Zealand adopt policies that facilitate adaptation in ways specific to locations and resources relied upon by the Māori.

C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

The Environment Act 1986 (‘EA’) authorised appointment of the Parliamentary Commissioner for the Environment.¹⁴⁸ The Commissioner is an Officer of Parliament, i.e. independent of the government, and is responsible to hold the Government to account for its environmental policies and actions. It provides an independent check on the system and processes of environmental management and the performance of public authorities on environmental matters. The Commissioner holds wide powers to conduct investigations on any matter where the environment may be or has been adversely affected, as well as on the effectiveness of environmental planning and management by public authorities.¹⁴⁹ The Commissioner may initiate an investigation following submissions of information by the public.¹⁵⁰ When conducting investigations, the Commissioner has the power to obtain information that is not available to the general public.¹⁵¹ However, it has a duty of secrecy over such information.¹⁵² Findings and recommendations by the Commissioner following an investigation are drafted in a report, which is formally tabled in Parliament and made public.¹⁵³ The Commissioner has no power to give binding rulings or reverse authorities’ decisions.¹⁵⁴ It can also encourage preventive measures and remedial actions to protect the environment.¹⁵⁵ Section 24 of the EA sets out a number of offences – punishable upon conviction by a fine not exceeding $1,000 – relating to obstructing, hindering or resisting the work of the Parliamentary Commissioner for the Environment, refusing or willfully failing to comply with his or her requirements, and misleading him or her.¹⁵⁶

The Ombudsman has extensive authority to look into (and expose) government behaviour and to seize, examine, and make public reports to Parliament.¹⁵⁷

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

In New Zealand, everyone has the right to freedom of peaceful assembly, as protected by the Bill of Rights Act 1990.¹⁵⁸ All bills are checked for consistency with the Bill of Rights Act 1990 before they are introduced into Parliament. If there is an inconsistency, the Attorney-General must inform Parliament. While this does not prevent Parliament passing inconsistent laws – and therefore laws which would contravene the right to peaceful assembly – it does ensure that any issues are known and discussed.¹⁵⁹ New Zealand continues to recognise the right of the child to freedom of peaceful assembly as affirmed by section 16 of the Bill of Rights Act 1990.¹⁶⁰

Freedom of assembly, and the accessibility of other civil and political rights for children are even more crucial when children are denied the right to vote.¹⁶¹ The youth-led Make It 16 campaign launched shortly after the school climate strikes began mobilising tens of thousands of teenagers across the country.¹⁶² The founders of the campaign believed voting would give young people a greater voice on the issue of climate change. In 2019, Make It 16 filed in the High Court arguing that, although the Local Electoral Act says that everyone 18 years or older has the right to vote, s.19 of the Bill of Rights says the right to be free from age discrimination commences from the age of 16 and, therefore, the voting age of 18 is a limit on 16 year-olds right to be free from age discrimination.¹⁶³ The case was dismissed and they unsuccessfully appealed to the Appeal Court.¹⁶⁴ Make It 16 subsequently appealed to the Supreme Court and in 2022, the Supreme Court issued a landmark declaration that preventing 16 and 17 year olds from voting was unjustified age discrimination and in breach of the Bill of Rights Act.¹⁶⁵ Following this Court decision, the Prime Minister has committed to draft legislation to change the voting age to 16.¹⁶⁶ There is no doubt that this is an landmark judgement for 16 and 17 year olds in New Zealand should see an increased number of children using their vote to influence political decisions. Nevertheless, children under the age of 16 continue to be disenfranchised and their rights to peaceful assembly require additional protection.

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

Whilst New Zealand has made and still maintains reservations to the CRC, its reservations do not extend to Article 15(1) of the CRC which guarantees the rights of children to freedom of peaceful assembly.¹⁶⁷ There should therefore be no limitations on the right of children to engage in peaceful assemblies, and many children and youth participated in climate change protests. For instance, in September 2019, 170,000 students participated in the climate change strike.¹⁶⁸

In general, there are some limitations to the right to engage in peaceful assembly. For instance, local councils can require citizens to give them advance notice of a protest if it will disrupt a public space.¹⁶⁹

C. What penalties can be imposed on children for engaging in school strikes?

After participating in the School Strike for Climate in September 2019, many students faced after-school detentions, low scores for missed tests and suspension for choosing to protest on school days. Restrictions placed on the ability of children to exercise these rights interfere with the CRC.¹⁷⁰

Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

In New Zealand, everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form, as per section 14 of the Bill of Rights Act 1990.¹⁷¹

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

The right to freedom of expression as set out in the Bill of Rights Act 1990 may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. However, there are no limits which specifically restrict the freedom of expression of a child which does not also restrict the rights of adults in the same way.

Limitations on the right to freedom of expression can be found in several statutory provisions. For example, the Summary Offences Act 1981 mentions disorderly behaviour, or offensive behaviour or language. Section 61 of the Human Rights Act 1993 prohibits the publication or distribution of certain forms of expression when they are “likely to excite hostility against or bring into contempt any group of persons [...] on the ground of the[ir] colour, race, or ethnic or national origins”.¹⁷² The Harmful Digital Communications Act 2015 creates an offence of causing harm by posting a digital communication,¹⁷³ and establishes the right of an affected individual to bring civil proceedings in relation to alleged harm resulting from a digital communication.¹⁷⁴

The Government is currently undertaking a review of existing provisions of the Human Rights Act 1993 with a focus on preventing incitement of hatred and discrimination while ensuring freedom of expression.¹⁷⁵

Freedom of association

A. How is children’s right to freedom of association protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

In New Zealand, everyone has the right to freedom of association, as protected by the New Zealand Bill of Rights Act 1990.¹⁷⁶ New Zealand continues to recognise the right of the child to freedom of association as affirmed by section 17 of the Bill of Rights Act 1990.¹⁷⁷

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

New Zealand’s reservations to the CRC do not extend to Article 15(1) of the CRC, which guarantees the rights of children to freedom of association.¹⁷⁸

Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

No specific legislation could be found which enshrines the right of children to access information. However, the Official Information Act 1982 allows for any person – no age limit – to request governmental agencies for access to any official information they may hold.¹⁷⁹ The Environmental Reporting Act 2015 defines environmental reporting responsibilities and establishes a broad framework for the scope and timing of environmental reporting.¹⁸⁰

The Government has also attempted to ensure that children do have the access to information, as envisioned by Article 17 CRC, through domestic policy and social justice measures. To this end, the Government of New Zealand has been working towards ensuring all schools are able to connect to ultra-fast broadband and have an upgraded internal IT network. It has adopted a ‘Computers in Homes’ programme, which provides a computer, internet connection, training and technical support to 1,500 socially and economically disadvantaged families each year. In addition, the ‘Books in Homes’ programme distributes books to children in low socio-economic areas to promote the love of books and family literacy. Additionally, in New Zealand the Police disseminate a range of safety-related information and materials of benefit to children. These materials are grouped under five themes: travelling safely, successful relationships, healthy mind, healthy body, responsible citizens and living in a safe community. The materials include guidance and resources for school management and staff, information for parents, and activities and stories for children.¹⁸¹

The Government of New Zealand has adopted a policy known as ‘Reading Together’, which is a research-based programme that helps parents to support their children’s reading at home. The programme is available to students in Years 1 to 8 and their families.¹⁸²

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

According to the Films, Videos and Publications Classification Act 1993, the availability of publications that contain “highly offensive language likely to cause serious harm” or are “likely to be injurious to public good for specified reasons” may be restricted to persons under 18 years of age.¹⁸³

The Broadcasting Act 1989 sets out standards for television and radio broadcasters, which include children’s interests,¹⁸⁴ and establishes the Broadcasting Standards Authority (‘BSA’).¹⁸⁵ The BSA is an independent entity with responsibility for receiving and determining complaints from persons who are dissatisfied with the outcomes of complaints made to broadcasters. It has developed inter alia standards on children’s interests.¹⁸⁶

C. Does the national curriculum for schools include environmental education?

The Ministry of Education has included ‘Education for sustainability’ as part of the national curriculum. Education for sustainability includes learning about:

• the environment – water, land, ecosystems, energy, waste, urban living, transportation;
• the interactions between the natural environment and human activities, and the consequences of these; and
• the choices and actions we can take to prevent, reduce, or change harmful activities to the environment.

Some of the central concepts that students in New Zealand can develop understanding of through Education for Sustainability include:

• sustainability – the ability of individuals, groups, and communities to meet their needs and aspirations without compromising the ability of future generations to meet theirs;
• equity – respect for all life, social justice, intergenerational equity, finite resources;
• interdependence – biodiversity, community, cultural diversity, democracy, globalisation; and responsibility for action – taking action, informed decision-making, citizenship, consumerism, enterprise, resilience, and regeneration.¹⁸⁷

End notes

¹ New Zealand’s Constitution. Available at: https://gg.govt.nz/office-governor-general/roles-and-functions-governor-general/constitutional-role/constitution/constitution.

² Imperial Laws Application Act (1988). Available at: http://www.legislation.govt.nz/act/public/1988/0112/latest/DLM135074.html.

³ New Zealand Bill of Rights Act (1990). Available at: http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html.

⁴ Treaty of Waitangi (1840). Translation available at: https://nzhistory.govt.nz/politics/treaty/read-the-treaty/english-text. Also, see Waitangi Tribunal, Meaning of the Treaty, available at: https://www.waitangitribunal.govt.nz/treaty-of-waitangi/meaning-of-the-treaty/ .

⁵ Constitutional Advisory Panel, New Zealand’s Constitution: A Report on a Conversation, 2013. Available at: https://www.justice.govt.nz/assets/Documents/Publications/Constitutional-Advisory-Panel-Full-Report-2013.pdf

⁶ Geoffrey Palmer and Andrew Butler, A Constitution for Aotearoa New Zealand, (Victoria University Press: 2016), p.18.

⁷ The State of New Zealand’s Environment: Chapter 4, New Zealand’s International Obligations, Ministry for the Environment Government of New Zealand, (30 March 2021). Available at: https://environment.govt.nz/publications/the-state-of-new-zealands-environment-1997/chapter-four-environmental-management/new-zealands-international-obligations.

⁸ New Zealand Law: International Law and New Zealand Domestic Law, University of Melbourne, https://unimelb.libguides.com/c.php?g=925155&p=6681290.

⁹ Ibid.

¹⁰ Trans-Tasman Resources v Taranaki-Whanganui Conservation Board (2021) NZSC (2021) 127. Available at: https://www.courtsofnz.govt.nz/cases/trans-tasman-resources-limited-v-the-taranaki-whanganui-conservation-board-. This case is noted in more detail in Section 1.B below.

¹¹ Elizabeth Macpherson et al., ‘Trans-Tasman Resources v Taranaki Whanganui Conservation Board [2021] NZSC 127: A New “High-Water Mark” for Seabed Mining’ 25 New Zealand Journal of Environmental Law 277 (2021). Available at: https://ir.canterbury.ac.nz/handle/10092/104467.

¹² See LP v. Chief Executive, Department of Child, Youth and Family Services HC Auckland, [2001] NZHC 601; [2001] NZFLR 721

¹³ Supra Note 6 at [20] and [21].

¹⁴ Section 8 of the New Zealand Bill of Rights Act 1990 states that “no one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”.

¹⁵ BoHao (Steven) Li, Joining the Aotearoa New Zealand Constitutional Debate: Constitutional Environmental Rights in our Future Constitution, Victoria University of Wellington Legal Research Paper Series Student/Alumni Paper No. 7 (2013). Available at: https://core.ac.uk/reader/41338668.

¹⁶ [2013] NZSC 87.

¹⁷ Climate change litigation: trending upwards, Russell McVeagh (2021). Available at: https://www.russellmcveagh.com/insights/february-2021/climate-change-litigation-trending-upwards.

¹⁸ [1987] 2 NZLR 188 (HC).

¹⁹ Ibid.

²⁰ Linda Te Aho, Indigenous Peoples and the State - International Perspectives on the Treaty of Waitangi [Book Review], NS29 The Journal of New Zealand Studies 112 (2019). Available at: https://doi.org/10.26686/jnzs.v0ins29.6270.

²¹ Ibid.

²² Ibid.

²³ [2018] NZSC 122.

²⁴ Biodiversity Management Framework, Legislation, Environment Guide, https://www.environmentguide.org.nz/issues/biodiversity/im:2506/legislation/.

²⁵ Ibid.

²⁶ Ibid.

²⁷ Ibid.

²⁸ [2017] NZHC 733.

²⁹ Ibid. The High Court noted that: “It may be appropriate for domestic courts to play a role in Government decision making about climate change policy . . . The courts have recognized the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change”. See also, Thomson v. Minister for Climate Change Issues, Climate Case Chart, http://climatecasechart.com/non-us-case/thomson-v-minister-for-climate-change-issues/.

³⁰ Russell McVeagh, supra note 17; Climate Case Chart, supra note 29.

³¹ [2020] NZHC 3228, https://forms.justice.govt.nz/search/Documents/pdf/jdo/18/alfresco/service/api/node/content/workspace/SpacesStore/4a419ef0-0f29-4ecc-ac61-1d08fdcf461d/4a419ef0-0f29-4ecc-ac61-1d08fdcf461d.pdf.

³² Patrick Senior, Hannah Bain and Hannah Bergin, Climate change requires proper processes to be followed by local government – High Court, Russell McVeagh (2020). Available at: https://www.russellmcveagh.com/insights/december-2020/climate-change-requires-proper-processes-to-be-followed-by-local-government-high-court.

³³ [2021] NZSC 127, https://www.courtsofnz.govt.nz/cases/trans-tasman-resources-limited-v-the-taranaki-whanganui-conservation-board-.

³⁴ Ibid.

³⁵ [2020] NZHC 419; [2021] NZCA 552; [2022] NZSC 35, https://www.courtsofnz.govt.nz/cases/michael-john-smith-v-fonterra-co-operative-group-limited-genesis-energy-limited-dairy-holdings-limited-new-zealand-steel-limited-z-energy-limited-new-zealand-refining-company-limited-and-bt-mining-limited. See also Smith v. Fonterra Co-Operative Group Limited, Climate Case Chart, http://climatecasechart.com/climate-change-litigation/non-us-case/smith-v-fronterra-co-operative-group-limited

³⁶ See Climate change litigation – Expect the Unexpected, Russell McVeagh (2020), https://www.russellmcveagh.com/insights/march-2020/climate-change-litigation-expect-the-unexpected.

³⁷ [2021] NZCA 552. See also, Tort claims – an unsuitable vehicle for addressing climate change, Russell McVeagh (2020), https://www.russellmcveagh.com/insights/november-2021/tort-claims-an-unsuitable-vehicle-for-addressing-climate-change.

³⁸ See Russell McVeagh (2020), ibid.

³⁹ [2022] NZSC 35. See also, Climate Case Chart, supra note 35.

⁴⁰ [2007] NZHC 1435.

⁴¹ See Unison Networks Ltd. v. Hastings District Council, Climate Case Chart, http://climatecasechart.com/non-us-case/unison-networks-ltd-v-hastings-district-council/.

⁴² Outstanding Landscape Protection Society Inc. v Hastings District Council, Climate Case Chart, http://climatecasechart.com/non-us-case/outstanding-landscape-protection-society-inc-v-hastings-district-council/.

⁴³ [2007] NZRMA 87.

⁴⁴ Climate Case Chart, Greenpeace New Zealand v. Northland Regional Council, http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2006/20061012_2007-NZRMA-87_judgment.pdf.

⁴⁵ See Climate Case Charter, Greenpeace New Zealand Inc. v. Genesis Power Ltd., http://climatecasechart.com/non-us-case/genesis-power-ltd-v-greenpeace-new-zealand-inc/. See also, Ed Steane and Teresa Weeks, Climate Change and the RMA: implications of Greenpeace New Zealand Inc v Genesis Power Ltd, Official Journal of the Resource Management Law Association of New Zealand Inc,. http://www.rmla.org.nz/wp-content/uploads/2016/07/2009_rmla_april-09.pdf.

⁴⁶ See Mataatua District Maori Council v. New Zealand, Climate Case Chart, http://climatecasechart.com/non-us-case/mataatua-district-maori-council-v-new-zealand/.

⁴⁷ Jane Anstee-Wedderburn, Giving a Voice to Future Generations: Intergenerational Equity, Representatives of Generations to Come, and the Challenge of Planetary Rights, Australian Journal of Environmental Law Vol 1(1) (2014). Available at: http://www.austlii.edu.au/au/journals/AUJlEnvLaw/2014/3.pdf.

⁴⁸ Thomson v The Minister for Climate Change Issues [2017] NZHC 733 at 162, https://forms.justice.govt.nz/search/Documents/pdf/jdo/aa/alfresco/service/api/node/content/workspace/SpacesStore/eeb4bcef-c776-49b1-8f7b-23d77c358ded/eeb4bcef-c776-49b1-8f7b-23d77c358ded.pdf.

⁴⁹ For example, in 2012, at the conference ‘Affording our Future’, 27 young participants stated: “We will inherit the consequences of today’s decisions and we cannot afford not to care…. Young people are willing to make trade-offs which recognise that the system must develop with changing demographics and rising health costs. Generations need to work together on this issue. Although spending may be fiscally constrained, the future we want requires active investment in smart long-term options – like a low-carbon economy, lower imprisonment rates, and decreased child poverty. These options are often cost-effective in the big picture and over the long term”; LongTermNZ, Youth Statement on New Zealand's Long-term Fiscal Position 2012-2052, Paper presented at the Affording our Future conference (December 2012), available here; Claire Dale, Improving intergenerational equity in New Zealand (2018), available here.

⁵⁰ Te Rūnanga o Ngāi Tahu, Anchoring the Foundation: Climate Change Strategy (August 2018), https://ngaitahu.iwi.nz/wp-content/uploads/2018/11/Ngai-Tahu-Climate-Change-Strategy.pdf; Te Urunga o Kea: Te Arawa Climate Change Working Group in partnership with Te Arawa Lakes Trust and Scion, Te Arawa Climate Change Strategy, Te Ara ki Kōpū (2021), https://tearawa.io/wp-content/uploads/2021/09/RS03642-Ta-Arawa-Climate-Change-Strategy.pdf; Whanganui District Council, Climate Change Strategy (2021), https://www.whanganui.govt.nz/Your-Council/Plans-Strategies/Strategies/Te-Rautaki-Huringa-%C4%80huarangi-Climate-Change-Strategy.

⁵¹ Available at: https://www.legislation.govt.nz/act/public/1949/0019/latest/DLM255626.html. The Forests Act was most recently amended by the Forests Amendment Act (2015). Available at: https://www.legislation.govt.nz/act/public/2015/0012/latest/DLM6402601.html.

⁵² Forests Act (1949) summary, Te Uru Rākau website, accessible at: https://www.mpi.govt.nz/forestry/getting-started-forestry/forestry-rules-regulations/forests-act-1949-summary/.

⁵³ Environment Act (1986), Ministry for the Environment, https://environment.govt.nz/acts-and-regulations/acts/environment-act-1986/.

⁵⁴ Preamble of the Environment Act (1986), http://www.legislation.govt.nz/act/public/1986/0127/latest/DLM98975.html.

⁵⁵ Available at: https://www.legislation.govt.nz/act/public/1987/0065/latest/DLM103610.html.

⁵⁶ See New Zealand’s Environmental Legislation, Ministry for the Environment, https://environment.govt.nz/publications/the-state-of-new-zealands-environment-1997/chapter-four-environmental-management/new-zealands-environmental-legislation/

⁵⁷ Conservation Amendment Act (2013). Available at: http://www.legislation.govt.nz/act/public/2013/0015/12.0/DLM5137306.html.

⁵⁸ Conservation (Indigenous Freshwater Fish) Amendment Act (2019). Available at: http://www.legislation.govt.nz/act/public/2019/0055/latest/LMS73110.html.

⁵⁹ Misha Ketchell, New Zealand is reviewing its outdated conservation laws. Here’s why we must find better ways of getting people on board, The Conversation (2022), https://theconversation.com/new-zealand-is-reviewing-its-outdated-conservation-laws-heres-why-we-must-find-better-ways-of-getting-people-on-board-174055.

⁶⁰ Ibid.

⁶¹ Ibid.

⁶² Robert Cox & Phaedra C. Pezzullo, Environmental Communication and the Public Sphere, (4 ed. 2016), https://uk.sagepub.com/en-gb/eur/environmental-communication-and-the-public-sphere/book242293#description; Tina Nabatchi & Matt Leighninger, Public Participation for 21st Century Democracy, (2015), https://www.wiley.com/en-hk/Public+Participation+for+21st+Century+Democracy-p-9781118688403.

⁶³ Giles Dodson, Co-Governance and Local Empowerment? Conservation Partnership Frameworks and Marine Protection at Mimiwhangata, New Zealand, 27 Society & Natural Resources 521 (2014), https://www.tandfonline.com/doi/abs/10.1080/08941920.2013.861560?journalCode=usnr20

⁶⁴ Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, https://www.courtsofnz.govt.nz/cases/ngai-tai-ki-tamaki-tribal-trust-v-minister-of-conservation-1/?searchterm=NG%C4%80%20I%20TAI%20KI%20T%C4%80MAKI.

⁶⁵ Supra note 59.

⁶⁶ Resource Management Act (1991), Ministry for the Environment. Available at: https://www.legislation.govt.nz/act/public/1991/0069/211.0/DLM230265.html.

⁶⁷ Notable pieces of legislation repealed in light of the RMA include the Town and Country Planning Act, the Water and Soil Conservation Act and the Minerals Act.

⁶⁸ See the Ministry for the Environment website, op.cit. See also https://www.mfe.govt.nz/rma/about-rma.

⁶⁹ Supra note 50.

⁷⁰ Available at: https://environment.govt.nz/what-government-is-doing/areas-of-work/climate-change/.

⁷¹ Misha Ketchell, Managing retreat: why New Zealand is drafting a new law to enable communities to move away from climate risks, The Conversation (2021), https://theconversation.com/managing-retreat-why-new-zealand-is-drafting-a-new-law-to-enable-communities-to-move-away-from-climate-risks-157394.

⁷² Available at: http://www.legislation.govt.nz/act/public/2017/0015/27.0/DLM6669131.html.

⁷³ See Cabinet approves fast tracking of shovel ready projects, RNZ News 2020, https://www.rnz.co.nz/news/national/415689/cabinet-approves-fast-tracking-of-shovel-ready-projects.

⁷⁴ Available at: http://www.legislation.govt.nz/bill/government/2020/0277/latest/LMS345539.html.

⁷⁵ ‘What the Government is doing about the Resource Management, Ministry for the Environment’ (2022), https://environment.govt.nz/what-government-is-doing/areas-of-work/rma/; Key components of our future resource management system, Ministry for the Environment (2022), https://environment.govt.nz/what-government-is-doing/areas-of-work/rma/resource-management-system-reform/key-components-of-our-future-resource-management-system/.

⁷⁶ Ibid.

⁷⁷ Ibid.

⁷⁸ Ibid.

⁷⁹ Ibid.

⁸⁰ Ibid.

⁸¹ Available at: http://www.legislation.govt.nz/act/public/1996/0030/93.0/DLM381222.html.

⁸² Available at: https://www.mfe.govt.nz/more/hazards/about-environmental-risks-new-zealand/hsno-act-1996.

⁸³ Available at: http://www.legislation.govt.nz/regulation/public/2001/0112/latest/DLM33301.html.

⁸⁴ See Section 2, Hazardous Substances and New Organisms Act 1996. A “substance” is defined as any of the following: Any element, defined mixture of elements, compounds, or defined mixture of compounds, either naturally occurring or produced synthetically, or any mixtures thereof; Any isotope, allotrope, isomer, congener, radical, or ion of an element or compound which has been declared by the Authority, by notice in the Gazette, to be a different substance from that element or compound; Any mixtures or combinations of any of the above; or Any manufactured article containing, incorporating, or including any hazardous substance with explosive properties.

⁸⁵ Available at: http://www.legislation.govt.nz/regulation/public/2016/0299/latest/DLM7050701.html#DLM7050700.

⁸⁶ Available at: http://www.legislation.govt.nz/act/public/1996/0088/latest/DLM394192.html.

⁸⁷ See the Ministry for the Environment website, op.cit.

⁸⁸ Available at: http://www.legislation.govt.nz/act/public/1996/0040/latest/DLM391469.html.

⁸⁹ Ozone Layer Protection Act (1996), Ministry for the Environment, https://www.mfe.govt.nz/more/acts-and-regulations/ozone-layer-protection-act-1996-and-ozone-layer-protection-regulations.

⁹⁰ See Sections 6, 8, 9, 10, 12, 13(f) and Pt 3 of the Ozone Layer Protection Act (1996).

⁹¹ Available at: http://www.legislation.govt.nz/regulation/public/2011/0196/latest/whole.html.

⁹² Available at: http://www.legislation.govt.nz/act/public/2002/0040/latest/DLM158584.html.

⁹³ Available at: https://www.mfe.govt.nz/climate-change/climate-change-acts-and-regulations/climate-change-response-act-2002

⁹⁴ Available at: http://www.legislation.govt.nz/act/public/2019/0061/latest/LMS183736.html.

⁹⁵ SGI, New Zealand, https://www.sgi-network.org/2022/New_Zealand.

⁹⁶ Legislation Guidelines 2021: Constitutional Issues and Recognising Rights. Chapter 5: The Treaty of Waitangi, Treaty settlements, and Māori interests, Legislation Design and Advisory Committee, http://www.ldac.org.nz/guidelines/legislation-guidelines-2021-edition/constitutional-issues-and-recognising-rights-2/chapter-5/.

⁹⁷ What are Treaty settlements and why are they needed?, Treaty Settlement Stories, https://teara.govt.nz/en/te-tai/about-treaty-settlements.

⁹⁸ Two parties, two understandings: What does the Treaty of Waitangi mean?, Museum of New Zealand, https://www.tepapa.govt.nz/discover-collections/read-watch-play/maori/treaty-waitangi/treaty-close/two-parties-two.

⁹⁹ See Meaning of the Treaty, supra note 4.

¹⁰⁰ Ibid.

¹⁰¹ The Treaty of Waitangi/Te Tiriti o Waitangi, Waitangi Tribunal, https://waitangitribunal.govt.nz/treaty-of-waitangi/.

¹⁰² Supra 97.

¹⁰³ Ibid.

¹⁰⁴ Ibid.

¹⁰⁵ Ibid.

¹⁰⁶ Signing of the Treaty, The Treaty of Waitangi/Te Tiriti o Waitangi, Waitangi Tribunal, https://waitangitribunal.govt.nz/treaty-of-waitangi/signing-of-the-treaty/.

¹⁰⁷ Available at: https://forms.justice.govt.nz/search/WT/reports/reportSummary.html?reportId=wt_DOC_84146995.

¹⁰⁸ See History, Environment Guide, http://www.environmentguide.org.nz/overview/.

¹⁰⁹ See Māori and Environmental Law, Environment Guide, http://www.environmentguide.org.nz/overview/māori-and-environmental-law/.

¹¹⁰ See the Environmental Protection Authority website, https://www.epa.govt.nz/industry-areas/hazardous-substances/rules-for-hazardous-substances/controls-for-hazardous-substances/.

¹¹¹ Ministry of Health, Code of Practice for Child-resistant Packaging of Toxic Substances, (1998), https://www.moh.govt.nz/notebook/nbbooks.nsf/0/857AD6287DC2CB124C256711006FA23E/$file/child-resistant-packaging-of-toxic-substances.pdf.

¹¹² Smokefree Environments and Regulated Products Act, Ministry of Health, available here; James Gregory, New Zealand passes legislation banning cigarettes for future generations (2022), available here; Tiffany May, New Zealand Bans Cigarette Sales to Everyone Born After 2008, New York Tiimes (2022), available here.

¹¹³ OECD, OECD Environmental Performance Reviews: New Zealand 2007, 2007, OECD Publishing, https://doi.org/10.1787/9789264030589-en.

¹¹⁴ OECD, OECD Environmental Performance Reviews: New Zealand 2017, 2017, OECD Publishing, https://doi.org/10.1787/9789264268203-en.

¹¹⁵ Rachel Devine, Pollutant Register back on the agenda, MinterEllisonRuddWatts, 2019. Available at: https://www.minterellison.co.nz/our-view/pollutant-register-back-on-the-agenda.

¹¹⁶ See Section 224(1) and Pt 19-28 of the Marine Transport Act 1994, http://www.legislation.govt.nz/act/public/1994/0104/latest/DLM334660.html.

¹¹⁷ Available at: http://www.legislation.govt.nz/act/public/1961/0043/137.0/DLM327382.html.

¹¹⁸ Timothy Smith, Fighting on the Ocean Blue: New Zealand’s Extra-Territorial Jurisdiction and Maritime Protest, Victoria University of Wellington Law Review 499 (2001), http://www.nzlii.org/nz/journals/VUWLawRw/2001/19.html.

¹¹⁹ Sections 314 and 316(1) RMA, https://www.legislation.govt.nz/act/public/1991/0069/latest/DLM230265.html.

¹²⁰ See Bret C. Birdsong, Adjudicating Sustainability: New Zealand's Environment Court, 29 (1) Ecology Law Quarterly 1 (2002), https://www.jstor.org/stable/24114338.

¹²¹ Proceedings begin in the Environment Court once someone has correctly lodged the notice of appeal or application with the Registrar and paid the filing fee.

¹²² You and the Environment Court Guide, Ministry of Environment, https://environment.govt.nz/publications/you-and-the-environment-court/.

¹²³ R. Somerville, A Public Law Response to Environmental Risk, 10 Otago Law Review 143, 2002, http://www.nzlii.org/cgi-bin/sinodisp/nz/journals/OtaLawRw/2002/1.html, p.150.

¹²⁴ CRIN, Access to justice for children: New Zealand, 2015. See also, Structure of the court system, Courts of New Zealand, https://www.courtsofnz.govt.nz/about-the-judiciary/structure-of-the-court-system/.

¹²⁵ Ibid.

¹²⁶ Claims process, Waitangi Tribunal, https://www.waitangitribunal.govt.nz/claims-process/make-a-claim/.

¹²⁷ Meaning of the Treaty, supra note 4; Waitangi Tribunal, A Guide to the Principles of the Treaty of Waitangi as Expressed by the Courts and the Waitangi Tribunal, https://waitangitribunal.govt.nz/assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangi-as-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf.

¹²⁸ Bret C. Birdsong, Adjudicating Sustainability: New Zealand's Environment Court, 29 (1) Ecology Law Quarterly 1, 2002.

¹²⁹ Stevens, J. East, S. Gully, B. Class/Collective Actions in New Zealand: Overview, Practical Law. Available: https://uk.practicallaw.thomsonreuters.com/3-617-6671.

¹³⁰ Supra note 124.

¹³¹ Ibid.

¹³² Paul Windeatt, Risk, Loss, Negligence and Cause, 7(2) Auckland University Law Review 273, 1993, accessible at: http://www.nzlii.org/nz/journals/AukULawRw/1993/3.pdf.

¹³³ How the justice system works: different streams of law, https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/different-streams-of-law/.

¹³⁴ Resource Management Amendment Act 2020, Ministry for the Environment, https://environment.govt.nz/acts-and-regulations/acts/resource-management-amendment-act-2020/; Xavier Grange, Amendments to NZ Resource Management Act, ICLG.com (2019), https://iclg.com/news/10288-amendments-to-nz-resource-management-act.

¹³⁵ Law Relating to Civil penalties, Chapter 7, (2010). Available at: https://www.lawcom.govt.nz/our-projects/law-relating-civil-penalties. For more information, see also supra note 124.

¹³⁶ Representing yourself in the Environment Court, Environment Court of New Zealand, https://environmentcourt.govt.nz/representing-yourself/legal-assistance/.

¹³⁷ Supra note 124.

¹³⁸ Some information on private firm pro bono work: Community Law, http://www.communitylaw.org.nz/, and Citizens Advice Bureau, http://www.cab.org.nz/Pages/home.aspx.

¹³⁹ Applications are made by their legal representative and submitted to the Legal Aid Services Treaty team for consideration. See Fund your claim, Waitangi Tribunal, https://www.waitangitribunal.govt.nz/claims-process/fund-your-claim/.

¹⁴⁰ Ministry of Justice, Granting aid for Waitangi Tribunal matters: Operational policy (2016), https://www.justice.govt.nz/assets/Documents/Publications/LA-v2-granting-aid-for-Waitangi-Tribunal-matters-policy.pdf.

¹⁴¹ See Offences, Environment Guide, http://www.environmentguide.org.nz/rma/enforcement/offences/; Land Use, Environment Guide, http://www.environmentguide.org.nz/activities/.

¹⁴² Ibid.

¹⁴³ Treaty of Waitangi, Learn about the Justice System, New Zealand Ministry of Justice: https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/treaty-of-waitangi/.

¹⁴⁴ Jurisdiction of the Environment Court, Environment Court of New Zealand. Available at: https://www.environmentcourt.govt.nz/about/jurisdiction/.

¹⁴⁵ Supra note 35.

¹⁴⁶ Supra note 42.

¹⁴⁷ Supra note 46.

¹⁴⁸ Supra note 53.

¹⁴⁹ See Functions and Powers, Parliamentary Commissioner for the Environment, https://www.pce.parliament.nz/about-us/functions-powers.

¹⁵⁰ See What we do, Parliamentary Commissioner for the Environment, https://www.pce.parliament.nz/our-work/what-we-do.

¹⁵¹ Supra note 53, Section 19. See also, Investigations, Parliamentary Commissioner for the Environment, https://www.pce.parliament.nz/our-work/investigations.

¹⁵² Ibid., Section 20.

¹⁵³ Supra note 151, Parliamentary Commissioner for the Environment.

¹⁵⁴ See Statutory Bodies, Parliamentary Commissioner for the Environment, https://www.environmentguide.org.nz/overview/statutory-bodies/parliamentary-commissioner-for-the-environment/.

¹⁵⁵ Ibid.

¹⁵⁶ Supra note 53, Section 24.

¹⁵⁷ Ombudsman New Zealand, https://www.ombudsman.parliament.nz/.

¹⁵⁸ s.16, New Zealand Bill of Rights Act (1990). Available at: http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html#DLM225515.

¹⁵⁹ See The New Zealand Bill of Rights Act, Learn about the Justice System, https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/the-new-zealand-bill-of-rights-act/.

¹⁶⁰ Government of New Zealand, Fifth Periodic Report on the CRC, (2015), para 79, https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/monitoring/uncroc/nz-fifth-periodic-report-under-the-united-nations-convention-on-the-rights-of-the-child.pdf.

¹⁶¹ See also: Child Rights Connect, The Rights of Child Human Rights Defenders: Implementation Guide, (2020), pp. 51-53, https://childrightsconnect.org/wp-content/uploads/2020/12/final-implementation-guide-the-rights-of-child-human-rights-defenders-forweb.pdf.

¹⁶² Tess McClure, Ardern promises bill to lower voting age to 16 in New Zealand after discrimination ruling, The Guardian (2022), https://www.theguardian.com/world/2022/nov/21/voting-age-of-18-is-discriminatory-new-zealand-supreme-court-rules.

¹⁶³ Our case, Make it 16, https://www.makeit16.org.nz/court-case.

¹⁶⁴ Ibid.

¹⁶⁵ Make it 16 Incorporated v Attorney General [2022] NZSC 134 (SC), https://www.makeit16.org.nz/_files/ugd/a1217e_5fe5384588084a3cb7be02bad945a204.pdf.

¹⁶⁶ Supra note 162.

¹⁶⁷ See UN Convention on the Rights of the Child, Constitutional Issues & Human Rights, https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/human-rights/international-human-rights/crc/.

¹⁶⁸ See School Strike 4 Climate NZ, https://www.schoolstrike4climate.nz/.

¹⁶⁹ See Protesting and Organising, Community Law, https://communitylaw.org.nz/community-law-manual/chapter-4-activism/protesting-and-organising/.

¹⁷⁰ CRIN, Respect students’ right to protest, https://home.crin.org/respect-students-right-to-protest.

¹⁷¹ Supra note 158, S.14.

¹⁷² Section 61, Human Rights Act, (1993). Available at: https://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304643.html.

¹⁷³ Section 22, Harmful Digital Communications Act (2015). Available at:

¹⁷⁴ Ibid., Section 11.

¹⁷⁵ Ministry of Justice of New Zealand, Proposals against incitement of hatred and discrimination in Aotearoa New Zealand: Public submissions are now closed, https://www.justice.govt.nz/justice-sector-policy/key-initiatives/proposals-against-incitement/.

¹⁷⁶ Supra note 158, Section 17.

¹⁷⁷ Government of New Zealand, Fifth Periodic Report to the Committee on the Rights of the Child, CRC/C/NZL/5 (2015) at [79], https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2FNZL%2F5&Lang=en.

¹⁷⁸ Supra note 167.

¹⁷⁹ Section 12, Official Information Act (1982). Available at: https://www.legislation.govt.nz/act/public/1982/0156/latest/DLM65382.html.

¹⁸⁰ Environmental Reporting Act (2015), Ministry for the Environment, https://environment.govt.nz/acts-and-regulations/acts/environmental-reporting-act-2015/.

¹⁸¹ Supra note 177 at [82]-[84].

¹⁸² Ibid.

¹⁸³ Sections 3A, 3B and 23(2)(c)(i), Films, Videos, and Publications Classification Act (1993). Available at: https://www.legislation.govt.nz/act/public/1993/0094/latest/whole.html#DLM313410 and https://www.dia.govt.nz/digital-child-exploitation-legislation.

¹⁸⁴ Section 21(1)(e)(i), Broadcasting Act (1989). Available
https://www.legislation.govt.nz/act/public/1989/0025/latest/whole.html

¹⁸⁵ Ibid., Part 3.

¹⁸⁶ BSA, Broadcasting Standards in New Zealand. Codebook, (May 2020). Available here.

¹⁸⁷ See Education for Sustainability, Ministry of Education. Available here.

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