New Zealand’s international relations are under new management. And Winston Peters, the new foreign minister, is already setting a change agenda.

As expected, this includes a more pro-US positioning when it comes to the Pacific – where Peters will be picking up where he left off. Peters sought to align New Zealand more closely with the United States under his ‘Pacific Reset’ policy that he launched while serving as foreign minister under Jacinda Ardern’s Labour-New Zealand First coalition government from 2017-2020.

Peters is wasting no time in getting back on the foreign affairs horse.

Just three days after being sworn in as a minster, he gave his first speech on foreign policy at the US Business Summit in Auckland last week.

Peters was lavish in his praise for the US in his address, arguing that Washington had been ‘instrumental in the Pacific’s success’. But he noted that ‘there is more to do and not a moment to lose. We will not achieve our shared ambitions if we allow time to drift.’ Adding that ‘speed and intensity’ would be needed, Peters said ‘the good news is that New Zealand stands ready to play its part.’

The early timing of the speech itself is a sign that New Zealand’s new, yet very familiar foreign affairs minister is unlikely to wait around when it comes to taking major decisions.

It was an important, agenda-setting address.

There were strong hints that New Zealand’s new Government wants to move swiftly when it comes to Wellington’s potential involvement in in ‘Pillar II’ of the AUKUS defence pact that currently involves Australia, the United Kingdom and the United States.

Peters’ disclosed in the Q&A to the speech that he had already talked to Judith Collins, the new defence minister, about New Zealand’s AUKUS stance.

The previous Labour government’s position was that AUKUS remained a hypothetical question while no formal offer existed for New Zealand to join ‘Pillar II’ of the high-level defence pact that currently involves Australia, the United Kingdom and the United States.

But while playing for time in an election year, the then Prime Minister Chris Hipkins signalled in July that New Zealand was at least ‘open to conversations’ about joining the pact in some form. And Labour’s expedited release of three major defence strategy documents in August, just prior to the election campaign, laid the groundwork for at least formal consideration of involvement in AUKUS.

The reports also paved the way for New Zealand to spend vastly more on its military and to take a more security-focused approach to the Pacific – recommendations that Peters will probably be keen to implement.

Wellington and Washington have been becoming closer since at least November 2010, when US Secretary of State Hillary Clinton visited New Zealand’s capital to sign the ‘Wellington Declaration’. The relatively short agreement served to clear the air after decades of chequered bilateral relations stemming from the Fourth Labour Government’s introduction of a nuclear-free policy in the 1980s.

Going nuclear-free (which prevented visits from US warships) saw New Zealand cast out as a US ally. Washington formally suspended its obligations to Wellington under the ANZUS defence treaty in 1986. But nearly 40 years on, US-NZ relations are rapidly deepening, a trend that has been accelerated by Russia’s invasion of Ukraine and Western concerns over China’s rise in the Indo-Pacific.

Since February 2022, New Zealand has imposed sanctions on Russia, joined US-led groupings such as Partners in the Blue Pacific (PBP) and the Indo-Pacific Economic Framework (IPEF) and sent its Prime Ministers to successive NATO summits. And in May 2022, Jacinda Ardern visited Joe Biden at the White House, where a 3000-word joint statement called for ‘new resolve and closer cooperation’.

Meanwhile, a string of senior US officials have visited New Zealand just this year, including Secretary of State Antony Blinken, Assistant Secretary of State Daniel Kritenbrink and the White House’s Indo-Pacific coordinator, Kurt Campbell (who Joe Biden recently nominated to become his new Deputy Secretary of State).

If New Zealand does join AUKUS, it could spell the effective end of the country’s ‘independent foreign policy’. The ANZUS break-up of the late 1980s, the end of the Cold War and the acceleration of globalisation had allowed New Zealand to free itself from blocs. Wellington talked to anyone and everyone, building solid, trade-focused relations with China and others in the Global South – while not neglecting Western partners, including the United States.

Peters may think the current geopolitical environment justifies a new approach.

If he does, he should prepare for significant pushback. Helen Clark, who was Prime Minister during Winston Peters’ first term as foreign minister from 2005-8, posted on Friday that New Zealand was now ‘veering towards signing up’ to AUKUS despite bipartisan support over decades for the independent foreign policy stance.

This added to criticism from Clark earlier in the year, including in August, when she argued the new defence blueprint showed New Zealand was ‘abandoning its capacity to think for itself & instead is cutting & pasting from 5 Eyes’ partners’.

It should also be remembered that Winston Peters, while undoubtedly powerful and highly experienced, is only one Government minister. The views of Judith Collins – the defence minister – remain unknown in any detail, while the foreign policy positions of Christopher Luxon seem more centrist than radical.

Moreover, with the US now firmly focused on the war between Hamas and Israel – and its own presidential election year fast approaching – it is far from guaranteed that the hypothetical AUKUS question will turn into a concrete one for New Zealand anytime soon.

Moreover, Peters’ initial ministerial comments on New Zealand’s own position towards the Middle East suggest there is plenty of room for nuance. Calling the death toll in Gaza ‘horrific’, Peters welcomed a short-lived extension to the ceasefire on Friday, but called for all parties to ‘work urgently towards a long-term ceasefire’.

And in a radio interview earlier last week, Peters said ‘the ceasefire is not good enough, we’re going to have find a way forward through this and a peaceful solution – that’s what New Zealand and the Western world has got to put its focus on’.  Peters added ‘internationally we need to be talking to people across the political divide who are making sense on this matter’.

Talking to all sides and playing a small role in facilitating a sustainable political solution to the Israeli-Palestinian conflict would very much be in keeping with New Zealand’s independent foreign policy approach – and Winston Peters is already speaking out strongly about the war.

With Christopher Luxon passing up on the opportunity to attend COP28 in Dubai at the weekend, Winston Peters will have the chance to make the Government’s first ministerial trip to the Middle East to begin this dialogue. The Gulf states would be a natural starting point for these discussions.

Meanwhile, on Ukraine – the war that helped to speed up New Zealand’s alignment with the US in 2022 – Peters was open to the idea of New Zealand upgrading its military support to Ukraine by sending Kyiv light armoured vehicles (LAVs). While noting that the decision was not up to him alone, he added ‘if we can help we should be doing the best we can’.

Labour had denied a request from Ukraine to provide the LAVs in 2022 and of late had preferred to make financial contributions to Kyiv’s war effort – the most recent being a $NZ4.7 million package announced by Chris Hipkins in July at the NATO leaders’ summit in Lithuania.

It all adds up to a complex picture.

Winston Peters has no shortage of global issues to address.

And there could be some major changes ahead for New Zealand foreign policy.

*******

Geoffrey Miller is the Democracy Project’s geopolitical analyst and writes on current New Zealand foreign policy and related geopolitical issues. He has lived in Germany and the Middle East and is a learner of Arabic and Russian. He is currently working on a PhD at the University of Otago on New Zealand’s relations with the Gulf states.

The Zero Carbon Act (ZCA)

There’s plenty of plaudits being handed out – not only from the politicians to themselves, but from pundits, too. For example, The AM Show’s Duncan Garner gave tribute to both sides of the Parliament, singling out the Minister for Climate Change James Shaw (“his ability to get almost unanimous support”), and National Party leader Simon Bridges (“being constructive, modern and green”) – see: Passing Zero Carbon Bill a sign Parliament has grown up.

Garner says “Mark this week down as the week Parliament grew up, maturing beyond petty politics and personal divisions to put New Zealand and indeed the planet first.” He concludes “Compromise is king. Long live the planet Earth.”

David Cormack praised the ZCA as being good for business: “This is the sort of certainty that helps businesses and research institutes plan for the future. It means they know what the legislative framework will look like so they can make five, 10 even 20-year plans knowing there is certainty. This was why the negotiation was so critical” – see: NZ goes from fast follower to world leader (paywalled).

Cormack also praised the consensus approach: “this is actual progressive legislation that was passed in a mature and sensible way.” And he pointed to the international attention on the legislation: “Already we have seen the ripple effect from other countries from the passing of the Zero Carbon Act. New Zealand had favourable media coverage all around the world, which will hopefully influence other countries to adopt similar laws. US Presidential candidate Bernie Sanders praised it and said he would look to adopt similar measures were he to be successful in becoming President.”

Not everyone is impressed, of course. Greenpeace has been derisive.  Amanda Larsson, who is the group’s Lead Climate Campaigner, said the legislation was entirely inadequate: “below the thinly-veiled layer of rhetoric lay no substance. No regulation. Nothing but vague promises to maybe do something about dairy pollution in two to five years’ time” – see: Don’t kick climate to touch.

Another Greenpeace spokesperson, Steve Abel, was even more scathing, labelling the ZCA “bland and ineffective”, and suggesting the Green Party has essentially “joined the consensus on inaction” in their promotion of this as a solution to climate change – see: A weak climate law based on a feeble consensus is no ‘nuclear-free moment’.

In analysing the ZCA, and what was needed, Abel says: “the last couple of years the climate movement has called for: 1) political consensus on a 2) strong and 3) binding climate law. What we got was one out of three. But without being strong and binding, consensus is meaningless.” He adds: “One of the tell-tales of the hollowness of the Zero Carbon Act is that the polluting industries are not crying foul. The reason is, the law barely touches them.”

Greenpeace is not only extremely unhappy with the end product, but also the process that James Shaw and Jacinda Ardern used to get there, which Abel says has been a case of misleadership. He argues that by focusing on finding consensus amongst all the political players, the Greens and Labour have gone with a lowest-common denominator outcome rather than the right one.

He compares it to other landmark political progress such as women winning the right to vote, the creation of the welfare state, banning nuclear ships, and homosexual law reform, and points out these were achieved through strong leadership asserting the best way forward rather than attempts to find compromise across the political spectrum.

Henry Cooke also puts forward this position: “There is a good argument that Shaw should have made use of power instead of sharing it. National rarely obsesses with getting Labour and the Greens on board with changes it makes when it is in power. Sometimes you just have to pass a bill, pray you win the election, and hope that if you don’t, the other guys will find it too hard to undo your work” – see: James Shaw won the battle on climate change, not the war.

The counterargument is that, for the ZCA to endure, it’s better to get the National Party on board and reluctant to make too many changes to the scheme once it next gets into power. Cooke explains Shaw’s thinking: “to get people to actually trust that this structure would remain in place, Shaw knew he would have to bring National along with him. Any new structure which National just promised to tear down when it eventually won office would seem toothless, in his eyes.”

The consensus approach might end up being be very bad for the Greens electorally, according to Matthew Hooton, who says: “With multi-party consensus, those who worry about climate change now have no more reason to vote for the Greens than for Labour, National or NZ First” – see: James Shaw’s victory double-edged (paywalled).

Here’s his main point: “Come election time, Shaw and Ardern may wax lyrical about the new legislation and the Climate Change Commission it sets up, but Simon Bridges and Winston Peters will both be able to say, ‘yep, that’s my policy too’ and move on to immigration, infrastructure, housing or the economy.” Meanwhile, the Greens are likely to bleed more activists.

That makes National the biggest winner from the new law, Hooton says. And the fact that the party signed up was important for getting the law enacted: “National and NZ First are chasing the same provincial vote and so are joined at the hip on issues that worry farmers and agriculture support industries. Had Bridges defected from Shaw’s consensus, Peters would have too, and the bill would have been defeated. Whether out of genuine conviction, cynical political calculation or both, Bridges has therefore chosen to give Ardern a significant short-term win, but that only underlines how powerfully it is in National’s interests to remove climate change from the mainstream political debate”.

Herald political editor Audrey Young certainly regards the whole outcome as very good for National’s leader, saying he “has just had the best week of his leadership and enhanced his credentials as leader for his management of the party’s shift on climate change” – see: Simon Bridges enhances his leadership over climate change shift (paywalled).

Navigating the repositioning in favour of the ZCA was a long-time coming, and not easy for National’s leader: “Bridges had to be mindful of a policy shift that could alienate the rural sector, alienate the urban vote by looking too much like a farmers’ party, give New Zealand First a weapon by botching the arguments, cause strife within his party, and all about an issue which gave leadership rival Judith Collins an opportunity to seek support.”

In the end, Young says, it was entirely in National’s electoral interests to vote for the legislation, and the decision was “more about National’s future and how it wanted to be seen. Had the party voted against the bill, it would have been seen as climate deniers, not reflecting mainstream New Zealand which is caring more and more about climate change, and of being the party of only farmers, not urban liberals.”

She points to battles behind the scenes with NZ First determined to block National’s pro-farmer amendments to the legislation. Young says this also advantaged National: “Now National can legitimately claim to farmers that New Zealand First opposed National’s ameliorating amendments”.

Similarly, Henry Cooke says “In a strange way this is something of a victory for Simon Bridges’ leadership. He came into the leadership promising some compromise climate change” – see: James Shaw won the battle on climate change, not the war.

Cooke argues that National had to support the law, even if it continues to fight against other elements of the Government’s climate change agenda: “National was wedged into a very tricky space. As much as it might like to project itself as the party for rural New Zealand, the truth is there aren’t enough people in rural New Zealand to get the party the kinds of vote totals it needs to win power. National is an urban party as much as it is a rural one, and recognises that climate change is not going away as a topic. Now it can look constructive on the big structural stuff like the Zero Carbon Bill while turning the actual day-to-day climate change issues into proxy culture wars – see the feebate proposal, or investment in public transport.”

Cooke also points to NZ First’s role in watering down the power of the new Climate Change Commission: “Shaw was also keen to make the commission have a bit more actual power – a la the Reserve Bank. But NZ First leader Winston Peters quashed that, and then made sure everyone knew about it.”

Veteran political journalist Richard Harman also focuses on the role of NZ First in shaping the ZCA, reporting that Shaw had to negotiate very carefully with the party, and encountered many hurdles along the way. For example: “Those negotiations were, by all accounts, going well until Shaw’s separate negotiations with NZ First Chief of Staff, Jon Johansson, broke down late last year. There are varying descriptions of what happened, but the situation was so bad that the Prime Minister commissioned former chief of staff to Helen Clark, Heather Simpson, to try and broker a peace” – see: Bridges uses the Zero Carbon Bill to redefine National.

The upshot was that “NZ First demanded that Shaw stop negotiating with National and talk only to Government parties. The Prime Minister apparently agreed with this approach.”

In another column, Harman says “Shaw is understood to have been so frustrated by NZ First’s obstinance that he did not mention them in his speech lauding the bipartisan support for the Bill. Instead, he paid tribute to Bridges, [Scott] Simpson and [Todd] Muller” – see: Bipartisan agreement – except for NZ First.

And National seemed to return the favour, with Todd Muller – who negotiated much of the agreement with Shaw – being quoted in Parliament by Harman giving tribute to Shaw: “There are certain people that you meet in this place who you can connect with. He is one of them. He is a man of huge character and integrity. There were many times in the last 18 months of this process where things could have turned out differently, but for his determination to see this as an opportunity beyond partisan politics, the credit, in no small measure, sits with him.”

Finally, an interesting analysis of the ZCA comes from Thomas Coughlan, who draws on rightwing public choice theory to argue that the new legislation succeeds in taking much of the politics – or democracy – out of climate change, just as Ruth Richardson’s Fiscal Responsibility Act did for debt in the early 1990s – see: Carbon bill might not save NZ from climate change, but it saved democracy from itself. He says, “Get used to hearing forms of the following: ‘Don’t blame me for making you cut your emissions, blame the Zero Carbon Act’.”

James Shaw rates his Zero Carbon Bill as seven or eight out of ten. And former Green Party co-leader, Russel Norman – now with Greenpeace – rates it zero out of ten. Either way, it’s clear that the new legislation isn’t really the crucial planet-saving bill that many were hoping for. And it certainly doesn’t seem to match up to Jacinda Ardern’s claim that her government regards the climate change crisis as her generation’s nuclear-free moment.

The press release from Greenpeace really was quite stunning in its scathing critique of the Government – see: Toothless Zero Carbon Bill has bark but no bite. To quote Norman: “What we’ve got here is a reasonably ambitious piece of legislation that’s then had the teeth ripped out of it. There’s bark, but there’s no bite.” And ultimately, the bill “is watered-down medicine that lacks the potency to cure the actual ailment we have”.

Norman went on to criticise more about the bill, on various broadcasters, even saying that it amounted to “virtue signalling” as it would do nothing to fight climate change, only make the Government look like they were taking action.

One of Norman’s main criticisms is that the bill establishes targets for emission reductions that are “unenforceable”. He told TVNZ’s Breakfast: “They’ve made it very clear – it’s like saying the speed limit is 50km/h, then the next line says that no one is allowed to enforce the speed limit. The next part is you can go get a declaration, it’s called, but a declaration has no weight – you can’t force the Government to do anything” – see: Climate change amendment bill ‘unenforceable, problematic’ – says Greenpeace New Zealand leader.

In this interview, Norman also calls on the public to pressure the Government to do more: “That people power element is essential and people shouldn’t think that somehow, this, the Government now has this under control… They’ve been calling it climate action – it’s not. Action will only happen now if people really mobilise and put pressure on politicians.”

Norman also says: “The Bill sends some good signals, until you get to the section at the end that negates everything else you’ve just read. This section states there is no remedy or relief for failure to meet the 2050 target, meaning there’s no legal compulsion for anyone to take any notice.” See also: Greenpeace Executive Director rates Zero Carbon Bill 0 of 10.

Others have also criticised the new legislation for setting up a Climate Commission that recommends necessary actions, but has no power.

According to Gordon Campbell the bill has “been reduced to a shadow of what the Greens originally envisaged”, and the lack of independence for the Commission is big problem: “Crucially, these are to be aspirational targets and recommendations only. The Commission lacks the policies to help achieve them, the powers to enforce them, the penalties to punish non-compliance, and the independence to over-ride the opposition from competing interests. Instead of reporting to Parliament, the Commission will report to the government of the day, who will be free to spin or muzzle its findings as it sees fit” – see: Token moves on climate change.

Blogger No Right Turn is also critical of the bill, and not only for the problem with the enforceability of the targets, but because setting the carbon neutral goal for 2050 is too unambitious in light of the crisis we are in: “2050 looked great as a target year a decade ago, but it may now be too late. I suspect that we’re going to have to increase our ambition and bring forward the target year for net-zero in the medium term” – see: Climate Change: The Zero Carbon Bill.

Other climate commentators have criticised the lack of ambition in the targets and processes involved. For example, Bronwyn Hayward, who was New Zealand’s lead author on last year’s Intergovernmental Panel on Climate Change report, is reported as approving of the overall framework of the bill, but being unhappy about the new Commission reporting to the Government of the day rather than Parliament as a whole: “We all know that when you’re reporting to a government of the day your report can be, the text can be massaged, the release can be delayed which all gets in the way of what we actually need which is a fearless commission” – see Kate Gudsell’s Climate change plan: ‘Setting the bar so low’.

As to why the Government “had to set the bar so low”, Hayward suggests it was “in order to get everybody on board”. This has been a common theme in the commentary about the new bill. For example, although Gordon Campbell points the finger at New Zealand First for watering down the bill, he thinks that it’s a result of the consensus political process and “the path of moderation has ended up pleasing virtually no-one”.

Clearly, the Government and the Greens have put a high priority on “consensus” in drawing up the Zero Carbon Bill. James Shaw, in particular, wanted to put together a law that had as much buy-in as possible from political parties and relevant organisations.

For one of the best discussions of this prioritisation of consensus, see Toby Manhire’s interview with the Climate Change Minister, in which Shaw explains that he went to great lengths to consult and find consensus, saying “I’ve bent over backwards, and some people argue forwards too, to get them on board” – see: James Shaw and the zero hour.

This might have led to what Shaw acknowledges are “imperfections” in the legislation, but he justifies the approach like this: “It’s important because it reduces the chances that a future government will come in and biff it out. I mean, they could. But generally what happens is if a party votes for legislation when they’re in opposition they will uphold it when they’re in government.”

Furthermore, Shaw says that environmental groups backed this approach: “I’ve said to them: tell me what is more important. Do you want this thing to last for 30 years or do you want it to be perfect? And what they’ve said is that they need it to last for 30 years, because there’s no point in having a perfect piece of legislation that get thrown out three or six or nine years down the track. If you think about that 30-year target, it’s got to survive three or four governments in that time.”

In this interview, Shaw has high praise for the National Party for how they engaged in the process: “Look, they’ve operated in a way that has been unusually nonpartisan. They really have. We’ve been talking to them for just under a year. They’ve had plenty of opportunity to give us a good kicking, to really blow it up politically, or make hay out of it. They’ve chosen not to do so. So they have engaged in really good faith. There are certainly elements of the bill that are directly due to things they’ve proposed to us.”

And in terms of the controversial new target whereby methane gases will need to be reduced by ten per cent by 2030, Shaw suggests that this could still be moderated over the next few months if it helps get the National Party onboard. But there would inevitably be a trade-off: “you could have a lower methane target, but that means you’d have to have a steeper long-lived gases target – get to net zero in, say, 2040 or 2030”.

For another very good discussion of both the Greens’ attempt to find consensus, and also the possibility of bringing National into the multi-party consensus on the legislation, see Thomas Coughlan’s Zero Carbon Bill lives or dies on politics. According to Coughlan, the success or otherwise of this bill will be very telling for the New Zealand political system: “If the bill succeeds, it will vindicate the ability of our complicated, imperfect democracy to solve the great problems of our age… If it fails, it will prove the opposite: that our democracy isn’t up to handling the great problems of our age.”

The problem is, “When your starting point is bringing in as many cooks as possible, you’ll inevitably spoil the broth. The Government’s next big problem also has a British precedent [of Brexit], and that is the danger that in trying to please everyone, you end up pleasing no-one”.

Now the pressure will be on National to support the bill. They want the Government to drop the detailed methane targets and instead leave the target-setting to the new Climate Commission. Commenting on this, political journalist Richard Harman says: “whether the Government would be prepared to accommodate that now would seem highly unlikely. And that could be a deal breaker” – see: Why is James Shaw apologising to Todd Muller over climate change?.

It therefore seems unlikely that a cross-party consensus will eventuate. But, in reality the Government appeared to give up on that some weeks ago, with Shaw apparently having to pull out of continued talks with National’s climate spokesperson, Todd Muller – which Shaw publicly apologised for last week. It seems that New Zealand First has played a significant role in recent changes to the process and substance of the bill. Although Harman reports that New Zealand First contacts “have been briefing journalists warning that they would have to agree to stricter methane targets than they would like because of the big win they had over capital gains tax”.

Given that consensus hasn’t worked out, and given that the Greens didn’t get what they wanted from the bill, Simon Wilson ponders who was to blame in his column, High stakes and the Greens’ game (paywalled). Wilson seems to think that it was Labour rather than New Zealand First who have stymied the bill being more progressive.

Wilson almost rules out New Zealand First and National as being responsible for ruining the consensus: “So why did that consensus fail? Blame the usual suspects, NZ First? Their rhetoric is all about their being the farmers’ friend, which makes them unlikely promoters of a methane target higher than farmers wanted. Was it National, slyly deciding to stay out of the deal, whatever it proposed? That also seems unlikely: Shaw and National’s climate change spokesperson Todd Muller have forged a close working relationship they both say is based on trust.”

Instead, it seems that Labour might be responsible: “So was it NZ First after all, playing dark and dirty with a Greens initiative because that’s what they always do? Or did Labour shaft the consensus? There’s a logic to that. Labour always needs issues that define it as being different from National, and consensus doesn’t matter if your opponents are going to accept your reforms later anyway.”

Finally, according to economist Rod Oram, this bill was always destined to be a problem because all political parties are hostage to conservative forces who don’t want to see real action on climate change. He says that the Zero Carbon Bill “is by far the most important Act our Parliament will ever pass” but that it isn’t the best legislation that could have been produced. Therefore, “time is very short to get a very direct message to all parties: a significant number of voters want a far more effective Climate Act than this Bill offers. If that means taking to the streets, let’s do it” – see: Time to shout for a better climate law.

By David Robie at Te Papa

A former New Zealand prime minister has warned that climate change has the potential to force a legal and political upheaval that the world would underestimate “at its peril”.

Speaking at the Pacific Ocean Climate Conference at Te Papa Museum in Wellington yesterday, Sir Geoffrey Palmer said a largely unexplored aspect of climate change lay in the “potential to force the revision of many fundamental and long accepted methods of doing government and organising its institutions”.

New Zealand would not be able to solve this problem alone and it would need levels of international cooperation “not yet achieved”.

“The four horsemen of the Apocalypse in the [biblical] book of Revelation were pestilence, war, famine and death. Climate change has the capacity to produce those conditions to a worrying extent in the future,” said Sir Geoffrey, now distinguished fellow in Victoria University’s Faculty of Law.

“We underestimate at our peril the challenges that it will bring and that it has brought already.”

He cited riots and massive refugee flows as some early examples.

Sir Geoffrey said New Zealand would need to ensure that the instruments of government – both domestically and internationally – were adjusted to meet the challenges and this “poses a formidable set of issues”.

Climate change lawsuit
Sir Geoffrey made the comments in an analysis of a recent landmark, but unsuccessful, legal challenge to the New Zealand government over climate policy made by a 26-year-old law student, Sarah Thompson.

He also gave an in-depth overview of the state of environmental law in the country.

Commentators at the Te Papa conference, including Sir Geoffrey, hailed Thompson for bringing the test case, which sought a court ruling over the National-led government’s two key climate goals and argued these no longer met New Zealand’s obligations under the COP21 Paris targets.

Media publicity about Justice Jillian Mallon’s 25-page judgement delivered on November 2 was relatively muted, however, given that New Zealand’s climate policies changed with a Labour-New Zealand First-Green government taking office.

Sir Geoffrey said Sarah Thompson’s name would always be remembered in relation to climate change lawsuits.

“Endless further iterations of the Paris agreement will be necessary before substantial progress is made [over climate change jurisprudence],” Sir Geoffrey said.

He added that as he had written in other legal papers, he was “not sanguine that the mechanisms for making international law and enforcing it effectively are adequate to allow us to be confident that climate change can be properly addressed”.

In Paris in June 2017, the Global Pact for the Environment had been unveiled and it was a “powerful document that would remedy many difficulties with the international law for the environment were it binding”.

Not binding
The problem was that it was not binding and there did not seem “an immediate possibility” that it would become binding.

New Zealand’s domestic legal situation now needed to be designed with a durable framework that could endure over time and would not be the subject of “sudden policy lurches” due to changes of government.

Sir Geoffrey said the Parliamentary Commissioner for the Environment and the Waitangi Tribunal had the potential to provide alternatives to the official narrative and “these could both be helpful in stimulating public opinion to demand more from elected representatives”.

Also, New Zealand was one of only three countries in the world without a written constitution and provision of an environmental right in such a written, codified constitution would offer the courts “more capacity than they have now” to rule on climate change issues.

However, it was unrealistic to expect the courts to become major players in climate change policy.

“You would be better off talking to politicians,” he added.

Two activist lawyers from the North Pacific disagreed with Sir Geoffrey’s pessimistic view in the same Te Papa conference session, although they were dealing mostly with American-based legal jurisdictions.

Invoking indigenous rights
Dr D. Kapua Sproat, acting ditector of Ka Huli Ao Centre for Excellence in Native Hawai’ian Law and director of the Environmental Law clinic at the University of Hawai’i at Manoa, said Native Hawai’ians could invoke indigenous rights to environmental self-determination.

She said human rights and constitutional restorative justice legal principles could and were being used to challenge the dominant culture.

Julian Aguon of Guam, founder of boutique Blue Ocean Law, said it was a challenge to confront deep-sea mining negotiators and corporate lawyers in “wild west” style cases in the Pacific.

He said he had been working on the issue in several countries and was concerned that 27 deep sea exploration contracts had been awarded in a field of law where there was no or little oversight or regulation.

Aguon said an unsavoury “cast of characters” had embarked on a new “minerals gold rush” in the Pacific’s so-called “rim of fire” region since 2012.

He was dedicated to protecting indigenous customary and traditional rights, which were already being negatively impacted on by the deep-sea exploration disturbances.

• NZ’s first climate change lawsuit rejected by High Court
• Global Pact for the Environment

Article by AsiaPacificReport.nz