Climate Litigation And An Implicit Right To A Healthy Environment. Proposing A Rights-Based Approach To Climate Litigation In Aotearoa

Abstract

New Zealand – currently – does not have effective climate litigation. The approaches deployed in climate cases fail to produce favourable outcomes for both the plaintiff and the planet. This existing deficiency in what could be a central aspect of a productive national climate change regime raises concerns considering the severity and immediacy of the climate crisis. To address this inefficiency, this paper proposes an alternative approach to climate litigation – an approach grounded in human rights. In deploying this approach, a plaintiff could argue that the Court should interpret the right to life under section 8 of the New Zealand Bill of Rights Act as implicitly encompassing a right to a healthy environment. This right confers a positive obligation of active protection on the New Zealand Government, an obligation that has been invoked, due to the direct threat climate change poses to the right to a healthy environment. However, the Government has failed to fulfil this obligation, thereby violating the plaintiff’s rights. This approach, although no silver bullet, has the potential to reform the effectiveness of New Zealand’s climate litigation, and assist in ensuring an ambitious national climate change regime.