Amiria Tikao discusses the duty of active protection in the context of environmental decisionmaking in light of the recent case Climate Clinic Aotearoa Inc v Minister for Energy and Resources.

Hei tīmatanga – Introduction

Climate Clinic Aotearoa Inc v Minister for Energy and Resources (Climate Clinic) is the latest addition to Aotearoa New Zealand’s growing body of climate litigation.^[1] The appellant, Climate Clinic Aotearoa, judicially reviewed a decision of a delegate of the Minister for Energy and Resources (the ‘decision-maker’) to grant two exploration permits for petroleum under the Crown Minerals Act 1991 (CMA). There were two key arguments on appeal: first, that the decision-maker was required to consider the impacts of the permits on climate change and failed to do so; and secondly, that the decision-maker breached the Treaty principle of active protection by failing to consider the wider impacts of climate change on Māori interests beyond the iwi and hapū directly affected.^[2]

The Supreme Court dismissed the appeal on the facts but accepted both legal arguments. It held that climate change is a mandatory relevant consideration under s 24 of the CMA, and that the duty of active protection requires decision-makers to engage with the broader impacts of Crown actions on Māori interests when the activity affects the climate system. This article focuses on the latter finding. It argues that Climate Clinic marks a development in the scope of the duty of active protection in the context of environmental decisionmaking.

Kōrerorero – Discussion

Background of the case  

The CMA vests ownership of certain minerals in the Crown and provides a framework to facilitate their exploitation commercially.^[3] There are permits for three kinds of activities available: prospecting, exploration, and mining. Exploration permits enable right-holders to explore for petroleum in designated areas, and in practice lead to mining permits.^[4] Within this process, s 4 of the CMA states that decision-makers “shall have regard” to the principles of the Treaty of Waitangi. Also relevant to the decision is the Minerals Programme for Petroleum; a form of secondary legislation that sets guidance for decision-makers, including how they will “have regard” to the principles of the Treaty.^[5] Decisionmakers are bound by the terms of the programme under s 22.^[6]

In 2018, Parliament enacted the Crown Minerals (Petroleum) Amendment Act in pursuit of the broader national and international movement towards a “just transition” away from the consumption of fossil fuels.^[7] The Amendment Act prohibited new offshore mining permits for petroleum, limiting new permits to the onshore Taranaki region only. As stated by the Court, the effect of the amendment was to “substantially reduce the area available for new petroleum exploration.”^[8] The decision to hold the 2019 tender for new blocks in the onshore Taranaki region occurred contemporaneously with the enactment of the amendment. This was followed by the allocation of those permits to two companies. This broader policy context became relevant to the appeal.

Within the 2019 decision itself, the assessment of Treaty principles focussed on submissions made by iwi and hapū within the Taranaki region directly affected by the proposed permits as required by the Minerals Programme for Petroleum. The extent to which the interests of these groups were protected was by excluding historically significant areas from the block offer; making permit grants subject to an “iwi engagement condition”; assessing bids against the iwi engagement condition; and continuing to engage with iwi to ascertain whether their involvement in the process was adequate.^[9] The wider impacts of climate change on Māori interests beyond this were not addressed, despite one consulted group, Te Korowai o Ngāruahine Trust, requesting the decision-maker to do so.^[10]

Arguments and findings in relation to Te Tiriti

Appellants 

The appellants founded their argument in the duty of active protection. They argued primarily that the decision-maker was required to consider the impacts of climate change on Māori beyond the iwi and hapū directly affected because the Crown had information to the effect that climate change would adversely impact Māori interests disproportionately.^[11] Te Hunga Rōia Māori as interveners agreed with the appellants and submitted that in this case, the duty of active protection required the decision-maker to “turn their mind to, and actively engage with” the nature of Māori interests implicated and the impact of the Crown’s activities on those interests.^[12] They argued that evidence of serious adverse impacts on Māori interests at the local level or national level could require either the refusal of a permit or a conditional grant only.^[13] To limit consideration of Treaty principles to the iwi and hapū directly affected would be to take “an overly reductionist” approach to the Crown’s Treaty obligations, and unduly burdens those local iwi and hapū.^[14]

Respondent

The respondent argued that s 4 must be read as constrained by the purpose of the CMA, which is to “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand.”^[15] They contended that requiring consideration of the broader impacts of climate change on Māori would be contrary to this purpose, which leaves wider climate change policy to be addressed elsewhere. As such, considering the impacts on the iwi and hapū directly affected was enough, and that was satisfied in this case.^[16]

The Court’s findings 

The Court rejected the respondent’s argument as untenable for many reasons. Firstly, and most simply, the implications of permits on climate change, especially as they relate to Tiriti obligations, were not addressed “elsewhere” at the time of the 2019 decision. Nor is the argument logical, since it would permit consideration of local environmental impacts under s 4 but arbitrarily draw the line at the national impacts, negating the respondent's own contention that “issues that can be addressed under other statutory regimes should be addressed under those regimes.”^[17] But even more fundamentally, the Court reaffirmed the general principle that Treaty clauses should be given “a broad and generous construction”, and nothing within the CMA suggested the narrow reading contended.^[18]

While these findings were relatively textbook, it is what the Court did next that is particularly interesting. The Court accepted that Treaty principles require the Crown to “actively engage with the nature of the Māori Treaty interests affected by Crown action, and with the nature of that Crown action”, adding that “especially vigorous action” may be required where taonga is in a vulnerable state.^[19]

The Court then briefly mapped out evidence referring to the special vulnerabilities Māori experience from climate change, which included the large proportion of culturally significant sites situated in locations subject to coastal hazards and rising groundwater; the threat to mahinga kai practices and taonga species; and the exacerbation of socio-economic deprivation in Māori communities.^[20]

The Court then concluded that “against this background”, the duty of active protection required the decision-maker to gather and consider information on the impacts of climate change upon Māori Treaty interests beyond iwi and hapū directly affected by the activity. Consideration required engagement with “the particular nature of Māori interests at stake, and the impact of the Crown action upon those interests.”^[21]

Climate Clinic’s development of the duty of active protection

While framed in general terms, the finding in Climate Clinic can be understood as recalibrating the minimum requirement of active protection in a specific category of decision-making. The Court’s recognition of the disproportionate vulnerability of Māori interests to climate change operates not as a case-specific factual observation, but as a broader contextual premise applicable to all public decision-making affecting the climate system.

In that context, the duty of active protection is no longer confined to engagement with Māori interests directly affected by the immediate subject matter of the decision. Rather, where Crown action contributes to climate change, it could be argued that decision-makers are required at a minimum to consider the broader impacts of that action on Māori interests systemically, including those beyond the directly affected iwi and hapū. In this way, the Court’s reasoning essentially introduces a “bottom line”: climate-affecting decisions require, at least, engagement with the wider spectrum of Māori interests.

What constitutes “engagement” in this context was not addressed in the judgement. However, the Court’s reliance on the Broadcasting Assets dicta suggests that the content of the obligation is not merely formal.^[22] Rather, the intensity of engagement will scale with what is at stake. What this will actually require is ominous; but, as Te Hunga Rōia Māori submitted, where impacts on Māori are serious, either at the localised level or national level, active protection of Māori interests may require refusal of the activity in question.^[23]

Furthermore, the practical force of this development must be understood in light of the qualification that the duty is shaped by what is reasonable in the circumstances.^[24] In Climate Clinic, the decision sat within a broader policy context of a “just transition” away from petroleum extraction, reflected in the 2018 Amendment Act. That context was considered to have tempered the Crown’s Treaty obligations, as despite the identified risks, the permit was not considered in isolation, but within its broader context of protecting the climate system.^[25]

By contrast, it could be argued that in a different policy environment, the same reasoning may lead to a different outcome. Where Crown action more directly conflicts with the protection of vulnerable Māori interests, the requirement of “especially vigorous action” may demand more substantial constraints on decision-making. The significance of this finding therefore lies in its re-conceptualisation of protection: no longer dependent on a direct nexus to the activity, but instead anchored in the nature of the activity itself.

The longer-term significance of the decision, however, remains uncertain, particularly as the legislative incorporation of Treaty principles becomes increasingly contested. Whether Treaty-based obligations can extend beyond express statutory incorporation, potentially through the principle of legality, remains an open constitutional question.

Ngā rārangi pukapuka – Bibliography

A) Cases

Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (Radio Frequencies) CA.

Climate Clinic Aotearoa Inc v Minister for Energy and Resources [2025] 1 NZLR 1021, [2025] NZSC 197.

Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.

Greenpeace of New Zealand v Minister of Energy and Resources [2012] NZHC 1422.

New Zealand Maori Council v Attorney-General (Broadcasting Assets) [1994] 1 NZLR 513 (PC).

New Zealand Maori Council v Attorney-General (SOE case) [1987] 1 NZLR 641 (CA).

Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).

Trans-Tasman Resources Limited v the Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.

Urlich v Attorney-General [2022] NZCA 38, [2022] 2 NZLR 599.

Stafford v Attorney-General [2022] NZCA 165.

Stafford v Attorney-General [2022] NZSC 108.

Students for Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116, [2022] NZRMA 612.

Wallace v Attorney-General [2021] NZHC 1963.

Wallace v Attorney-General [2022] NZCA 375.

B) Legislation

Crown Minerals Act 1991.

Fast-track Approvals Act 2024.

C) Journal articles

Carwyn Jones “Tawhaki and the Treaty: A principled approach to the constitutional future of the Treaty of Waitangi” (2013) 25 NZULR 703.

Dean R. Knight “Te Tiriti o Waitangi norms, discretionary power and the principle of legality (at last)” (2022) Public Administration: an international quarterly covering public administration throughout the world. 701-704.

Hannah Yang “A Principle of Legality for the Treaty of Waitangi” (2022) NZLJ 400.

Jason N. E. Varuhas “The Principles of Legality in Aotearoa New Zealand” (2023) 33 Public Law Review (forthcoming).

D) Parliamentary and government materials

Minerals Programme for Petroleum 2013 Order (No 2) 2013.

Natural Environment Bill.

E) Reports 

Waitangi Tribunal Muriwhenua Fishing Report (Wai 22, 1988).

F) Dissertations

George Barton “Striving for Consistency: Three Paths to Judicial Review of Executive Action for Consistency with Te Tiriti o Waitangi” (LLB (Hons) Dissertation, University of Auckland, 2021).

G) Internet resources

Ministry of Justice “Review of legislation including reference to the principles of the Treaty of Waitangi” (21 Jan 2026) justice.govt.nz <www.justice.govt.nz>.

New Zealand Petroleum and Minerals “Crown Minerals Act 1991 Programmes” (n.d.) <www.nzpam.govt.nz>.

Ngā kupu āpiti - Notes

[1] Climate Clinic Aotearoa Inc v Minister for Energy and Resources [2025] 1 NZLR 1021, [2025] NZSC 197.

[2] At [3].

[3] At [16]-[18].

[4] At [18]; Crown Minerals Act 1991, ss 2B, 23 and 32(3).

[5] At the time of the decision, this was the Minerals Programme for Petroleum 2013 Order (No 2) 2013; New Zealand Petroleum and Minerals “Crown Minerals Act 1991 Programmes” (n.d.) <www.nzpam.govt.nz>.

[6] Crown Minerals Act, s 22.

[7] Crown Minerals (Petroleum) Amendment Act 2018.

[8] Climate Clinic Aotearoa Inc v Minister for Energy and Resources, above n 1, at [25].

[9] At [122]-[123].

[10] At [123]-[124].

[11] At [108].

[12] At [109].

[13] At [110].

[14] At [111].

[15] Crown Minerals Act, s 1A.

[16] Climate Clinic Aotearoa Inc v Minister for Energy and Resources, above n 1, at [112]-[114].

[17] At [127] and [129].

[18] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [151].

[19] New Zealand Maori Council v Attorney-General (Broadcasting Assets) [1994] 1 NZLR 513 (PC) at 517 cited in Climate Clinic Aotearoa Inc v Minister for Enegry and Resources, above n 1, at [133].

[20] Climate Clinic Aotearoa Inc v Minister for Energy and Resources, above n 1, at [134]-[135].

[21] At [135].

[22] See New Zealand Maori Council v Attorney-General (Broadcasting Assets), above n 19.

[23] Climate Clinic Aotearoa Inc v Minister for Energy and Resources, above n 1, at [110].

[24] New Zealand Maori Council v Attorney-General (Broadcasting Assets), above n 19, at 517.

[25] Climate Clinic Aotearoa v Minister for Energy and Resources, above n 1, at [137].

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