The anatomy of usurpation: Climate Clinic Aotearoa v Minister of Energy and Resources

LawNews

Imagine Parliament passes a Schools Act “to promote the establishment of schools for the benefit of New Zealand.” Parliament is careful. It specifies exactly what the Minister must consider before approving a new school: the operator’s financial capability, site safety, compliance history, and consultation with local iwi. There is no general discretion. There are no open-ended criteria.

A proposal comes before the Minister. She works through the statutory criteria. The operator is financially sound. The site is safe. The compliance history is clean. Local iwi have been consulted. She approves the school.

A court then intervenes. It holds that “for the benefit of New Zealand” does not mean Parliament has already decided that schools, as a class, are beneficial. Rather, the Minister must now separately assess whether this particular school benefits New Zealand – taking into account matters the court considers “obviously relevant,” such as long-term social cohesion.

The court also holds that consultation with local iwi is not enough. Because education affects Māori nationally, the Minister must consider impacts on Māori across the country.

The Minister is bewildered. She did exactly what Parliament required. Yet she is now told she must assess unspecified national outcomes, against no criteria, with no statutory machinery, and no guidance as to weight or priority – and that failure to do so is unlawful.

What exactly is the Minister meant to do with that instruction?

This is not hypothetical. It is what the Supreme Court has just done with the Crown Minerals Act 1991.

The decision

In Climate Clinic Aotearoa Inc v Minister of Energy and Resources [2025] NZSC 197, delivered on 19 December 2025, the Supreme Court considered a challenge brought by a group of law students to petroleum exploration permits granted in the Taranaki region.

The students – originally organised as Students for Climate Solutions, later renamed Climate Clinic Aotearoa – challenged permits granted in 2021 to Greymouth Gas Turangi Ltd and Riverside Energy Ltd. The permits conferred exclusive rights for ten years to explore for petroleum in specified onshore areas. If exploration succeeded, the permit holders could apply for mining permits.

The challenge failed in the High Court and the Court of Appeal. The Supreme Court dismissed the appeal on the facts. But in doing so, it accepted the appellants’ key legal arguments – and established a framework that would have been unrecognisable to the Parliament that enacted the Crown Minerals Act in 1991.

The Crown Minerals Act vests mineral ownership in the Crown and sets out a tightly specified framework for allocating exploration and mining rights. Section 1A, inserted in 2013, states that the Act’s purpose is “to promote prospecting for, exploration for, and mining of Crown owned minerals “for the benefit of New Zealand.” (The word “promote” was later changed to “manage” in 2023 by the then Labour Government, then restored in 2025 under the National-led Coalition Government. But “promote” was the operative word when the permits were granted in 2021.)

Parliament specified exactly what the Minister must consider before granting permits. Section 29A requires the Minister to be satisfied that the applicant’s work programme is consistent with good industry practice, that the applicant has technical and financial capability, and that the applicant will comply with reporting and royalty obligations.

Section 4 requires decision-makers to “have regard to the principles of the Treaty of Waitangi.” Section 14 requires the Minister to prepare a Minerals Programme setting out how Treaty principles will be given effect to for the purposes of the Act. The Minerals Programme for Petroleum 2013 – the relevant programme for this case – implements that obligation by requiring consultation with iwi and hapū whose rohe includes the permit area or who may be directly affected.

Parliament said nothing about climate change in the Act. It provided no machinery for climate assessment. When Parliament wanted to address climate in public decision-making, it passed the Climate Change Response Act 2002. That Act, as amended in 2019, provides that when exercising any public function – including under the Crown Minerals Act – a decision-maker may take into account the 2050 emissions target “if they think fit.” Parliament made climate a permissive consideration, not a mandatory one.

The Court’s interpretation

The central question was whether the phrase “for the benefit of New Zealand” in section 1A (1) is to be read as reflecting Parliament’s judgment that mineral development, as an activity, is beneficial to New Zealand – or whether it requires the Minister to reassess “benefit” afresh for each individual decision under the Act.

On the first reading, the words are promotional. Parliament has decided that mineral development is for the benefit of New Zealand and has said so in the Act. The Minister’s role is administrative: to apply the criteria Parliament specified – technical capability, financial capability, good industry practice, and consultation with local iwi. Nothing more.

On the second reading, the policy question is reopened with each permit. “Benefit” becomes an open-ended evaluative judgment, to be supplied by the decision-maker – and ultimately by the courts – without criteria, weighting, or statutory machinery. The Minister must ask, afresh each time, whether this particular permit truly benefits New Zealand.

The High Court and Court of Appeal majority adopted the first view. The Supreme Court reversed them. It held at [140] that the words “for the benefit of New Zealand” require the Minister to assess, for each permit, whether granting it would in fact benefit New Zealand.

The Court reasoned that the first interpretation – argued for by Crown – would give the phrase “for the benefit of New Zealand” no substantive effect. As the judgment puts it at [56]: “Since it is to be assumed that all legislation is enacted for the benefit of New Zealand, on the respondent’s argument the words only operate as words of praise for exploration and mining.”

But this is not rebuttal. It is caricature. Purpose clauses exist to govern interpretation – not to be waved away as words of praise. The Crown’s preferred “promotional” interpretation treats those words as Parliament’s assessment that mineral exploitation benefits New Zealand – not as an empty platitude but as a legislative judgment about the value of developing Crown-owned resources. The Court did not engage with this reading. It dismissed it.

Having erroneously interpreted the purpose provision, the Court then held at [142] that climate change is a “mandatory relevant consideration” when the Minister decides whether to offer petroleum exploration permits. To justify this shift, the Court relied on a familiar judicial device derived from the Court of Appeal’s 1981 decision in CREEDNZ Inc v Governor-General [1981] NZLR 172 (CA): the idea that courts may add considerations they regard as “obviously material,” even if Parliament did not specify them.

But, properly understood, CREEDNZ was meant to be exceptional: only where a consideration is so obviously material that omission would defeat Parliament’s intention may a court treat it as mandatory. Even Cooke J (as he then was), the doctrine’s architect, cautioned (p 183) that “it is not enough that [a] consideration…is one which many people, including the court itself, would have taken into account.” “Obviousness” was never an independent source of obligation; it was a proxy for identifying what Parliament must have required in the face of statutory silence.

Climate Clinic collapses that distinction. The Court treats what it regards as important as if it were what Parliament intended – a category error that converts judicial evaluation into legislative instruction. The inquiry quietly shifts from what Parliament required to what judges now regard as important. What seems obvious to a court in 2025 may bear no relationship to what Parliament decided in 1991, reaffirmed in 2013, or recalibrated in 2018.

That shift is constitutionally significant. It invites courts to retrofit older statutes with contemporary priorities, and to strike down decisions for failing to satisfy requirements Parliament never enacted. What began as a narrow safeguard becomes a standing warrant for judicial intervention – and it expands, because each new public concern can be redescribed as the next “obvious” mandatory consideration.

In this case, the Court could not even claim to be inferring Parliament’s unexpressed intention. Parliament had expressly addressed climate in section 5ZN of the Climate Change Response Act, by providing that decision-makers may take the 2050 emissions target into account “if they think fit” – expressly permissive language. The Court converted that permission into a duty, not by amendment, but by judicial reclassification.

Parliament had already responded to climate change

The deepest irony is that Parliament had already made its considered climate change response in relation to petroleum exploration. The Crown Minerals (Petroleum) Amendment Act 2018 banned offshore exploration permits and confined onshore permits to the Taranaki region. This was Parliament’s policy choice: geographic restrictions, not general assessment obligations. Any serious attempt at statutory coherence should have recognised this.

The 2018 amendments used the phrase “despite anything to the contrary in this Act (including section 1A)” to make their restrictions effective. The Court of Appeal majority noted that if the appellants’ interpretation of section 1A were correct – if section 1A already required Ministers to assess climate impacts when deciding whether exploration was “for the benefit of New Zealand” – this proviso would have been unnecessary.

The Supreme Court dismissed that reasoning, holding at [76] that no inference could be drawn from Parliament’s use of an override clause. But that strains credulity. Legislatures do not override powers they believe already exist. Parliament imposed categorical geographic bans precisely because it did not understand section 1A to be a climate-assessment gateway. If it had, the 2018 amendments – and the express override of section 1A – would have been redundant.

The Supreme Court’s decision brushes aside Parliament’s considered policy response. Five Supreme Court judges have substituted their view of appropriate climate policy for that of the elected Parliament. This is not interpretation. It is usurpation.

The Treaty expansion

The decision’s treatment of Treaty principles follows the same pattern. As noted earlier, section 4 requires decision-makers to “have regard to the principles of the Treaty of Waitangi.” The Minerals Programme for Petroleum specifies consultation with iwi and hapū whose rohe includes the permit area or who may be directly affected.

The Court expanded this to require consideration of climate change impacts on all Māori nationally. As the judgment acknowledges at [136], the decision-maker’s consultation was “limited to the direct effects of exploration and mining upon local iwi and hapū interests.” The Court found this “would fall short of the requirements of the active protection principle.”

This transforms a localised consultation requirement into a national policy assessment – precisely as our hypothetical court did to the Schools Act. Where does this stop? If petroleum permits require national Māori consultation on climate grounds, what about other resource consents? Energy generation decisions? Infrastructure projects?

The pattern continues

Stepping back, Parliament’s intention in the Crown Minerals Act was evident from four features of the statutory scheme. First, its promotional purpose. Second, the absence of any climate assessment machinery. Third, the deliberate separation of mineral allocation from environmental regulation. Fourth, the specific 2018 climate response that chose geographic restrictions rather than assessment obligations. The Court brushed all of this aside – substituting its own policy judgment for Parliament’s

My report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court documented judicial overreach in statutory interpretation and the development of the common law, and proposed steps Parliament could take to keep the courts in their proper constitutional lane. These steps include amendments to the Legislation Act, the Senior Courts Act and legislation overturning specific aberrant decisions.

Climate Clinic exhibits the creative statutory interpretation my report documented. The Court’s dismissive reading of “for the benefit of New Zealand” mirrors the approach in Fitzgerald v R [2021] NZSC 131, where the Supreme Court stretched section 6 of the Bill of Rights Act to rewrite Parliament’s sentencing regime.

But Climate Clinic exposes a further, and equally corrosive form of judicial activism not discussed in Who makes the law: the power of courts to strike down ministerial decisions for failing to address requirements Parliament never imposed.

The constitutional consequences are serious. Legal certainty –a cornerstone of the rule of law – is eroded when statutory obligations can be expanded by judicial decree. Ministers cannot confidently exercise the powers Parliament has conferred if courts may later add new mandatory requirements of their own making. Democratic accountability is displaced: responsibility shifts from elected decision-makers, answerable to Parliament and voters, to unelected judges. Litigation becomes politics by other means.

These concerns are not unique to New Zealand. Oxford’s Professor Richard Ekins, writing for Policy Exchange’s Judicial Power Project, has warned that judicial review must not become a means by which judges effectively update decades-old statutes to reflect their own contemporary policy preferences. There is, he observes, a “constant risk” that courts “will go too far…that they will promote the rule of judges under the guise of the rule of law.”

Creative statutory interpretation (Fitzgerald v R), expansive development of the common law (Ellis v R (Continuance) [2022] NZSC 114), and mandatory relevant considerations doctrine (CREEDNZ as applied in Climate Clinic) are different routes to the same destination: courts overriding Parliament’s choices.

All three need to be reined in. For CREEDNZ – Parliament might amend the Legislation Act to provide that a consideration is mandatory only where the statute expressly requires it, or where it is necessarily implicit in the statutory text.

As Jack Hodder KC observed in his 2024 Legal Research Foundation paper, the Supreme Court’s approach has turned statutory interpretation into a “quiet constitutional battlefield.” Climate Clinic is another engagement in that battle – one where Parliament’s clearly expressed intentions have again been subordinated to the Court’s view of what contemporary policy should require.

Until Parliament acts, every Minister exercising statutory powers faces the same predicament: doing exactly what a statute requires, yet risking a finding of unlawfulness for failing to consider matters Parliament never contemplated.

This column was first published in LawNews on 2 February 2026.