The High Court has ruled public consultation on changes to the Emissions Trading Scheme can go ahead, even though Māori foresters said more pre-engagement was needed
An urgent legal bid from a Māori trade group seeking to delay the release of a Government discussion document on reforming the carbon market has failed.
On Monday, the High Court dismissed the application from Te Taumata for interim orders preventing the Government from making announcements on reforms to the Emissions Trading Scheme. Te Taumata represents Māori trade interests, including Māori foresters.
Chair Chris Insley sought the orders late last week, claiming the Government was breaching its obligations under Te Tiriti o Waitangi and personal guarantees to meaningfully engage with Māori prior to wider consultation on the changes. A hearing was held on Friday. A broader application for judicial review of the situation is still set to proceed.
The details of the Government's proposed changes are unclear, with the discussion document not yet released as of Tuesday evening, but Insley previously told Stuff they could wipe out up to $10 billion from the Māori economy.
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At issue is the treatment of forestry under the Emissions Trading Scheme (ETS). Right now, foresters earn a carbon unit for every tonne of carbon dioxide sequestered by their trees. Emitters then purchase those units to cover their own greenhouse pollution.
New Zealand is the only country with an ETS that allows for unlimited forestry units. The Climate Change Commission reiterated in April, in its strongest ever wording, that the current state of affairs means New Zealand is unlikely to actually cut climate pollution. Instead, we'll keep burning fossil fuels and offsetting those emissions by planting exotic pines on ever-greater swathes of land.
To change this, the Government launched a review of the ETS to figure out what balance of gross emissions cuts versus forestry removals it should deliver and how it could be reformed to accomplish this. The commission also recommended changes to reduce incentives for forestry offsets in the ETS.
An earlier attempt by the Government to cut off an explosion in pine planting failed after opposition from Māori foresters. Māori own a disproportionate amount of marginal land that is suited to little more than forestry, and iwi run a third of the country's plantation forests. While Māori forestry groups have plans to transition pine forests to native forests over 50 years, the commission and Government want to see native planting take over much more quickly.
The High Court case had relatively little focus on these substantive issues. Instead, it dealt with Insley's claim that the release of the discussion document alone would seriously harm Māori foresters and that the Government needed to engage better with Te Taumata before launching public consultation.
Insley's statement of claim alleged the proposals were "ETS market-sensitive information and their release will impact significantly on market participants; will have significant and irreversible effects on Māori forestry, carbon assets and the wider Māori economy; and will disproportionately impact on Māori".
He told the court he was required to sign a non-disclosure agreement in March to view the details of the proposals. Communication from the Government was poor, he said, with Te Taumata given little notice before the timeframe for pre-engagement closed.
Lawyers for Climate Change Minister James Shaw said the pre-engagement period was too short, but that there was no legal obligation for pre-engagement and that there would still be two rounds of public consultation before any legislation was introduced or regulations drafted.
The court found interim orders were justified in cases where the right to consultation was not being heeded, but that this didn't necessarily extend to pre-engagement. Such an approach would have "wider ramifications", the court said, with the Government agreeing and arguing "the policy process would grind to a halt" if interim orders were regularly made in cases involving controversial policies.
