Defeated bill not the end of fight for right to sustainable environment – Shaw

James Shaw’s final piece of legislation was, as expected, voted down by the coalition parties at its first reading on Wednesday afternoon.

The New Zealand Bill of Rights (Right to Sustainable Environment) Amendment Bill was the only thing that has kept Shaw in Parliament since he stepped down from the Green Party co-leadership a month ago. After picking up the legislation authored by Lawyers for Climate Action and supported by dozens of KCs, he told reporters it was his duty to shepherd it through the house before he leaves.

Now he’s set to be free. Even with confirmed support from Labour, Te Pāti Māori and of course the Greens, Shaw needed the votes of New Zealand First to advance the legislation to a select committee.

The legislation would have added the right to a sustainable environment to the list of rights in the Bill of Rights Act.

Speaking to Newsroom on Tuesday, Shaw had expected the defeat.

“I would be surprised if it passed first reading at this point,” he said. “I think it’s a real missed opportunity. Having said that, Parliament has yet to hear the argument and I’ll be responding at the end of the first reading to what I hear from other parties.”

Lawyers for Climate Action’s executive director Jessica Palairet said gathering support from the KCs and 16 other environmental and human rights groups was an attempt to depoliticise the bill. Amnesty International, Unicef NZ, the World Wildlife Fund and the Equal Justice Project were among the groups that signed an open letter on Tuesday calling for the bill to be passed through to select committee.

“A clean, healthy, and sustainable environment is the bedrock upon which all other human rights depend. This includes but is not limited to children’s rights as enshrined in the Convention on the Rights of the Child, the right to health, and the civil and political rights protected in the Bill of Rights Act,” the groups wrote in the open letter.

When Lawyers for Climate Action formed in 2019, this was one of the group’s first pieces of work. At the time, it persuaded 59 Queen’s Counsel (now King’s Counsel) to back the proposal before taking it to Shaw who was then the Climate Change Minister.

“It’s not that common to find the legal profession galvanised over an issue like this,” Palairet said. “This isn’t an issue that has to be drawn along political party lines, it should be seen as just a legal issue and an issue for humanity.”

After the election, Shaw picked up the bill and submitted it to the members’ ballot, from which it was selected in December.

The scope of the proposal was relatively narrow, Palairet said.

“It’s a relatively confined change. It’s really short because it’s just inserting one new right into the [Bill of Rights],” she said.

“Practically, it means that when new legislation is proposed, the Attorney-General would vet that legislation for consistency with the new right as they do with all other rights. It means that judges when considering how interpret legislation, the legislation could be presumed to be consistent with the right.

“One of the other benefits is that it would require, if lawmakers wanted to introduce legislation that would be inconsistent with the right – that would be harmful to the environment – it requires them to scrutinise that a little bit more and be more explicit and more transparent about that with the New Zealand public.”

Shaw said New Zealand was one of a “shrinking minority” of countries which haven’t recognised the right to a sustainable environment in one way or another.

“I think over 130 other countries around the world already have, either at the national or state level. We are behind the curve.”

In 2022, New Zealand and 160 other countries supported a motion at the United Nations General Assembly to recognise the right to a sustainable environment. Palairet said voting down that recognition at home would be a shame.

“I just think it’s a real shame to be cutting it off at its knees at its first reading without allowing us to have this wider constitutional discussion, as a nation, to be honest,” she said.

While this might be the end of the road for Shaw, he doesn’t think it’s the final death knell for this particular proposal. Between the courts examining environmental and climate issues through a Bill of Rights and human rights lens and the increasing adoption of similar measures internationally, he feels it is only a matter of time before New Zealand catches up.

“There is, I think, an inevitability to this,” he said. “I would say that if the bill doesn’t pass first reading tomorrow, that it is important that we lay down tracks for the future.”