Civil servants from New Zealand’s foreign and trade ministry have advised politicians that reversing a ban on offshore oil and gas exploration could harm the country’s international reputation and relationships, anger Pacific nations and risk lawsuits over climate change.
In 2018, the country’s then centre-left prime minister, Jacinda Ardern, effectively banned fresh efforts to look for fossil fuels offshore. But the new right-wing government led by Christopher Luxon – a former CEO of Air New Zealand – introduced legislation to reverse the ban last week, allowing just four working days for consultation and aiming to pass it by the end of this year.
In official advice, which the government accidentally published despite attempting to keep secret, the ministry warned that the move “risks being seen as running counter to the Pacific regional and global consensus on transitioning away from fossil fuels”.
It goes on to cite the global agreement made at the COP28 UN climate summit last December calling on governments “to contribute” to “transitioning away from fossil fuels in energy systems”.
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Saudi Arabia’s energy minister has downplayed the significance of this COP28 decision by calling it an “à la carte menu” of “choices”. But New Zealand-based Oil Change International campaigner David Tong said the advice from New Zealand’s civil servants shows the importance of the deal struck in Dubai.
“It provides an unambiguous example of experienced climate diplomats warning political decision-makers that domestic decisions to backslide on moves away from fossil fuels will lead to diplomatic backlash,” he told Climate Home.
The document, called a “regulatory impact statement”, was overseen by a business ministry official but features input from other departments. The section featuring the foreign and trade ministry’s advice was supposed to be redacted but the government accidentally tabled an unredacted version to parliament.
Pacific anger
A previously redacted section suggests that, in particular, the potential reaction of New Zealand’s “Pacific Island partners” to a reopening of oil and gas exploration is important for the government. It points out that the COP28 agreement “drew heavily” from the outcome of the 2023 Pacific Island Forum leaders meeting.
Tina Stege, climate envoy for the Marshall Islands, told Climate Home that the previous New Zealand government’s decision to ban new offshore gas exploration was “courageous” and “strongly supported by the Pacific”.
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She added that “any moves to restart offshore exploration would be out of line with the commitment we made in Dubai”. “We would have to question if New Zealand were truly committed to the safety and security of the Marshall Islands and all our brothers and sisters in the Pacific,” she added, referring to the threat faced by small island states of rising sea levels from global warming caused largely by the burning of fossil fuels.
Pacific nations have also criticised the Australian government’s recent decision to approve the expansion of three coal mines. Tuvalu’s climate minister Maina Talia recently told the Guardian newspaper that this was “immoral and unacceptable”.
Australia is hoping to co-host the COP31 climate summit in 2026 with at least one Pacific nation – but Turkiye also wants to host that summit.
Legal risks
In a section marked “legally privileged”, the statement highlighted two legal risks that would stem from reversing the ban on offshore oil and gas exploration.
It noted foreign and trade ministry officials’ assessment that such a move “could be perceived” as New Zealand not intending to meet its official United Nations climate plan, known as a Nationally Determined Contribution.
“This gives rise to international legal risk,” the document says, adding that “there have been attempts globally to take novel cases against States under international law, for breach of their climate change obligations”. “While these legal risks are low at this time, as is the risk of challenge, this is an active area of international litigation,” it continued.
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Governments are increasingly being sued – in both national and international courts – over their perceived lack of climate action.
In April 2024, the European Court of Human Rights ruled that Switzerland had breached its citizens’ human rights by not doing enough to cut greenhouse gas emissions, a conclusion the Swiss government disputes.
In response to a campaign led by the Pacific nation of Vanuatu, the International Court of Justice is preparing an advisory opinion on states’ legal obligations on climate change and human rights, and the consequences of causing harm.
In September 2022, the UN Human Rights Committee found that Australia’s failure to protect Indigenous Torres Strait Islanders from rising seas and extreme weather, because of its inadequate action on climate change, violated their human rights.
Nikki Reisch, director of the Center for International Environmental Law’s climate and energy programme, told Climate Home that lifting New Zealand’s fossil fuel exploration ban would be “ripe for legal challenge”.
“It’s likely to be challenged as contrary to the state’s climate obligations – both domestic and international – as well as its duties under human rights and constitutional laws to protect the right to life and other rights,” she said.
Trade deals
The foreign ministry also advised that lifting the ban on fossil fuel exploration would “likely be inconsistent with the obligations in several of New Zealand’s free trade agreements (FTA) not to reduce environmental protections for the purposes of encouraging trade or investment”.
New Zealand’s agreements with the European Union (EU) and the UK contain these kind of provisions. But the officials advised that the “risk of legal challenge” on this was “likely to be low”.
The civil servants’ advice was published on May 15, 2024. Tong said the risk of lawsuits had increased since then.
The EU has proposed Dan Jørgensen – a former Danish climate minister and convenor of the Beyond Oil and Gas Alliance – as its new energy commissioner, Tong noted. “He is likely to take a dim view of New Zealand forcing the Alliance to kick the country out,” he said.
Tong added that the UK’s new left-wing Labour government, which came into power in July, has pledged to end new offshore oil exploration. “Failure to implement the COP28 outcomes could spark trade risks under existing free trade agreements,” he said.
(Reporting by Joe Lo, editing by Megan Rowling)