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Polisario-Western Sahara Representation to Australia and New Zealand.- New Zealand High Court dismisses judicial review but accepts imports of Western Saharan phosphate pose a reputational risk to the country’s wider interests.

On 15 March 2021, the High Court of New Zealand released its judgment in Kamel Mohamed & Barton v Guardians of New Zealand Superannuation, which concerns an application for judicial review of the New Zealand Superannuation Fund’s investments in Western Sahara.

The application for judicial review related to the Fund’s investments associated with Western Saharan “blood phosphate”, which is extracted from Western Sahara and exported by a Moroccan-owned company—against the wishes of the Saharawi people. The Superannuation Fund includes a number of investments in companies operating in Western Sahara, including those involved in the extraction of Western Saharan phosphate. The Fund also owns a number of farms that use superphosphate supplied by Ballance Agri-Nutrients Limited.

The Court dismissed the application for judicial review on the basis that the Guardians’ decision-making framework was within the scope of a broad discretion granted to it by Parliament, and that the Guardians’ consideration of the Superannuation Fund’s Western Saharan investments was a matter of expert judgement that the Court would not interfere with.

However, the Court accepted that the ongoing importation of Western Saharan phosphate to New Zealand did pose a reputational risk to the country’s wider interests.

Kamal Fadel, the Polisario Representative to Australia and New Zealand, said “Given that the High Court has recognised that the ongoing importation of Western Saharan phosphate to New Zealand poses a reputational risk to New Zealand’s wider interests, we urge the New Zealand fertiliser companies and all those involved in the plunder of Western Saharan phosphate to cease the trade”.

“We continue to encourage the New Zealand Government, investors, fertiliser companies and farmers to recognise the ethical problems related to the extraction of resources from the occupied territory of Western Sahara, to adopt alternative sources without delay, and to stop any activities that support Morocco’s unlawful occupation,” said Mr Fadel.

Mr Fadel applied for judicial review together with Michael Barton, coordinator of Western Sahara Campaign New Zealand, a volunteer organisation that advocates on issues relating to Western Sahara. The application, which was heard in October 2020, is the first claim for judicial review relating to the Superannuation Fund. 

Guardians of New Zealand Superannuation is the statutory body established to manage and administer the Fund. The Guardians’ statutory mandate requires it to invest the Fund in a way that “avoids prejudice to New Zealand’s reputation as a responsible member of the world community”, and to develop and adhere to policies relating to ethical investment.

The judicial review application argued that the Guardians’ ethical investment policy was unlawful and that the Guardians had breached its obligation to avoid prejudice to New Zealand’s reputation as it had not given proper consideration to the question of whether it should retain the Fund’s Western Saharan investments. The applicants sought orders from the High Court requiring the Guardians to reconsider its Western Saharan investments, including considering whether to exclude those investments and cease purchase of Western Saharan phosphate for use on the Fund’s farms.

The Fertiliser Association of New Zealand, an industry association funded by member companies Ballance and Ravensdown Limited, intervened in the proceeding, arguing that the application for judicial review was barred by the doctrine of state immunity and was nonjusticiable on the basis of the act of state doctrine. The Court did not accept those arguments.

Background:
Western Sahara has been substantially occupied by Morocco since 1976, despite the International Court of Justice concluding in 1975 that Morocco did not have rights of sovereignty over the territory.

Western Sahara is recognised by the United Nations as a non-self-governing territory, and the Polisario Front is recognised by the United Nations as the legitimate representative of the people of Western Sahara. Under international law, the Western Saharawi people have a right to self-determination and sovereignty over natural resources located in their territory. As noted in the High Court’s judgment, “The transfer of administrative authority over the territory to Morocco and Mauritania in 1975 [by Spain] did not affect the international status of Western Sahara as a Non-Self-Governing Territory” and “Morocco… is not listed as the territorial administering Power [of Western Sahara] in the United Nations list of Non-Self- Governing Territories”.

The Court also observed that “a series of General Assembly resolutions on the question of Spanish/Western Sahara reaffirmed the applicability of the Declaration of the Granting of Independence to Colonial Countries and Peoples (General Assembly Resolution 1514 (XV)) to the territory”.

Since 2012, pension and investment funds worldwide have excluded investments in companies involved in the exploration and extraction of resources in Western Sahara, including on the basis that the phosphate trade contributes to Morocco’s continued presence in Western Sahara. New Zealand is the only country in the western world that still imports phosphate from Western Sahara, through fertiliser companies Ballance and Ravensdown.

The Polisario Front’s position is that the Saharawi people have never been consulted on the extraction of phosphate from Western Sahara and such extraction does not benefit the people of Western Sahara.

“Morocco has no sovereignty over Western Sahara and is not a lawful administering power.

The Sahrawi people will continue to use all available means to protect their natural resources,” said Mr Fadel.

Earlier this month, the Guardians excluded five Israeli banks on the basis of credible evidence that the banks provide project finance for the construction of Israeli settlement in the Occupied Palestinian Territories. In a statement, the Guardians said “We believe that without the banks’ involvement the settlement activity would not be proceeding at the scale seen in recent times”. In December, Minister of Finance Grant Robertson wrote to the Super Fund asking it to adopt ethical investment policies to help “lift New Zealand’s reputational standing as a responsible investor in the international community”.