A landmark climate case has reached the Supreme Court, with Ngāpuhi and Ngāti Kahu climate advocate Michael John Smith challenging whether the Crown is doing enough to protect New Zealanders — and future generations — from the escalating impacts of climate change.
At the heart of the case is a significant constitutional question: can the courts examine whether the Government’s response to climate change is consistent with fundamental rights under the New Zealand Bill of Rights Act and Te Tiriti o Waitangi?
Smith’s case against the Attorney-General argues the Crown’s response is inadequate and breaches protections relating to life and culture, Te Tiriti o Waitangi and a public law duty to protect him and his descendants from the adverse effects of climate change.
The case has attracted the involvement of Te Kāhui Tika Tangata Human Rights Commission, which intervened to assist the Supreme Court on the constitutional and human-rights questions raised.
Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, has also intervened.
The Human Rights Commission says the case should not be viewed as an attempt to have judges design New Zealand’s climate policy.
Instead, it argues courts have a legitimate constitutional role in examining whether laws and government actions are consistent with legally protected rights.
Climate change meets the Bill of Rights
One of Smith’s central arguments concerns the right to life and cultural rights protected through the New Zealand Bill of Rights Act 1990.
The Human Rights Commission argues that where climate change creates serious threats to life or culture, the state may be required to take reasonable and proportionate measures to safeguard those rights.
Those measures could include reducing greenhouse gas emissions as well as supporting communities to adapt to climate impacts that can no longer be avoided.
The Commission’s position potentially gives the case significance well beyond environmental law.
If Smith’s arguments are permitted to proceed to trial, a court could ultimately be asked to examine the adequacy of New Zealand’s climate response through the lens of fundamental rights.
The Supreme Court is currently considering whether those arguments are legally tenable and should be allowed to proceed.
Northland puts a human face on global warming
Smith’s lawyers have emphasised that climate change is not simply a future global problem.
For communities in Te Tai Tokerau, its impacts can be intensely local.
The case points to threats including the potential loss of homes and culturally and spiritually significant whenua as the climate changes.
Those concerns sit alongside the global scientific warnings documented by the United Nations Intergovernmental Panel on Climate Change, including increasing heat and humidity risks to human health, population displacement and migration, and changes in soil moisture.
For coastal and rural Māori communities, environmental change can carry consequences extending beyond physical property.
Whenua, wai and other natural resources can be inseparable from whakapapa, tikanga, identity and cultural practice.
Losing access to those places can therefore represent both an environmental loss and a cultural one.
Right to life means more than survival
The Human Rights Commission is urging the Court to consider the right to life as something broader than simply protecting people from immediate death.
Drawing on international human-rights principles, the Commission argues the right includes a minimum standard of quality and dignity of life.
That becomes particularly important in the climate context.
Climate change can affect health, food and water security, homes, livelihoods and the ability of communities to remain connected to their traditional places.
Dayle Takitimu, Rongomau Taketake Indigenous Rights Governance Partner at the Human Rights Commission, says climate impacts are already presenting real and reasonably foreseeable threats to people’s lives, wellbeing, culture and communities.
The Commission identifies Māori, disabled people, rural communities and older people among groups likely to experience disproportionate impacts.
Te Tiriti at the centre of the argument
For Māori, one of the most significant aspects of the case is the relationship between climate change, cultural rights and Te Tiriti o Waitangi.
The Commission’s submissions address Māori cultural rights under section 20 of the Bill of Rights Act as well as the relevance of Te Tiriti.
Its position is that protecting Māori cultural rights can require more than simply ensuring the state does not directly interfere with them.
In some circumstances, the Commission argues the Crown may need to take positive action to protect cultural practices, relationships with whenua and natural resources, and taonga threatened by climate change.
That argument goes to the heart of what climate adaptation means for tangata whenua.
Building a seawall or relocating a road may protect physical infrastructure, but climate resilience for Māori can also involve protecting wāhi tapu, marae, mahinga kai, culturally significant ecosystems and relationships with ancestral whenua.
Those interests can be difficult, or impossible, to replace once lost.
Who decides climate policy?
The case also raises the sensitive constitutional issue of where the role of elected governments ends and judicial oversight begins.
Climate policy requires political decisions involving emissions targets, regulation, energy, transport, agriculture, taxation and substantial public spending.
Those are traditionally matters for Parliament and the executive.
The Commission, however, argues that judicial scrutiny of protected rights does not amount to judges taking control of climate policy.
Its case is that courts already have an established role in determining whether government action respects rights protected by law.
On that reasoning, judges would not be deciding precisely what New Zealand’s climate policy should look like.
They would instead be considering whether the Government’s response falls within what the law requires when fundamental rights are at stake.
That distinction could become one of the defining issues in the case.
A legal battle years in the making
Smith filed his claim against the Attorney-General in the High Court on 16 July 2019.
The High Court and Court of Appeal subsequently found his public-law claims were not legally tenable, leading to the appeal to the Supreme Court.
The Human Rights Commission had previously intervened when the matter reached the Court of Appeal in 2023 and has returned as an intervener before the country’s highest court.
Its Supreme Court legal team consists of Andrew Butler KC, Rob Kirkness and Hannah Yáng of Thorndon Chambers.
The Supreme Court hearing represents another stage in what has already become a lengthy attempt to establish whether climate change can engage some of New Zealand’s most fundamental constitutional and human-rights protections.
A case extending beyond one generation
Smith’s claim is ultimately framed around responsibility extending beyond himself.
It asks whether the Crown has obligations to protect not only people living with climate impacts now, but descendants who will inherit the consequences of decisions being made today.
That has particular resonance within te ao Māori, where environmental responsibility can be understood through whakapapa connecting tūpuna, present generations and mokopuna yet to come.
Climate change also poses an unusual challenge for the legal system because some of its most severe consequences unfold over decades.
By the time damage to communities, ecosystems or culturally significant whenua becomes irreversible, opportunities to prevent it may have disappeared.
The Supreme Court is not yet being asked to determine exactly how much New Zealand must cut emissions or which adaptation projects the Government must fund.
The immediate question is more fundamental: should Smith be allowed to take his claims to trial and require the Crown’s climate response to be tested against protected rights and Te Tiriti?
If the Court says yes, the implications could reach far beyond one Northland climate advocate.
It could open the door to a deeper judicial examination of what obligations the Crown carries when climate change threatens life, culture, whenua, taonga and the rights of generations who will live with decisions made today.
For Māori communities confronting rising seas, extreme weather and environmental change, the outcome could help define whether climate protection is treated simply as government policy — or also as a question of rights, Te Tiriti and Crown responsibility.
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