A controversial new law restricting the ability to bring civil claims against companies over their greenhouse gas emissions has intensified a much bigger debate about climate accountability, the independence of the courts and where responsibility for environmental harm should ultimately sit.
The legislation follows the landmark Smith v Fonterra and others litigation brought by climate advocate Mike Smith of Ngāpuhi and Ngāti Kahu, whose attempt to hold some of New Zealand’s largest greenhouse gas emitters accountable through the courts had earlier been revived by the Supreme Court.
Joining Radio Waatea to examine what the change means for the legal system is Professor Barry Barton from the Faculty of Law at the University of Waikato, an expert in energy, natural resources and environmental law.
The case Parliament has moved to stop
Smith began proceedings in 2019 against six major companies — Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy and BT Mining.
His case argued their greenhouse gas emissions contributed to climate change and resulting damage to whenua and other places of cultural significance to him and his whānau.
Among the causes of action was the long-established common-law tort of public nuisance, alongside negligence and a proposed new climate-system damage tort.
The case initially suffered setbacks in the lower courts, but in 2024 the Supreme Court unanimously allowed Smith’s proceeding to continue towards trial.
Importantly, that judgment did not decide that the companies were liable for climate damage.
Instead, the Supreme Court determined that Smith’s case should not be struck out before the evidence and legal arguments could be properly tested at trial.
Government steps in
That prospect has now been dramatically altered by Parliament.
The Government argued allowing climate-related tort claims against individual companies could create significant uncertainty for businesses operating within a national emissions regime.
Justice Minister Paul Goldsmith has maintained that decisions about the country’s greenhouse gas emissions should be determined through Parliament and the regulatory system rather than through potentially wide-ranging civil litigation against individual emitters.
The Climate Change Response (Tort Liability) Amendment Bill was designed to prevent civil liability arising simply from greenhouse gas emissions or activities producing them.
With the legislation passing its final reading, the pathway the Supreme Court had allowed Smith to pursue has effectively been closed by Parliament.
A constitutional question as well as a climate one
That makes the controversy about considerably more than climate policy.
New Zealand’s constitutional system allows Parliament to legislate and change the common law.
But Smith’s case raises an unusual sequence of events.
A citizen brought a case.
The country’s highest court determined that the arguments were sufficiently credible to proceed.
Before the substantive trial could determine whether the defendants were actually legally responsible, Parliament intervened and changed the law governing that form of liability.
The Government sees that intervention as providing certainty about where responsibility for climate policy belongs.
Critics see something much more troubling — Parliament effectively shutting down an emerging area of common law before the courts have been allowed to fully examine it.
That is one of the issues Professor Barton can help unpack: where should the boundary lie between Parliament’s legitimate power to legislate and the courts’ traditional role in developing the common law?
Smith opens another legal front
The legislation has not ended Smith’s legal campaign.
Instead, he has opened another front.
Smith has filed High Court judicial review proceedings challenging aspects of the Government’s decision-making process, including allegations surrounding lobbying by corporate interests and the transparency of the process leading to the legislative intervention.
That case shifts the argument.
Rather than asking simply whether major emitters can be held liable for climate damage, the new proceedings scrutinise how the Government decided to prevent those claims from being heard.
The allegations remain to be tested by the High Court and should not be treated as established findings.
But they ensure the legal battle surrounding Smith v Fonterra is far from finished.
Who should carry responsibility?
Behind the technical legal arguments sits a fundamental policy question.
Climate change is created cumulatively.
No single New Zealand company causes global warming.
But major emitters collectively contribute to the greenhouse gases accumulating in the atmosphere.
That creates difficulties for traditional tort law, which generally requires courts to establish relationships between conduct, damage and responsibility.
The Government’s position effectively places the primary responsibility for controlling those emissions with Parliament and regulatory mechanisms such as the Climate Change Response Act and Emissions Trading Scheme.
But opponents of the legislation question what happens if those mechanisms prove inadequate.
If government policy does not sufficiently prevent climate damage, and private litigation against major emitters is prohibited, the avenues available to people experiencing that damage become considerably narrower.
Te Tiriti dimension
Smith’s litigation also carries particular significance for Māori.
His original proceeding is grounded partly in the effects climate change is having, and is expected increasingly to have, on whenua, moana and places carrying profound cultural significance.
Climate change can therefore involve more than financial loss.
Coastal erosion, rising seas and ecosystem damage can affect whakapapa relationships with whenua and wai, customary practices, wāhi tapu and taonga.
That raises difficult questions about whether conventional environmental regulation adequately recognises harms that cannot simply be calculated in dollars.
It also intersects with wider legal arguments now before the courts about Te Tiriti, tikanga Māori and the protection of fundamental rights in the face of climate change.
The international picture
Climate litigation is not unique to Aotearoa.
Courts around the world are increasingly being asked to consider the responsibilities of governments and corporations as the consequences of climate change become more measurable and foreseeable.
Cases have tested human rights law, constitutional obligations, corporate disclosure, directors’ responsibilities and traditional civil causes of action.
New Zealand’s decision to specifically restrict climate tort liability therefore places an important marker around how far this country is prepared to allow its courts to participate in that developing international field.
The question is whether that produces necessary legal certainty — or removes an accountability mechanism precisely when climate impacts are becoming more severe.
The bigger question for Professor Barton
For Professor Barry Barton, the issue therefore extends beyond whether somebody supports or opposes Mike Smith’s climate campaign.
It is about the architecture of New Zealand law.
Should climate liability be determined exclusively by Parliament?
What happens to the development of common law when Parliament legislates after the Supreme Court has allowed a novel case to proceed?
Does preventing litigation provide legitimate certainty to businesses, or remove an important check on major emitters?
And if people suffer increasingly serious climate-related damage but cannot pursue the companies contributing to emissions, where does legal accountability ultimately sit?
Parliament may have closed one courtroom door.
But Smith’s new High Court challenge demonstrates that the argument about climate change, corporate responsibility and the proper relationship between Parliament and the courts is nowhere near over.
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