#national: Two Climate Battles, One Big Question: Mike Smith Takes Fight for Accountability to the Courts

As Parliament moves to shut down one pathway for climate litigation against major corporate emitters, climate advocate Mike Smith is pursuing another potentially landmark case asking whether the Crown itself can be held accountable for an inadequate response to climate change.

The overlapping legal battles have put climate change, human rights, Te Tiriti o Waitangi and the role of the courts at the centre of an increasingly important constitutional debate in Aotearoa.

Smith, of Ngāpuhi and Ngāti Kahu, has spent years pursuing legal action over the impacts climate change is having and is expected to have on Māori, whenua, moana and future generations.

His two major cases are legally separate, but together they pose a fundamental question: if neither major emitters nor governments can be held accountable through the courts, where can people experiencing climate harm ultimately turn?

Parliament closes the door on corporate climate torts

The latest development came when Parliament passed the Climate Change Response (Tort Liability) Amendment Bill at its third reading on 18 August.

The legislation creates a statutory barrier preventing people, including claims against the Crown, from being found liable in tort for emissions-related climate-change effects. Crucially, it was expressly designed to apply to existing proceedings that had not been finally determined.

The Government’s own explanatory material makes clear that the legislation responds directly to Smith v Fonterra Co-operative Group Ltd.

That case targeted six major New Zealand emitters and argued, among other things, that their greenhouse gas emissions contributed to public nuisance and climate-related harm.

In 2024, the Supreme Court allowed Smith’s claim to proceed towards trial.

That did not mean Smith had won his case or that the companies had been found responsible.

It meant the country’s highest court determined the proceeding should not be struck out before those arguments could be properly tested.

The Government subsequently decided tort law was not an appropriate mechanism for regulating greenhouse gas emissions, arguing climate policy should instead be managed through the Climate Change Response Act by the Executive and Parliament.

An extraordinary legal intervention

The significance of the legislation extends beyond environmental policy.

The Government’s own disclosure statement acknowledges the new law overrides the effect of the Supreme Court’s decision not to strike out Smith’s proceeding and removes his expectation of continuing that case.

That creates a striking sequence.

Smith went to court.

The Supreme Court determined his case could proceed.

Before a trial could determine whether his arguments actually succeeded, Parliament changed the law governing that form of liability.

For the Government, that provides certainty and ensures elected lawmakers determine national emissions policy.

For opponents, it raises difficult questions about access to justice and whether Parliament should intervene to prevent courts developing common law in response to emerging harms.

But Smith has another case

While Parliament has moved against Smith v Fonterra, an entirely separate case has just been argued before the Supreme Court.

In Smith v Attorney-General, Smith is challenging the adequacy of the Crown’s response to climate change.

The Supreme Court heard the appeal in Auckland between 17 and 19 August, with Chief Justice Helen Winkelmann and Justices Ellen France, Joe Williams, Stephen Kós and Matthew Cooke comprising the panel.

This case is not about making Fonterra or another corporation pay damages.

It asks whether Smith’s claims against the Government itself are legally capable of proceeding.

Right to life, culture and Te Tiriti

The arguments go considerably further than conventional environmental regulation.

Smith argues the Crown’s response to climate change is inadequate and has breached a public law duty to protect him and his descendants from climate harm.

He also argues the Crown’s response breaches rights to life and culture under the New Zealand Bill of Rights Act, as well as Te Tiriti o Waitangi.

The case is particularly significant for Māori because Smith argues climate change will harm whenua to which he and his whānau are connected and will disproportionately affect Māori more generally.

Those impacts cannot necessarily be understood simply through tonnes of carbon or economic modelling.

For tangata whenua, climate damage can affect whenua, whakapapa, wāhi tapu, mahinga kai, taonga, cultural practices and relationships with the natural environment.

The Māori Law Society and Human Rights Commission both intervened in the Supreme Court proceedings, bringing additional arguments concerning tikanga, Te Tiriti and human rights.

The courts are not being asked to write climate policy

An important distinction sits at the centre of the Crown case.

Smith is not simply asking judges to replace ministers and decide New Zealand’s emissions settings themselves.

The legal question is whether government action or inaction can become subject to judicial scrutiny when the consequences potentially affect legally protected rights.

That distinction matters.

Courts routinely examine whether executive decisions comply with legislation and protected rights.

Climate change tests how those established principles apply to an unprecedented global threat unfolding across decades.

The Supreme Court must now determine whether the Court of Appeal was correct to dismiss Smith’s appeal rather than allowing his claims to advance.

Climate accountability reaches a crossroads

Together, the two Smith cases expose an increasingly important tension.

The Government says climate policy belongs primarily with elected governments and Parliament rather than being developed through tort litigation.

But Smith’s legal campaign asks what happens when citizens believe the political system itself is failing to provide adequate protection.

If Parliament controls climate policy, can government still be challenged when that policy allegedly threatens fundamental rights?

If companies operating lawfully within the regulatory framework contribute substantially to climate change, should they ever face independent civil liability?

And if Parliament removes that liability before a court can test it, what accountability mechanism remains?

Those questions become more pressing as climate change moves from forecasts and modelling into lived experience.

For Māori, this is already about whenua

Smith’s challenge also reinforces why climate change is increasingly a Te Tiriti and indigenous-rights issue, rather than simply an environmental one.

Rising seas, coastal erosion, changing ecosystems, extreme weather and water insecurity can threaten places and relationships maintained across generations.

Whenua cannot simply be relocated.

Wāhi tapu cannot simply be reconstructed somewhere else.

Whakapapa relationships cannot be compensated for by calculating the commercial value of lost land.

That is why the Supreme Court’s eventual decision could matter well beyond Smith himself.

It may help determine how far existing public law, human-rights protections and Te Tiriti can reach when confronting climate-related harm.

One door closes, another remains before the Court

Parliament has now drawn a firm line around corporate tort liability for greenhouse gas emissions.

But it has not ended the wider legal argument.

Smith’s separate case against the Attorney-General has put an even larger question before the country’s highest court:

What responsibilities does the State itself have when climate change threatens people’s lives, cultures, whenua and future generations?

For Mike Smith, the struggle is therefore no longer simply about emissions.

It is about accountability.

It is about whether protected rights still have meaning when the threat comes from climate change.

And it is about whether Māori can ask the courts to examine the Crown’s responsibilities when the whenua and taonga inherited from previous generations are threatened for those still to come.

Parliament may have closed one climate courtroom door. The Supreme Court must now decide whether another should remain open.

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