Lawyers for Climate Action NZ Inc says today’s announcement that the Government will amend the Climate Change Response Act to limit tort claims arising from climate change damage raises fundamental issues for both the environment and the constitutional role of the courts, and puts the interests of big emitters over those of impacted communities.

The idea of such a prohibition was raised over a year ago in a controversial Members’ Bill, and now is being rushed through as a Government priority before the election, in direct response to the ongoing proceedings in Smith v Fonterra.

“Lawyers for Climate Action is appalled that the Government has decided to prioritise this issue”, says Laura MacKay, Acting Executive Director of Lawyers for Climate Action.

“These amendments will act to insulate climate polluters from liability for the damage done by their emissions. Climate-related weather events - including the recent storms that have battered New Zealand - are already costing individuals, communities, Government, councils, property and business owners millions, and this is only going to increase. The effect of this amendment will be that individuals and taxpayers can no longer seek compensation from large emitters who have profited from activities that are causing climate change. This is about who pays, and the Government is shielding those who have contributed the most.”

“In addition, this amendment would cut across the court’s legitimate constitutional role in developing the common law, including its ability to determine a case currently before it. The issues being decided in Smith v Fonterra do not undermine the coherence of New Zealand’s climate change legislation as the Government claims, but rather will grapple with some of its limitations.”

“In the context of the many challenges facing New Zealand as a country, it is hard to understand why the Government is choosing to focus on this issue in the final months of its term. Rather than rapid action to ensure energy security and reduction of emissions through scaling of renewables and electrification, they are prioritising legislation that would extinguish a live private-law claim by an individual against New Zealand’s major emitters, while the case is progressing through the courts.”

The constitutional role of courts

“The Government is saying that the courts are not the right place to resolve claims of harm from climate change. However, the common law and the courts have a critical role to play in ensuring that humanity and the rule of law survive the climate crisis. Parliament should not cut the court’s legitimate role off at the knees.”

“The climate crisis is novel, but the courts’ ability to develop the common law in response to existential crises is not. For example, courts developed the law of nuisance in response to the pollution crisis that arose in the wake of the Industrial Revolution.”

“New Zealand’s climate change legislation and the Emissions Trading Scheme do not allocate responsibility for who should pay for damage caused by climate change, and do not preclude a role for the common law. Much like many other areas of law, common law and legislation can and do develop side by side, each informing the other.”

“This announcement raises even more fundamental issues with the role of the law. As we said in our submission to the Supreme Court in Smith v Fonterra, where there is a wrong, the law should provide a remedy. This is especially so where the wrong infringes on fundamental human rights - as climate change does. If the law fails to provide any mechanism for plaintiffs seeking redress or to curb the harm being caused by emissions, then the relevance and the legitimacy of the law will be at risk.”

Blatant attempt to override the Supreme Court

“This announcement is a blatant attempt to prevent Mike Smith’s proceeding against seven of New Zealand’s largest emitting companies from going to trial - raising significant access to justice issues. The Government announcement itself makes it clear these amendments are in direct response to that proceeding.”

“This decision flies in the face of the Supreme Court’s ruling in February 2024 that Mr Smith’s case was arguable, and that he should “get his day in Court”.”

“It also ignores the Supreme Court’s conclusions on the potential for tort law to respond to climate and environmental challenges. The Supreme Court was clear that the “principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity.”

“This announcement is an overreaction to the Supreme Court’s finding, which itself highlighted that Mr Smith’s claim “may face obstacles”. Its impact would go far beyond the scope of Smith v Fonterra. It would prevent the possibility that courts could ever develop tort law in response to climate change.”

About Lawyers for Climate Action NZ Inc

Founded in 2019, Lawyers for Climate Action NZ is a group of lawyers with the shared mission of using the law to drive effective climate action. We advocate for law and policy reform, bring strategic climate litigation, and have built a community of climate-conscious lawyers across Aotearoa, developing a skill base within the legal profession to help accelerate the net zero transition. We now have over 370 members, including Kings Counsel, barristers, solicitors and legal academics. Lawyers for Climate Action NZ appeared as intervener in Smith v Fonterra.

© Scoop Media