Lawyers for Climate Action NZ Inc says the Members’ Bill lodged by Joseph Mooney seeking to prohibit tort claims arising from or related to climate change matters raises serious issues for both the environment and the constitutional role of the courts.

Lawyers for Climate Action is dismayed that the National Party supported Joseph Mooney to lodge the controversial Bill, and it calls on MPs not to support the Bill if ever drawn from the ballot.

The Bill seeks to insulate climate polluters from liability for the damage done by their emissions. The effect will be that the costs of climate change, such as loss of property to rising sea levels, will fall on individuals and taxpayers without the ability to seek compensation from domestic or international businesses that have profited from continuing to emit greenhouse gases, despite knowing the damage it is causing.

This would not only disincentivise steps to reduce emissions but 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 constitutional role of courts

If turned into law, the Bill would represent significant constitutional overreach by Parliament and would join other constitutionally egregious legislation promoted in recent history.

The common law and the courts have critical roles 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.

The existence of climate change legislation and the Emissions Trading Scheme does not, and should 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 Bill 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 Bill 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.

In doing so, it 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”.

Importantly, the Supreme Court’s judgment in Smith v Fonterra did not represent a radical change in the law. The Court did not create a new right of action but rather applied well-established strike-out principles to find that Mr Smith had a reasonably arguable claim based on the long-standing (if rarely used) rules of public nuisance.

This Bill is an overreaction to the Supreme Court’s finding, which itself highlighted that Mr Smith’s claim “may face obstacles”. Iits 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.

We urge MPs to not support the Bill.

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.

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