A coalition of 118 lawyers, climate scientists and civil society organisations from New Zealand and overseas delivered an open letter to four senior ministers on the morning of 19 May, demanding the government abandon its planned amendment to the Climate Change Response Act that would block climate liability lawsuits against major emitters.
The letter went to Justice Minister Paul Goldsmith, Attorney-General Chris Bishop, Climate Change Minister Simon Watts and Prime Minister Christopher Luxon. It was coordinated by Lawyers for Climate Action NZ and is signed by groups and academics from Oxford, Chicago, Melbourne and Imperial College London, alongside the United States based Union of Concerned Scientists and ClientEarth, the legal charity now run by former British High Commissioner to New Zealand Laura Clarke.
Goldsmith first announced the amendment on 12 May. It would prevent New Zealand courts from making findings of liability in tort cases brought against companies over harm caused by their greenhouse gas emissions, and it would apply to current and future cases.
The most prominent case it would stop is the long running tort claim brought by Ngapuhi and Ngati Kahu elder Mike Smith against Fonterra and five other major New Zealand emitters whose operations together account for roughly a third of the country’s emissions. The Supreme Court unanimously reinstated Smith’s three causes of action in February 2024, in public nuisance, in negligence and in a proposed new climate tort, and the matter is scheduled to go to trial next year.
Goldsmith has argued that climate policy should be set by Parliament rather than worked out case by case in the High Court. He told media on 12 May that New Zealand’s response to climate change is “best managed by the government at a national level and not through piece-meal litigation in the courts”, and pointed to the Climate Change Response Act and the Emissions Trading Scheme as the proper policy levers. He said the change is needed to remove uncertainty for business and investment, and would prevent what he described as a parallel liability regime contradicting the framework Parliament has already enacted.
The signatories disagree on every point. The letter says the proposed prohibition is “contrary to New Zealand’s climate objectives, blocks the development of the common law in New Zealand, and risks undermining the rule of law and the separation of powers”.
Laura MacKay, acting executive director of Lawyers for Climate Action NZ, told RNZ that the proposal “would undermine our international legal obligations and cuts across basic principles of the rule of law”. On her organisation’s own site she framed the issue more bluntly. “Different governments will always have different priorities. This is not just about the climate, it’s about protecting a fundamental aspect of our democracy.”
A central technical objection is that the amendment would apply retrospectively to Smith’s case, even though the country’s highest court has already ruled the claim deserves to be tested at trial. The signatories say stripping a litigant of accrued rights after the Supreme Court has confirmed those rights is a constitutional concern that runs well beyond climate policy. They argue any future plaintiff in any field, facing a well-resourced defendant, has reason to worry about a precedent in which the Crown legislates an inconvenient Supreme Court loss out of existence.
The signatories also contest the government’s framing on the merits. They say allowing tort claims to be heard would not displace Parliament’s climate framework, only develop the common law alongside it in the same way negligence law has developed in every other area of business activity. Cutting that route off, they argue, leaves people who suffer demonstrable harm from coastal flooding, drought, wildfire and storm damage with no civil remedy at all, regardless of how clearly causation can be shown in any particular case.
For Goldsmith and Bishop the political calculation appears to be that business confidence and a clear policy lane matter more than preserving an untested cause of action. For Watts, who has spent the past 18 months arguing the government’s emissions reduction plan is the credible route forward, the amendment removes a parallel pressure point that has been making boardrooms nervous. For Luxon, it closes the door on a piece of litigation his government was always likely to dislike.
For the coalition behind the letter, the worry is not only the climate. They say a government willing to legislate around an unwelcome Supreme Court ruling weakens every plaintiff facing a deep pocketed defendant, climate or otherwise.
A bill giving effect to the amendment has not yet been introduced. The letter asks the government to drop the policy before that happens.
The story has been followed by major outlets. RNZ has the most detailed coverage, 1News ran the initial announcement on 12 May, and the international outlet Inside Climate News has carried the story to a global audience.
Voters will get to weigh the trade off at the ballot box this year. The 2026 general election will turn in part on questions like this one, about how far ministers should be able to reach into accrued legal rights to deliver business certainty. Use our voting tool to see which parties match your view on climate liability and the protection of judicial findings against retrospective legislation.
What do you think? Should the Crown be able to legislate Mike Smith’s Supreme Court win out of existence in the name of business certainty, or does this set a dangerous precedent for any New Zealander going to court against a well-resourced defendant? Leave your thoughts in the comments below.
This article was written by AI, briefed to report the facts, hopefully without some of the bias people bring to the job 🙂
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