Justice Minister Paul Goldsmith has confirmed the government will amend the Climate Change Response Act 2002 to stop courts from making any finding of liability in tort for damage or harm caused by greenhouse gas emissions, a move that will retrospectively kill Mike Smith’s High Court case against Fonterra and six other major New Zealand emitters.
The announcement, made on Tuesday, is being framed by the Beehive as an exercise in legal certainty. In the official release the Minister said “ongoing litigation in the High Court, where an applicant has brought civil claims against six major businesses for their greenhouse gas emissions, is creating uncertainty in business confidence and investment that the Government must address.”
Goldsmith also said “our response to climate change is best managed by the Government at a national level and not through piece-meal litigation in the courts,” and added that “the courts are not the right place to resolve claims of harm from climate change, and tort law is not well-suited to respond to a problem like climate change which involves a range of complex environmental, economic and social factors.”
Mike Smith, an iwi leader from Ngāpuhi and Ngāti Kahu, has spent nearly a decade fighting to be allowed to argue in front of a judge that the country’s biggest greenhouse gas emitters owe him and other coastal Māori a duty of care. The Supreme Court agreed with him unanimously in February 2024 and sent the case back to the High Court for trial, which had been due to start in April 2027. The defendants are Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy, Channel Infrastructure and BT Mining.
Speaking to RNZ’s Nine to Noon, Smith said Parliament stepping into an active court case was “unprecedented” and “outrageous.” He has previously stressed that the case is not about extracting damages but about establishing the legal principle that big emitters can be held responsible at common law for the harm their pollution causes, particularly to coastal Māori communities facing sea level rise and erosion.
Lawyers for Climate Action president Jenny Cooper KC told RNZ the decision was a “kneejerk reaction to legislate over the top of the unanimous Supreme Court decision,” questioning why the government was rushing to shut down a case that the country’s highest court had already said deserved its day in front of a judge.
Greenpeace Aotearoa spokesperson Gen Toop went further, telling Scoop the move was a “shocking abuse of executive power” and saying “this Government is trying to protect big polluting businesses from paying for the climate damage they have caused.” Toop added that “the courts exist to hold powerful interests to account and protect the public interest,” and pointed to what she described as a remarkable hypocrisy given the coalition’s stated dislike of retrospective legislation and its frequent invocation of property rights.
The government argues the change does not weaken the country’s climate response. The official release notes that businesses with obligations under the Emissions Trading Scheme would still be required to meet them, and the Minister has been careful to frame the amendment as preserving Parliament’s role as the place where climate policy is set, rather than as a free pass for emitters. He says the law will “remove the possible development of a new regime that contradicts the framework Parliament has already enacted.”
That argument is unlikely to land easily with the broader public. The Smith case has been one of the most closely watched climate cases in the country, and the Supreme Court’s 2024 ruling was treated internationally as a precedent for similar claims in other common law jurisdictions. Stepping in with retrospective legislation to halt a live case, particularly one that involves the question of corporate accountability for emissions, is a move with very few modern parallels in New Zealand law.
The amendment also lands in a politically charged moment. The coalition has already faced criticism this term for unwinding climate era policies, scrapping the Fees Free tertiary scheme, and pushing the Maintaining Certainty in Environmental Regulation and Treatment Bill that the Select Committee recommended axing after 583 of 588 submissions opposed it. Adding retrospective tort relief for six of the country’s largest emitters to that list will sharpen the contrast that opposition parties are already drawing in the run up to October’s general election.
The Bill has not yet been introduced and the Beehive release does not commit to a date, but Goldsmith has signalled that it will move quickly so that the law is in place before the case progresses any further in the High Court. Whether NZ First and ACT publicly back the amendment in its current form, particularly given the broader political sensitivity around the rule of law and judicial independence, will be one of the things to watch through the rest of this sitting block.
Voters who want to compare where every party stands on climate accountability, retrospective legislation and the role of the courts can use Newswire’s voting tool to match their views to a party ahead of the October election.
What do you think? Should Parliament be intervening to stop an active court case, or should Mike Smith’s lawsuit be allowed to run its course in front of a High Court judge? Have your say 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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