A legal expert the government turned to for advice on its plan to block climate lawsuits says he told officials almost a year ago that interfering with a live court case would be constitutionally abhorrent, and that ministers pressed ahead anyway.
Auckland Law School associate professor Vernon Rive has revealed the advice he gave the Ministry of Justice, after documents about his role came to light. He told RNZ he was contacted by officials in July 2025, met them virtually on 15 July, and then submitted a 14-page briefing paper setting out his opposition to a statutory bar on greenhouse gas related claims. His warning did not change the outcome.
The dispute centres on a long-running case brought by climate campaigner Mike Smith, a spokesperson for the Iwi Chairs Forum on climate change, against Fonterra, Z Energy and a handful of other large emitters that together account for roughly a third of New Zealand’s greenhouse gas emissions. The Supreme Court cleared the case to proceed in 2024, and a High Court hearing had been set down for April 2027.
In May the government announced it would amend the Climate Change Response Act 2002 so courts cannot find companies liable in private claims for harm linked to their emissions. Crucially, the change is written to apply to current as well as future proceedings, which means it reaches into Smith’s case before it has been heard. That is the feature Rive singled out as the most troubling part of the proposal.
In his briefing he wrote that a bar limited to future cases would be “far less constitutionally abhorrent than stopping a case halfway through, with all of the rights and rule of law issues attendant on an interference with live court proceedings”. He also reiterated his broader objection, saying “I don’t want to belabour this, but I should just reiterate my opposition to a legislative bar on existing or future tort proceedings relating to the effects of greenhouse gas emissions”.
Rive pushed back on the idea that the litigation itself was the problem to be solved. He noted that “the outcome of any litigation is unpredictable” and that at this stage none of the parties could be sure what evidence and arguments would be presented. He described the corporate case against the lawsuit as a “straw figure argument”, and said the practical effect of a statutory bar would be to hand large emitters immunity from accountability.
Justice Minister Paul Goldsmith has defended the move on different grounds. When the change was announced, he said the case was creating uncertainty in business confidence and investment that the government had to address, and that the amendment would remove the possible development of a new regime that contradicts the framework Parliament has already enacted to respond to climate change. “Our response to climate change is best managed by the government at a national level and not through piece-meal litigation in the courts,” he said.
That argument has not satisfied the people on the other side of the case. Smith called the law change an affront to democracy, telling RNZ that “if Parliament can cancel a live court case, then no legal claim is secure at all, once it becomes politically inconvenient”. Lawyers for Climate Action, which has followed the case closely, called the decision shortsighted through its chair Jenny Cooper KC, and said it cuts across the courts’ role in developing the common law.
The Greens have been the sharpest political critics. Co-leader Chlöe Swarbrick said the government had “spent two and a half years taking a wrecking ball to climate laws and, at the eleventh hour, they’re now ripping away New Zealanders’ and the courts’ ability to do what this government lacks the spine to do”.
The constitutional question Rive raised goes wider than climate. New Zealand has no written constitution and relies heavily on conventions, including a general expectation that Parliament does not legislate to decide the outcome of cases already before the courts. Critics argue that using a law change to end one specific live proceeding sets a precedent that could be turned on any unpopular claim in future, regardless of the subject. Supporters counter that Parliament is sovereign and entitled to set the rules under which emissions are regulated, including ruling out a parallel system of liability built case by case in the courts.
For voters, the row is also a marker of how the major parties differ on climate and on the limits of government power, a contrast that will sharpen as the 2026 general election approaches. If you want to see where the parties line up before you vote, you can work through the issues with Newswire’s voting tool.
The amendment still has to pass through Parliament, and the select committee stage will be the next test of how much of the criticism the government is willing to absorb. For now the case that started it all sits frozen, waiting on a law that may decide its fate before a judge ever does.
What do you think, should Parliament be able to end a court case it does not like, or is the government right to keep climate liability out of the courts? 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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