Justice Minister Paul Goldsmith announced that the Government will amend the Climate Change Response Act 2002 to prevent findings of tortious liability for greenhouse gas emissions. The Smith litigation, set down for trial in the High Court next April, will be stopped where it stands.
Commentary on the announcement has been critical. Lawyers for Climate Action calls the move “knee-jerk and premature,” and says it “does not reflect the type of relationship between Parliament and courts that we would normally expect to see.”
This has it backwards. Mr Smith’s proceedings did not ask the courts to apply the existing law of torts, but to invent a new claim. The Court of Appeal saw this clearly. It struck out all three of Mr Smith’s claims, observing that the magnitude of climate change “simply cannot be appropriately or adequately addressed by common law court claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.”
That observation was hard to fault, and Parliament has already provided exactly such a response. The Emissions Trading Scheme is a comprehensive statutory framework covering the supply of New Zealand Units, surrender obligations, and free allocation for activities exposed to international competition. Whether the scheme goes too far or not far enough is a question for political contest, not for the Courts.
The Supreme Court nevertheless unanimously reinstated Mr Smith’s claims. The court acknowledged that the same claim brought against an individual driver or householder would fail. New Zealand produces 0.17 per cent of global emissions. The contribution of any single business is vanishingly small. The court refused to apply that logic to the six defendants.
Causation is the spine of the law of tort. A defendant cannot be liable in nuisance or negligence unless the plaintiff’s harm is meaningfully traceable to the defendant’s conduct. That requirement is not a technicality. It is what distinguishes the law of tort from a tax. When every human activity contributes to a global phenomenon in microscopic proportion, it is hard to see how the doctrinal architecture of tort law can apply.
Lawyers for Climate Action suggests the government’s proposed action undermines the “normal” relationship between Parliament and the courts. But the normal relationship is that Parliament makes the law and the courts apply it. Parliament will restoring the orthodoxy, not depart from it.
The objection that Parliament should not legislate against a live case has more substance. Comity between the branches should be respected. But Parliament will not be interfering with the application of existing law. It will declining to allow the courts to invent new law in territory Parliament has already occupied. Consequently, comity cuts the other way.
In my 2024 report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, I set out a toolkit of options for Parliament to rein in judicial overreach. The first and most direct was targeted legislation reversing decisions Parliament considers wrong. The proposed climate change amendment is exactly that.
Those complaining about the Government’s proposal invert the traditional relationship between Parliament and the courts. Section 3 of the Senior Courts Act 2016 records, in Parliament’s own words, that “[n]othing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.” Parliament is the highest court in the land; the Supreme Court is its creature. When the sovereign branch declines to ratify a course the courts wish to take, it is not acting against the constitution. It is acting as the constitution permits.
None of this weakens New Zealand’s response to climate change. The amendment simply removes the prospect that climate liability will be developed not by Parliament but by judges, over years of litigation. That matters to every New Zealander, not only to the six defendants. Legal certainty is not a business amenity. It is the rule of law’s offer to everyone living under it – the offer that people can read a statute and plan their lives by it, and that the boundaries of legal duty are set by a Parliament voters elect and can remove.
Hard cases make bad law. Smith is a paradigm example, and Parliament is moving to correct it. That is the constitution working as it should.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was sourced HERE
Commentary on the announcement has been critical. Lawyers for Climate Action calls the move “knee-jerk and premature,” and says it “does not reflect the type of relationship between Parliament and courts that we would normally expect to see.”
This has it backwards. Mr Smith’s proceedings did not ask the courts to apply the existing law of torts, but to invent a new claim. The Court of Appeal saw this clearly. It struck out all three of Mr Smith’s claims, observing that the magnitude of climate change “simply cannot be appropriately or adequately addressed by common law court claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.”
That observation was hard to fault, and Parliament has already provided exactly such a response. The Emissions Trading Scheme is a comprehensive statutory framework covering the supply of New Zealand Units, surrender obligations, and free allocation for activities exposed to international competition. Whether the scheme goes too far or not far enough is a question for political contest, not for the Courts.
The Supreme Court nevertheless unanimously reinstated Mr Smith’s claims. The court acknowledged that the same claim brought against an individual driver or householder would fail. New Zealand produces 0.17 per cent of global emissions. The contribution of any single business is vanishingly small. The court refused to apply that logic to the six defendants.
Causation is the spine of the law of tort. A defendant cannot be liable in nuisance or negligence unless the plaintiff’s harm is meaningfully traceable to the defendant’s conduct. That requirement is not a technicality. It is what distinguishes the law of tort from a tax. When every human activity contributes to a global phenomenon in microscopic proportion, it is hard to see how the doctrinal architecture of tort law can apply.
Lawyers for Climate Action suggests the government’s proposed action undermines the “normal” relationship between Parliament and the courts. But the normal relationship is that Parliament makes the law and the courts apply it. Parliament will restoring the orthodoxy, not depart from it.
The objection that Parliament should not legislate against a live case has more substance. Comity between the branches should be respected. But Parliament will not be interfering with the application of existing law. It will declining to allow the courts to invent new law in territory Parliament has already occupied. Consequently, comity cuts the other way.
In my 2024 report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, I set out a toolkit of options for Parliament to rein in judicial overreach. The first and most direct was targeted legislation reversing decisions Parliament considers wrong. The proposed climate change amendment is exactly that.
Those complaining about the Government’s proposal invert the traditional relationship between Parliament and the courts. Section 3 of the Senior Courts Act 2016 records, in Parliament’s own words, that “[n]othing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.” Parliament is the highest court in the land; the Supreme Court is its creature. When the sovereign branch declines to ratify a course the courts wish to take, it is not acting against the constitution. It is acting as the constitution permits.
None of this weakens New Zealand’s response to climate change. The amendment simply removes the prospect that climate liability will be developed not by Parliament but by judges, over years of litigation. That matters to every New Zealander, not only to the six defendants. Legal certainty is not a business amenity. It is the rule of law’s offer to everyone living under it – the offer that people can read a statute and plan their lives by it, and that the boundaries of legal duty are set by a Parliament voters elect and can remove.
Hard cases make bad law. Smith is a paradigm example, and Parliament is moving to correct it. That is the constitution working as it should.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was sourced HERE
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