Certainty for who, exactly? Minister proceeds with Tort Prohibition against Ministry advice
The Ministry of Justice has proactively released Cabinet papers and supporting briefings behind the Government's proposed amendment to the Climate Change Response Act 2002 - what we are calling the Tort Prohibition.
The picture that emerges from these documents is not a pretty one for the Government. Ministry of Justice officials repeatedly recommended against a statutory bar, found no evidence to support the Minister’s justification of business uncertainty, and strongly recommended against the bar applying retrospectivity to Mr Smith’s case.
There is a lot to break down (and more will follow), but here are some key takeaways at this stage.
Officials recommended letting the case proceed, but the Minister of Justice decided otherwise
The Ministry of Justice repeatedly recommended against a statutory bar. Its preferred option was "to retain the status quo until after the High Court decision in Smith v Fonterra", because a substantive decision would "provide the Government with a more informed basis for any future reform".
Officials repeated the following risks over a series of briefings to the Minister:
Safeguarding our constitutional arrangements: “Officials recommend maintaining the status quo as it would provide the greatest confidence for businesses and safeguard our constitutional arrangements and justice system that underpin economic activity” - a statutory bar runs the risk of undermining the rule of law, separation of powers, presumption against retrospectivity, access to justice and the Treaty of Waitangi.
The Tort Prohibition would increase legal uncertainty: “If this Parliament decides to apply a statutory bar, another Parliament may simply repeal it which can be unsettling for business. In contrast, a judicial decision would clarify if there are any legal duties under the common law and provide greater long-term certainty."
It targets Mr Smith: A policy "that uniquely affects this claim (since there are no others) could be interpreted as denying Mr Smith and his community the ability to pursue access to justice through the claims which the Supreme Court has expressly permitted."
There’s no evidence to support the Government’s rationale
The Minister's public rationale is that Smith v Fonterra is “creating uncertainty in business confidence and investment". However, the advice he was given was that there is no evidence to support this, and in fact, the bar could create more uncertainty. Officials and legal experts who were consulted stated:
"We have not identified any evidence that the ongoing court proceedings have had a measurable impact on business confidence";
"The extent to which a bar would boost business confidence or cut litigation costs is unknown";
The “broadness [of statutory bars] invites legal challenge, which can undermine legislative intent and create more rather than less uncertainty.”
"The analysis cannot be adequately relied on by Cabinet to support decision making" (being the conclusion of the Ministry of Justice's own Regulatory Impact Statement Quality Assurance Panel).
Despite this, Cabinet decided to proceed with a statutory bar. This raises a question of what evidentiary basis the Minister is relying on to justify a law which officials and experts identified as undermining fundamental principles of our democracy - including the rule of law, separation of powers, and principle of comity.
Retrospectivity was added in at the Minister’s direction
Officials' October 2025 advice recommended that, if a bar were to be enacted, it should "be applied prospectively to [not] interfere with any active cases". The Minister of Justice decided otherwise. Academics and commentators have criticised the use of retrospectivity (see, for example, The New Zealand Bar Association, here and here, as well as our Open Letter).
It's also worth noting that a retrospective bar is inconsistent with the Government’s own controversial Regulatory Standards Act 2025: s 9 states that the “law should not adversely affect rights and liberties, or impose obligations, retrospectively”.
Who is protected? All greenhouse gas emitters - regulated or not
The Cabinet minutes reveal the extent of protection intended to be provided, with Cabinet agreeing to:
“Protec[t] all greenhouse gas emitters, whether persons or entities, including the Crown, from tort liability, whether or not the relevant emitter has been regulated under the Climate Change Response Act”.
The bar covers all greenhouse gas emitters, including those outside the ETS. This does not sit well with the Minister’s statement that “New Zealand already has a legal framework to manage greenhouse gas emissions set through Parliament through the Climate Change Response Act 2002 and the Emissions Trading Scheme (ETS).” It also reinforces concerns about the scope of corporate lobbying: at the same time the Minister was considering a legislative bar (which had been proposed to the Prime Minister’s Office by Fonterra), the Government removed agricultural emissions from the ETS, and weakened New Zealand’s methane reduction target.*
It also sits in direct tension with international law. The International Court of Justice, in its July 2025 Advisory Opinion on the Obligations of States in respect of Climate Change, held that states owe a stringent due diligence obligation to regulate private actors contributing to climate harm. By removing a method of holding private actors accountable, the Tort Prohibition does the opposite. It also comes during a period of mounting climate-related harm, as recently canvassed by the Climate Change Commission in their National Climate Change Risk Assessment.
…Another climate regression world first
Just as New Zealand became the first country to formally weaken our methane target based on "no additional warming" last year (flying in the face of warnings from the Climate Change Commission and international scientists that this metric is inconsistent with accepted science and our international obligations), we now appear to be the first jurisdiction to legislate a statutory bar against climate-related tort claims by private litigants. The Minister of Justice was advised that no other jurisdiction has done this.
Notes:
There will be more to come. For further inquiry contact laura@lawyersforclimateaction.nz.
*We note for completeness that the proactively released documents state Ministry of Justice officials did not consult with any parties to the litigation, however as has been reported on recently, at least two of the defendants in the Smith v Fonterra case lobbied the Prime Minister’s Office seeking a statutory bar. Find out more here.