Law seeking to shield major emitters from liability for climate change damage passes its final reading

Last night, the Climate Change Response (Tort Liability) Amendment Bill passed its third and final reading, 67 votes to 53. To say we are disappointed is an understatement.

Parliament has legislated to extinguish a live proceeding, one the Supreme Court unanimously allowed to go to trial, and to bar all future tort claims for climate harm. It did so under a truncated process, in the face of 93% of public submissions opposing the Bill, and despite officials' documented advice against it.

“The Government says, on the one hand, 'don't worry, we have climate legislation', but, on the other, has consistently acted to weaken that legislation. It's abundantly clear that the current application of New Zealand's legislative framework means we are highly likely to miss our domestic targets, fail to uphold our international obligations, and leave New Zealanders highly exposed to the impacts of climate change - and now, an accountability lever has been removed before the courts could even test it.”

- Laura MacKay | Acting Executive Director.

Why prioritise this Bill in the last few months of the Government term?

Meanwhile, the actual work of reducing our emissions and managing the effects of climate change remains woefully inadequate. Just days ago, the Climate Change Commission's national adaptation progress report found that "critical gaps remain in work on adaptation at the national level", with the country too often paying to react and recover rather than preparing in advance. The Commission cites IAG estimates of around $4 billion per year in direct natural-hazard costs borne by central government and insurers. Every dollar of that is a dollar not spent on productivity, prosperity and wellbeing.

That is where the Government's focus should be: closing the mitigation and adaptation gaps and building the resilience New Zealanders will need. Instead, it has spent its energy removing one of the few remaining avenues for holding major emitters to account. The pace and scale of climate action required grows every year, and removing this accountability mechanism doesn't change that. Indeed, Mr Smith's separate case, Smith v Attorney-General, in which he argues that the Crown's response to climate change is inadequate on multiple fronts, is before the Supreme Court this very week. The courts remain one of the few places where climate inaction can be tested, and last night showed exactly why that matters.

the role of cases like smith v fonterra

Cases like Smith v Fonterra arise because political processes have not kept pace with the scale of the risk of climate change. In New Zealand, it is arguable that political processes to address climate change have stalled and even begun to run backwards. The Government is saying that the courts are not the right place to resolve claims of harm from climate change. However, the common law and the courts have a critical role to play in ensuring that humanity and the rule of law survive the climate crisis. Parliament should not cut the court’s legitimate role off at the knees.

The climate crisis is novel, but the courts’ ability to develop the common law in response to existential crises is not. For example, courts developed the law of nuisance in response to the pollution crisis that arose in the wake of the Industrial Revolution. As it stands, New Zealand’s climate change legislation and the Emissions Trading Scheme do not allocate responsibility for who should pay for damage caused by climate change, and do not preclude a role for the common law. Much like many other areas of law, common law and legislation can and do develop side by side, each informing the other.

This statutory bar raises even more fundamental issues with the role of the law. We reiterate what we said in our legal submissions to the Supreme Court as intervener in Smith v Fonterra:

“As a general principle, where there is a wrong, the law should provide a remedy. This is especially so where the wrong infringes on fundamental human rights. Further, if the law fails to provide any mechanism for plaintiffs seeking redress or to curb the harm being caused by GHG emissions then the relevance and the legitimacy of the law will be at risk.”

To find out more, you can read our submission on the Bill here as well as further information on the case.