Amid a flurry of news from the Government, such as the cutting of fees free, and Judith Collins leaving Parliament (tofā soifua Judith), Minister of Justice Paul Goldsmith has dropped a bombshell for the future of Aotearoa’s climate change response. Here is a quick explainer from Critic Te Ārohi – we’ve got your back if you’ve never suffered through LAWS101.
On the 12th of May, the Government announced that it will amend the Climate Change Response Act 2002 to prevent the courts from finding private companies responsible for climate change damage caused by greenhouse gas emissions. The motivation for such a change is targeted at one man who has kept Fonterra and six other companies up at night: Mike Smith.
Since 2019, Mike (Ngāpuhi and Ngāti Kahu) has been working his way through the courts. He’s claiming that major emitters from energy, mining, infrastructure and dairy industries owe him, and his iwi, a legal duty to prevent damage of their whenua and moana through their emissions of planet-warming gases. Two years ago, our head honchos of justice up in the Supreme Court rejected the seven big polluters' attempt to dismiss the case, and ruled that Mike’s case should be heard. He was set to be heard in April of next year. This case would have seen the High Court define the parameters of claiming damages for climate change – a massive development for environmental law in Aotearoa. Mike was not seeking money, instead seeking a reduction in, or end to, the production of emissions from the companies that he was going after.
This kind of claim was unprecedented for courts to grapple with. Whilst courts have long dealt with people claiming damages for negligence or nuisance caused by private companies, this specific iteration directed at climate change damage had not been brought before Aotearoa’s justice system before. Negligence and nuisance are forms of “tort law”, which is law that is not created by Parliament. Instead, the courts basically make tort law up over hundreds of years of incremental development, using precedence from past judgements to guide decisions.
Tort acts as a sort of default system – existing in the spaces where legislation does not have an immediate or direct answer. For many areas of law (such as negligence), Parliament is happy to leave the court’s long lines of cases as the most appropriate avenue to figure out the legal basis of the argument.
Otago law Professor Andrew Geddis, a specialist in constitutional theory and rights law, explained to Critic that while there is a “somewhat flawed” statutory regime that’s intended to reduce emissions in the future, there is no “compensatory mechanism in place whereby those who have and continue to contribute to climate change have to pay for that harm.” The non-Legalese translation of that is that while there’s some climate change law floating around, it doesn’t allow people to get other people in trouble for making climate change worse. So, in Andrew’s words, Mike Smith’s proposed tort response sought to “create liability that would allow for such compensation.” This means we could get people in trouble for making climate change worse due to their emissions.
The statutory regime consists of the existing Climate Change Response Act and the Emissions Trading Scheme (ETS), which functions by setting an industry cap on emissions – if companies emit more than are allowed under the scheme, they must “purchase” additional emission units or carbon credits to offset the environmental damage. However, a large exception exists: the agricultural sector is not covered by the ETS.
With the proposed amendment to the Climate Change Response Act, the carpet has been essentially pulled from beneath Mike. Seven years of battling through the courts, and he’s now being hit with a law that was designed to stop him. That’s Parliamentary sovereignty, baby – they have the final say. Professor Nicola Wheen, Otago’s environmental law expert, noted that it wasn’t even a sure thing whether Mike would have succeeded in April’s court case, joking that the proposed amendment was a “paranoid” regulatory response from the Government.
Paul Goldsmith claimed that response to climate change is best managed by the Government via legislation and the ETS. Climate Clinic Otago co-President Hetty Finney Waters disagrees. “Aotearoa’s climate legislation already has significant issues that undermine our climate objectives, such as the ETS, which doesn’t incentivise large emitters to reduce their emissions, and an adaptation framework that lacks teeth,” she explains. With this track record, it is perhaps understandable that Mike decided he needed to try his luck a different way, attempting to strike directly at the companies responsible for the largest greenhouse gas emissions. If the proposed law change from the Government goes ahead, there will be one less path available for climate action.
Another dynamic to this proposed law change is that the law would be applied retrospectively. Usually, it is a bad idea to legislate backwards, unless there is a strong justification. The reason for this is fairness. People need to know and conform their conduct to the law as it was at the time of their actions, protecting their expectations. Despite retroactive legislation being a general no-no, Paul Goldsmith told RNZ that Mike’s case was “creating uncertainty in business confidence and investments that the Government must address”.
Andrew warns that blocking Mike is the equivalent of the Government choosing who is a legal winner and loser. “Your right to have a matter judged by a court and decided according to the law in place at the time that the matter occurred [has come] to depend entirely on whether the government likes what it thinks the court might decide. That's not law. That's pure politics.”
Hetty argues that this intent to legislate over Mike’s case, and provide no real alternative pathway “puts Aotearoa significantly behind the international standard… The role of the courts in providing remedies and holding emitters to account has been recognised globally, especially for state obligations under the Paris Agreement.”
Hetty further labelled the decision a “national embarrassment” and a “clear attempt to shield a small number of our biggest emitters at the expense of the general public.” Andrew explained that, in his opinion, the change creates a “privatised gain and socialised losses situation,” where those contributing to climate change get to “keep the profits from doing so, whilst the cost of adapting to climate change falls onto all of society as whole.”
Nicola Wheen encourages young people to familiarise themselves with the various party policies ahead of the election. She notes that we have much to be grateful to Mike for – despite being knocked back – he has ensured that these issues are now very much out there for all to see. After all, it’s an election year – double check that who you want to send into the Beehive will champion the planet the way you believe it should.
