Mike Smith has filed High Court proceedings challenging
Justice Minister Paul Goldsmith’s announcement that he
will introduce legislation to amend the Climate Change
Response Act to prevent tort-based climate litigation. In
the announcement, the Minister expressed his intention to
stop Mr Smith’s existing claim against New Zealand’s six
largest greenhouse gas emitters.
The claim challenges
both the Minister’s announcement and the Cabinet process
and decision behind it. Mr Smith says they acted unlawfully
by deciding to interfere with live court proceedings, and
with rights at issue in an existing claim, without a fair
process. Mr Smith says the legislation even appears to break
the Regulatory Standards Act.
“Climate change
affects everything around us – the places we come from, the
people we love, and the whenua we are responsible for
protecting. It is an issue where everyone should expect
transparency, and where constitutional rights should be
given full effect.”
“Yet, something has gone
seriously wrong here.
“The Government decided to
introduce this legislation after the defendants lobbied for
it. Their lobbying efforts disappeared from the public
record.”
The Minister then decided to legislate away
Mr Smith’s rights without prior notice and without hearing
from Mr Smith.
Smith says, “He did that without
considering how the damage the defendants are causing is
going to be made good.
“When corporations escape
legal responsibility for the damage they cause, we all
pay.
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“Decisions about whether businesses should get
a free pass should not be made by businesses and officials
behind closed doors,” says Mr Smith.
The grounds of
the case
Mr Smith’s proceedings allege that the
decision was unlawful on several grounds:
- The
decision was reached with input from the defendants in Mr
Smith’s existing case, in a way that was hidden from the
public record and amounts to procedural
impropriety. - The decision directly concerns Mr
Smith’s rights in an existing High Court claim, but was
made after consulting with the defendants and without
consulting him. - Cabinet decided to remove Mr
Smith’s rights without considering how the defendants
would compensate for the damage they have caused, contrary
to principles in the Regulatory Standards Act. - The
announcement was made, at least in part, knowing and
intending it would disrupt the High Court process, and was
therefore made for an improper purpose.
“I
wrote to the Prime Minister on 28th May, seeking a meeting
about his Office’s handling of my active case. I have
received no response,” says Mr Smith.
Mr Smith’s
case, Smith v Fonterra and others, seeks to hold major
emitters accountable in tort for harm caused by greenhouse
gas emissions. The Supreme Court reinstated the claim in
2024 and sent it back to the High Court for
trial.
New Zealand an extreme outlier in letting
corporations off the hook
“New Zealand is now an
extreme outlier when it comes to holding corporations
legally accountable for the harms they
cause.”
“Corporations in other countries are being
held to account via the courts. There is no justifiable
reason to stop them from being held to account via the
courts here in Aotearoa,” says Mr Smith. On Thursday, a
Paris court ruled that the French energy giant,
TotalEnergies must, within six months, account for the
pollution released when the oil and gas it sells are burnt.
TotalEnergies must also explain what steps it will take to
address the harm from those emissions.
“Lawmaking
fails when it is deliberately designed to place corporations
above the law.
“I will keep seeking justice, because
when I think of our whenua, my whanaunga, and the wonders of
this country, there is no other option than to keep
going,” says Mr Smith.
Notes:
- The relief
sought is a declaration that the Minister’s announcement
and the Cabinet decision were unlawful. - The
Government’s announced amendment would apply to current
and future cases and would prevent courts from making
certain findings of liability in tort for climate-related
harm caused by greenhouse gas
emissions.
