A new High Court challenge by climate activist Mike Smith has expanded what was already one of New Zealand's most significant climate law cases into a broader constitutional debate about the relationship between Parliament and the courts.
Report by elocal
Rather than focusing solely on climate policy, Smith's latest legal action asks a more fundamental question: should the Government legislate to prevent an active court case from proceeding after the courts have already determined it may be heard?
Smith has filed judicial review proceedings challenging the Government's proposal to amend the Climate Change Response Act 2002 so that companies cannot be held liable in tort for climate change-related harm caused by greenhouse gas emissions. The proposed amendment would apply both retrospectively and prospectively, effectively ending Smith's existing case against several of New Zealand's largest emitters before it reaches trial.
The original proceedings target six major companies, including Fonterra and Z Energy, alleging their greenhouse gas emissions have contributed to climate-related damage affecting Smith's customary land, cultural interests and environment. The case was allowed to proceed by the Supreme Court of New Zealand in 2024 after earlier courts had struck it out.
A Constitutional Question
While public debate has largely centred on climate policy, constitutional lawyers have focused on a different issue.
New Zealand's constitutional framework recognises Parliament as sovereign and therefore able to legislate, including changing the law while litigation is underway. At the same time, constitutional convention has traditionally respected the separation between Parliament's law-making role and the judiciary's role in determining disputes already before the courts.
Smith argues the Government acted unlawfully by deciding to intervene in live court proceedings without giving him an opportunity to be heard. He is seeking declarations that both the decision and the process leading to it were unlawful.
Government's Position
Justice Minister Paul Goldsmith has argued the proposed legislation is intended to provide certainty for businesses and investors.
The Government says climate change liability should continue to be addressed through legislation already enacted by Parliament, including the Emissions Trading Scheme and existing climate policy, rather than through evolving common law tort claims.
Officials Previously Advised Against Intervention
Documents previously reported by RNZ showed Ministry of Justice officials recommended against intervening while the litigation remained before the courts.
Officials advised that allowing the common law to develop through the judicial process would provide a more informed basis for any future legislative reform. They described legislative intervention before judgment as premature.
Constitutional Commentary
One of the more significant observations came from Vernon Rive, Associate Professor at the University of Auckland.
Having provided advice during consultation on the proposed reforms, Rive told RNZ that halting Smith's proceedings after the courts had allowed the case to proceed would be "constitutionally abhorrent."
Whether or not one agrees with Smith's climate arguments, the constitutional issues raised by legislative intervention during active litigation extend well beyond environmental law.
Beyond Climate Change
Today's dispute concerns climate litigation.
Tomorrow it could involve property rights, commercial disputes, taxation, free speech or another area where Parliament may decide to alter the legal landscape while proceedings remain before the courts.
The constitutional question therefore becomes broader than emissions policy alone:
How should New Zealand balance Parliament's unquestioned authority to legislate with public confidence that active court proceedings can be determined independently by the judiciary?
That question is now likely to be examined not only in Parliament but also in the High Court.
Source
Original reporting: Radio New Zealand — Kate Newton, Climate change activist files High Court proceedings over government ruling.