The Government has announced that it intends to remove any liability in tort for climate change damage or harm caused by greenhouse gas emissions, in both current and future proceedings before the courts. 

This would apply to both the Government and private businesses; both of which are currently being sued in public nuisance, negligence, and breach of duty (tort claims) for their response to climate change. 

The move is significant - as it is effectively Parliament exercising its power to prevent the courts from issuing a ruling on liability that would otherwise exist at law. It's an action that is likely to have considerable implications for climate change actors, emitters, and participants in the Emissions Trading Scheme. 

Discussion

The Government’s announcement detailed that Parliament intends to amend the CCRA, by preventing private individuals and groups from bringing civil claims against emitters. The Government’s intention is to seek to ensure that Aotearoa | New Zealand’s response to climate change is monitored by the Government at a national level, rather than through the courts. 

The Government’s legislative change seeks to address the implications of the Supreme Court’s 2024 landmark decision in Smith v Fonterra in which it unanimously allowed claims against seven major corporates^[1] to proceed to a High Court trial to determine liability for alleged harm caused to the climate. The claims predominately included breaches of tort such as public nuisance (being that the defendant companies were substantially and unreasonably interfering with rights to public health, safety, comfort, convenience and peace), negligence, a novel climate system damage claim and, separately, tikanga. For more on the Supreme Court decision, read our previous article here. 

Smith v Fonterra was set to be heard before the High Court in April 2027.

The Government’s intention is to provide businesses with certainty around their obligations towards climate change, and to limit uncertain legal risk that might otherwise exist. Once enacted into legislation, the intention is that businesses will be able to have certainty that their obligations are limited under specific legal frameworks (including the CCRA and the ETS). In this respect, the Government’s announcement is aimed at removing the risk associated with creative and targeted use of climate-focused causes of action that have become increasingly common. 

The proposed change will need to be implemented by amending legislation, which must pass through the Parliamentary process. At this stage, the precise scope, thresholds, and practical effect of the change are not yet settled. Key matters - such as how broadly the amendment is drafted, whether it applies retrospectively, how it interacts with existing rights and decisions, and how decision makers are directed to act - will only become clear once the legislation is introduced and scrutinised. Accordingly, there is a degree of legal and practical uncertainty while we await the final form of the amendment, and the extent of its impact will depend heavily on the detailed wording adopted by Parliament.

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Special thanks to Tawhiwhi Watson and Lucy Reilly for their help in preparing this article.