Climate Change Response (Tort Liability) Amendment Bill

I move, That the Climate Change Response (Tort Liability) Amendment Bill be now read a third time.

The bill amends the Climate Change Response Act 2002 to confirm that the role of the developing, setting, and implementing regulatory policy in respect of greenhouse gas emissions sits with the elected Government and the Parliament. It does this by creating a statutory bar on tort liability for emissions-related climate change effects. The bar will apply so that no person can be found liable in tort for emissions-related climate change effects. The bar is targeted. It does not affect all tort liability that has already been established under common law, such as negligence. It does not change New Zealand’s climate targets or the approach that the Government has set for meeting them under the Climate Change Response Act 2002. It does not change the obligations of New Zealand businesses under the Act or the emissions trading regime.

The change responds to Smith v Fonterra and will prevent the courts from creating a parallel and potentially contradictory regime to the one provided by the Act. The bar is aimed at preventing the development of a novel form of tort liability that does not yet exist. I note that, although the bar will apply to existing proceedings, it will not take existing rights away from Mr Smith. The court has only dealt with procedural matters. It has not heard, let alone determined, whether tort liability for emissions-related climate change may exist. As no rights have yet been identified in the existing case, the bill will not deprive the litigants of any fruits of litigation. The bill has not altered the law. Rather, it will remove the prospect of finding out what the common law might eventually say.

I consider that the application of the bar to existing proceedings is necessary to ensure that there is no risk of a parallel regulatory regime being developed which is inconsistent with the Government’s regulatory response. As Peter Watts KC has observed, Mr Smith is seeking orders to control the future conduct of defendants rather than compensation for past damages. The injunctions being sought were ultimately asking the courts to exercise powers to shut down or sequestrate the assets of such businesses as the courts, in their discretion, chose where those businesses fail to meet the court’s orders to stop net positive emissions by scheduled dates.

The Government’s view is that tort law is not an appropriate mechanism for responding to greenhouse gas emissions. Responding to climate change harm is complex. The Government is better placed than the courts to consider the social, the economic, and the distributional implications of different climate change policy responses. The bill will, therefore, confirm that the role of setting and implementing regulatory policy in respect to climate change gases sits with the executive and the legislature.

Making this change now is necessary to avoid years of uncertainty as the case navigates the courts. The statutory bar will provide businesses with the certainty about their obligations and maintain the coherence of the regulatory system. In conclusion, the bill clarifies the law to ensure there is certainty around climate change obligations of New Zealand businesses. It also ensures our response to climate change is managed by Parliament and by the executive at a national level, rather than piecemeal litigation in the courts. On that basis, I commend this bill to the House.

DEPUTY SPEAKER: The question is that the motion be agreed to.

Thank you, Madam Speaker. I just want to start by acknowledging the departure that we had from this House of Chris Penk. He was someone that was respected on both sides of the House and will be missed, undoubtedly, by many of us. I just want to acknowledge his contribution.

There is a lot to unpack here in this bill, and one of the important things about this bill is not just the rights that it would take away but the process that the Government is undertaking in order to remove those rights. Let me be clear: no matter what the Minister says in terms of the fact of his allegation that rights will not be removed, rights certainly will be. In fact, if they were not to be removed, it is hard to know why this piece of legislation has come, with such urgency, to this House to be passed to prevent Mr Smith from following through on those exact rights.

Certainty of the law is a right of all citizens. That means that we sitting in this House, sitting in the courts of law, sitting in our homes, sitting in our schools, and sitting in our prisons—wherever we may be in the country—are all subject to the law, and no one, including Parliament, is above the law. The law that applies to us as we sit here and stand here in the various places that we are around this country is the law that currently stands in New Zealand at the moment. That is certainty of law, and that is the right that all citizens in New Zealand should have.

There is sometimes retrospective law, but the constitutional conventions that we have in New Zealand is that retrospective law should only be and can only be justified in the most extreme circumstances. I would submit that those circumstances have not been met in this case and that the type of retrospectivity that is proposed in this law is something that I have never seen before in this House.

To have a man who has taken a claim under the law as it stands have the names of his cases, which are currently before the courts, that he has spent a lot of money and time along with his representatives pursuing—they are listed here in this very bill and will be removed by the passage of this legislation.

It’s not just my words but if we look to the words of the Law Association, they call this bill extraordinary, and that’s because that’s what it is. What this Parliament proposes to do today with the passage of this law is extraordinary in the sense that it is retrospectively changing the law and it is taking away the common law right of Mike Smith to take his case to the High Court and determine if he has, in fact, had his rights impinged as a result of climate emissions. That is what they are taking away today.

The Government may say, “We didn’t have a choice about this, because it was creating uncertainty for business.” Well, I disagree. The Government had a choice: they could have let this case go through the courts. They could have seen what the courts would determine in respect of Mr Smith’s claim. They could have let the law as it currently stands in New Zealand at the time of Mr Smith’s claim and to this day, until this law is passed, be determined by the court, as it is for many hundreds of citizens around New Zealand every day, and they chose not to do that. They chose not to let the law take its course. They chose not to wait until an appropriate time to see if legislative change was needed. They chose to act in the middle of a court case and change the law not only today but for yesterday.

There’s been a lot of talk about Parliamentary supremacy, and we’ve had people on the other side of the House talking about the importance of Parliamentary supremacy and the fact of this bill is indicative of Parliamentary supremacy. I take a different view to that. I don’t think that Parliamentary supremacy is in question. I think it is very well accepted that we do have Parliamentary supremacy and the reason that we have that is because of the democratic country that we are in. The fact that Parliament can pass a law that changes the law not only today but tomorrow for Mr Smith’s case, in terms of his existing rights, and also on the rights that affected him yesterday, is not in question. Parliament is supreme and Parliament can do that. The question is: should Parliament do that? I would say that Parliament should not do that, because it is an affront to our certainty of law—the fact that you would put in place retrospective legislation that would change the law.

We have fought hard against this bill. This bill would have been in place last week if we had not fought this through the committee stage, but we can only, as an Opposition, prevent this for so long. Tonight, the guillotine will fall on Mike Smith’s case and he will be prevented from pursuing his case that he has fought so long and hard over after tonight. We asked the Ministers: will there be any compensation for Mike Smith? We were told no. I don’t know how any New Zealander can have confidence in the fact that their rights as they exist today can be able to be challenged in a court of law when the Government has decided that it will intervene in this case in such, as the Law Association said, a dramatic way—an extraordinary way.

Democracy, in terms of our certainty of law and in terms of our principles against retrospectivity, is under attack, and it is just another attack. Unfortunately for this Government, although the Minister has stated that it’s not impacting the climate commitments that the Government has, it’s another step that prevents citizens from taking action around climate change when the Government is failing to act. It’s another right taken away from New Zealanders to allow them to ask the Government to take climate change seriously when the Government is ignoring climate change.

We’ve said and we commit to repealing this bill because it’s the wrong thing to do. It is the wrong thing for an individual person but the wrong thing for New Zealand as well. I’m sure that others will mention this in their contributions, but the way that this bill came to this House adds another layer of distrust in our democratic system through the fact that this bill came through a process that was managed by the Prime Minister’s office in a total mess that meant that—and this is all on the public record—there were staff members who requested documents to be provided in hard copies only. We can only assume the reason that those requests were made, and it does not reflect well on the processes that that office has. I know that that’s why the Ombudsman and other Government officials are looking into those processes, because we deserve the right to know that transparent accountability is being made by our highest level of decision makers.

This is a very sad day, and I want to just, if I might, briefly reflect on the Attorney-General’s speech to the Law Association. I know the Attorney-General; I was at law school—in fact, in public law—with the Attorney-General. Many of these things that he is saying about public law I also agree with. But I have to say, when he states in his speech that we need to perhaps have slower lawmaking, I just think it really is a situation where New Zealanders need to look at the actions of this Government and not their words. The speech in and of itself states to respect the rule of law and respect the constitutional conventions that we both learnt when we were at law school, but where we differ is the fact that when it actually comes down to it, the bills that are coming before this House—and this bill in particular, which he does mention—are an affront to those conventions.

His justification for this is that—he says, “Climate change is an example of the type of policy that should be made by the legislature.” I don’t disagree that climate change policy should be made by the legislature, but that doesn’t justify a retrospective case going in, cancelling existing litigation that’s before a court. It doesn’t answer the question of why this extraordinary step is justified. We cannot support this bill, and I would encourage New Zealanders on when they will say this is enough in terms of this Government’s trampling on our democratic conventions and the certainty of our rule of law.

This is serious. If the Government can do this to Mr Smith, the Government can do this to anyone. It’s an affront to Mr Smith’s right; it is an affront to all of our rights. Justice denied for one is justice denied for all of us.

If this apple is the Earth, then the livable atmosphere is contained in the skin. In fact, the troposphere where all terrestrial life exists makes up about a quarter of the thickness of the skin on the apple. From the deepest ocean at its maximal point, the Mariana Trench, about 11 kilometres down, to the top of the troposphere is about half the thickness of the skin on an apple, which is only a third of a millimetre. That tiny film of existence is wherein everything that swims and flies and crawls and breathes exists on the Earth—not just everything that exists now but everything that has ever existed, from the primordial ooze to the dinosaurs to today. Outside that skin there is, so far as we know, no life in the universe. We look at the Earth floating as that blue marble in space and we think the whole Earth is living, but, actually, that thin sliver of skin on the outside in which we live is the only bit that sustains life.

This bill amends legislation designed explicitly to protect the stability of our atmosphere—that vital necessity of life. Why do we have legislation like that? Because Dunwich Heath is cinders. Because the Amazon faces critical collapse. Because rivers and lakebeds across the Earth are cracking. Because there is a fierce El Niño forming in the Eastern Pacific. All of those things are an expression of the collision between the exponential factor of our industrial civilisation—our growing economy and population and pollution and energy consumption—and the razor-thin sliver of life wherein we exist. And it’s happening far quicker than we can even begin to imagine.

The actuaries in the UK have just produced a report out of the University of Exeter, and they assessed that if we achieve 2 degrees of warming by 2050, the consequence will be 2 billion dead. That’s 24 years away. It’s actually unimaginable; we actually should all be forgiven for not being able to imagine the scale of the catastrophe that climate change represents. Since the earliest part of the 20th century, we’ve known that climate change is caused by burning coal in the world’s furnaces. The Rodney and Otamatea Times said in 1912 that burning coal “tends to make the air a more effective blanket for the earth and to raise its temperature.” The greenhouse gas effect was described in 1824 by a French physicist, making it as old as the concept of evolution. The fires and the droughts and the floods that we are hit with by extreme ferocity and increasing ferocity are fuelled and intensified by the burning of fossil fuels.

Now, I first encountered the problem of climate change when it was explained to me that a company called ExxonMobil was paying and bankrolling a candidate for the US presidency, a guy called George Bush, because Bush was sympathetic to their position that climate change should be denied and that there should be no action on climate change. Indeed, they succeeded. Bush became president and he shut down, and he perpetuated doubts and denial of climate change, and he halted and stalled the necessary political action.

In that very Parliament in Britain, that congress, they said, “Drill, baby, drill.” We’ve heard those words echoed here in this Chamber by this Government—that mocking “Drill, baby, drill”. Those companies and their executives have locked in this earthly cataclysm for even their own children, to protect the profits of the company.

To this day, those companies the world over do the same thing. They pour hundreds of millions of dollars into the efforts to influence politics away from decisive or necessary action to curb their poisonous pollution. Legislators the world over bow to the will of oil and gas and big agricultural lobbyists and act against both the will and fundamental interests of the people.

The fact of this bill today is that it extinguishes the public’s ancient common law right in favour of New Zealand’s six biggest polluters. When a Government acts so intentionally against the public interest, when the matter is existential, as climate change is, and that Government goes against Ministry of Justice advice and excludes the most impacted party, Mike Smith, while receiving the solicitations of the vested interests, what do you call it? What do you call it?

Mike Smith was not consulted. The Minister, I believe, misled the House and the committee of the whole House when he said that Mike Smith had been engaged with by the Minister of Climate Change and the Minister for Māori Development. I’ve spoken to Mr Smith, and he said that that did not happen; no such discussions occurred. But there were discussions with Fonterra and Z Energy. There were discussions with those vested interests who stand to benefit from the striking out of this legislation in this court case.

There’s a concept that was conceived by a philosopher called Hannah Arendt. She came up with the concept of the “banality of evil”. She described the character of Adolf Eichmann, a Nazi who participated in the Holocaust. It strikes me that those corporate bosses today—and, frankly, complicit politicians—are a truer form of the banality of evil, because though they will never personally come so close, as Eichmann did, to transporting human souls to the gas chambers, collectively their actions are far more consequential. They are gassing our whole planet towards an inconceivable human and animal death.

Simon Court: Point of order. Madam Speaker, while I respect the member’s right to share his views, I think it’s incredibly unhelpful, and brings this House into disrepute, to impugn members as if they are akin to the Nazis and Eichmann who perpetrated the Holocaust. I would like that member to withdraw and apologise.

DEPUTY SPEAKER: Thank you for the point of order. I think the member—it wasn’t a great comparison to use, but I could link that back to the earlier discussions in the speech, so I think I’ll just ask the member to be careful with the wording. I can see the picture that the member is trying to build, but just be careful with that comparison and don’t use that comparison again. Thank you.

STEVE ABEL: May I express, to complete the idea, that the concept of the banality of evil implies that there is a sort of blandness to an action that has a terrible consequence. Right now, our whole planet is being, effectively, gassed. The consequence of that is not 6 million deaths but tens of millions and hundreds of millions of deaths. This is what the predictions are.

Simon Court: Predictions, Steve.

STEVE ABEL: Yeah, the predictions.

Simon Court: Like Cassandra.

STEVE ABEL: I will finish by saying—thank you; I appreciate you calling me Cassandra.

I had the privilege of sitting alongside Mike Smith and Hinekaa Mako in the hearings in the Supreme Court. Those were some years ago. I saw the superb work of the counsel David Bullock and Davey Salmon, who was in full flight, at his finest, eloquently presenting the case for why tort law was an appropriate pathway for addressing climate change. The argument—in simple terms, in my layperson’s understanding—was that if the Government can’t fix it, which it hasn’t, and industry can’t fix it, which it hasn’t, then cannot the courts fix it? If the courts can’t address the existential challenge at the time, then what use are the courts?

Fonterra was lawyered up to the eyeballs; it was half a dozen dirty polluters versus one. They had the best-paid and brightest lawyers in the land. I watched the Justices scrutinise the arguments and I saw their countenances soften and turn. All of those polluters stood and made the arguments against Mike Smith, and they lost.

The Justices said there was a case to be heard and the grounds for a tort argument on climate change should be heard in the High Court. So what did those companies do? They cheated—they cheated, by coming to the Government of the day and saying, “Please extinguish this case, wipe out this case, nullify it.” The great judgment of the finest legal minds in the country, the Supreme Court, is burned by this law today. It is struck out, with all of our rights as citizens to take polluters to court, by this bill.

For now, the banality of evil wins the day. But there will be another day, not too long from now, when we will bring justice back to this Parliament and we will act on climate change appropriately. Thank you.

Thank you, Madam Speaker. ACT supports the Climate Change Response (Tort Liability) Amendment Bill. It’s an important bill because it answers a very simple question: who should make the laws of New Zealand? Should major questions of climate policy affecting billions of dollars of investment, energy security, farming, and, ultimately, the cost of living be decided here in Parliament by elected representatives or should they be developed by novel torts, one court case at a time?

ACT is very clear: Parliament makes the laws; courts interpret the laws. Members of this House are elected. We debate legislation in public. We have select committees. New Zealanders make submissions. The media can scrutinise us. And, ultimately, if New Zealanders don’t like the laws we pass, they can throw us out. That is democracy.

This Parliament has already made decisions about New Zealand’s climate policy, and we respond to greenhouse gas emissions in the following way: we have the Climate Change Response Act; we have the emissions trading scheme, which puts a price on carbon; and we have emissions budgets and targets. Those are deliberate policy choices.

At first reading, I warned that the litigation that this bill responds to could result in a parallel and contradictory climate regime. That remains the fundamental problem that this bill fixes. If somebody believes that climate policy is wrong, then there is a democratic solution available to them. Let them make the case that oil, gas, and coal have lifted billions of people out of energy poverty, but the Greens want to turn them back to poverty. Let them make the case that oil and gas have enabled billions of people to escape food insecurity and have prevented famine—global famines. Let them make the case for global famines and food insecurity. Let them make the case for unreliable transport, because having oil and gas means we have reliable and safe infrastructure and transport.

Convince Parliament, make the argument, campaign on it, win an election—

Hon Dr Deborah Russell: The election’s coming, Simon.

SIMON COURT: —change the law—angry Deborah Russell—but what we should not have is activists attempting to achieve through litigation what they’ve failed to achieve through the democratic process. New Zealanders spoke and they’ve sent this coalition Government here to fix the problems that the previous Government has caused.

If a court created a new tort that exposes a handful of New Zealand businesses to enormous liabilities for their tiny contribution to a great global problem, those costs don’t magically disappear; they fall on shareholders, and that’s us, if you have KiwiSaver or any type of retirement savings. They fall on workers who are made unemployed or are put in poverty because of high energy prices. They fall on farmers and they fall on consumers. They show up in the price of electricity, transport, fuel, construction, and everything else New Zealanders need, and, eventually, investment looks at New Zealand and says, “Too hard, too dodgy. We’ll go somewhere else.”, and that matters when New Zealanders are already struggling with the cost of living.

ACT wants this country to be a place where people can build things, produce things, and invest with confidence. We need more energy, we need more infrastructure, we need productive farms and businesses, and we need investment that creates jobs, raises wages, and unlocks New Zealand’s potential. We cannot fix what matters to New Zealanders if productive businesses are spending their time worrying whether complying with climate laws passed by Parliament actually protects them and fulfils their responsibilities, or whether there’s another entirely new set of liabilities invented by courts through litigation.

There’s another point that I made at first reading, which is the climate doom that the left consistently refuses to grapple with, and that is carbon leakage. You can make producing something in New Zealand prohibitively expensive with climate policy and taxes and bans—and I see the member Chlöe Swarbrick there, looking up at the ceiling, wishing that the climate gods would save her from this Government. What the climate gods are telling you, Chlöe Swarbrick—you can congratulate yourself when the factory closes and you can celebrate when investment that you dislike disappears. But if that production simply moves to another country, the atmosphere and the planet—that little skin on the apple that Steve Abel described in such emotional terms—simply doesn’t care. The emissions are simply created somewhere else, New Zealand imports the products we need at a higher cost, there are fewer jobs, and we’re all poorer as a result. Now, that is not serious climate policy. It’s economic self-harm; it’s self-harm dressed up as environmental virtue.

ACT supports sensible, effective climate policy. We support using mechanisms that recognise the reality that climate change is a global phenomenon. We must play our part, but we reject sending New Zealanders into penury and simply shifting economic activity, our wealth, and our opportunity overseas.

There will be members opposite who say that Parliament should simple stand back and let activists and the courts decide. ACT disagrees, and those people misunderstand Parliament’s job. We do not need to wait for judges to create a new climate tort, and then wring our hands about the consequences or scramble to come up with new policy in response. If Parliament believes this law should be clear, our job, as members of Parliament and as a Parliament, is to make it clear.

This is not an attack on Mike Smith and this is not an attack on the judiciary, as it has been framed by some members of the Opposition. This is Parliament doing its job—Parliament doing exactly what it exists to do.

The courts will continue to interpret and apply the law, but this House decides what the law is, and when the question involves balancing emission reductions against energy security, investment, jobs, the cost of living, and New Zealand’s international obligations, those public policy choices should be debated here, openly. They should be made by people who have to explain themselves to the public, and those people, including members of the Opposition who have brought climate catastrophe and doom to this Parliament, should be accountable at the ballot box too, particularly those people in the former Labour Government who banned oil and gas exploration, declared a climate emergency, flew off to climate conferences first class—enormous boondoggles. Those people, including Megan Woods, the former Labour energy Minister; Jacinda Ardern; and her cohorts should be accountable to the people of New Zealand for wrecking our economy and making us poorer.

ACT believes in fixing what matters. For families, that means affordable power, affordable food, and a country where their children can see a prosperous future in high-paid and highly skilled jobs. For businesses, that means knowing the rules before they invest millions of dollars and employ people. For New Zealand, our lovely country, it means climate policy that actually works, instead of policies that export jobs and export emissions while we make ourselves poorer.

This bill provides certainty. It protects the integrity of the climate framework that Parliament has established and it reasserts an important democratic principle: major questions of public policy should be decided in this House by representatives that New Zealanders elect to represent their best interests. ACT supports this bill. I commend it to the House.

I rise on behalf of New Zealand First to support the Climate Change Response (Tort Liability) Amendment Bill. One thing I’ve learnt over the years is that those who peddle fear are trying to sell you something, and they’re trying to sell it to you so that you can get to vote for them more. [Interruption] So, when you’re finished with your little chirping over there, I’ll carry on.

It’s in the public interest to not let this spurious case cause a domino effect of other spurious cases, just to prove a point. I take offence at the member who called Fonterra dirty polluters that cheated, and yet, at the same time, our dairy farmers are the most climate-efficient in the world.

Hon Dr Deborah Russell: No, that’s actually a myth, I’m sorry.

Dr DAVID WILSON: Oh, another myth, of course—you mean like climate change happened last week, when it was cold?

In the 1970s, I remember that what we were all going to die from, from what the climate activists said at that time, was an ice age. It was an ice age, right, and then what followed that was we were all going to die from the thinning ozone layer. Well, actually, that was quite believable, in some cases—

Francisco Hernandez: But they fixed it.

Steve Abel: We did something about it.

Dr DAVID WILSON: Yes, we have fixed it—exactly. That points exactly in my lane—thank you very much, Steve Abel, the honourable member from the other side. Yes, we can address climate change. Yes, it is an issue, except that it’s over 100,000 years, and not last week, last month, or the last 10 years. That’s the issue we’ve got here.

Climate change is a real thing. We can address it with innovation and we can address it with new forms of energy that we have been investing in, like supercritical geothermal. The emissions trading scheme is a good initiative—even though I didn’t like it to begin with, but, actually, it’s working out fine, thanks very much. The Regional Infrastructure Fund—what are we doing with the Regional Infrastructure Fund? We’re adapting. We’re looking at those things that are really threatening. [Interruption] We’re actually building something instead of just doing this: constantly, chirp, chirp, chirp; offering no real solutions but still selling the fear.

Climate change policy should be made by the executive and the legislature. New Zealand’s response to climate change must be balanced, wherein Parliament, not a courtroom, is the arbiter. I commend this bill to the House. Thank you.

Tēnā koe e te Pīka. Every aspect of this bill is rotten: its w’akapapa, its content, its whole process for its enactment. This bill has been designed, without a doubt, to protect the largest corporate emitters in Aotearoa from being held accountable for any of the damage that they have done and will continue to cause. This is a huge shame for us to carry as a nation, because, effectively, we’ve gone out and said to them, “Carry on doing what you’re doing; we’re OK. We’re blind to you as long as you continue to bring us the profits, profits, profits.”

We’re going to remain, Te Pāti Māori, steadfast in our tautoko for the complaint to the UN Special Rapporteur on Climate Change and Human Rights filed jointly by Mike Smith. We tautoko the thrust by the National Iwi Chairs Forum and its Pou Tikanga, and we also commend the advocacy of Climate Clinic Aotearoa and Lawyers for Climate Action, because what we had seen is this Government, not surprisingly, use its powers beyond what it should have done in this form of what should be seen as natural justice.

In 2024, Mike Smith was granted permission by the Supreme Court to sue seven of the largest corporate emitters—seven. What it was specifically was a mana mokopuna crime of greenhouse gas emissions. In the same year, Z Energy and Fonterra provided briefing documents to the Prime Minister’s Office, which just happened to land there without anyone knowing how they landed there, and then these documents became exact replica of what the Government announced in its decision to change the law. If there is nothing rotten about that, then we are all in denial, just as much as this side of the House is in denial of climate change.

Then we’ve got this whole part here where we are being asked to trust that you’re thinking for everyone in Aotearoa. When do we see everybody from Aotearoa? In the submission process. Instead of the standard six-month process, there were 11 days. In those 11 days, we received 621 submissions to this bill, and only 16 were in favour—only 16. Amongst the concerns submitters raised was rule of law and separation of powers, New Zealand’s climate response, lobbying concerns, process concerns, Te Tiriti concerns, international obligations, interference with individual rights—human rights—and legal clarity.

And what did we do? We’ve got remember how we got here. We had a handwritten bill lobbied by the biggest polluters in Aotearoa—a bill delivered to the Prime Minister’s Office in secret, a bill that was then rushed through the legislative process without regular scrutiny. This violates every part of Te Tiriti, article 2 and article 3 specifically, by removing any course of action that tangata w’enua can utilise to hold large corporations creating taiao damage to task. It’s a violation of article 2 in its destruction of our environment, a violation of tino rangatiratanga; it’s a violation of article 3.

I today have seen this Government acknowledge when mistakes have been made and tangata w’enua have been ignored. Everyone in this House, particularly Government, supported Nelson Tenths. They were comfortable with supporting mistakes that had been made, and this is going to be one of those intergenerational mistakes the Government afflicts on Aotearoa which will be fixed up.

This bill sends a message to Aotearoa that large, polluting companies do not need to be held to account. In fact, it tells everybody that there is one law for them and another law for everyone else. They can go out and do whatever they want to our taiao without any concerns, because we will continue to see this type of Government allow them to carry on, this type of Government allow the pollution to carry on. This type of Government doesn’t give a heck about the future of Aotearoa—certainly not the mokopuna or the impacts that they’re looking to do.

Climate policy should be grounded in w’akapapa, regeneration, and justice—not the interests of large companies. For Te Pāti Māori, our ultimate pledge to the public, to our w’ānau, is that we will continue to fight for a system that centres Māori authority, protects mokopuna futures, and commits to a just transition that brings communities with us. This Government does not care about its communities who are forced to live with the consequences of the damage that these large corporations do. This Government does not care about ordinary New Zealanders. This Government only cares for corporate polluters.

E te Māngai, tēnā koe. Tēnā koutou e te Whare. I had for a really long time believed in the kind of rhetoric that circulates around this place: that all of us come here for the same reasons; we just have different ways of getting here. But then we’re confronted with legislation like we have today, a bill that was only first introduced less than two months ago, which will actively cut off a live case in front of the Supreme Court to prevent New Zealanders from being able to hold the biggest polluters in this country accountable for their pollution. I can’t believe it, really, but maybe it is naive to believe that everybody in here is here for the right reasons—to serve the interests of regular, hard-working New Zealanders—because this law was not drafted in the interests of regular New Zealanders.

In fact, we know, because we have found out as a result of quite substantive investigation by independent, objective bodies, that this bill was actively lobbied for and, effectively, represents the wish list of some of the largest polluters in this country—again, to cut off an active case currently in front of the courts. This will prevent New Zealanders, regular New Zealanders, from being able to hold those big polluters accountable, which really leaves us with the only conclusion: that this Government is actively deciding to protect those big polluters at the expense of regular people in this country.

All of the arguments that the Government has progressed in support of this legislation are exactly the same arguments that those big polluters have progressed in the Supreme Court, so it’s hard not to see that they are just echoing the wish list of those massive corporations that have clearly lobbied them so effectively. The Supreme Court had already found that this case, the Smith v Fonterra and the half dozen - odd polluters, did not cut across already existing climate law. The Government’s argument is that it’s their place to make the law. Let’s forget about just that really basic fact that the Supreme Court has already found that this doesn’t impact any already existing laws and actually addresses a gap in legislation. But let’s also deal with the reality that this Government is actually actively undermining a law that is necessary for us to take climate action as a country and to protect the interests of and to lower the cost of living for regular, hard-working New Zealanders. This Government tells us that it’s their place to make the law. Meanwhile, they actively weaken that very law that protects regular people’s interests. Then they have the gall to talk about the democratic process that, apparently, shields them from any critique as far as the progress of this legislation goes.

Again, let me remind everybody that this legislation did not see the light of day—bar for, evidently, the lobbying that’s happened behind closed doors and secretly through the Prime Minister’s Office, but it did not see the cold light of day until less than two months ago. Then, the general public had just 10 days—just 10 days—to submit at select committee, and then we found that 93 percent of those who were submitting were opposed to the legislation.

Of course, let’s not forget that this legislation cuts off a live case in front of the courts right now. How’s that for democracy? How’s that for the charade that this Government would like to uphold when it comes to actually engaging and doing anything proximate to representing the interests of regular, hard-working New Zealanders?

Then we had Ministers and members of this Government dare to talk about the cost that not progressing this legislation will present to businesses. Well, as plenty of the analysis and those who did submit have demonstrated—doing a lot of work to get their act together when this Government clearly refuses to get its act together—with this legislation cutting off the right for regular people to hold big polluters accountable, in fact, the costs will be borne by every other business and all other households: regular hard-working people in this country. When something like this progresses—legislation to cut off the rights to remedy through tortious law, as occurred with rights in healthcare—you create a different system like that which occurred with ACC. This Government has not done that and is actively cutting off New Zealanders’ rights to access the court. It is morally abhorrent.

Thank you, Mr Speaker. I’m really proud of the process we undertook as the Justice Committee, on both sides, actively hearing from the submitters who submitted to the committee. Everybody who wanted to make an oral submission was given the opportunity.

Chlöe Swarbrick: You ignored them!

TOM RUTHERFORD: I’m really proud of the process we ran as the Justice committee. That member on the other side can scream and yell, but she did not once participate in the select committee process—didn’t turn up. You can say the same about Te Pāti Māori MPs and the independent MP on the committee. They did not once engage or participate in the process.

Chlöe Swarbrick: How about you do your job?

TOM RUTHERFORD: And she says, “How about I do my job?”. We did. We had submissions; we heard from public submitters. I’m really proud of the process, and so I commend the bill to the House.

Mālō e lelei, Mr Speaker. As I said in my first speech, in the first reading of this bill, and again in my speech in the second reading of this bill, after discussions with our caucus—actually, it was quite a brief discussion because it was so obvious what we needed to do—we have committed and we commit that, if we are elected to Government in November this year, we will repeal this bill. This bill is an egregious affront to the process of law and lawmaking in this country. It is an egregious affront to the rights of those who would bring a case to try to establish a novel tort. It is an egregious affront to the rights of Mr Mike Smith, and we will repeal it.

I’ve listened to the speeches tonight and I want to refer, in particular, at this point, to a speech made by a member of the Government, which was, effectively, a speech of climate denial, a speech that claimed that global warming and climate change was happening over the course of 100,000 years. It was topped off by another member of the Government parties saying that we were just preaching gloom on this side. Those gentlemen may not care to believe in climate change, but their insurance companies certainly do. Beyond that, those gentlemen may not think that climate change is happening, but scientists all over the world do. Those gentlemen may not believe in climate change, but the leaders, the people, and the parties in our key trading partners certainly think that climate change is happening. Those gentlemen might like to live in a fantasy world where they could say something and that makes it true, but climate change is not like Santa Claus. It’s not something that one can choose to believe in or not; climate change is physics, and it is happening. It is happening fast.

Last week, The New York Times published an article, on August 15, and it noted the extra deaths in one week in Europe, in the European summer. The deaths over and above the normal rate of death: 16,000 people. Sixteen thousand people dead during the fifth heatwave that Europe has experienced this summer. Those are deaths that are attributable to climate change. You know, Shropshire, normally so green; photos of Shropshire at the moment look like central Spain. There is drought. There is heatwave. There is climate change affecting Europe.

Why does this matter? It matters because we have signed trade agreements with the European Union, with the United Kingdom, that commit us to sustainability, that commit us to making our best efforts on climate change. Trust me, with the summer that people in Europe and the United Kingdom are experiencing right now, they will be getting even more serious about commitments to climate change. Even if those gentlemen—even if those gentlemen—don’t think that climate change is happening, not only do their insurance companies think it is happening but our key trading partners think it is happening, too. They will be looking at us and looking at this retrograde step by this Government and questioning this Government’s commitment to sustainability, and questioning whether we are holding to those commitments we have made in our free-trade agreements.

On straightforward prudential grounds—on straightforward grounds—of what might work best for the New Zealand economy and for New Zealand trade, there is no way that this bill should have seen the light of day. The trouble is that this bill fits in with a pattern of behaviour from that Government: a Government that says it is committed to actions on climate change but has rolled back and cancelled policy after policy after policy that works to hold back climate change. From the Clean Car Discount to cancelling Lake Onslow, to subsidising oil and gas exploration, to—for goodness’ sake—at this stage looking at having a liquefied petroleum gas terminal for gas, there is policy after policy after policy from that Government that walks back our commitment to climate change. Put that alongside this bill, this bill that cancels Mr Smith’s rights to challenge some of our big emitters, and our commitment to taking serious action on climate change looks thinner and thinner and thinner. And it matters.

As I was waiting to take my call in this reading, I was recollecting the huge climate marches in 2019. That was the first one: on 15 March 2019, the first big climate march. Now, that’s a day that is remembered in New Zealand as a day of terrible infamy, when 51 of our fellow citizens were killed in Christchurch, but it was also the day of the first big climate march. Later on that year, there were more big climate marches, and those marches were very influential in getting this House to pass the zero carbon Act. The entirety of this House—bar one—supported the zero carbon Act. The entirety of this House—bar one—supported the idea that we should get serious about acting on climate change and that we should put in mechanisms to make that happen. It was extraordinary bipartisanship, and yet that Government has walked that bipartisanship back and back and back.

We were not consulted about this bill. I don’t think any of the Opposition parties were consulted about it—just like we haven’t been consulted about other climate measures. This Government has walked away from our nation’s commitment to taking serious action on climate change, and they said they are the people who are best placed to make Government policy on climate change. Well, guess what! Their policy isn’t working. One of the justifications for this bill was that the Government was best placed on this to make the policy and that the courts shouldn’t.

Just in the last few weeks, we have had the independent Climate Change Commission’s annual monitoring report showing that we were at real risk of not meeting our climate budgets. Just last week, the independent Climate Change Commission’s monitoring report on adaptation came out, and it said that we need to move fast in a number of areas because the need to adapt to climate change is coming at us fast and we are not adapting fast enough. And what does this Government spend its time doing? It spends its time putting through a bill that, even though the Government itself won’t take action on climate change, was trying to force action on climate change. It said it was the best place to do the work, but the Government is not doing the work, and now it won’t let Mr Smith’s tort action do the work either. That Government has no commitment to working on climate change. This bill is a symbol of that, and it is an absolute disgrace.

The Climate Change Response (Tort Liability) Amendment Bill addresses a gap in New Zealand legislation, that gap that the Supreme Court in Smith v Fonterra noted. This bill is designed to ensure that no parallel regime may be developed in common law. I commend this bill to the House.

Thank you, Mr Speaker. Having listened to Dr Deborah Russell’s speech, she traversed the climate change impacts of this bill and the fact that it reflects the Government’s total disregard for the climate emergency that we see facing us. I want to focus on some really troubling constitutional aspects of this bill. Probably at the heart of it is the retrospective nature of this bill. In fact, there’s a whole lot of things about this bill—the fact that the bill is, essentially, to use a Latin term, an in personam bill, a bill that attacks a single person, a bill that is actually about one man’s claim and denying his ability to bring a court action. In particular, in doing that, it is taking away established rights.

Now, there’s been some chatter that because the claim was never successful, you can’t say they’re established rights. I actually want to dig a little deeper into that, because as I’ve said in this House before, the claim of Mike Smith has three branches to it—three legs, if you like. One is a genuinely novel claim that there is a climate tort. I actually want to put that to one side, because it’s a genuinely novel claim. The other two claims in public nuisance and negligence are actually really simple and common claims. One of the reasons we have a strong legal system is that you can use the law of tort to bring claims and say, “In this situation, which we haven’t looked at before, the ingredients of this tort are met.” To take negligence, for example: “You failed to take care, I’m in a proximate relationship with you, you’ve caused me harm, and it’s foreseeable.” Now, the rules around medical devices, asbestos, Agent Orange, all of these were novel damage at the time, but they all used exactly the same legal mechanism—that is to say, the law of tort and, in particular, the law of negligence.

To deny someone the right of asking the question “Does the damage that has been suffered fit within this tort of negligence?” is actually really undermining. It doesn’t just take the right away from this litigant in this circumstance; what it says is this: any time the Government doesn’t like this litigant taking this kind of action, they see that they might, because they claim this sovereignty, intervene. That’s the real concern. This strikes at the heart of the delicate balance that is struck between the courts and Parliament. The Parliament shouldn’t strip rights away from citizens who want to pursue them through the courts. It may be awkward, and it may be inconvenient, but the day that Parliament says, “We don’t have to follow the law.” is the day this stops being a democracy and it starts being an autocracy, and that’s deeply, deeply concerning.

The fact that the Attorney-General has stood up in a public forum and said that this concept of parliamentary sovereignty is, essentially, the concept of a parliamentary dictatorship is deeply, deeply concerning to me, because the balance between the courts and Parliament is one that has been carefully negotiated and struck not over years but over centuries. This Government is undermining it in a way that is deeply, deeply concerning.

Listening to the doom and gloom from the other side of the House, you’d think that the apocalypse was upon us and that the world is ending—even a law professor that doesn’t believe in parliamentary supremacy. All we are saying is that greenhouse gas emissions is a subject too complex, too important, and too profound to be dealt with by a different set of court precedents. That’s why we commend this bill to the House.

Thank you, Mr Speaker. It is, talking of novel tort claims, fairly novel for me to be speaking on a bill that’s gone before the Justice Committee, but here we go. I have an interesting relationship with torts, and that is primarily because I have been an environmental lawyer for most of my professional life. Why that’s relevant is that we’ve just heard from the very knowledgeable Hon Dr Duncan Webb about tort and how you can have these novel torts—the idea that there is some foreseeable harm, that there’s a proximate relationship, that harm is caused by breach of a duty, and that then you can have an argument in the courts. That is where we got a lot of our initial environmental laws from. This idea of environmental pollution comes from some of the nuisance that Dr Duncan Webb was talking about.

What we’ve done in New Zealand is interesting in terms of our relationship with tort. Looking across the House there to my colleague from law school, when we were in second year at law school—

Todd Stephenson: That was me—thanks, though.

Hon RACHEL BROOKING: —Todd, over there—we learnt about the ACC scheme in New Zealand and how unusual it is in the world because it’s a no-fault scheme. What that means is that we’re putting the tort to one side and having instead a comprehensive cover, so you don’t have to go ambulance chasing and you don’t have to have this argument in tort.

Interestingly, the same is true to an extent for our environmental laws. We have codified them, so you might be able to mount an argument about a nuisance. If someone causes pollution upstream of someone else and they cause some damage, there would have been an opportunity to have an argument in tort, but instead we have the Resource Management Act. Now, that legislation is going through a process of being replaced and there’s going to be a regulatory relief scheme in that that will probably diminish many of our environmental protections. I’ve been talking to a lot of concerned people about this, and they have told me that Simon Court from the ACT Party is saying to people, “Well, you need not worry about environmental protections because you can go back to tort.” It’s a strange position that I find myself in here, where the Government members appear to be talking about adding in tort for some things but taking it away for other things. I would be interested in the logic of what it is that Mr Simon Court is talking about.

Tort is complicated. We haven’t got that far with the Smith v FonterraCo-Operative Group Ltd case. The claim was not struck out. That is where we are at. The Government—it says here on the front page of the bill—is concerned that the litigation could lead to a finding that causing or contributing to the emission of a greenhouse gas could result in tort liability. There’s a lot of “could” in that sentence, and that’s important because we haven’t got there, to the courts’ saying whether or not there is this tort liability or not. What we do know is that we will never find out, because this remarkable legislation is stopping an active court case. We’ve heard that the individual, Mike Smith, is there, taking his action to the court, and this Government is saying, “We’re not going to wait to find out if there is a tort; we are going to stop you in your tracks, Mr Smith. We’re stopping you in your tracks. Very specifically, this legislation in this schedule will retrospectively apply to your case. Not only are we going to specify your particular case but we’re going to make this process where we do it very quick. We are going to have some scrutiny by the Justice Committee, but not for long.”

I also reflect on arguments that we’ve had in this House before about when something should be a private bill and when something should be a general Government bill. As Dr Duncan Webb was just speaking about, this law specifically applies to one person who has one court case, and then it also applies to a general group. Because that individual is identified, should we even be here with a Government bill rather than a private bill, knowing, of course, that private bills are there to specifically address an issue that is only going to affect one person or entity? That is important because of corruption. It’s the simple reason why we separate out private bills from Government bills. If someone is going to have a specific benefit or attack on them, everybody needs to be very clear about that, which is why you make it a private bill. But this bill is a Government bill. I just note that it’s interesting when, of course, a specific individual is having his rights diminished by this piece of legislation.

Then we know about the rest of the process. We’ve had this quick select committee, but we’ve also had documents hand-delivered to the Prime Minister’s office. They haven’t come up in Official Information Act requests, yet they did come up in the discovery is my understanding of it. It’s just not a good way to make law, and it’s not a good way to govern the country, nor is it a good way to govern the country by stopping almost every action that the past Government had taken to reduce climate change pollution. That is a deep shame on this Government. Not only have they stopped activities but they have also taken policy measures to increase climate pollution. We have seen the roll-back of funding for public transport and active transport. We have seen in Resource Management Act reforms that climate comes out of the planning process. We have seen that foreign fossil fuels will be subsidised with a liquefied natural gas terminal. This is all appalling, and the National Party is rolling back its commitment to have a pricing mechanism for methane. Everything has gone backwards.

I want to also note what my colleague Camilla Belich was saying, and this goes back to this bill being a justice bill. She made the point that justice denied for one is justice denied for everyone. I totally agree with that point, but I would also add that it’s just not denied to the climate polluters. They are the winners here. They came, they lobbied the Prime Minister, and what did they get? The court case—a novel court case that may not have even worked—doesn’t even get to have a decision-making process around the substantive point, all in the context of this Government listening to those that would have them have their head in the sand about climate change. Climate change is real. Climate change is happening. We need to play our part in reducing that pollution. We need to not just be here for the short term; we need to be here for the long term. We don’t just want to be here for those big companies that do that pollution. We need to be here for everyone—every citizen of New Zealand that is going to be affected by climate change, and the future generations as well.

Thank you, Madam Speaker. This bill is important not just because of the role these big companies play in the New Zealand economy but because of the hundreds and the thousands of farmers and businesses and people and workers who participate in the economy that is created by the work of these businesses. This law doesn’t alter the Government’s responsibility under the Climate Change Response Act, nor does it change the obligations businesses have under the emissions trading scheme, where they’ll still be required to meet them. Therefore, I commend the bill to the House.

A party vote was called for on the question, That the Climate Change Response (Tort Liability) Amendment Bill be now read a third time.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

Bill read a third time.

DEPUTY SPEAKER: I declare the House in committee for consideration of the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill.

Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Committee of the whole House

Debate resumed from 6 August.

Part 1 Substantive amendments to principal Act

CHAIRPERSON (Teanau Tuiono): Members, the House is in committee for further consideration of the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill. When we last considered the bill, we were debating Part 1. This is the debate on clauses 4 to 40, “Substantive amendments to principal Act”. Once again, the question is that Part 1 stand part.