Climate Change Response (Tort Liability) Amendment Bill

Committee of the whole House

Thank you, Mr Chair. I can’t say it’s a pleasure to take a call on this particular bill. As we’ve traversed in previous stages of the bill, we are in a situation where we have a bill which has been brought to the House and is going to get rid of existing litigation, as well as prevent future litigation in respect of tort law.

I do have a question for the Minister, and I wonder if he would be open to making some opening comments on this particular bill, because there are a number of policy decisions that this Government has made which are unusual. They are unusual in the sense that we have a case in front of the court at the moment which will be extinguished by this particular bill, and we have a situation where future arguments in respect of this particular type of tort—and, if you look at the bill, and I know we’ll come to this in subsequent clauses, the definition is of all torts in relation to climate change emissions.

The reason I raise that is because, in earlier readings of the bill, the Minister did state that this won’t extinguish existing claims. I think that is a really important first initial question for the Minister. What actions, current and future, will be extinguished through the purpose of this particular piece of legislation? I look forward to hearing from Minister on it.

Committee of the whole House

Thank you, Mr Chair. Like my colleague Camilla Belich, I do not support this legislation coming through the House.

Speakers during the first two readings have made it clear that this is a very unusual step to take. We’re very disappointed that the Government has decided, in many ways, to disrespect what is a common feature of our democracy: to allow cases to proceed through the courts, not undermining parliamentary supremacy whatsoever, because Parliament can then make a decision to override a decision of the courts, but, essentially, creating a large amount of uncertainty for the people of New Zealand, where they cannot be assured that they will have their day in court, can have a matter determined by a branch of our democracy, because the Government may override that decision midway through the courts. This was a case that was due to be heard next year, with papers due to be filed, I believe, this month. This really cuts across our democracy, and we will certainly want to explore this in a lot of detail.

I do note that, when Minister Meager spoke at the second reading of this bill, he started his speech by saying that this did not remove any rights. His argument was that it didn’t remove substantive rights, because those hadn’t yet been determined by the court. But, as many people will know and have experienced in New Zealand, there are both procedural rights as well as substantive rights, and, indeed, substantive rights are included within our own New Zealand Bill of Rights Act. Sections 25 and 27 affirm that every person has the right to minimal standards of criminal procedure, and there are both substantive and procedural rights in domestic and international law. I really want to get a sense from the Minister of Justice himself, who is responsible for this legislation, whether it’s his belief that no rights have been removed or whether he, unlike his colleague at the second reading, will acknowledge that procedural rights are equally important in a democracy and that what the Government is doing in this instance is removing rights: removing the rights of Mr Smith, certainly, and other potential litigants before that court case has its final hearing.

Again, I look forward to the Minister’s opening comments. There are a number of other issues that, again, Mr Meager spoke to at the second reading, which I think we would really appreciate hearing from the Minister about, which we will run through, in terms of the limitations and the choices that have been made in this bill. We’ll start with that key point of just an acknowledgment, if the Minister could, that rights are being affected and that procedural rights are equally as important as substantive rights.

Committee of the whole House

Thank you, Mr Chair. There’s just a couple of preliminary things I want to raise on this bill. This bill really should be called the “Deny Mike Smith Justice Bill”, because it’s his claim that this bill is all about.

The question I have is whether the Minister, in having this bill drafted—obviously, his officials looked at the claim that Mike Smith is bringing, and it’s a three-pronged kind of claim: one claim in negligence, claiming that harm is being caused by a lack of due care; another claim in nuisance, that there’s an unreasonable interference with the enjoyment of the environment by others; and his third claim is the novel tort claim, that there is a climate damage tort, which, to be perfectly honest, I think was unlikely to get across the line, but it never will now. They’re all claims in the area of law known as tort—that is to say, the law of civil wrongs.

My question is: in the legislation as it stands, it says there are no tort claims for climate wrongs, or words to that effect, but it doesn’t say there are no common law wrongs, because, in the common law, there are many other areas of law. A contract claim would be tricky, so we could probably put that to one side; a restitution claim would probably be tricky, so we can put that to one side; but it does strike me that it’s possible to run a fiduciary argument, and we’ve seen those run in novel ways in a number of jurisdictions. The fiduciary argument has been run very effectively by indigenous peoples for claims against the Crown for wrongs to the environment.

Now, whilst we have a Treaty framework in New Zealand—and you’ll see that Mike Smith’s claim had a strong tikanga thread to it; that he has a particular standing because he is an iwi leader—this bill does not preclude a claim against another party, whether it be the Crown or a business interest, that they are in a relationship of particular vulnerability. That’s the key point of a fiduciary claim: one person is in a position of vulnerability to that other person. In this climate situation, there is at least an argument—the kind of argument the Supreme Court might not rule out as entirely untenable, because that’s the test that the Supreme Court essentially has to run—that the Crown or large businesses are in a fiduciary relationship with citizens or particular iwi who are vulnerable to things like coastal erosion through climate change.

I guess my question to the Minister is this: in drafting this specifically to preclude tort claims, is that an acceptance that, if a litigant wishes to reframe their action in another area of the law, whether it be fiduciary claims or some other area that I will probably be able to think of—or perhaps some of my esteemed, learned colleagues can message me and I’ll raise it in the House. Are you accepting that those other claims still remain open? If you wanted to preclude all claims, you would have said it, and, in fact, the Supreme Court decision itself says that, because the legislation doesn’t preclude other actions, we presume they’re still allowed. Because this legislation doesn’t preclude a fiduciary action, would it be right to say that that is still allowed, at least to be argued in the courts?

Committee of the whole House

Thank you, Mr Chair. I want to thank the honourable members for their opening comments in relation to this bill. This bill amends the Climate Change Response Act 2002 to prevent findings of liability in tort for climate change damage or harm caused by greenhouse gas emissions.

Now, why did we do this? It’s a response to the litigation in Smith v Fonterra, where the plaintiff has brought claims in tort against several high-emitting companies, including claims of public nuisance and claims inviting consideration of a new tort relating to damage in the climate system. The amendments to the bill address the risk that a parallel and potentially contradictory regime to the Climate Change Response Act could be developed in common law. The bill clarifies that no liability in tort is available in relation to emissions related to climate change harm. This will provide certainty for business and investors about the extent of their obligations.

We’re doing this because it’s our intention that the New Zealand regulatory approach to greenhouse gas emissions and climate change harm should be managed by Parliament and the executive, who can take a whole-of-economy approach that carefully considers the environmental, economic, and social implications. We think that tort law is not an appropriate mechanism for responding to greenhouse gas emissions, as there needs to be careful consideration of all those matters. That’s what Parliament has done, and so that’s why we’re passing this legislation.

Committee of the whole House

Thank you, Mr Chair. On Part 1, given we’re meeting the Climate Change Response Act, I wonder if the Minister can respond to this inquiry. The Climate Change Response Act is, of course, New Zealand’s primary legislation for addressing greenhouse gas emissions, and one of the purposes of the Act is to enable New Zealand to meet its international obligations under the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement.

Now, the key component of the Act is to set up a framework for reducing emissions over time, including a 2050 emissions reduction target. The Minister’s obligation is that he has a responsibility for implementing policies to reduce net emissions. Where those policies are insufficient to reduce net emissions, whether to meet our target or to address the existential challenge of climate change, there remained—until this bill came to the House—a pathway for citizens to challenge the harm caused by emitters locally, which is what’s being eradicated by this bill.

My question is, if the objective of the Act is to help us reduce our emissions, then allowing tort pathways to remain open is not contradictory with the objective of the Act, because, in fact, it might assist us in finding other means and pathways through the whole of our legal system to reduce emissions. But eliminating and striking out the option of tort as a means to addressing that existential challenge of climate change actually contradicts the purpose of the Act, if its primary purpose is to address greenhouse gas emissions. I wonder if the Minister can respond to that question, because intrinsic in the actions of Smith v Fonterra is an assertion on the part of Smith that the Government’s actions have been insufficient: the Government has not fulfilled its obligations to address climate change emissions.

The other question there is, within the existing regime, agricultural emissions are not included. Fonterra, being an agricultural entity, because the primary mechanism is the emissions trading scheme, is not captured by this Act, effectively, or the actions of the Government.

So my first question is, how was it inconsistent with the fundamental purpose of the Act to allow tort to be a pathway for addressing emissions; and where the Government has failed to sufficiently act, how is it justifiable to extinguish the right of citizens to seek other pathways to address the harms caused to them by climate change?

Committee of the whole House

Thank you, Mr Chair. The point we are making is that the response to climate change by New Zealand has been through Parliament and the elected executive, through the regime set up through the Climate Change Response Act. Now, the member is perfectly entitled to argue that the Act should be different and should include some things and other things, or it could be more stringent. There’s lots of arguments about that and that’s perfectly legitimate. The appropriate response to that would be to campaign and become Government and change the legislation. That’s fine. That’s, no doubt, what one will try and do, and we will line up our record on the economy and climate change and we’ll see who wins that argument.

That’s how it works, because we hold that our response to climate change is a very broad undertaking that involves consideration not just of climate but, also, the economy, society, and many other elements. We believe that an accountable Parliament making those judgments and being accountable for them and subject to change in the normal parliamentary fashion is the way to do it, rather than through a process of tort. And so, that’s the point that we would make there.

Committee of the whole House

Thank you, Mr Chair, and what an illuminating statement from the Minister of Justice. We seem to be getting a lecture on how to do our jobs in committee stage, and, in fact, we are told that it’s not actually our job to scrutinise the Government and actually look at this bill and find out what is wrong, but to campaign in an election if we disagree with it. Well, that’s not my understanding of how the committee stage works, and I have a few probing questions for the Minister. I would appreciate an informed answer on them, if possible.

The Minister stated himself, and so brought this point into the debate, that the justification for this bill was that the Government was better-placed to take a whole-of-economy approach to climate change. My question is: where is this whole-of-economy approach? Where can we find it? It doesn’t appear to be on the papers tabled in front of us today. It doesn’t appear to be in any information provided by the Minister or officials at select committee. And so, if the Minister is saying that there is a whole-of-economy approach to addressing climate change, effectively, could he please table that? It would be very interesting for us to be able to see that approach and how this, in fact, fits into that approach, because my contention is that it doesn’t.

There are a number of other, overall issues that have been brought about in this debate, but I wondered if I could ask some specific questions around the clauses in Part 1. The first question I have is in relation to clause 3, which amends the Climate Change Response Act. I wanted to ask the Minister, how is this a climate change response? Because it appears to limit the types of responses that can be brought—and we can get into this in clause 4—and it seems to be inconsistent with the aims of the Climate Change Response Act, which is to tackle climate change and to mitigate the impacts of climate change. I can quote the exact purpose of that Act or find that for the Minister if he wishes, but the consistency with amendment Acts and the primary piece of legislation is inherently important, and I would like an explanation as to how this fits in with that primary piece of legislation that it is amending.

The second question I have is in relation to clause 4, which follows directly on and inserts a new section 271, which is the statutory bar on tort liability. Now, if we first look at 271(1), it lists the applicability of this bill, and it says it’s to a person, which I think we can all assume at this stage is a legal person, so corporations as well—I think famously this Act applies to their activities—and it talks in 271(1) about a situation where there is an emission. The question that I have for the Minister is how does this interact with 271(2), which states that a person has no climate liability for the emissions.

Obviously, where there is an agreed emission, which is not contested, I can see how that would work, but the question I have is: where there is a dispute as to the fact of the emissions or the extent of the emissions, does that person—and we know that includes corporations, but the Minister’s happy to be corrected if that’s not his understanding—or corporation have liability where that is disputed? It appears to me that to be exempt from liability, you have to have an agreed emission, as outlined in 271(1).

I want to acknowledge that sometimes those aspects are contested. Sometimes there is a challenge of emissions being made, and there is not an agreement on behalf of that alleged emitter that that particular activity is occurring. I think this is a really important point, because many businesses looking at this will think, “OK, I don’t need to worry about tort liability anymore; I can do whatever I want, if that creates emissions or it doesn’t.” Actually, if they dispute their emissions, I’m not clear that they will be covered from the fact of the tort. The other thing that I want to know is it says tort liability. Does that mean the fact of a tort existing can be found without liability being also established?

Committee of the whole House

I’m concerned that we could easily get into a debate about the adequacy or not—or the appropriateness or not—of the current law in relation to climate change response. The point I’d make is the Government is not changing the framework of our climate change response, which is laid out in this legislation. The expectations and requirements on businesses to reduce emissions have not changed; all sectors are expected to play their part in reducing emissions to meet our targets.

The system set up under the emissions trading scheme (ETS) is unchanged by this decision. The ETS works by increasing the cost of emission and reducing the cost of removal. That is not being changed. Members can quite rightly argue, if they want to, that we should do it differently, and our ETS system should do this, or do that. That’s fine, but that’s not what we’re talking about with this legislation.

What we’re talking about is Parliament moving to put a statutory bar in the way of tort—setting up a parallel and potentially contradictory regime that would work alongside the regime that Parliament has set up. That’s what we’re trying to deal with. In terms of the question about arguments about whether or not there is an actual emission, my advice is that both actual or potential emissions are covered by this.

Committee of the whole House

I’d like to follow on from a related question that my colleague Camilla Belich has made, but it’s going down a different track. She’s asked about the emissions relating to climate change, but I want to ask, what if a climate-changing emission particle has a both a climate-changing effect but also a physical effect? For example, we know that methane, nitrous oxide, and carbon dioxide are gases that change the atmosphere, but they can also cause physical harm. Let me give an example. If there’s a waste dump, or if there’s some sort of organics collection facility, or a methane-generating plant, for example, that captures biogas and turns it into electricity—we know that methane has been defined as an emission-related climate change effect. But if that factory were to have a leak, for example, and the methane spilled over into a local community or polluted the earth, because that methane is creating climate change—it’s a climate-changing gas—does the fact of its exclusion from sections 271 and 272, where it seems like if a particle has a climate-changing effect, mean it automatically gets excluded from the tort liability regime? Obviously, the climate-changing impact of that is excluded, but what about the physical effects of that methane particle, for example, or the potential health effects that methane exposure might cause to an atmosphere?

The same goes for other climate-changing gases, which obviously do have climate-changing effects that are excluded from this regime. Does the exclusion of climate-changing particles mean that they’re excluded from the other harms they might potentially cause? Or does the tort limitation apply purely to the climate-changing effects? If it is only intended to limit to the climate-changing effects of it, how can the Minister reconcile that with section 272(2), which seems to broaden the potential limitations to not just climate-changing effects?

For example, “(b) endangering or impairing the life, safety, health, property, or comfort of the public: (c) interfering with, or obstructing, the public in the exercise or enjoyment of public rights: (d) harm, impairment, or loss, or a conception (including, without limitation, a tikanga … conception) of harm, impairment, or loss, that is neither physical nor economic”. I accept that it’s the Government’s policy intention to exclude climate change effects from this legislation. I disagree—everyone on this side of the House disagrees with it. But my concern, to the Chair, and to the Minister, is that—is this legislation drafted so that it’s potentially also connected in a way to exclude the harms that might come from climate-changing particles, that have physical and other effects if they get loose in the community in sufficient concentrations, or is there another section of this legislation which explicitly distinguishes between them? If there is a distinction between them, how does this legislation distinguish between the climate-changing effects of it and the actual physical effects of that particular climate-changing particle?

Committee of the whole House

The bar applies to climate change harm caused or contributed to by greenhouse gas emissions. Other forms of tort liability for other types of damage are not affected. For example, matters such as odour or discharge may still be subject to private nuisance claims if they meet the relevant thresholds for liability in common law.

Committee of the whole House

Thank you, Mr Chair. Look, I have what I think’s quite an important question, and that’s whether any Treaty analysis was done on this amendment bill. There’s reference in the new section 272(2)(d), inserted by clause 4, that actually explicitly excludes any claim for harm, including, without limitation, a tikanga Māori conception of harm. Smith v Fonterra, the claim that this bill extinguishes, was, in part, a claim for harm to te ao Māori, to things that are precious to Māori. If we look at the Treaty of Waitangi in article 2, the very thing which was guaranteed there was taonga katoa, inaccurately translated as lands, forests, and fisheries, but in fact, it means all things precious to Māori. Mr Smith’s claim is a claim for damage to things which are precious to Māori, including the wider environment, the degradation of biodiversity, and so on and so forth.

What we have here is a bill which actually expressly excludes a claim for harm under a tikanga Māori conception of harm. If you’re going to do that, whilst the Crown in 1840 promised to give tino rangatiratanga over taonga katoa, then I’m assuming that the Minister thought very carefully about the interplay of those two things. In saying you can’t claim for harm to your treasured possessions, when the Treaty of Waitangi says that you have full control and protection of your treasured possessions, those two things don’t match, and so here we have a substantial problem.

It’s not just the problem of retrospectivity or extinguishing a live action; it’s a problem of someone seeking to assert rights which the Crown has promised to protect and to not infringe, and yet this bill here seems to be explicitly—not just by a side wind but explicitly—overriding a claim which is premised on the very things the Crown is bound to protect.

Now, we’re well aware of the Government’s approach to the Treaty, and the fact that it’s seeking to change aspects of the law relating to it, but there has been no suggestion that this Government doesn’t acknowledge that the Treaty exists and that it does confer rights and that the Government remains committed to honouring the promises made in the Treaty. The Treaty principles bill failed in this House, so the principles which are widely accepted, which include the protection of Māori by the Crown, would seem to still adhere.

Here we have the opposite of protection. We have someone bringing a claim that perhaps is a difficult argument to make in the courts, but we have the Crown removing the right of Māori to assert their rights to the protection of their taonga, their precious and treasured things. I want to know, Minister, did the ministry itself, your officials, undertake Treaty analysis and did you go out and ask iwi what they thought of this bill?

Committee of the whole House

The intention is that the bar excludes any harm that may potentially be subject of a claim in tort. Tikanga-based conceptions of harm are included because that is an element of the existing Smith v Fonterra case, including tikanga. This is simply for the avoidance of doubt. It’s not meant to imply that tikanga-based conceptions of harm are or would be recognised in tort.

Committee of the whole House

Thank you, Mr Chair. I mean, it is important to also remind the House that what we’re looking at here is a bill that fundamentally changes one of the key tenets of Aotearoa’s legal system when it comes to tort. When we’re looking at tort, essentially what we’re looking at is a civil wrong, other than a breach of contract, which is remedied by way of an action.

But in this case, I want to specifically focus on new section 271(1), inserted by clause 4. There are a couple of components to this because one of the things, when we’re looking at it in terms of what tort does and some of the common denominators of Aotearoa’s, and, indeed, Westminster’s tort system, is looking at damage and loss against protected interests. In this case, personal interest, property interest, real property, personal property, financial position, privacy—all of those fall under the auspices of tort.

The issue that we have here then, particularly when we’re looking at new section 271(1)(b), is the breadth that this could cover when it comes to claiming loss of damage to a person’s real property that is not on a contractual basis as a result of emissions that caused or contributed to emissions-related climate change effects. [Interruption]

CHAIRPERSON (Teanau Tuiono): Excuse me. Could people on that side just keep it down a bit.

Dr LAWRENCE XU-NAN: One of the things that we are seeing is an increase in climate-charged extreme weather events. Now, those things are not necessarily contract in basis, but has there been any modelling done, which I cannot see in the regulatory impact statement by the Ministry of Justice on what impact this will have? Let’s say rain then causes a landslide or a mudslide, which then washes away a person’s real property, which may not be wholly covered by contract law through, let’s say, insurance, or insurance is no longer willing to cover because it’s an existing risk. How would those people, in terms of real property, be able to hold anyone accountable for climate-charged extreme weather events under this piece of legislation?

That being one of my questions, but also by kind of absolving, I guess, in the civil law sense when it comes to tort liability for climate, what cost has the Government forecast for the potentially increased number of cases being now brought against the Government because they can’t do it under civil law anymore under this legislation? Has that been forecasted in terms of an increase in number of litigations against the Government?

I think the question that the Hon Dr Duncan Webb raised regarding Te Tiriti o Waitangi is crucial, and I particularly note, in the regulatory impact statement, in paragraph 67 on page 17—this is option two, which is the Minister’s preferred option—it may be perceived as not being consistent with Treaty obligations. My third question to the Minister is what consultation has the Minister done with Te Puni Kōkiri, particularly with the Minister for Māori-Crown Relations?

I want to just finish with one final question for this particular bit, noting that on the table, on page 15, that international implications was withheld. I note that the Minister has consulted with the Ministry of Foreign Affairs and Trade around our international obligations, but I’m just signalling to you that depending on the Minister’s response to my question, I will have follow-up questions on the implications this will have for our New Zealand-European Union Free Trade Agreement and New Zealand-United Kingdom Free Trade Agreement.

Committee of the whole House

I think it’s obvious to everybody tuning into this debate that climate change is a thing that affects the whole globe and New Zealand’s contribution to the broader issue is relatively small compared with other parts of the globe, but you can’t separate it from the overall situation. Governments all around the world—well, some are; some aren’t—are attempting, in their various ways to respond to that and, ultimately, to reduce our climate change emissions as a globe in order to respond to the problem that we find.

The point is that, in the New Zealand context, Parliament has decided to pass the climate change response legislation, which is Parliament’s consideration of how best we, as a country, can make our contribution to responding to what is a global problem. We all recognise that we can’t solve the problem on our own; it is part of a broader global response. That is all unchanged by this legislation; that carries on. New Zealand emitters’ responsibilities under the emissions trading system and the regime that we’ve set up carries on. What we’re talking about here is a novel approach being requested around tort liability, which we are ruling out through this legislation.

Committee of the whole House

Thank you, Mr Chair. I want to start off where the Minister of Justice stopped, with the international implications of this and the ecosystem implications. I read commentary on this decision, which was a unanimous decision of our Supreme Court, and I’d point out that that is an indigenous court; it’s not what we used to have with the Privy Council. It’s our people making reasoned decisions after complex evidence has been heard. One of the things I’ve read is that, in fact, it’s a really important case internationally because it impacts on places like Africa and the Pacific, where there are similar settings and issues. I wondered whether the Minister had a comment, or had sought advice, on the ramifications of something that was already impacting on the way people saw their duties, particularly emitters, and whether that had been taken into account.

Then I wanted to ask about the distinction between some of those torts that we have seen—and they are not novel—like public nuisance and like negligence, and the novel tort. I was thinking about the issues around negligence. Negligence is a wholly established tort, and it involves a level of proximity. The test actually involves it being pretty much an anticipation that you are causing somebody harm, etc. There’s a balance already in the law there. The things that would have come in here under that tort are already subject to some quite deep legal thinking about where that line is crossed. I wanted to know whether the Minister had put some thought to, or sought advice about, letting those tort actions go forward, rather than looking at the new novel one. There’s been a lot of focus on the novel one, which I accept is a novel duty and so it’s quite different in kind. Had he considered allowing the ordinary law to be pursued in a way that would still incorporate the harm done to people in this country by negligent climate responses? That was one of the questions I had.

I was also interested in whether he had considered a higher threshold as an answer here. I actually accept that Parliament, eventually, is supreme; it’s a good thing that Parliament is supreme. Had he considered a higher threshold in these situations, rather than an out-and-out ban on something like this, particularly when we’re dealing with new torts like privacy? There’s a reluctance to extend into those areas already. Also, it’s something that Parliament could insist upon. In a way, that makes more sense to me than an out-and-out ban on these things. I was struck by the comments made by my friend Dr Duncan Webb about the potential for other actions. As we know, where there’s injustice and harm, one of the best things about our laws is that people get creative and they find a response. There are other ways that I can see this happen. He said that his colleagues might text him with a few other ideas. I mean, one of those ideas I thought about was unjust enrichment—equitable responses here to this situation. What is going to happen? Are we going to be back here talking about other areas of the law, or does he want them to play out?

Then I wanted to talk about what happens to people who take actions like this. Mr Smith takes this action—it’s very expensive; there’s lawyers working on it night and day. It’s not a cheap thing to do, and it gets cut off at the knees after the leave application has been heard and it has been found that there is a legitimate issue here. When that happens, there’s a chilling impact, because if you take litigation, and it’s expensive, what happens when it gets struck down in the middle of the battle? We don’t really get the advantage, as a society, of finding out what the answers are or fleshing this out. I appreciate that the Minister talked about these things happening in a campaign. Well, with respect, we all know that’s an extremely limited place to find out these answers. I’d love to know what he thinks about that chilling effect, and if he took advice.

Committee of the whole House

Thank you. We’ve heard this raised a number of times now, around whether this is cutting something off midstream. The point that we make is that there is no existing common law climate change tort, and no one has acted on the basis of there being a climate change tort. The transition applied to bar the Smith v Fonterra case, because the Supreme Court refused to strike out the claim. The case is at a preliminary stage, with substantive hearings scheduled for April 2027. It will have the effect of removing Mr Smith’s expectation of continuing this proceeding. To the extent that this expectation could be seen as a right, it’s a limited right to go to court to argue for the development of a common law that doesn’t yet exist, so we don’t regard that as retrospective.

In terms of whether we took into account African interest in the Supreme Court ruling, no, I didn’t take that into account. Our focus has been on the New Zealand legal setting, and having one clear regime in place—which Parliament has passed—to deal with our climate change emissions.

In terms of a chilling effect, of course, yes, that applies in both directions. We’re very conscious of the fact that uncertainty about whether a company could absolutely be operating within the rules of the legislation that Parliament has passed but still potentially be liable for something beyond that, and potentially contradictory to that—we were concerned that would have a chilling impact on investment decisions over time, which, ultimately, will have consequences for broader living standards in this country, because all economic growth ultimately depends on investment.

Committee of the whole House

Thank you very much, Mr Chair. To the point you just made, Minister, it’s your view that it didn’t have a retrospective nature—that was not the view of the Ministry of Justice, was it? It says in the regulatory impact statement—

CHAIRPERSON (Teanau Tuiono): Can I invite the member to direct his comments through the Chair. Don’t use “you”.

STEVE ABEL: Pardon me, Mr Chair. The Minister’s assertion that there was not a retrospective nature was not the view of the Ministry of Justice, who stated that the retrospective statutory bar will like not outweigh the costs of intervening in active litigation and the resulting impact on confidence in regulatory stability.

Furthermore, to the Minister’s earlier suggestion that one pathway to solving this problem for our side of the House would be to campaign against it and overturn it, what was the ministry’s advice on the downsides to that level of regulatory instability, should the legislation not endure across changes of Government—noting that a statutory bar, in the view of the ministry, may adversely impact businesses’ reputations if the law was seen as shielding them from what would otherwise be actionable behaviour?

Indeed, a highly contested statutory bar may create doubts about its longevity across future Governments. If the legal framework regarding tortious liability for greenhouse gas emissions shifts over time, this would have the effect of making the law less clear for businesses and the general public. Minister, what did you think of that advice, and to what extent did you take it into account—

CHAIRPERSON (Teanau Tuiono): Just a reminder: you’re using “you” again.

STEVE ABEL: Pardon me. I wonder what the Minister considered of that advice, and to what extent he took it into account when making the decision to proceed with this legislation.

Another question I have is in regard to new Part 8, section 271, inserted by clause 4. The Minister has made the point that we are a small contributor to climate change on a global scale; it is a planetary problem that is a poly-crisis. Is there not a risk, or what is the risk, in extinguishing tort as a pathway for addressing climate change, given it is, indeed, tort law that has found the core principle that, no matter how little you contribute to a problem, you are still liable for that problem? For centuries, even proceeding the existence of “New Zealand”, common law established that, if a group of people were tried for the murder of somebody and each of them had dropped but one drop of poison in a glass but the 10 drops that they placed added up to a poisonous mix, they could not use the defence that they only placed one drop and that that single drop was not poisonous in itself—not sufficient to kill the person who died. That was exactly the principle established in common law, through tort, that your small contribution, no matter how multifarious the sources of pollution are—no single polluter is exempt from liability for the combined effect. In the striking out of this option in relation to climate change, what effect does the bill have on the general principle of liability for one’s part, even if it is only small, in the overall effect?

Another point that has been raised by my colleague Duncan Webb is the question of Māori consultation or Māori consideration? It is also very clear, from the regulatory impact statement, that there was no Māori consultation. Equally concerning, there has been no consultation with the other party affected by the striking out of this right—namely Mr Smith. We know—because it has been well documented in the media now, and because there has been an Ombudsman report on it—that Fonterra was effectively engaged directly with the Government on this matter. What actions did the Minister consider were his obligations to consult the most impacted party in this legislation—i.e., Mr Smith—when he was aware that his Government had been liaising with Fonterra, who were directly asking for the extinguishment of Mr Smith’s tort right?

Committee of the whole House

There was a large number of questions in that previous contribution. One of them was around whether, as Minister, I took into account—and whether the Government of the day took into account—the advice from the Ministry of Justice. The answer to that is yes; we always take into account their advice.

In terms of my suggestions around campaigning, that was in reference to whether people were not satisfied with the broad climate change Act response that we have under way in the emissions trading scheme system, and what it applies to and what it doesn’t apply to. That is the natural territory of disagreements between parties that are sorted out, in the way that we get support from the general public for our particular view. Some people have referred to agricultural emissions not being part of that, and that’s something that any future Government could campaign on or not. That’s the natural flow of discussion and debate within out parliamentary context, but the framework for it is the legislation, which is, we believe, the appropriate place for decisions to be made in this context.

In terms of consultation, this bill has been done in a timely fashion, but, of course, everybody has had the opportunity, Māori and non-Māori alike, to contribute through the select committee process. Ministers: yes, there were discussions with parties involved in this, and it is my understanding that Mike Smith also met with two Ministers—the Minister of Climate Change and the Minister for Māori Development—as well. Now, I don’t know exactly what was discussed there, but he certainly met with two Ministers, as well.

Committee of the whole House

Thank you, Mr Chair. I have a relatively procedural point around the litigation, and I do think that this legislation should actually refer, in its title, to the case that it’s extinguishing.

This bill extinguishes the litigation that Mike Smith has brought, and he has managed, since 2019, through numerous interlocutory actions, strike-out applications, and appeals, to get to the point where the Supreme Court said, “You’re allowed to argue it, and we’ll set it down for next year.” That’s not cheap, and this Government, in some of its legislation going through this House, has been very clear that, where it deprives a citizen of something, the depriving authority should provide regulatory relief, right? Mike Smith didn’t manage to get to the point where an award was made by the courts—that’s being taken away—but he certainly has invested many thousands of hours and dollars into this.

My question is procedural because it’s about costs. Given that the Government has made a policy decision to deprive Mr Smith of his right to pursue this further, he now has the problem of wasted costs. The thing that is prohibited is tort liability. Court costs are not tort liability, but we’ve got a problem in that we’ve got a statutory bar to bringing and further pursuing actions. My question is actually relatively simple: is Mr Mike Smith barred from seeking to recover the costs of his claim from Fonterra and the other litigants? Those other litigants, as is normal for super, massive corporate interests, have opposed him procedurally at every possible step of the way. Litigation, by exhaustion, is a pretty well-established tactic of big corporates—and they’ve been proved wrong. They’ve been shown that, in fact, Mike Smith does have an arguable case and, in any usual proceeding, the court would award costs to the successful litigant of these interlocutory steps. In fact, the court, if it found those steps to be intentionally obstructive and without merit, can award increased costs or even actual costs.

That’s a genuine part of the legal system, and so the question is a fair one, because the lawyer involved, and the out-of-pocket expenses for filing documents and evidence, and all of those things don’t come cheap. The question’s a pretty simple one, and it’s one I’m very hopeful that the Minister could answer. If he could respond to that, I’m sure the committee and Mike Smith—if the answer is in the affirmative—would be very pleased.

Committee of the whole House

Thank you, Mr Chair. There’s obviously a lot to consider in this bill, and I do have a few questions following from the Minister of Justice’s previous answers.

The first one is in relation to the Ministry of Justice. The Minister stated that he did take into account the Ministry of Justice’s advice. However, he did not listen to it in that he stated that the Ministry of Justice’s clearly stated preferred option in the regulatory impact statement is “no regulatory intervention at this time”. That is the advice of his expert officials who are advising him at the Ministry of Justice. Although he said he took it into account, I think it is incumbent on the Minister to explain why he decided to ignore that advice from his specialist ministry and pursue this case, this bill, against Mike Smith—it almost is like a case.

I think there are also some really fundamental aspects of this bill, and I think it’s important to clarify what the Minister’s view is on them. The first point is, I believe I heard the Minister state that this was not retrospective in an earlier contribution. Now, how can this be correct? Going back to the clause we’re looking at—I understand we’re still looking at clause 4. If we look at section 271(3)(c) in clause 4, we see that the emissions as defined in this bill are “all or any of the activity, the related activity, the emissions, and the effects occurred (in whole or in part) before, at, or after the commencement of this Part”. “Before” and “at”—those are words that state that this bill is retrospective, so I think it’s important that the Minister clarifies. That is what is stated in this bill, and it is clearly—from the words of this bill, drafted by the Minister who is responsible for this bill—what it indicates.

I also think it’s really important to establish whether there is a current claim. I want to walk through this a wee bit, if I may. It beggars belief that a bill would be brought to this House to extinguish a claim that does not exist or does not have the potential of existing at all, and that seems to be what the Minister is saying. The answer, surely, has to be—and I’d like the Minister to respond to this—that the Supreme Court has found that this claim may exist.

To take that a step further, if Mr Smith was allowed to proceed with his trial—which we know this Government has denied him through this bill, or intends to deny him that right—then the finding that the Supreme Court, or the High Court, in fact, because his case would be referred back down, would need to find would be that there is an existing common law right. The High Court cannot simply be directed by the Supreme Court to consider a claim and then make a finding, either for Mr Smith or against Mr Smith, with nothing there. The right that the Minister is extinguishing is the common law right that the High Court may find currently exists. In that sense, does the Minister accept that there is, if potentially—because we can’t say for certain because he’s intervened against the advice of the Ministry of Justice in the middle of court proceedings—an existing common law right to bring a claim of emissions-related tort?

I think those are really important initial questions to clarify based on the Minister’s comments and also as they relate to the clear retrospectivity in section 271(3). I do have some further questions on that, but I’ll leave the Minister to explain.

Committee of the whole House

Of course, they’re not preliminary questions; they’re questions I’ve been asked already, and I’ve answered several times already. In terms of—

Camilla Belich: Well, you said something that was wrong, so clarify yourself.

Hon PAUL GOLDSMITH: In terms of the question of Mr Webb, in terms of entitlement to compensation, I refer him to clause 54 of the Schedule, which says there is no entitlement to compensation.

In terms of the question in terms of whether I or the Government did not—well, I think I’ve heard the word “ignored” the ministry’s advice, and I’ve heard “not listened” to the ministry’s advice: the Government, of course, did neither of those two things. We did hear the advice. We didn’t ignore it; we didn’t agree with it—that was the difference. Our view is that New Zealand’s regulatory approach to greenhouse gas emissions and climate change harm should be managed by Parliament and the executive. That is our view. Now, the officials may not agree with it, by they are not accountable to the people to the same degree that we are.

In terms of retrospectivity—again, I’ve outlined this, and I’m repeating myself. The bill contains a prospective statutory bar on tort liability. This is not retrospective because there is no existing common law climate change tort, and no one has acted on the basis of there being a climate change tort. What it does do is the transitional provisions will have the effect of removing Mr Smith’s expectations of continuing this proceeding. To the extent that this expectation could be seen as a right, it’s a limited right to go to court to argue for the development, in the common law, that does not yet exist.

Committee of the whole House

Thank you, Mr Chair. Just a couple of questions to the Minister. I want to first pick up on what the Minister has said, and this reflects one of the questions I asked before, which is: if it is up to the executive of Government to be responsible for the people of Aotearoa New Zealand, does that mean that we’re going to be seeing more cases being brought against the executive and the Government as a result of this legislation, and what are some of the forecast costs for that?

I hear the Minister’s response to my earlier question, but what I was specifically asking for is around our trade agreement obligations—not our international obligations; not in terms of Aotearoa New Zealand’s role within the global climate justice and crisis space. What I’m specifically asking for is would this violate certain clauses in our existing New Zealand - United Kingdom Free Trade Agreement (FTA) and New Zealand - European Union Free Trade Agreement. Now, the NZ - EU FTA has specific clauses around the fact that a party to that agreement cannot reduce their climate obligations. This could be argued as a way of reducing some of the accountability measures. What conversations, then, have there been with our EU counterpart regarding our continued alignment in terms of our free-trade agreement? That being by first question.

My second question is, as we see at the beginning of this year, as of 1 January 2026, we see CBAM—the Carbon Border Adjustment Mechanism—being in full force. We are also a part of that and, in terms of some of the conversations we had with the Ministry of Foreign Affairs and Trade, that is something that is being made aware and being worked through within our domestic exporters on how some of that carbon tax could potentially develop and evolve. What would this potentially affect, in terms of the EU’s tightening around emissions and regulations of their emissions as well?

One of the things I specifically want to draw attention to in terms of the section 27(3)(a), inserted by clause 4, is around the fact that it does not matter if any of these activities, the related activities, the emissions, and the effect occurred in or outside of New Zealand. What it doesn’t state, for example, is whether the person that this particular part applies to needs to be in or outside of New Zealand. That’s a question: does the person—i.e., the legal person, by this definition—need to be in or outside of New Zealand? Because it specifies activity, not just simply the effect.

What domestic jurisdiction do we have then internationally when it is a legal person outside of New Zealand contributing to effects outside of New Zealand—why does that even need to be in this piece of legislation in the first place, if the Minister wouldn’t mind giving an example?

My final question is, if you’re looking at page 9 of the regulatory impact statement, paragraph 25, it says that there is “no engagement with business”. What business or economic confidence are we talking about if there is no engagement? The Minister stated that there is engagement with Fonterra—I’m assuming that Fonterra is a business, yet it’s not in the regulatory impact statement. I just find that perplexing that on one hand you say that there has been business engagement, on the other hand the regulatory impact statement states there has not been any business engagement. So if the Minister wouldn’t mind just clarifying, or is lobbying not considered engagement?

Committee of the whole House

The first question was in relation to whether there would be an increase in the litigation against the Government. Of course, I can’t predict the future on that, and so time will tell. In terms of international trade obligations, I can inform the committee that the Ministry of Foreign Affairs and Trade was consulted in the development of this bill and gave us advice. The exact details of that advice are, however, legally privileged.

In terms of whether activities are covered overseas: the bill covers activities, emissions, and climate change effects both in and outside of New Zealand. It means that no one could be liable in tort in New Zealand, regardless of where the activity or emissions take place, which is obvious, given the fact that this is a global issue that we’re dealing with.

CHAIRPERSON (Teanau Tuiono): Before I take the next call, I just wanted to acknowledge that there has been new material that has come up, but there is some repetition. I wanted to acknowledge that the Minister has addressed the question around the policy intention around, for example, the preference to option two in the regulatory impact statement. So if I could ask members to focus on new material, and it is also helpful to focus on the specific clauses as well. I’ll go to Camilla Belich.

Committee of the whole House

Thank you, Mr Chair—noted. I do have some specific new questions for the Minister in relation to clause 4, inserting new section 272, which looks at the meaning of climate change effects. The parts of this that I wanted to focus on are new section 272(2), which defines the types of damage, interference, loss, obstruction, and wrong. Now, from my reading of this, this is quite a substantive and all-encompassing provision, but I wanted to ask a few specific questions to the Minister around the particular definitions of this, and also the points that he raised around noise and smell potentially being able to be included.

If we look at new section 272(2)(b), inserted by clause 4, we see that the definition of damage, harm, etc., also includes “comfort”. I just wanted to ask him, when he says that noise and smell possibly associated with climate change torts may be able to continue, did he receive specific advice that he is satisfied with that does not allow that to come under new section 272(2)(b)? Because it appears arguable that it may. So I think that it’s important to consider that.

Additionally, in new section 272(2)(f), we see that “comfort or health”—I suppose noise might impact health—is also included in this definition. So just any advice on the reasoning around those particular things—his confidence in those not being excluded.

The other question I have around this particular section is the idea and the concept of where there’s a right there is a remedy. Many of these examples put in place codified, existing public rights. For example, property rights, safety rights, the right to public exercise and enjoyment of public rights—these are existing. Not all of these listed—I’m not arguing that they’re all existing public rights, but arguably many of them are existing public rights. So the question is: when there is a climate-related—and I think this is an important point, and the objection to this could not merely be because of the emissions; it could be associated with emissions. So it could be discomfort, it could be damage, it could be things impacting on one’s enjoyment of public rights. The main objection to that would be: “My public enjoyment of my rights has been impacted.”, not “I’m concerned that this person released greenhouse gas as a climate emitter.” What right do the people who may be subject to these kinds of impacts on their private property have in the future?

Because we know, at the moment, that we are experiencing the impacts of climate change, and unless something is done dramatically, these are likely to increase in the future. So the situation that I’m sure the Minister would agree needs to be avoided is when these types of impacts by third parties due to things associated with climate change but perhaps the immediate concern is not the climate change—it’s actually the damage to the property or it’s the damage to the public enjoyment or it’s the noise or the smell or whatever it is—that their right to take action when that type of damage occurs is not inadvertently prevented by this legislation. That is because, also, I would expect that the Minister would think that some of these quite key public rights are impacted, that there should be an ability to take action, because it’s annoying when your public comfort of the public and your health and life and safety are impacted.

The other thing I just wanted to ask, while I still have this call, is, when we talk about harm, do we also include death in that?

Committee of the whole House

The bill defines emission-related climate change harm broadly in terms of the types of harm covered. It includes climate change as defined by the United Nations Framework Convention on Climate Change, in new section 272(1)(b), inserted by clause 4: “any damage, harm, interference, loss, obstruction, or wrong, in or outside New Zealand, to the extent that it … may have been, … caused … by climate change.” The list of harms is not necessarily based on the harms that are recognised harms in tort; they’re based on the tort claims from the Smith v Fonterra case and the elements of the criminal nuisance in the Crimes Act. The intention is that any harm that may be said to be caused by greenhouse gas emissions and their contribution to climate change should be excluded from tort liability.

Committee of the whole House

Thank you, Mr Chair. Just a relatively short call, I think, but it’s on, essentially, legislative quality, because this House passed, of course, the Regulatory Standards Act late last year—an Act that is now fully in force. It sets out in the Act, principles of good lawmaking. One of those principles that has been touched on is that a law should not affect the rights and interests or liberties of a person retrospectively. I think this committee accepts that this is retrospective legislation. But then further down in section 9 of that Act, it talks about principles of good lawmaking. I would be very interested to hear from the Minister whether he turned his mind to the principles of good lawmaking.

The second principle is the importance of carefully evaluating the issue concerned. I mean, that’s essentially: “What is the problem and does this address it?” Now, I guess I’m interested in the Minister’s thinking around this, because there actually isn’t a problem. The court has not made any finding about the existence of any tort in respect of climate change. In terms of defining the problem, it’s hard to justify coming to this House, where the problem is that the courts might make a decision which makes the Climate Change Response Act less workable, because it simply hasn’t happened and you are legislating on a hypothetical. If this legislature was to intervene every time a hypothetical problem arose, we’d be very busy indeed.

Of course, the other key principle is the importance of consulting the personal representative of the person that is going to be affected by the legislation. It appears the only people that were genuinely consulted were consulted by the Prime Minister’s office in secret, and that was the litigants to this action. Now, I’m just kind of perplexed as to how the Minister can say that this has been properly consulted on after all of the policy decisions have been made. This is being done very quickly through a truncated process, and the Minister stands up and says, “Well, everyone’s had their say.” We know that, if you think there’s a problem, the next step is to frame what the possible range of solutions might be to it and then to consult on a range of possibilities. So to come to select committee and say, “OK, here’s the problem and the solution. Have you got any minor tweaks?” is not genuine consultation at all.

There’s a whole lot of other principles of good lawmaking in there that also could be scrutinised, but these are the two I’d really like to understand, and particularly that consultation principle, because it does appear that not only was there no consultation but the consultation that did exist was wildly uneven. One person got to have a secret meeting to identify the problem and design the solution, and then the rest of us have to turn up to select committee with a fait accompli.

Committee of the whole House

A select committee, of course, is not a fait accompli, and many changes are made in the course of a select committee in legislation before this House. I can assure the member that I did turn my mind to the principles of good lawmaking, and we gave that very careful consideration. I do find there’s a slight contradiction between his continual reference to it only being a hypothetical problem, but at the same time arguing that it’s a retrospective change. Which one is it? Is it hypothetical or is it retrospective?

I’ve answered the question around retrospectivity about three times now, so I’m not going to go over there again. I’ve also answered the question around consultation two or three times, and I won’t go through that again.

Committee of the whole House

Thank you, Madam Chair. Following on from my colleague Camilla Belich’s questions about the definition of harm, I want to ask the Minister about why there is not a paragraph (g) which references those taonga tuku iho that are protected by article 2 of Te Tiriti o Waitangi. I’ll read him the leading authority from Justice Chilwell—it’s a 1987 case, Huakina, which he will be familiar with—so that I can ask him the question better.

CHAIRPERSON (Maureen Pugh): Can I just interrupt the member—I’m just catching up with this debate.

ARENA WILLIAMS: I’m on new section 272(2)(f), (d), and hypothetical (g). Justice Chilwell writes, “There can be no doubt that the Treaty is part of the fabric of New Zealand society. It follows that it is part of the context in which legislation which impinges upon its principles is to be interpreted when it is proper, in accordance with the principles of statutory interpretation, to have resort to extrinsic material.” What he’s saying there is—and he gave rise to a series of cases that established—that if legislation like this, at new section 272(2), doesn’t explicitly have a reference to Te Tiriti o Waitangi, then you should read it in.

I’m asking the Minister whether he took advice on whether he could have a new paragraph (g) that excluded harm to those things which are protected in article 2 under Te Tiriti o Waitangi or whether he deliberately excluded it. Generally, the principles of legislative interpretation would say that he did deliberately exclude it—making out that harm, under a tortious claim, that related to things which are protected under Te Tiriti o Waitangi is allowed.

The reason I ask him about that is because the line of cases which followed Huakina are about developing that reference to other statutes, even though they’re not directly referenced in any given statute. Cases that relate to that are things like Māori broadcast spectrum and the Manukau Harbour cases, which established that if it wasn’t explicitly excluded, then in making out a claim—either from a public law perspective or through the law of tort or through a civil claim—you could bring in things which are protected for Māori by Te Tiriti o Waitangi, like access to the broadcast spectrum or like access to planning decisions about the Manukau Harbour.

My question is, he hasn’t excluded here a sort of conception of harm to taonga tuku iho that are protected under article 2. He’s simply gone with the limitation around tikanga Māori, which we’ll return to soon. Those two things are different under the case law that, throughout the 1980s, 1990s, and 2000s—it wasn’t available to pursue harm that was related to a tikanga Māori perception. That follows the Takamori case that did not rely on Te Tiriti o Waitangi or article 2 predictions. Before that, all of the law set out was about establishing a link to Te Tiriti o Waitangi, and he’s not excluded that.

So are those lines of case law, which were developed around, say, natural resources, access to the broadcast spectrum, the use of planning instruments, forests, and NZ Māori Council v The Attorney-General—is all of that still able to be made out under a conception of harm through tort liability if it relates to those things which are protected by the constitution? I would say that they are, but it would be useful if he could clarify that.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): I can see, since I’ve been here, that the first part of Part 1 has been thoroughly interrogated. I think it’s time we moved forward.

Committee of the whole House

Madam Chair, thank you. The first part, including new section 272?

Arena Williams: Yes.

STEVE ABEL: OK—

CHAIRPERSON (Maureen Pugh): Including new section 272? I can see that there’s been quite a lot of debate around that particular part.

STEVE ABEL: All right, I will move beyond that, but if you’ll suffer me to ask one final question, I would appreciate it, Madam Chair. It’s regarding the property section of new section 272(2)(b). I wonder if the Minister might elucidate for us whether, where there’s an effective extinguishment of the right of somebody to make a claim against harm to their property, it is a removal of a property right. Given that there has, according to the regulatory impact statement, been no engagement with business, how does he disabuse the public or the wider community of the perception that this action very specifically protects the property of the six companies engaged in the Smith v Fonterra litigation, while sacrificing the property rights of everybody else—and, indeed, where he has asserted that the purpose of the legislation is to give certainty to business, yet there is no identified evidence that the ongoing court proceedings have had any measurable impact on business confidence?

Does the Minister have some evidence available that he can present to the House that shows that there is a risk to business or property from the case proceeding? Because he has made that assertion. My question is around the extinguishment of the broader property right of the public, including Mike Smith, versus the protection of the property rights of those engaged in the Smith v Fonterra case—those six companies, corporations, or cooperatives.

Moving on to clause 273. In terms of emissions of greenhouse gases—actually what I might do is I might come back to that. I’ll leave it there and come back to 273 later.

Committee of the whole House

Just very quickly on this one, Madam Chair. Of course, there are no fruits of the litigation because the tort itself, the substantive question, hasn’t been determined. This legislation prevents a climate tort from being created in a parallel system, so no property rights exist that can be extinguished. So that question is adequately answered.

There was a question around any evidence available of risk to business and property if the case proceeds or if the case proceeds as the litigant wanted it to proceed, it would arguably create a massive amount of retrospective liability, which would overlap and disrupt with the existing legislative framework which deals with climate change, which is the emissions trading scheme (ETS). So insofar as there are property rights engaged, they are covered by the ETS, and I would point the member to the submissions made by many businesses and affected parties about the impact of such a climate tort if it were to proceed, not least of which it would contradict the existing statutory scheme that has been in place for well over 20 years now.

Committee of the whole House

Thank you, Madam Chair, and I too will move on to clause 273, but I just wanted to pick up on a point that the Minister made around the existence of this tort not currently existing and to be created by the courts. Well, as a former lawyer, I’m sure the Minister will recognise that what the courts do is not create things but recognise existing rights. It is not actually the creation of the new tort, which this bill is preventing; it’s actually the recognition of the existence of that tort. I think it’s an important distinction. That is why Dr Duncan Webb is right, in that the recognition of it is hypothetical, but the retrospectivity, if it does exist, is also correct to argue as well. So I don’t think there’s any argument about those being mutually exclusive.

In relation to clause 273, I do have some questions, and I want to start with my colleague Steve Abel, who has discussed the definitions of “greenhouse gas” and “emissions”; I want to look at the definition of “person”. We did cover earlier parts of that, in terms of companies been covered, and so I think that’s accepted and I won’t ask any more questions on it, but I do want to ask: why has the Minister decided, and why has the Government decided, to exempt themselves for liability in relation to future tort? What is the Government afraid of, in terms of its actions, that may be used to establish a tort, that currently exists, in relation to climate change admissions?

Now, at select committee, and in all of the rhetoric that we’ve heard around this bill, we heard the purpose of this bill is to provide certainty to business. It’s to provide certainty so that companies, like those who we now know approach the Prime Minister’s office with concerns around this cause of action, are protected from court cases being taken against them. And although I don’t think that is right, I accept that that is the purpose of this bill. What I don’t accept, and I don’t think has been fully explained or engaged with it all, is, as the Government of New Zealand, why have we excluded this Government and future Governments from liability in relation to climate related torts? Surely, the one legal person that should be subject to this, if we accept the arguments around business certainty and business confidence, which I personally don’t accept, surely, there still should be a place for citizens to be able to challenge their Government on the effectiveness of the emissions trading regime, on the effectiveness of the climate change bill, on the effectiveness of whether these actions are actually reducing or creating this huge list of harm that we’ve gone through already.

The public deserves the right to hold the State accountable for failures that create harm in their public property, in their private property, to their health, all of those things which are listed earlier in this same section. But the Government has decided to exclude liability for that. And I want to know the reasoning for that because we’ve heard about businesses, we haven’t heard about the Government. So I think that is a really important point that the Minister answers.

Committee of the whole House

Just on the Crown liability point, it’s a commonly understood and accepted principle that the Crown is, you know, barring a few exceptions under the Crown Proceedings Act, generally not liable under tort. So it’s a continuation of that relatively accepted and commonly held principle.

And just in terms of the very first question around this being the role of the courts or the courts don’t create law; they just recognise existing rights—well, that’s a legal philosophy argument that’s been tossed around for years and years and years. And some could make the argument that the idea that the courts just suddenly discovering what the law has always been is a little bit of a legal fiction, because, of course, once they discover what the law has always been, they can retrospectively apply that law and their liabilities that adhere to it, back as far as they would like. That’s probably more a discussion for a professorial lecture, maybe in December—

Hon Member: We have a professor here.

Hon JAMES MEAGER: —yeah, by some professors—but that’s that.

Committee of the whole House

Thank you, Madam Chair. I want to ask the Minister about the point of public liability in relation to his new definition of “tort liability” as applies to climate emissions and harm to indigenous rights. The context for this question is that Mr Smith is a kaumātua of Ngāpuhi and Ngāti Kahu, and his claim relates to not only his property at Wainui Bay but also his cultural interests there. As I told you, it relates both tikanga Māori conceptions of harm but also to harm to things that Mr Smith, personally, is guaranteed under Te Tiriti o Waitangi.

His enjoyment of those taonga tuku iho, which are passed down to him, that are being affected now as warm waters rise around the pā sites and the urupā at Wainui Bay, the fisheries of his traditional harvest are affected by that as well, and where the wāhi tapu at Wainui Bay will, and is currently, being flooded.

So my question there is that real harm exists and that has been excluded from a tikanga Māori conception of harm, so he’s not able to make out a case of tortious liability caused by climate change because, in his view, his spiritual connection with those sites is undermined, but it seems that he is allowed to make a claim because those things are guaranteed under article 2 of the Treaty—and the Minister didn’t dispute that.

So my question, then, about Crown liability is: is it only taxpayers that are on the hook for that kind of damage? Because what hasn’t been excluded here is the very long-established public nuisance and negligence claims that could be made for damage to those sites when they arise under Te Tiriti o Waitangi. Because what is being damaged here is physical and it is guaranteed to him; his rights of fisheries harvests have a value that is monetary and that is that is guaranteed not only to him, personally, but to his descendants.

Is it the case that the Crown, in this amendment, has excluded public nuisance and negligence for everything else, but that those things that are guaranteed to Mr Smith, that have a monetary value, the Crown is still on the hook for? I also want to ask whether claims that arise because of this damage can continue to be sought because, in effect, they are, because often the sort of Crown agency who would deal with things like fisheries access in a small area like Wainui Bay, is not represented by the Minister for Treaty of Waitangi Negotiations, it happens at a local level, and that these disputes are resolved not necessarily monetarily, but through negotiations. That is still an exercise of public power that arises from a Treaty relationship that the Crown owes to Māori, but it actually happens by exercise of public power at some of the most grassroots level.

So I want to ask the Minister: does Mike Smith still have a claim? He can’t go out on the beach and harvest fish anymore—that is guaranteed to him by Te Tiriti o Waitangi. Public negligence was available to him before, is it still available now?

Committee of the whole House

In terms of claims around nuisance and negligence, the member will know that there are requirements in those actions to prove causation. One of the reasons why the courts have dipped their toe into a potential climate tort is because causation would be incredibly difficult to prove because you actually have to prove harm caused by the actions. It is very difficult when you’ve got such a long way and no nexus, because you could, in theory, take that argument to the extreme, where each one of us expressing carbon in this Chamber could be on the hook for causing that harm.

That’s the problem with nuisance and negligence claims, and that’s why the courts looked at a climate tort. It’s also why we have a statutory system to deal with the effects of emissions in New Zealand, which is the emissions trading scheme, and we’ve had this for 20 years. We have a statutory scheme which has been generally agreed upon across Parliament for over 20 years, and it is the scheme and the system which we think is the best way to deal with the impacts and the effects of climate emissions and the costs that they impose on people, and how you reduce those emissions over time. We don’t think that having a court-mandated, parallel system which could be potentially open-ended and could impose retrospective liability is the right way to do it, and that’s why we are passing this law today.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): I think there is one section that hasn’t been touched yet, and so I am going to invite a little bit more debate.

Committee of the whole House

Thank you, Madam Chair, and I know exactly the section you’re talking about. It’s in the Schedule—which is part of this part, I understand—and it relates to the definition of “proceedings”. My colleague Arena Williams has just talked about Treaty breaches, and it strikes me that the definition of “proceedings” does not capture any proceedings before a commission of inquiry. Of course, it strikes me that, therefore, the only place that this claim can go perhaps, as a tort claim, is before the Waitangi Tribunal, and I just want to make sure that that, in fact, is not barred.

Now, the claim would have to be reformulated, but, as I understand it, there’s a narrow band of cases—and I suspect that this Minister knows this area of the law better than me—where binding orders can be made—

Arena Williams: Forests.

Hon Dr DUNCAN WEBB: —by the Waitangi Tribunal in respect of forests—yes, thank you. My colleague is very knowledgeable in this area of the law; I clearly am not. It strikes me that if we reframed this as a failure by Government to properly regulate by, for example, subsidising highly emitting cement producers and not following up on the free units that they have been getting since time immemorial, or at least since the conception of this legislation, then that could be brought before the tribunal.

In fact, this piece of legislation itself is another matter that could be brought before the tribunal, because it’s called the Waitangi Tribunal, but if you read the Act, as I understand it, it’s actually not a tribunal at all; it’s a permanent commission of inquiry. So I just want to make it clear that the Government’s intention and the meaning of “proceedings” there does not bar proceedings before a commission of inquiry.

Committee of the whole House

This bill is about tort liability. It’s not about other proceedings, and commissions of inquiry don’t determine tort liability.

CHAIRPERSON (Maureen Pugh): Fran, Fernando—Francisco Hernandez.

Committee of the whole House

That’s all right—thank you, Madam Chair. It’s all right. Every Speaker has done it, except, of course, my colleague Teanau Tuiono, because he’s in the same party as me, and so I could get him kicked out if he did do that!

CHAIRPERSON (Maureen Pugh): Thank you.

FRANCISCO HERNANDEZ: I couldn’t, actually, but thank you, Madam Chair.

I just wanted to take a call to respond to what the Minister in the chair has said, and to also go over—as you say, Madam Chair—the Schedule, which has had very little discussion so far. But before I move on to that, I wanted to bring up the point that the Minister in the chair has made, which was that the Government doesn’t want to see a parallel regime set up, and he said that the emissions trading scheme is the Government’s primary tool to deal with the climate change issue. I’m not sure if the Minister is aware of this, but New Zealand already had a parallel regime in the sense that agricultural emissions are not actually in the emissions trading scheme, and that was partly what Mr Smith’s lawsuit was about. There is already a parallel regime in that agricultural emissions are not covered under the emissions trading scheme, and so the claim that the system will set up a parallel regime doesn’t actually recognise the current reality of there being an existing parallel regime.

Before I turn to the Schedule, I wanted to ask a question to clarify the definition of “climate change” from the Minister, and to check my understanding on whether emissions that change and potentially harm the ozone layer are included in the climate change tort that this bill excludes, not only in the Schedule but also in the earlier parts of this legislation. It is important to get the definition right for “climate change”, because it potentially creates a loophole around the ozone layer issues.

I accept that “climate change” is defined in new section 273 in clause 4, and if we look at new section 273, it says that “ ‘climate change’ has the meaning given to it in article 1, paragraph 2, of the Convention”. If we look at article 1, paragraph 2 of the United Nations Framework Convention on Climate Change, it says that “ ‘Climate change’ means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.”

My question to the Minister is: does that include the ozone layer, because some of the emissions—which include refrigerants, some of which have a very high global warming potential harm, not just in terms of emissions, but they also potentially create ozone layer effects. Now, is the ozone layer covered under the definition of “climate change”, and will that exclude torts that relate to the harmful effects of refrigerants in terms of the ozone layer?

My second question is around this, and I’m moving on now to the Schedule. I would really like the Minister to consider one of the amendments that I’ve drafted around the new Part 7 being inserted into Schedule 1AA of the Climate Change Response Act by the Schedule for the bill. That amendment makes a reference to what the Minister in the chair referred to in his second reading speech, which was the establishment of the accident compensation scheme. We know that when the ACC scheme was established, the existing tort regime around personal injury was changed around that, and so my proposal is to potentially create a system which compensates people who have had their rights extinguished under this claim.

I propose two different ways in which it might be done. The first is by using a calculation around the previous emissions trading scheme auction, which links it to the price of the New Zealand Unit, and so the previous auction which cleared that will be the price of the compensation around the claim it is seeking. The second potential regime is around the idea of the social cost of carbon. Now, the social cost of carbon is a figure that some people calculate, but Treasury also publishes a calculation of it, and so using one of those two figures, we can establish a regime that compensates people whose rights have been extinguished under this scheme, which I hope that the Minister does consider under the Schedule. Thank you, Madam Chair.

Committee of the whole House

Taking the questions in reverse order from the member formerly known as Fran, but is Francisco Hernandez: no, we won’t be taking up that suggestion because no rights have crystallised. This bill prevents the creation of a tort of climate, and so, therefore, no rights exist.

The second was around ozone that I’m sure the officials can provide some clarity on because I don’t know the convention particularly well. But the first one was around a parallel regime already existing. Well, the emissions trading scheme (ETS) is a part of the Climate Response Act, which is the regulatory framework, and, of course, within the Climate Change Response Act and the ETS settings, Governments and parliaments are entitled to make changes to include or exclude sectors as they please.

The previous Government did that. They brought agriculture into the system, which would have decimated most of our sheep and beef sector and caused significant price increases to food and caused severe hardship for food around the country and the world, so this Government decided to change those settings and remove agriculture from the ETS; but all of that was done within the existing statutory framework, which is the appropriate place to make those decisions. The appropriate place would be through the Parliament, not through the courts through the creation of a climate tort, which is what this bill is seeking to stop.

Committee of the whole House

Thank you, Madam Chair. I appreciate the opportunity to take a call. One discrete question on clause 274, which I don’t think has been asked about, is: when clause 274 talks about the statutory bar being unaffected by other applicable legislation, what types of action—I have read through this a few times and I’m not sure what types of action this is talking about. I wondered if the Minister for Hunting and Fishing could answer that.

I also just wanted to now go to the Schedule, which is the last area in this part, and just ask the Minister, in relation to clause 52 and clause 53: these changes that are made in Part 7 to the primary piece of legislation—sorry, in clause 52, specifically—is clause 52 duplicating the actions of this amendment bill? It just seems like this has already been repeated previously in the Act.

I specifically want to talk about clause 53, because this is when we talk about Mike Smith, and also clause 54. I mean, I think it’s important the House pauses and just sees how extraordinary it is to see actual proceedings listed—current proceedings—in a clause that says, “any other proceedings commenced, and not finally determined (including any appeal or rehearing), before the commencement:”. I mean that is just—I’d be surprised of Parliamentary Counsel Office actually had many examples of similar clauses that they’d used, but that is truly an extraordinary thing to see: clause 53 of the Schedule, all of an existing litigation has been totally quashed by this Act.

That relates to my question in clause 54, which is: we heard from the Minister earlier that he was not thinking about compensation, and in clause 54, it says that no person is entitled to compensation in this Act of any kind. I just wonder, did he think—considering he’s been so specific about Mike Smith in clause 53, specifically naming the person whose rights to have his day in court heard this Government is taking away, and his specific decision that Mike Smith not be entitled to compensation despite this citizen of New Zealand, this person who is a tangata whenua of this country, bringing a claim, spending thousands of dollars to have this heard in court, and the Government not even wanting to provide him compensation for the costs and the time that he and his legal team have already incurred. That is simply extraordinary.

We did hear from another Minister acting on behalf of the Minister of Justice that a comparable example for an extinguishment in tort like this case was the Accident Compensation Corporation. However, the key thing about the Accident Compensation Corporation is that there is compensation involved in it too. I said to that previous Minister acting on the behalf of the Minister that I didn’t think that was a good example. I’m happy if the Minister wants to reflect on whether he agrees with that. Specifically, my outstanding questions are in relation to clause 274 and when that applies, and the specific reason why the Minister decided not to include Mike Smith in the compensation exclusion clause, which is clause 54, the last part of the Schedule.

Committee of the whole House

Yes, I do acknowledge this is unusual to be having particular court cases named, but it is necessary, and we didn’t give thought to using a particular name in clause 54.

CHAIRPERSON (Maureen Pugh): I am definitely looking for new material.

Committee of the whole House

Just a clarifying question, Madam Chair: the value of clause 54 in the Schedule, I’m asking the Minister of Justice whether he knows the dollar figure of the cost that was accrued by the named litigant, Mr Smith, that he has effectively lost because of the effect of clause 54, and what it cost Fonterra to get clause 54.

Committee of the whole House

The answer is no, I don’t know that figure.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 67

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

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Marama Davidson’s tabled amendment to delete clause 3 is out of order as not being in the correct form of legislation.

Francisco Hernandez’s tabled amendment to delete clause 4 is out of order as being contrary to the principles and objects of the bill.

The question is that the Hon Marama Davidson’s tabled amendment to clause 4 new section 271(1) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Chlöe Swarbrick’s tabled amendment to clause 4 to replace new section 271(1)(a) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Teanau Tuiono’s tabled amendment to clause 4 to replace new section 271(1)(a) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Scott Willis’ tabled amendment to clause 4 to replace new section 271(1)(a) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Chlöe Swarbrick’s tabled amendment to clause 4 replacing new section 271(1)(b) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Mike Davidson’s tabled amendment to clause 4 to insert new section 271(1)(c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Ricardo Menéndez March’s tabled amendment to clause 4 to insert new section 271(1)(c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Steve Abel’s tabled amendment to clause 4 to insert new section 271(1)(c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4 to replace new section 271(2) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Marama Davidson’s tabled amendment to clause 4 replacing new section 271(2) is out of order as being the same in substance as a previous amendment.

The question is that Tamatha Paul’s tabled amendment to clause 4 inserting new section 271(2A) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Mariameno Kapa-Kingi’s tabled amendment to clause 4 replacing new section 271(2) is out of order as being contrary to the principles and objects of the bill.

The question is that Francisco Hernandez’s tabled amendment to clause 4 replacing new section 271(3)(a) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Marama Davidson’s tabled amendment to clause 4 replacing new section 271(3)(c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Chlöe Swarbrick’s tabled amendment to clause 4 replacing new section 271(3)(d) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Mariameno Kapa-Kingi’s tabled amendment to clause 4 inserting new section 271A is out of order as being contrary to the principles and objects of the bill.

The question is that Celia Wade-Brown’s tabled amendment to clause 4 replacing new section 272(1)(a) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Mike Davidson’s tabled amendment to clause 4 replacing new section 272(1)(b) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 4 new section 272(2) inserting paragraph (g) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Teanau Tuiono’s tabled amendment to clause 4 to insert new section 272(3) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Francisco Hernandez’s tabled amendment to clause 4 inserting new section 272(3) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Ricardo Menéndez March’s tabled amendment to clause 4 to replace new section 273(a) is out of order as not being in the correct form of legislation.

Francisco Hernandez’s tabled amendment to clause 4 to replace new section 273(b) is out of order as not being in the correct form of legislation.

Lan Pham’s tabled amendment to clause 4 to delete new section 273(c) is out of order as not being in the correct form of legislation.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 4 inserting new section 274A be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Mike Davidson’s tabled amendment to clause 5 is out of order as being not in the correct form of legislation.

Dr Lawrence Xu-Nan’s tabled amendment to clause 5 is out of order as being not in the correct form of legislation.

A party vote was called for on the question, That Part 1 be agreed to.

Ayes 67

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

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Part 1 agreed to.

Committee of the whole House

Part 2 Consequential amendment

CHAIRPERSON (Maureen Pugh): Members, we come now to Part 2, which is the debate on clauses 6 and 7: a consequential amendment to the Resource Management Act 1991. The question is that Part 2 stand part.