Climate Change Response (Tort Liability) Amendment Bill

Committee of the whole House

Thank you, Madam Chair. We do have some suggestions around title and commencement. I think sometimes there is a tendency to gloss over the importance of these sections. But I do think it is important for clarity to have a title which truly represents the nature of the bill. So I’ve got some suggestions of possible amendments that the Minister of Justice may want to take up that I think would increase the clarity of what the bill actually does. I think sometimes amendments are struck out because they are not a serious attempt to change the bill, and what I want to suggest today is not something that I think would fall within those categories.

So a few suggestions I have in relation to clause 1 is that the title be changed to the “Climate Change Response (Prevention of Tort Liability) Amendment Act”. The reason I suggest that is because if you were to read the title of that bill, I think the natural response would be to think that there would be tort liability for climate change, and that is in fact the opposite of what is happening in this case. So I think that just simply adding “Prevention of”—those two words inside the brackets—would mean that anyone who is going through the statute book would clearly see the purpose of the Act, and I think it is, in that sense, not a title that is suggested in jest or to make fun of this particular bill, but in fact a reflection of what the bill actually does. So that's my first suggestion that the Minister may want to take into account. I'm happy to provide a written amendment along those lines as well.

The second suggestion that I would have in relation to title is really to acknowledge the fact that not only is this a prevention of tort liability but it is the extinguishment of a series of pieces of litigation that are currently ongoing. As we've discussed in this committee stage, it is novel and unusual to have existing legislation be extinguished. So that’s not in dispute, but what is, is the fact that that’s not represented in the title. So a further suggestion for much greater clarity, I think, would be to change the title to—and I’m going to incorporate my previous suggestion because I think that's still relevant. The bill, which will be the Act once it's passed, is the “Climate Change Response (Prevention of Tort Liability and Extinguishment of Smith v Fonterra Co-operative Group Ltd Litigation)”. So that would be my suggestion as to a more accurate description of the bill.

Now, I have had suggestions that—and I believe there are some tabled amendments around the title which might talk specifically about Mike Smith. I think that amending the title in that way, with two options, one more expansive and one more limited, are serious options that could be considered that would truly reflect the nature of this bill.

Now, I do have a further point on titles, and I just want to indicate to the chair that I would like to make a contribution on the commencement. I haven’t got to that yet, but my final point on the title is that this bill amends the Climate Change Response Act. I’ve had a look at the Climate Change Response Act. I had a look at the purpose of it, and I don’t think my question in relation to purpose was addressed previously when I asked the Minister about it, but I do think that it is worth the Minister addressing the committee in relation to the purpose in section 3 of this bill, of the Climate Change Response Act, and whether that, in fact, the entire Act, which is encompassed by its title, is consistent with the purposes of that particular bill.

That question, I think, can be related to the title. It’s left outstanding; I would appreciate an answer from the Minister. And just to note, that there are comments I’d like to make on the commencement.

Committee of the whole House

Thank you, Madam Chair. I would like to make some suggestions on the title as well.

One thing that we discovered through our interrogation of the Minister during the Committee of the whole House is the clear elucidation, as it happened by James Meager when he was filling the chair, of the fact that the emissions trading scheme, which is the current regime purported to be dealing with our climate change challenges, exempts agricultural emissions. Which is to say, the assertion of the bill that the Government doesn’t want parallel regimes is nonsensical insofar as there is no regime for methane and nitrous oxide, biogenic methane, and nitrous oxide. So already they have no liability upon them.

Now, another thing we discovered in the course of the passage of this legislation is the direct efforts made by one of those parties, who are liable toSmith v Fonterra—Fonterra in this instance, but also Z Energy. Direct efforts by them to ask the Government to intervene to stop the procession of this court case. So it’s very clear to us, because it’s the extinguishment of the right of Mike Smith, that the beneficiary of that extinguishment is Fonterra et al.—Fonterra and the other five of New Zealand’s biggest polluters, our dirtiest companies—who are in the Smith v Fonterra case.

I think it would be a reasonable title that clarifies what the actual effect of this legislation is, to change the title of the bill to the “Climate Change Response (Fonterra Citizen Rights Extinguishment) Bill” because that clarifies for whom the Act has been passed—Fonterra—and to whom the Act is having a negative effect, i.e., not just Mike Smith, but all citizens of New Zealand. Because, in fact, the Act extinguishes the option of tort pathways to us addressing the harm caused by climate change, not just Mike Smith’s pathway, but the pathway of every New Zealand citizen.

A final note on that. I think it is interesting that this Government has recently stated that it wants businesses to behave more like adults, but here is an exquisite instance of the biggest, most powerful and dirtiest businesses in our country coming cap in hand to the Government and pleading with the Government that they intervene in a court case—

CHAIRPERSON (Maureen Pugh): Come back to the title and commencement please, Mr Abel.

STEVE ABEL: —to protect them. This is exactly about the title.

CHAIRPERSON (Maureen Pugh): Get to it.

STEVE ABEL: They come and they intervene to protect them from that case because they are afraid that they cannot beat Mr Smith in court fair and square. That’s why I proposed that it be the “Climate Change Response (Fonterra Citizen Rights Extinguishment) Bill”, because it is Fonterra who are the beneficiaries, and they are the ones pleading with the Government to please protect us from Mr Mike Smith because we don’t reckon we can win this court case.

That is a very problematic intervention in the constitutional principle of the separation of powers, but it is an intervention with very specific beneficiaries—Fonterra and the other five companies—and very specific losers, shall we say—i.e., all New Zealand citizens.

So I seek the Minister’s response to my proposal, which would be the “Climate Change Response (Fonterra Citizen Rights Extinguishment) Act 2026”. Thank you.

CHAIRPERSON (Maureen Pugh): I have to report progress. I’m sorry, we just couldn’t quite fit them all in.

Progress to be reported.

House resumed.

Te Here ā Nuku (Nelson Tenths) Bill

Climate Change Response (Tort Liability) Amendment Bill

Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Report of Committee of the whole House

CHAIRPERSON (Maureen Pugh): Mr Speaker, the committee has considered Te Here ā Nuku (Nelson Tenths) Bill and reports it with amendment. The committee has also considered the Climate Change Response (Tort Liability) Amendment Bill and reports that it has made progress on the bill. The committee has also considered the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill and reports that it has made no progress on the bill. Mr Speaker, I move, That the report be adopted.

Motion agreed to.

Report adopted.

ASSISTANT SPEAKER (Greg O'Connor): The House stands adjourned until 2 p.m. today. Thank you.

The House adjourned at 12.57 p.m.