Climate Change Response (Tort Liability) Amendment Bill

on behalf of the Minister of Justice: I move, That the Climate Change Response (Tort Liability) Amendment Bill be now read a second time.

Firstly, can I just start by thanking the hard-working Justice Committee for their consideration of this bill and, also, the various submitters for their contributions. The committee recommended by majority that the bill be passed without amendment. Ultimately, the Government’s view on the importance of this legislation has also remained unchanged. We consider this amendment to the Climate Change Response Act 2002 is necessary to provide businesses with certainty about their obligations and to maintain the coherence of the current regulatory system.

This bill will prevent the development of a new regime which contradicts that framework which Parliament has already enacted to respond to climate change. The statutory bar will apply to the Smith v Fonterra litigation in order to maintain regulatory coherence. I’d like to note that it will not take any existing rights away from Mr Smith, because the court has not yet determined the substantive question on whether tort liability for emissions-related climate damage may exist. The bar will not affect traditional tort liability that has already been established under common law—for example, nuisance or negligence claims.

The bar also does not change any of New Zealand’s climate targets or the approach the Government has set for meeting them under the Climate Change Response Act. It does not change the current obligations of New Zealand businesses under that Act or under the emissions trading scheme. It simply maintains the existing coherence of the regulatory system and ensures that greenhouse gas emitters have consistent obligations.

If Mr Smith’s case was successful, it could have led to a court-ordered regulatory scheme operating in parallel to the statutory scheme which applies to some businesses. The purpose of this bill is to avoid that risk of having two parallel schemes. If we await the outcome of the case, then Parliament may then have to deprive litigants of the benefit of those proceedings just to ensure regulatory coherence at that point. The Government’s view is that action now is warranted to rule out the development of any potential climate-based tort.

To summarise what speakers in the House have said and what submissions have said, the party supporting this bill emphasised that the ongoing litigation in the High Court is creating uncertainty in business confidence and in investment. Companies who provided evidence to the Justice Committee all stated that the Smith v Fonterra litigation could have significant implications for their ability to operate their core business and that the ongoing litigation represented a significant strategic risk.

Supporters of the bill agree with the Government that greenhouse gas emissions and climate change harm are best regulated by Parliament and by the executive. It is Parliament and the Government that can take a whole-of-economy approach that carefully considers environmental, economic, and social implications, rather than through piecemeal litigation in the courts.

Some people have argued that litigation should be allowed to proceed and that the Government and Parliament could then decide to act once the courts have made their decision. Well, the Government disagrees. The existing litigation began several years ago. It’s already been subject to appeals heard by the Court of Appeal in 2021 and the Supreme Court in 2024. The High Court trial is not due to hear the substantive case until mid - next year, and whatever the outcome, the appeals could drag on for years and years. The Government doesn’t consider that we can take a wait-and-see approach. This litigation is creating uncertainty, and it would continue to affect business confidence and willingness to invest. It’s also possible that other cases will be lodged, creating further uncertainty.

Now, there are some people that argue that passing legislation to create a statutory bar undermines the rule of law. While I disagree, it is the role of Parliament and this House to pass legislation that determines the rights and obligations. It has always been open to Parliament to do so, and Parliament has done this very thing in the past. It has passed a statutory bar on tort actions for claims of compensation for personal injury, creating the ACC system, where a statutory system is the regulatory system that people adhere to and there is a litigation bar for compensation of personal injury. I would doubt very strongly that those opposite who are yelling out at us across the House are going to campaign on undoing years of the ACC system.

The courts in this case have only heard procedural arguments, and the Supreme Court was very clear in making no ruling on the merits of this case. No fruits of litigation are being overturned by this bill. Moreover, one of the reasons that the Supreme Court allowed the Smith v Fonterra case to proceed was because Parliament had expressly not ruled out the development of tort law, and that is what we are doing here. We are expressly ruling out this possibility before the substantive case is considered. That is the right and proper action of a legislature to take when it decides what the proper statutory framework for dealing with climate change is in New Zealand.

The bill ensures the Climate Change Response Act, passed by Parliament and implemented by the executive, rather than the piecemeal litigation decisions of the courts, remains the key framework to regulate greenhouse gas emissions. It is Parliament and the Government that can take a whole-of-economy approach that carefully considers environmental, economic, and social implications of addressing climate change. We on this side of the House commend the bill to the House.

ASSISTANT SPEAKER (Maureen Pugh): The question is that the motion be agreed to.

Thank you, Madam Speaker. Well, this is a sad day for the rule of law in New Zealand, in the sense that Parliament is impacting the right of citizens to access the courts. That is what Parliament is doing today. We have the law as it currently stands in New Zealand. We have active litigation in front of our courts. We have the possibility of judgment either way by our courts on the law as it stands, and this House, this Government, is standing in opposition to the right of its citizens to challenge the law as it stands at the moment and receive a ruling. That is shameful—that is absolutely shameful.

I want to join the Minister for Hunting and Fishing in one thing—in thanking the Justice Committee and the people who submitted to select committee on this bill. If the Minister listened to those who submitted to the select committee, they would see that 93 percent of those who submitted were opposed to this bill, opposed to this action by the Government to take away the right of any New Zealander to take an action in tort for climate-related emissions.

Now, the Minister said this won’t affect other claims in relation to negligence, but when I read the legislation, it clearly states, “the person has no tort liability for … emissions-related climate change effects.” So any tort in relation to climate change effects will be barred by this bill. That’s not just for prospective claims in the future; this bill specifically strikes out a case in front of our courts, and that is the case of Mike Smith.

There is a story, there is a tale to tell, around how this came to be, and let me say it does not reflect well on this Government. We have seen this issue being brought to the highest office in this country, the office of the Prime Minister of New Zealand, and we have seen evidence and investigations by the Ombudsman that were, quite frankly—and I think I’ve got it here—shocked that documents were asked by that office to be provided in paper form, not to be sent electronically; to be delivered by hand. Then, those very same documents were not released under Official Information Act requests. That does not place the office of the Prime Minister in a good light in relation to the subsequent decision to agree with what those particular organisations were advocating for and rule out and, in fact, cancel the ability of Mike Smith to bring this case.

That is a shameful episode in our nation’s history. We must do better, and we must have decent and transparent policies that apply to all Government offices of Government Ministers to make sure that our Official Information Act and transparency requirements are complied with. This is an issue of democracy and it’s an issue of transparency and it’s an issue of influence, and it did not turn out well in this case and it did not paint the whole of New Zealand in a favourable light because of what transpired in that case.

Now, the legislative process by which this bill was brought to the House was also problematic. This bill was introduced under urgency; it wasn’t passed in full under urgency. That is an important distinction, because we were able to have a select committee process. However, that was a truncated select committee process, and it meant that we had to do this in a very short space of time. Submitters weren’t given the same amount of time as they might otherwise be given to respond to this particular bill. That is regretful, because this is a serious issue and it takes away serious rights that affect all New Zealanders.

A key issue that was brought up with us and in the select committee process was the issue of retrospectivity. I think it’s important to clarify, as well, the issue of parliamentary sovereignty, because I have heard members on the opposite side of the House say that Parliament is allowed to do this. Parliament, of course, is allowed to do this. We have parliamentary supremacy. Parliament can pass any law it likes, with a majority. The question is, with our constitutional conventions and with our principles that we have as a country and with our values that we have about access to justice and the right of citizens to be able to challenge the law in court, should Parliament have done this in this way? My answer to that is no, Parliament should not have done this, because this takes away a man’s right to his day in court. It takes away an iwi leader’s right to challenge what is happening to the land that he has a historical connection with in relation to climate change. It says that, even though the highest court in the land has said that he has an arguable case, he is not allowed to pursue that under our courts. I think that that is a shocking statement for this Parliament to make.

We heard the Minister say, paraphrasing that opposition to this case, “Well, maybe people say that it should have been left to the courts to determine and then Parliament could have ruled, but we decide that that’s not the way that we should have gone and the Parliament should determine this now.” Well, I say that it is a degradation of our duty towards having clear laws that our citizens can follow. It is not correct to say that there aren’t existing common law rights. The Supreme Court itself recognised that there is not a bar and there exists the right of a common law tort in relation to climate change emissions.

Now, we know emissions are damage. Torts apply to damage. Torts apply when something happens and the causation can be linked to another party. They are a part of our legal system. If you do a law degree at any New Zealand law school, you’ll spend a year studying torts. They are that fundamental to our legal system. They are not a niche claim and they are not something that should just be taken away by this House.

Now, the Minister used the example of ACC. I don’t think that is an example that helps the Minister’s case, if I’m honest. We know that the reason that we don’t have tort liability in ACC is because we have a substantive and extensive compensation regime that compensates New Zealanders for the right not to be able to take action in tort, which is an action in negligence, when they’re injured. Because we have that substantive compensation, no-fault scheme, we agree as a society not to take negligence claims when we have a personal injury. That is a bargain that is made with Parliament and the New Zealand people. It has been in place for a long time. I don’t think there’s any appetite to change that. But the reason it’s accepted is because there is compensation for that. When we look at this bill, there is no compensation for this. There is only taking away rights that exist from litigation which is currently active in court.

So, this is very serious and not a comparable example, in my view, to use. In fact, I think it perhaps proves the opposite of the Minister’s point in that the fact that we have that tort taken away in ACC and we have a compensation scheme is the only way that is justified. There is no proposal in here to compensate Mike Smith for his lack of ability to take his case forward. He has spent probably a substantial amount of time and money to bring this case forward. It’s almost unheard of for Parliament to intervene in this way and specifically list, as they have in this bill, personal litigation currently before the courts. In fact, this rule is so important to Parliament that often when an active court case comes up, we have Standing Orders that prevent us from talking about it. We have actual rules in our Standing Orders that say we shouldn’t be discussing active litigation. Well, we’re not just discussing active litigation; We are actually repealing active litigation. So it goes against not only our constitutional conventions but also our Standing Orders. It goes against certainty. It is a challenge to the separation of powers, the fact that there isn’t the understanding by the Government that they should have waited until they saw the result before pre-empting this. I think it is pre-emptive.

I’ve run out of time to go through all the information on this, but one of the submissions that resonated with me was a submission by the Law Association. It said, “Parliament proposes to determine prospectively that the common law is not to develop in this field, irrespective of future factual circumstances, scientific understanding, legal principle or judicial reasoning.” So that is a shameful decision by this Parliament. It is a terrible personal blow for a New Zealand citizen who sought to use the law in order to write a wrong that he saw in his community. It’s an abuse of process and it goes against the fundamental principle of certainty of law, and we cannot commend this bill to the House.

Thank you, Madam Speaker. I speak to the Climate Change Response (Tort Liability) Amendment Bill. I came to this Parliament to answer a question: why is it so hard for politicians to do the right thing?

Before us, again, is the bill conceived by secret transacting of a corporate’s demands to the Prime Minister’s Office, but the secret was revealed. As Eddie Izzard puts it, “Foul deeds will rise.” This Smith vs Fonterra bill has laid bare the insidious power of vested interests to suppress the better moral instincts of politicians and, indeed, the Parliament. In the simplest terms, the case for this bill is that the protection of the profits of a multibillion-dollar company, Fonterra, is more important than protection of the rights of New Zealand citizens to fight, through legal means, for a livable environment. That cuts to the nub of the question: indeed, “What a piece of work is a man, how noble in reason, how infinite in [faculty]”—but are we, as a species, in our infinite faculty, even capable of changing our ways to save ourselves from extreme climate change, a problem of our own making, let alone saving the magnificent pageant of animals and species with which we share this tiny blue marble in the oblivion of space? Can we humans, the paragon of animals, even adapt our behaviour to save our own bacon?

Climate change is our species’ “to be or not to be” question, and the Luxon Government says we are not to be. Industrial humans are going to keep on doing what we’ve always done, marching lockstep right off that climate cliff, and no one’s going to bloody stop us, least of all the free citizens of Aotearoa New Zealand. Why? Because those profits from climate pollution are too big to check or tether or reasonably regulate. Through this bill, no one shall bring a case against a private company for harms caused to themselves, their property, their whānau, their community, and even harm to their ability to live—existential harm.

The Smith case took our biggest polluters, and this bill says the biggest polluters cannot be touched and must not be challenged in any court. It leaves that power exclusively to the Government of the day, the assumption being that the Government is the best place to take action, and yet, subsequent Governments have utterly failed to take sufficient action. That is exactly why the case was taken and exactly why the Supreme Court found that there was a case to be heard, because clearly Governments lacked the fortitude to take on these powerful companies that threaten our existence.

This bill extinguishes that case and all subsequent tort cases and provides no replacement remedy—unlike in the case of ACC, when there was a replacement remedy: ACC. Tort law is centuries in the making in common law. It recognises that a neighbour must not be a nuisance to their neighbour or cause harm to them through negligence. It is like the good neighbour law.

Because climate change gases are slow acting and act on an atmospheric scale, which is that they impact the whole planet, there is little precedent for establishing if tort law can cope with the failure of a company to act sufficiently to protect the public from the impacts of climate-heating gases that it emits. Smith v Fonterrais potentially a globally significant innovation in the application of tort law, as it relates to the existential challenge of our time. We should welcome such innovations rather than cancel them, because we need every lever we have for this insurmountable crisis. It also has a tikanga-specific approach that is unique to New Zealand’s bicultural foundation. Can I just remind you of the scale of the climate threat. It is the biggest threat to food production globally this century. It is the biggest threat to human health. In the words of the United Nations chief António Guterres, it will cause an atlas of human suffering, driven by failed leadership and a suicidal war on nature. It’s a risk not only to hundreds or thousands but to hundreds of millions and billions of human lives and millions of other species in the bargain.

But none of that is as important as Fonterra’s profits, according to Luxon’s Government. Against the longstanding basic right of the individual citizen in an existential threat to the viability of life for all humanity, it is the rights of the private corporation and the company that come first, according to this bill and this Government. Herein a tale is told of how politicians make the wrong decisions, because they think the rights of the corporation matter more than the rights of the citizen, because they think the big guy is who they are here to defend, not the little guy, because they think—

ASSISTANT SPEAKER (Maureen Pugh): Mr Abel, you are running very close to the line, and I just caution you about the insinuations. I’ve let you go for quite a while. We are not discussing climate change per se; we are discussing and debating the Climate Change Response (Tort Liability) Amendment Bill, so I ask you to come back specifically to this bill and be very careful about how far you go with those accusations.

STEVE ABEL: Sure. I will immediately come back to the bill because I believe the mistake is made because politicians think the right to profit and pollute matters more than the viability of life on earth.

We’ve seen this with climate change time and again, and so we have what should be better known as the “Fonterra (Citizen Rights Extinguishment) Bill” because that is for whom it is being done and that is to whom it is being done. It is being done for Fonterra to the rest of us. It is no small hypocrisy that those parties opposite who purport to believe in property rights are today voting to nullify the rights of citizens to claim for harms caused to their property by climate change contributed to by Fonterra and Z Energy and the rest of the dirty half-dozen in Smith v Fonterra. We will hear from the other side that New Zealand is but a little contributor to climate change compared to others, so we don’t need to worry about our little bit, ignoring the fact that we are a small country and, on a per capita basis in terms of the OECD, we are the fifth-worst polluter in terms of climate change.

There is an old familiar saying attributed to Edmund Burke that it is a mistake to do nothing because you can only do a little. The Luxon Government’s logic inverts that truth and denies its fundamental premise by saying, “Even if you only do a little towards climate harm on a planetary scale, it is as if you do nothing. Therefore, carry on with impunity.” Notably, tort law, which is the subject of this bill, says, “It doesn’t matter how little you added to the swill that contaminates the river; you are liable for the sickness of the people who drank from that river.” It is exactly the wisdom of tort and common law, developed over centuries of justice and judgment to the benefit of the people, where after multiple companies pumping waste into a river destroyed the health of that river and the ability of people to drink from it and bathe in it and fish for their existence in it, the courts found that no single one of them had a right to corrupt that commons, the river. It doesn’t matter how multifarious the sources of pollution are; no single polluter is exempt from liability for the combined effect. That is the wisdom extinguished today in New Zealand regarding climate change by Government obedience to the will of the corporation. It is a dark and despicable day, a day when the rights of citizens are put second to the rights of companies—the likes of Fonterra—where the common law is overridden by corporate rule.

The law doth punish the man and woman

Who steals the goose from off the common

But lets the greater felon loose

Who steals the common from off the goose.

Today, Mike Smith has had his article 2 Treaty right squashed but also his article 3 right, entitling him to the rights of a British citizen, extinguished. Today, Mike Smith a rangatira to Māori, a commoner under common law, seeking justice for all of us, is punished through extinguishment of his right to a fair hearing in court. The true felon, Fonterra, is set free to steal the stability of the common atmosphere from all of us with impunity. We condemn this bill and appeal to the New Zealand public to swiftly extinguish this wretched Government’s right to rule over us so that we may, in a new regime, reinstate all people’s rights to justice for harms caused by corporate polluters. Thank you, Madam Speaker.

Thank you, Madam Speaker. I rise on behalf of ACT to speak on the Climate Change Response (Tort Liability) Amendment Bill. Look, back in 2002, this Parliament passed the Climate Change Response Act. That established a legal framework—a parliamentary legal framework—for how we’re going to respond to climate change. As the Minister, the Hon James Meager, outlined in his speech, we are concerned, on this side of the House, as part of the Government, that litigation in relation to climate change and actually having a particular tort around climate change could create a parallel system and business uncertainty. It actually undermines the regulatory regime that this Parliament has put in place, and so we are very happy to support this bill, which will bring some certainty and ensure that Parliament’s regime that it put in place is the appropriate way to respond to climate change. I commend this bill to the House.

I rise on behalf of New Zealand First to strongly support the Climate Change Response (Tort Liability) Amendment Bill. Climate change policy should be set by legislation and by elected representatives and not a parallel system. This measure responds to an emerging trend and threat to law-abiding businesses who have been challenged in court around their greenhouse gas emissions. Clearly no one company or one country is individually responsible for climate change; this is a global challenge. Ironically, Fonterra, who have been at the centre of this particular litigation, have a goal of reducing their emissions by 30 percent, which actually exceeds the Government’s legislative targets. Not to respond in this manner risks exposing New Zealand businesses to vexatious litigation and a chilling effect on investment, and, worse, it had the potential to drive production offshore to less efficient systems or jurisdictions. New Zealand First commends this bill to the House.

Tēnā rā koe e te Pīka, otirā tēnā rā tātau e te Whare. E tū ana ahau ki te waha i ngā kōrero mā Te Pāti Māori e kaha tohe ana, e kaha whakahē ana i tēnei pire, arā ko te Climate Change Response (Tort Liability) Amendment Bill.

[Thank you, Madam Speaker; indeed, greetings to all of us in the House. I stand to give voice to the Māori Party’s statements that strongly oppose and strongly disagree with this bill, the Climate Change Response (Tort Liability) Amendment Bill.]

Our whenua, specifically in Hauraki-Waikato, generates billions of dollars. When we look at our exports and when we look at Hauraki-Waikato, we create at least $14.4 billion worth of money generated in Aotearoa New Zealand’s economy. Our energy, our time, the workers, the kaimahi, our whenua, our pepeha go into creating and feeding not only Aotearoa but the world at a global level. We think of our meat, dairy, and exports that travel outside of the country. Waikato has a huge contribution, if not the largest throughout the country, when it comes to dairy and farming. We are 12.7 percent of the national exports for Aotearoa, but at what cost? At what cost? The majority of whānau cannot access their rivers, which are non-drinkable, that are non-swimmable, that are non-fishable, and the kai that is made from these industries. When we think of the places like the grocery stores, where you can’t even afford the $11 butter, these are the real-life instances that people are facing.

Industries profit from these resources. Now, the data from the 2025 financial year for Fonterra was $22 billion. We look at Mike Smith’s case and the industries that he outlined. Fonterra: Waikato is New Zealand’s largest dairy farming rohe for Fonterra. Genesis Energy operates as one of the largest power stations throughout the country, which fuels electricity and power throughout New Zealand, located in Huntly Rāhui-Pōkeka. When we think of New Zealand Steel, some of the industries that he has outlined rely on iron sands out in Taharoa, within the electorate of Hauraki-Waikato. When we think of BT Mining Ltd, which is a mining and quarry industry that is located in Rotowaro and also in the Hauraki area and Coromandel area, these are the mining and quarry projects that are located in Hauraki-Waikato that are often exploiting our taonga and resources.

Now, we’re not opposed to economic growth, but what we are saying is “Who actually profits and benefits from this at the end of the day?” It isn’t my people, it isn’t my pepeha, and it is us that feel the brunt of it compared to these major industries. That’s what Mike Smith’s case outlined. Basically, what he’s saying is that major climate polluters should also carry the legal responsibility for climate harm. Now, this bill brought in by Parliament seeks to remove that pathway through the courts. Mike Smith had an arguable case from the High Court outlining that this case was arguable, and 93 percent of people opposed this bill in the Justice Committee.

I would also like to touch on what my colleague Camilla Belich, from the Labour Party, said. It’s very bizarre and unique for Parliament to address court litigation. I talk about how my colleague last term was suspended for speaking on a court case, and now Parliament and the Government is actually interfering in one of the court systems, the highest court, with Mike Smith’s case. What I want to say is that this isn’t just Mike Smith’s case. I want to

Tēnā rā koe e te rangatira mō tēnei o ngā kaupapa e kawea mai nei e koe ki roto i te Whare Miere.

[Thank you, noble leader, for this particular initiative that has been brought to the Beehive by you.]

It’s the case of many communities throughout the country.

Now, I’ve just given some examples of how those industries have benefited off the backs of Hauraki-Waikato and the whenua and the energy and the labour of our rohe and how we aren’t able to swim in our pepeha because of the major pollution that has come from these major industries. We’re unable to drink from—I can outline them here—Waikato River, Waipā River, Waihou River—

ASSISTANT SPEAKER (Maureen Pugh): The member’s time has expired.

Thank you, Madam Speaker. I rise on behalf of the Green Party to speak against this bill, but I wanted to acknowledge that this bill could have been much, much worse. It could have been much, much worse, because my understanding from the Minister’s office is that originally this bill was supposed to be lumped in with the other changes to the Climate Change Response Act, which has now been separated and put in another bill. Those changes to the Climate Change Response Act include, of course, the adaptation changes and also the other changes to the Climate Change Response Act such as the ones that would reduce the statutory powers of the independent Climate Change Commission.

We’re still concerned about that second bill for the reason that I’ve already articulated—weakening the potential powers of the independent Climate Change Commission—but at least, by not bundling these pieces of legislation together, it takes what would have been and what has been, evidently, a very controversial piece of legislation—96 percent of submitters were against it. By not bundling them together, at the very least this Government hasn’t tried to conflate those two items.

Now, the core reason that this bill has been introduced was articulated by the first speaker, the Hon Paul Goldsmith, in his first reading speech. He said that emissions are—and I quote from it—“best regulated by Parliament and the executive, who take a whole-of-economy approach that carefully considers environmental, economic, and societal implications, rather than having that done on a case-by-case basis through litigation in the courts.” The first speaker from the Government side on the second reading of the bill, the Hon James Meager, said that this approach would lead to a more cohesive and coherent approach.

Let’s just actually examine how the Government’s so-called attempts to regulate and reduce emissions through the executive has been going, as they said in their speeches that they’ve been doing. How has it been going? Well, the independent Climate Change Commission put out a report recently, last week or maybe it was a couple of weeks ago now. How’s it going? They said that New Zealand is now at significant risk of failing to meet our emissions reduction budget No. 2. They assessed it on a sector-by-sector basis. Agriculture: around half has increased to moderate risk thanks to actions taken by this Government. They explicitly enumerated the actions. They include things like removing agricultural emissions pricing.

This relates to this case because the actual legislation has been put in place to prevent Mike Smith, who is currently in the court case against Fonterra about these very same agricultural emissions. The Government’s wider climate change policy cannot actually be separated from the intention of this legislation when the very intention of this legislation is to deny a man’s case in court to challenge the emissions reduction policies of this Government—they cannot be separated.

Now, I’ve talked about agriculture. We can see that in energy as well, in terms of stationary and transport energy, which is 35 to 40 percent of our emissions. We’ve also gone backwards with the liquefied natural gas export terminal, things like removing the clean car discount, things like watering down the clean car standards. These are all things that will lead to increased emissions.

The Hon James Meager articulated it. He used the analogy of ACC in his speech, but the problem is that Parliament is not proposing to establish a compensation mechanism that would make up for the rights of ordinary citizens to sue companies in return. They’re just merely taking away rights without issuing a compensatory mechanism in return, so that analogy cannot work.

We’ve also heard that this bill will increase certainty for businesses, but it will actually do the opposite. If we look at this Government’s so-called attempts to balance the environmental and economic implications, it has not really been going well. We’ve got increased emissions and a worse economy, and this bill will actually contribute to a decreased amount of investment in our economy as private citizens learn that the Government can just arbitrarily take their rights away in court. Thank you, Madam Speaker.

The second reading is a great opportunity for us to reflect on the process we undertook at the select committee. The Justice Committee did a fantastic job at scrutinising this legislation, in the sense that we made sure we heard from a variety of submitters on the bill. We got a variety of opinions. We gave them all our time and effort. We read all of their submissions. I’m really proud of the process that we facilitated on the Justice Committee, and I commend the bill to the House.

The Labour Party continues to oppose this bill and, as we have previously said, when we are elected Government we will repeal it. We will repeal it in order to restore Mr Smith’s rights. Mr Smith, if you are watching tonight, please be absolutely assured, as someone who takes climate change seriously and someone who is concerned about his iwi, his hapū, who is concerned about the citizens of his country, who is concerned about climate, that we will restore your rights.

As the chair of the Justice Committee, Tom Rutherford, said, a number of people came to speak to us. There was one person who didn’t come to speak to us, although he put a submission in, and that was Mike Smith, so I do want to read some parts of Mr Smith’s submission into the record of this House. In his introduction, he says, “I make this submission as the plaintiff in the proceedings that this bill is intended to extinguish. This is not an ordinary parliamentary process. I participate in these proceedings to ensure there is an accurate public record of what is occurring. I have little expectation that this committee will alter the course already set.” The committee did not alter the course that was already set.

This is despite the fact that, of the 600 or so submissions to the bill, fully 93 percent opposed the bill. There was an overwhelming number of submissions against this bill. They were not just submissions of the nature of “Hoorah for the bill” or “Boo for the bill”; reasoned, erudite submissions from lawyers opposed the bill. They opposed it on the grounds that this was such an affront to due process. It was an affront that this legislation by Mr Smith could be ruled out just like that. They argued quite cogently that the appropriate course of action would simply be to allow the litigation to proceed and then, if necessary, for Parliament to legislate. Those arguments were ignored by majority in the committee. On this side of the House, we thought that the legislation should be stopped.

Going on with Mr Smith’s reasoning around why this bill should be opposed, Mr Smith set out a number of judicial arguments. I don’t want to cover those, as my colleagues have already covered them, but he talked about the democratic process. Mr Smith said, “I do not regard this as a genuine consultation process. The manner in which this legislation has been developed demonstrates that meaningful public engagement has not occurred. Throughout this process, the Government has shown itself unwilling to listen to those directly affected, to the findings of climate science, to the reasoning of the courts, or to developments in international law concerning climate accountability.” He goes on to say—and this is damning—“My legal rights have been discussed with the defendants, while I have not been afforded the same opportunity to participate in those discussions. Decisions directly affecting my access to justice have proceeded without meaningful engagement with me, as the plaintiff whose case is being extinguished. It is difficult to have confidence in a legislative process where those whose legal rights are most directly affected have not been treated fairly or afforded equal consideration.” We should abandon this bill.

The arguments for the bill were, I think, thin, at best. The first argument presented by the Government was that Government should set climate policy. Indeed, Government has a role of setting climate policy and of setting legislation, and an important role, but, in our system of Government, the judiciary is part of the Government too, and they have always had a role in interpreting a law; they have always had a role in applying the law. There has always been case law that has set precedent and developed the law in that way, as well. We are stepping away from the standard practices of common law, which is equally a part of our system of Government. It is a thin argument to say that Government alone should set climate policy and determine how it should be implemented.

The second argument was that Government was the entity that was best placed to determine climate policy, but, frankly, this Government is failing on climate policy; this Government is not doing the mahi. In the independent Climate Change Commission’s monitoring report presented to this House a few weeks ago, the independent Climate Change Commission found that, under this Government, because of the risks that this Government is taking because of the policies it is implementing or, in actual fact, winding back, we are now at significant risk of not meeting our climate targets. If we are to rely on Government to implement effective climate policy, perhaps that Government could do it, but they are not doing it. It’s little wonder, then, that citizens need to resort to the courts to ensure that perhaps some decent climate policy is put in place.

The Climate Change Commission goes on to say that, actually, putting good climate policy in place would mean that this sort of litigation is not needed; putting good climate policy in place saves people money. EVs—electric vehicles—are cheaper in the long run than internal combustion engine vehicles. Solar panels make energy cheaper for people. The use of alternative modes of transport makes transport costs cheaper for people. Putting good climate policy in place is a good cost of living policy too. We would come out ahead, but instead, under this Government, we are going back.

The third argument that this Government put up in favour of this bill was that, if Mr Smith’s litigation continued, that would create uncertainty for business. Businesses operate with uncertainty all the time. That’s what they do. In fact, the submitters who came before us suggested that it wouldn’t create any more uncertainty than already existed. If we think about the sort of uncertainty that is being created for business, the uncertainty that is created by climate change is considerable. The Awakino Gorge has been closed eight times this year because of slips, because of damage to the road—slips and damage that have been caused by climate-related storms, by the great amount of moisture in the storms that we get these days that soaks the land and makes that land liable to slipping. How about the uncertainty for those businesses that are affected by the closure of the Awakino Gorge? Climate change itself is creating uncertainty. Across in Europe, fires are raging, and countries are facing extraordinary drought conditions, so the food supply is under threat. That’s the kind of uncertainty created by climate change, and businesses face it all the time.

We had an extraordinary submission made by Fonterra, who said that, if Mr Smith’s litigation succeeded, they would have to cease all their operations immediately. It was an extreme scenario. Another submitter came and said, “Actually, that’s kind of ridiculous. Typically when a court case goes through, there’s a period of adjustment; there’s time when people get to manage their affairs. There would be actions taken, and, in fact, Fonterra could have perhaps talked to Parliament about a reasonable way through.” It doesn’t help having extreme cases presented to try to make a case for this type of legislation.

In terms of the people who submitted against this bill, it was Lawyers for Climate Action, it was the New Zealand Women’s Law Journal, it was the Aotearoa New Zealand Climate & Health Council, it was the New Zealand Law Association—it was a whole heap of people with stunning credentials. Those in favour of it: Fonterra, Genesis, and Z. That says it all.

Thank you, Madam Speaker. All we are saying is that the field of greenhouse gas emissions is such a complex and profound area that the framework to govern liability should be done by Parliament, not tort claims. I commend this bill to the House.

ASSISTANT SPEAKER (Maureen Pugh): This is a split call. I call Dan Rosewarne.

Thank you, Madam Speaker. Now, Labour will not be supporting the Climate Change Response (Tort Liability) Amendment Bill at this second reading. This bill does something quite significant: it shuts the door on a case that is already before the courts, and it shuts the door on any future tort claims relating to climate change emissions. The Government says that this is about certainty, but Parliament should be very careful before it steps into an active court case and changes the rules while the game is still being played.

What is striking about this bill is that the Government’s own officials repeatedly questioned whether it was needed at all. The regulatory impact statement says there was limited evidence that the ongoing Smith v Fonterra litigation had created measurable impacts on business confidence. In fact, officials acknowledged that they had not consulted with businesses and had found no publicly available evidence showing investment was being deterred because of the case. Even more telling: the Ministry of Justice’s preferred option was not to legislate. Officials recommended waiting for the courts to do their job, allowing the case to proceed, and then considering whether any changes were necessary once the facts and legal arguments had been tested. They concluded that there was insufficient evidence to justify immediate intervention. That’s a pretty remarkable position. The Government is telling Parliament that there is an urgent problem that needs fixing right now, meanwhile its own advisers are saying, “Actually, we’re not convinced that there is a problem yet, and we think that you should wait.”

The bill also raises important constitutional issues, as traversed throughout the calls this evening. Parliament absolutely has the power to legislate—no one’s disputing that—but one of the strengths of our system is that Parliament makes the law and courts apply and develop the law. The courts have not ruled in favour of Mr Smith. The Supreme Court simply said his arguments were serious enough to be properly heard. There is a big difference between allowing a case to proceed and deciding who wins it. What this Government is doing is intervening before the substantive hearing has even occurred. The High Court trial is scheduled for 2027.

Officials noted that allowing the case to proceed would preserve access to justice and allow the courts to complete their constitutional role in developing common law. They also warned that retrospective intervention risks undermining confidence in the rule of law and the independence of the courts. That matters because, once Parliament starts shutting down court proceedings that are inconvenient, where do we draw that line? Today it’s a climate case; tomorrow it could be something else. There are also concerns around process. Officials acknowledged that there was no engagement with Māori during the policy development, despite the fact that the underlying claim involves damage to whenua and moana and raises issues of tikanga Māori. The departmental disclosure statement notes that this limited officials’ ability to fully assess Treaty implications.

The Government’s argument is that climate policy should be made through the Climate Change Response Act and emissions trading scheme. Fair enough, but reasonable people can agree that climate change requires an economy-wide solution. Those existing frameworks were one of the very reasons officials recommended waiting. They said that Parliament already has comprehensive legislation, and that the courts could determine whether any additional common law duties actually exist before lawmakers rush to change the rules.

For communities like mine in North Canterbury, climate change is not theoretical in a legal textbook. Farmers, residents, and local councils have all had to deal with the changing weather patterns, droughts, floods, and coastal pressures. People expect us to take climate change seriously. Equally, they expect decisions to be made fairly and transparently, and they don’t expect Parliament to close off legal avenues. For that reason, we don’t commend the bill to the House.

The Justice Committee has examined the Climate Change Response (Tort Liability) Amendment Bill and recommends by majority that it be passed without amendments. I commend this bill to the House.

Thank you, Madam Speaker. I actually want to take the time that I’ve got to put on the record in a little bit of detail what the Smith v Fonterra case is all about, because I think it’s important to understand what this Parliament is quashing.

Mike Smith filed his claim against Fonterra and other known emitters in 2019, so he’s been litigating for six or more years to get the decision of the Supreme Court. That decision simply said, “You can ask the question.” That’s how long he has been battling away just to have the question properly considered. That was a unanimous decision of the Supreme Court that said the claim could not be struck out as entirely without ground. It did not, of course, determine liability—only that the claims were tenable and worthy of consideration by the courts.

Mr Smith—Mike Smith—is a well-known Māori leader and climate advocate. The allegation was, essentially, that these six companies—there were six companies—had materially contributed to climate change and had led to significant effects on coastal areas, ecosystems, cultural sites, and other interests of significance to him, both as an iwi leader and Māori—so that’s a tikanga aspect—and also simply as a citizen of New Zealand.

I want to make it clear what he was actually claiming, because there were two claims in there that were not particularly novel in their legal formulation. The first was simply negligence: that these people were harming others and in a way which was not careful. They didn’t take due regard for the interests of others. To put it in the language of the law: they acted in a way which was careless and caused loss to someone in a proximate relationship in a way which was foreseeable—that’s a sort of negligence. It’s been with us for a very, very long time indeed. I won’t bore you with the case law there. That was the first claim—negligence; very simple claim.

The second claim was public nuisance: essentially, an unreasonable interference with the rights of the public to enjoy the environment. Again, it’s an even older claim than the tort of negligence, and it has existed alongside all of our legislative frameworks for ever. It predates our legislative frameworks. Pollution into a river, poor odours from a factory next door, smoke or smell, excess noise—all of these things can be public nuisances. In fact, climate emissions fit well within this framework. Now, whether the emissions are unreasonable is all part of an argument, but for that you need evidence and you need argument and you need a trial. Well, Mr Smith didn’t get that far.

His third claim was arguing a novel tort—and one of the great things about the common law, as we call it, is that it can look at new situations, new facts, and new science, and say, “That is a wrong that the law should respond to.” His claim was that the law should recognise a climate tort—that doing damage to the climate was an independent tort. That’s novel. It may well not have succeeded.

Hon Tama Potaka: Crazy!

Hon Dr DUNCAN WEBB: Someone over there yells, “Crazy”, but I’ll tell you what’s crazy: crazy is ignoring the problem. Crazy is pretending that climate change isn’t a fundamental issue, an existential issue, challenging New Zealand. Crazy is turning your face away from this very problem. And crazy is telling this litigant that he can’t bring his claim to court. The central issue in that case was whether those claims should be considered. The only question was: is this arguable?

This Government is so frightened of knowing what’s actually going on and of having careful and considered decisions on this thing that they stopped it in its tracks.

Hon Damien O'Connor: They’re gutless.

Hon Dr DUNCAN WEBB: Absolutely gutless. The fact of the matter is that it’s nearly unprecedented—certainly, in recent times—to see a piece of litigation halfway through and not even getting to trial yet. If this had gone to trial and Mr Smith had won, and the Government had said, “You’ve got a point. We need to reframe how we’re addressing these things. The court has told us that these are wrongs that are being committed—

Grant McCallum: Who says the court knows best?

Hon Dr DUNCAN WEBB: —so we need to reframe our climate change response to take account of those wrongs.”, that would be one thing, but they haven’t. They have listened to Fonterra and Z Energy in secret briefings, they have done the bidding of lobbyists, and they have quashed this litigation because their rich lobbyist mates asked them to. That is shameful.

Grant McCallum: You’re shameful.

Hon Dr DUNCAN WEBB: You can “Ooh” and “Ah” over there as if it isn’t true, but the record shows that the Prime Minister’s Office received secret briefings on this very matter and that the very content of this bill was in those briefings. It is shameful. A Government which had a backbone would actually drop this piece of legislation because of the shameful way it came before the House, and then it rushes it through the House because it wants to do it in the dark of night and in the shadows, because that’s how this Government operates. It’s absolutely shameful.

For Mike Smith to have spent all of that time going through the courts—because, you know what, in this country there’s a thing called the rule of law, and what it says is “Everyone is subject to the law.” But the really important thing about the rule of law is that the Government is subject to the law, that the Government isn’t operated by caprice or by whim; it’s operated under the law, not above the law. That’s not how that Government likes to think it operates. It likes to think it is the law. Time and again, it says, “We are sovereign.”, and that kind of absolutism is a road to a terrible place, because, you know what, if we get there, what we have is an autocracy of a few who are voted in, not a careful democracy where things are negotiated between branches of government.

The former Solicitor-General herself recently spoke out on this very topic. Over there, there’s a lot of chit chat about how the courts are, perhaps, getting above themselves. The courts have always—

Grant McCallum: Been above themselves.

Hon Dr DUNCAN WEBB: I hear it. He said it himself: “They’re above themselves”. The courts have always commented on Government and whether the Government is acting within its powers. That is its job. They have always talked about wrongs, torts, and evolving wrongs. That is their job. The Government’s job is to take into account what the courts say and cut their cloth accordingly. It’s true that Parliament can legislate—and legislate over court decisions—but what it shouldn’t be doing is (a) preventing the court from making a decision and (b) ignoring absolutely what the court has got to say. That leads us to a place where we don’t have a three-part constitution, where we don’t have a separation of powers, where all we have is a Sovereign, in the name of the Government, and subjects in the judiciary and Parliament, and that is a terrible place to be. That’s where this kind of legislation would be taking us.

Mike Smith had a legitimate case, and he was exercising his rights as a citizen to ask that case in our judicial system, and that Government has stripped those rights from him. Not because it was the right thing to do, not because it was just, not because his case was without merit, but because they didn’t like it in a doctrinaire and ideological way. It’s a shameful thing to do, and it’s been done in the dark of night.

Thank you, Mr Speaker. I rise in support of the Climate Change Response (Tort Liability) Amendment Bill in the second reading. This is very clearly about clarifying climate change laws. We already have the Climate Change Response Act 2002 and the emissions trading scheme. Essentially, we’re making sure that we have a central regulatory system to deliver consistent obligations for greenhouse gas emitters. Therefore, I commend the bill to the House.

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

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.

Bill read a second time.

Te Here ā Nuku (Nelson Tenths) Bill

Legislative Statement