Peter Watts KC shares his response to the submission of The Law Association of New Zealand's submission on the Climate Change Response (Tort Liability) Amendment Bill, arguing that the Bill does not take away an established common law claim, and that the remedies sought are directed at future, rather than past, action. He also argues that given that there was little to stop the plaintiff adding many other parties to his proceeding, it was not inappropriate for Parliament to terminate Mr Smith’s particular claim.
In Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 the Supreme Court declined to strike out a proceeding in which the plaintiff was seeking injunctions against seven businesses, including Fonterra, that would require the seven to hit a peak of their greenhouse emissions by 2025, followed by a series of fixed reductions for 2030 and 2040, leading to net zero by 2050.
The Court of Appeal had struck out the claims. The government proposes in the Climate Change Response (Tort Liability) Amendment Bill 2026 to stop both the claims in Smith v Fonterra being proceeded with, and other such claims being brought.
In what is not an immoderate submission to the Justice Select Committee on the Bill, The Law Association said the following:
In particular, the Bill would retrospectively alter the legal consequences of past conduct, extinguish accrued causes of action, apply those changes to proceedings already before the courts, expressly identify existing litigation to which the statutory bar will apply, preclude both existing and future common law development in this field, remove an extensive range of judicial remedies, and exclude any entitlement to compensation arising from those legislative changes.
Nearly all the charges made against the Bill in that statement need, in my respectful view, heavy qualification, if they have much veracity at all. What is omitted from the statement is, on the other hand, significant. Most importantly, the submission fails to address the point that public nuisance, at least on an orthodox view, is at heart a public law cause of action. And it fails to notice that on the logic of Smith’s claim in Smith v Fonterra, there was nothing to stop him, before trial, joining every business in the country that has net-positive carbon or methane emissions. This was not ordinary private law litigation, although one would scarcely appreciate that from the Supreme Court’s judgment. Although the points to be made overlap, I will take the charges, in pairs, in the order in which they are made.
Altering Legal Consequences of Past Conduct and Extinguishing Accrued Causes of Action
As to the Bill retrospectively altering the legal consequences of past conduct and extinguishing accrued causes of action, the short point is, of course, that it is very far from clear that there are at common law any legal consequences or accrued causes of action for climate-change emissions of the sort that are the subject of the statement of claim in Smith v Fonterra. There is no established common law on the point, either in case law or principle.
The plaintiff in Smith cited a great number of cases, many coming from the 19th century or earlier and none the worse for that, but none govern the issues before the Court. No party appears to have brought to the Supreme Court’s attention the following dictum of Page Wood V-C in Att-Gen v Luton Local Board of Health (1853) 2 Jurist (NS) 180 at 181. This judge over a long period was a prime mover of tortious solutions for water pollution:
[T]he stream here is not as in the case of the Thames, or any public river as it may be termed, which is always given up to be maltreated; the stream here is really quite the private property of the plaintiff, and the mill standing on it also belongs to him.
If that is true of the Thames, how much more must it be so with the global atmosphere. This is not to say that the Thames should not be cleaned up, or climate-warming left untackled. But we might as well not bother with the separation of powers if the courts see it as part of their function to prohibit the externalities of all businesses.
It cannot be said with confidence, therefore, that the Bill has altered the law. Rather, it has removed the prospect of finding out what the common law might say.
Access to the courts is itself an important right, but it is far from an unalloyed good. The right needs to be qualified, since the right can be, and frequently is, used to bring suits that are not meritorious in law or fact or both. Litigation is usually stressful for all parties, but involuntarily being made a party to litigation is also frequently financially ruinous and sometimes soul-destroying.
This is why we have strike-out procedures. Plainly, the likely finality of a strike-out order needs to be kept firmly in mind by the relevant judge. But the jurisdiction is there to be exercised. At least since Couch v Att-Gen [2008] NZSC 45, [2008] 3 NZLR 725 the Supreme Court has, in my respectful view, set the bar too high for striking out claims, and arguably has undermined the intention of Parliament in the process.
It should be noted too that in relation to the proceedings in Smith v Fonterra itself, the plaintiff was not seeking a remedy for past conduct. One infers that this was for the very good reason that Smith would not be able to show at trial that the past conduct of the select defendants that he had chosen to sue had caused, at least in a significant way, the damage that he alleged he was suffering from (as to the plaintiff’s apparent near concession on this point, see in the Court of Appeal: [2021] NZCA 552, [2022] 2 NZLR 284 at [25]).
No question of joint and several liability arose since, if a tort were committed at all, every party had committed a separate wrong. Hence, it was future conduct, admittedly ongoing, that the litigation was attempting to control and ultimately prevent.
Parliament from time to time removes, without compensation, what would otherwise be rights to object to future conduct. Notably, the Accident Compensation legislation in the 1970s abrogated damages actions for personal injury. Admittedly, that legislation did not remove particular claims existing at the date of enactment, and it did provide an alternative compensation system. However, on the other side of the ledger, accident litigation is concerned with past action, and the causes of action for dealing with it were very well established (the action for trespass to the person was the founding tort of the common law, and the action on the case developed very early on).
Moreover, as with the ACC legislation, Parliament has commenced to provide schemes for addressing climate-change emissions.
Applying the Bill to Proceedings Before the Courts, Including a Particular Proceeding That Was Under Way
As to applying the Bill to, indeed targeting the Bill at, proceedings presently before the courts, the proceedings in Smith v Fonterra were not ordinary private law ones. This is true both of the type of proceedings being brought and of the particular claims being made.
As to the type of proceeding, what is omitted from The Law Association’s arguments is that the claim in public nuisance, which I think would widely be accepted as the strongest of the pleaded causes of action, is not an ordinary private law tort.
Although the point is academically contested,[1] the orthodox analysis is that the cause of action in public nuisance is at heart one that vindicates “public rights”. It has been argued that the concept of public rights means the rights of all citizens not the rights of the state.[2] It does not seem to me to be “unsustainable”, however, for the law to have concluded that the cause of action prima facie lies with the state.
It is not mere accident that the action grew out of the criminal law. On any basis, the public nature of the action distinguishes the action from ordinary torts, making it much less unobjectionable for Parliament, as the citizens’ representative body, to legislate away the application of the tort to climate-change emissions.
Private citizens can have access to the tort of public nuisance in two ways. One way is by establishing “special damage”. That is the route taken by Smith. The other way is by commencing a relator action in the name of the Attorney-General as counsel for the state. Under the latter route at least, the state retains the right to control the proceedings.
The concept of special damage is a vague term of art. It is designed to allow a citizen to sue when warranted. It will be necessary, but not sufficient, for the citizen to show that he or she has suffered direct damage or loss from the action of others in the public domain. The concept rests, in my submission, on an exception rather than a general right.
Yet, the Supreme Court in Smith left open whether it should even be necessary for a plaintiff to show special damage. Indeed, one infers from the views expressed by the court that, if the special-damage rule were removed, relator actions would also become optional. The court alluded (at [149]) to the two reasons usually given to support the special-damage rule: “a proposition that relief for common injury should be in the hands of the Crown, and a concern about potential multiplicity of actions.” The court then threw doubt on both. Of the former, the court said it resulted from 18th-and 19th-century connections made between the tort and the crime of public nuisance, which no longer apply in New Zealand. The latter problem, the court indicated, has been superseded by modern procedural developments, specifically class actions and case management.
The court’s answer to the first rationale is, with respect, most unsatisfactory. There is no reason to think that New Zealand’s abolition in the 19th century of common law crimes freed the action for public nuisance from being a public, I would say “state”, claim. Common law crimes were simply replaced with statutory ones, and to this day there is a crime of public nuisance (see s 145 of the Crimes Act 1961), along with other offences that respond to environmental damage.
On the contrary, there remains every reason, as much in New Zealand as England and Wales, to support the view that the cause of action in public nuisance prima facie lies with the state. The claims in Smith itself demonstrate the desirability of that.
As to what made the particular proceedings in Smith different to most private law proceedings, it is that the proceedings were not just asserting a public right. They were in substance asserting a public wrong. In ordinary private law proceedings, the claim will have a finite number of actual or potential defendants. The court’s decision in such proceedings may, as a precedent, have implications for many other persons, and indeed for every citizen in the country, unless Parliament intervenes. But the decision will be only a precedent. Where Parliament intervenes in such cases, little harm will usually result from the successful, windfall, plaintiff, being allowed by Parliament to keep the fruits of their particular proceeding.
In contrast in Smith, while Smith chose to sue only seven parties, the logic of his claim was that prima facie every carbon and methane emitter in the country owed him a duty in tort to desist where their emissions were not net zero. If Parliament were to preserve Smith’s rights in such circumstances, would he be precluded from joining anyone other than the seven parties he had so far served, noting that the substantive proceeding had not yet got under way?
If not so precluded, treating Smith’s claim as sacred would hamstring Parliament. If, on the other hand, his suit were confined to the existing defendants, would it be fair for those seven to be left the only ones liable, presumably without rights to contribution from other emitters? With respect to The Law Association, I think these questions answer themselves.
The Supreme Court thought that ordinary citizens would, despite any success Smith might have, be immune from liability. It said the following (at [168]): “Only some emitters will cross [the threshold for liability]. Patently, ordinary domestic activities involving individuals travelling, warming their houses and cooking food, will not do so and may be de minimis, albeit collective actions of individuals are causative of climate change.”
But on the logic of the litigation, why should such activity be de minimis? If businesses are required at the behest of a court to be carbon neutral, why not all of us? How otherwise would the common law, the rules of which normally apply equally to all (large and small, rich and poor, corporations and individuals) choose which persons are to be subject to this tort? Is that private law in action? And if it is OK for citizens to drive their carbon-fuelled cars, and for tractors and trucks to be used to produce and carry food to the supermarkets, what made potentially tortious the activity of those among Smith’s defendants whose businesses were not emitting, but supplying fuel to the general public?
It is a fair, albeit not universal, sign of something going wrong if a court supports a common law rule that does not apply to all and is therefore not common. Even if the climate-change tort were to be confined to businesses, would we want it applying to all businesses? If not, would we want it to be judges who decide, for instance, whether New Zealand Steel can use coal to make steel? The problems are likely to become more acute still if carbon and methane off-setting becomes more difficult to achieve.
Is it then to be the courts who ban dairy products and ruminant meat from our diets unless we have our own animals?
Precluding the Development of the Common Law, and Removing a Range of Legal Remedies
In relation to the Bill’s precluding the development of the common law, The Law Association says the following:
The constitutional significance of this drafting should not, in the Committee’s respectful view, be understated. Parliament is not merely determining the present content of the common law. Rather, 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.
The short answer to this handwringing is that the legislation can at any stage be repealed. In contrast, the common law is supposed to provide the stable bedrock of private law. A wrong turning such as was threatened in this litigation can do permanent damage, at least in terms of generating expectations. This is one of the reasons why the common law needs to be modest in its aims.
The Smith claims were anything but modest. The injunctions being sought were ultimately asking the courts to exercise powers to shut down (or sequestrate the assets of) such businesses as the courts in their discretion choose where those businesses fail to meet the courts’ orders to stop (net positive) emissions by scheduled dates.
It does not surprise me that enough elected politicians have regarded this, or the prospect of it, as judicial hubris and decided to deal to it.
No Compensation for Claimants
The last of The Law Association’s complaints is that the Bill removes entitlements of plaintiffs to obtain compensation. Insofar as this is a complaint about loss of the right to damages, this flows naturally from the loss of the cause of action. As mentioned already, it is also in the nature of climate-change litigation that it will be very difficult to attribute loss to particular defendants.
Insofar as the complaint is that causes of action have been taken away without compensation for the removal, this is a political question. My own view, for what it is worth, is that we should as a society be very wary about compensating individuals for law changes effected by Parliament. There is certainly a place for such compensation in some circumstances. But, for instance, one should be chary of claims that all types of interference with property rights, including planning law restrictions, need to be compensated for, especially when taxes to pay for the compensation are resisted by the very parties who assert the right to compensation.
It is clear that litigation of the sort in Smith v Fonterra is not an appropriate case for paying compensation for loss of a cause of action. Given the number of parties who might be able to establish existing special damage, and the almost limitless number of potential defendants, taxpayers might end up paying themselves. I am more relaxed about whether a solatium should be given where warranted to cover wasted expenditure in any particular litigation that is brought to a halt by Parliament.
Concluding Comments
In the paragraph following the one that opens this article, The Law Association says: “Each of those legislative choices is constitutionally open to Parliament. None is beyond Parliament’s legislative competence.”
Yet the submission contains 143 instances of the word “constitutional”, including many references to the “constitutional significance” of the Bill. For the reasons given in this piece, I do not think Parliament is committing constitutional sins, whether singly or cumulatively. Certainly, no constitutional crisis is invoked.
This is not to deny that there is a climate crisis and that vigorous legal as well as scientific solutions are needed. But the common law is, and lawyers and judges are, wholly unsuited for mandating solutions for problems as dispersed and polycentric as those resulting from carbon and methane emissions.
Moreover, insofar as climate-change litigation seeks to use the courts as an in terrorem beast to chase the timorous legislature along, I believe judges who buy into this strategy will do more harm to the legal system than good.
It is a short step from chastising the government to being the government. The particularly strong panel of the Court of Appeal in Smith v Fonterra (French, Cooper and Goddard JJ), with particular expertise in tort law and environmental law, realised this and in my humble opinion did a much better job of things than the Supreme Court.
This opinion piece was originally published by LawNews on 10 August 2026.
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