Smith v Attorney General: Rights-based climate litigation in NZ down but not out

The Court of Appeal has released its judgment in Smith v Attorney-General [2024] NZCA 692.

In this case analysis, we consider the Court’s judgment - and provide some early comments on what it could mean moving forward.

Ultimately, while the Court struck-out the claim, it has left the door open for future rights-based climate cases in Aotearoa New Zealand. The key issue was not whether the New Zealand Bill of Rights Act could extend to cover climate change issues, but rather the broad and ambitious way Mr Smith had pleaded the case. 

The Court was also clear that “rapid and deep reductions in greenhouse gas emissions are necessary, with the window of opportunity to ensure a liveable and sustainable future for all rapidly closing” (at [13]) - and that as the window for action closes, “the reasonableness of decisions made will require closer scrutiny”.

What this case was about 

The appellant, Mr Smith, is an environmental advocate and elder of Ngāpuhi and Ngāti Kahu. He is the plaintiff in a claim against New Zealand’s seven largest emitting companies for their contribution to the adverse effects of climate change, which the Supreme Court earlier this year unanimously agreed not to strike out.

This appeal concerned Mr Smith’s separate claim against the Crown in relation to its alleged inadequate action in relation to climate change. The claim alleged breaches in three core areas: the right to life and culture under the New Zealand Bill of Rights Act 1990 (NZBORA); te Titiri o Waitangi; and a common law duty to prevent dangerous interference with the climate system. 

Mr Smith’s case was struck out by the High Court. He appealed to the Court of Appeal, who ultimately upheld the strike out on all of the grounds as pleaded. 

Framing climate change as a human rights issue: the NZ Bill of Rights Act arguments

Globally over the last decade, there has been a “rights turn” in climate change litigation. Mr Smith’s case against the Crown can be understood in this context: trying to bring rights-based-climate litigation to Aotearoa New Zealand, and test the limits and application of the NZ Bill of Rights Act. 

Importantly, the Court concluded that it is “not clearly untenable” that an inadequate response by the Crown to the risks from climate change could give rise in the future to a breach of the right to life (section 8, NZBORA) and a breach of the right to culture (section 20, NZBORA) - expressly leaving the door open for future rights-based claims. For instance, the Court said at [88]:

“Given the context of the climate emergency, which can be described as one of the greatest human rights challenges the world has ever seen, and the developing jurisprudence around the world responding to this challenge, we consider that an art 2-consistent interpretation of s 8 that a right to life encompasses a requirement to take protective measures against foreseeable threats to life is not so clearly untenable that it cannot succeed”

Mr Smith’s case was unsuccessful because of the way it was pleaded. In other words, while the Court acknowledged that ss 8 and 20 of NZBORA might impose positive obligations on the Crown, and accepted that climate change can be considered a human rights issue, the claim “as pleaded” was untenable (at [100]).

Mr Smith asked the Court to find that New Zealand has an inadequate legislative and regulatory framework for dealing with climate change, arguing in particular that the Climate Change Response Act 2002 (CCRA) was inadequate to protect Mr Smith and those he represents from threats to their right to life and right to culture. 

However, the Court noted that the CCRA is “comprehensive in its reach”, and any gaps “reflect policy choices that are for Parliament under New Zealand’s constitutional framework” - and the specific gaps pleaded by Mr Smith were “not of a kind that could constitute a failure to take positive steps” to protect the rights to life and culture under NZBORA (at [8]). 

Instead, the Court emphasised that the CCRA itself gives rise to a number of accountability mechanisms - such as consultation, judicial review, and NZBORA claims in respect of particular decisions. And, significantly, they suggested that Mr Smith “may be able to plead a tenable cause of action in the future” focused on particular decisions made under the CCRA or other legislation. 

Breaches of Te Tiriti and a te Tiriti fiduciary duty 

The Court also found that the claim that the Crown’s response to the risks from climate change breaches te Tiriti, or a fiduciary duty to Māori arising from te Tiriti, was untenable. 

The fiduciary argument was a novel one, and the Court of Appeal thought that it was inconsistent with the circumstances of climate change in which the Crown “represents and must balance many interests” (at [11]). The Court also emphasised the fact that Parliament has “established a different framework for giving effect to the principles of the Treaty”, including te Tiriti clauses in legislation and the jurisdiction conferred on the Waitangi Tribunal to make recommendations in respect of te Tiriti breaches (at [11]). On this point, it is worth highlighting that the Waitangi Tribunal is currently conducting a priority kaupapa inquiry into the Crown’s climate change policy. 

The Court of Appeal noted that the CCRA contains a comprehensive te Tiriti clause, through which the principles of te Tiriti are given effect. It followed, therefore, that the Crown’s response to climate change, principally through the CCRA, could not be said to be inconsistent with te Tiriti or to breach a fiduciary duty owed to Mr Smith and those he represents.

Novel common law claim

Finally, the Court also struck out the novel common law claim. To a large extent, this was the logical conclusion of the first two causes of action, on which the novel common law claim relied. 

However, Mr Smith also relied on the public trust doctrine, an old doctrine that can be traced back to Roman Law which provides that the State has a duty to administer commonly held natural resources for the benefit of the public. The Court found that this doctrine could also only operate to the extent that it was not displaced by legislation - and the CCRA does not leave room for it to operate. 

The Court of Appeal reiterated that judicial review of decisions made under the CCRA is an available avenue to challenge decisions under the Act that (at [186]):

“….are insufficiently ambitious (in relation to emission reduction decisions) or insufficiently protective (in relation to risk assessments and adaptation plans) so as to amount to an irrational or unreasonable exercise of the statutory power in light of the climate change consequences for the natural environment, people and communities.”

The Court of Appeal explicitly noted Lawyers for Climate Action’s judicial review against the Climate Change Commission, stating that while this failed in the High Court, it is not to say that further challenges will do so, especially “as the window for the necessary action for a stable climate closes, the reasonableness of decisions made will require closer scrutiny” (at [186]).  We are still awaiting judgment on our appeal of this judicial review.