Kia ora koutou,

We hope this email finds you well. Please see below an update on our work over the last month, including some exciting developments in domestic climate litigation!

Smith v Fonterra

A win for climate litigation

It has now been a few weeks since the Supreme Court released its judgment in Smith v Fonterra. It’s great to start this newsletter with such a good win! As many of you will know, the Court unanimously agreed to not strike out Mr Smith’s claims against Fonterra, Genesis Energy, Dairy Holdings Ltd, NZ Steel Ltd, Z Energy, Channel Infrastructure, and BT Mining. We were in the media talking about the decision, and also typed up a blog post containing our thoughts about the case, which you can find on our website here.

Mr Smith argued that these companies, whose emissions collectively represent around ⅓ of NZ’s reported greenhouse gas emissions, could be liable in tort - arguing public nuisance, negligence, and a new novel climate system damage tort.

On one hand, the case was an orthodox application of long-standing strike-out principles. The Court emphasised that the threshold for striking out proceedings is high, and that the development of the common law should happen “in the fertile fields of trial, not on the barren rocks of a strike out application”. But it is nonetheless a significant win for climate litigation. The Court recognised that the common law “ought not to stand still in the face of massive environmental challenges attributable to human economic activity”.

Jenny Cooper KC and James Every-Palmer KC appeared on behalf of Lawyers for Climate Action NZ in the Supreme Court as intervener, and their submissions were addressed by the Supreme Court in its judgment. Congratulations also to Mr Smith’s legal team - Davey Salmon KC, David Bullock, Natalie Coates, and Nadia Sussman.

Waitangi Tribunal set to hold inquiry into climate policy

Another exciting development is that the Waitangi Tribunal has granted a priority Kaupapa inquiry into climate change policy, in relation to the Wai 2607 Claim.

The claim argues that the New Zealand Government’s response to climate change represents a breach of the Crown’s Te Tiriti o Waitangi/Treaty of Waitangi obligations towards Māori.

In the time since the claim was filed, the claimants have sought a priority hearing three times. It wasn’t until earlier this month that the Tribunal granted a priority Kaupapa inquiry into climate change policy. The Chairperson said:

The focus should, as raised by the various claims, be on the physical, spiritual, and socioeconomic impacts of climate change on Māori and the Crown’s response. The priority inquiry should also focus on the relevant Treaty principles to be considered in climate change policy and recommendations for how the Crown should meaningfully engage and consult with Māori.

A number of LCANZI members, including Michael Sharp, Grant Hewison, Tom Bennion, Carleton Buckley, and Bryce Lyall will be involved in the proceeding. It’s an exciting development to keep an eye on, and one which we’ll be supporting

Engaging with the Government on climate issues

Earlier this week, James Every-Palmer KC and Jessica Palairet met with the new Minister of Climate Change, Hon. Simon Watts, following the letter which we sent him once he was appointed into the role late last year (which you can read here).

It was a productive meeting, and it was helpful to establish a relationship with the new Minister and his team. We largely talked about the issues we raised in our letter, including:

The need to take meeting our climate targets seriously, particularly our 2030 Nationally Determined Contribution which we are far off course from meeting. We also discussed the possibility of including the likely cost of offshore offsets as a liability in the Government’s Financial Statements (particularly in light of recent research by the McGuinness Institute on this)
Why it is critical that the Emissions Trading Scheme is reformed so that it’s fit-for-purpose, especially if it’s to be relied on to do the “heavy lifting” of the Government’s climate response.
The Government’s plans to review NZ’s methane targets in line with the “no additional warming approach”.

We are concerned by a number of developments this week on climate policy. This includes the Government Policy Statement on Land Transport released on Monday (deprioritising climate, reducing spending on public transport, walking and cycling, and increasing the prioritisation of roading projects), and the fast-tracked consenting process being pushed through under urgency today. The Government’s actions don’t appear to be meeting its rhetoric on remaining “committed” to New Zealand’s climate targets. We have written a press statement on these issues - “The Government’s announcements making this a bad week for the climate in Aotearoa”

If you want to get involved in any of our work, feel free to get in touch at jessica@lawyersforclimateaction.nz

Thank you for your ongoing support of Lawyers for Climate Action NZ, please email admin@lawyersforclimateaction.nz if you have any questions or concerns.

Noho ora mai rā

Jessica Palairet, Executive Director at LCANZI

Lawyers for Climate Action Newsletter