Mike Smith’s Judicial Review Of Minister’s Decision Welcome – Environmental Law Initiative

Response from the Environmental Law Initiative, following the announcement this morning by Mike Smith (see Mr Smith’s press release below) that he has taken High Court proceedings challenging Minister Goldsmith’s decision to introduce legislation to outlaw climate tort litigation:

“At stake here is whether powerful corporate interests can secure legislative intervention to avoid scrutiny by the courts, without a fair process and without the public being able to see how that decision was made.”

“It is important for the Court to scrutinise whether this decision was lawful,” says the Environmental Law Initiative’s Director, Research and Legal, Dr Matt Hall.

Mr Smith’s press release:

Mike Smith has filed High Court proceedings challenging Justice Minister Paul Goldsmith’s announcement that he will introduce legislation to amend the Climate Change Response Act to prevent tort-based climate litigation. In the announcement, the Minister expressed his intention to stop Mr Smith’s existing claim against New Zealand’s six largest greenhouse gas emitters.

The claim challenges both the Minister’s announcement and the Cabinet process and decision behind it. Mr Smith says they acted unlawfully by deciding to interfere with live court proceedings, and with rights at issue in an existing claim, without a fair process. Mr Smith says the legislation even appears to break the Regulatory Standards Act.

“Climate change affects everything around us – the places we come from, the people we love, and the whenua we are responsible for protecting. It is an issue where everyone should expect transparency, and where constitutional rights should be given full effect.”

“Yet, something has gone seriously wrong here.

“The Government decided to introduce this legislation after the defendants lobbied for it. Their lobbying efforts disappeared from the public record.”

The Minister then decided to legislate away Mr Smith’s rights without prior notice and without hearing from Mr Smith.

Smith says, “He did that without considering how the damage the defendants are causing is going to be made good.

“When corporations escape legal responsibility for the damage they cause, we all pay.

“Decisions about whether businesses should get a free pass should not be made by businesses and officials behind closed doors,” says Mr Smith.

The grounds of the case

Mr Smith’s proceedings allege that the decision was unlawful on several grounds:

• The decision was reached with input from the defendants in Mr Smith’s existing case, in a way that was hidden from the public record and amounts to procedural impropriety.
• The decision directly concerns Mr Smith’s rights in an existing High Court claim, but was made after consulting with the defendants and without consulting him.
• Cabinet decided to remove Mr Smith’s rights without considering how the defendants would compensate for the damage they have caused, contrary to principles in the Regulatory Standards Act.
• The announcement was made, at least in part, knowing and intending it would disrupt the High Court process, and was therefore made for an improper purpose.

“I wrote to the Prime Minister on 28th May, seeking a meeting about his Office’s handling of my active case. I have received no response,” says Mr Smith.

Mr Smith’s case, Smith v Fonterra and others, seeks to hold major emitters accountable in tort for harm caused by greenhouse gas emissions. The Supreme Court reinstated the claim in 2024 and sent it back to the High Court for trial.

New Zealand an extreme outlier in letting corporations off the hook

“New Zealand is now an extreme outlier when it comes to holding corporations legally accountable for the harms they cause.”

“Corporations in other countries are being held to account via the courts. There is no justifiable reason to stop them from being held to account via the courts here in Aotearoa,” says Mr Smith. On Thursday, a Paris court ruled that the French energy giant, TotalEnergies must, within six months, account for the pollution released when the oil and gas it sells are burnt. TotalEnergies must also explain what steps it will take to address the harm from those emissions.

“Lawmaking fails when it is deliberately designed to place corporations above the law.

“I will keep seeking justice, because when I think of our whenua, my whanaunga, and the wonders of this country, there is no other option than to keep going,” says Mr Smith.

Notes:

• The relief sought is a declaration that the Minister’s announcement and the Cabinet decision were unlawful.
• The Government’s announced amendment would apply to current and future cases and would prevent courts from making certain findings of liability in tort for climate-related harm caused by greenhouse gas emissions.