Global Pressure Mounts Over Smith v Fonterra
International pressure is mounting on the Government’s attempt to shield major polluters from climate liability, with lawyers, academics and environmental groups warning the proposed law changes threaten both New Zealand’s climate credibility and core democratic principles.
Leading environmental NGOs, lawyers, climate scientists and legal academics from across Aotearoa and internationally have written to the Government today urging it to abandon proposed amendments to the Climate Change Response Act to limit legal liability for damage caused by climate change impacts. The joint letter was delivered to Ministers this morning by Lawyers for Climate Action NZ, and is signed by 118 New Zealand and international civil society organisations, including the Union of Concerned Scientists, and organisations from across Europe, the US and Asia. It has also been signed by a large number of prominent academics, both from New Zealand and abroad, including Oxford, Chicago, Melbourne, Imperial College London, and many more.
“The breadth and weight of support behind this letter speaks for itself,” says Laura MacKay, Acting Executive Director of Lawyers for Climate Action New Zealand. “It is heartening to see this level of unified opposition from civil society, student groups, leading international organisations and senior academics from New Zealand and across the world – and it is a measure of how serious this decision is.”
Critics warn the Government is undermining the rule of law
“This proposal would undermine our international legal obligations and cut across basic principles of the rule of law, such as the principle against removing rights retrospectively and the right to have disputes determined by the courts. It has clearly struck a nerve, and that’s because it’s fundamentally unfair. Different governments will always have different priorities and policies when it comes to climate change – that is the prerogative of an elected Parliament. But this decision is different. It affects the rules that we all rely on to ensure our rights are recognised and to hold decision-makers to account. This is not just about the climate – it’s about protecting a fundamental aspect of our democracy.”
“The Supreme Court recognised that Mr Smith’s claim will face obstacles, however it was unanimous in its decision that he should have his day in court. Instead of allowing for that to proceed, the Government has instead announced its intention to cut the case off at the knees, removing Mr Smith’s right to have his case heard on the law as it stood at the time it was filed.”
“It is a widely recognised convention in New Zealand that the law should have a prospective, not retrospective effect. Retrospective laws can only be justified on the basis of strong public interest. This is clearly not the case here. Instead the proposed amendment will act to shield a small number of companies from the risk of liability at the expense of the public interest in being able to hold large polluters to account for the harm they cause.”
New Zealand’s global reputation is now on the line
“The reason this announcement has generated so much international attention is because a strong rule of law is a common requirement across all democracies. Backsliding on this by a country such as New Zealand – traditionally recognised as having a strong rule of law – is bound to raise significant global concern. In addition, New Zealand has in the past enjoyed a good reputation on environmental issues – that is increasingly at risk in light of the ongoing weakening of our climate response.”
About Lawyers for Climate Action NZ Inc
Founded in 2019, Lawyers for Climate Action NZ is a group of lawyers with the shared mission of using the law to drive effective climate action. We advocate for law and policy reform, bring strategic climate litigation, and have built a community of climate-conscious lawyers across
Aotearoa, developing a skill base within the legal profession to help accelerate the net zero transition. We now have over 370 members, including Kings Counsel, barristers, solicitors and legal academics. Lawyers for Climate Action NZ appeared as intervener in Smith v Fonterra.
