Smith v Attorney-General

(Given by Mallon J)

Michael Smith is an elder of Ngāpuhi and Ngāti Kahu. He has been engaged in environmental advocacy for more than 30 years. He is the plaintiff in a claim against seven New Zealand companies for their contribution to the adverse effects of climate change and damage or interference with the climate system through their emission of greenhouse gases (GHGs) or their supply of products that release GHGs when burned. That claim is in tort and alleges public nuisance, negligence and a breach of a duty to cease materially contributing to that damage and interference with the climate system and to the adverse effects of climate change. The claim ultimately survived a strike out application on appeal with the Supreme Court's decision delivered earlier this year in Smith v Fonterra Co-operative Group Ltd. 1

This appeal concerns Mr Smith's separate claim against the Crown for its alleged inadequate action in relation to climate change. The claim is brought for an alleged breach of a common law duty to avoid dangerous interference with the climate system, breach of the right to life and the right to culture affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA), and for breach of the Treaty of Waitangi | te Tiriti o Waitangi (the Treaty | te Tiriti) and of fiduciary duties owed to Māori. These claims were struck out by Grice J in the High Court as untenable. 2 Mr Smith appeals that decision.

It can be safely said that the claim is ambitious. To some extent it challenges existing authority or seeks extensions to that authority in the light of the global threat that humankind faces from climate change and the fact that, if this threat is to be met, urgent global action is required. That threat and the urgency of global action has continued to result in a proliferation of cases around the world and a developing climate change jurisprudence.

Reflecting the ambitious nature of the claim and the developing law internationally in this area, the authorities relied on by Mr Smith and the Crown comprise 22 volumes. The intervener (Te Kāhui Tika Tangata | the Human Rights Commission) relied on still more. This judgment does not canvass them all. Instead we have focussed our consideration on what emerged at the hearing and in our deliberations to be the key authorities for the issue before us — namely, whether the causes of action are so clearly untenable that they cannot succeed.

We have concluded that it is not clearly untenable that an inadequate response by the Crown to the risks from climate change could give rise to a breach of the right to life (under s 8 of NZBORA) and a breach of the right to culture (under s 20 of NZBORA) for which declaratory relief is potentially available. Mr Smith's claims for breach of these rights rely on fundamental rights affirmed in NZBORA and international jurisprudence on the comparable rights in international instruments. Those instruments include the International Covenant on Civil and Political Rights (the ICCPR) to which New Zealand is a party and which NZBORA affirms. 3 International jurisprudence on these comparable rights recognises that a state's response to climate change may engage these rights.

The more challenging part of these claims is whether the pleaded particulars relied on by Mr Smith give rise to a tenable basis on which it could be said that the ss 8 and 20 rights are breached. These particulars relate to the Crown's response to national emissions as well as the Crown's response to its own emissions.

In relation to national emissions, the pleaded claim seeks to have the court determine that the legislative framework, principally the framework under the Climate Change Response Act 2002 (the CCRA), is inadequate to protect Mr Smith, his whānau, members of Ngāpuhi and Ngāti Kahu and future descendants thereof from threats to their right to life and their right to culture. While it is not clearly untenable that ss 8 and 20 of NZBORA might place positive obligations on the Crown to protect

We say that because the legislative framework is comprehensive in its reach, in that it covers a framework for emissions reductions intended to enable New Zealand to meet its international obligations, as well as a framework for risk assessment and adaptation. The pleaded gaps in that framework are not of a kind that could constitute a failure to take positive steps to protect against the denial of the risk to life or culture under NZBORA. Rather they reflect policy choices that are for Parliament under New Zealand's constitutional framework. The success or otherwise of the legislative framework under the CCRA in protecting the rights to life and to culture will depend on the decisions that are made under it. That includes, for example, decisions that are or are not made under the CCRA to review the emissions reductions targets.

This comprehensive framework, from which Crown emissions are not exempt, also means that it is not tenable that the Crown has breached the right to life or the right to culture by not having a regulatory framework to measure, monitor and reduce its own emissions. If the CCRA meets any positive obligation to put in place a regulatory framework designed to provide effective deterrence against the threat to life and culture from climate change, then the Crown has met its positive obligation and there is no additional positive obligation to have a specific regulatory framework for its own emissions.

Accountability mechanisms for decisions made under the CCRA include consultation, judicial review and NZBORA claims in respect of particular decisions, as well as general and local government elections. It is via judicial review and NZBORA claims in relation to particular decisions made under the CCRA, or other legislation under which decisions are made where climate change risks are relevant, that Mr Smith may be able to plead a tenable cause of action in the future. The defendant in any claim would be the Minister of Climate Change, or the Minister under that other legislation. Mr Smith's claim here, however, is against the Attorney-General and is about an inadequate regulatory framework to deter the risk that climate change presents, rather than an alleged failure of the Crown to take timely and reasonably available and proportionate measures to respond to a real risk to the right to life to Mr Smith or those he represents or their right to culture that is said now to be imminent. The Attorney-General is therefore entitled to a strike out order in respect of this claim.

We have concluded that a claim that the Crown's response to the risks from climate change breaches the Treaty or a fiduciary duty to Māori arising from the Treaty is clearly untenable. The law has not to this point recognised such a claim, and the claimed fiduciary duty is inconsistent with the circumstances of climate change in which the Crown represents and must balance many interests — it cannot just act in the interests of Mr Smith, his whānau and his future descendants. Parliament has established a different framework for giving effect to the principles of the Treaty. That includes Treaty clauses in legislation and the...