IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE
CIV-2019-485-000384
[2022] NZHC 1693

BETWEEN MICHAEL JOHN SMITH

Plaintiff

AND THE ATTORNEY-GENERAL

Defendant

Hearing: 29-30 March 2022

Further submissions: 10 May 2022

Appearances: D M Salmon QC, M Heard, S J Humphrey for the Plaintiff

J M Prebble and K F Gaskell for the Defendant

Judgment: 15 July 2022

JUDGMENT OF GRICE J
(Strike out Application/Further Particulars)

SMITH v THE ATTORNEY-GENERAL [2022] NZHC 1693 [15 July 2022]

 Contents

Acronyms [1]
Introduction [2]
Background [8]
The amended statement of claim [18]
First cause of action — breach of duty [22]
Second cause of action — the New Zealand Bill of Rights Act 1990 [33]
Third cause of action — te Tiriti o Waitangi | the Treaty of Waitangi [34]
Application to strike out/particulars [35]
Approach to strike out [38]
The Crown’s position [41]
First cause of action — breach of duty [52]
Nature of the claim [52]
The duty [55]
Development of novel duties [62]
Previous climate change claims [76]
Public law overtones [105]
Approaches in other jurisdictions [117]
Analysis [133]
Policy considerations/deference [136]
Conclusion [155]
Second cause of action — claims under the NZBORA [167]
The claim [167]
Section 8 [174]
Section 20 [196]
Conclusion [214]
Third cause of action — claims under te Tiriti o Waitangi | the Treaty of
Waitangi [215]
Further submissions following the hearing of this case to decisions [236]
Conclusion [237]
Costs [238]
 Acronyms

[1]
BIA Building Industry Authority
CCC Climate Change Commission
CCRA Climate Change Response Act 2002
COP Conference of the Parties under the UNFCCC and Annual
Meeting
ECHR European Convention on Human Rights
ECHR European Court of Human Rights
ETS Emissions Trading Scheme
HRC Human Rights Committee
ICCPR International Convention on Civil and Political Rights
IPCC Intergovernmental Panel on Climate Change
NAP National Adaption Plan
NCCRA National Climate Change Risk Assessment
NDC Nationally Determined Contribution
NZBORA New Zealand Bill of Rights Act 1990
RMA Resource Management Act 1991
RMECCAA Resource Management (Energy and Climate Change)
Amendment Act 2004
UNDRIP United Nations Declaration on the Rights of Indigenous
People
UNFCCC United Nations Framework Convention on Climate Change
Zero Carbon Act Climate Change (Zero Carbon) Amendment Act 2019
Introduction

[2] This is an application to strike out the plaintiff’s claim and, in the alternative,
for further particulars.

[3] The claims are against the government represented by the Attorney-General
alleging various failures to act more quickly to mitigate or avert climate change in
New Zealand. They claim that the Government has taken no or inadequate climate
change mitigation measures since it had become aware of the causes and effects of
climate change down to the present.

[4] The breaches of the Government’s obligations are pleaded under various heads.
The essential allegation is that the effects of climate change on New Zealand and its
citizens, particularly Māori, have not been properly addressed by successive
governments and the present legislative and policy response is inadequate given the
catastrophic consequences wrought by climate change.

[5] The first statement of claim pleaded only one cause of action based on breach
of duty. This was formulated as a new legal obligation. Following orders for further
particulars made by Johnston AJ in May 2020,1 the plaintiff amended the claim to
plead three causes of action. The breach of duty cause of action remained, but
additional claims based on breaches of ss 8 and 20 of the New Zealand Bill of Rights
Act 1990 (the NZBORA)2 and te Tiriti o Waitangi | the Treaty of Waitangi (te Tiriti or
the Treaty) were added.3

[6] Further particulars were set out in the amended statement of claim following
the Associate Judge’s determination. The Crown says these remain inadequate.

[7] The plaintiff says the claims should not be struck out and should be left to the
trial Judge to determine the claim after hearing all the evidence.

1
Smith v Attorney-General [2020] NZHC 836.
2
A list of acronyms used in this judgment can be found in the front of this judgment.
3
There are two versions of te Tiriti o Waitangi | the Treaty of Waitangi, a Māori text (te Tiriti) and
an English text (the Treaty). In this judgment, I use “the Treaty” as a generic term to capture both
texts. However, it is widely accepted that te Tiriti, the Māori text, should be regarded as the
primary source of the commitments made between the Crown and Māori in 1840 and I use “te
Tiriti” where appropriate to reflect this accordingly.
Background

[8] Mr Smith is an elder of Ngāti Kahu descent and the climate change spokesman
for the iwi. He chairs its forum and has customary interests in land and other resources
situated in and around Mahinipua, Northland. Mr Smith pleads that climate change
resulting from the release of greenhouse gases into the atmosphere from human
activities will result in an additional warming to the Earth’s surface and atmosphere
which will adversely affect natural ecosystems and humankind. He pleads that it is
necessary to limit warming caused by climate change to 1.5 degrees Celsius to avoid
dangerous anthropogenic interference with the climate system and to minimise the
long-term and irreversible effects of climate change. He further pleads that the
increasing adverse effects on humankind as climate change progresses has caused, and
continues to cause, increases in temperature, loss of biodiversity and biomass, which
result in risks to water and food security and increasing weather events. This, in turn,
results in geopolitical instability and population displacement, adverse health
consequences and resultant economic losses. These pose “[a]n unacceptable risk of
social and economic collapse and mass loss of human life and civilisation”.

[9] Mr Smith further pleads that not later than June 1992 the Crown knew that
continued greenhouse gas emissions would cause the climate change and consequent
harm to the environment and human welfare. It knew that if deep cuts to greenhouse
emissions were to be made globally, then developed nations such as New Zealand
needed to take the lead on emissions reductions. New Zealand was a signatory to the
United Nations Framework Convention on Climate Change (UNFCCC), Kyoto
Protocol and Paris Agreement and incorporated obligations under these instruments
into domestic law.4

[10] Mr Smith further pleads that some of New Zealand’s emissions are caused by
activities of the Crown, including by its Crown entities and State enterprises. The
emissions by the Crown have contributed to global warming and climate change and
will continue to have adverse impacts.

4
Kyoto Protocol to the United Nations Framework Convention on Climate Change UNTS (opened
for signature 16 March 1998, entered into force 16 February 2005); and Paris Agreement (signed
22 April 2016, entered into force 4 November 2016).
[11] Mr Smith says in his amended statement of claim that since the signing of the
UNFCCC, the Crown has failed or refused to measure and monitor Crown emissions.
Mr Smith says Māori communities will be disproportionately burdened by the adverse
effects of climate change. Those communities’ interests in land and customary interest
in resources will be irreparably damaged. Māori communities have already suffered
disposition and displacement from their traditional lands. In addition, those
communities suffer higher levels of poverty and more health issues than the general
population. They reside in areas more likely to suffer loss or damage as a result of
inundation and extreme weather events, as well as having greater reliance on reliable
access to customary lands. Māori communities also face particular cultural
vulnerabilities associated with loss of sites of cultural, historical, customary and
spiritual significance.

[12] In particular, Mr Smith pleads he has an interest in Mahinipua C Block located

at Mahinipua, north-east of Kaeo, an area which will suffer particular damage.

[13] There is no contest between the parties about the fact of climate change and,
in general terms, its causes and effects. The Paris Agreement is a legally binding
international treaty on climate change reached by the Conference of Parties (COP)5
adopted by New Zealand and 195 other countries on 12 December 2015 (effective 4
November 2016).6 Its goal is to limit global warming to well below 2, preferably to
1.5 celsius compared to pre-industrial levels. This goal was formulated in order to
reach global peaking of greenhouse gas emissions as soon as possible to achieve a
climate neutral world by mid-century.

[14] Shortly after the hearing the Intergovernmental Panel on Climate Change
(IPCC) released the Working Group III contribution to its Sixth Assessment Report,
entitled Climate Change 2022: Mitigation of Climate Change (the Working Group III
Report).7 The IPCC comprises 195 member governments, all of whom approved the

5
Conference of the Parties under the United Nations Framework Convention on Climate Control
(UNTCCC).
6
Paris Agreement, above n 4.
7
Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change
– Working Group III contribution to the Sixth Assessment Report of the Intergovernmental Panel
on Climate Change (4 April 2022) [Working Group III Report]. Counsel brought this to the Court’s
attention.
Summary for Policymakers of the report.8 The Working Group III Report provides an
updated global assessment of climate change mitigation progress and pledges, and
examines the sources of global emissions. It also outlines developments in emission
reduction mitigation efforts, assessing the impact of national climate pledges in
relation to long-term emissions goals.

[15] The report documents the evolution of global science and policy since the
previous report (the Fifth Assessment Report) and the three special reports of the Sixth
Assessment cycle.9 It says the long-term temperature goal in the Paris Agreement will
require accelerating decline to “net zero”, which is impossible without urgent and
ambitious action at all scales.10 It notes the transition in specific systems can be
gradual or can be rapid and disruptive. This depends on “existing physical capital,
institutions, and social norms”.11 The report says that attention to and support for
climate policies and low-carbon societal transitions has generally increased as the
impacts have become more salient.12 As well as calls for accelerating emission
reductions, the report notes the decline of global emissions due to the effects of the
COVID-19 pandemic in 2020,13 and notes multiple low-carbon technologies have
shown rapid progress enhancing the feasibility of rapid energy transactions.14

[16] The Working Group III Report was released with a statement by the
United Nations Secretary-General António Guterres on 4 April 2022, in which he
warned:15

We are on a fast track to climate disaster. Major cities under water.

Unprecedented heatwaves. Terrifying storms. Widespread water shortages.
The extinction of a million species of plants and animals.

8
The parties filed a joint memorandum indicating the report and related documents could be
admitted by consent updating material.
9
Working Group III Report, above n 7.
10
At TS-2
11
At TS-7.
12
At TS-7.
13
At TS-14.
14
At TS-25.
15
António Guterres “Secretary-General Warns of Climate Emergency, Calling Intergovernmental
Panel’s Report ‘a File of Shame’, While Saying Leaders ‘Are Lying’, Fuelling Flames” (press
release, 4 April 2022).
[17] Mr Guterres went on to say that high-emitting countries’ governments and
corporations were adding fuel to the flames. The science was clear that to keep the
1.5 degrees Celsius limit agreed in Paris within reach, global emissions needed to be
cut by 45 per cent this decade. Mr Guterres said that the current climate pledges would
mean a 14 per cent increase in emissions. Most major emitters were not taking the
steps needed to fulfil even these inadequate promises. His statement concluded with
the ultimatum that the choices made by countries now will “make or break” the
commitment to 1.5 degrees Celsius.

The amended statement of claim

[18] The pleadings point to the inadequacy of responses by successive

governments, including legislative responses in the form of the Climate Change
Response Act 2002 (CCRA), as well as the Resource Management (Energy and
Climate Change) Amendment Act 2004 (RMECCAA), which was intended to
complement the CCRA and amend the Resource Management Act 1991 (RMA). The
RMA explicitly precludes local authorities from having regard to the emissions
implications of projects when deciding whether to grant resource consents or from
regulating activities based on their emissions implications.16

[19] Mr Smith further referred to the Climate Change (Zero Carbon) Amendment
Act 2019 (Zero Carbon Act), the Emissions Trading Scheme (ETS) which operated
between 2002 and 2020, and the amendment to the CCRA by the Climate Change
(Emissions Trading Reform) Amendment Act 2020 (ETS Reform Act). In addition,
Mr Smith pointed to the Climate Change (Options, Limits and Price Controls for
Units) Regulations 2020 (ETS Reform Regulations).

[20] Mr Smith pleads that the emissions cap introduced under the ETS Reform
Regulations is too high and the emission subsidies are too great. The agricultural
exemption results in people and entities responsible for a substantial quantity of
New Zealand emissions not being subject to the ETS. He pleads that since 2020, the
ETS has been and will continue to be ineffective in mitigating New Zealand’s

16
Resource Management Act 1991, s 70A.
emissions, which have not reduced at all since 1992 but have increased year-on-year
since then.

[21] The three causes of action are premised on the fact that the Crown has known
since 14 June 1992 about climate change and the risks associated with it.

First cause of action — breach of duty

[22] The first cause of action is entitled “breach of duty”. It pleads there is a duty
owed by the Crown which derives from its authority over the territory of New Zealand,
It covers the activities occurring there and includes the atmosphere above New
Zealand’s territory. It must actively exercise that authority in a manner that:

… protects the plaintiff and future generations of his descendants from the
adverse effects of climate change, including, without limitation, the loss of:
life; health; culture; economic and social wellbeing; spirituality; lands;
fisheries; forests; sites of cultural, customary, historical or spiritual
significance; and taonga …

[23] The pleading says the duty has existed since no later than 6 May 1840.

[24] The standard of care said to be required of the Crown is to “take all necessary
steps to reduce NZ emissions and to actively protect the plaintiff and his descendants
from the adverse effects of climate change”.

[25] The sources of the duty are said to include: the responsibilities owed by the
Crown to Māori and to all persons; the interest the public have under the jus publicum
in air, sea, and running water; the public trust placed in the Crown to preserve and
safeguard them by providing for a habitable atmosphere and environment; the rights
affirmed in the NZBORA; existing common law rights, freedoms and duties; tikanga
Māori; and New Zealand’s obligations under international law, including under the
United Nations Declaration on the Rights of Indigenous Peoples (the UNDRIP), the
UNFCCC, and according to customary international law.

[26] Mr Smith pleads that the Crown is required to take various steps in pursuance
of that duty. He says the specific pathway it chooses is a matter for the Crown, but
available and necessary actions include to:
 (a) measure and monitor emissions;

(b) use public powers to prevent emissions from increasing at all and
reducing them in accordance with the best available science;

(c) have particular regard to the implications of decisions on levels of

emissions and actively seek alternatives that will reduce or at least not
increase emissions;

(d) revoke and cease allowing any new licences for exploration, extraction
and/or export of fossil fuels;

(e) prioritise investment and infrastructure away from fossil fuels and
towards a low-emissions economy;

(f) neither invest in nor facilitate any development of infrastructure or

industry that will result in increased Crown emissions;

(g) undertake risk assessments of areas or populations at higher risk of

harm from climate change and take steps to prevent or mitigate harm to
them; and

(h) undertake risk assessments of interests protected under the Treaty, and
then to take active steps to protect those interests from harm.

[27] The particulars of breach were pleaded following directions requiring

particulars made by the Associate Judge.17 The Crown is said to have known of the
foreseeable and serious risk that the rights-holders will be deprived of life in the future
in “a manner that is not established by law or consistent with the principles of
fundamental justice”. It has created those risks by being responsible for all Crown
emissions, all New Zealand emissions and failing to take steps, including risk
assessments and mitigation of the emissions.

17
Smith v Attorney-General, above n 1, at [43].
[28] The plaintiff says the specific steps the Crown has taken in breach of the duty
include:

(a) enacting the CCRA, which prescribes targets for the reduction of
emissions of greenhouse gases and permits actual emissions reductions
to be deferred for decades, are set on the basis of irrational assumptions
involving not yet invented or unproven technology, do not recognise
the offshore emissions implications of exported products offshore and
have not been coupled with any plan or framework including any legal
obligations to achieve emissions reductions enforceable by the courts;

(b) establishing the ETS, which did not include an effective cap on
emissions until 2021, and continues to exclude agriculture emissions
entirely, fails to recognise the offshore emissions implications of
exported products and provides free units to major emitters;

(c) enacting the RMECCAA;

(d) implementing high greenhouse gas emission road building schemes;

(e) failing to prioritise active and public transport modes over private
vehicles;

(f) failing to reduce and decarbonise New Zealand’s vehicle fleet;

(g) bypassing any or proper consideration of climate change implications

of proposed roads;

(h) issuing oil and gas exploration permits;

(i) supporting the draft Minerals and Petroleum Resource Strategy;

(j) allowing the Accident Compensation Corporation (ACC) to invest

nearly $1 billion into fossil fuel-producing companies;
 (k) allowing Meridian Energy Ltd to contract to supply electricity to the
Tiwai Point aluminium smelter;

(l) failing to reduce the extent and intensity of agriculture-related

emissions; and

(m) failing to control the legislative programme to implement measures to

protect the plaintiff and his descendants from climate change;

[29] The plaintiff says Parliament’s lack of a legislative response to climate change
has constituted a knowing failure to reduce emissions adequately or at all, for which
it can be sued.

[30] The relief sought is a declaration that the Crown owes a duty which it has
breached and will continue to be in breach of unless and until it protects the plaintiff
and his descendants from the adverse effects of climate change and reduces
New Zealand and Crown emissions to “less than half of their 2010 levels by 2030 at a
linear rate” and to zero “by sooner than 2050 at a better than linear rate between 2030
and 2050”.

[31] In earlier proceedings a novel breach of duty in relation to the cause and effects
of climate change was brought as a tortious claim in negligence by Mr Smith against
Fonterra Co-Operative Group Ltd (Fonterra) and other named companies which
produced emissions which were said to contribute to climate change. The proposed
new tort and was struck out by the Court of Appeal in Smith v Fonterra Co-Operative
Group Ltd.18

[32] The duty in the present case has not been described in submissions as a tort but
rather appears be a hybrid public law/private law claim. The plaintiff pointed to
underlying constitutional imperatives which he said should allow the development of
this novel duty of care.

18
Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552 [Smith v Fonterra (CA)] at [125]-
[126]. A nuisance claim was struck out in the High Court and on appeal the novel tort claim was
also struck out in te Kōti Pīra | the Court of Appeal. Leave has been granted to appeal that decision
to te Kōti Mana Nui | the Supreme Court in Smith v Fonterra Co-Operative Group Ltd [2022]
NZSC 35 [Smith v Fonterra (SC)].
Second cause of action — the New Zealand Bill of Rights Act 1990

[33] Mr Smith pleads breaches of the NZBORA under s 8 (deprivation of life) and
s 20 (denial of the right to practise culture). The claim is that the Crown is responsible
for emissions and it has enacted and amended the CCRA and the RMECCAA, which
lack sufficient regulation of emissions. The plaintiff says the Crown has therefore
failed to put in place an effective legislative and administrative framework properly
designed to provide effective mitigation against the climate change risk in accordance
with the best available science and New Zealand’s international and domestic legal
obligations.

Third cause of action — te Tiriti o Waitangi | the Treaty of Waitangi

[34] The third cause of action is based on breaches of the Treaty and consequent
fiduciary duties owed to the plaintiff and those he represents. These include duties to
perform the commitments undertaken by the Crown in the Treaty and to take active
steps to ensure those commitments are honoured and act in good faith. The Crown is
said to have breached these duties by its failure or inadequate response to mitigate
climate change.

Application to strike out/particulars

[35] The defendant has filed an application to strike out the proceeding on the
grounds that the amended statement of claim discloses no reasonably arguable cause
of action. The Crown says that the duty pleaded in the first cause of action does not
exist and the matters raised by the amended claim are non-justiciable.

[36] In relation to the second cause of action under the NZBORA, the Crown says
that s 8 is not engaged and does not give rise to a positive obligation on the Crown
that measures adopted in the climate change context be protective of life. In relation
to s 20, the Crown says the plaintiff is unable to establish that his right to enjoy his
culture has been interfered with, let alone denied.

[37] In relation to the third cause of action, the breach of the Treaty, the Crown says
that the cause of action cannot succeed because while the Treaty is recognised for
many purposes including specifically in legislationas an aid to interpretation, it does
not give rise to an independent actionable claim. In the climate change context, where
the Crown is required to represent and balance competing interests, it cannot owe
fiduciary duties to particular individuals or groups.

Approach to strike out

[38] In Smith v Fonterra Co-Operative Group Ltd the Court of Appeal set out the
principles to be applied in approaching a strike out application as follows:19

[38] We [address each cause of action] through the lens of well-established

strike out principles.20 That is to say, we assume the pleaded material facts are
true save for those that are entirely speculative and without foundation and we
also bear in mind that the strike out jurisdiction is to be exercised sparingly
and only in clear cases. We must be certain the claim is so untenable it cannot
succeed and slow to strike out claims in any developing area of law. The fact
a claim involves a complex question of law which requires extensive argument
should be no bar provided we have the requisite materials and assistance to
determine the matter.21 We must also be mindful of the well established
principle that if any deficiencies can be cured by an amendment to the
pleadings, allowing the claim to proceed on condition the necessary
amendments are made, is preferable to strike out.22

[39] In developing areas of the law, the courts are slow to strike out claims, for
example where a duty of care is alleged in a new situation.23 The plaintiff says the
present case has close parallels to Wallace v Commissioner of Police, where an
application to strike out a claim alleging breach of positive duties to protect the right
to life under s 8 of the NZBORA was dismissed.24 Brown J emphasised the need for
caution given the fundamental importance of the right to life and the fact the law on
positive obligations was still “in a state of early development”.25 The claim went to a
full trial where Ellis J upheld Mrs Wallace’s claims as to the scope of s 8, finding that

19
Smith v Fonterra (CA), above n 18.
20
The authority for the Court to strike out a pleading or cause of action derives from r 15.1 of the
High Court Rules 2016 and under its inherent jurisdiction which is unaffected by r 15.1. See
Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 323.
21
Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267, endorsed in Couch v
Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] and North Shore City Council v
Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146].
22
Marshall Futures Ltd v Marshall, above n 20, at 324; and Westpac Banking Corp v M M Kembla
New Zealand Ltd [2001] 2 NZLR 298 (CA) at [66].
23
Couch v Attorney-General, above n 21, at [33] per Elias CJ.
24
Wallace v Commissioner of Police [2016] NZHC 1338 [Wallace No 1].
25
At [66].
the positive duty to conduct an effective investigation into the death of her son,
Steven Wallace, had been breached.26

[40] Mr Smith says that while there may be arguments about the future breaches
given the present framework, there is no doubt that past breaches have occurred. Even
if the present and future position is not within the ambit of the Court, the past breaches
must be. He says I must take the pleading as proven in that regard for the purposes of
the strike out application. Since 1992, the Government should have known about the
issue of climate change and the ramification for the New Zealand population, but it
did nothing. The Crown’s various arms, including the ACC, Meridian Energy Ltd and
Waka Kotahi NZ Transport Agency, continued to act as if climate change was not an
issue in the ways described above.

The Crown’s position

[41] The Crown set out the framework that had already been put in place by the
Government to deal with climate change domestically.

[42] The CCRA was originally enacted to enable New Zealand to meet its
obligations under the UNFCCC and the Kyoto Protocol. Since that time there have
been a number of amendments to the CCRA, including the Zero Carbon Act, which
enacted a target of reducing net omissions of greenhouse gases in a calendar year
(excluding biogenic methane) to zero by 2050.27 In terms of biogenic methane, the
target required that emissions be 10 per cent less than 2017 levels by 2030, and 24–47
per cent less by 2050.28

[43] The Zero Carbon Act also inserted an additional purpose into the CCRA as
follows, to:29

(aa) provide a framework by which New Zealand can develop and

implement clear and stable climate change policies that—

26
Wallace v Attorney-General [2021] NZHC 1963 [Wallace No 2].
27
Climate Change Response Act 2002 [CCRA], s 5Q(1)(a).
28
Section 5Q(1)(b).
29
Section 3(1).
 (i) contribute to the global effort under the Paris Agreement to
limit the global average temperature increase to 1.5° Celsius
above pre-industrial levels; and

(ii) allow New Zealand to prepare for, and adapt to, the effects of
climate change:

[44] The Crown pointed to the explanatory note to the Zero Carbon Bill, which
commented on its purpose as follows:30

The overarching purpose represents a balance of the guiding principles agreed

by Cabinet to frame the development of climate change policy: leadership at
home and abroad; a productive, sustainable, and climate-resilient economy;
and a just and inclusive society.

The Bill sets out a durable framework, and stable and enduring institutional
arrangements, for climate change action that will help keep New Zealand on
track to mitigate and adapt to climate change. It also contains mechanisms for
increasing transparency of decisions relating to climate change. This includes
processes, time frames, reporting obligations, monitoring, and considerations
to take into account.

The Bill seeks to strike a balance between flexibility and prescription in New
Zealand’s long-term transition, as well as building in considerations for how
impacts are distributed.

[45] The Crown says the Zero Carbon Act provides a “calibrated framework” for a
just transition to New Zealand to a low emissions and climate-resilient future. The
Zero Carbon Act also included detailed provision for Māori and the application of the
Treaty in decision-making under the Act.31

[46] The Crown pointed to the key aspects of the updated regime as being:

(a) the establishment of an independent Climate Change Commission

(CCC),32 which provides expert advice on mitigating climate change,
including through reducing emissions and adapting to its effects. It will
monitor and review successive governments’ progress towards
emissions budgets, the 2050 target and adaption goals;33

30
Climate Change Response (Zero Carbon) Amendment Bill 2019 (136-1) (explanatory note).
31
CCRA, s 3A.
32
Part 1A.
33
Sections 5B, 5J and 5ZJ–5ZL.
 (b) five-yearly emissions budgets, which act as “stepping stones” to the
2050 target and contribute to the global effort to limit global
temperature to 1.5 degrees Celsius;34

(c) emissions reductions plans informed by advice from the CCC and
government agencies, which set out the policies and strategies to be
followed for meeting the emissions budgets;35

(d) a national climate change risk assessment (NCCRA), which assesses

risks to New Zealand’s economy, society, environment and ecology
from the current and future effects of climate change and identifies
significant risks based on urgency and consequences;36 and

(e) a national adaption plan (NAP), which sets out objectives, strategies,
plans and policies for climate change adaption, including timeframes
for meeting those strategies and monitors to enable regular
monitoring.37

[47] The Crown says the CCRA ensures accountability for successive governments
through the CCC’s regular monitoring and reporting, the setting of budgets and the
Act’s overall target. Under the Act, the CCC must produce an annual progress report
which is presented to the House of Representatives,38 and must provide regular
reporting on the progress of each NAP,39 and there is also provision for the Court to
make a declaration in case of failure to meet the 2050 target or an emissions budget.40

[48] The Crown also points to the ETS as a key mechanism for reducing emissions
and meeting international commitments. The Crown says the ETS has undergone a
number of legislative reforms, which have introduced a cap to align with emissions

34
Sections 5W–5Z. The explanatory note to the Zero Carbon Act, above n 30, described the purpose
of the emissions budgets as “a valuable tool for tracking progress and determining whether New
Zealand is on track to meet the emissions reduction target ... creat[ing] accountability across
successive governments”: at 3.
35
Section 5ZG–5ZI.
36
Sections 5ZP–5ZR.
37
Sections 5ZS–5ZT.
38
Sections 5ZJ–5ZK.
39
Section 5ZU.
40
Section 5ZM.
budgets and will provide for emissions from agriculture to incur a carbon price from
2025 at the latest.

[49] Another aspect of the framework for responding to climate change that the
Crown points to is the advice of the CCC. In May 2021, the CCC produced its first
report, having received more than 15,000 submissions, advising on the first three
emissions budgets, the policy direction for the first emissions reduction plan, New
Zealand’s 2030 NDC, and biogenic methane reductions required to keep global
average temperature rise to 1.5 degrees Celsius.41 The Crown says the Government
proposes to broadly accept the CCC’s advice on emissions budgets, with some
modifications.

[50] Finally, the Crown says the Government has committed to reducing emissions
through its NDC. In October 2016, the Government communicated its first NDC
under the Paris Agreement, which committed to reducing net greenhouse gas
emissions to 30 per cent below 2005 gross levels by 2030. The Government updated
the NDC in November 2021 to a commitment to reduce net emissions to 41 per cent
below 2005 gross levels by 2030.

[51] The Crown rejects the plaintiff’s assertion that it lacks an adequate framework
dealing with the effects of climate change.

First cause of action — breach of duty

Nature of the claim

[52] The plaintiff bases the duty on the fact that climate change is a unique
“collective action” problem which risks catastrophic harm to fundamental interests
protected by the common law. The plaintiff says the risks threaten the continued
existence of New Zealand as a democratic state and that humans and social order will
cease to exist unless action is taken. It follows, the plaintiff says, that none of the
branches of government will be able to fulfil their constitutional roles so no other

41
He Pou a Rangi | Climate Change Commission Ināia tonu nei: a low emissions future for Aotearoa
– Advice to the New Zealand Government on its first three emissions budgets and direction for its
emissions reduction plan 2022 – 2025 (31 May 2021).
rights which the courts must protect will have meaning or be capable of being
enforced.

[53] The plaintiff says the State is uniquely placed to mitigate these risks and it
alone is able to address the problem of “systemic domination” by major individual
emitters who, by their emissions, exert their will over others thereby limiting
freedoms.

[54] The plaintiff pleads a strict liability standard for the new duty — to avoid
dangerous interference with the climate system. That, the plaintiff says, is required
because of the catastrophic nature of the consequences of non-compliance with the
duty.

The duty

[55] The plaintiff says the necessary conditions for the existence of a duty of care
flow from Lord Atkinson’s famous exposition in Donoghue v Stevenson:42

I owe a duty of care to persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in
question.

[56] In this case, the argument is that reasonable foreseeability and appropriate
proximity to a class of person to whom the duty of care is owed is established by
evidence pointing to the knowledge by the Crown of the dangers of climate change
and the risks it brings to all persons and their property in New Zealand.

[57] The content of a duty of care has been analysed at a doctrinal level as a duty to
be mindful of the interests of persons placed at reasonably foreseeable risk by one’s
actions, where those other persons have a correlative right that one be so mindful.43
The duty of care together with the standard of care results in a duty not to subject

42
Donoghue v Stevenson [1932] AC 562 (HL) at 580.
43
Steven Perry “Torts, Rights, and Risk” in J Oberdiek Philosophical Foundations of the Law of
Torts (Oxford University Press, Oxford, 2014) 38 at 44.
persons whom one’s actions place at reasonably foreseeable risk to unreasonable or
undue levels of such risk.44

[58] The plaintiff says the duty in the present claim carries with it strict liability.
Unlike the tort of negligence, strict liability does not involve a duty of care. This is
because in a case of strict liability, the defendant has no duty, not even a derivative
one, not to create unreasonable risks, but instead has a duty not to cause to reasonably
foreseeable persons or classes of persons sufficiently proximate physical harm as a
result of engaging in a certain type of activity.45 Therefore, whether or not one has
complied with the standard of reasonable care is neither here nor there.46

[59] There are few civil causes of action that are based on a pure right not to be put
at risk at all. An example is the tort of false imprisonment, which is an intentional tort
justified in quite different ways to the tort of negligence.47

[60] Mr Smith says that given the existential threat to human life posed by climate
change, the dictum of Cooke J in Taylor v New Zealand Poultry Board that “[s]ome
common law rights presumably lie so deep that even Parliament could not override
them” applies. 48 He says that the wider Crown has completely failed to reduce its
own or national emissions from 1992, which invokes a comparison with the examples
given by Cooke J of a matter beyond the constitutional power of the legislature, such
as laws purporting to disenfranchise women or strip Jewish people of their citizenship
or property”.49 The plaintiff says the evidence is there and climate change is already
occurring. He says recent reports of the IPCC illustrate in stark terms the risk for
human society if the rate of change is not immediately and sharply reduced by more
effective means than those undertaken by the Government at present. Mr Smith says
the evidence of that is a matter for trial and this application must be determined as if
the evidence established the factual basis of the claim.

44
At 44.
45
At 52.
46
At 52.
47
At 59.
48
Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398 per Cooke J.
49
Robin Cooke “Fundamentals” [1988] NZLJ 158.
[61] It is these factors that the plaintiff says compels the recognition of a novel duty
on the State to take necessary steps to avoid dangerous interference leading to climate
change.

Development of novel duties

[62] The plaintiff points to the development of novel duties such as that recognised
in Hosking v Runting (interference with privacy)50 and C v Holland (invasion of
privacy and “intrusion upon seclusion” to protect interests in dignity, autonomy and
privacy),51 among others.

[63] In the context of a strike out application, the Court of Appeal has noted that a
Court would be slow to strike out a novel negligence claim. In Attorney-General v
Body Corporate 200200 the Court said:52

Strike out principles as applied in public law negligence contexts

[50] In all cases the threshold for a strike out application is rigorous and
the courts are especially slow to strike out claims in negligence which assert
novel duties of care; this in recognition of the factually sensitive nature of the
inquiry and what will often be the need for evidence, including expert
evidence, and the testing of such evidence in a trial setting. In a proper case,
however, a determination may be made on the existence of a duty of care on
a strike out application. The difficulty of the associated legal issues does not
preclude the granting of the application. As to these considerations see the
remarks of Richardson P in Attorney-General v Prince and Gardner at 267.

[51] Such cases throw up competing considerations of policy. On the one

hand, the courts should not lightly deny plaintiffs the opportunity to proceed
to trial on novel issues of law. Moreover, a trial will present a more favourable
forum to assess the issues involved in establishing a duty of care. On the other
hand, however, defendants ought not to be subjected to the substantial costs,
much of which is usually unrecoverable, in defending untenable claims.

[64] The Court of Appeal in Hosking v Runting recognised the tort of invasion of
privacy as existing in New Zealand.53 It reviewed the state of privacy law in various
jurisdictions as well as in New Zealand. It looked at the policy in respect of the
protection of privacy and whether the statutory protections already enacted amounted
to a comprehensive treatment which might preclude the existence of the novel cause

50
Hosking v Runting [2005] 1 NZLR 1 (CA).
51
C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
52
Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) at [50]–[51].
53
Hosking v Runting, above n 50.
of action.54 It noted that the Privacy Act 1993 did not confer on any person legal rights
enforceable in a court of law in relation to privacy.55 The Broadcasting Act 1989 and
Harassment Act 1997 also left gaps in the law.

[65] The Court of Appeal in Hosking v Runting said that while the introduction “of
any high-level and wide tort of invasion of privacy should be a matter for the
legislature” that was not what it envisaged but, rather, it was “taking developments
that have emerged from cases in New Zealand and in the larger British jurisdiction and
recognising them as principled and an appropriate foundation on which the law may
continue to develop to protect legitimate claims to privacy”.56

[66] The Court went on to note that the scope of the newly established cause of
action should be left to incremental development by future courts.57 The primary
remedy would be the award of damages and in some cases injunctive relief.

[67] Tipping J, in a separate judgment, referred to the “traditional common law

method … of incremental development”.58 He also noted that the NZBORA would
inform the development of the common law in its function of regulating relationships
between citizens, and the rights and values it represents should be given appropriate
weight when developing the common law.59

[68] Further “incremental” developments in the area of privacy recently occurred

in Peters v Attorney-General.60 The Court of Appeal noted that in developing the law
in the new torts:61

… it is appropriate for courts to proceed with care, paying close attention to

countervailing rights and interests, when formulating the criteria that will be
used to gauge reasonable expectations of privacy. The courts must also
recognise their institutional limitations, which dictate that law should be
developed incrementally and by reference to specific facts.

54
At [97].
55
At [99].
56
At [110].
57
At [149].
58
At [251].
59
At [229].
60
Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 at [114].
61
At [114] (footnotes omitted).
[69] Mr Smith argues that by the same process of reasoning that led to the
development of new torts such as invasion of privacy, the proposed duty can be
recognised — albeit on a bigger scale — and so provide a remedy for much more
serious interferences with fundamental interests.

[70] Mr Smith says that recognition of such a duty would not be contrary to any
existing statutory schemes because there is no legislative provision which purports to
preclude common law claims against the Crown. Mr Smith says the Court has a
general jurisdiction to review legislation or policy.

[71] Claims in negligence based on public duties may be advanced against the
Crown. The recent Court of Appeal decision in Attorney-General v Strathboss dealt
with an appeal from a determination that the Crown was liable in negligence for failing
to properly manage the biosecurity risk in relation to an import permit granted for
kiwifruit pollen.62 The High Court found a duty of care which had been breached and
held the Crown was liable to the defendants in damages. 63 The Court of Appeal
allowed the appeal, primarily on the basis that the Crown immunity operated to
prevent the claim. In finding that the duty of care had not been established it also
made some observations in relation to the claim in negligence against the Crown which
are relevant.

[72] The Court of Appeal noted that where a duty is imprecisely formulated, a duty
of a technical or operational nature may be distinguished from one which relates to
policy matters.64 That distinction had been made by Lord Wilberforce in Anns v
Merton London Borough Council.65 Public policy and political considerations are less
likely to be justiciable.

[73] In this case the duty is imprecisely formulated and could be said to target
technical and operational matters as well as policy matters.

62
Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247.
63
Strathboss Kiwifruit Ltd v Attorney-General [2018] NZHC 1559.
64
Attorney-General v Strathboss Kiwifruit Ltd, above n 62, at [184].
65
At [184], citing Anns v Merton London Borough Council [1978] AC 728 (HL).
[74] In Strathboss, the Court of Appeal observed that a significant factor against the
finding of a duty of care was that the potential losses from a breach of that duty would
have been immense.66 It said the ordinary requirements for success in negligence
would not be a sufficient control for the extent of the liability that could flow from the
breach of that duty and that the possible claims would be complex and of a significant
scale. This was a significant reason not to recognise the duty at law. Such a duty
should be introduced by legislation.67

[75] The Court of Appeal in Strathboss also pointed out that in cases where a public
body is performing a role for the benefit of the community as a whole and where the
actions of a third party, rather than the defendant, are the immediate cause of the loss
of harm suffered by the plaintiff, the courts are wary about imposing a duty to act.68
The Court of Appeal pointed out that the principle had been emphasised recently by
the United Kingdom Supreme Court in a series of cases.69 The Court of Appeal agreed
with the Judge at first instance that the duty of care propounded in Strathboss did not
cut across other available proceedings in the legal framework for claims relating to
failures in public decision-making, such as the tort of breach of statutory duty,
misfeasance in public office, declaratory judgments or judicial review. However,
policy considerations, particularly given the indeterminate liability, weighed strongly
against the imposition of a duty of care in relation to pre-border conduct in
Strathboss.70

Previous climate change claims

[76] Here the novel duty is said to be owed by the Crown. Mr Smith previously
pleaded novel duties concerning climate change as the plaintiff/appellant in Smith v
Fonterra Co-Operative Group Ltd.71 That was a claim against Fonterra and six other
companies, each of whom was either involved in an industry which released

66
At [253].
67
At [257]–[260].
68
At [198], citing Couch v Attorney-General, above n 21, at [80].
69
At [199]–[200], citing Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4,
[2018] AC 736; and N v Poole Borough Council [2019] UKSC 25, [2019] 2 WLR 1478.
70
At [270]–[274].
71
Smith v Fonterra Co-Operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394 [Smith v
Fonterra (HC)]; and Smith v Fonterra (CA), above n 18.
greenhouse gases into the atmosphere or manufactured and supplied products which
released greenhouse gases when burned.72

[77] Mr Smith there pleaded the effects of climate change and their devastating
effects as a starting point. He pleaded three causes of action of action: public nuisance,
negligence and a proposed new tort described as breach of duty. 73 In respect of each
cause of action, the remedies sought were declarations that each of the respondents
had unlawfully caused or contributed to the effects of climate change or breached
duties said to be owed to Mr Smith. Mr Smith was also seeking injunctions against
each of the defendants which would require them to produce or cause zero net
emissions from their respective activities by 2030.74

[78] In the High Court, Wylie J had no difficulty striking out the first and second
causes of action (public nuisance and negligence) on the basis they were untenable. 75
On the third cause of action, that the defendants owed a duty cognisable at law to cease
contributing to damage to the climate system, Wylie J refused the strike out application
noting that on appropriate occasions, the common law evolved by creating new
principles and causes of action.76 By way of example, he pointed to the new tort of
intrusion into seclusion which had been recently recognised.77

[79] His Honour noted the common law method proceeds through the
methodological consideration of the law that has been applied in the past and the use
of analogy.78 The common law method provides stability but may not allow for the
injection of new ideas and for the creation of new responses. Wylie J noted the
comments of Lord Reid in Myers v Director of Public Prosecutions:

“The common law must be developed to meet changing economic conditions

and habits of thought, and I would not be deterred by expressions of opinion
in this house in old cases. But there are limits to what we can or should do.

72
Smith v Fonterra (CA), above n 71, at [3].
73
At [6].
74
At [6].
75
Smith v Fonterra (HC), above n 71, at [73] and [100].
76
At [101].
77
At [101], citing C v Holland, above n 51.
78
At [101].
 If we are to extend the law it must be by development and application of
fundamental principles.”79

[80] His Honour there noted that Mr Smith had made no attempt in the pleading of
the third cause of action to refer to recognised legal obligations, nor incrementally
identify the new obligation by analogy to existing principles.80 Such an attempt could
not readily be made as the claimed duty of care was not obviously analogous to any
existing duty of care and its recognition could not be described as a gradual
step-by-step expansion of negligence liability.81 The Judge also commented on the
public policy reasons he had identified. The proposed duty of care in negligence
would extend the law. The Judge noted this could create significant hurdles for
Mr Smith in trying to persuade the Court that a new duty should be recognised.82

[81] Nevertheless, the Judge was reluctant to strike out the head of claim as he did
not want to foreclose on the possibility of the law of tort recognising a new duty which
might assist Mr Smith.83

[82] On appeal, the Court of Appeal unanimously dismissed Mr Smith’s appeal

against the striking out of the first two causes of action and allowed the cross-appeal,
striking out the “breach of duty” third cause of action.84

[83] For the Court, French J said that to recognise the proposed novel cause of
action would be contrary to the common law tradition which is one of incremental
development and not of radical change. A major departure from “fundamental
principles” such as that proposed would “subvert doctrinal coherence”.85

[84] Her Honour also said the magnitude of the climate change crisis could not be
appropriately or adequately addressed by common law tort claims pursued through the

79
At [101] n 88, citing Myers v Director of Public Prosecutions [1965] AC 1001 (HL) at 1021 per
Lord Reid.
80
At [102].
81
At [102].
82
At [102].
83
At [103].
84
Smith v Fonterra (CA), above n 18, at [129]–[130].
85
At [15].
courts. Her Honour said it was “quintessentially a matter that calls for a sophisticated
regulatory response at a national level supported by international co-ordination.”86

[85] French J then went on to examine the particular difficulties with an action in
negligence. The first was that no other claim had been recognised by the courts which
involved a scenario in which every person in New Zealand (or in the world) was to
varying degrees responsible for causing the harm and simultaneously the victim of the
harm.87 A subset of those responsible for the harm had been singled out as the
defendants on no principled basis.88 In addition, it would follow that every entity and
individual in New Zealand responsible for net emissions was committing the same tort
and so each was acting unlawfully. Presumably, they could be restrained from doing
so.89

[86] Her Honour noted the second fundamental conceptual problem arose from the
fact that each of the defendants would be required to produce emissions that were fully
offset.90 In order to determine claims of this kind, the Court would need to establish
a mechanism for assessing the adequacy of offsets in determining which of those a
defendant could claim as their own. To remain a lawful activity, it would need to
comply with certain conditions established by an appropriate regulatory framework to
be fashioned by the courts.91 This would be an assessment parallel to the statutory
regime and would be unworkable and beyond the capacity of the courts to develop.92
The Court commented that that was not the domain of tort law.93

[87] The third, and closely related point, was that there was not a remedy available
to the Court in civil private proceedings which could meaningfully address the harm
complained of.94 Damages were not appropriate and the Court took the view that
injunctive relief illustrated the ineffectiveness of an orthodox tort remedy.95

86
At [16].
87
At [18].
88
At [19].
89
At [19].
90
At [23].
91
At [24].
92
At [24].
93
At [24].
94
At [25].
95
At [25].
[88] The fourth reason identified by the Court of Appeal as being a hurdle to
recognition of the tort was that proceedings against subsets of emitters was an
inherently inefficient and ad hoc way of addressing climate change. It would result in
arbitrary outcomes and ongoing litigation that would last many years.96

[89] The Court of Appeal said for those reasons, among others, the issue of climate
change could not be effectively addressed through tort law.

[90] Her Honour went on to discuss the relevant international agreements and the
CCRA as amended. The CCC had been established and a process was provided for
the Commission to prepare a draft report on emissions, budgets and other matters, and
to engage in consultation on the draft and provide a final report to the Minister. The
Minister would then set the emissions budget.97 The Court went on to note the
substantial amendments brought in by the ETS Reform Act.98

[91] The Court said the claims made in the proceeding were not consistent with the
policy goals and the scheme of the legislation and, in particular, the goals of ensuring
this country’s response to climate change is effective, efficient and just.99 French J
also noted that striking out claims against commercial entities would not be a breach
of the Treaty, as the Treaty underlines the need for shared action and a common
approach paying attention to distributional effects, not a piecemeal one.100

[92] At the same time, her Honour noted:101

[35] All of that is not to suggest the courts have no meaningful role in
responding to the exigencies of climate change. They do in fact have a very
important role in supporting and enforcing the statutory scheme for climate
change responses and in holding the Government to account. Our point is
simply that it is not the role of the courts to develop a parallel common law
regulatory regime that is ineffective and inefficient, and likely to be socially
unjust.

96
At [27].
97
At [30].
98
At the time of hearing, the emissions trading regime was in operation and the Commission process
underway.
99
At [33].
100
At [34].
101
Emphasis added.
[93] The Court of Appeal went on to point out that similar claims to those of
Mr Smith had been advanced in the United States but not upheld for essentially the
same reasons, and in any case were not consistent with the fundamental conceptual
framework of the common law of tort.

[94] The Court of Appeal then examined in detail each of the causes of action in
that case. On the public nuisance claim, the Court of Appeal concluded that while it
did not agree with the reasons given for the strike out of that head of claim in the
High Court, nevertheless a claim of public nuisance was doomed to fail and should be
struck out due to a lack of a sufficient connection between the pleaded harm and the
respondents’ activity.

[95] The Court of Appeal then went on to consider the second cause of action in
negligence. The formulation of the duty was that the defendant companies owed to
Mr Smith (and persons like him) “a duty to take reasonable care not to operate its
business in a way which would cause him loss by contributing to dangerous
anthropogenic interference in the climate system”.102

[96] The duty of care as pleaded was a novel one which French J assessed against
the primary two-stage proximity and policy enquiry to decide whether it would be
“just, fair and reasonable to recognise the duty”.103 On the first part of the enquiry,
the Court concluded that there was no physical or temporal proximity and no direct
relationship or causal proximity, so it failed on reasonable foreseeability and
proximity.104 The Canadian formulations of a “material contribution to risk” test or a
“market share” liability approach were attractive at a superficial level. Mr Smith’s
claims had some similarity to the cases relied upon in as they also involved a single
causative agency (and multiple tortfeasors).105

[97] However, the Court of Appeal said the similarities ended there. In all the cited
cases, as in the public nuisance cases, the individual tortfeasors making up the group
were known or readily identifiable and all were before the Court as defendants. In

102
At [94].
103
At [96].
104
At [103].
105
At [108]–[110].
addition, any one or more of them was responsible for the harm.106 In contrast,
French J noted the class of possible contributors in that case was virtually limitless
and it could not be said that Mr Smith would not have been injured but for the
negligence of the named defendants viewed globally.107 The Court found the inability
to join all material contributors or a substantial share of contributors to the proceeding
was insuperable. It was not a trial issue, nor a pleading one, and could only be
overcome by the Court agreeing to abolish the relational underpinnings that are
fundamental to tort law.108 The Court concluded that it was not something it would
countenance, in the interests of preserving the coherent body of law.109

[98] The Court then looked at the second stage of the duty enquiry and concluded
that recognition of a duty would create a limitless class of potential plaintiffs as well
as potential defendants, leading to the defendants being embroiled in highly
problematic and complex contribution arguments on an unprecedented scale,
potentially involving overseas emitters as well as those based in New Zealand.110

[99] Another crucial factor the Court found telling against this duty was the
existence of international obligations and a comprehensive legislative framework.
The Court said:111

… To superimpose a common law duty of care is likely to cut across that

framework, not enhance or supplement it. Further for the reasons already
canvassed we consider the courts are in any event ill-equipped to address the
issues that the claim raises. Finally, there is the impact on the coherence of
the law generally.

[100] The Court of Appeal noted that all of those factors had been identified by the
Judge in the High Court. It agreed that the duty of care alleged by Mr Smith would
have wide effects on society and the law generally. The Court of Appeal found
Mr Smith would be unable to establish a duty of care in the terms alleged and that the
negligence claim was clearly untenable.112

106
At [111].
107
At [112].
108
At [113].
109
At [113].
110
At [116].
111
At [116].
112
At [117].
[101] The final cause of action was the new tort of duty. It had been formulated as a
duty owed by the defendants, cognisable at law, to cease contributing to damage to the
climate system, dangerous anthropogenic interference with the climate system, and
the adverse effects of climate change through their emission, production, supply or
exportation of greenhouse gases, coal or fossil fuels.113

[102] The Court of Appeal noted the remedies sought in respect of the new tort were
the same as sought in relation to the public nuisance and negligence claims.114 The
Judge had noted in the High Court that the pleading made no attempt to refer to
existing legal obligations, nor to incrementally identify a new obligation by analogy
to an existing principle.

[103] The Court of Appeal concluded that the High Court’s refusal to strike out the
third statement of claim and thereby preclude recognition of a new tortious “duty”
which makes corporates responsible to the public for their emissions as “untenable”
was irreconcilable with the reasoning in relation to the other two causes of action. 115
The Court said:

[124] We agree with the respondents. The bare assertion of the existence of
a new tort without any attempt to delineate its scope cannot of itself be
sufficient to withstand strike out on the basis of speculation that science may
evolve by the time the matter gets to trial. Yet that is the effect of the decision.
The purpose of the strike-out jurisdiction is to ensure that parties are not put
to unnecessary expense and precious court resources are not squandered by
claims that have no chance of success. It demands an element of rigour in the
interests of justice. The mere fact of novelty cannot be enough. Otherwise
any claimant would be able to proceed to trial simply by asserting a new tort.

[104] The Court of Appeal went on to say that the fundamental reasons “for not
extending tort law to a claim of the kind pleaded by Mr Smith apply equally to the
claims in nuisance and negligence and to the proposed new tort”.116 The Court
therefore allowed the cross-appeal and struck out the breach of duty cause of action.117

113
At [118].
114
At [119].
115
At [121] and [123].
116
At [125].
117
At [126].
Public law overtones

[105] In response to the Crown submission that the common law must develop
“incrementally”, Mr Smith says it develops “iteratively” not incrementally. He says
that on rare occasions, the facts of a case may require the Court to interpret a statutory
or common law principle in a way that reshapes the law.

[106] The plaintiff says that the courts must, on occasion, assess the actions of the
legislature because the core function of the Court is to uphold the rule of law by
determining disputes between parties according to the law. Since the legislature and
the executive are subject to the law, the courts must assess the performance of the
functions of both, and when they fail may be determined in the context of a dispute.

[107] Mr Smith also responds to the Attorney-General’s submission that there are
limits to the institutional competence of the courts to decide the type of claims that
Mr Smith has pleaded. He says his claim is not that the Court should assess legislation
or policy without reference to law. Rather, he pleads that the Crown has breached
specific legal duties.

[108] The plaintiff says the Attorney-General appears to subtly invoke the concept
of non-justiciability without doing so expressly. He comments that the courts have
moved away from the approach of saying that the subject matter alone may make a
matter inherently inapt for review so that such claims should be dismissed at a
preliminary stage without the Court hearing and determining the merits.

[109] Mr Smith says the modern approach is contextual — if the plaintiff pleads a
proper cause of action, the Court should hear and determine the merits, applying the
requisite onus and standard of proof in considering the evidence adduced in support.

[110] While the claim is framed as a novel private law cause of action with public
law overtones, it is strongly suggestive of seeking the Court’s intervention in its public
law supervisory jurisdiction. This would ordinarily involve a proceeding for judicial
review. However, the plaintiff has been clear that he does not seek a judicial review.
No doubt that would be problematic given the fact that the judicial review jurisdiction
is intended to be a “comparatively simple process of testing that public powers have
been exercised after a fair process, and in a manner which is both lawful and
reasonable.”118

[111] Mr Smith says the claim is neither a judicial review, nor is pleaded as a
negligent claim. Rather, it has elements of a private law as well as a public law claim.
To the extent that the claim is framed as a private law claim, it invokes tortious
principles of duty and breach with a strict liability element as framed by the plaintiff.

[112] Private law tort is bilateral in that there is a claimant and a respondent.
Liability depends on the balance struck between the respondent’s “‘freedom to’ act”
against the claimant’s “‘freedom from’ interference”.119

[113] Public concepts of duty and private law concepts of duty are informed by
different rationales.120 The difficulties of introducing public law principles into the
law of negligence have been articulated in various cases.121 The Court of Appeal
discussed the overlap between a duty of care in public law and private law duty
considerations in Attorney-General v Body Corporate 200200.122 William Young J for
the Court said:

Overlap with public law principles

[47] It has been suggested that public law considerations have a role to play
in determining whether a duty of care should be imposed. This emerges, for
instance, from the speech of Lord Hoffmann in Stovin v Wise at p 953:

“In summary, therefore, I think that the minimum preconditions for

basing a duty of care upon the existence of a statutory power, if it can
be done at all, are, first, that it would in the circumstances have been
irrational not to have exercised the power, so that there was in effect
a public law duty to act, and secondly, that there are exceptional
grounds for holding that the policy of the statute requires
compensation to be paid to persons who suffer loss because the power
was not exercised.”

Such approach would avoid conflict between the imposition of a duty of care
and the due performance by public bodies of their statutory function by

118
Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citing
BRZ Investments Ltd v Commissioner of Inland Revenue HC Te Whanganui-a-Tara | Wellington
CIV-2006-485-697, 7 December 2006.
119
Christine Beuermann “Tort Beyond the Forms of Action” in James Goudkamp and others (ed)
Taking Law Seriously (Hart Publishing, London, 2021) at 12–13.
120
Stephen Todd and others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 351.
121
See commentary at 351.
122
Attorney-General v Body Corporate 200200, above n 52, at [47].
 confining the imposition of a duty of care to circumstances in which the public
body has acted in a way which was not contemplated by the legislature.

[48] The public law approach, however, is problematical. It would

introduce into the law of negligence public law principles which have been
developed for different purposes. As well, it does not provide a convincing
explanation for the existing pattern of authorities. For instance, many
situations in which duties of care have been imposed (for example, in respect
of building inspectors or in the child welfare context) do not have a significant
public law overlay, whereas statutory powers which are most commonly
subject to judicial review tend to involve the sort of quasi-judicial or quasi-
legislative functions which are off limits in terms of the imposition of a duty
of care.

[49] On this point, we respectfully adopt the approach taken by McHugh J

in Crimmins at p 35:

“With great respect … I am unable to accept that determination of a

duty of care should depend on public law concepts. Public law
concepts of duty and private law notions of duty are informed by
differing rationales. On the current state of the authorities, the
negligent exercise of a statutory power is not immune from liability
simply because it was within power, nor is it actionable in negligence
simply because it is ultra vires.”

Reference can also be made to X (Minors) v Bedfordshire County Council at

p 736 per Lord Browne-Wilkinson, Barrett v Enfield London Borough Council
[2001] 1 AC 550 at pp 571 – 572 per Lord Slynn, and Bailey and Bowman
“Public Authority Negligence Revisited” [2000] 59 CLJ 85, p 113 and
following.

[114] In Attorney-General v Body Corporate 200200, the Body Corporate was

seeking to advance a claim against the Government-owned Building Industry
Authority (the BIA), based on a duty of care to exercise reasonable care in connection
with its statutory responsibilities as a statutory Crown Entity to provide advice and
undertake functions in relation to building controls and regulations. The relevant issue
related to buildings with monolithic cladding systems. The defects in the building
systems and their application had led to the widespread problem of leaky buildings
referred to as the leaky building crisis. There had been wide-ranging failures in the
building regulatory framework overseen by the BIA.

[115] In that case, the claimant said the BIA should have foreseen that adoption by
the building industry of defective building systems had the potential to cause
substantial economic loss. It would have been open to the BIA (in the sense of it being
within its functions provided in the relevant legislation) to investigate practices in the
industry and take steps which would have been effective to put an end to, or at least
limit, the practices which were producing the outcomes which did not conform to the
Building Code.123 The Court recognised that it was at least arguable that the BIA was
negligent as widespread leaky building problems had already been evident in overseas
jurisdictions.124 It may well be that the BIA could and should have acted more
promptly. However, the Court was satisfied there was no such duty.125

[116] While that decision dates back to 2007 and it was a separate government
agency established under a statute which faced the claim, nevertheless the comments
in relation to the public law overtones in a private law claim apply here. Indeed, the
fact that that case relied on specific statutory obligations may arguably has made it a
stronger case for a novel duty than the present case.

Approaches in other jurisdictions

[117] The parties also referred to a number of overseas decisions touching on similar
issues. The Crown pointed out that in Minister for the Environment (Cth) v Sharma,
the Full Court of the Federal Court of Australia recently struck out a claim against the
Commonwealth Minister for the Environment based on an alleged duty of care to
Australian children to protect them from the physical harm of climate change which
may occur if a coal mining licence approval was given to the extension of a coal
mine.126 The alleged duty was to take reasonable care to avoid causing personal injury
or death arising from emissions. However, the Court ruled that the Minister did not
owe such a duty of care to Australian children to protect them from the physical harm
from climate change which may arise in granting environmental approvals for fossil
fuel projects.127

[118] In so deciding, the Court applied the criteria against which novel claims were
evaluated in Australia, the “salient features” approach.128 The Court found that a duty
of this kind did not exist under Australian law for a number of reasons: it was
unsuitable for judicial determination as it involved “core government policy

123
At [58].
124
At [59].
125
At [60].
126
Minister for the Environment (Cth) v Sharma [2022] FCAFC 35, (2022) 400 ALR 203.
127
At [7] per Allsop CJ, [748] per Beach J and [757] per Wheelahan J.
128
At [121] and [207] per Allsop CJ.
considerations”;129 it would be inconsistent and incoherent with the legislation under
which the Minister was required to make a decision;130 it was not appropriate given
the Minister’s lack of control over the harm caused by climate change;131 it did not
arise in the conventional sense of the law of negligence given that questions of
“breach, causation and damage” were yet to arise;132 and when applied it would
overlap with New South Wales planning determinations and slide into political
considerations and it would require making a value judgment, which was not
appropriate for resolution by judicial determination.133

[119] The Court accepted that the threat of climate change to humankind existed but
its reasoning made it clear that there were limitations to the way in which the
Australian courts and the common law would respond to that threat.

[120] Relatedly, in the United Kingdom, in Plan B Earth v Prime Minister the
claimants sought by judicial review to challenge the lawfulness of the policies of the
United Kingdom Government relating to climate change.134 In particular, they alleged
that the Government had failed to “take practical and effective measures to align UK
greenhouse gas emissions to the Paris Temperature Limit”.135 The remedies sought
were a declaration that the Government’s failure to take practical and effective
measures to meet its climate change commitments under the Paris Agreement and
related legislation breached the claimants’ rights under the Human Rights Act 1998
(UK), and a mandatory order that the Government “implement, with appropriate
urgency, a legal and regulatory framework sufficient to meet those commitments.”136

[121] The High Court of England and Wales refused permission for judicial review
to be brought on a number of grounds. First, it said that unincorporated treaties such
as the Paris Agreement “do not form part of domestic law, and domestic courts cannot

129
At [7], [260] and [262] per Allsop CJ.
130
At [7], [267] and [272] per Allsop CJ.
131
At [7], [343], [344] and [346] per Allsop CJ.
132
At [358] per Allsop CJ.
133
At [868] per Wheelahan J.
134
Plan B Earth v Prime Minister [2021] EWHC 3469 (Admin).
135
At [3].
136
At [4].
determine whether the United Kingdom has violated its obligations under an
international treaty”.137

[122] Secondly, the claimants, even if their contentions had factual merit, had not
established at “face value” a breach of the statutory duties contained in the
Climate Change Act 2008 (UK) (the 2008 Act). This Act sets out statutory duties to
prepare proposals and policies and to lay a programme before Parliament. On their
face, the Court said they were not duties to achieve specific outcomes, save perhaps
to meet the carbon budgets which are set out under the Act.138 Therefore, any
argument that the Act had been breached did not get off the ground.139 The Court
commented that the 2008 Act created an independent expert body corporate to be
known as the Committee on Climate Change (the CCC) which had statutory duties to
advise the Secretary of State on the level of carbon budgets and how to achieve them.
It was required to provide an annual report on the progress towards meeting the carbon
budgets in the 2050 target and whether they were likely to be met. The CCC was
required to provide the national authorities with advice on request in connection with
their functions, the progress made towards meeting the statutory objectives, adaption
to climate change or any other matter relating to climate change. 140 The High Court
took the view that the criticism relied on by the claimants in the CCC reports
demonstrated that the 2008 Act was working as Parliament intended.141 It had
contemplated the periodic provision of reports and responses which would feed into
an evolution of policy “over many years while successive Governments grapple with
the vast and unprecedented challenge of climate change.”142 The Court concluded
there was nothing in the 2008 Act to suggest a critical report by the CCC should be a
foundation for the courts to declare that the Government’s policies were unlawful. It
therefore was not arguable that the claimants had identified a breach of the 2008 Act.143

[123] Under a further head, the grounds were based on the state’s positive obligations
under the Human Rights Act, which incorporated the European Convention on Human

137
At [25].
138
At [32].
139
At [34].
140
At [15].
141
At [36].
142
At [36].
143
At [37]–[38].
Rights (ECHR) into domestic British law. Of import were ECHR arts 2 and 8.144 The
positive obligations arising under art 2 were described as:145

(1) A duty to put in place an administrative framework designed to

provide effective deterrence against threats to the right to life. In the
context of road traffic in Tanase, that meant an obligation “to have in
place an appropriate set of preventive measures geared to ensuring
public safety and minimising the number of road accidents”.

(2) An obligation to take preventive operational measures to protect an

identified individual from a “real and immediate risk” to life posed by
another individual.

(3) An obligation to have in place an effective judicial system to

investigate deaths and provide appropriate redress for victims.

[124] The claimants relied on the first obligation above, described as a “framework”
duty. They pointed out that this was not subject to proving “real and immediate risk”
to an individual, which was a precondition for the second obligation, the operational
duty. The claimants said where there was a situation which presents a risk to life such
that it was necessary to have a practical and effective framework to deter that threat,
and where the existing framework was not effective and the Government was
“systematically failing to heed the expert advice of the CCC”, if the present situation
did not infringe the 2008 Act, that itself showed the Act was not an effective part of
the framework, leaving a gap in protection.146

[125] The claimants said the lack of an effective framework was demonstrated by the
Government-wide failure to take practical and effective measures to meet the
Paris Agreement targets and to adapt and prepare for the impacts of climate change.147
The claimants said that the failures posed a direct threat to life.148

[126] The Court found that the “insuperable problem” with the art 2 claim (and any
art 8 claim based on the physical or psychological effects of climate change on the
complainants) was that there was an administrative framework to combat the threats
posed by climate change in the form of the 2008 Act and all the policies and measures

144
At [39].
145
At [40].
146
At [41].
147
At [3] and [42].
148
At [43].
adopted under it.149 As Bourne J noted, the framework consisted of high level
economic and social measures involving complex and difficult judgements for which,
as the Supreme Court had recently explained in SC v Work and Pensions Secretary,
the State enjoys a wide margin of appreciation.150 While all circumstances must be
taken into account, the decision of the executive or legislature in such judgments
would “generally be respected unless it is manifestly without reasonable
foundation”.151 Bourne J noted this approach respected the constitutional separation
between the courts, the legislature and the executive and also reflected the fact the
Court was not well-equipped to form its own views on and assess the correctness of
the matters in question.152

[127] Bourne J said that the claimants had explained they were not trying to enforce
an unincorporated international treaty in the United Kingdom Court,153 but rather were
relying on the Paris Agreement as evidence of fact that a failure to limit the
temperature increase to 1.5 degrees Celsius above pre-industrial levels posed threat to
life, and further, that there was international consensus to that effect.154

[128] The Court said, nevertheless, the claimants were still using compliance with
the Paris Agreement temperature limit as the test for compliance with art 2 (and art 8).
This in effect meant that the Court was being asked to enforce the Paris Agreement,
which was contrary to the recent Supreme Court guidance in SC v Work and Pensions
Secretary.155 In any case, the claims invited the Court to venture beyond its sphere of
competence.156 In Bourne J’s view, the framework established by the 2008 Act should
be allowed to operate.157 The legislation contained provision for debate, which debate
occurs in a political context with democratic, rather than litigious, consequences.158

149
At [48].
150
At [50], citing SC v Work and Pensions Secretary [2021] UKSC 26, [2022] AC 223.
151
At [50], referring to SC v Work and Pensions Secretary, above n 150, at [158].
152
At [51].
153
At [52]. As Bourne J noted, such an attempt would fall foul of the Supreme Court’s ruling in
SC v Work and Pensions Secretary, above n 150.
154
At [52].
155
At [53], referring to SC v Work and Pensions Secretary, above n 150.
156
At [54].
157
At [54].
158
At [54].
[129] The Court then considered the decision of the Dutch Supreme Court in The
State of the Netherlands v Urgenda Foundation, in which the Dutch Supreme Court
directed the Dutch State to reduce greenhouse gases in the Netherlands by at least
25 per cent by the end of 2020 compared to 1990.159 In that case, the Dutch State had
lowered its target from 30 per cent to 20 per cent, and the Dutch Supreme Court based
its decision on the absence of an explanation from the State as to why the reduction
had been decreased to below original targets which were broadly supported
internationally and considered necessary. Bourne J noted he had not been given any
comparison with the constitutional laws in play or the differences between the powers
of the Dutch and English courts in such matters but noted that in Urgenda the
challenge was not to a framework of laws.160 He concluded he did not need to decide
whether a similar challenge would have been viable in his jurisdiction.161

[130] The Court in Plan B Earth also considered the decision of the Supreme Court
of Ireland in Friends of the Irish Environment v The Government of Ireland.162 In that
case, the claimants challenged a plan required to be adopted under the Climate Action
and Low Carbon Development Act 2015, for the purposes of enabling the State to
pursue and achieve the objective of transitioning to a low carbon climate, resilient and
environmentally sustainable economy by the end of 2050. The Supreme Court of
Ireland declared that the plan was ultra vires the Act because it did not contain a
sufficient level of specificity so that a reasonable person could judge whether it was
realistic and whether they agreed with the specified policy option.

[131] The Court in Plan B Earth noted that this case depended on the terms of the
Irish legislation.163 It was open to the courts there, as it would be in the
United Kingdom, to decide whether measures adopted by the Government were within
or without those terms.164 In Plan B Earth, any criticism on the generality of the
measures or lack of measures adopted by the Prime Minister did not make it a suitable

159
The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda
Foundation ECLI:NL:HR:2019:2007, No 19/00135 (Supreme Court of the Netherlands, 13
January 2020).
160
Plan B Earth v Prime Minister, above n 134, at [55].
161
At [55].
162
Friends of the Irish Environment v The Government of Ireland [2020] IESC 49.
163
Plan B Earth v Prime Minister, above n 134, at [57].
164
At [57].
case or an arguable case for judicial review. Nor was it arguable that a legal and
administrative framework had not been put in place in response to the threats posed
by climate change.165

[132] The Court then went on to state that art 8 of the ECHR, which requires respect
for private or family life, was not engaged. The complainants said the article
particularly affected them as they were young and had family members who lived
outside the United Kingdom in regions of the world that may be affected more
profoundly and/or sooner by climate change. This was rejected, first on the basis that
only in exceptional circumstances would the courts in the United Kingdom hold a local
public authority liable for breach of ECHR rights outside the United Kingdom.166
Secondly, a claim under art 8 depended on establishing a “significant impairment” on
a claimant’s ability to enjoy “family life”, breach of which could extend to relations
with more distant relatives only in unusual cases where they played a considerable
part in family life.167 The Court held that the difficulties of establishing the ties with
relations who live overseas was not arguable on the evidence.168 The Judge was also
not convinced that “a generalised future risk of harm to the global community is
arguably sufficient to establish victim status” in relation to art 2.

Analysis

[133] The plaintiff in this proceeding points to a comprehensive failure by

Government, both Parliament and the Executive. The plaintiff seeks that failure be
remedied by the intervention of the Court declaring that the Crown owes the duty
alleged, which it has breached and must take all necessary steps to protect the plaintiff
and his descendants from the adverse effects of climate change and reduce New
Zealand and Crown emissions to specified levels, as well as any such relief as the
Court determines appropriate.

[134] In effect, the plaintiff invites the Court to intervene in the parliamentary and
executive responses to climate change due to the inadequacy of those responses.

165
At [58].
166
At [66].
167
At [67].
168
At [71]–[74].
Mr Smith said it is the role of the Court to intervene because the Government’s
response opens the door to the annihilation of the democratic state, its inhabitants and
the social order through the effects of climate change should the steps proposed in the
pleading not be taken. The plaintiff said this is such a considerable threat to
New Zealand that basic common law rights will not exist given the absence of a
democratic state, New Zealanders or the social order.

[135] Mr Smith says this threatens those basic common law rights that lie so deep
the failure to act to avert the crisis takes the legislature and the executive outside their
constitutional powers in relation to their response to climate change. Therefore, the
Court must intervene as Cooke J said it would in such an extreme contravention of
basic common law rights.169

Policy considerations/deference

[136] However, the Crown submitted that there were limits to the institutional
competence of the courts to decide the claims that Mr Smith has pleaded. The Crown
submitted that the courts are “not the correct body, nor have the resources, to balance
competing social, economic, political and scientific considerations necessary to
determine policy – climate change or otherwise”. The Crown went on to note that the
courts retain supervisory jurisdiction using judicial review but they are not in a
position to review “polycentric decisions”.

[137] The Crown said that the issues under consideration are essentially political,
involved matters of policy and required multifaceted responses and expertise beyond
that of the court. That courts should not rely on considerations of “policy” and of
community welfare in determining whether a notional duty ought to exist.

[138] In general the reasons advanced against a Court analysing policy include that
Judges are not qualified or mandated to balance policy considerations as they lack
political legitimacy and do not have the required information. The argument is that
policy is most appropriately dealt with by a democratically elected parliament and not
by the judiciary. It is for the community to determine what is in its best interests and

169
See [60] above.
what policies it wishes for the law to reflect. A democratically elected legislature is,
the argument goes, the best way of achieving this.170

[139] The argument continues that Judges lack the technical competence to rely on
policy-based reasons as they do not have the necessary training nor educational
background to properly assess the legitimacy of policy-based concerns or know how
to implement them. On the other hand, Parliament employs and is able to rely on
specially trained policy advisors. Considerable effort and taxpayers’ money is
expended in setting up ministries containing expert policy analysts in order to ensure
that Ministers get the best advice possible.171 In addition, setting policy requires the
balancing of incommensurables. Judges may end up having to weigh considerations
of interpersonal justice against considerations of community welfare. These are
fundamentally different and as such incommensurable.172

[140] Mr Smith responded that the policy argument was a “strawman to knock
down”. He says he does not plead that the Court has general jurisdiction to assess
legislation or policy, without reference to the law. As he says, the claims are not
applications for judicial review but general proceedings. For instance, under the
NZBORA, the courts have developed a robust legal methodology for assessing policy
and legislation. This involves identifying the purposes of the law or policy, assessing
the reasonableness of the policy as a means of achieving that objective, and assessing
the overall proportionality of the impact of the law on policy of rights against the
importance of the objective.

[141] The trial would include viva voce evidence with cross-examination. Mr Smith
said it was well within the institutional competence of the courts to hear and consider
evidence, including expert evidence, and make findings of fact and apply the law to
those facts.

[142] Mr Smith says while the courts recognise some degree of deference, such
deference can only extend so far. The courts cannot abdicate their constitutional

170
At 153.
171
At 154.
172
At 158 and 162.
responsibility assessing the Crown’s conduct against the standards of rationality,
reasonableness and proportionality required under s 5 of the NZBORA. Further,
Mr Smith says the courts have moved away from the concept of “non-justiciability”
based on subject matter alone.173

[143] I accept that it is a matter of context as to how far the courts can go in
considering policy. Most of the policy arguments can be met by the response that the
courts often consider policy, particularly in relation to matters such as human rights.
The courts also often receive and consider expert evidence.

[144] However, the courts already take policy considerations into account.174 In
general terms they are not out of bounds for the courts. For example, in the evolution
of the “novel” duties, such as invasion of privacy, the courts have looked to social
policy, among other things, to ensure that the developing law reflects the requirements
and views of society.

[145] This was the view taken by this Court in Thomson v Minister for Climate
Change Issues.175 That case concerned decisions by the Minister for Climate Change
and Cabinet to set emission reduction targets under the CCRA to decide the Nationally
Determined Contribution (NDC) of a percentage reduction of greenhouse gas
emissions for Aotearoa/New Zealand under the Paris Agreement. Mallon J rejected
the Crown’s submission that the decisions were inherently “non-justiciable”, noting
that the subject matter may make a review ground more difficult to establish but it
should not rule out any review by the Court.176 She said:177

… The importance of the matter for all and each of us warrants some scrutiny
of the public power in addition to accountability through Parliament and the
General Elections. If a ground of review requires the Court to weigh public
policies that are more appropriately weighed by those elected by the
community it may be necessary for the Court to defer to the elected officials

173
Pointing to comments of Elias CJ and Arnold J in Ririnui v Landcorp Farming Ltd [2016] NZSC
62, [2016] 1 NZLR 1056 at [89] that courts have been more willing to review decisions in areas
previously regarded as inappropriate for review.
174
The debate about the appropriate role of policy-based reasoning is not new but, according to one
commentator, it has risen in prominence in recent years due to the increased influence of
rights-based theories of private law, most of which tend to reject the recent policy-based reasoning:
James Plunkett The Duty of Care in Negligence (Hart Publishing, Oxford, 2018) at 152.
175
Thomson v Minister for Climate Change Issues [2017] NZHC 733, [2018] 2 NZLR 160.
176
At [134].
177
At [134].
 on constitutional grounds, and because the Court may not be well placed to
undertake that weighing.178 …

[146] Overall, I am satisfied the policy and justiciability arguments raised by the
Crown are relevant but not determinative by themselves of whether or not a new duty
should be recognised.

[147] However, or other and additional reasons I consider this claim is untenable.

[148] There is no reference in these pleadings to any recognised legal obligations,

nor to incrementally identifying a new obligation by analogy to existing principles.
As noted above, the Court of Appeal in Smith v Fonterra identified those difficulties
as reasons for not recognising the proposed novel duties.179 In addition, the Court of
Appeal pointed out the magnitude of the climate change crisis could not be
appropriately addressed by common law tort claims. It was one that required a
sophisticated regulatory response at a national level supported by international
coordination.180

[149] The plaintiff seeks a wide-ranging role for the Court to monitor the
Government’s climate change measures. This was rejected as a role for the Court in
the Court of Appeal in Smith v Fonterra. A Court would not have the expertise nor
the democratic accountability to address the polycentric issue of climate change. As
the Court said in that case:

[26] In effect Mr Smith is seeking a court-designed and court-supervised

regulatory regime. The design of such a system requires a level of institutional
expertise, democratic participation and democratic accountability that cannot
be achieved through a court process. Courts do not have the expertise to
address the social, economic and distributional implications of different
regulatory design choices. The court process does not provide all affected
stakeholders with an opportunity to be heard, and have their views taken into
account. Climate change provides a striking example of a polycentric issue
that is not amenable to judicial resolution.181

178
Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 546.
179
Smith v Fonterra (CA), above n 18.
180
At [16].
181
Lon L Fuller “The Forms and Limits of Adjudication” (1978) 92 Harv L Rev 353. See also North
Shore City Council v Body Corporate 188529 [Sunset Terraces] [2010] NZCA 64, [2010] 3 NZLR
486 at [211]–[212] per Arnold J.
[150] The plaintiff in his oral submissions said that the relief sought could be severed
from the claims as it is up to the Court upon hearing the substantive claims to consider
the appropriate relief if the claims were to succeed.

[151] However as French J for the Court in Smith v Fonterra pointed out, the design
of any effective relief such as monitoring by the Court would require a “level of
institutional expertise, democratic participation and a democratic accountability that
cannot be achieved through a court process”.182

[152] That position has not changed. Climate change has been described as an
“intersystemic systemic risk” which “indubitably” involves “a high degree of
complexity and dynamism” as well as significant impact uncertainty and potentially
far-reaching legal and regulatory implications.183 As one commentator writes, the
benefit of early intervention for such intersystemic systemic risks as climate change
“underscores the need for integrated and joined-up decision making in risk
governance. Building responsiveness to the intersystemic and globalised dimensions
of risk is a challenge for risk regulation.”184 Unlike the ministries and other entities
within the executive, the courts have neither the technical capacity nor the political
mandate to co-ordinate in an integrated way to mitigate the effects of climate change.
In contrast, the government’s response to climate change is dynamic. The steps it
takes will depend on the environment and ongoing developments. There is already a
legislative framework in place designed to respond to the threats.

[153] The IPCC’s Sixth Assessment Report presents a detailed and critical evaluation
of the Government’s response. This indicates the CCC is doing exactly what it is
intended to do. It also illustrates the multi-factorial nature of managing climate change
risk, recognising that governmental responses will change over time.

[154] I therefore conclude that the first cause of action is untenable and should be
struck out.

182
Smith v Fonterra (CA), above n 18, at [26].
183
See for example Veerle Heyvaert “Governing Intersystemic Systemic Risks: Lessons from Covid
and Climate Change” (2022) 85 MLR 938 at 954, 958 and 964.
184
At 963.
Conclusion

[155] Mr Smith has not attempted to delineate the scope of the new duty, nor orientate
it within the taxonomy of current private law duties. The duty has public law overtones
in that it calls on overarching rights and values. The comments the Court of Appeal
made in Smith v Fonterra apply equally here, that “[t]he bare assertion of the existence
of a new tort without any attempt to delineate its scope cannot of itself be sufficient to
withstand strike out on the basis of speculation” alone.185

[156] The novel duty claim has been formulated without reference to existing case
law, nor has it developed incrementally from that case law. In the context of the
development of a novel duty, the iterative process of building, refining and testing a
preposition does not occur in isolation from an incremental development from existing
law. As noted, the lack of incremental development of the novel tort duty advanced
by Mr Smith in Smith v Fonterra was one of the reasons that the Court of Appeal
struck out that cause of action.

[157] While common law’s flexibility enables it to develop and adapt, the Court must
ensure there is balance between stability and change. Lord Bingham described this
balance as “preclud[ing] excessive innovation and adventurism by the judges. It is
one thing to alter the law’s direction of travel by a few degrees, quite another to set it
off in a different direction.”186

[158] As Winkelman, Glazebrook and France JJ, writing extra-judicially on

climate change and the law, put it:187

This is an area of high policy; where the need for a speedy response is balanced
in policy terms with preserving economic stability and legitimate policy
choices as how reduction targets may best be met.

185
At [124].
186
Lord Bingham “The Rule of Law” (2007) 66 CLJ 67 at 71 (footnotes omitted), cited in Gavin
Phillipson and Alexander Williams “Horizontal Effect and the Constitutional Constraint” (2011)
74 MLR 878 at 888.
187
Helen Winkelmann, Susan Glazebrook and Ellen France “Climate Change and the Law” (paper
presented to the Asia Pacific Judicial Colloquium, Singapore, 28–30 May 2019) at [137].
[159] The relief sought by Mr Smith includes declarations that the Crown owes the
duty alleged,188 that it has breached the duty and that the Crown will continue to be in
breach of the duty unless and until it takes all endeavours to protect the plaintiff and
his descendants from the adverse effects of climate change and reduce New Zealand
and Crown emissions to “less than half of their 2010 levels by 2030 at a linear rate”,
and to zero “by sooner than 2050 at a better than linear rate between 2030 and 2050”.
However, not only is the relief sought inconsistent with the policy goals of the
Government, but even if granted the declarations would be ineffective.189

[160] The IPCC’s earlier Working Group II report, Climate Change 2022: Impacts,
Adaptation and Vulnerability (the Working Group II Report) in its Summary for
Policymakers noted “[v]ulnerabilities and climate risks are often reduced through
carefully designed and implemented laws, policies, processes, and interventions that
address context specific inequities such as based on gender, ethnicity, disability, age,
location and income”.190

[161] The relief sought here seeks to constrain consideration of the competing issues
relating to climate change identified in the legislation. The targets for limiting
warming sought in the relief are inconsistent with and likely to undermine the
government’s response which, involves “[i]nstitutional frameworks, policies and
instruments that set clear adaptation goals and define responsibilities and
commitments and that are coordinated amongst actors and governance levels,
strengthen and sustain adaptation actions”.191

[162] As in Smith v Fonterra any relief, if it were available, would be an ineffective

and piecemeal way to deal with climate change issues. Every person in New Zealand
would be entitled to sue the Government under the novel duty. While not every emitter
would be a possible defendant, as would have been the case in Smith v Fonterra, every
Crown company and entity in which those organisations invested in or contracted with

188
To actively exercise its authority in a manner that protects current and future generations of Māori
from the adverse effects of climate change.
189
Smith v Fonterra (CA), above n 18, at [33].
190
Intergovernmental Panel on Climate Change Climate Change 2022: Impacts, Adaptation and
Vulnerability – Working Group II Contribution to the Sixth Assessment Report of the
Intergovernmental Panel on Climate Change (27 February 2022) at [SPM.C.5.6].
191
At [SPM.C.5.2].
would be the responsibility of the Crown and it could face a claim in relation to the
activities of an unknown number of such entities. In addition, a declaration such as
the one sought would cut across the governance structures of companies in which the
Crown has a shareholding and ignore the role of their boards and directors.

[163] Commentators have cautioned that regulatory interventions on such

intersystemic systemic risks as climate change must be carefully calibrated.192 The
formulation of a new private law duty, albeit with public law overtones, is not an
appropriate vehicle to address the multi-factorial issues raised by climate change.

[164] The novel duty claim as pleaded is untenable.

[165] I have considered whether it would be possible to amend the claim by allowing
it to be repleaded or further particulars directed. However, further particulars have
already been directed and provided, and these have not assisted. The plaintiff made
no submissions as to appropriate amendments or particulars that might make the claim
tenable. None are apparent.

[166] Accordingly, the novel duty claim is struck out.

Second cause of action — claims under the NZBORA

The claim

[167] As noted, Mr Smith brings claims for breach of two provisions of the
NZBORA: s 8 (deprivation of life) and s 20 (denial of the right to practise culture).

[168] Section 8 relates to a right that no one be deprived of life unless according to
law and consistent with the principles of fundamental justice.

[169] Mr Smith points to his life and those of his iwi and hapū and future generations
as the relevant lives.

192
Heyvaert, above n 184, at 967.
[170] The claim pleads that “life” includes the right to a “dignified and meaningful
life” and a “sustainable climate system”. The “deprivation” caused by the Crown is
that contributing to emissions will endanger lives in the future. It is pleaded the Crown
has also failed to put in place a framework to promote effective mitigation in terms of
the best science and failed in its international obligations. This failure, it is pleaded,
was not prescribed by law, nor was it reasonably justifiable for the purposes of s 5 of
the NZBORA.

[171] Mr Smith separately alleges a right, pleaded under s 20 of the NZBORA, that
Māori not be deprived of their culture by the effects of climate change.

[172] The relief sought is a declaration the Crown has acted and is acting in a manner
incompatible with ss 8 and 20 of the NZBORA and a declaration that the CCRA is
incompatible with those sections.

[173] A further declaration is sought that the RMECCAA is incompatible with ss 8

and 20 of the NZBORA. The plaintiff further seeks reporting orders that a further
hearing be allocated within one year of this judgment, and that the Crown file and
serve, at a date suitably in advance of the hearing, affidavit evidence updating the
plaintiff and the Court on the steps it has taken to bring itself into a position of
compliance with the NZBORA. The Court is to remain available to grant further relief
as it sees fit.

Section 8

[174] Mr Smith says the Crown has already deprived him of the right to life by failing
to reduce emissions, thereby contributing to climate change. Secondly, he says s 8
imposes positive duties on the Crown in relation to taking effective measures in
relation to climate change.

[175] Turning to the elements of the s 8 claim, Mr Smith says a purposive

interpretation of “deprivation of life” includes conduct which either causes death or
increases the risk of another person’s death.193 For this point, Mr Smith cites Seales v

193
Citing Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556; and see AR (India) v
Attorney-General [2021] NZCA 291 at [35].
Attorney-General.194 However, Seales v Attorney-General does not support a
proposition that the Crown guarantees a right not to be deprived of life from all causes.
Rather, s 8 guarantees that the State will not deprive a person of life other than on
grounds established by law.195

[176] The Court of Appeal in AR (India) v Attorney-General noted that the

New Zealand courts have taken a relatively narrow approach to the scope of s 8. This
reflects the intention of the drafters of the NZBORA.196

[177] The Court of Appeal in that case rejected the proposition that the right to life
included a right to dignity.197 Mr Smith sought to limit the application of the Court of
Appeal’s determination in that regard because, he said, the facts of AR (India)
indicated that the threats concerned were “vague”. However, this was a reference to
the facts supporting the appellant’s claim to likelihood of physical harm and as such
deprivation of life per se. It did not form a basis for the Court of Appeal rejecting a
reading into s 8 of a right to dignity.

[178] The Attorney-General pointed out that in Teitiota the United Nations Human
Rights Committee (HRC) ruled that climate change did not present a threat to life such
as would be covered by art 6 of the International Covenant on Civil and Political
Rights (ICCPR). That provided for the right to life and prohibition of arbitrary
deprivation of life which involved interference that was not prescribed by law, not
proportional to the end sought and not necessary in the particular circumstances of the
case.198

[179] The Tribunal in that case accepted that the right to life involves a positive
obligation on the part of the State to fulfil that right by taking programmatic steps to
provide for the basic necessities for life.199 The very specific threats pointed to by
Mr Teitiota, a national of Kiribati, were rejected by the Tribunal as being not sufficient

194
Seales v Attorney-General, above n 193.
195
At [167].
196
AR (India) v Attorney-General, above n 193, at [38].
197
At [47] and [57].
198
Human Rights Committee Views adopted by the Committee under article 5 (4) of the Optional
Protocol, concerning communication No. 2728/2016. UN Doc CCPR/C/127/D/2728/2016 (23
September 2020).
199
At [2.9].
to engage the right to life. Despite the fact that the effects of climate change on
Kiribati, which included loss of land and resulting land conflict, were high, these risks
did not establish a risk of “an imminent, or likely, risk of arbitrary deprivation of
life”.200 The Tribunal said the victim’s situation was not materially different to every
other resident of Kiribati.201 Even though the threat was current and included present
threats to health with a need to ration potable water, it found that the threats presented
by the effects of climate change were not sufficient to amount to a “reasonably
foreseeable threat of a health risk” or a threat of death or even a threat to dignity.202

[180] Mr Smith argued that Teitiota was concerned with the risk presented by the
actions of the Government of Kiribati, not of New Zealand, and that the argument in
that case was different. Here Mr Smith said the threat was posed by emissions, not
the type of specific risks faced by Mr Teitiota on Kiribati.

[181] However, the HRC decision related to the general effects of climate change.
The Committee noted the risks might be managed by intervening acts by the
Government, with the assistance of the international community and that a framework
was already in place in Kiribati.203 The risk was not sufficiently imminent to trigger
the protection of the right to life.

[182] In relation to causation, Mr Smith says the right to life might be engaged even
where no death occurs, but where there is an increased risk of death. He says it is
sufficient for the purposes of a strike out application.

[183] However, even a human rights forward-thinking approach, rather than the
backward analysis of causation which occurs in tort law, requires the identification of
a “real and identifiable risk”.204 The risk to life posed by climate change may be
identified in general terms but it is not sufficiently proximate to meet the test to be
described as “real”. As the HRC noted, climate change mitigation and management

200
At [9.6].
201
At [9.6].
202
At [9.8].
203
At [9.12].
204
Wallace No 2, above n 26, at [544]. .
of risks are likely to be managed by adaptive measures to reduce existing
vulnerabilities and build resilience to climate change-related harms over time.205

[184] For Mr Smith to succeed would require an interpretation of s 8 as including a

guarantee by the Crown that it will prevent the effects or manage the risks of climate
change in a prescribed manner or to “provide a stable climate system”. This points to
a future risk which is dependent on the effects of climate change not being managed
either now or in the future.

[185] Mr Smith further pointed to the decision of Ellis J in Wallace, holding that the
right not to be deprived of life necessarily implied the existence of certain positive
duties on the Crown.206 In that case, which involved an examination of the
investigation into the death of Mr Wallace, who was shot by police officers, the duty
was said to be a duty to conduct rights-compliant investigations into deaths for which
the Crown was responsible (investigative duties) and to plan and control potentially
dangerous operations in a way that reduced the risks to life to a reasonable minimum
(planning and control duties).207

[186] Mr Smith pointed out that Ellis J, in reaching these conclusions, held that:

(a) these positive duties were consistent with the purposes of the
NZBORA208 and the fundamental importance of the right to life,209
noting “[t]he prohibition on depriving others of life is toothless without
a parallel obligation to interrogate and test the circumstances in which
such a deprivation has occurred in the individual case”;210

(b) they were also consistent with the established scope of art 6(1) of the
ICCPR and the jurisprudence of the European Court of Human Rights

205
Human Rights Committee, above n 198, at [9.12].
206
Wallace No 2, above n 26.
207
At [550].
208
Including protecting and promoting rights.
209
At [382].
210
At [382].
 (ECtHR) under art 2 of the ECHR, which were fairly comparable to s 8
of the NZBORA;211 and

(c) the duties did not intrude on the Court’s constitutional function as the
duties allowed for a degree of deference to be afforded to the Crown
when assessing compliance.212

[187] Mr Smith also pointed to Ellis J’s obiter comments that the concept of planning
and control duties was “distinct from, although broadly connected to, the positive
protective duties that the ECHR has also found to be encompassed by art 2 [of the
ECHR]”.213

[188] The plaintiff further says that s 8 implies the positive protective duties
recognised by Ellis J being “a positive obligation to have legal and administrative
frameworks that are protective of life”.214 Mr Smith then drew on the legal duties as
recognised by the ECHR in its jurisprudence:

(a) the duties are only engaged where a member state knows or ought to
know of a real and immediate risk to life;

(b) the duties require the state to take positive steps to put in place legal
and administrative frameworks which address and reduce the specific
risk to a reasonable minimum; and

(c) in assessing reasonableness, the Court must consider whether the range
of reasonable responses being considered would impose a
“disproportionate burden” on the member state and must allow the
member state some margin of appreciation, but ultimately the task of
assessing compliance with the standard is for the Court.

211
At [281].
212
At [550] in principle and [639]–[642] in application.
213
At [517] and n 178.
214
At n 178, citing Keenan v United Kingdom [2001] ECHR 242; Öneryildiz v Turkey [2004] ECHR
657 (Grand Chamber); and Makaratzis v Greece [2004] ECHR 694 (Grand Chamber).
[189] Mr Smith said whether s 8 implies positive protective duties had arisen
tangentially in other claims. He gave the examples of Re J (An Infant) where the
High Court considered the scope of the rights to life of vulnerable children in the
context of a challenge to a decision to make “J” a ward of the Court. 215 The Court of
Appeal, upholding the decision in the High Court, observed that intervention by it to
protect the child was “not a denial of rights [of parents] by the state but the securing
of a right of a child.”216

[190] Mr Smith also referred to S v Midcentral District Health Board.217 In that case,
the Court considered a claim by a patient that the DHB had breached her right to life
by failing to take protective steps to protect her from risks from other patients. The
claim was struck out. The Court in that case noted s 8 is framed negatively. It refers
to a right not to be deprived of life, rather than a positive clause stating that the right
“shall be protected by law” as appears in art 6(1) of the ICCPR and art 2 of the ECHR.
The Attorney-General submitted that these were material differences which suggested
a narrower interpretation than was being advanced by Mr Smith. Mr Smith replied
that S’s claim was not struck out on the basis that s 8 did not impose protective duties
or was not engaged, therefore the case offered little guidance.

[191] Mr Smith pointed out that in Wallace Ellis J held the negative framing of s 8
was not material and that she had observed that the right to life was the most
fundamental of all human rights.218 Therefore a purposive interpretation of the right
would support the recognition of positive duties.219 Otherwise, Mr Smith argued, s 8
would be “toothless” if it prohibited the taking of life on one hand, but allowed the
Crown to ignore a “real and immediate risk to life” on the other. Mr Smith referred to
Öneryildiz v Turkey, which recognised that art 2 of the ECHR provides positive
protective duties,220 and suggested that by analogy, therefore, so should s 8 of the
NZBORA.

215
Re J (An Infant) [1995] 3 NZLR 73 (HC).
216
Re J (An Infant) [1996] 2 NZLR 134 (CA) at 146.
217
S v Midcentral District Health Board HC Te Whanganui-a-Tara | Wellington, CP237/02, 18 March
2003; and S v MidCentral District Health Board [2004] NZAR 342 (HC).
218
Wallace No 2, above n 26, at [277]–[281] and [600], citing with emphasis R v Director of Public
Prosecutions, ex p Manning [2001] QB 330, [2000] 3 WLR 463 at [33] per Lord Bingham.
219
At [384].
220
Öneryildiz v Turkey, above n 214, at [71], [89]–[90] and [118].
[192] However, Ellis J said her comments were limited to an obligation to investigate
a death that has occurred at the hands of a State actor.221 The Court indicated it was
not necessary to consider generally whether there was an obligation to plan and control
potentially dangerous operations in a way that minimises the risk to life,222 even in the
face of knowledge of “a real and identifiable risk to the life of an individual”.223

[193] In this case, as I have indicated, there is no “real and identifiable” risk to the
life of a specified individual or even a class of individuals. It is a general threat that
may eventuate as a result of the effects of climate change to all New Zealanders. It is
not analogous to a dangerous situation created by the police involving an identifiable
class of persons put at risk which called for a positive protective intervention as in
Wallace. In this case there is already a multifocal legislative and monitoring
framework in place managing the climate change risks to the whole population.

[194] Mr Smith also relied on Urgenda.224 I have already referred above to the
comments in Plan B Earth of Bourne J in the High Court of England and Wales on
Urgenda, and the difference between the Netherlands jurisdiction and that of the
United Kingdom.225 Similar comments apply here. There was no detailed analysis of
the differences between the Dutch and New Zealand jurisdictions nor the provisions
being applied. In addition, as the Crown pointed out, the Court in Urgenda relied on
arts 2 and 8 of the ECHR to find the Dutch State was required to “do its part” in
circumstances where the State had backed away from previous commitments. The
decision was based on a combined reading of arts 2 and 8 (being the expanded right
to life (protected law) and the right to respect for family and private law). The
NZBORA does not include a right such as that in art 8 (respect for private and family
light) which has been interpreted as including a right to protection from environmental
hazards.226 The combined effects of those rights in Urgenda allowed the Court to find

221
Wallace No 2, above n 26, at [384] and [517].
222
At [517].
223
At [544] and [546].
224
The State of the Netherlands v Urgenda Foundation, above n 159.
225
See above at [129].
226
European Court of Human Rights Guide on Article 8 of the European Convention on Human
Rights: Right to respect for private and family life, home and correspondence (31 August 2021).
environmental hazards to an entire region required protection to the citizens of that
area.227 The decision in Urgenda must be treated with caution.

[195] The claim under s 8 of the NZBORA is untenable for the reasons set out above.

Section 20

[196] Mr Smith says that there is a positive protective duty under s 20 engaged by
the emissions complained of within New Zealand and globally, given the impact of
these emissions on climate change and therefore the enjoyment of their cultural rights
by Māori.

[197] Section 20 of the NZBORA reads as follows:

20 Rights of minorities

A person who belongs to an ethnic, religious, or linguistic minority in New

Zealand shall not be denied the right, in community with other members of
that minority, to enjoy the culture, to profess and practise the religion, or to
use the language, of that minority.

[198] Mr Smith says that destruction or degradation of whenua represents an

existential threat to Māori identity and wellbeing. He also points to IPCC advice that
effective mitigation and adaptation “depends on targeted plans and policies aimed at
protecting the rights of vulnerable minority populations, including minority
indigenous populations”.

[199] Mr Smith says that for the right to enjoy his culture to be real, the Crown must
have positive obligations to take reasonable steps to respond to real and immediate
threats to the enjoyment of that right. Those threats include the impacts of climate
change. Therefore, there is a positive protective duty on the Crown.

[200] Mr Smith says the Crown has breached its obligations under s 20 in two main
ways. The first is that it has failed to reduce its own and national emissions. Secondly,
and specific to s 20, he says the Crown has failed to carry out any comprehensive
assessments of the impacts of climate change on the cultural rights of Māori and/or to

227
The State of the Netherlands v Urgenda Foundation, above n 159, at [5.3.1].
take these specific assessments into account when setting emission reduction targets
and emission budgets under the CCRA and otherwise. In addition, he says the Crown
has failed to put in place a specific adaption plan that ensures that Māori cultural rights
are actively protected from climate change. He says that the positive duties under s 20
require something to be done and these duties are reinforced by the guarantee of
rangatiratanga over taonga in art 2 of te Tiriti.

[201] The Crown says s 20 does not give rise to a positive obligation to prevent
interference. In addition, there must be a denial of a person’s right to practise their
culture in community with other members of the community. It says the right in s 20
is formulated in the negative and requires the Crown to refrain from removing the
rights of minorities and does not encompass positive duties.

[202] The Crown points to the Court of Appeal decision in Mendelssohn v

Attorney-General,228 which was an appeal from a strike out of a statement of claim.229
Insofar as the claim under s 20 of the NZBORA is concerned, it involved an allegation
that the claimant’s freedom of religion, protected under the NZBORA, required the
Attorney-General to take positive steps to protect that freedom.

[203] However, the Court of Appeal said that rather than imposing a positive duty on
the State, the provision affirmed freedoms of the individual which the State is not to
breach.230 As the Court found, s 20 is an obligation not to deny the ability of a
right-holder to enjoy their culture.231 The Crown says that this reflects the White Paper
which described the scope and attention of s 20 as being aimed at “oppressive
government action which would pursue a policy of cultural conformity by removing
the rights of minorities to enjoy those things which will go to the heart of their very
identity – their language, culture and religion”.232 The Court of Appeal speculated that
the State would only be under a positive obligation in “exceptional” circumstances,
for instance where the right has been targeted by private oppression or coercion.233

228
Mendelssohn v Attorney-General [1999] 2 NZLR 268 (CA) at [14]–[17].
229
At [20] and [24].
230
At [14].
231
At [14]–[17].
232
Department of Justice A Bill of Rights for New Zealand: A White Paper (Government Printer,
Wellington, 1985) at 87.
233
Mendelssohn v Attorney-General, above n 228, at [20] and [24].
[204] The Crown also referred to the observations of Professor Paul Rishworth,
writing on this issue, that there was overlap between what the right in s 20 seeks to
protect and the protections from Treaty jurisprudence and principles in New Zealand
as applied in the courts and Waitangi Tribunal.234

[205] The Crown points to art 27 of the ICCPR, which has incorporated similar
concepts to those contained in s 20 of the NZBORA.235 That article provides:

In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language.

[206] The HRC in its general comment on art 27 says that although the article is
expressed in negative terms, it nevertheless recognises the existence of a “right” and
requires it shall not be denied, which means that positive measures of protection are
required not only against the acts of the State party itself, whether through its
legislative, judicial or administrative authorities, but also against the acts of other
persons within the State party.236

[207] The Crown submits that art 27 does not entail a free-standing obligation to
promote and affirm rights to culture, religion and language. Rather, the HRC suggests
the obligation is to ensure minority rights are not denied and it is in the service of that
obligation that positive acts may be required by the State.237

[208] The Crown says the Government is taking steps to address climate change and
not denying the existence of Māori culture. There is no private oppression or coercion

234
Paul Rishworth “Minority Rights to Culture, Language and Religion for Indigenous Peoples: the
Contribution of a Bill of Rights” (paper presented to International Center for Law and Religion
Studies Australia Conference, Canberra, 13–15 August 2009) at 2.
235
International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976).
236
Office of the High Commissioner for Human Rights CCPR General Comment No 23: Art 27
(Rights of Minorities) UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) at [6.1].
237
Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, South
Melbourne, 2003) at 404.
and there are existing mechanisms and protections in place to respond in the Crown’s
current legislative and policy settings.238

[209] In addition, the Crown says there is no specific activity by it (either by an act
or an omission) that can be said to create any denial of the s 20 minority rights.
Mr Smith does not identify steps being taken, or actions arising, within the control of
the Government that are having a material impact on the plaintiff, his hapū, his iwi or
his right to culture.

[210] The Crown says climate change is caused by countless emitters and the
majority of these emitters are individuals and entities spread globally. The Crown says
it is unable to exercise any control over those emitting activities.

[211] The claim asserts that impacts have already occurred and are continuing to
occur. However, the primary concern is with future impacts. The claim does not
particularise any existing breach of the s 20 rights. The Crown says it is taking steps
to address climate change and to provide for impacts of climate change on Māori. To
that end, it has undertaken and continues to undertake consultation with Māori. These
measures exist alongside the domestic regulatory framework in the context of climate
change, which includes statutory provisions that provide for Māori. For instance,
ss 3A(ab), (ac) and 5H(d)(ii) of the CCRA provide for membership for Māori and iwi
representative organisations, and skills and expertise relevant to the Treaty and te ao
Māori on the CCC. The Crown points to provisions for consultation with iwi and
Māori to determine membership of the CCC and the content of emission reduction
plans,239 and protection of Māori interests, including the economic, social, health,
environmental and ecological and cultural effects of climate change on iwi and
Māori.240 The Crown says that while the defendant has said these measures are not
sufficient, they go to the question of balancing interests that the State is equipped to
determine. It says to find that the Crown has breached s 20 in these circumstances
would push the provision well beyond its available scope.

238
The Crown refers by way of example to the Treaty of Waitangi Act 1975 and the ability to lodge
a claim before the Waitangi Tribunal and the application of the Treaty in the Resource
Management Act.
239
Sections 3A(ad) and 5G(2)(b).
240
Sections 3A(ad), (ae), 5M(f) and 5ZT(iv).
[212] Mendelssohn is Court of Appeal authority for the proposition that s 20 does not
impose positive duties on the State except in exceptional cases.241 No specific
breaches are alleged here. Instead, the claim is based on a claim that an existing
legislative and policy framework is inadequate to protect Māori. There is no allegation
of opposition or coercion targeting Māori that fits within that exceptional category
here.

[213] This claim under s 20 of the NZBORAis untenable.

Conclusion

[214] The claims under both s 8 and s 20 of the NZBORA are untenable. Therefore,
the second cause of action is struck out.

Third cause of action — claims under te Tiriti o Waitangi | the Treaty of Waitangi

[215] The plaintiff invites the Court to recognise a claim separately based on a breach
of the Treaty.

[216] Mr Smith says there are two different bases for the third cause of action. The
first is that the Crown has breached the guarantees in the Treaty, and the second, that
it has breached legal duties arising from the Treaty. He notes the claims share some
similarities and three general points apply to both.

[217] First, the claims invite the Court to assess the Crown’s conduct for consistency
with the Treaty. Secondly, Mr Smith says the Treaty has become part of the domestic
constitutional law of New Zealand and on the pleaded agreed facts, the Crown’s duties
under the Treaty are actionable. Thirdly, he argues that the statutory jurisdiction of the
Waitangi Tribunal to enquire into Treaty grievances under the Treaty of Waitangi
Act 1975 does not bar common law claims against the Crown in relation to the Treaty.

[218] The relief sought is a declaration that the Crown has committed and is
committing a breach of art 2 of the Treaty and a declaration that the Crown has acted
and is acting in breach of the Treaty duty.

241
Mendelssohn v Attorney-General, above n 228, at [14] and [24].
[219] Mr Smith pointed to the fundamental constitutional significance of the Treaty,
noting that over time the Crown had publicly committed and recommitted itself to
complying with the specific obligations in the Treaty as constitutional norms or
standards. For instance, the Executive has developed policies which ensure Ministers
and Parliament give effect to the Treaty, including Guidelines for Engagement with
Māori, formal guidance for public servants published in 2019,242 and Legislation and
Design Advisory Committee Guidelines published in 2021,243 as well as establishing
and settling claims by Māori for breaches of the Treaty.244 In addition, the legislature
had enacted legislation requiring the Crown to act consistently with the Treaty and its
principles and established the Waitangi Tribunal with jurisdiction to report on historic
and current breaches of the Treaty and make, in the main, non-binding
recommendations. Mr Smith also pointed to legislation recognising the existence and
extent of Māori rights to land, fisheries and water, including rights under the Treaty.245

[220] Mr Smith addressed the case law, in particular Te Heuheu Tukino v Aotea
District Maori Land Board, which is long-standing authority that a claim to enforce
the Treaty directly is not separately actionable.246 He said things had moved on from
this.

[221] Mr Smith also pointed out that the courts had recognised that customary
interests in fisheries, land and water are capable of recognition and protection by the
common law.247 The courts had also recognised that the Treaty can be an aid for
interpretation of legislation even when not mentioned in the legislation;248 assessments
for compliance with the Treaty can be mandatory relevant considerations when
decision makers are exercising public powers;249 and, in an appropriate case, it may

242
Cabinet Office Circular “Treaty of Waitangi guidance” (21 October 2019) CO 18/4.
243
Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September
2021) at 28–32.
244
Te Arawhiti | Office of Treaty Settlements Ka tika ā muri, ka tika ā mua: He Tohutohu
Whakamārama i ngā Whakataunga Kerēme e pā ana ki te Tiriti ō Waitangi me ngā Whakaritenga
ki te Karauna | Healing the past, building a future: A Guide to Treaty of Waitangi Claims and
Negotiations with the Crown (2018).
245
Marine and Coastal Area (Takutai Moana) Act 2011.
246
Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).
247
Attorney-General v Ngati Apa [2003] 3 NZLR 343 (CA); New Zealand Māori Council v Attorney-
General [2013] NZSC 6, [2013] 3 NZLR 31; and Te Weehi v Regional Fisheries Officer [1986] 1
NZLR 680 (HC).
248
Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643.
249
Attorney-General v New Zealand Māori Council [1991] 2 NZLR 129 (CA).
be possible to argue the courts may declare conduct by the Crown to be inconsistent
with the Treaty.250 Mr Smith pointed out that all these developments had occurred
since the decision in Te Heuheu Tukino in 1941.

[222] In addition, Mr Smith submitted that the Crown-Māori relationship gave rise
to fiduciary obligations on the Crown which were engaged by the emission of
greenhouse gases and climate change. He said there has been no judicial authority
concerning whether the Treaty could give rise to fiduciary obligations on the Crown
directly. Any consideration to date, Mr Smith pointed out, had been obiter dicta and
some of the discussion had been supportive while other discussions had been more
doubtful or concluded that the Crown-Māori relationship was not fiduciary.251

[223] Mr Smith submitted that the threat represented by climate change was a threat
to the ongoing stewardship by Māori of their whenua and, indeed, their lives and very
existence. In Mr Smith’s case, it was a direct threat to his customary interest in
Mahinipua C Block. This was a breach of art 2 of the Treaty and its fiduciary
obligations by omission. The omission is a failure by the Crown to take any steps to
reduce its own emissions or national emissions. According to Mr Smith, the Crown
has failed to exercise its authority generally in the setting of the NDC and in the
exercise of any executive or legislative authority to require the assessment of impacts
of climate change on iwi or establish in mitigation an adaption plan specifically to
address impacts on iwi.

250
Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683; and Te Pou Matakana Ltd v
Attorney-General [2021] NZHC 2942, (2021) 13 HRNZ 22.
251
Mr Smith footnoted the following cases as relevant to this point: Te Runanga o Muriwhenua Inc
v Attorney-General [1990] 2 NZLR 641 (CA) at 655 per Cooke P, Te Runanganui o Te Ika Whenua
Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 24–25 per Cooke P; Paki v
Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [182]–[196] per McGrath J and
at [272]–[277] per William Young J; and Proprietors of Wakatū v Attorney-General [2017] NZSC
17, [2017] 1 NZLR 423 at [340]–[391] per Elias CJ. For more doubtful statements see
New Zealand Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318 at
[62]-[82], although note New Zealand Māori Council v Attorney-General SC 49/2007,
4 November 2008, recording (at [2](b)) that appeals against the Court of Appeal’s decision had
been withdrawn and that the parties had acknowledged that “the comments of the High Court and
Court of Appeal in their judgments, of 4 May 2007 and 2 July 2007 respectively, concerning the
Crown’s fiduciary obligations to Māori under the Treaty of Waitangi are obiter dicta”; and Paki v
Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125 at [102]–[104] per Hammond J for the
Court.
[224] Mr Smith further submitted that to the limited extent the breaches may have
arisen through legislation, it was open to the Court to declare that these legislative
actions amounted to breaches of the fiduciary duties, in that legislation was simply
another form of Crown action.

[225] The Crown pointed to the fact that the Privy Council decision in Te Heuheu
Tukino had been confirmed by more recent cases. The position remained that the
courts to date have recognised that breaches of the Treaty are justiciable but only if
associated with a claim based on a breach of some other actionable wrong. The Crown
accepted the Treaty was relevant in administrative law as an aid to statutory
interpretation in judicial review proceedings, as a relevant consideration and
potentially a basis for legitimate expectations.252 However, it was fundamental that
neither the executive nor the judiciary could declare international instruments as
domestic law without express action of the legislature and that remained the settled
position for the status of the Treaty in New Zealand’s legal system.253

[226] The Crown pointed out that there had been a deliberate removal of the
references to the Treaty from the NZBORA and that was significant. It said the
Waitangi Tribunal remained the appropriate forum for Treaty grievances, rather than
expanding the negative duty in s 20 of the NZBORA beyond its intended meaning.

[227] The Crown also submitted that while a declaration of inconsistency has now
been made wider under the NZBORA as a remedy for where legislation constituted an
unjustified infringement of rights, that was not applicable to the Treaty.254

252
Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [248], citing Huakina Development
Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 223; and Barton-Prescott v Director-
General of Social Welfare [1997] 3 NZLR 179 (HC) at 184. See also New Zealand Māori Council
v Attorney-General [1987] 1 NZLR 641 [Lands] at 672–673; and Te Pou Matakana Ltd v Attorney-
General [2021] NZHC 3319.
253
Referring to Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR
116 at [65], where parts of the claim for declaration is that particular decisions were made
inconsistently with the Treaty and its principles and rights affirmed in the United Nations
Declaration on the Rights of Indigenous Peoples was struck out as problematic in terms of the
principle of parliamentary non-interference.
254
Referring to the decision in Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at
[107].
[228] The Crown said that while the Treaty of Waitangi Act did not bar common law
claims against the Crown in relation to the Treaty, the climate change legislative
frameworks had been imposed in reliance on the common understanding of the
position of the Treaty in New Zealand that it was not directly enforceable.

[229] There is no New Zealand authority finding an enforceable fiduciary duty

arising between the Crown and Māori based solely on the Treaty relationship. In fact,
as the Crown pointed out, the authority is to the contrary. It noted that in
conceptualising the Treaty relationship, the courts have recognised its nature as one
that is fiduciary by analogy only.255 It also pointed to the comments of Elias CJ in
Proprietors of Wakatū v Attorney-General, namely that “[n]one of [the foregoing
analysis] is to suggest that there is a general fiduciary duty at large owed by the Crown
to Māori.”256

[230] The Crown submitted it remained necessary to apply the usual test for
establishing the existence of a fiduciary duty owed by one party to another.257 The
Crown also said it could not owe a fiduciary duty based on a treaty, particularly in a
situation as complex as climate change. It had duties to the public as a whole, even
when dealing with its Treaty partner.

[231] Mr Prebble, for the Crown, pointed to the comments of the Court of Appeal in
the 2007 New Zealand Māori Council v Attorney-General case as follows:258

… we see difficulties in applying the duty of fiduciary not to place itself in a

position of conflict interest to the Crown, which in addition to its duty to Māori
under the Treaty, has a duty to the population as a whole. The present case
illustrates another aspect to this problem: the Crown may find itself in a
position where its duty to one Māori claimant group conflicts with its duty to
another.

[232] Mr Smith’s approach to use the Treaty relationship to find a fiduciary duty
would lead to the Treaty being directly enforceable by a backdoor route. As
Mr Prebble noted, the Canadian authorities cited by Mr Smith in support of a fiduciary
obligation arising from the Treaty were taken from a different constitutional context,

255
Referring to Lands, above n 252, at [644].
256
Proprietors of Wakatū v Attorney-General, above n 251, at [390]–[391].
257
Referring to Dold v Murphy [2020] NZCA 313, [2021] 2 NZLR 834 at [52].
258
New Zealand Māori Council v Attorney-General, above n 251, at [337].
a feature of which was that Canada had entrenched treaty rights through s 35 of its
Constitution Act 1982, which was supreme law.259

[233] Given the wide-ranging nature of this claim and the complex nature of climate
change, any fiduciary obligations arising from the Crown would be owed to the public
in general. This alone makes the claim untenable.

[234] In addition the High Court has recently again recognised that the Treaty of
Waitangi does not give rise to free-standing obligations in and of itself, although it can
bear directly on the interpretation of a statute and can sustain judicial review for the
treatment of tikanga on the grounds of, for example, illegality, failure to consider a
relevant consideration or unreasonableness.260 Therefore, on the present state of the
law a stand-alone claim based on the Treaty would not succeed. However, it is
arguable that a claim based on the Treaty might be tenable if coupled with other claims.
There are also suggestions that it may be time for the decision in Te Heuheu Tukino to
be reconsidered. However, the difficulty with the claim as formulated here is that the
claim based on the Treaty rests in general terms on the breach of the general duty
advanced in the novel claim pleaded as the first cause of action. I have already found
that is untenable and, moreover, a claim that such a duty is owed to only a subsection
of New Zealanders, Māori, as opposed to the public in general, is a further reason that
it cannot be tenable. Therefore even if otherwise available a Treaty based claim would
be untenable.

[235] Accordingly, the claims under the Treaty and associated fiduciary obligations
in the third cause of action are untenable and are struck out.

Further submissions following the hearing of this case to decisions

[236] For completeness, I note counsel referred to the decisions of Ngāti Whātua
Ōrākei Trust v Attorney-General (No 4) and Muaūpoko Tribal Authority Inc v Minister

259
Mr Smith referred to the decision in Southwind v Canada 2021 SCC 28.
260
Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [68]. The comments
in that judgment indicate that the position may be revisited in an appropriate case.
for Environment decided after this hearing.261 I have referred to the former judgment
but I do not consider either case materially affects the matters at issue in this judgment.

Conclusion

[237] The statement of claim is struck out in its entirety.

Costs

[238] If the parties cannot agree on costs, submissions should be filed by the
applicant for costs within 10 days from the issue of the judgment and any response
within a further 10 days.

_______________________
Grice J
Solicitors:
Lee Salmon Long, Auckland
Crown Law, Wellington

261
Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), above n 260; and Muaūpoko Tribal
Authority Inc v Minister for Environment [2022] NZHC 883.