1. Introduction and Summary
1.1 This submission on the Climate Change Response (Tort Liability) Amendment Bill (the Bill) is made by The New Zealand Initiative (the Initiative), a Wellington-based think tank supported primarily by major New Zealand businesses. The Initiative undertakes research that contributes to the development of sound public policies in New Zealand, advocating for a competitive, open and dynamic economy and a free, prosperous, fair and cohesive society.
1.2 The views expressed in this submission are those of the author rather than the Initiative’s members. Two disclosures should be made at the outset. First, the Initiative’s membership includes some of the defendants in the proceedings in Smith v Fonterra Co-operative Group Ltd. Second, in August 2025 the Ministry of Justice consulted the author, in confidence, as part of its expert consultation on options for responding to emissions-related tort litigation. The Ministry has since released a note of that consultation.
1.3 The Initiative supports the Bill and recommends that it be enacted, for four reasons:
(a) The Bill restores the orthodox allocation of constitutional responsibility. Climate change policy involves precisely the social, economic and distributional trade-offs that our constitution assigns to Parliament, not to the courts.
(b) Parliament has already legislated comprehensively on greenhouse gas emissions through the Climate Change Response Act 2002 (the Act) and the Emissions Trading Scheme (ETS) it houses. Tort liability for emissions would not fill a gap in that framework. It would contradict the framework’s design.
(c) The Bill’s application to proceedings not finally determined is justified within the framework of the Legislation Guidelines themselves. No judgment on the merits exists in Smith v Fonterra. What the Bill forecloses is the opportunity to persuade a court to recognise a novel form of liability, not any vested right.
(d) The Bill’s breadth is the minimum required for it to be effective, while its careful preservation of traditional tort claims makes it considerably narrower than its critics describe.
1.4 The Initiative’s 2024 report, Who Makes the Law? Reining in the Supreme Court, examined the Supreme Court’s expanding role in matters of policy and identified targeted legislation reversing particular decisions
