Smith v. Attorney-General

In March 2022, the plaintiff, a Māori elder, landowner, and tribal climate spokesperson, brought a claim against New Zealand’s government, alleging “inadequate action in relation to climate change”. He argued that the successive New Zealand governments had failed to adequately address the effects of climate change on New Zealand and its citizens, especially Māori. Specifically, the plaintiff argued that the government had failed to incorporate international obligations into domestic law, and to reduce the carbon emissions produced by government activities. Furthermore, although the government had introduced an emissions trading scheme, the plaintiff argued that the overall emissions cap was set too high and contained unjustifiable exemptions. The claim was based on three legal grounds: (1) rights protected under New Zealand’s statutory Bill of Rights Act (NZBORA), specifically the rights to life and culture; (2) obligations allegedly owed under the Treaty of Waitangi | Te Tiriti o Waitangi (including possible fiduciary duties); and (3) rights protected under New Zealand’s common law (including the public trust doctrine). First, the plaintiff alleged that the New Zealand government had breached the rights guaranteed under sections 8 and 20 of the New Zealand Bill of Rights Act 1990 (NZBORA), namely the rights to life and the rights of minorities. Second, the plaintiff alleged that the New Zealand government had failed to act in accordance with its obligations under te Tiriti o Waitangi | the Treaty of Waitangi (Te Tiriti), New Zealand’s founding document. The defendant applied for the claims to be struck out. Third, the plaintiff argued that the government owed (and had breached) a common law duty of care to New Zealanders 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.” In July 2022, the New Zealand’s High Court struck out all three claims as untenable. First, it found that the common law duty of care lacked reference to any recognized legal obligations, and went beyond mere incremental development of new obligations. Furthermore, it was beyond the democratic role and institutional competence of a Court to “monitor” the full scope of the government’s climate change response. Next, the Court found that the right to life claim was untenable because the plaintiff had not pointed to a “real and identifiable” risk to a specified individual. Furthermore, the minority rights claim had failed to particularize specific breaches, NZBORA s 20 does not impose positive duties on the State, and that the Crown had taken adequate steps to consider the interests of Māori. Finally, the Court found that Te Tiriti does not give rise to free-standing obligations, and that plaintiff’s claim was too wide-ranging to give rise to fiduciary Te Tiriti obligations because such obligations would untenably be owed to the public in general. Even if such duties were to be developed, they would need to rely on the common law duty advanced in the first cause of action, which the Court deemed untenable in any event. In 2024, New Zealand’s Court of Appeal upheld the High Court’s decision. The Court of Appeal accepted that it might be plausible that “an inadequate response” to climate change could be challenged under NZBORA. However, the Court found that Smith's particular claim was untenable. This was because it challenged a comprehensive piece of legislation, New Zealand’s Climate Change Response Act (CCRA), rather than specific decisions made under it. The framework itself “reflect[s] policy choices that are for Parliament,” not the courts. Secondly, the Court of Appeal found the plaintiff’s Treaty of Waitangi claims to be “clearly untenable.” It concluded that the present case was ill-suited to considering whether legislation could be declared inconsistent with the Treaty of Waitangi, partly because the challenged CCRA already integrated Treaty-related obligations. Likewise, the claimed fiduciary duty was too broad and general. Finally, the Court rejected the plaintiff’s common law claim. In addition to similar reasons for striking out the first two claims, the Court concluded that the public trust doctrine obligations alleged by the plaintiff were too broad and displaced by legislation. Note: The same plaintiff also brought a claim against New Zealand’s seven largest greenhouse gas emitters, based in tort law. That case, Smith v Fonterra, has a separate database entry.