judgment

Smith v. Attorney-General - judgment

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Litigation

Sabin

Sabin Litigation

decision

Smith v. Attorney-General - decision

Filing Year For Action

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.

On 19 December 2025, the Supreme Court granted leave to appeal the Court of Appeal's decision. 

Smith v. Attorney-General

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

This sector involves the wholesale and retail selling of goods.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

A subsidy is a direct or indirect payment to individuals or businesses, typically provided as a government cash payment or a specific tax reduction.

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

People with different national or cultural traditions from the dominant population

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

woman and genders outside of the gender binary

People whose health, both mental and physical, makes them more vulnerable to the effects of climate change

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

This sector involves activities to move goods and people, alongside the storage of products.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Smith v. Attorney-General - judgment

Target

Policy instrument

Risk

Impacted group

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance