Missing climate briefing note: Who knew what, and when?
This story was first published by RNZ
A former top Beehive staffer used his personal email account to conduct official business – meaning at least one document was not released under the Official Information Act when it should have been.
That document – which lobbied for changes to climate change legislation – was sent by Fonterra to Matt Burgess, who was the prime minister’s chief policy adviser at the time.
The revelation has drawn a stronger reaction from the Prime Minister than his response following reporting by RNZ last month the same document was given in hard copy format to the same staffer, which Christopher Luxon’s office had no record of.
Luxon now says it does not meet the standards expected of staff in the Beehive and undermines public trust and transparency.
The Leader of the Opposition says it “stinks to high heaven”.
The Department of Internal Affairs and the ombudsman are now both investigating the lack of records kept in regards to the document.
So what happened and who knew what, when? RNZ takes a look back at the timeline of events.
7 February 2024
The Supreme Court ruled iwi leader Mike Smith had the right to sue seven big polluters for their role in causing climate change.
The climate activist, of Ngāpuhi and Ngāti Kahu descent, argued the companies – including Fonterra, Z Energy and Genesis Energy – had a legal duty to him and others in communities who were being damaged by planet-heating gases.
The prime minister was asked his response and the suggested lines he was provided included that while the decision did not directly impact the Crown, it was “obviously a significant legal decision”.
“The government’s lawyers will be carefully considering the decision and potential implications.”
23 February 2024
The Justice Minister received advice from the Ministry of Justice (MOJ) on a possible legislative response to the Supreme’s Court decision.
The document – seen by RNZ – said Paul Goldsmith had asked for advice about whether MOJ should lead policy work on a possible legislative response to the decision of the Supreme Court in Smith v Fonterra.
The advice itself was withheld.
6 March 2024
Then Attorney-General Judith Collins wrote a letter titled “Options For Legislative Reform Following Smith V Fonterra 2024 NZSC 5” to various ministers.
RNZ has seen a partly redacted version of the letter where Collins wrote the Supreme Court in its decision “declined to strike out” Smith’s claims in tort relating to damage caused by climate change.
“Ministerial colleagues have raised concerns with me that the Supreme Court’s decision creates significant uncertainty for business, could deter investment in New Zealand, and could encourage further litigation on climate issues.”
She then proposed a solution, “I consider the option of a statutory bar on climate change tort proceedings to be the most straight-forward.”
‘On or around’ 26 June 2024
A member of Fonterra’s government affairs team printed out a “briefing note” and provided it to a staff member of the prime minister’s office.
The briefing note explained the rationale for proceeding with the introduction of legislation to prevent private litigation that sought to impose liability for climate change, including Smith’s case.
It stated the uncertainty associated with Smith’s case was creating “material sovereign risk and significant uncertainty for the international investment community in New Zealand”. It also said legislative intervention was “critical”.
It proposed a two-sentence legislative amendment to the Climate Change Response Act 2002 that would “resolve the uncertainty and risks posed by private law claims like Mr Smith’s”.
The document handed to a former Beehive staffer by Fonterra and Z Energy:
‘On or around’ 24 July 2024
A member of Z Energy’s government affairs team printed a copy of the same or similar document as above, and also provided it by hand to a staff member of the prime minister’s office.
12 March 2025
National MP Joseph Mooney submitted his member’s bill on the issue, the Climate Change (Restriction on Civil Proceedings) Bill.
The purpose of this bill, it stated, was to establish a clear a uniform policy “prohibiting tort claims arising from or related to climate change matters, including but not limited to alleged damages, injuries, or losses attributed to greenhouse gas emissions, global temperature changes, or environmental impacts associated therewith”.
Mooney told RNZ on Wednesday he had no interaction with Fonterra or Z Energy about his bill or anything relating to it prior to submitting it.
26 March 2025
Dr Matt Hall, the research and legal director for the Environmental Law Initiative (ELI) made an Official Information Act request to the Prime Minister’s office for: any documents concerning the Smith v Fonterra litigation; any documents concerning any response or proposed legislative or regulatory response to the Smith v Fonterra litigation; and information as to any discussions, meetings or conversations concerning any responses or proposals to respond to the Smith v Fonterra litigation.
21 May 2025
The prime minister’s office provided a response to ELI’s information request.
The final release included a limited set of heavily redacted emails and text messages.
The response did not include any mention or copies of the “briefing note”, nor did it include any information on the meeting (or any meeting) between Fonterra or Z Energy representatives and the prime minister’s office.
4 June 2025
Ministry of Justice officials recommended allowing the common law to develop to better inform the quality of any future reform.
This was part of advice prepared for the justice minister on options to address the “potential legal uncertainty created by climate litigation”.
The ministry considered two options: a statutory bar on claims relating to greenhouse gas emissions; and a requirement that the attorney-general approve public nuisance claims.
But ultimately, officials recommend that “no action be taken on the reform of the tort of public nuisance at this stage”.
“In our view, it would be premature to consider policy reform while relevant court proceedings are still underway.”
17 June 2025
The High Court dismissed an application from one of the defendants in Smith’s case – BT Mining – to have two issues tried separately and ahead of the main proceedings against the other defendants – an attempt to bring the case to an early end – under a particular rule of the High Court.
The judge noted the underlying purpose of that rule was to “expedite proceedings by limiting or defining the scope of the trial in advance or obviating the need for a trial altogether”.
Those two questions were: whether BT Mining could be held liable for an alleged public nuisance when the particular greenhouse gas emitting activity being complained about occurred overseas; and whether BT Mining could be held liable for the alleged effects of emissions when it was a supplier of coal only and had not itself carried out the emitting activity.
The ruling stated the application, among others, was declined.
18 June 2025
The justice minister instructed officials to develop policy options for a “statutory bar on emissions-related claims” and authorised “targeted, in confidence consultation with core agencies and tort law experts”.
27 March 2026
The deadline from the High Court for defendants in the Smith v Fonterra case to provide legal discovery of information such as documents relating to the defendants’ lobbying strategies.
The briefing document was not provided at this deadline.
21 April 2026
The regulatory impact statement noted that officials had not been able to identify clear evidence the current litigation, Smith v Fonterra, had affected business confidence due to the absence of consultation with stakeholders.
The Ministry of Justice’s preferred option of no statutory intervention remained.
12 May 2026
The justice minister announced the government would amend climate laws to prevent companies from being sued over damage caused by greenhouse gas emissions.
The change would prevent findings of liability in torts – a type of civil case where one person or entity claims another has caused them harm.
Goldsmith said it would apply to current and future cases – stopping the landmark case against Fonterra and five other major emitters in its tracks.
The law change would “remove the possible development of a new regime that contradicts the framework Parliament has already enacted to respond to climate change”.
The hearing, which was sent back to the High Court, was due to start in April 2027.
13 May 2026
Asked if any of the defendants had raised the issue of uncertainty for business with the government, Goldsmith told RNZ it had been “spoken of in a public sense”.
“I have not had direct correspondence from any of them.
“There’s been a wide-ranging concern around the uncertainty that’s been created by this.”
14 – 19 May 2026
Smith’s lawyers raised concerns with the defendants and then with the High Court about a lack of discovery of documents connected to the proposed law change.
Fonterra and Z Energy then discovered a copy of the briefing note dated from 2024 as a document created by the “defendants” for the “government” and asserted it was confidential.
Smith raised further concerns with the court about the discovery and sought orders allowing him to release the document publicly. This was also in light of PMO seemingly failing to disclose the document in response to Hall’s OIA request in 2025.
24 May 2026
RNZ reported the release – following a court order – of the previously undisclosed document provided to the prime minister’s office by Fonterra and Z Energy.
Smith accused the government of “a co-ordinated campaign of secret lobbying”.
A spokesperson for the prime minister said at the time his office was made aware of the meetings and briefing notes through the media, “and have no record of either on file”. He said Cabinet made its own decisions, and did so in this instance to ensure businesses had certainty.
26 May 2026
The ombudsman confirmed it was investigating a complaint from ELI regarding the “apparent withholding” of official information by the prime minister’s office.
ELI wrote to the ombudsman after it sought information in March 2025 about meetings, discussions or conversations regarding Smith’s case. ELI said it received “only limited material” in response.
Luxon also confirmed to parliament on Tuesday afternoon the person in his office who had received the briefing note had “left a while ago”.
The Greens co-leader Chlöe Swarbrick, who called for a debate on the issue at Parliament, said Luxon was “attempting to shrug this off, as if there is nothing to see here”.
She said it was in his interest for there to be an urgent, independent inquiry.
No government initiated inquiry was announced or signalled.
The complaint made by ELI to the Ombudsman:
27 May 2026
RNZ reported justice officials had advised the government not to intervene in the court case being taken against major emitters, according to offical documents.
The regulatory impact statement also noted that the problem definition – the government’s concern about the impact of Smith’s case on business and investor confidence – had not been “adequately tested”.
The Justice Minister’s proactive release of documents on the proposed law change:
RNZ also reported it was the Prime Minister’s former chief policy adviser Matt Burgess who received the document.
Questions were put to the prime minister in the House about his knowledge of the issue, and why he had not sought further information once the issue came to light.
28 May 2026
Smith wrote a letter –seen by RNZ – to the prime minister requesting an urgent meeting to discuss firstly the government’s proposed law change and secondly, his office’s handling of lobbying by defendants.
2 June 2026
RNZ reported the briefing document handed to Burgess was also sent by Fonterra to his private email account.
Luxon said he is taking it “very seriously”, and Labour leader Chris Hipkins said it “stinks to high heaven”.
Speaking to reporters on Tuesday afternoon, Luxon said it “has definitely not met the high standard that I have of staffers in the Beehive”.
“Having people transact and communicate through their private email doesn’t help build transparency or public trust.”
Luxon said Fonterra had made his office aware of the email, and it was now available on the company’s website.
Fonterra told RNZ was sent to the personal email address “at the staff member’s request” and acknowledged that was not appropriate, nor consistent with its own policies.
Smith told RNZ Luxon still had not fronted up on his level of knowledge surrounding the lobbying.
It was announced the Department of Internal Affairs (DIA) would now conduct a review of the former staffer’s IT account.
DIA told RNZ this was to ensure any material that may relate to the Smith v Fonterra case had been saved as part of the public record.
It is unclear yet when the DIA and Ombudsman would report back.
This story was first published on rnz.co.nz