‘Constitutionally abhorrent’: Expert reveals advice to government on climate law change

A legal expert who was consulted on the government’s law change that would prevent companies from being sued over climate change has released his advice publicly, explaining his opposition to the proposal at the time.

Associate Professor at Auckland Law School Vernon Rive told RNZ he suspects the main reason for the legislative move is to “remove the opportunity for corporate accountability” and likened stopping the case halfway through as being “constitutionally abhorrent”.

RNZ reported last month that a previously undisclosed briefing document had been provided to the prime minister’s office by Fonterra and Z Energy regarding climate activist Mike Smith’s case against those companies and other major emitters.

RNZ also reported officials had told the government not to intervene in the court case.

Rive posted on social media on Tuesday, saying he was contacted by Ministry of Justice (MOJ) officials in July 2025 to ask whether he’d be willing to discuss an idea under consideration then by ministers, “a statutory bar on greenhouse gas-related tort claims”.

“I met virtually with officials on 15 July 2025 and conveyed my strong views on the undesirability of the proposal.”

He followed up the meeting by sending officials a 14-page briefing paper. Rive said now the matter was in the public arena, “I’ve decided to release that paper”.

The paper started by outlining the ministry’s introduction to the consultation, then Rive stated his overall stance of opposition to the proposal.

“I don’t want to belabour this, but I should just reiterate my opposition to a legislative bar on existing or future tort proceedings relating to the effects of greenhouse gas emissions.”

Rive also said a careful assessment of the likely outcome of the case was needed before deciding to intervene legislatively.

“The outcome of any litigation is unpredictable. At this stage, none of us can be sure what evidence and arguments will be presented, how they will be responded to, how the trial judge or judges will assess them, or what relief, if any, might be granted.

“However, in my view-and I believe in the view of many informed legal commentators-the prospects of injunctive relief that would create a parallel judicial regulatory framework requiring the corporate defendants to achieve quantified emissions reductions are very low.”

He also pointed to the “corporate defendants and others in similar positions” having argued “and will continue to argue” that the case should be stopped because it’s “inconceivable that the court might create a parallel regulatory regime alongside” that in the Climate Change Response Act.

“I regard this is a straw figure argument,” Rive wrote in bold font.

“It’s unlikely that a judicial regulatory regime will be created. But in the event that this occurs, there is always the option of a targeted legislative response.”

He said the best way to proceed would be to let the case play out, and that Parliament would always be able to respond legislatively once the outcome of the case was known.

“That would be far less constitutionally abhorrent than stopping a case halfway through, with all of the rights and rule of law issues attendant on an interference with live court proceedings.”

Rive also said the move was inconsistent with the Regulatory Standards Bill (RSB), which proposed that “all future legislation be certified against, and courts able to declare inconsistency with, a set of “principles of responsible regulation”.”

“A statute neutralising Smith v Fonterra would collide with at least four of those principles” he said:

• Rule of law / no retrospectivity. The RSB requires that legislation “should not adversely affect rights and liberties, or impose obligations, retrospectively”.
• Role of the courts. The RSB insists legislation must “preserve the courts” role of authoritatively determining the meaning of legislation and of resolving issues of legal right and liability by application of law, not political discretion.
• Liberties and property. The bill’s liberty principle prohibits undue diminutions of a person’s right to seek judicial vindication of interests in land or culture; its taking-of-property clause allows impairments only with justification and fair compensation.
• Good law-making and consultation. The RSB stresses that affected persons should be consulted and that legislation should be proportional and evidence-based. Rushing through an override to protect six emitters from judicial scrutiny would likely fail any “benefits outweigh costs” or consultation audit.

Rive then listed his responses to 13 questions provided by the MOJ, including “to what extent do current regulatory frameworks (e.g., the RMA 1991 or the Climate Change Response Act 2002[CCRA]) adequately provide alternative legal avenues for claimants?”.

Rive responded saying the CCRA provided “no effective legal avenues for claimants seeking to hold individual corporate emitters accountable for the consequences of their contributions to emissions”.

Another question asked, “How might a statutory bar on climate-related tort claims interact with Te Tiriti o Waitangi and Māori rights to legal redress and environmental protection?”

Rive said proper consultation should be sought with Māori, especially because there was now comprehensive evidence that Māori are disproportionately impacted by the effects of climate change.

“If a statutory bar were introduced, Mike Smith or other Māori would no longer have the ability to test in court whether the activities of a corporate emitter had breached their rights to be free from tortious interference.

“This would cut across both their common law rights and Treaty rights.”

Another question asked what the benefits might be for a statutory bar to either claimants or businesses “(ex. Avoiding costs of litigation)”.

Rive noted a statutory bar would avoid the further costs of litigation “in the short term for Smith v Fonterra, and in the longer term for any similar proceedings”.

“However, the more significant benefit for corporate defendants of a statutory bar on tort proceedings would not be financial, but rather immunity from accountability.

“They would avoid having to provide briefs of evidence explaining corporate strategies on emissions reductions, their assessments of contributions to climate change, and their ability to take steps to reduce emissions.”

He was also asked if he foresaw legal uncertainty arising from a statutory bar, to which he responded yes - in two ways.

“First, there is the potential for immediate post enactment litigation.

“Legal and policy issues in this climate change area are highly contentious. It is reasonable to expect litigation after the event to test provisions, but you should also consider the possibility of legal and political action before the event, such as an urgent application to the Waitangi Tribunal.”

As well, this type of step “could well prompt opposition parties to commit to immediately repealing it”.

“This is exactly the kind of back-and-forth law and policy that the Parliamentary Commissioner for the Environment has strongly discouraged.”

The Minister of Justice and the Ministry of Justice have been approached for comment.

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