Government moves to restrict climate change lawsuits before landmark trial

Tuesday, 12 May 2026

The activist seeking to prove that six New Zealand companies have breached a duty of care owed to him through their greenhouse gas emissions said the Government’s move to restrict people’s rights to sue companies - and the state - for climate change harm is “outrageous”.

“It wasn’t completely unexpected, we had heard there were rumours in Wellington that this course of action was being considered by the Government. But honestly I didn't think they would do it because, you know, it’s an abuse of parliamentary power and it’s a direct attack on the rule of law,” he told Stuff.

Mike Smith’s comments come after the Government announced plans on Tuesday to ban tort-based claims for damage or harm caused by climate change. Justice Minister Paul Goldsmith said the move would provide certainty for businesses and shore up investment confidence.

But he and Prime Minister Christopher Luxon both admitted it is also designed to bring an end to Smith’s ongoing case against Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy and BT Mining - which, in 2024, the Supreme Court ruled should go ahead.

It will also stop any cases being brought against the Government.

“The Government is quite literally moving the legal goalposts while the ball is already in play. It is an abuse. You could almost call it dictatorial,” Smith said.

Smith’s case, which was filed in 2019, argues that the six companies listed above have a duty of care to protect Kiwis against harms caused by climate change. After five years of the defendants attempting to strike out his claims, the Supreme Court found in 2024 that it had enough of a basis that it should be heard in trial.

That trial was set to start next year. With this law change, it won’t go ahead.

“Ongoing litigation in the High Court, where an applicant has brought civil claims against six major businesses… is creating uncertainty in business confidence and investment that the Government must address,” Goldsmith said.

“The Government will amend the Climate Change Response Act 2002 to prevent findings of liability for tort for climate change damage or harm caused by greenhouse gas emissions in both current and future proceedings.”

Torts are civil law actions that allow people to seek compensation if they can prove another person or entity has caused them harm. Smith’s case relied on arguments that the companies, through their emissions, had been negligent, created a public nuisance or breached a novel “climate system damage” tort.

He said the Government’s move to ban claims of this type is a sign that his case was strong.

“You know, when the Government and the powerful corporate interests who are being challenged feel this threatened then that's a good indication to me that they were fearful that this case had merits. And the fact that the Supreme Court had… ruled on that obviously made them very, very nervous,” he said.

One of the challenges of Smith’s case would have been establishing a line of causation between the individual companies’ emissions and the harm he had suffered due to climate change. The companies argued they had no relationship with Smith, and therefore no legal duties to him.

Whether or not he would have succeeded will now not be known.

Speaking to reporters on Tuesday, Goldsmith appeared to suggest this change goes against official advice.

“The justice officials always were in favour of letting the legislation go through the courts, but we weren’t in favour of having years of uncertainty,” he said.

Law change will cover the Government too

Asked to provide rationale for this announcement, Luxon said it’s the Government that needs to be held accountable for obligations around climate change, not businesses - which need certainty.

But the change applies to the Government as well, meaning anyone wanting to claim that the state has been negligent, or otherwise breached a duty of care owed to them in respect of climate change, will no longer be able to.

Individuals will still be able to sue the Government for failing to meet their statutory obligations under the Climate Change Response Act.

Overseas, various high-ranking courts have found that governments and businesses owe duties of care to individuals to reduce greenhouse gas emissions.

The first and most well-known case against a government was brought by a Dutch environmental group, the Urgenda Foundation. Urgenda argued that Dutch climate change policies were inadequate and breached duties of care in negligence and human rights law.

In 2015, the Hague District Court agreed. That decision was upheld in both the Hague Court of Appeal and the Dutch Supreme Court.

Critics react

The response to the Government’s announcement by critics has been swift and strong.

Labour’s climate change spokesperson, Deborah Russell, said it is a “backwards move”.

“There’s legislation and then there’s court action. They’re actually somewhat different things. I think companies do need to be held responsible for what they’re doing in terms of climate and just doing it through the Zero Carbon Act and so on is not enough,” she said.

Meanwhile, Green co-leader Chlöe Swarbrick called the move “shady cookery”.

“Luxon’s Government is using its final dying breaths to unravel New Zealanders’ right to hold big polluters accountable,” she said.

“While New Zealanders are demanding affordable power bills and decent jobs, Luxon’s Government has decided to prioritise protecting big polluters’ profits in the limited parliamentary time before the election.”

According to Environmental Law Initiative senior legal adviser Eliza Prestidge Oldfield, the move runs contrary to democracy and the rule of law.

“When you take away people’s ability to go to court, you take away a fundamental check on power. That should concern every New Zealander.

“Instead of letting the judiciary do its job and test the law, the Government is rewriting the rules to avoid scrutiny, on behalf of some of New Zealand’s wealthiest corporations.”