New Zealand is preventing climate justice by changing the rules at half time
Ahead of Mike Smith’s landmark case against New Zealand’s highest greenhouse gas emitters, new legislation may prevent any justice before a word is spoken
Published 25 May 2026
For the last few years, Māori leader Mike Smith has sought to take several of New Zealand’s largest companies, including the dairy giant Fonterra, to court over their contributions to climate change through greenhouse gas emissions.
For Smith and many others, climate harms aren’t hypothetical and vague future threats – they are causing real, tangible harm right now.
Smith has argued that these companies have harmed his property and cultural interests in Wainui Bay in New Zealand’s North Island.
As Smith details in his court complaint, rising ocean levels and increasing temperatures are impacting fisheries and important cultural sites are increasingly flooded.
He argues that the companies have violated longstanding tort law principles of public nuisance and negligence – that by emitting large amounts of greenhouse gases, they have committed a legal wrong by causing him harm and should remedy that harm by reducing their emissions.
In 2024, New Zealand’s highest court agreed that he had a case. In a unanimous decision, the justices cleared the way for Smith to have his day in court in April 2027.
And now, before that day has come, the New Zealand government announced it will legislate to stop any current or future court action against companies contributing to climate change. And it's clear that these companies have spent the last two years lobbying for this law change.
Nowhere else to go
The proposed legislation would prevent tort law from being used to sue companies for climate change or harm caused by greenhouse gas emissions.
Paul Goldsmith, New Zealand’s Minister of Justice, claimed that the legislation would bring greater “legal clarity and certainty” and that tort law claims like Mike Smith’s are “not well-suited to respond to a problem like climate change, which involves a range of complex environmental, economic and social factors”.
To an extent, the Minister has a point. Climate change is indeed complex, and courts may not always be the best place to solve such problems. But removing the right to sue is an extraordinary and unhelpful step.
It leaves people like Mr Smith with nowhere else to go. It takes away the only forum for people to receive justice for climate-related harms.
The right to sue should only be taken away when there is a clear alternative path.
For instance, in the 1970s, New Zealand restricted the right to sue in cases of personal injury. But crucially, the government made sure that New Zealanders could still receive compensation for their personal injuries.
It established the Accident Compensation Corporation (ACC), funded in large part by employers and road users.
The proposed climate legislation does not provide any alternative forum.
The government claims that companies will still have to meet their obligations under New Zealand’s emissions trading scheme. But that scheme is reported to be chronically underinclusive and ineffective.
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Undermining tort law
The proposed legislation is a knee-jerk overreaction and interferes with the rule of law.
The common law of torts evolves slowly over time, responding to contemporary challenges. Tort law asks: Did someone’s conduct wrongfully harm you, and how can that harm be addressed?
Put simply, tort law, the law of civil wrongs, regulates how private individuals should treat one another.
These are longstanding principles, but are frequently applied to novel situations.
In the 20th century, courts addressed new issues, including mass-produced products and factory pollution. In the 21st century, tort law is evolving to meet new challenges: online harm, artificial intelligence and climate change.
We don’t yet know exactly how New Zealand courts will respond to Mr Smith’s claim when his time comes next year – nor do we know the criteria through which large companies might be liable for their greenhouse gas emissions.
If this legislation passes, we will never know.
The Minister argues the legislation will promote legal certainty, but I would argue it actually undermines it.
Retrospective legislation – a law that changes the legal status of things that happened before the law was enacted – is widely frowned upon and for good reason.
It is a not-so-subtle threat that tells people like Mike Smith that even when the Supreme Court says they have a tenable case, Parliament can remove their right to sue at any time.
Even when they are in the middle of preparing for a trial.
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Undermining good government
It’s even more concerning is when the powerful companies being sued are quietly trying to make the case go away.
Two of the companies in this case have been talking to the government about a law change for at least two years.
The proposed law and rationale are very similar to a proposal given to the government in 2024, which was made public shortly after the Minister’s announcement.
The New Zealand government didn’t reveal that proposal when it was asked about it and the companies released information about their lobbying only after the Minister’s announcement, and only because a high court judge told them to.
Companies shouldn’t be able to avoid liability through backroom lobbying. If the law is going to be changed, it should be through transparent public debate.
Who pays?
Finally, the legislation is bad long-term policymaking. Part of tort law’s role is to spread responsibility and costs across society.
The government cannot legislate away the cost of climate-related harm: it is real, it is here, and someone will have to pay for it.
Suits like Mr Smith’s invite the courts to consider the role that high-emitting companies have in meeting those costs, given that their past and ongoing greenhouse gas emissions are a key cause of the problem.
If these suits can’t go ahead and companies aren’t required to contribute, private individuals will be left to pay. People will turn to their insurers and the government.
But as the costs of climate change rise, insurers will be unable to provide extensive coverage, future governments will bear a growing tab, and we’ll be left with legislation that prevents those costs from being shared with high-emitting companies.
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A dangerous precedent
While the government may think it is doing the right thing by shielding companies like Fonterra from litigation, it is only leaving the cost to taxpayers.
It’s not the first time this New Zealand government has legislated retrospectively, changing the rules of the game at halftime. In one case, the government ultimately backed down.
Other countries are also considering proposals to limit access to courts for climate-related suits.
At least one US state has already enacted a similar law and now New Zealand’s move sets a dangerous precedent and reflects a failure of justice.
Rather than legislating to protect some of New Zealand’s biggest companies, Parliament should instead reject this shortsighted legislation and allow Mr Smith his day in court.