Smith v Fonterra statutory bar: my briefing to officials
In July 2025, Ministry of Justice officials contacted me to ask whether I’d be willing to meet virtually to discuss what was then an idea under consideration by Ministers — a statutory bar on greenhouse gas-related tort claims. The immediate context for the proposal was — and is — the Smith v Fonterra case. But the statutory bar would prevent all future greenhouse gas-related tort claims in Aotearoa.
A description of the ‘targeted in-confidence’ consultation process is set out in documents proactively released (PDF) by the Ministry in May 2026. A memorandum to Hon Paul Goldsmith dated 3 September 2025 noted:
We contacted a number of legal experts in tort, environmental and public law...Of those contacted, 14 agreed to engage with us and are well regarded in their respective fields, bringing a combined experience in both private practice and academia.
A consultation document prepared by officials for the discussions explained that:
The Government want to retain business confidence to invest in important economic sectors in New Zealand. It is considering measures that include a statutory bar on greenhouse gas related tort claims. This is to ensure that the impact of climate change is dealt with through a state response due to the significant social, economic and environmental considerations. The Ministry of Justice is supporting the Minister with advice and policy options because the Ministry has portfolio responsibility for tort law.
The document set out 13 questions on which expert views were sought. I met virtually with officials on 15 July 2025 and conveyed my strong views on the undesirability of the proposal. I followed up the meeting by sending officials a 14-page paper. It was put together under urgency. It is not a polished academic piece, but it sets out my views on the ill-advisedness of the proposed statutory bar. Among other things, I said:
In my view, the best way to proceed would be to let the proceeding play out. It's always open to Parliament to respond legislatively once the outcome of the case is 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.
A summary of all of the responses from the experts consulted was prepared for the Minister. It is contained in an attachment to the 3 September 2025 memorandum, included in the proactively released materials. Officials provided further advice to the Minister in a briefing paper dated 1 October 2025, prepared with the benefit of input from the targeted consultation. That advice recommended:
...maintaining the status quo as it would provide the greatest confidence for businesses and safeguard our constitutional arrangements and justice system which underpin economic activity. Under the status quo, the Government would not take legislative action at this time in response to the Supreme Court's decision in Smith v Fonterra. Once the court issues its substantive decision, the Government will be better placed to assess the facts and reasoning, providing a more informed basis for any future reform if necessary.
As is now well known, Minister Goldsmith rejected the recommendations of officials. A Cabinet Minute records that on 29 April 2026, the Cabinet Social Outcomes Committee agreed to progress the statutory bar, to be applied retrospectively (including in relation to the Smith v Fonterra proceeding), with the intention of introducing a Climate Change Response Act (Tort Reform) Amendment Bill by July 2026.
Various parties (see, for example, here and here) have made requests under the Official Information Act 1982 for documents and materials relating to the 2025 consultations, as well as interactions between representatives of parties to the Smith v Fonterra litigation and Ministers in 2024. Some, but not all, of that material has been released. It appears likely that further material will be made publicly available. I've told officials that now the matter is in the public arena, I have no objection to my name, or details of my input, being made public.
I’ve decided to release my own briefing paper prepared for officials in July 2025. A number of its observations and recommendations are reflected in the (rejected) officials’ advice to the Minister. I think it is appropriate to make the document available in full, as debate continues on the government and Parliamentary response to the Smith v Fonterra case, and more generally, the role of tort law in relation to climate change in Aotearoa. My briefing can be downloaded at the link above, or viewed below.