Neil Sands
The constitutional implications of a bill that overrides the Supreme Court to block lawsuits against greenhouse gas emitters are so significant that Parliament must properly explain its reasoning or risk undermining public confidence in the legislative process, The Law Association’s Public & Administrative Law Committee has warned.
The committee described the Climate Change Responsibility (Tort Liability) Amendment Bill as “extraordinary” and said legislation touching on matters of such high public interest and political controversy may also prompt “a frontal challenge in the courts” unless there was a transparent explanation of why Parliament considers it necessary.
While not disputing the House’s power to pass the bill, the committee said it was “one of the more comprehensive legislative interventions in the relationship between statute, the common law and pending judicial proceedings considered by Parliament in recent years.
“The bill extends well beyond environmental regulation… On any analysis, this is far-reaching, extraordinary legislation,” it said in a submission to Parliament’s Justice Select Committee.
Justice Minister Paul Goldsmith unveiled the bill in May, saying it was designed to ensure that climate policy is set by Parliament, not the judiciary.
The bill prevents findings of liability in tort for climate change damage caused by greenhouse gas emissions. It applies to both current and future proceedings, effectively snuffing out a case before the Supreme Court brought by environmental activist Mike Smith against six large New Zealand businesses because of their greenhouse gas emissions.
The Law Association (TLANZ) committee said the ban on future climate tort proceedings also shuts down an entire avenue of potential common law evolution.
“Parliament proposes to determine prospectively that the common law is not to develop in this field, irrespective of future factual circumstances, scientific understanding, legal principle or judicial reasoning,” it said.
‘Far-reaching’ implications
Goldsmith says the bill clarifies who is responsible for climate change policy, but the committee said its constitutional implications went much further.
“It would fundamentally reshape one discrete area of private law by comprehensively excluding present and future tort liability relating to emissions-related climate change effects,” the submission said. “It would do so not only prospectively but also retrospectively, applying the statutory bar to historical activities and emissions, accrued causes of action and proceedings that remain before the courts.
“The bill would further exclude a broad range of judicial remedies and expressly identify litigation to which those changes will apply. On any analysis, this is far-reaching, extraordinary legislation.”
The committee said the wide-ranging implications made it important for Parliament to make its case on the public record about all constitutional aspects of the bill.
“The bill provides an opportunity for Parliament to demonstrate the strengths of New Zealand’s constitutional arrangements by openly engaging with legislation that raises important questions… Transparent constitutional reasoning strengthens both the legislation itself and public confidence in Parliament’s exercise of its sovereign legislative authority.
“It also enables parliamentarians to consider the wider implications of the Bill for the rule of law, in particular the rights of citizens to access independent courts, in the context of claims that may overlap wholly or in part with statutory climate regulation.”
Smith, a Northland iwi leader, last month announced he was challenging the validity of the government’s legislation to scuttle his lawsuit against Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy and BT Mining.
He has filed High Court proceedings alleging the government’s action amounts to procedural impropriety because it was reached after lobbying from the defendants, which was then hidden from the public record, and he was not consulted at all. It’s also alleged the decision was intended to disrupt an ongoing High Court process and was therefore made for an improper purpose.
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