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New Zealand

Smith v. Attorney-General

Jurisdiction: High Court of New Zealand

Side A: Smith (Individual)

Side B: Attorney-General (Government)

Core objectives: Whether New Zealand’s climate law framework violated common law duties, statutory rights, or te Tiriti o Waitangi | the Treaty of Waitangi.

In March 2022, the plaintiff, a Māori landowner and tribal climate spokesperson, argued that the successive New Zealand governments had failed to adequately address the effects of climate change on New Zealand and its citizens, especially Māori. Specifically, the plaintiff argued that the government had failed to incorporate international obligations into domestic law, and to reduce the carbon emissions produced by government activities. Furthermore, although the government had introduced an emissions trading scheme, the plaintiff argued that the overall emissions cap was set too high and contained unjustifiable exemptions.

The plaintiff advanced three causes of action. First, plaintiff argued that the government owed (and had breached) a common law duty of care owed to New Zealanders, to “take all necessary steps to reduce NZ emissions and to actively protect the plaintiff and his descendants from the adverse effects of climate change”. Secondly, plaintiff alleged that the New Zealand government had breached the rights guaranteed under sections 8 and 20 of the New Zealand Bill of Rights Act 1990 (NZBORA), namely the rights to life and the rights of minorities. Finally, the plaintiff alleged that the New Zealand government had failed to act in accordance with its obligations under te Tiriti o Waitangi | the Treaty of Waitangi (Te Tiriti), New Zealand’s founding document. The defendant applied for the claims to be struck out.

In July 2022, the Court struck out all three claims as untenable. First, it found that the common law duty of care lacked reference to any recognized legal obligations, and went beyond mere incremental development of new obligations. Furthermore, it was beyond the democratic role and institutional competence of a Court to “monitor” the full scope of the government’s climate change response. Next, the Court found that the right to life claim was untenable because the plaintiff had not pointed to a “real and identifiable” risk to a specified individual. Furthermore, the minority rights claim had failed to particularize specific breaches, NZBORA s 20 does not impose positive duties on the State, and that the Crown had taken adequate steps to consider the interests of Māori. Finally, the Court found that Te Tiriti does not give rise to free-standing obligations, and that plaintiff’s claim was too wide-ranging to give rise to fiduciary Te Tiriti obligations because such obligations would untenably be owed to the public in general. Even if such duties were to be developed, they would need to rely on the common law duty advanced in the first cause of action, which the Court deemed untenable in any event.

Case documents

from the Grantham Research Institute
from the Grantham Research Institute
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