Novel Tort May Never Get Its Day in Court
Novel Tort May Never Get Its Day in Court
Wednesday 8 July, 2026
The Climate Change Response (Tort Liability) Amendment Bill (the Bill) was introduced to Parliament on 29 June and had its First Reading under urgency on 30 June 2026. The Bill, if passed, would bar legal claims being lodged with the courts in tort law against any person for their role in causing, or contributing to, emissions-related climate change effects.
A key reason for the proposed bar appears to be the Coalition Government’s concern that, if legal proceedings relating to climate change are permitted to be considered by the courts, the proceedings will undermine the Climate Change Response Act 2002 (the Act) or potentially result in companies complying with the Act nevertheless facing liability in tort.
The Bill was prompted by a civil claim initiated by Mr Mike Smith, Smith v Fonterra Co-operative Group Ltd, against seven New Zealand companies carrying out activities that cause or contribute to emissions-related climate change effects. We understand that none of the seven companies is alleged to be in breach of the Act. Mr Smith alleged three causes of action:
(a) Public nuisance;
(b) Negligence; and
(c) A duty of care to cease materially contributing to damage to the climate system, dangerous anthropogenic interference with the climate system and the adverse effects of climate change.
Mr Smith considers that tikanga Māori should inform the reach and content of his causes of action. The third cause of action is a proposed, novel tort which has not been considered by the Courts before. Although the claims in the case were originally struck out by the High Court and Court of Appeal, the Supreme Court ruled that the claims be reinstated and proceed to trial for several reasons, including:
(a) Common law proceedings of this kind were not excluded by the Act;
(b) Where a claim is novel but at least founded on seriously arguable non-trivial harm, it should only be pre-emptively struck out where it is bound to fail; and
(c) A tort claim can be valid on its own without requiring the conduct complained of to be independently unlawful.
The Supreme Court clearly stated that, in declining to strike out the claim, it is not commenting on whether or not the claim will ultimately succeed.
The proceedings have been a topic of much interest, not only because of their novelty in New Zealand, but also because of the Ombudsman’s recent criticism of the Prime Minister’s Office in its handling of an Official Information Act request relating to the proceedings. Information that it should have released as part of a 2025 request for information only emerged earlier this year as part of the Smith v Fonterra proceedings.
Mr Smith has announced that he has filed an application to judicially review the introduction of the Bill and the Cabinet process and decision behind it.
A hearing on Mr Smith’s substantive claim has been set down for April 2027. If the Bill passes before the High Court issues a decision, then the proceedings will be stopped. It will also prevent any other cases of the same kind from proceeding.
The deadline for submissions on the Bill is 13 July 2026.
We will keep a watching brief on this matter as the Bill progresses through Parliament.
