IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-000384
[2022] NZHC 1693
BETWEEN
MICHAEL JOHN SMITH
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing:
29-30 March 2022
Further submissions: 10 May 2022
Appearances:
D M Salmon QC, M Heard, S J Humphrey for the Plaintiff J M Prebble and K F Gaskell for the Defendant
Judgment:
15 July 2022
JUDGMENT OF GRICE J
(Strike out Application/Further Particulars)
SMITH v THE ATTORNEY-GENERAL [2022] NZHC 1693 [15 July 2022]
Contents
Acronyms[1]
Introduction[2]
Background[8] The amended statement of claim[18]
First cause of action — breach of duty[22] Second cause of action — the New Zealand Bill of Rights Act 1990[33] Third cause of action — te Tiriti o Waitangi | the Treaty of Waitangi[34] Application to strike out/particulars[35]
Approach to strike out [38]
The Crown’s position[41]
First cause of action — breach of duty[52] Nature of the claim[52]
The duty[55] Development of novel duties[62] Previous climate change claims[76]
Public law overtones[105]
Approaches in other jurisdictions[117]
Analysis[133]
Policy considerations/deference[136]
Conclusion[155]
Second cause of action — claims under the NZBORA [167]
The claim[167]
Section 8[174]
Section 20[196]
Conclusion[214]
Third cause of action — claims under te Tiriti o Waitangi | the Treaty of Waitangi [215]
Further submissions following the hearing of this case to decisions[236] Conclusion[237]
COPConference of the Parties under the UNFCCC and Annual Meeting
ECHR European Convention on Human Rights ECHR European Court of Human Rights ETS Emissions Trading Scheme HRC Human Rights Committee
ICCPR International Convention on Civil and Political Rights IPCC Intergovernmental Panel on Climate Change
NAP National Adaption Plan NCCRA National Climate Change Risk Assessment
NDC Nationally Determined Contribution NZBORA New Zealand Bill of Rights Act 1990 RMA Resource Management Act 1991
RMECCAAResource Management (Energy and Climate Change) Amendment Act 2004
UNDRIPUnited Nations Declaration on the Rights of Indigenous People
UNFCCC United Nations Framework Convention on Climate Change Zero Carbon Act Climate Change (Zero Carbon) Amendment Act 2019
Introduction
[2] This is an application to strike out the plaintiff’s claim and, in the alternative, for further particulars.
[3] The claims are against the government represented by the Attorney-General alleging various failures to act more quickly to mitigate or avert climate change in New Zealand. They claim that the Government has taken no or inadequate climate change mitigation measures since it had become aware of the causes and effects of climate change down to the present.
[4] The breaches of the Government’s obligations are pleaded under various heads. The essential allegation is that the effects of climate change on New Zealand and its citizens, particularly Māori, have not been properly addressed by successive governments and the present legislative and policy response is inadequate given the catastrophic consequences wrought by climate change.
[5] The first statement of claim pleaded only one cause of action based on breach of duty. This was formulated as a new legal obligation.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Smith v Attorney-General [2022] NZHC 1693
Case
[2022] NZHC 1693
Decision Date
CaseChat Overview and Summary
The case of Smith v Attorney-General involved an application by the Attorney-General to strike out a claim brought by Mr Smith against the Crown. The claim alleged various failures of the Government to mitigate or avert climate change in New Zealand. The court was required to decide whether the claim disclosed a reasonably arguable cause of action. The court considered the nature of the duty pleaded, the development of novel duties in the law, and previous climate change claims. The court also considered the policy considerations and the appropriateness of the common law addressing climate change. The court found that the claim was not consistent with the policy goals and scheme of the legislation, and that the common law was not the appropriate forum to address the issue of climate change. The court concluded that the claim was untenable and struck it out in its entirety.