Smith v Attorney-General
[2022] NZHC 1693
•15 July 2022
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]
Costs[238]
Acronyms
[1]
BIA Building Industry Authority
CCC Climate Change Commission
CCRA Climate Change Response Act 2002COPConference 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 CommitteeICCPR International Convention on Civil and Political Rights IPCC Intergovernmental Panel on Climate Change
NAP National Adaption Plan
NCCRA National Climate Change Risk AssessmentNDC 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. Following orders for further particulars made by Johnston AJ in May 2020,1 the plaintiff amended the claim to plead three causes of action. The breach of duty cause of action remained, but additional claims based on breaches of ss 8 and 20 of the New Zealand Bill of Rights Act 1990 (the NZBORA)2 and te Tiriti o Waitangi | the Treaty of Waitangi (te Tiriti or the Treaty) were added.3
[6] Further particulars were set out in the amended statement of claim following the Associate Judge’s determination. The Crown says these remain inadequate.
[7] The plaintiff says the claims should not be struck out and should be left to the trial Judge to determine the claim after hearing all the evidence.
1 Smith v Attorney-General [2020] NZHC 836.
2 A list of acronyms used in this judgment can be found in the front of this judgment.
3 There are two versions of te Tiriti o Waitangi | the Treaty of Waitangi, a Māori text (te Tiriti) and an English text (the Treaty). In this judgment, I use “the Treaty” as a generic term to capture both texts. However, it is widely accepted that te Tiriti, the Māori text, should be regarded as the primary source of the commitments made between the Crown and Māori in 1840 and I use “te Tiriti” where appropriate to reflect this accordingly.
Background
[8] Mr Smith is an elder of Ngāti Kahu descent and the climate change spokesman for the iwi. He chairs its forum and has customary interests in land and other resources situated in and around Mahinipua, Northland. Mr Smith pleads that climate change resulting from the release of greenhouse gases into the atmosphere from human activities will result in an additional warming to the Earth’s surface and atmosphere which will adversely affect natural ecosystems and humankind. He pleads that it is necessary to limit warming caused by climate change to 1.5 degrees Celsius to avoid dangerous anthropogenic interference with the climate system and to minimise the long-term and irreversible effects of climate change. He further pleads that the increasing adverse effects on humankind as climate change progresses has caused, and continues to cause, increases in temperature, loss of biodiversity and biomass, which result in risks to water and food security and increasing weather events. This, in turn, results in geopolitical instability and population displacement, adverse health consequences and resultant economic losses. These pose “[a]n unacceptable risk of social and economic collapse and mass loss of human life and civilisation”.
[9] Mr Smith further pleads that not later than June 1992 the Crown knew that continued greenhouse gas emissions would cause the climate change and consequent harm to the environment and human welfare. It knew that if deep cuts to greenhouse emissions were to be made globally, then developed nations such as New Zealand needed to take the lead on emissions reductions. New Zealand was a signatory to the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and Paris Agreement and incorporated obligations under these instruments into domestic law.4
[10] Mr Smith further pleads that some of New Zealand’s emissions are caused by activities of the Crown, including by its Crown entities and State enterprises. The emissions by the Crown have contributed to global warming and climate change and will continue to have adverse impacts.
4 Kyoto Protocol to the United Nations Framework Convention on Climate Change UNTS (opened for signature 16 March 1998, entered into force 16 February 2005); and Paris Agreement (signed 22 April 2016, entered into force 4 November 2016).
[11] Mr Smith says in his amended statement of claim that since the signing of the UNFCCC, the Crown has failed or refused to measure and monitor Crown emissions. Mr Smith says Māori communities will be disproportionately burdened by the adverse effects of climate change. Those communities’ interests in land and customary interest in resources will be irreparably damaged. Māori communities have already suffered disposition and displacement from their traditional lands. In addition, those communities suffer higher levels of poverty and more health issues than the general population. They reside in areas more likely to suffer loss or damage as a result of inundation and extreme weather events, as well as having greater reliance on reliable access to customary lands. Māori communities also face particular cultural vulnerabilities associated with loss of sites of cultural, historical, customary and spiritual significance.
[12] In particular, Mr Smith pleads he has an interest in Mahinipua C Block located at Mahinipua, north-east of Kaeo, an area which will suffer particular damage.
[13] There is no contest between the parties about the fact of climate change and, in general terms, its causes and effects. The Paris Agreement is a legally binding international treaty on climate change reached by the Conference of Parties (COP)5 adopted by New Zealand and 195 other countries on 12 December 2015 (effective 4 November 2016).6 Its goal is to limit global warming to well below 2, preferably to
1.5 celsius compared to pre-industrial levels. This goal was formulated in order to reach global peaking of greenhouse gas emissions as soon as possible to achieve a climate neutral world by mid-century.
[14] Shortly after the hearing the Intergovernmental Panel on Climate Change (IPCC) released the Working Group III contribution to its Sixth Assessment Report, entitled Climate Change 2022: Mitigation of Climate Change (the Working Group III Report).7 The IPCC comprises 195 member governments, all of whom approved the
5 Conference of the Parties under the United Nations Framework Convention on Climate Control (UNTCCC).
6 Paris Agreement, above n 4.
7 Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change
– Working Group III contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (4 April 2022) [Working Group III Report]. Counsel brought this to the Court’s attention.
Summary for Policymakers of the report.8 The Working Group III Report provides an updated global assessment of climate change mitigation progress and pledges, and examines the sources of global emissions. It also outlines developments in emission reduction mitigation efforts, assessing the impact of national climate pledges in relation to long-term emissions goals.
[15] The report documents the evolution of global science and policy since the previous report (the Fifth Assessment Report) and the three special reports of the Sixth Assessment cycle.9 It says the long-term temperature goal in the Paris Agreement will require accelerating decline to “net zero”, which is impossible without urgent and ambitious action at all scales.10 It notes the transition in specific systems can be gradual or can be rapid and disruptive. This depends on “existing physical capital, institutions, and social norms”.11 The report says that attention to and support for climate policies and low-carbon societal transitions has generally increased as the impacts have become more salient.12 As well as calls for accelerating emission reductions, the report notes the decline of global emissions due to the effects of the COVID-19 pandemic in 2020,13 and notes multiple low-carbon technologies have shown rapid progress enhancing the feasibility of rapid energy transactions.14
[16] The Working Group III Report was released with a statement by the United Nations Secretary-General António Guterres on 4 April 2022, in which he warned:15
We are on a fast track to climate disaster. Major cities under water. Unprecedented heatwaves. Terrifying storms. Widespread water shortages. The extinction of a million species of plants and animals.
8 The parties filed a joint memorandum indicating the report and related documents could be admitted by consent updating material.
9 Working Group III Report, above n 7.
10 At TS-2
11 At TS-7.
12 At TS-7.
13 At TS-14.
14 At TS-25.
15 António Guterres “Secretary-General Warns of Climate Emergency, Calling Intergovernmental Panel’s Report ‘a File of Shame’, While Saying Leaders ‘Are Lying’, Fuelling Flames” (press release, 4 April 2022).
[17] Mr Guterres went on to say that high-emitting countries’ governments and corporations were adding fuel to the flames. The science was clear that to keep the
1.5 degrees Celsius limit agreed in Paris within reach, global emissions needed to be cut by 45 per cent this decade. Mr Guterres said that the current climate pledges would mean a 14 per cent increase in emissions. Most major emitters were not taking the steps needed to fulfil even these inadequate promises. His statement concluded with the ultimatum that the choices made by countries now will “make or break” the commitment to 1.5 degrees Celsius.
The amended statement of claim
[18] The pleadings point to the inadequacy of responses by successive governments, including legislative responses in the form of the Climate Change Response Act 2002 (CCRA), as well as the Resource Management (Energy and Climate Change) Amendment Act 2004 (RMECCAA), which was intended to complement the CCRA and amend the Resource Management Act 1991 (RMA). The RMA explicitly precludes local authorities from having regard to the emissions implications of projects when deciding whether to grant resource consents or from regulating activities based on their emissions implications.16
[19] Mr Smith further referred to the Climate Change (Zero Carbon) Amendment Act 2019 (Zero Carbon Act), the Emissions Trading Scheme (ETS) which operated between 2002 and 2020, and the amendment to the CCRA by the Climate Change (Emissions Trading Reform) Amendment Act 2020 (ETS Reform Act). In addition, Mr Smith pointed to the Climate Change (Options, Limits and Price Controls for Units) Regulations 2020 (ETS Reform Regulations).
[20] Mr Smith pleads that the emissions cap introduced under the ETS Reform Regulations is too high and the emission subsidies are too great. The agricultural exemption results in people and entities responsible for a substantial quantity of New Zealand emissions not being subject to the ETS. He pleads that since 2020, the ETS has been and will continue to be ineffective in mitigating New Zealand’s
16 Resource Management Act 1991, s 70A.
emissions, which have not reduced at all since 1992 but have increased year-on-year since then.
[21] The three causes of action are premised on the fact that the Crown has known since 14 June 1992 about climate change and the risks associated with it.
First cause of action — breach of duty
[22] The first cause of action is entitled “breach of duty”. It pleads there is a duty owed by the Crown which derives from its authority over the territory of New Zealand, It covers the activities occurring there and includes the atmosphere above New Zealand’s territory. It must actively exercise that authority in a manner that:
… protects the plaintiff and future generations of his descendants from the adverse effects of climate change, including, without limitation, the loss of: life; health; culture; economic and social wellbeing; spirituality; lands; fisheries; forests; sites of cultural, customary, historical or spiritual significance; and taonga …
[23]The pleading says the duty has existed since no later than 6 May 1840.
[24] The standard of care said to be required of the Crown is 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”.
[25] The sources of the duty are said to include: the responsibilities owed by the Crown to Māori and to all persons; the interest the public have under the jus publicum in air, sea, and running water; the public trust placed in the Crown to preserve and safeguard them by providing for a habitable atmosphere and environment; the rights affirmed in the NZBORA; existing common law rights, freedoms and duties; tikanga Māori; and New Zealand’s obligations under international law, including under the United Nations Declaration on the Rights of Indigenous Peoples (the UNDRIP), the UNFCCC, and according to customary international law.
[26] Mr Smith pleads that the Crown is required to take various steps in pursuance of that duty. He says the specific pathway it chooses is a matter for the Crown, but available and necessary actions include to:
(a)measure and monitor emissions;
(b)use public powers to prevent emissions from increasing at all and reducing them in accordance with the best available science;
(c)have particular regard to the implications of decisions on levels of emissions and actively seek alternatives that will reduce or at least not increase emissions;
(d)revoke and cease allowing any new licences for exploration, extraction and/or export of fossil fuels;
(e)prioritise investment and infrastructure away from fossil fuels and towards a low-emissions economy;
(f)neither invest in nor facilitate any development of infrastructure or industry that will result in increased Crown emissions;
(g)undertake risk assessments of areas or populations at higher risk of harm from climate change and take steps to prevent or mitigate harm to them; and
(h)undertake risk assessments of interests protected under the Treaty, and then to take active steps to protect those interests from harm.
[27] The particulars of breach were pleaded following directions requiring particulars made by the Associate Judge.17 The Crown is said to have known of the foreseeable and serious risk that the rights-holders will be deprived of life in the future in “a manner that is not established by law or consistent with the principles of fundamental justice”. It has created those risks by being responsible for all Crown emissions, all New Zealand emissions and failing to take steps, including risk assessments and mitigation of the emissions.
17 Smith v Attorney-General, above n 1, at [43].
[28] The plaintiff says the specific steps the Crown has taken in breach of the duty include:
(a)enacting the CCRA, which prescribes targets for the reduction of emissions of greenhouse gases and permits actual emissions reductions to be deferred for decades, are set on the basis of irrational assumptions involving not yet invented or unproven technology, do not recognise the offshore emissions implications of exported products offshore and have not been coupled with any plan or framework including any legal obligations to achieve emissions reductions enforceable by the courts;
(b)establishing the ETS, which did not include an effective cap on emissions until 2021, and continues to exclude agriculture emissions entirely, fails to recognise the offshore emissions implications of exported products and provides free units to major emitters;
(c)enacting the RMECCAA;
(d)implementing high greenhouse gas emission road building schemes;
(e)failing to prioritise active and public transport modes over private vehicles;
(f)failing to reduce and decarbonise New Zealand’s vehicle fleet;
(g)bypassing any or proper consideration of climate change implications of proposed roads;
(h)issuing oil and gas exploration permits;
(i)supporting the draft Minerals and Petroleum Resource Strategy;
(j)allowing the Accident Compensation Corporation (ACC) to invest nearly $1 billion into fossil fuel-producing companies;
(k)allowing Meridian Energy Ltd to contract to supply electricity to the Tiwai Point aluminium smelter;
(l)failing to reduce the extent and intensity of agriculture-related emissions; and
(m)failing to control the legislative programme to implement measures to protect the plaintiff and his descendants from climate change;
[29] The plaintiff says Parliament’s lack of a legislative response to climate change has constituted a knowing failure to reduce emissions adequately or at all, for which it can be sued.
[30] The relief sought is a declaration that the Crown owes a duty which it has breached and will continue to be in breach of unless and until it protects the plaintiff and his descendants from the adverse effects of climate change and reduces New Zealand and Crown emissions to “less than half of their 2010 levels by 2030 at a linear rate” and to zero “by sooner than 2050 at a better than linear rate between 2030 and 2050”.
[31] In earlier proceedings a novel breach of duty in relation to the cause and effects of climate change was brought as a tortious claim in negligence by Mr Smith against Fonterra Co-Operative Group Ltd (Fonterra) and other named companies which produced emissions which were said to contribute to climate change. The proposed new tort and was struck out by the Court of Appeal in Smith v Fonterra Co-Operative Group Ltd.18
[32] The duty in the present case has not been described in submissions as a tort but rather appears be a hybrid public law/private law claim. The plaintiff pointed to underlying constitutional imperatives which he said should allow the development of this novel duty of care.
18 Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552 [Smith v Fonterra (CA)] at [125]- [126]. A nuisance claim was struck out in the High Court and on appeal the novel tort claim was also struck out in te Kōti Pīra | the Court of Appeal. Leave has been granted to appeal that decision to te Kōti Mana Nui | the Supreme Court in Smith v Fonterra Co-Operative Group Ltd [2022] NZSC 35 [Smith v Fonterra (SC)].
Second cause of action — the New Zealand Bill of Rights Act 1990
[33] Mr Smith pleads breaches of the NZBORA under s 8 (deprivation of life) and s 20 (denial of the right to practise culture). The claim is that the Crown is responsible for emissions and it has enacted and amended the CCRA and the RMECCAA, which lack sufficient regulation of emissions. The plaintiff says the Crown has therefore failed to put in place an effective legislative and administrative framework properly designed to provide effective mitigation against the climate change risk in accordance with the best available science and New Zealand’s international and domestic legal obligations.
Third cause of action — te Tiriti o Waitangi | the Treaty of Waitangi
[34] The third cause of action is based on breaches of the Treaty and consequent fiduciary duties owed to the plaintiff and those he represents. These include duties to perform the commitments undertaken by the Crown in the Treaty and to take active steps to ensure those commitments are honoured and act in good faith. The Crown is said to have breached these duties by its failure or inadequate response to mitigate climate change.
Application to strike out/particulars
[35] The defendant has filed an application to strike out the proceeding on the grounds that the amended statement of claim discloses no reasonably arguable cause of action. The Crown says that the duty pleaded in the first cause of action does not exist and the matters raised by the amended claim are non-justiciable.
[36] In relation to the second cause of action under the NZBORA, the Crown says that s 8 is not engaged and does not give rise to a positive obligation on the Crown that measures adopted in the climate change context be protective of life. In relation to s 20, the Crown says the plaintiff is unable to establish that his right to enjoy his culture has been interfered with, let alone denied.
[37] In relation to the third cause of action, the breach of the Treaty, the Crown says that the cause of action cannot succeed because while the Treaty is recognised for
many purposes including specifically in legislationas an aid to interpretation, it does not give rise to an independent actionable claim. In the climate change context, where the Crown is required to represent and balance competing interests, it cannot owe fiduciary duties to particular individuals or groups.
Approach to strike out
[38] In Smith v Fonterra Co-Operative Group Ltd the Court of Appeal set out the principles to be applied in approaching a strike out application as follows:19
[38] We [address each cause of action] through the lens of well-established strike out principles.20 That is to say, we assume the pleaded material facts are true save for those that are entirely speculative and without foundation and we also bear in mind that the strike out jurisdiction is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law. The fact a claim involves a complex question of law which requires extensive argument should be no bar provided we have the requisite materials and assistance to determine the matter.21 We must also be mindful of the well established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.22
[39] In developing areas of the law, the courts are slow to strike out claims, for example where a duty of care is alleged in a new situation.23 The plaintiff says the present case has close parallels to Wallace v Commissioner of Police, where an application to strike out a claim alleging breach of positive duties to protect the right to life under s 8 of the NZBORA was dismissed.24 Brown J emphasised the need for caution given the fundamental importance of the right to life and the fact the law on positive obligations was still “in a state of early development”.25 The claim went to a full trial where Ellis J upheld Mrs Wallace’s claims as to the scope of s 8, finding that
19 Smith v Fonterra (CA), above n 18.
20 The authority for the Court to strike out a pleading or cause of action derives from r 15.1 of the High Court Rules 2016 and under its inherent jurisdiction which is unaffected by r 15.1. See Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 323.
21 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267, endorsed in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] and North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146].
22 Marshall Futures Ltd v Marshall, above n 20, at 324; and Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [66].
23 Couch v Attorney-General, above n 21, at [33] per Elias CJ.
24 Wallace v Commissioner of Police [2016] NZHC 1338 [Wallace No 1].25 At [66].
the positive duty to conduct an effective investigation into the death of her son,
Steven Wallace, had been breached.26
[40] Mr Smith says that while there may be arguments about the future breaches given the present framework, there is no doubt that past breaches have occurred. Even if the present and future position is not within the ambit of the Court, the past breaches must be. He says I must take the pleading as proven in that regard for the purposes of the strike out application. Since 1992, the Government should have known about the issue of climate change and the ramification for the New Zealand population, but it did nothing. The Crown’s various arms, including the ACC, Meridian Energy Ltd and Waka Kotahi NZ Transport Agency, continued to act as if climate change was not an issue in the ways described above.
The Crown’s position
[41] The Crown set out the framework that had already been put in place by the Government to deal with climate change domestically.
[42] The CCRA was originally enacted to enable New Zealand to meet its obligations under the UNFCCC and the Kyoto Protocol. Since that time there have been a number of amendments to the CCRA, including the Zero Carbon Act, which enacted a target of reducing net omissions of greenhouse gases in a calendar year (excluding biogenic methane) to zero by 2050.27 In terms of biogenic methane, the target required that emissions be 10 per cent less than 2017 levels by 2030, and 24–47 per cent less by 2050.28
[43] The Zero Carbon Act also inserted an additional purpose into the CCRA as follows, to:29
(aa)provide a framework by which New Zealand can develop and implement clear and stable climate change policies that—
26 Wallace v Attorney-General [2021] NZHC 1963 [Wallace No 2].
27 Climate Change Response Act 2002 [CCRA], s 5Q(1)(a).
28 Section 5Q(1)(b).
29 Section 3(1).
(i)contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels; and
(ii)allow New Zealand to prepare for, and adapt to, the effects of climate change:
[44] The Crown pointed to the explanatory note to the Zero Carbon Bill, which commented on its purpose as follows:30
The overarching purpose represents a balance of the guiding principles agreed by Cabinet to frame the development of climate change policy: leadership at home and abroad; a productive, sustainable, and climate-resilient economy; and a just and inclusive society.
The Bill sets out a durable framework, and stable and enduring institutional arrangements, for climate change action that will help keep New Zealand on track to mitigate and adapt to climate change. It also contains mechanisms for increasing transparency of decisions relating to climate change. This includes processes, time frames, reporting obligations, monitoring, and considerations to take into account.
The Bill seeks to strike a balance between flexibility and prescription in New Zealand’s long-term transition, as well as building in considerations for how impacts are distributed.
[45] The Crown says the Zero Carbon Act provides a “calibrated framework” for a just transition to New Zealand to a low emissions and climate-resilient future. The Zero Carbon Act also included detailed provision for Māori and the application of the Treaty in decision-making under the Act.31
[46]The Crown pointed to the key aspects of the updated regime as being:
(a)the establishment of an independent Climate Change Commission (CCC),32 which provides expert advice on mitigating climate change, including through reducing emissions and adapting to its effects. It will monitor and review successive governments’ progress towards emissions budgets, the 2050 target and adaption goals;33
30 Climate Change Response (Zero Carbon) Amendment Bill 2019 (136-1) (explanatory note).
31 CCRA, s 3A.
32 Part 1A.
33 Sections 5B, 5J and 5ZJ–5ZL.
(b)five-yearly emissions budgets, which act as “stepping stones” to the 2050 target and contribute to the global effort to limit global temperature to 1.5 degrees Celsius;34
(c)emissions reductions plans informed by advice from the CCC and government agencies, which set out the policies and strategies to be followed for meeting the emissions budgets;35
(d)a national climate change risk assessment (NCCRA), which assesses risks to New Zealand’s economy, society, environment and ecology from the current and future effects of climate change and identifies significant risks based on urgency and consequences;36 and
(e)a national adaption plan (NAP), which sets out objectives, strategies, plans and policies for climate change adaption, including timeframes for meeting those strategies and monitors to enable regular monitoring.37
[47] The Crown says the CCRA ensures accountability for successive governments through the CCC’s regular monitoring and reporting, the setting of budgets and the Act’s overall target. Under the Act, the CCC must produce an annual progress report which is presented to the House of Representatives,38 and must provide regular reporting on the progress of each NAP,39 and there is also provision for the Court to make a declaration in case of failure to meet the 2050 target or an emissions budget.40
[48] The Crown also points to the ETS as a key mechanism for reducing emissions and meeting international commitments. The Crown says the ETS has undergone a number of legislative reforms, which have introduced a cap to align with emissions
34 Sections 5W–5Z. The explanatory note to the Zero Carbon Act, above n 30, described the purpose of the emissions budgets as “a valuable tool for tracking progress and determining whether New Zealand is on track to meet the emissions reduction target ... creat[ing] accountability across successive governments”: at 3.
35 Section 5ZG–5ZI.
36 Sections 5ZP–5ZR.
37 Sections 5ZS–5ZT.
38 Sections 5ZJ–5ZK.
39 Section 5ZU.
40 Section 5ZM.
budgets and will provide for emissions from agriculture to incur a carbon price from 2025 at the latest.
[49] Another aspect of the framework for responding to climate change that the Crown points to is the advice of the CCC. In May 2021, the CCC produced its first report, having received more than 15,000 submissions, advising on the first three emissions budgets, the policy direction for the first emissions reduction plan, New Zealand’s 2030 NDC, and biogenic methane reductions required to keep global average temperature rise to 1.5 degrees Celsius.41 The Crown says the Government proposes to broadly accept the CCC’s advice on emissions budgets, with some modifications.
[50] Finally, the Crown says the Government has committed to reducing emissions through its NDC. In October 2016, the Government communicated its first NDC under the Paris Agreement, which committed to reducing net greenhouse gas emissions to 30 per cent below 2005 gross levels by 2030. The Government updated the NDC in November 2021 to a commitment to reduce net emissions to 41 per cent below 2005 gross levels by 2030.
[51] The Crown rejects the plaintiff’s assertion that it lacks an adequate framework dealing with the effects of climate change.
First cause of action — breach of duty
Nature of the claim
[52] The plaintiff bases the duty on the fact that climate change is a unique “collective action” problem which risks catastrophic harm to fundamental interests protected by the common law. The plaintiff says the risks threaten the continued existence of New Zealand as a democratic state and that humans and social order will cease to exist unless action is taken. It follows, the plaintiff says, that none of the branches of government will be able to fulfil their constitutional roles so no other
41 He Pou a Rangi | Climate Change Commission Ināia tonu nei: a low emissions future for Aotearoa
– Advice to the New Zealand Government on its first three emissions budgets and direction for its emissions reduction plan 2022 – 2025 (31 May 2021).
rights which the courts must protect will have meaning or be capable of being enforced.
[53] The plaintiff says the State is uniquely placed to mitigate these risks and it alone is able to address the problem of “systemic domination” by major individual emitters who, by their emissions, exert their will over others thereby limiting freedoms.
[54] The plaintiff pleads a strict liability standard for the new duty — to avoid dangerous interference with the climate system. That, the plaintiff says, is required because of the catastrophic nature of the consequences of non-compliance with the duty.
The duty
[55] The plaintiff says the necessary conditions for the existence of a duty of care flow from Lord Atkinson’s famous exposition in Donoghue v Stevenson:42
I owe a duty of care to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
[56] In this case, the argument is that reasonable foreseeability and appropriate proximity to a class of person to whom the duty of care is owed is established by evidence pointing to the knowledge by the Crown of the dangers of climate change and the risks it brings to all persons and their property in New Zealand.
[57] The content of a duty of care has been analysed at a doctrinal level as a duty to be mindful of the interests of persons placed at reasonably foreseeable risk by one’s actions, where those other persons have a correlative right that one be so mindful.43 The duty of care together with the standard of care results in a duty not to subject
42 Donoghue v Stevenson [1932] AC 562 (HL) at 580.
43 Steven Perry “Torts, Rights, and Risk” in J Oberdiek Philosophical Foundations of the Law of Torts (Oxford University Press, Oxford, 2014) 38 at 44.
persons whom one’s actions place at reasonably foreseeable risk to unreasonable or undue levels of such risk.44
[58] The plaintiff says the duty in the present claim carries with it strict liability. Unlike the tort of negligence, strict liability does not involve a duty of care. This is because in a case of strict liability, the defendant has no duty, not even a derivative one, not to create unreasonable risks, but instead has a duty not to cause to reasonably foreseeable persons or classes of persons sufficiently proximate physical harm as a result of engaging in a certain type of activity.45 Therefore, whether or not one has complied with the standard of reasonable care is neither here nor there.46
[59] There are few civil causes of action that are based on a pure right not to be put at risk at all. An example is the tort of false imprisonment, which is an intentional tort justified in quite different ways to the tort of negligence.47
[60] Mr Smith says that given the existential threat to human life posed by climate change, the dictum of Cooke J in Taylor v New Zealand Poultry Board that “[s]ome common law rights presumably lie so deep that even Parliament could not override them” applies. 48 He says that the wider Crown has completely failed to reduce its own or national emissions from 1992, which invokes a comparison with the examples given by Cooke J of a matter beyond the constitutional power of the legislature, such as laws purporting to disenfranchise women or strip Jewish people of their citizenship or property”.49 The plaintiff says the evidence is there and climate change is already occurring. He says recent reports of the IPCC illustrate in stark terms the risk for human society if the rate of change is not immediately and sharply reduced by more effective means than those undertaken by the Government at present. Mr Smith says the evidence of that is a matter for trial and this application must be determined as if the evidence established the factual basis of the claim.
44 At 44.
45 At 52.
46 At 52.
47 At 59.
48 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398 per Cooke J.
49 Robin Cooke “Fundamentals” [1988] NZLJ 158.
[61] It is these factors that the plaintiff says compels the recognition of a novel duty on the State to take necessary steps to avoid dangerous interference leading to climate change.
Development of novel duties
[62] The plaintiff points to the development of novel duties such as that recognised in Hosking v Runting (interference with privacy)50 and C v Holland (invasion of privacy and “intrusion upon seclusion” to protect interests in dignity, autonomy and privacy),51 among others.
[63] In the context of a strike out application, the Court of Appeal has noted that a Court would be slow to strike out a novel negligence claim. In Attorney-General v Body Corporate 200200 the Court said:52
Strike out principles as applied in public law negligence contexts
[50] In all cases the threshold for a strike out application is rigorous and the courts are especially slow to strike out claims in negligence which assert novel duties of care; this in recognition of the factually sensitive nature of the inquiry and what will often be the need for evidence, including expert evidence, and the testing of such evidence in a trial setting. In a proper case, however, a determination may be made on the existence of a duty of care on a strike out application. The difficulty of the associated legal issues does not preclude the granting of the application. As to these considerations see the remarks of Richardson P in Attorney-General v Prince and Gardner at 267.
[51] Such cases throw up competing considerations of policy. On the one hand, the courts should not lightly deny plaintiffs the opportunity to proceed to trial on novel issues of law. Moreover, a trial will present a more favourable forum to assess the issues involved in establishing a duty of care. On the other hand, however, defendants ought not to be subjected to the substantial costs, much of which is usually unrecoverable, in defending untenable claims.
[64] The Court of Appeal in Hosking v Runting recognised the tort of invasion of privacy as existing in New Zealand.53 It reviewed the state of privacy law in various jurisdictions as well as in New Zealand. It looked at the policy in respect of the protection of privacy and whether the statutory protections already enacted amounted to a comprehensive treatment which might preclude the existence of the novel cause
50 Hosking v Runting [2005] 1 NZLR 1 (CA).
51 C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
52 Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) at [50]–[51].
53 Hosking v Runting, above n 50.
of action.54 It noted that the Privacy Act 1993 did not confer on any person legal rights enforceable in a court of law in relation to privacy.55 The Broadcasting Act 1989 and Harassment Act 1997 also left gaps in the law.
[65] The Court of Appeal in Hosking v Runting said that while the introduction “of any high-level and wide tort of invasion of privacy should be a matter for the legislature” that was not what it envisaged but, rather, it was “taking developments that have emerged from cases in New Zealand and in the larger British jurisdiction and recognising them as principled and an appropriate foundation on which the law may continue to develop to protect legitimate claims to privacy”.56
[66] The Court went on to note that the scope of the newly established cause of action should be left to incremental development by future courts.57 The primary remedy would be the award of damages and in some cases injunctive relief.
[67] Tipping J, in a separate judgment, referred to the “traditional common law method … of incremental development”.58 He also noted that the NZBORA would inform the development of the common law in its function of regulating relationships between citizens, and the rights and values it represents should be given appropriate weight when developing the common law.59
[68] Further “incremental” developments in the area of privacy recently occurred in Peters v Attorney-General.60 The Court of Appeal noted that in developing the law in the new torts:61
… it is appropriate for courts to proceed with care, paying close attention to countervailing rights and interests, when formulating the criteria that will be used to gauge reasonable expectations of privacy. The courts must also recognise their institutional limitations, which dictate that law should be developed incrementally and by reference to specific facts.
54 At [97].
55 At [99].
56 At [110].
57 At [149].
58 At [251].
59 At [229].
60 Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 at [114].
61 At [114] (footnotes omitted).
[69] Mr Smith argues that by the same process of reasoning that led to the development of new torts such as invasion of privacy, the proposed duty can be recognised — albeit on a bigger scale — and so provide a remedy for much more serious interferences with fundamental interests.
[70] Mr Smith says that recognition of such a duty would not be contrary to any existing statutory schemes because there is no legislative provision which purports to preclude common law claims against the Crown. Mr Smith says the Court has a general jurisdiction to review legislation or policy.
[71] Claims in negligence based on public duties may be advanced against the Crown. The recent Court of Appeal decision in Attorney-General v Strathboss dealt with an appeal from a determination that the Crown was liable in negligence for failing to properly manage the biosecurity risk in relation to an import permit granted for kiwifruit pollen.62 The High Court found a duty of care which had been breached and held the Crown was liable to the defendants in damages.63 The Court of Appeal allowed the appeal, primarily on the basis that the Crown immunity operated to prevent the claim. In finding that the duty of care had not been established it also made some observations in relation to the claim in negligence against the Crown which are relevant.
[72] The Court of Appeal noted that where a duty is imprecisely formulated, a duty of a technical or operational nature may be distinguished from one which relates to policy matters.64 That distinction had been made by Lord Wilberforce in Anns v Merton London Borough Council.65 Public policy and political considerations are less likely to be justiciable.
[73] In this case the duty is imprecisely formulated and could be said to target technical and operational matters as well as policy matters.
62 Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247.
63 Strathboss Kiwifruit Ltd v Attorney-General [2018] NZHC 1559.
64 Attorney-General v Strathboss Kiwifruit Ltd, above n 62, at [184].
65 At [184], citing Anns v Merton London Borough Council [1978] AC 728 (HL).
[74] In Strathboss, the Court of Appeal observed that a significant factor against the finding of a duty of care was that the potential losses from a breach of that duty would have been immense.66 It said the ordinary requirements for success in negligence would not be a sufficient control for the extent of the liability that could flow from the breach of that duty and that the possible claims would be complex and of a significant scale. This was a significant reason not to recognise the duty at law. Such a duty should be introduced by legislation.67
[75] The Court of Appeal in Strathboss also pointed out that in cases where a public body is performing a role for the benefit of the community as a whole and where the actions of a third party, rather than the defendant, are the immediate cause of the loss of harm suffered by the plaintiff, the courts are wary about imposing a duty to act.68 The Court of Appeal pointed out that the principle had been emphasised recently by the United Kingdom Supreme Court in a series of cases.69 The Court of Appeal agreed with the Judge at first instance that the duty of care propounded in Strathboss did not cut across other available proceedings in the legal framework for claims relating to failures in public decision-making, such as the tort of breach of statutory duty, misfeasance in public office, declaratory judgments or judicial review. However, policy considerations, particularly given the indeterminate liability, weighed strongly against the imposition of a duty of care in relation to pre-border conduct in Strathboss.70
Previous climate change claims
[76] Here the novel duty is said to be owed by the Crown. Mr Smith previously pleaded novel duties concerning climate change as the plaintiff/appellant in Smith v Fonterra Co-Operative Group Ltd.71 That was a claim against Fonterra and six other companies, each of whom was either involved in an industry which released
66 At [253].
67 At [257]–[260].
68 At [198], citing Couch v Attorney-General, above n 21, at [80].
69 At [199]–[200], citing Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736; and N v Poole Borough Council [2019] UKSC 25, [2019] 2 WLR 1478.
70 At [270]–[274].
71 Smith v Fonterra Co-Operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394 [Smith v Fonterra (HC)]; and Smith v Fonterra (CA), above n 18.
greenhouse gases into the atmosphere or manufactured and supplied products which released greenhouse gases when burned.72
[77] Mr Smith there pleaded the effects of climate change and their devastating effects as a starting point. He pleaded three causes of action of action: public nuisance, negligence and a proposed new tort described as breach of duty.73 In respect of each cause of action, the remedies sought were declarations that each of the respondents had unlawfully caused or contributed to the effects of climate change or breached duties said to be owed to Mr Smith. Mr Smith was also seeking injunctions against each of the defendants which would require them to produce or cause zero net emissions from their respective activities by 2030.74
[78] In the High Court, Wylie J had no difficulty striking out the first and second causes of action (public nuisance and negligence) on the basis they were untenable.75 On the third cause of action, that the defendants owed a duty cognisable at law to cease contributing to damage to the climate system, Wylie J refused the strike out application noting that on appropriate occasions, the common law evolved by creating new principles and causes of action.76 By way of example, he pointed to the new tort of intrusion into seclusion which had been recently recognised.77
[79] His Honour noted the common law method proceeds through the methodological consideration of the law that has been applied in the past and the use of analogy.78 The common law method provides stability but may not allow for the injection of new ideas and for the creation of new responses. Wylie J noted the comments of Lord Reid in Myers v Director of Public Prosecutions:
“The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this house in old cases. But there are limits to what we can or should do.
72 Smith v Fonterra (CA), above n 71, at [3].
73 At [6].
74 At [6].
75 Smith v Fonterra (HC), above n 71, at [73] and [100].
76 At [101].
77 At [101], citing C v Holland, above n 51.
78 At [101].
If we are to extend the law it must be by development and application of fundamental principles.”79
[80] His Honour there noted that Mr Smith had made no attempt in the pleading of the third cause of action to refer to recognised legal obligations, nor incrementally identify the new obligation by analogy to existing principles.80 Such an attempt could not readily be made as the claimed duty of care was not obviously analogous to any existing duty of care and its recognition could not be described as a gradual step-by-step expansion of negligence liability.81 The Judge also commented on the public policy reasons he had identified. The proposed duty of care in negligence would extend the law. The Judge noted this could create significant hurdles for Mr Smith in trying to persuade the Court that a new duty should be recognised.82
[81] Nevertheless, the Judge was reluctant to strike out the head of claim as he did not want to foreclose on the possibility of the law of tort recognising a new duty which might assist Mr Smith.83
[82] On appeal, the Court of Appeal unanimously dismissed Mr Smith’s appeal against the striking out of the first two causes of action and allowed the cross-appeal, striking out the “breach of duty” third cause of action.84
[83] For the Court, French J said that to recognise the proposed novel cause of action would be contrary to the common law tradition which is one of incremental development and not of radical change. A major departure from “fundamental principles” such as that proposed would “subvert doctrinal coherence”.85
[84] Her Honour also said the magnitude of the climate change crisis could not be appropriately or adequately addressed by common law tort claims pursued through the
79 At [101] n 88, citing Myers v Director of Public Prosecutions [1965] AC 1001 (HL) at 1021 per Lord Reid.
80 At [102].
81 At [102].
82 At [102].
83 At [103].
84 Smith v Fonterra (CA), above n 18, at [129]–[130].
85 At [15].
courts. Her Honour said it was “quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.”86
[85] French J then went on to examine the particular difficulties with an action in negligence. The first was that no other claim had been recognised by the courts which involved a scenario in which every person in New Zealand (or in the world) was to varying degrees responsible for causing the harm and simultaneously the victim of the harm.87 A subset of those responsible for the harm had been singled out as the defendants on no principled basis.88 In addition, it would follow that every entity and individual in New Zealand responsible for net emissions was committing the same tort and so each was acting unlawfully. Presumably, they could be restrained from doing so.89
[86] Her Honour noted the second fundamental conceptual problem arose from the fact that each of the defendants would be required to produce emissions that were fully offset.90 In order to determine claims of this kind, the Court would need to establish a mechanism for assessing the adequacy of offsets in determining which of those a defendant could claim as their own. To remain a lawful activity, it would need to comply with certain conditions established by an appropriate regulatory framework to be fashioned by the courts.91 This would be an assessment parallel to the statutory regime and would be unworkable and beyond the capacity of the courts to develop.92 The Court commented that that was not the domain of tort law.93
[87] The third, and closely related point, was that there was not a remedy available to the Court in civil private proceedings which could meaningfully address the harm complained of.94 Damages were not appropriate and the Court took the view that injunctive relief illustrated the ineffectiveness of an orthodox tort remedy.95
86 At [16].
87 At [18].
88 At [19].
89 At [19].
90 At [23].
91 At [24].
92 At [24].
93 At [24].
94 At [25].
95 At [25].
[88] The fourth reason identified by the Court of Appeal as being a hurdle to recognition of the tort was that proceedings against subsets of emitters was an inherently inefficient and ad hoc way of addressing climate change. It would result in arbitrary outcomes and ongoing litigation that would last many years.96
[89] The Court of Appeal said for those reasons, among others, the issue of climate change could not be effectively addressed through tort law.
[90] Her Honour went on to discuss the relevant international agreements and the CCRA as amended. The CCC had been established and a process was provided for the Commission to prepare a draft report on emissions, budgets and other matters, and to engage in consultation on the draft and provide a final report to the Minister. The Minister would then set the emissions budget.97 The Court went on to note the substantial amendments brought in by the ETS Reform Act.98
[91] The Court said the claims made in the proceeding were not consistent with the policy goals and the scheme of the legislation and, in particular, the goals of ensuring this country’s response to climate change is effective, efficient and just.99 French J also noted that striking out claims against commercial entities would not be a breach of the Treaty, as the Treaty underlines the need for shared action and a common approach paying attention to distributional effects, not a piecemeal one.100
[92]At the same time, her Honour noted:101
[35] All of that is not to suggest the courts have no meaningful role in responding to the exigencies of climate change. They do in fact have a very important role in supporting and enforcing the statutory scheme for climate change responses and in holding the Government to account. Our point is simply that it is not the role of the courts to develop a parallel common law regulatory regime that is ineffective and inefficient, and likely to be socially unjust.
96 At [27].
97 At [30].
98 At the time of hearing, the emissions trading regime was in operation and the Commission process underway.
99 At [33].
100 At [34].
101 Emphasis added.
[93] The Court of Appeal went on to point out that similar claims to those of Mr Smith had been advanced in the United States but not upheld for essentially the same reasons, and in any case were not consistent with the fundamental conceptual framework of the common law of tort.
[94] The Court of Appeal then examined in detail each of the causes of action in that case. On the public nuisance claim, the Court of Appeal concluded that while it did not agree with the reasons given for the strike out of that head of claim in the High Court, nevertheless a claim of public nuisance was doomed to fail and should be struck out due to a lack of a sufficient connection between the pleaded harm and the respondents’ activity.
[95] The Court of Appeal then went on to consider the second cause of action in negligence. The formulation of the duty was that the defendant companies owed to Mr Smith (and persons like him) “a duty to take reasonable care not to operate its business in a way which would cause him loss by contributing to dangerous anthropogenic interference in the climate system”.102
[96] The duty of care as pleaded was a novel one which French J assessed against the primary two-stage proximity and policy enquiry to decide whether it would be “just, fair and reasonable to recognise the duty”.103 On the first part of the enquiry, the Court concluded that there was no physical or temporal proximity and no direct relationship or causal proximity, so it failed on reasonable foreseeability and proximity.104 The Canadian formulations of a “material contribution to risk” test or a “market share” liability approach were attractive at a superficial level. Mr Smith’s claims had some similarity to the cases relied upon in as they also involved a single causative agency (and multiple tortfeasors).105
[97] However, the Court of Appeal said the similarities ended there. In all the cited cases, as in the public nuisance cases, the individual tortfeasors making up the group were known or readily identifiable and all were before the Court as defendants. In
102 At [94].
103 At [96].
104 At [103].
105 At [108]–[110].
addition, any one or more of them was responsible for the harm.106 In contrast, French J noted the class of possible contributors in that case was virtually limitless and it could not be said that Mr Smith would not have been injured but for the negligence of the named defendants viewed globally.107 The Court found the inability to join all material contributors or a substantial share of contributors to the proceeding was insuperable. It was not a trial issue, nor a pleading one, and could only be overcome by the Court agreeing to abolish the relational underpinnings that are fundamental to tort law.108 The Court concluded that it was not something it would countenance, in the interests of preserving the coherent body of law.109
[98] The Court then looked at the second stage of the duty enquiry and concluded that recognition of a duty would create a limitless class of potential plaintiffs as well as potential defendants, leading to the defendants being embroiled in highly problematic and complex contribution arguments on an unprecedented scale, potentially involving overseas emitters as well as those based in New Zealand.110
[99] Another crucial factor the Court found telling against this duty was the existence of international obligations and a comprehensive legislative framework. The Court said:111
… To superimpose a common law duty of care is likely to cut across that framework, not enhance or supplement it. Further for the reasons already canvassed we consider the courts are in any event ill-equipped to address the issues that the claim raises. Finally, there is the impact on the coherence of the law generally.
[230] The Crown submitted it remained necessary to apply the usual test for establishing the existence of a fiduciary duty owed by one party to another.257 The Crown also said it could not owe a fiduciary duty based on a treaty, particularly in a situation as complex as climate change. It had duties to the public as a whole, even when dealing with its Treaty partner.
[231] Mr Prebble, for the Crown, pointed to the comments of the Court of Appeal in the 2007 New Zealand Māori Council v Attorney-General case as follows:258
… we see difficulties in applying the duty of fiduciary not to place itself in a position of conflict interest to the Crown, which in addition to its duty to Māori under the Treaty, has a duty to the population as a whole. The present case illustrates another aspect to this problem: the Crown may find itself in a position where its duty to one Māori claimant group conflicts with its duty to another.
[232] Mr Smith’s approach to use the Treaty relationship to find a fiduciary duty would lead to the Treaty being directly enforceable by a backdoor route. As Mr Prebble noted, the Canadian authorities cited by Mr Smith in support of a fiduciary obligation arising from the Treaty were taken from a different constitutional context,
255 Referring to Lands, above n 252, at [644].
256 Proprietors of Wakatū v Attorney-General, above n 251, at [390]–[391].
257 Referring to Dold v Murphy [2020] NZCA 313, [2021] 2 NZLR 834 at [52].
258 New Zealand Māori Council v Attorney-General, above n 251, at [337].
a feature of which was that Canada had entrenched treaty rights through s 35 of its Constitution Act 1982, which was supreme law.259
[233] Given the wide-ranging nature of this claim and the complex nature of climate change, any fiduciary obligations arising from the Crown would be owed to the public in general. This alone makes the claim untenable.
[234] In addition the High Court has recently again recognised that the Treaty of Waitangi does not give rise to free-standing obligations in and of itself, although it can bear directly on the interpretation of a statute and can sustain judicial review for the treatment of tikanga on the grounds of, for example, illegality, failure to consider a relevant consideration or unreasonableness.260 Therefore, on the present state of the law a stand-alone claim based on the Treaty would not succeed. However, it is arguable that a claim based on the Treaty might be tenable if coupled with other claims. There are also suggestions that it may be time for the decision in Te Heuheu Tukino to be reconsidered. However, the difficulty with the claim as formulated here is that the claim based on the Treaty rests in general terms on the breach of the general duty advanced in the novel claim pleaded as the first cause of action. I have already found that is untenable and, moreover, a claim that such a duty is owed to only a subsection of New Zealanders, Māori, as opposed to the public in general, is a further reason that it cannot be tenable. Therefore even if otherwise available a Treaty based claim would be untenable.
[235] Accordingly, the claims under the Treaty and associated fiduciary obligations in the third cause of action are untenable and are struck out.
Further submissions following the hearing of this case to decisions
[236] For completeness, I note counsel referred to the decisions of Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) and Muaūpoko Tribal Authority Inc v Minister
259 Mr Smith referred to the decision in Southwind v Canada 2021 SCC 28.
260 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [68]. The comments in that judgment indicate that the position may be revisited in an appropriate case.
for Environment decided after this hearing.261 I have referred to the former judgment but I do not consider either case materially affects the matters at issue in this judgment.
Conclusion
[237]The statement of claim is struck out in its entirety.
Costs
[238] If the parties cannot agree on costs, submissions should be filed by the applicant for costs within 10 days from the issue of the judgment and any response within a further 10 days.
Grice J
Solicitors:
Lee Salmon Long, Auckland Crown Law, Wellington
261 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), above n 260; and Muaūpoko Tribal Authority Inc v Minister for Environment [2022] NZHC 883.
1
14
1