Climate Litigation Shake-Up - Parliament is Supreme
31 August 2026

The Government has moved quickly to stop the development of climate change claims through the courts.

On 18 August 2026, the Climate Change Response (Tort Liability) Amendment Bill passed its third and final reading. It will become law after Royal Assent (Governor General sign off). The bill will remove potential tort liability (a tort is a civil wrong that allows someone who says they have suffered harm to seek a remedy) for climate change and climate change-related damage caused by greenhouse gas emissions.

Parliament is asserting it supremacy in setting out what the law shall be, and at the same time letting the Supreme Court know it should tread lightly with development of the common law when it relates to matters of public policy.


How Did We Get Here?


In 2019, Mike Smith, an elder of Ngāpuhi and Ngāti Kahu, filed proceedings against seven companies he alleged were responsible for significant greenhouse gas emissions.

Mr Smith relied on three tort claims: public nuisance, negligence, and a proposed new climate damage tort.

The claims faced mixed success in the lower courts before reaching the Supreme Court. In February 2024, the Supreme Court unanimously ruled that all three claims were arguable and should be allowed to proceed to trial.

Importantly, the Court did not decide that Mr Smith would win. It simply decided the courts should be allowed to hear the case and consider whether the law should develop in this area.

The trial is currently scheduled for April 2027.


Parliament Steps In


The Government disagreed with the prospect of climate change liability being developed by the courts.

In announcing the bill, the Government said climate change policy should be dealt with through the Climate Change Response Act 2002, not through private lawsuits.


The bill is a direct response to the Supreme Court's decision. After the Court said the claims could proceed to trial, Parliament moved to change the law and prevent climate-related tort claims from developing.


Another Twist


The issue became more controversial after the Chief Ombudsman released findings about the handling of an Official Information Act request by the Prime Minister's Office.


Following those findings, Mr Smith filed fresh High Court proceedings seeking declarations that the Government's announcement of, and Cabinet decision relating to, the legislation was unlawful.


Why It Matters



While the Supreme Court is New Zealand's highest court, Parliament has the final say on the law. The Government's response to Smith v Fonterra shows a clear willingness to step in and change the law when it considers the courts are taking it in a direction it does not support.

Reinforcing this, the new Attorney-General, Chris Bishop, on 6 August in an address to the legal profession issued a blunt warning for the judiciary to stay out of politics and respect parliamentary supremacy, saying the courts lack the democratic mandate and institutional expertise needed to develop public policy.

31 August 2026
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