Climate law changes have 'clearly struck a nerve' - experts

The government should reconsider its intention to amend climate laws to prevent lawsuits, according to an open letter signed by more than 100 lawyers, climate scientists and legal academics.

They say the move has "clearly struck a nerve", and the letter says the decision was contrary to New Zealand's climate objectives, blocks the development of common law in the country and risks undermining the rule of law.

Former British High Commissioner to New Zealand Laura Clarke - now chief executive of ClientEarthy - is included in the 118 signatures, along with environmental groups, legal academics from around the world and the Union of Concerned Scientists.

The government announced last week it would amend climate laws to prevent companies from being sued over damage caused by greenhouse gas emissions.

The change will prevent findings of liability in torts - a type of civil case where one person or entity claims another has caused them harm.

Justice Minister Paul Goldsmith said it would apply to current and future cases - stopping a landmark case by iwi leader and activist Mike Smith against Fonterra and five other major emitters in its tracks.

Goldsmith said Smith's case was "creating uncertainty in business confidence and investments that the government must address".

The law change would "remove the possible development of a new regime that contradicts the framework Parliament has already enacted to respond to climate change".

Laura Mackay, the acting executive director of Lawyers for Climate Action New Zealand - who delivered the letter to government ministers on Tuesday morning - said it was heartening to see unified opposition, and it was a "measure of how serious this decision is."

"This proposal would undermine our international legal obligations and cuts across basic principles of the rule of law, such as the principle against removing rights retrospectively and the right to have disputes determined by the courts.

"It has clearly struck a nerve, and that's because it's fundamentally unfair."

The letter stated the decision to "limit the ability of the courts to make findings of liability under tort law for climate change damage caused by greenhouse gas emissions" was "contrary to New Zealand's climate objectives, blocks the development of the common law in New Zealand, and risks undermining the rule of law and the separation of powers".

It stated New Zealand's existing climate law framework was not a "complete answer" to the challenges posed by climate change, and doesn't provide a "mechanism to address and potentially compensate for climate-related harm."

"Tort law can help to address the limitations of New Zealand's climate change legislation as it currently stands and can also complement the objectives of the legislation."

The letter also pointed out the Supreme Court had recognised Smith's claim would "face obstacles", but that he should "have his day in court."

"There is a legitimate question to be asked about whether tort law will be able to expand to address climate-related harm, but that question deserves to be heard - with full argument - in a court of law, as determined unanimously by the Supreme Court.

"There is a risk that this decision undermines the separation of powers and the principle of comity, as Parliamentary legislation should generally not interfere with the judicial process."

Mackay said the reason the government announcement had generated so much international attention was because a "strong rule of law is a common requirement across all democracies."

"Backsliding on this by a country such as New Zealand - traditionally recognised as having a strong rule of law - is bound to raise significant global concern."

The letter was addressed to Goldsmith as Minister for Justice, Chris Bishop as Attorney-General, Simon Watts as Minister for Climate Change, and Christopher Luxon as Prime Minister.

Speaking on Tuesday morning, Watts said the government was looking to ensure certainty, which was important for investment decision making and more certainty was needed in New Zealand.

"It's an important signal that the government understands the importance and the value of certainty.

"What we're doing is bringing certainty to the position around our Emissions Reduction Target."

Watts rejected the notion that removing the right to bring court cases might also create uncertainty, and the government was clarifying the intent of the legislation.

Goldsmith has also been approached for comment.

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