ROGER PARTRDIGE: An affront to democracy?

Mike Smith, the climate activist suing six of New Zealand’s largest companies over greenhouse gas emissions, is unhappy. On Tuesday, the Government announced it will amend the Climate Change Response Act 2002 to stop cases like his and others like it. Smith calls the move “an affront to democracy.”

He has the wrong end of the stick.

In 2024, Smith persuaded the Supreme Court to revive a claim the Court of Appeal had unanimously struck out.

The Court of Appeal had said climate change is “quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.” Parliament had already provided that response: the Emissions Trading Scheme, the Climate Change Response Act, and a framework of emissions targets and reporting obligations covering most of the economy.

Whether that framework goes far enough is a political question. New Zealanders can vote for a government that strengthens it, or for one that does not. That is democracy.

Smith wanted the High Court to impose legal liability under a tort of “damage to the climate system,” never recognised anywhere in the common law world. The Court of Appeal had unanimously held that existing law could not support his claim. Smith wanted the courts to invent law that did.

That is not democracy. It is the opposite of democracy. Judges are appointed, not elected, and cannot be removed by voters. The Supreme Court does not face an electorate at the next election.

Parliament does. Parliament is sovereign and the democratic branch of government. It can hear submissions, take expert advice, and weigh costs and benefits. Courts hear two parties about one dispute.

When Parliament legislates to stop the courts from inventing new categories of legal liability on issues Parliament has already legislated about, it is exercising the function that democracy gives it.

Smith complains that “if Parliament can cancel a live court case, then no legal claim is secure at all, once it becomes politically inconvenient.”

This, too, has it backwards. Parliament is not cancelling any claim that the existing law supports. It is declining to allow the courts to develop a new claim that the law does not support.

The courts will continue to apply the law of tort to nuisance, negligence, and every other established cause of action. What they will not do is invent a new one on an issue Parliament has already addressed.

Doing otherwise would be an affront to democracy.

Roger Partridge is chairman of the New Zealand Initiative. This article was sourced from the NZ Initiative weekly newsletter, Insights, which can be subscribed to here