Appeal against Strike-out in New Zealand’s Climate Change and Human Rights Case Smith v Attorney-General: Part One

This analysis from the Supreme Court hearing of the appeal against strike-out in Smith v Attorney-General is in two parts. Part One addresses the matter at the heart of the case: Mike Smith’s assertion of the inadequacy of the state’s response to climate change, with the main focus on mitigating climate change through greenhouse gas emissions reduction. Part Two explores how international law can be expected to play into the interpretation of the rights to life and culture that Mike Smith has invoked under the New Zealand Bill of Rights Act 1990, adding breadth to the pleadings. 

The nub of the problem the New Zealand Supreme Court is dealing with in Mike Smith’s appeal against strike-out is the novelty of his challenge to the sufficiency of government action as a whole in the face of climate change. Yet it is plain that there is a strong argument from first principles that the courts must remain faithful to their function of rights protection as recognised in the New Zealand Bill of Rights Act 1990. For this reason, Smith’s appeal against strike-out may well succeed if the Supreme Court considers there could be a case that the rights invoked are not being protected as required. 

Mike Smith has made three claims. His first claim has been for breach of a novel public law duty on the part of the government, applying for his protection and that of his descendants from the adverse effects of climate change. His second claim has sought judicial declarations that neither the Crown nor New Zealand’s Climate Change Response Act 2002 adequately protect his rights under two provisions in the New Zealand Bill of Rights Act: the s8 right to life and the s20 right of minorities to practise their culture. These provisions protect these rights as expressed in the International Covenant on Civil and Political Rights 1966. His third claim has asked the Court to make a similar declaration that the Crown is not protecting taonga or treasured possessions held by him and his kin as Māori under Article II of the Treaty of Waitangi of 1840. Counsel for Smith explained how loss of culture and identity are at issue in this case. Sea level rise is locked-in, affecting land in the north of New Zealand held by him and his kin since before the Treaty of Waitangi, accompanied by ocean warming and acidification inhibiting their capacity to catch fish and live by taking food from the sea. The Bill of Rights claim is the strongest of the three, but the Court might also permit the other two claims to proceed. 

Opposing all three claims, Counsel for the Crown argued for the Supreme Court to uphold the strike-out of Smith’s case. The Crown put the view that the case asks the Court to make major changes in the judiciary’s relationship with the executive and legislative branches of government, altering the function of the New Zealand courts. The Crown further asserted that the pleadings for Mike Smith manifested a profound disrespect for democratic process because of the way they challenged the adequacy and efficacy of the existing statutory regime on climate change.

Given the centrality of rights protection to the function of the judiciary in the New Zealand constitutional system, it would be exceptional for this function to be forfeit because of the unprecedented character of the climate challenge. If that is accepted, then the issue is working out the available modes for the exercise of this function in the circumstances. The Supreme Court will be considering the possibility that, at trial, the courts might issue a traditional declaration of inconsistency in respect of the Climate Change Response Act 2002. The reasoning that would support such an approach is that the Act is inconsistent with adequate protection of the relevant rights because the Act is insufficient to protect these rights. If the Climate Change Response Act does not achieve what is needed to protect rights, then the legislature could be the formal addressee of a declaration of inconsistency. The rationale for such a declaration would be that Parliament is capable of legislating to mandate the appropriate action to address climate change. 

Is it appropriate for a declaration of inconsistency in respect of legislation potentially to be employed in a case that is at its heart about the alleged inadequacy of the overall state response to climate change as a whole? Pleadings made clear that multiple features of New Zealand law and policy playing into climate change mitigation are effectively in scope, not just matters governed under the Climate Change Response Act. As pleaded, these features include overreliance on offshore credits to meet New Zealand’s international climate commitments together with dependence on monoculture afforestation at risk of burning, the licensing of fossil fuel exploration and much more, as well as the lowering of methane emissions reduction targets and the exclusion of agriculture from the New Zealand emissions trading scheme. 

The argument runs that Parliament’s capacity to address the overall deficiency of the state’s response to climate change through legislation means that the deficit could be laid at the door of the legislature, even though in reality a deficit in the state’s response to climate change could be ameliorated through a range of alternative or combined executive actions across a wide range of policy areas. Such a declaration of inconsistency could serve as a clear signal to the executive as well as the legislative branch of government that protection of rights requires a more proactive response to climate change. The Court will be mulling over the precedent that this would set and the implications in light of the constitutional relationships among the branches of government. 

Mike Smith has also sought a declaration that on its terms addresses also the actions and inaction of the executive branch. Although the New Zealand Bill of Rights Act applies to all three branches of government, there is probably a greater difficulty here because the executive branch does not enjoy the legislature’s power to make and maintain laws even in the face of declared incompatibility with rights. This means it is important for the Supreme Court to consider whether the economic, social and political complexities of New Zealand’s climate-related policies would take the courts beyond their mandate in terms of the separation of powers vis-à-vis the executive branch. A second more practical question articulated in the hearings is the possible risk of detrimental effects on New Zealand’s constitutional and legal fabric if the executive decided to ignore a formal judicial declaration of illegality.  

There is another possibility to consider here, also traversed in oral pleadings. The Supreme Court could take into account in respect of Mike Smith’s claim in respect of the rights to life and culture that it is open to the courts at trial to go ahead and evaluate whether the relevant rights are sufficiently protected, and whether restrictions on the rights are proportionate under the New Zealand Bill of Rights Act, and yet for reasons of constitutional comity to decide in the exercise of their discretion not to make a formal declaration on the issue. This would still not be the end of the story. Whichever of these courses the courts might take at trial, the International Covenant on Civil and Political Rights remains clear on its terms that individuals are entitled not only to have their rights determined but also, in case of violation, to effective remedies from the competent bodies within the State’s legal system.

Howsoever the Supreme Court might reason its decision on the appeal against strike-out, the Court would likely consider the extent of States’ individual responsibilities to address the collective problem of climate change mitigation through cooperative action among States internationally. This matter, which members of the Supreme Court referred to during the proceedings as the matter of causation, has been dealt with by judicial bodies elsewhere including the Dutch Supreme Court in the Urgenda case, the European Court of Human Rights in Klimaseniorinnen and the Queensland Land Court in the Waratah Coal case. The International Court of Justice also addressed the matter in 2025, as addressed in Part Two.