RM Journal

Climate change culpability in Aotearoa – could emitters be in hot water?


Authors: Kierra Parker, Senior Associate, Resource Management, DLA Piper; Matthew Dicken, Solicitor, Resource Management, DLA Piper

Climate change poses a current threat to us all. The Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report (IPCC, Working Group II contribution, Climate Change: Impacts, Adaptation and Vulnerability (February 2022)) concludes (at SPM-8) that weather and climate extremes have already led to some irreversible impacts as natural and human systems are pushed beyond their ability to adapt, and that: “The extent and magnitude of climate change impacts are larger than estimated in previous assessments.” In New Zealand, the impacts of climate change already being experienced include sea and land temperature increases, drier soil, melting glaciers, rising sea levels, ocean acidification and increased flooding.

The role of the judiciary in climate change mitigation and adaptation continues to develop internationally, as litigants seek to test the boundaries of the law to address the looming climate crisis. Climate change litigation in New Zealand to date has generally been brought against government inaction (eg, Thomson v Minister for Climate Change Issues [2017] NZHC 733, [2018] 2 NZLR 160).

The Court of Appeal’s decision in Smith v Fonterra Co- Operative Group Ltd [2021] NZCA 552 (Smith) late last year sets a new precedent in terms of the application of tort law in a climate change context. The Supreme Court has recently granted leave to appeal from the Court of Appeal’s decision in Smith. Accordingly, the time is apt to consider the analysis in Smith in the context of recent government responses to climate change and international trends, as we await the Supreme Court’s ultimate decision.

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