Smith v Attorney-General - [2024] NZCA 692
Date of Judgment
19 December 2024
Media releases
Decision
Smith v Attorney-General (PDF 712 KB)
Summary
New Zealand Bill of Rights Act 1990 - Treaty of Waitangi - climate change
The appellant, Mr Smith, is an environmental advocate and elder of Ngāpuhi and Ngāti Kahu. He is the plaintiff in a claim against seven New Zealand companies for their contribution to the adverse effects of climate change that survived a strike out application following a decision of the Supreme Court earlier this year.
This appeal concerns Mr Smith’s separate claim against the Crown in relation to the adverse effects of climate change. Mr Smith alleges that hundreds of sites of special cultural, historical and spiritual significance to his iwi have already been impacted or will be impacted by climate change, specifically those in the vicinity of the Mahinepua C Block, whenua with which he has a close connection. He brings this claim on behalf of his whānau, members of his iwi and future descendants.
He says that New Zealand’s legislative framework responding to climate change, primarily the Climate Change Response Act 2002 (the CCRA), is inadequate to provide rational and effective deterrence of the real and immediate risk that Mr Smith and those he represents will be deprived of their right to life under s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA) and their right to culture under s 20 of NZBORA. He further says their right to life and their right to culture is breached because the Crown does not measure or monitor its own emissions and does not have a regulatory framework to mitigate its own emissions. He also says the inadequate framework under the CCRA and the absence of a framework for Crown emissions breaches te Tiriti, a fiduciary duty and/or a novel common law duty. He seeks declarations to this effect as well as reporting orders requiring the Crown to update the court of the steps it is taking to bring itself into a position of compliance with NZBORA (including the possibility for further relief).
Grice J in the High Court granted the Crown's application to strike out the claims. Mr Smith appeals from that decision.
Held: The appeal is dismissed.
Right to life
The Court examined Mr Smith's right to life claim through six questions:
a) whether the right to life includes a right to a life with dignity;
b) whether widespread effects prevent the engagement of the right to life;
c) whether the risks from climate change are sufficiently proximate;
d) whether the right to life can impose positive duties;
e) whether it is tenable that New Zealand's regulatory framework breached the right to life; and
f) whether reporting orders are tenably available.
On the first question, it is not clearly untenable that the right to life includes a right to a minimum baseline as to the quality of one’s life and is engaged in the context of the potential impacts of climate change. This approach is not necessarily inconsistent with the words of s 8 or earlier authority, is consistent with international jurisprudence on equivalent rights and could be necessary to give the right to life its “full measure”.
On the second question, the claim is not clearly untenable on the basis that the alleged risk to life potentially affects a large group or all of the population.
On the third question, overseas jurisprudence on equivalent rights requires that a risk to life be reasonably foreseeable and sufficiently timely and physically proximate to be engaged. The scientific consensus articulated in the ICCPR reports is relevant to the imminence of the risk to life from climate change and the timeframe within which measures are available to address this risk. Whether the risk to life pleaded by Mr Smith is sufficiently timely and proximate to engage the right to life in NZBORA would require further particulars and would be a matter of evidence for trial. While proof would be challenging, as this would be a matter of evidence for trial this aspect is not so clearly untenable that the claim should be struck out on this basis.
On the fourth question, given the context of the climate emergency and the developing jurisprudence around the world responding to this challenge, it is not clearly untenable that the right to life in NZBORA encompasses a requirement on the Crown to take protective measures against foreseeable threats to life so as to give practical effect to the right.
On the fifth question, the pleaded claim challenged the efficacy of the legislative framework responding to climate change which reflected Parliament’s policy choices. The claim largely relied on jurisprudence on art 2 of the European Convention on Human Rights which had been interpreted to impose substantive obligations on states to have a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. If a legislative and administrative framework is in place, the state was allowed a wide margin of appreciation, but the efficacy of the framework could still be considered and might be found to breach art 2. In the present case, the CCRA is New Zealand’s primary framework for responding to the threats that climate change presents. The pleaded deficiencies in the CCRA framework reflect policy choices that are for Parliament under New Zealand’s constitutional arrangements and it is not for this Court to second guess them. The CCRA is comprehensive in its reach and the accountability mechanisms for decisions made under it included consultation, judicial review and potentially NZBORA claims in respect of those decisions. It is the decisions that are made under the CCRA that will determine the adequacy or otherwise of New Zealand’s response to climate change. Judicial review claims of these decisions is available and would be brought against the Minister responsible for the particular decision rather than against the Attorney-General as here. The pleaded claim under s 8 of NZBORA is clearly untenable and the Attorney-General is therefore entitled to an order striking it out.
On the sixth question, although there is jurisdiction to grant declarations of inconsistency with NZBORA, the court’s institutional role did not encompass an ongoing monitoring role of the measures the Crown is implementing in response to climate change. The reporting orders sought would not have been available even if the s 8 claim had been tenable.
Right to culture
It is not clearly untenable that climate change may give rise to a positive obligation on the Crown to protect against a denial of the right to culture under s 20 of NZBORA. It is not any damage to the whenua or sites of cultural significance that could give rise to any such obligation. A substantial interference amounting to a denial of the right would be necessary.
The pleaded claim is that s 20 is breached because the regulatory framework does not provide a rational and effective deterrent of the pleaded real and imminent risk to the right of Mr Smith and those he represents to enjoy their culture. This pleaded claim is clearly untenable for the same reasons as the right to life claim. The pleaded deficiencies of the CCRA framework reflect policy choices that are for Parliament.
Te Tiriti breach
The claim of a breach of te Tiriti is clearly untenable because the CCRA and other relevant Acts give effect to the Crown’s obligations under the Treaty. The CCRA could not be said to breach the Treaty where decisions consistent with Treaty principles are available to decision-makers. If decisions have been made lawfully under legislation that gives effect to the Crown’s Treaty obligations, there is no room for a claim to operate that the Treaty had been breached. If the decisions have not been made lawfully, Mr Smith’s remedy is judicial review in respect of that decision against the decision-maker under the relevant legislation. There are also other remedial avenues available for decisions made under the CCRA including a claim under s 20 of NZBORA if the basis for such a claim arises and under the Waitangi Tribunal’s jurisdiction.
Te Tiriti fiduciary duty
Mr Smith claims that the Crown owes fiduciary or fiduciary-like duties to Mr Smith, his whānau, Ngāpuhi and Ngāti Kahu which includes duties to perform the commitments undertaken in te Tiriti, to take active steps to ensure those commitments are honoured and to act in good faith. He claims that the Crown has breached these duties.
The claimed fiduciary duty is unlike specific fiduciary duties that can arise between the Crown and certain Māori as a result of particular dealings between them. The pleaded claim is inconsistent with the nature of fiduciary duties because the response to climate change requires the Crown to represent and must balance many interests — it could not just act in the interests of the pleaded beneficiaries. The duty would also sit uneasily with the statutory scheme in the CCRA which reflected the range of considerations relevant to the Crown’s response to climate change (of which the effect on Māori communities was undoubtedly an important one).
Novel common law duty
The parts of the pleaded novel common law duty relying on NZBORA and the Treaty are untenable and therefore do not add to the case for the pleaded novel common law claim. The claim primarily relied upon a public trust doctrine which had been applied at common law to provide rights of access to the seashore and navigable waters, a context a long way from the extensive duty pleaded in relation to climate change. The boundaries of the public trust doctrine are imprecise and fluid, and raised a host of conceptual problems in imposing fiduciary or trust-like obligations on the Crown. The doctrine could also only operate to the extent that it was not displaced by legislation. The comprehensive framework that the CCRA provides does not leave room for the public trust doctrine to operate because it would cut across the balancing of interests entrusted to the Minister under the CCRA and, ultimately, Parliament.
The appellant, Mr Smith, is an environmental advocate and elder of Ngāpuhi and Ngāti Kahu. He is the plaintiff in a claim against seven New Zealand companies for their contribution to the adverse effects of climate change that survived a strike out application following a decision of the Supreme Court earlier this year.
This appeal concerns Mr Smith’s separate claim against the Crown in relation to the adverse effects of climate change. Mr Smith alleges that hundreds of sites of special cultural, historical and spiritual significance to his iwi have already been impacted or will be impacted by climate change, specifically those in the vicinity of the Mahinepua C Block, whenua with which he has a close connection. He brings this claim on behalf of his whānau, members of his iwi and future descendants.
He says that New Zealand’s legislative framework responding to climate change, primarily the Climate Change Response Act 2002 (the CCRA), is inadequate to provide rational and effective deterrence of the real and immediate risk that Mr Smith and those he represents will be deprived of their right to life under s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA) and their right to culture under s 20 of NZBORA. He further says their right to life and their right to culture is breached because the Crown does not measure or monitor its own emissions and does not have a regulatory framework to mitigate its own emissions. He also says the inadequate framework under the CCRA and the absence of a framework for Crown emissions breaches te Tiriti, a fiduciary duty and/or a novel common law duty. He seeks declarations to this effect as well as reporting orders requiring the Crown to update the court of the steps it is taking to bring itself into a position of compliance with NZBORA (including the possibility for further relief).
Grice J in the High Court granted the Crown's application to strike out the claims. Mr Smith appeals from that decision.
Held: The appeal is dismissed.
Right to life
The Court examined Mr Smith's right to life claim through six questions:
a) whether the right to life includes a right to a life with dignity;
b) whether widespread effects prevent the engagement of the right to life;
c) whether the risks from climate change are sufficiently proximate;
d) whether the right to life can impose positive duties;
e) whether it is tenable that New Zealand's regulatory framework breached the right to life; and
f) whether reporting orders are tenably available.
On the first question, it is not clearly untenable that the right to life includes a right to a minimum baseline as to the quality of one’s life and is engaged in the context of the potential impacts of climate change. This approach is not necessarily inconsistent with the words of s 8 or earlier authority, is consistent with international jurisprudence on equivalent rights and could be necessary to give the right to life its “full measure”.
On the second question, the claim is not clearly untenable on the basis that the alleged risk to life potentially affects a large group or all of the population.
On the third question, overseas jurisprudence on equivalent rights requires that a risk to life be reasonably foreseeable and sufficiently timely and physically proximate to be engaged. The scientific consensus articulated in the ICCPR reports is relevant to the imminence of the risk to life from climate change and the timeframe within which measures are available to address this risk. Whether the risk to life pleaded by Mr Smith is sufficiently timely and proximate to engage the right to life in NZBORA would require further particulars and would be a matter of evidence for trial. While proof would be challenging, as this would be a matter of evidence for trial this aspect is not so clearly untenable that the claim should be struck out on this basis.
On the fourth question, given the context of the climate emergency and the developing jurisprudence around the world responding to this challenge, it is not clearly untenable that the right to life in NZBORA encompasses a requirement on the Crown to take protective measures against foreseeable threats to life so as to give practical effect to the right.
On the fifth question, the pleaded claim challenged the efficacy of the legislative framework responding to climate change which reflected Parliament’s policy choices. The claim largely relied on jurisprudence on art 2 of the European Convention on Human Rights which had been interpreted to impose substantive obligations on states to have a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. If a legislative and administrative framework is in place, the state was allowed a wide margin of appreciation, but the efficacy of the framework could still be considered and might be found to breach art 2. In the present case, the CCRA is New Zealand’s primary framework for responding to the threats that climate change presents. The pleaded deficiencies in the CCRA framework reflect policy choices that are for Parliament under New Zealand’s constitutional arrangements and it is not for this Court to second guess them. The CCRA is comprehensive in its reach and the accountability mechanisms for decisions made under it included consultation, judicial review and potentially NZBORA claims in respect of those decisions. It is the decisions that are made under the CCRA that will determine the adequacy or otherwise of New Zealand’s response to climate change. Judicial review claims of these decisions is available and would be brought against the Minister responsible for the particular decision rather than against the Attorney-General as here. The pleaded claim under s 8 of NZBORA is clearly untenable and the Attorney-General is therefore entitled to an order striking it out.
On the sixth question, although there is jurisdiction to grant declarations of inconsistency with NZBORA, the court’s institutional role did not encompass an ongoing monitoring role of the measures the Crown is implementing in response to climate change. The reporting orders sought would not have been available even if the s 8 claim had been tenable.
Right to culture
It is not clearly untenable that climate change may give rise to a positive obligation on the Crown to protect against a denial of the right to culture under s 20 of NZBORA. It is not any damage to the whenua or sites of cultural significance that could give rise to any such obligation. A substantial interference amounting to a denial of the right would be necessary.
The pleaded claim is that s 20 is breached because the regulatory framework does not provide a rational and effective deterrent of the pleaded real and imminent risk to the right of Mr Smith and those he represents to enjoy their culture. This pleaded claim is clearly untenable for the same reasons as the right to life claim. The pleaded deficiencies of the CCRA framework reflect policy choices that are for Parliament.
Te Tiriti breach
The claim of a breach of te Tiriti is clearly untenable because the CCRA and other relevant Acts give effect to the Crown’s obligations under the Treaty. The CCRA could not be said to breach the Treaty where decisions consistent with Treaty principles are available to decision-makers. If decisions have been made lawfully under legislation that gives effect to the Crown’s Treaty obligations, there is no room for a claim to operate that the Treaty had been breached. If the decisions have not been made lawfully, Mr Smith’s remedy is judicial review in respect of that decision against the decision-maker under the relevant legislation. There are also other remedial avenues available for decisions made under the CCRA including a claim under s 20 of NZBORA if the basis for such a claim arises and under the Waitangi Tribunal’s jurisdiction.
Te Tiriti fiduciary duty
Mr Smith claims that the Crown owes fiduciary or fiduciary-like duties to Mr Smith, his whānau, Ngāpuhi and Ngāti Kahu which includes duties to perform the commitments undertaken in te Tiriti, to take active steps to ensure those commitments are honoured and to act in good faith. He claims that the Crown has breached these duties.
The claimed fiduciary duty is unlike specific fiduciary duties that can arise between the Crown and certain Māori as a result of particular dealings between them. The pleaded claim is inconsistent with the nature of fiduciary duties because the response to climate change requires the Crown to represent and must balance many interests — it could not just act in the interests of the pleaded beneficiaries. The duty would also sit uneasily with the statutory scheme in the CCRA which reflected the range of considerations relevant to the Crown’s response to climate change (of which the effect on Māori communities was undoubtedly an important one).
Novel common law duty
The parts of the pleaded novel common law duty relying on NZBORA and the Treaty are untenable and therefore do not add to the case for the pleaded novel common law claim. The claim primarily relied upon a public trust doctrine which had been applied at common law to provide rights of access to the seashore and navigable waters, a context a long way from the extensive duty pleaded in relation to climate change. The boundaries of the public trust doctrine are imprecise and fluid, and raised a host of conceptual problems in imposing fiduciary or trust-like obligations on the Crown. The doctrine could also only operate to the extent that it was not displaced by legislation. The comprehensive framework that the CCRA provides does not leave room for the public trust doctrine to operate because it would cut across the balancing of interests entrusted to the Minister under the CCRA and, ultimately, Parliament.