Mike Smith’s case against six (originally seven) of Aotearoa’s biggest polluters has been in front of the courts for six years. These corporations create approximately a third of Aotearoa’s GHG emissions, with the defendants representing our highest polluting industries: agriculture and fossil fuels.

Smith’s was the first case of climate damage tort law in New Zealand and a Supreme Court judgement last year saw his claims judged reasonable under public nuisance. The judge also ruled that the proposed novel climate harm claims should also be reinstated with a 15 week trial set for 2027. It has been described as the most procedurally advanced climate tort case of its kind in the world.

And yet all of that work, by Smith, his lawyers, and the judiciary, has been undermined by the government’s intent to stop climate litigation. Not only will Smith’s right to have his case heard be revoked, the amendments ensure that corporates operating in New Zealand will no longer need to be concerned about legal repercussions due to their polluting activities. 

In Aotearoa, climate litigation will be off the table. 

Reports from Smith and his team this morning suggest that the changes to the law were originally drafted by Fonterra and Z Energy and supplied to the Prime Minister’s office in 2024 (conveniently in handwritten form that nobody in Luxon’s office can remember). 

Is the fact that the bill was announced the week after Judith Collins left the role of Attorney General a coincidence? This feels like a level of cronyism even Crusher would stand up against. As former President and Vice President of the Auckland District Law Society and the New Zealand Law Society respectively, she would fully understand the implications of these amendments.

Criticism has come from various sectors with the most concerning being that this is setting a dangerous precedent in executive overreach. The executive, parliament and judiciary are supposed to be three separate arms of NZ law, yet this whole situation stinks of one parent undermining another.

Fonterra: Mum! Dad’s punishing me for polluting the entire country!

Justice Minister Paul Goldsmith: Oh, we can’t have that darling! You’ve always been my favourite, let me talk to him.

Good parenting (governance) means you trust the system to work and you have each other's back. Yet this new bill overtly states that when it comes to climate repercussions, the courts of law no longer have anything to do with it.

But maybe I haven’t quite nailed the metaphor. It’s more like Fonterra and his buddies got caught bullying and mum came storming in to yell at the teacher for giving them detention. 

Is this what they mean by a nanny state? The government coddling corporates because little Fonny has always meant well, even though all his teachers and peers can see that (while he is trying to improve, and is more charming than the devil) Fonny has been taking advantage of his mates and has talked them into setting the school on fire. 

These are the stakes we’re talking about. The largest polluters in the country have just been given a complete pass when it comes to being held responsible for their actions. Actions that are already impacting every single one of us. 

Maybe I’m overreacting. Half of the defendants are part of the Climate Leaders Coalition. If we’re to believe the strategic misnaming of that organisation, Fonterra, Z Energy and Genesis are at the leading-edge of sustainability in New Zealand. Not only are they having their cake and eating it. My guess is that they’re open-mouthed-laughing with a gobful.

Earlier this year, Fonterra managed to put a positive spin on research that showed 98% of environmental claims by the global dairy industry could be considered greenwash. Just a day after the release of the study, they celebrated their strong performance. It’s true in a relative sense: only 97% of their claims were misinformation and disinformation greenwash, according to the researchers’ criteria.

Their partners in climate obstruction, Z Energy, managed to claim victory, in a greenwashing case that they said was simply customers misunderstanding what it meant to be “getting out of the petrol business.” We can’t stay mad when the CEO apologises for any misunderstandings they have caused “now or in the future.”

All of this begs the question, should we not be following Australia’s lead and investigating how much corporate lobbying is affecting our climate policy? An Australian Senate Select Committee, a group of sitting politicians, found a need for more transparency in corporate lobbying. Specifically in regard to climate change. Their report articulated clear links between the fossil fuel and dairy industry in the US to delay climate action, as well replication of the same corporate influence in Australia. 

From the latest news, it seems the same lobby groups are incredibly effective on this side of the Tasman too. Our politicians seem to be taking them at face value. 

Then again, Paul Goldsmith could be right. Maybe the ETS will start working eventually; it does turn 18 this year.