Climate Change Response (Tort Liability) Amendment Bill

Climate Change Response (Tort Liability) Amendment Bill EXPLANATORY NOTE GENERAL POLICY STATEMENT The Climate Change Response Act 2002 (the Act ) establishes the legal framework for New Zealand’s regulatory response to climate change. It includes a 2050 target for emissions reductions and a regime for setting, and meeting, successive emissions budgets with a view to achieving the 2050 target. The Climate Change Response (Tort Liability) Amendment Bill (the Bill ) amends the Act to confirm that the role of developing, setting, and implementing regulatory policy in respect of greenhouse gas emissions sits with the Executive and the Legislature. The Bill creates a statutory bar on tort liability for emissions-related climate change effects. That bar will apply so that no person (including the Crown) can be found liable in tort for emissions-related climate change effects. In order to ensure regulatory coherence, the statutory bar provided in the Bill applies to existing proceedings that have not been finally determined by a court or tribunal before the commencement of the Bill. The Bill responds to the pending trial of the claim not struck out in Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134. The Government is concerned that that litigation could lead to a finding that causing or contributing to the emission of greenhouse gases could result in tort liability. That would create a parallel and contradictory regime to the one provided in the Act. The Government considers that tort law is not an appropriate mechanism for responding to greenhouse gas emissions, as there needs to be careful consideration of social, economic, and distributional implications of different climate policy choices. The Government’s policy intention is that New Zealand’s regulatory response to climate change should be managed through the Act. The Supreme Court’s strike-out decision, allowing the claim to proceed to trial, noted that there was no basis to conclude that Parliament had displaced the law of torts in the realm of climate change in New Zealand. The Bill excludes tort liability for climate change, and for climate change-related damage, caused by greenhouse gas emissions. DEPARTMENTAL DISCLOSURE STATEMENT The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill. A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2026&no=330 REGULATORY IMPACT STATEMENT The Ministry of Justice produced a regulatory impact statement on 21 April 2026 to help inform the main policy decisions taken by the Government relating to the contents of this Bill. A copy of this regulatory impact statement can be found at— https://www.justice.govt.nz/justice-sector-policy/regulatory-stewardship/regulatory-impact-assessments/ https://www.regulation.govt.nz/our-work/regulatory-impact-statements/ CLAUSE BY CLAUSE ANALYSIS Clause 1 is the Title clause. Clause 2 ensures that the Bill comes into force on the day after Royal assent. NO TORT LIABILITY FOR EMISSIONS-RELATED CLIMATE CHANGE EFFECTS Clause 3 provides that the principal Act amended by Part 1 is the Climate Change Response Act 2002 (the principal Act ). Clause 4 inserts new Part 8 , which contains new sections 271 to 274 . New section 271(1) ensures that new section 271 applies to a person who carries out an activity if— the activity causes or contributes to emissions (whether emissions from the activity, emissions from a related activity, or both); and the emissions cause or contribute to emissions-related climate change effects. New section 271(2) ensures that the person has no tort liability for the emissions-related climate change effects. New section 271(3) makes clear that, for the purposes of new section 271 , it does not matter— whether all or any of the activity, the related activity, the emissions, and the effects occur in or outside New Zealand: how the activity and the related activity are related, whether they are carried out by the same person or by different people, and if they are carried out, in whole or in part, at the same time or at different times: whether all or any of the activity, the related activity, the emissions, and the effects occurred (in whole or in part) before, at, or after the commencement of new Part 8 ( see new clause 52 of Schedule 1AA ): whether a cause or contribution (of the emissions, or to the effects) is actual or potential, is in whole or in part, or is direct or indirect. New section 271 ensures that an activity is linked to either or both of the following kinds of connected emissions (which, in this note, have the following meanings): direct emissions (also sometimes called scope 1 emissions), which are emissions directly from the carrying out of an activity: indirect emissions (also sometimes called scope 2 emissions and scope 3 emissions), which are emissions that are connected to a person’s activity, but that occur as a result of another person’s activity. An example of indirect emissions, for a person carrying out an activity that is manufacturing of goods at a factory, is emissions from the factory’s purchase and use of— non-renewable energy generated by another person; or goods manufactured by another person. New section 272(1) provides that, in new Part 8 , emissions-related climate change effects means either or both of the following to the extent that emissions specified in new section 271 do or may cause or contribute to either or both of them: climate change: any damage, harm, interference, loss, obstruction, or wrong, in or outside New Zealand, to the extent that it was, or may have been, in whole or in part and directly or indirectly, caused or contributed to by climate change. New section 272(1)(a) refers to climate change as defined in new section 273 , which has the meaning given to it in article 1, paragraph 2, of the United Nations Framework Convention on Climate Change, namely, a change of climate that— is attributable directly or indirectly to human activity; and alters the composition of the global atmosphere; and is in addition to natural climate variability observed over comparable time periods. New section 272(1)(b) refers to, and new section 272(2) gives examples of, any damage, harm, interference, loss, obstruction, or wrong, in or outside New Zealand, to the extent that it was, or may have been, in whole or in part and directly or indirectly, caused or contributed to by climate change. The examples given do not necessarily reflect any currently-recognised liability in tort or forms of loss, whether regarding climate change or otherwise. They help to ensure that the statutory bar is applied regardless of plaintiffs claiming novel forms of loss. They are based on— the public nuisance tort claims, negligence claims, and novel tort claims, in the proceeding Smith v Fonterra Co-operative Group Ltd CIV-2019-404-001730, as those claims are discussed in the strike-out decision in Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134: section 145 (criminal nuisance) of the Crimes Act 1961. New Part 8 does not affect or limit the rules for choosing the law to be used for determining issues relating to tort. Those choice of law rules include the rules established by the Private International Law (Choice of Law in Tort) Act 2017. New sections 271 and 272 ensure that the statutory bar does not affect tort liability for effects of emissions that are not emissions-related climate change effects. For example, a factory burning a fossil fuel (for example, coal) may cause effects that are not climate change or climate change-related damage, and that include— ash residue that falls on nearby buildings; or odours that affect the surrounding area. The statutory bar also does not affect— tort liability (if any can be established) for a breach of a statutory duty; or tort liability for any misfeasance in a public office. New section 273 defines, for the purposes of new Part 8 , climate change, emissions, greenhouse gas, person, and tort liability. Tort liability is defined in new section 273 to cover any current or potential liability in tort that, if not excluded, does or may, at common law, in equity, or under any other law, result in either or both of the following: any interim or interlocutory remedy (whether a declaration, an injunction (mandatory, prohibitory, or restrictive), or any other available kind of interim or interlocutory remedy): any final remedy (whether a declaration, an injunction (mandatory, prohibitory, or restrictive), any form of monetary relief, or any other available kind of final remedy). New section 274 ensures that new Part 8 applies to activities, related activities, emissions, or effects specified in new section 271 regardless of the extent to which— other legislation (for example, the principal Act (other than new Part 8 )) applied, or could have been applied, to those activities, related activities, emissions, or effects: a person complied with other legislation that applied to those activities, related activities, emissions, or effects: a person was subject to enforcement action for not complying with other legislation that applied to those activities, related activities, emissions, or effects. New section 274 ensures, for example, that new Part 8 applies regardless of whether, how, and to what extent, when the emissions specified in new section 271 occurred, those emissions were or could have been made, or the activity specified in new section 271 was or could have been made, subject to— legislation in or made under the Act (other than new Part 8 ): legislation relating to all or any of the use, protection, and enhancement of the natural environment: legislation relating to planning and regulating the use, development, and enjoyment of land. Clause 5 amends Schedule 1AA, which sets out transitional, savings, and related provisions that, under section 4A, have effect according to their terms. New Part 7 of Schedule 1AA (inserted by clause 5 and the Schedule of the Bill)— sets out provisions (including new clauses 51 to 54 of Schedule 1AA ) relating to the Bill; and specifies the activities, related activities, emissions, effects, and court or tribunal proceedings to which new Part 8 applies. New clause 52 of Schedule 1AA ensures that new Part 8 applies to the following, whether all or any of them occurred (in whole or in part) before, at, or after the Bill’s commencement: a person’s carrying out of an activity: a person’s carrying out of a related activity: emissions that were, or may have been, caused or contributed to by the activity: emissions-related climate change effects that were, or may have been, caused or contributed to by the emissions. New clause 53 of Schedule 1AA ensures that new Part 8 applies to the following court or tribunal proceedings: the proceeding Smith v Fonterra Co-operative Group Ltd CIV-2019-404-001730, considered in the following strike-out decisions: Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394: Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, [2022] NZLR 284: Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134: any other proceedings commenced, and not finally determined (including any appeal or rehearing), before the Bill’s commencement: proceedings commenced at or after that commencement. New clause 54 of Schedule 1AA ensures that a person is not entitled to compensation of any kind on account of the operation of the amendments made by the Bill. CONSEQUENTIAL AMENDMENT Clause 6 provides that the principal Act amended by Part 2 is the Resource Management Act 1991 (the RMA ). Clause 7 amends section 23 of the RMA (other legal requirements not affected). Section 23(1) provides that compliance with the RMA does not remove the need to comply with all other applicable legislation and other rules of law. Section 23(2) ensures that a duty or restriction in Part 3 is only enforceable against a person through the provisions of the RMA; and a person is liable to any other person for a breach of the duty or restriction only under those provisions. Section 23(3) provides that nothing in section 23(2) limits or affects any right of action which any person may have independently of the provisions of the RMA. As noted in Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [96], s 23 expressly preserves access to common law rights of action , and This is perhaps unsurprising given the antiquity of environmental nuisance actions and the continuing resort to them. New section 23(4) ensures that section 23 does not limit new Part 8 (no tort liability for emissions-related climate change effects) of the Climate Change Response Act 2002. The Parliament of New Zealand enacts as follows: 1 Title This Act is the Climate Change Response (Tort Liability) Amendment Act 2026 . 2 Commencement This Act comes into force on the day after Royal assent. 3 Principal Act This Part amends the Climate Change Response Act 2002. 4 New Part 8 inserted After section 270, insert: 8 No tort liability for emissions-related climate change effects 271 Statutory bar on tort liability When this section applies 1 This section applies to a person who carries out an activity if— a the activity causes or contributes to emissions (whether emissions from the activity, emissions from a related activity, or both); and b the emissions cause or contribute to emissions-related climate change effects. No tort liability for emissions-related climate change effects 2 The person has no tort liability for the emissions-related climate change effects. Activities, related activities, emissions, and effects covered 3 For the purposes of this section, it does not matter— a whether all or any of the activity, the related activity, the emissions, and the effects occur in or outside New Zealand: b how the activity and the related activity are related, whether they are carried out by the same person or by different people, and if they are carried out, in whole or in part, at the same time or at different times: c whether all or any of the activity, the related activity, the emissions, and the effects occurred (in whole or in part) before, at, or after the commencement of this Part ( see clause 52 of Schedule 1AA ): d whether a cause or contribution (of the emissions, or to the effects) is actual or potential, is in whole or in part, or is direct or indirect. 272 Meaning of emissions-related climate change effects 1 In this Part, emissions-related climate change effects means either or both of the following to the extent that emissions specified in section 271 do or may cause or contribute to either or both of them: a climate change: b any damage, harm, interference, loss, obstruction, or wrong, in or outside New Zealand, to the extent that it was, or may have been, in whole or in part and directly or indirectly, caused or contributed to by climate change. 2 Examples of the damage, harm, interference, loss, obstruction, or wrong referred to in subsection (1)(b) include, without limiting the generality of those terms,— a climate change-related risks or threats to the continuation of a safe and habitable climate system: b endangering or impairing the life, safety, health, property, or comfort of the public: c interfering with, or obstructing, the public in the exercise or enjoyment of public rights: d harm, impairment, or loss, or a conception (including, without limitation, a tikanga Māori conception) of harm, impairment, or loss, that is neither physical nor economic: e interference with use or enjoyment of, damage to, or loss of, property: f any related detriment to the comfort or health of any owner, occupier, or possessor of the property. 273 Other definitions for purposes of Part In this Part, unless the context otherwise requires,— climate change has the meaning given to it in article 1, paragraph 2, of the Convention (as defined in section 4(1)) emissions (despite the definition of that term in section 4(1)) means emissions of greenhouse gases greenhouse gas has the meaning given to it in section 4(1) person includes, without limiting the generality of that term,— a a corporation sole, a body corporate, and an unincorporated body; and b an overseas person as defined in section 7 of the Overseas Investment Act 2005; and c a public entity as defined in section 5 of the Public Audit Act 2001, for example, the Crown as defined in section 4 of that Act, which— i means the Sovereign in right of New Zealand; and ii includes all Ministers of the Crown and all departments (as defined in section 2(1) of the Public Finance Act 1989) tort liability means any liability in tort— a whether it is, or is similar to, a form of liability in tort recognised at common law immediately before the commencement of this Part, or it is a form of liability in tort that, but for this Part, may have been recognised at common law at or after that commencement; and b whether it is direct liability or vicarious liability; and c that does or may, at common law, in equity, or under any other law, result in either or both of the following: i any interim or interlocutory remedy (whether a declaration, an injunction (mandatory, prohibitory, or restrictive), or any other available kind of interim or interlocutory remedy): ii any final remedy (whether a declaration, an injunction (mandatory, prohibitory, or restrictive), any form of monetary relief, or any other available kind of final remedy). 274 Statutory bar unaffected by other applicable legislation This Part applies to activities, related activities, emissions, or effects specified in section 271 regardless of the extent to which— a other legislation (for example, this Act (other than this Part)) applied, or could have been applied, to those activities, related activities, emissions, or effects: b a person complied with other legislation that applied to those activities, related activities, emissions, or effects: c a person was subject to enforcement action for not complying with other legislation that applied to those activities, related activities, emissions, or effects. 5 Schedule 1AA amended In Schedule 1AA,— a insert the Part set out in the Schedule of this Act as the last Part; and b make all necessary consequential amendments. 6 Principal Act This Part amends the Resource Management Act 1991. 7 Section 23 amended (Other legal requirements not affected) After section 23(3), insert: 4 This section does not limit Part 8 (no tort liability for emissions-related climate change effects) of the Climate Change Response Act 2002. New Part 7 inserted into Schedule 1AA 7 Provisions relating to Climate Change Response (Tort Liability) Amendment Act 2026 51 Interpretation In this Part,— amendment Act means the Climate Change Response (Tort Liability) Amendment Act 2026 commencement means the amendment Act’s commencement proceedings means proceedings— a before, in, or of a court or tribunal; and b relating to either or both of the following: i an interlocutory matter: ii a substantive matter. 52 Activities, related activities, emissions, and effects affected by statutory bar Part 8 (no tort liability for emissions-related climate change effects) applies to the following, whether all or any of them occurred (in whole or in part) before, at, or after the commencement: a a person’s carrying out of an activity: b a person’s carrying out of a related activity: c emissions that were, or may have been, caused or contributed to by the activity: d emissions-related climate change effects that were, or may have been, caused or contributed to by the emissions. 53 Proceedings affected by statutory bar Part 8 (no tort liability for emissions-related climate change effects) applies to the following proceedings: Proceedings not finally determined pre-commencement a the proceeding Smith v Fonterra Co-operative Group Ltd CIV-2019-404-001730, considered in the following strike-out decisions: i Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394: ii Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, [2022] NZLR 284: iii Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134: b any other proceedings commenced, and not finally determined (including any appeal or rehearing), before the commencement: Post-commencement proceedings c proceedings commenced at or after the commencement. 54 No entitlement to compensation A person is not entitled to compensation of any kind on account of the operation of the amendments made by the amendment Act.