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Brailsford, Feroze Duncan Gadekar --- "Foreseeable sea-level rise and climate change causation: a discussion of tort law's role in providing relief and attributing liability for climate change-induced harms" [2022] NZJlEnvLaw 5; (2022) 22 NZJEL 91

New Zealand Journal of Environmental Law

Foreseeable sea-level rise and climate change causation: a discussion of tort law's role in providing relief and attributing liability for climate change-induced harms [2022] NZJlEnvLaw 5 (31 December 2022); (2022) 22 NZJEL 91

Last Updated: 14 May 2024

91

Foreseeable Sea-level Rise and Climate Change Causation: A Discussion of Tort Law’s Role in Providing Relief

and Attributing Liability for Climate Change-Induced Harms

Feroze Duncan Gadekar Brailsford*

Aotearoa New Zealand’s public law accountability mechanisms are insufficient and poorly placed to prevent and provide relief from climate change-induced harms. By contrast, tort law is well-placed and well- suited to addressing damage to private property and personal interests.

1. INTRODUCTION

Climate change is an extremely complex and difficult issue. It crosses juris­ dictional boundaries, is rapidly worsening and has the potential to cause unprecedented loss and damage.

— Winkelmann CJ, Glazebrook and Ellen France JJ ¹

The threat of climate change-induced harm has prompted legal reactions across the world.² This article examines the role of private domestic law in Aotearoa

*LLB/BA, Solicitor, Cooper Legal. This article is based on a thesis submitted in partial fulfilment of the requirements of a Bachelor of Law degree at Victoria University of Wellington. The author is indebted to Professor Catherine Iorns for their supervision and continued guidance. Email: feroze@cooperlegal.co.nz.

1. Helen Winkelmann, Susan Glazebrook and Ellen France “Climate Change and the Law” (paper presented to Asia Pacific Judicial Colloquium, Singapore, 28–30 May 2019).
2. For example, Thomson v Minister for Climate Change Issues [2017] NZHC 733; Urgenda Foundation v Netherlands [2015] C/09/456689/HA 2A 13-1396 (Den Hagg District Court); American Electric Power Co et al v Connecticut et al (2010) 564 US 410; Court on its own motion v State of Himachal Pradesh & Ors [2013] CWPIL No 15 of 2010 (Indian National Green Tribunal); Luciano Lliuya

New Zealand, in providing solutions and certainty concerning climate change. In particular, the article engages with the public nuisance and negligence claims presented in Smith v Fonterra Co-Operative Group Ltd.³ In approaching the role of private domestic law in addressing climate change-induced harm, the article focuses on accountability or reparation mechanisms at common law rather than statutory regimes.⁴ The history of anthropogenic climate change and its effects are not the subjects of this article.⁵

This article uses a working definition of “climate change-induced harms” as those affecting private property and private interests. Whilst broader debate continues concerning the scope of climate-induced harm in international and domestic law,⁶ this article proceeds by focusing solely on currently recognised harms under the domestic law of Aotearoa New Zealand.

As practised in Aotearoa New Zealand, English law increasingly draws upon tikanga Māori to inform and develop a socially appropriate legal system.⁷ Historical practice has treated tikanga Māori as a factual consideration/inquiry akin to typical business practice.⁸ This approach is being abandoned, with current court practice engaging with tikanga Māori in a bijural/comparative legal manner.⁹ An authoritative judicial method is yet to emerge. However,

v RWE AG Case No 2 O 285/15 (Essen Regional Court); Sharma by her litigation representative Sister Brigid Arthur v Minister for the Environment [2021] FCA 560.

3. Smith v Fonterra Co-Operative Group Ltd [2020] NZHC 419 [Smith (HC)]; Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552 [Smith (CA)]; Smith v Fonterra Co-Operative Group Ltd [2022] NZSC 35. Note Mr Smith also pursues a public law case: Smith v Attorney-General [2022] NZHC 1693.
4. Applicable statutory regimes include the Emissions Trading Scheme under the Climate Change Response Act 2002 and land-use restrictions under the Resource Management Act 1991.
5. For a summary see Simon Hillier “The UNFCCC and Objector States: the other side of compromise” (Undergraduate Essay, Victoria University of Wellington, 2015) at 3–6; Intergovernmental Panel on Climate Change Climate Change 2014: Synthesis Report (2014).
6. Meinhard Doelle and Sara Seck “Loss & Damage from Climate Change: from concept to remedy?” (2020) 20 Climate Policy 669.
7. Attorney-General v Ngati Apa [2002] 2 NZLR 661 (CA); Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board and Ors [2021] NZSC 127; Takamore v Clarke [2012] NZSC 116; Te Whakatohea (No 2) [2021] NZHC 1025; Ngawaka v Ngāti Rehua­Ngātiwai Ki Aotea Trust Board (No 2) [2021] NZHC 291; Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181; Ellis v R [2022] NZSC 114; Ngāti Whātua Ōrākei Trust v Attorney General [2018] NZSC 84; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654.
8. Attorney-General v Ngati Apa, above n 7; Takamore v Clarke, above n 7.
9. Ngāti Whātua Ōrākei Trust v Attorney General, above n 7; Ellis v R, above n 7; Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board and Ors, above n 7.

the courts increasingly draw upon tikanga Māori to bolster their English law determinations.¹⁰ This emergent practice is reshaping the natureof common law-protected interests and, consequently, the nature of climate change-induced harm for which remedy may be available.

As the Smith litigation inspires this article, it is helpful to introduce the case briefly. Mr Mike Smith currently serves as climate change spokesperson for the Iwi Chairs’ Forum. He claims a beneficial interest in the coastal Mahinepua C block, located in Te Tai Tokerau. He relies upon the alleged harm to this interest and coastal activity rights in his claims against Fonterra, Z Energy, BT Mining, and others. Mr Smith’s claims were struck out by the High Court, a decision which was upheld by the Court of Appeal. The Supreme Court has recently heard Mr Smith’s appeal and has reserved judgment. Key questions on appeal, before the Court of Appeal and the Supreme Court, were whether public nuisance standing existed, whether a duty is owed in negligence, whether a pathway to showing causation exists, and what was the appropriate relief if either action was successful.

The High Court also heard an argument on an “inchoate” non-contractual duty. It remains unclear if the purported duty is fiduciary or tortious, but it is clear that its foundations were in tikanga Māori. The High Court left the question of such a duty for trial, despite Wylie J expressing strong doubts.¹¹ The Court of Appeal struck out this “inchoate” non-contractual cause of action.¹² Maria Hook, Ceri Warnock, Barry Allan and Mihiata Pirini recently wrote concerning the appropriateness and timeliness of recognising an inchoate duty, particularly given the global emergent movement towards recognising a tort to the environment.¹³ While the exact form of the duty is unclear, the Court of Appeal’s decision to strike out the cause of action is wrong, given that strike-out applications should not be granted where an amended statement of claim may remedy the cause of action’s viability. The appropriate motion concerning this cause of action was for further particulars, not strike-out.

This article has two principal sections: arguments around the availability of private/tortious liability/relief and a discussion of defined elements of tort law. Before turning to the details of tort law, the article outlines why private actions are preferable to public law actions in Aotearoa New Zealand. A primary reason discussed is the lack of legal success of previous public law litigation in

10. Ellis v R, above n 7; Sweeney v Prison Manager, Spring Hill Corrections Facility, above n 7.
11. Smith (HC), above n 3. 12 Smith (CA), above n 3.

13 Maria Hook and others “Tort to the Environment: A Stretch Too Far or a Simple Step Forward?” (2021) 33 Journal of Environmental Law 1. See also Rhianna Morar and Mihiata Pirini “Climate change and the claiming of tino rangatiratanga” [2021] 5 NZWLJ 86 at 108–112.

Aotearoa New Zealand. Following a discussion about the importance of private law accountability, the article examines whether the foundations of tort law provide a reasonable basis for resolving climate change-induced harm issues.

After concluding that tort law is an appropriate tool, the article explores four tort law issues. The first tort law issue is whether a statutory bar, a rule of law, or “policy” considerations prevent tort law from being applied to climate change-induced harm issues. This discussion addresses both the standing issue in public nuisance and the “policy” discussions under the Anns test in negligence. The second tort law issue is whether a duty in negligence exists. This analysis examines the relationships between proximity and foreseeability of climate change-induced harm. The third tort law issue is whether a pathway to proving causation exists regarding climate change-induced harms. This discussion shifts causation analysis away from the “but for” test and restores the primacy of sufficiency and necessity. The fourth tort law issue is what types of relief are appropriate if an action in negligence or public nuisance is sustained. The article concludes that the adaptation and application of tort law are appropriate in the context of climate change-induced harms.

2. UTILITY OF PRIVATE ACTIONS

The New Zealand domestic legal system and its constitutional arrangements are such that it cannot be reasonably expected as matters stand that the courts can make a significant contribution to nudging policy­makers in the direction of adequately addressing the issues [of climate change] when decisions of government fall short.

— Sir Geoffrey Palmer QC former PM¹⁴

Winkelmann CJ, Glazebrook and Ellen France JJ recently presented a paper to the Asia Pacific Judicial Colloquium on climate change.¹⁵ Their paper provides a broad survey of domestic legal developments across various jurisdictions. A key focus of their discussion is public law litigation, with particular emphasis on human rights-based arguments.¹⁶ Winkelmann CJ, Glazebrook and Ellen France JJ favourably discuss the minority view expressed in Buller Coal.¹⁷ This approach appears odd, given that Glazebrook J was in the majority in Buller Coal. The Buller Coal decision was a significant defeat for the

14. Geoffrey Palmer “Can Judges Make a Difference? The Scope for Judicial Decisions on Climate Change in New Zealand Domestic Law” (2018) 49 VUWLR 191.
15. Winkelmann, Glazebrook and France, above n 1. 16 At [39]–[73].

17 At [85]–[88].

environmental movement. Geoffrey Palmer, former Attorney-General and Prime Minister, commented that the decision was “arguably wrong” and that today “New Zealand’s key environmental statute is disabled from considering ... climate change”.¹⁸ While the provisions interpreted in Buller Coal have since been repealed, the Buller Coal decision is a strong indictment of public law’s inability to address climate change. Yet, Winkelmann CJ, Glazebrook and Ellen France JJ conclude their Asia Pacific Judicial Colloquium paper:¹⁹

Despite these possible developments, we anticipate, in light of the difficulties with private law concepts, that parties will increasingly resort to public law remedies, holding governments and local authorities to commitments.

Winkelmann CJ, Ellen France and Glazebrook JJ’s comments express great hope in the thoughtfulness and skill of parliamentarians.²⁰ However, this faith is misplaced. Such faith, if any, should lie with the thoughtful and skilled judiciary adapting the ever-developing common law.²¹ Parliament’s statutory interventions have often been ineffectual and plagued with problems and critique.²² Winkelmann CJ, Ellen France and Glazebrook JJ are not the first, and will not be the last, to note climate change’s complexity. Lazarus describes climate change as a “super wicked problem” due to its complex and temporally dynamic elements. ²³ However, this is not a sufficient basis for the courts, or the law, to abandon questions of relief and liability surrounding climate change.²⁴ Pursuing effective public law accountability concerning climate change-

induced harms is fraught.²⁵ The courts have adopted a highly deferential “supremacy of parliament” doctrine that makes human rights or supreme law- based arguments unlikely to gain significant traction. Meritorious judicial

18. Geoffrey Palmer “Can judges make a difference? The scope of judicial decisions on climate change in New Zealand” (2015) 13 NZJPIL 115 at 127.
19. Winkelmann, Glazebrook and France, above n 1, at [134]. 20 At [136]–[137].
21. Arindam Basu “Climate Change Litigation In India: Seeking A New Approach through the Application Of Common Law Principles” (2011) 1 Environmental Law & Practice Review 35.
22. Samuel Leonard “Commitment Issues: A Critical Analysis of New Zealand’s Emissions Trading Scheme” (2015) 19 NZJEL 113; Christina Hood “Free allocation in the New Zealand Emissions Trading Scheme: a critical analysis” (2010) 6 Policy Quarterly 30; Elizabeth Driver, Meg Parsons and Karen Fisher “Technically Political: The Post-Politics(?) of the New Zealand Emissions Trading Scheme” (2018) 97 Geoforum 253; Palmer, above n 18.
23. Richard Lazarus “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future” (2009) 94 Cornell L Rev 1153.
24. Basu, above n 21; Stephen Pitel, Jason Neyers and Erika Chamberlain Tort Law: Challenging Orthodoxy (Hart Publishing, Portland, 2013) at 9.
25. Palmer, above n 14.

review proceedings are similarly rendered impotent by the deference shown to executive decision-making and the majority that the executive necessarily holds in the “supreme” legislature.²⁶ Further, as climate change-induced harm attributable to the state arises from a tapestry of government regulation, a plaintiff is presented with a difficult target.²⁷

It is helpful to briefly consider previous climate change litigation in Aotearoa New Zealand to illustrate this point. Rather than an exhaustive survey, Buller Coal, Thomson and Hauraki Coromandel Climate Action are discussed below to illustrate the broader problem with public law climate change litigation.

In Buller Coal, the Supreme Court was asked whether resource management decision-makers should consider the likely emissions of the proposed activity under the Resource Management Act 1991. The Court focused on the adoption of the Climate Change Response Act 2002, which, in their view, created an independent regime of emissions management and therefore ousted the Resource Management Act’s jurisdiction. Whether the Climate Change Response Act’s “independent regime” effectively managed emissions was not a question discussed by the Court. Had the Court engaged with the regime’s merits, two flaws would have been evident: no cap and unrestricted import of credit units. Without a cap, a cap-and-trade scheme is ineffective, as demand- and-supply relationships do not drive efficient allocation. Similarly, the import of supply, notably of poorly regulated Ukrainian credit units, prevents supply– demand relationships from affecting consumer behaviour.²⁸ The Court’s failure to engage with the practical reality of Parliament’s regulatory intervention but instead defer absolutely to a presumption of effectiveness is highly problematic.²⁹ The majority judgment was also criticised on a more traditional statutory interpretation footing.³⁰ This makes the failure to seize the opportunity to protect the environment even more disappointing. While, as noted above, the provisions on which the judgment turned have since been repealed, the case illustrates the lack of scrutiny the courts have applied to climate change public

26. Philip Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, 2007) at [1.5.3].
27. Thomson v Minister for Climate Change Issues, above n 2.
28. Geoff Simmons “Dodgy deals with climate fraudsters” (18 April 2016) The Spinoff <https://thespinoff.co.nz>; Palmer, above n 18.
29. Palmer, above n 18.
30. Catherine Iorns “Commentary on West Coast ENT Inc v Buller Coal Ltd Broadening an Ethic of Care to Recognise Responsibility for Climate Change” in Elisabeth McDonald and others (eds) Feminist Judgments of Aotearoa New Zealand — Te Rino: A Two-Stranded Rope (Hart Publishing, Oregon, United States of America, 2017) at 385–393; Nathan Ross “Climate Change and the Resource Management Act 1991: A Critique of West Coast ENT Inc v Buller Coal Ltd ” (2015) 46 VUWLR 1111.

law cases. Greenpeace NZ Inc v Genesis Power Ltd similarly illustrates an apparent unwillingness to give statutory language an environmentally protective effect.

Before discussing Thomson, it is helpful to note some background facts. Under the Paris Climate Accord, states must publish nationally determined contributions (NDCs). These NDCs represented the emissions reduction targets of each state individually and were chosen at the discretion of each state. This represented a shift from the Kyoto Protocol framework, which assigned an emissions reduction target to states according to the Annexes. Notably, the Kyoto Protocol did not impose reductions on the People’s Republic of China or the United States of America; China was a non-annexe state, and the United States did not sign up to the Protocol. A key victory of Paris was the meaningful inclusion of China and the United States by compromising the enforceability of the emissions reduction targets. Under Paris, states must report on their progress against their chosen target. They are not obliged to set a target representing a proportionate reduction of global emissions that would lead to climate change of less than 2.0°C or 1.5°C. Aotearoa New Zealand submitted a woefully unambitious NDC that did not consider Aotearoa New Zealand’s developed economy status or contain meaningful engagement with the reality of required global emissions reduction. Following the announcement of Aotearoa New Zealand’s NDC, the Intergovernmental Panel on Climate Change (IPCC) released a new assessment report on climate change.

In Thomson, Aotearoa New Zealand’s NDC was judicially reviewed. Thomson argued that following the IPCC 5th Assessment Report’s publication, the Minister should review the NDC. Mallon J agreed that whenever a new assessment report of the IPCC was published, the Minister must consider whether the latest information made a review of the target necessary. However, the Court held that the Minister need not commence a review of the target upon the publication of a new assessment report unless the latest information provided in the assessment report made the current NDC untenable. Further, the Minister’s weighting of any information would remain solely a question for the Minister. In the author’s view, the courts’ trepidation to use public law tools to prevent politicians from pursuing short-term-focused and environmentally devastating policies remains a concern.

In Hauraki Coromandel Climate Action, an environmentalist group judicially reviewed Sandra Goudie, a local mayor. Ms Goudie had presented a climate sceptic report to their Council concerning an invitation to sign the Local Government Leaders’ Climate Change Declaration. Palmer J held that Goudie had insufficient regard for climate change’s impacts on economic and societal life within the district and had failed to consider the Council’s fiscal position adequately. Palmer J used a public law tool to constrain Ms Goudie, yet only procedurally.

However, Ms Goudie, a known climate denier,³¹ is unlikely to meaningfully change their position. As judicial review proceedings generally examine procedural errors, the ability of socially aware judges to meaningfully contain rogue and irresponsible public office-holders is regrettably limited.

The underlying complexity of climate change problems requires a considered yet active rather than a deferential and passive judicial approach. The solid foundations of private law are capable of development. This contrasts with the incompleteness and comparative novelty of applicable public law regulatory regimes.³² The development of public law mechanisms concerning climate change should be encouraged. Nevertheless, the courts should not simply defer problems to the legislature. Deference in the circumstances of established rights risks effecting revocation by implication, rather than unambiguous statutory provisions, which fails to allow the legislature to consider the implications of revocation appropriately.

3. TURNING TO TORT

The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.

— John Locke³³

Coyle and Morrow express disdain for Western climate law’s private law and its anthropocentric nature.³⁴ This disdain is well-deserved given the comparative failures of Western legal regimes to meaningfully protect or enhance environmental outcomes. However, within the reductive simplicity of English environmental law lies potentially powerful accountability mechanisms.

The anti-collectivist fictional rational agent is the foundation of independent enforcement mechanisms in English law. Inherently fearful of a despotic state yet unable to resist its allure, Western European nations created disparate and severally enforceable rights and interests rather than normatively and collectively “caging” the state.³⁵ In effect, under Western legal systems, the

31. Kate Gudsell “Climate change declaration ‘politically charged’” (20 February 2019) Radio New Zealand <www/rnz.co.nz>.
32. Hood, above n 22; Driver, Parsons and Fisher, above n 22; Palmer, above n 18. 33 John Locke Locke’s Second Treatise on Civil Government.
34. Sean Coyle and Karen Morrow The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing, Portland, 2004).
35. For discussion of “caging” state growth see Daron Acemoglu and James A Robinson Why Nations Fail (Crown Publishing, New York, 2012); Daron Acemoglu and James A Robinson The Narrow Corridor (Crown Publishing, New York, 2019).

collective populace cages the state through individualised rights enforceable against the state and other citizens. This can be contrasted with legal regimes such as tikanga Māori, that regulated the state through collectivist and collective action accountability mechanisms.³⁶ The Western legal regime of disparate and severally enforceable rights has led to judicial organs highly amenable to protecting private property.

The sanctity of private property under English law cannot be understated. Given the centrality of property rights to English legal and societal development and the likely insufficiency of public law remedies to protect against climate change-induced harm to property — real or personal — it naturally follows that recourse should be capable of being found within English private law. Either such a legal path must exist, or English law has abandoned protecting private property.

3.1 Negligence

The existence of legally cognisable rights in tort emerging from rights in property is not a novel formulation. Trespass to the person and property can be viewed as originating from the same core principle of ownership. Concerning property, ownership provides rights of enjoyment through reasonable use. Tortious actions to protect enjoyable and productive uses protect the underlying rights of ownership.³⁷ Similarly, the principle of self-ownership or at least self- governorship underpinned the tortious protection against trespass to the person, which survives ACC in torts of false imprisonment and freedom from intrusion into seclusion.

An example of the courts relying upon proprietary rights to establish tortious rights in negligence is Strathboss. Both the High Court and Court of Appeal proceeded on the basis that proprietary interests in the damaged kiwifruit crop are a prerequisite to litigation rights.³⁸ The discussion in the Court of Appeal was obiter dicta, with the case turning on the scope of statutory immunities.³⁹ However, the Court did comment on perceived errors in the High Court’s approach to duty and causation. The Court of Appeal, while not

36. Atholl Anderson, Judith Binney and Aroha Harris Tangata Whenua: A History (Bridget Williams Books, Wellington, 2015) at 181; Carwyn Jones New Treaty, New Tradition (Victoria University Press, Wellington, 2016).
37. Louis Kaplow and Steven Shavell “Property Rules versus Liability Rules: An Economic Analysis” in Alan Sykes (ed) Economics of Tort Law (Edward Elgar Publishing, Cheltenham & Northampton, 2007).
38. Strathboss Kiwifruit Ltd v Attorney-General [2018] NZHC 1559 [Strathboss (HC)] at [15], [23], [26]–[28] and [421]–[434]; Attorney-General v Strathboss

Kiwifruit Ltd & Anor [2020] NZCA 98 [Strathboss (CA)] at [201]–[202], [241],

[246], [252], [556] and [558].

39. Strathboss (CA), above n 38, at [556] and [558].

affirming, appears to have taken no issue with the “property right” approach to class definition.⁴⁰

As a de facto property right, the self-governorship of the person arguably provides the basis of duty in Couch.⁴¹ Viewed in broad terms, Couch states that where A has control over persons or property, they (A) are under a duty of care to ensure that no harm is done to another’s (B’s) property. A person’s inherent control rights, which appear to a degree proprietary,⁴² can accordingly be considered property that should be protected from harm. In Re Lee, it was implicitly decided that a control right in the person is transferable, subject to certain limitations.⁴³ Read together, Takamore implies one of the limitations applicable is the non-transferability of control of the person inconsistent with whanaungatanga.

The protection of the property is achieved through tortious protective rights. The property rights protected by such tortious actions extend to those limited rights a person holds in their own person. The modification, restriction or alienation of those rights must occur by law, either in English or Māori.

Negligence has four key elements: duty, breach, causation, and damage. A tortfeasor must owe a duty of care due to a relationship of proximity, which is breached, causing a foreseeable loss. Notable negligence cases in Aotearoa New Zealand are Couch,⁴⁴ The Grange ⁴⁵ and Strathboss.⁴⁶

In Couch, Mr Bell, a prisoner on parole, committed an armed robbery of his temporary place of employment. The robbery resulted in several fatalities and multiple significant injuries. The key question on appeal was whether the Department of Corrections owed the injured a duty to constrain Mr Bell’s ability to cause such injury. A duty was found to exist. It was owed to those reasonably expected to occupy a parolee’s place of employment.

In The Grange, residents of a poorly constructed apartment block sued Auckland Council for inadequately inspecting its construction. A duty was owed by Auckland Council to any reasonably foreseeable future resident of the apartments when the construction should have been inspected.

In Strathboss, kiwifruit growers and processors sued Aotearoa New Zealand’s biosecurity agency for failing to prevent PSA’s entrance into Aotearoa New Zealand. Both the High Court and the Court of Appeal proceeded on the basis that conditioning any alleged duty’s scope to property rights-holders was

40 At [201]–[202], [241], [252] and [254].

41 Couch v Attorney-General [No 1] [2008] NZSC 45.

42 Re Lee [2018] 2 NZLR 731 (HC).

43. Re Lee, above n 42.
44. Couch v Attorney-General [No 1], above n 41.
45. North Shore City Council v Attorney-General [2012] NZSC 49 [The Grange]. 46 Strathboss (HC), above n 38; Strathboss (CA), above n 38.

appropriate. A further appeal to the Supreme Court was abandoned before a hearing.

These cases represent a diverse range of “novel duty” cases that have been approached using the Anns test. A more expansive methodology for novel duty inquiries has been adopted in Australia⁴⁷ and the United Kingdom. While the exact methodology differs, the key point is that a diverse range of initially novel duties have been recognised in Aotearoa New Zealand and other common law jurisdictions.⁴⁸

3.2 Public Nuisance

The tort of public nuisance protects private property indirectly by safeguarding the right to access and use private property. To enjoy personal private property benefits, such property’s transportation between various estates is necessary. This is achieved by enjoying public rights, such as unobstructed passage along highways and navigable freshwater.⁴⁹ The tort of public nuisance protects against interference with a public right.

Protecting these public rights supports the enjoyment of private property rights, personal and real. Without a capacity to trade private property in a market accessible through public rights of way, the incentive for innovation and production of private property is defeated. Thus, by protecting the network of rights of way, the state advances innovation and its population’s welfare by increasing private property value. Real property is similarly protected by establishing a right of access to a public way. The ability of persons to utilise public ways protects real property from trespass. This increases its value and enables occupiers to improve and enjoy their real property free from widespread trespass.

Broad protection of the public way is the state’s responsibility. As the chief law officer, the Attorney-General is generally responsible for bringing actions to protect public rights. However, when a person suffers “special damage” instead of a generalisable interference with a public right, they are authorised to take any action in public nuisance. A usefully illustrative case is Amalgamated Theatres Ltd.⁵⁰

In Amalgamated Theatres Ltd, the obstruction of a public way caused harm to a private enterprise, the theatre. This obstruction simultaneously limited the

47. Caltex Refineries (QLD) Pty Ltd v Stavar [20099] [2009] NSWCA 258; 75 NSWLR 649.
48. Consider Fairchild v Glenhaven Funeral Services [2002] UKHL 22; Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004 (UKHL); Donoghue v Stevenson [1923] UKHL 100.
49. Stephen Todd and others The Law of Torts in New Zealand (7th ed, Thomson Reuters, New Zealand, 2016) at [10.3.1].
50. Amalgamated Theatres Ltd v Charles S Lumley Ltd [1962] NZLR 226 (SC).

entrance and egress from the property owned by the plaintiff. As other persons were restricted in their property access, this caused a loss of patronage and profit to the theatre. However, the theatre was not the conceptually most harmed party; private persons could not move their property (monies) to the property to trade that property for services (theatre shows). Suffering harm due to the obstruction, the theatre successfully instituted proceedings against the creator of the obstruction. This case illustrates that conceptualising the “special damage” standing rule should be read as broadly permissive, as a procedural rather than a substantive bar, and not merely a narrow exception to a presumptively exclusive right of action.

Consider as another example that the transposition of goods by navigable freshwater is an established common law right.⁵¹ This navigation right has only been limited where the Crown lacked title in the riverbed.⁵² Similar rights of access and passage exist regarding the foreshore and seabed.⁵³ As discussed above, the enjoyment of these rights enables leisure and the transportation of goods. Transportation of goods is not limited to waterways but includes the right to transport goods and gain passage along public ways. Roadway rights facilitate the same purposes as freshwater navigation and access to the foreshore.

Further, public fishing rights are established common law rights.⁵⁴ These rights have been restricted under the Fisheries Act and the Conservation Act. However, despite their statutorily modified nature, fishing rights continue to be protected by public nuisance law, given the rights’ foundations as customary public rights.

Climate change will interfere with the common law and statutory rights of freshwater passage, access to the foreshore and fishing. Principally, this will occur through the destruction of the foreshore. Further, dangerous pest species will migrate into previously inaccessible coastal waters. This will frustrate the public’s rights to access the foreshore and utilise the coastal sea. The frustration of these rights will be particularly significant to Māori as it will further deprive them of access to customary fisheries, which may become inaccessible (sedentary species) or unsustainable to exploit (pest-predated fish stocks). This unique harm should be viewed as the basis for public nuisance standing.

A public nuisance action provides tortious protection of the right to transport private property along public rights of way. A common misconception is that public nuisance is merely an equitable procedural corollary of obstructing public way and sanitation laws. It is wrong to assume that the Attorney-General

51. Mueller v Taupiri Coal-Mines [1900] 20 NZLR 89 (SC) per Stout CJ.
52. Paki v Attorney-General [2009] NZCA 584.
53. Foreshore and Seabed Act 2004, ss 7–8. 54 Mueller v Taupiri Coal-Mines, above n 51.

has a presumptively exclusive right to plead public nuisance because such a procedural limitation undesirably prevents the protection of private interests in public amenities.

4. BARRIERS TO PRIVATE ACTIONS

I would not wish to attribute such malevolence to a New Zealand Parliament.

— Collins J ⁵⁵

There are two main arguments against the availability of private law remedies for climate change-induced harms: incongruous incoherence and implicit repeal. The following paragraphs examine both arguments, concluding that neither prevents private liability concerning climate change-indued harms.

A common basis for refusing to impose a prima facie duty of care is the creation of an incongruous incoherence in the law. An incongruous incoherence can be created where a statute or a rule of law permits an activity, and another statute or a rule of law prohibits the same act. There would not be any incongruous incoherence in imposing a prima facie duty as identified above for the reasons discussed below.

Strathboss is a helpful example of incoherence arguments being rejected. While the Court of Appeal dismissed the appeal based on statutory immunity and lack of duty,⁵⁶ the Court also addressed incoherence arguments. The Crown’s immunities made the issue of whether a duty existed a matter of obiter dicta.

The High Court and the Court of Appeal in Strathboss rejected the argument that a tortious duty would “cut across” or undermine other account- ability mechanisms. In reaching this conclusion, the Court of Appeal cites X v Bedfordshire County Council ⁵⁷ and Attorney-General v Carter.⁵⁸ This reticence to reject a duty’s existence because of an alternative accountability mechanism correctly recognises the importance of private accountability mechanisms and that various legal avenues should remain available.

This “high bar” for incoherence sufficiently addresses the effect of the Resource Management Act and the Climate Change Response Act on liability in tort. The statutes do not prohibit the coexistence of tortious duties and thus provide for them, as did the Biosecurity Act 1993. Rather, s 23 of the Resource

55 Fitzgerald v R [2020] NZCA 292 at [116] per Collins J dissenting.

56 Strathboss (CA), above n 38, at [109], [133]–[134], [141]–[143] and [147].

57. X v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 (HL).
58. Attorney-General v Carter [2003] NZCA 48; [2003] 2 NZLR 160 (CA).

Management Act explicitly preserves the development and enforcement of other rules of law.

A further objection raised to the imposition of a tortious duty surrounding climate change-induced harms is an implicit repeal of the common law basis for such duty. The argument runs that in so much as a statute establishes a regulatory regime, it ousters the common law methodology of law development from that area of law. The operation of two regimes, statutory and common law, whilst not incoherent, is counter to the implicit will of Parliament. This approach relies upon a broad reading of Parliament’s “intentions” and should be doubted. The extent to which implicit repeal has been doubted, particularly regarding human or normatively based rights, has clearly and boldly been expressed in Collins J’s dissent in Fitzgerald v R. Collins J’s dissent was adopted by the Supreme Court on appeal.

In Fitzgerald v R, Collins J outlined an approach to statutory interpretation considering the New Zealand Bill of Rights Act 1990. Professor Petra Butler has remarked that the approach should be distinguished from the Moonen and Hansen tests and referred to the “consistency principle” of human rights interpretation.⁵⁹ Outlining the approach, Collins J remarks:⁶⁰

Any suggestion Parliament intended s 86D(2) would apply to defendants whose offending was not serious and at the lowest end of the spectrum of culpability, requires an acceptance of the proposition that Parliament intentionally imposed a very harsh and indiscriminate punishment regime when it passed s 86D(2). I would not wish to attribute such malevolence to a New Zealand Parliament.

The “consistency principle” may also apply outside the New Zealand Bill of Rights Act interpretation. In oral argument in Trans-Tasman Resources, Williams J questioned Mr Majurey’s narrow reading of the Tiriti o Waitangi clause, positing that adopting a narrow interpretation would attribute to Parliament an intent to avoid its moral obligations. The Supreme Court’s majority judgment did not turn on this issue; however, obiter remarks left open this argument’s adoption in future cases.

The non-malevolence principle of statutory interpretation and general statutory interpretation rules strongly tell against implicit repeal. When Parliament has chosen to extinguish recourse to the courts, it must do so clearly. Section 316 of the Accident Compensation Act 2001 was interpreted as a substantive bar on compensatory damages.⁶¹ However, the Supreme Court

59. Petra Butler “Bill of Rights Act” (paper presented to 2021 Government Law Year in Review, Wellington, 18 February 2021).
60. Fitzgerald v R, above n 55, at [166] per Collins J dissenting (emphasis added).
61. McGougan v DePuy International Ltd [2017] NZHC 2511; Donselaar v Donselaar [1982] NZCA 13; [1982] 1 NZLR 97 (CA).

rejected that the provision implicitly extended to exemplary damages.⁶² Judicial practice is to be doubtful of implicit repeal. If Parliament wishes, as it may given its supremacy, to remove or restrict rights, it must do so in unequivocal terms.

The introduction of climate change-related statutory regimes did not extinguish the right to enforce tortious rights in negligence and public nuisance. Neither the Climate Change Response Act nor the Resource Management Act explicitly purports to remove such rights. It would be improper to read into the statutes such an effect. Further, no incoherence would be created given the high bar for extinguishing tortious and statutory rights to litigate.

5. DUTIES IN NEGLIGENCE

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers’ question, Who is my neighbour? receives a restricted reply.

— Atkin LJ ⁶³

The approach that the Courts of Aotearoa New Zealand have taken to determine whether a legal duty of care exists between two parties remains unchanged in its essentials from its articulation in Anns v Merton London Borough, namely:⁶⁴

... the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer [A] and the person who has suffered damage

[B] there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former [A], carelessness on [their] part may be likely to cause damage to the latter [B] — in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.

A helpful explanation of the matter of a relationship of proximity can be found in Caparo Industries v Dickman & Ors:⁶⁵

62. Donselaar v Donselaar, above n 61; Couch v Attorney-General [No 2] [2010]

NZSC 27.

63. Donoghue v Stevenson, above n 48.
64. Anns v Merton London Borough [1977] UKHL 4; [1977] 2 All ER 492 at 498 per Wilberforce LJ.
65. Caparo Industries v Dickman & Ors [1990] UKHL 2; [1990] 1 All ER 568 at 574.

... a relationship characterised by the law as one of “proximity” or “neighbour- hood” ... should be one in which the Court considers it fair, just and reasonable that the law should impose a dutyof a given scope.

Questions of proximity are legal inquiries rather than geographical ones. Duties of care are owed between neighbours in law, not actual physical neighbours. Questions of fairness and the disruption of legal rights inform the proximity determination. Property and the potential for property damage commonly indicate the prima facie existence of a duty of care.

Damage to property, and customary rights of a potential or quasi-property nature, are threatened by climate change. This reality has been well-known to the public and large-scale emitters for a considerable time. Consequently, reasonable persons should be considered to have been on notice of their potential to damage another’s property through negligent conduct surrounding their emissions. Emitters are similarly aware that property conversion or damage has traditionally given rise to tortious rights against those that cause damage or convert another’s property.

The knowledge of large-scale emitters that, if they conduct themselves negligently, they could cause harm to property creates an expectation that they would take reasonable steps to prevent such damage. To whom they might owe such a duty has become increasingly apparent as climate science has become increasingly clear.

It is preferred that duties of care imposed by the law are sufficiently clear as to who they are owed. In Couch and Strathboss, the courts limited the potential plaintiffs to a defined “class” to avoid creating unbounded liability.⁶⁶ This approach is appropriate for claims arising from climate change-induced harm. The High Court in Smith proceeded on the basis that given climate change’s wide-ranging effects on everyone if a duty were found regarding it would lead to endless litigation of the world against the world. This approach is inconsistent with the approach taken in Couch and Strathboss, which is to narrow the class of plaintiffs according to the foreseeability of their loss. Their loss must be proprietary, or de facto proprietary, rather than more generalised harm — such as fearfulness or a weakened economy. Mike Smith argues that they reside in the former class of affected persons. As a person with an interest in low-lying

coastal property, they stand to suffer a demonstrable property loss.

The approach adopted by Bromberg J in Sharma and others v Minister for the Environment is far more consistent with the principles of tort law than the approach taken by Wylie J in Smith. In Sharma, the approach to novel duty is different in form, but not in substance, from the correct approach in

66. Couch v Attorney-General [No 1], above n 41; Strathboss (CA), above n 38, at [201]–[202], [246], [252], [556] and [558].

Aotearoa New Zealand. Australian courts delineate distinct policy factors into different analysis issues. This can be contrasted with Aotearoa New Zealand’s holistic “policy” Anns approach. Despite the different approaches to labelling policy arguments, the actual substance is remarkably similar. Consequently, the discussion of policy in Sharma is relevant to policy surrounding climate change tort liabilities in Aotearoa New Zealand.

While Bromberg J was in Sharma overturned on appeal, their judgment correctly outlines the principles applicable to climate change duty cases. Bromberg J stresses the capacity for adaptation of tort law liability, quoting Lord Macmillan’s remark in Donoghue ⁶⁷ that liability must reflect “altering social conditions and standards”.⁶⁸ Blomberg J further emphasised this point by referencing Widmeyer J’s comments in Skelton v Collins that the common law “is a body of principles capable of application to new situations ... [by] some degree of change by development”.⁶⁹ Further, Blomberg J addresses the coherence of the common law and statutory scheme, concluding that coexistence is implied, absent explicit repeal.⁷⁰

Another notable element of Blomberg J’s reasoning is their approach to the indeterminacyof liability in tort. They incisively remark that “as Gillard J observed in Johnson Tiles, the accuracy of a pre-estimate of the number and size of claims ‘is impossible in most, if not all, claims in common law negligence’”.⁷¹ Notwithstanding this observation, Blomberg J notes that with proper class definition,⁷² the extremities of indeterminacy are ameliorated.⁷³ While indeterminacy of liability is frightening, it should not prevent the courts from imposing novel duties of care.

Departure from the established Couch approach by the High Court in Smith was an error. Any defendant can easily claim indeterminacy regarding any “novel duty”. Such an objection has been roundly rejected in third party-control cases⁷⁴ and leaky building cases.⁷⁵ There is no reasonable basis for departure from addressing the indeterminacy of plaintiffs through “class” identification in climate change-induced harm cases.

67. Donoghue v Stevenson, above n 48, at 619.
68. Sharma, above n 2, at [116].
69. Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 at 135 per Widmeyer J as cited in Sharma, above n 2.

70 Sharma, above n 2, at [148]–[183].

71 At [468].

72 See Strathboss (CA), above n 38, and Couch v Attorney-General [No 1], above n 41.

73 Sharma, above n 2, at [188]–[192] and [469]–[472].

74. Couch v Attorney-General [No 1], above n 41; Dorset Yacht, above 48.
75. Invercargill City Council v Hamlin [1996] UKPC 56; [1996] AC 624 (PC); The Grange, above n 45;

North Shore City Council v Body Corporate 188529 [2010] NZSC 158; [2011] 2 NZLR 289 (CA).

In conclusion, the issue of indeterminacy is not an unassailable problem in cases of climate change-induced harm. A review of precedent indicates that the courts are well-placed to mitigate any potential uncertainty. Some uncertainty will remain; however, this reflects the inherently uncertain nature of non- contractual relationships.

6. CAUSATION IN TORT

Causation in negligence has become complicated, convoluted and confused.

— Sarah Green ⁷⁶

This part addresses causation and argues that sufficiency alone and independent of necessity should form the basis of liability. In support of this argument, moral blame for harm is discussed and connected to the presumption of protection for property rights. This discussion continues into the following part, where relief is discussed.

Causation and remedies are distinct yet fundamentally interrelated inquiries. The moral duty to remediate harm forms the basis of remedies inquiries, yet it is a duty premised on moral blame.⁷⁷ Moral blame is attributable, and conse- quently the duty to remediate is attributable only to those parties whose actions cause tortious harm. Any discussion of remedies necessarily follows the estab- lishment of a causative link between conduct and harm if the moral blame is the basis of the moral duty to remediate.

The conventional approach to tortious causation is the suspiciously elegant and simple “but for” test. The inquiry asks whether “but for” the tortfeasor’s breach, the harm to the plaintiff would have arisen. It is important to note that the investigation examines the breach’s effect on the plaintiff’s injury, not the potentially related or foundational lawful conduct of the tortfeasor, together with the negligent conduct.

While emissions at scale are self-evidently of a different scale to other emissions, all emissions are contributory. Collectively, small emissions become in their effect emissions at scale when occurring at scale. For these reasons, the position that no single emitter causes the outcome of the collective, thus, no one is responsible, is absurd.

The “but for” test is a heuristic, a useful one, but a representation of the principles of causation, not the principle of causation. A considered discussion of causation cannot end at “but for”; it must examine the foundations upon

76. Sarah Green Causation in Negligence (Hart Publishing, Oxford, 2015) at 1.
77. Sandy Steel Proof of Causation in Tort Law (Cambridge University Press, Cambridge, 2015) at 109.

which the “but for” articulation stands. In other words, a considered discussion must examine the necessary element of a sufficient set analysis (NESS) and necessary breach analysis (NBA) theories of causation.

The “but for” test is two separate inquiries. First, was the tortious conduct necessary for the harm to arise to the plaintiff? And secondly, was the tortious conduct sufficient for the harm to arise to the plaintiff? The “but for” test is satisfied when both these questions can be answered in the affirmative. The “but for” heuristic engages the fact-finder with both inquiries simultaneously. This presents a problem when complex facts arise. Consequently, separating these inquiries assists with understanding causation.

An act/omission is necessary when, without that act/omission, the harm could not occur. Consider the example below:

Andrew is drunk. Andrew is operating a motor vehicle. Andrew drunkenly crashes a motor vehicle.

Andrew cannot effect the outcome of drunkenly crashing a motor vehicle without being drunk. Being drunk is a necessary element to effect the outcome of a drunken crash of a motor vehicle.

An act/omission is sufficient when, without an act/omission from within a prescribed set of acts/omissions, the harm could not occur. Consider the example below:

Andrew is drunk. Andrew’s attention is on their cellphone. Andrew is operating a motor vehicle. Andrew crashes the motor vehicle.

Both Andrew’s intoxication and misplaced concentration are both and separately sufficient causes of the crash. Neither is necessary, however, as either could cause a crash.

NBA is an analytical framework focused on necessity. It asks whether the defendant’s type of tortious act/omission was required to cause the harm. Green outlines NBA in Causation in Negligence as comprising the following:⁷⁸

Stage 1: Is it more likely than not that a defendant’s breach of duty changed the normal course of events so that damage (including constituent parts of larger damage) occurred, which would not otherwise have done so when it did?

Stage 2, applied to the defendant individually: Was the effect of this defendant’s breach operative when the damage occurred?

78. Green, above n 76, at 10 (emphasis in original).

NESS is an analytical framework focused on sufficiency. It asks whether the tortious act/omission of the defendant was sufficient to cause the harm. Steel outlines NESS in Proof of Causation in Tort Law in the following terms:⁷⁹

c counts as a cause of e if it is necessary for the sufficiency of a concretely specified set sufficient for e, where sufficiency may be determined both by physical laws of nature and by the requirement of a rule or set of rules.

Both NBA and NESS analyses clarify causation in contributory conduct and overdetermined harm cases. Contributory conduct means tortious conduct that is necessary yet insufficient. Overdetermined harms occur when multiple sufficient causes can be identified, and due to the multiplicity of causes, each cause is individually unnecessary. These two categories of causation can be distinguished from “but for” type causation which requires that the tortious conduct be necessary and sufficient. The table below summarises the three categories of causation identified.

Contributory negligence is commonly found, and relief proceeds jointly and severally.⁸⁰ Overdetermined harms are less commonly remedied through tort law. This is likely because contributory negligence cases can be interpreted as instances of joint tortfeasor “but for” cases. Absent the collective negligence of the joint tortfeasor, the harm would have been avoided. This misunderstands the inherent fault within the breach itself and accords far too great a significance to moral luck. The proper approach is to view sufficiency and necessity as two distinct routes of founding causation rather than two steps. Often, plaintiffs will establish both, but an inability to show both paths is not fatal to founding liability.

These different routes to liability are more comfortably followed where knowledge exists — for example, in the context of intentional torts. However, sufficiency-alone causation should be considered, outside of intentional torts,

79. Steel, above n 77, at 33.
80. Stephen Todd “Multiple Tortfeasors and Contribution” in Stephen Todd and others (eds) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [241] ff.

where sufficient knowledge exists to put a defendant on notice regarding their action’s ability to cause harm.

Liability should attach on the joint and several bases rather than the un- principled proportionality approach, criticised by Glazebrook J in Ambros.⁸¹ A sufficiency-alone approach will create unfairness on the defendant’s part, especially where their conduct is not material. However, this is preferable to continuing to leave the burden of the collective harmful breaches of duty on the plaintiff. Shifting this burden unfairly to a severally liable tortfeasor is fairer than the status quo. This unfairness would be significantly reduced in cases where defendants join third parties to litigations, as they are entitled and arguably required.

Applying a sufficiency-alone approach to climate change enables the protection of private property affected by multiple concurrent yet unneces- sary tortfeasors. Such an approach creates a level of complexity for damages calculations. However, such complexity is insufficient to displace the pre- sumption of recovery. Property rights are rendered moot without the right to recover when damage is done to their enjoyment.

7. RELIEF IN TORT

It is a general and indisputable rule that where there is a legal right, there is also a legal remedy ... whenever that right is invaded.

— John Marshall CJ quoting William Blackstone ⁸²

Having established the requisite moral blame, this article considers the appro- priate relief in circumstances of climate change-induced harm. Negligence and public nuisance are separate actions, though they can be treated similarly for causation purposes. Such an approach is inappropriate regarding relief.

Mr Smith sought injunctive relief for the alleged negligence and public nuisance. This misunderstands the nature of relief available for common law actions. Departures from a strict delineation between relief in equity and at common law are becoming vogue. This mistreats the inherent foundations of the legal rights protected by the actions giving rise to relief. The analysis below proceeds based on the traditional delineation between relief types.

Negligence is an action at common law. The common law emerging from monarchical decree is constrained to damages. The confiscation of one’s property to compensate another for their loss arising from fault provides the foundation

81. Ambros v Accident Compensation Corporation [2007] NZCA 304 at [35]–[36].
82. Marbury v Madison [1803] USSC 16; [1803] 5 US 137.

for common law relief, beautifully encapsulated in the Old Testament quote “an eye for an eye”.⁸³

Relief in equity emerged in response to the absolutism and impracticability of common law relief. The far more nuanced New Testament laws of equity⁸⁴ developed initially under the watchful gaze of the Chancellor rather than the monarch. Most often, the relief sought was a stay of common law rights. In most cases, injunctions prevent a party from exercising their rights cognisable at common law to prevent unfairness. While accepting that increasingly injunctive relief is sought in common law causes of action, it would be remiss to fail to observe that this is unprincipled. Injunctive relief is properly the subject of equitable discretion, which requires consideration of the party’s conduct, timeliness, and the balance of convenience.

As quantifiable land loss is yet to occur within Aotearoa New Zealand, the prospects of relief in negligence remain low. Injunctive relief premised upon negligence is inappropriate, given the suitability of damages when harm arises. However, declaratory relief to the effect that damages will be payable, jointly and severally, by emitters is beneficial.

In public nuisance, the obstacle of “balance of convenience” is significant. The lack of causative necessity weighs strongly against injunctive relief. It is unreliable to impose significant restrictions on economic enterprise in anticipation of harm, particularly when damages will provide appropriate relief.

8. CONCLUSION

Climate change is an extremely complex and difficult issue. It crosses jurisdictional boundaries, is rapidly worsening and has the potential to cause unprecedented loss and damage.

— Winkelmann CJ, Glazebrook and Ellen France JJ ⁸⁵

The long-held values of private property protection and moral blameworthiness can serve as sufficient foundations for tortious liability. Appeals to normative grounds not yet appreciated by broader society — such as shifting away from anthropocentrism to embrace a tort to the environment — are unnecessary for accountability surrounding climate change-induced harms. Parliament and public law may rise to the occasion, yet their capacity is questionable given our current constitutional structure. Appreciating the failures of public law climate

83. Consider Leviticus 24:19–21.
84. Consider Matthew 22:36–40.
85. Winkelmann, Glazebrook and France, above n 1.

litigation strategies “in vogue” abroad to translate to Aotearoa New Zealand’s unique legal environment should inspire innovation rather than desperation.

Some might categorise climate change as too great a challenge for private law to provide solutions. However, the exact opposite is true. In the absence of statutory intervention, the common law must adapt and protect the rights valued by society. This is true even in the context of complex systemic harm. The individual injustice of the deprivation of private property by climate rogues must not be condoned simply because of their financial strength.

Both public nuisance and negligence have a role in providing accountability for climate change-induced harms. Neither avenue of legal recourse is barred by statute or vague incoherence arguments. All novel duty cases involve indeterminacy of liability, as the duties allegedly breached are novel, and consequently, the liability that stems from them has not before been calculated. Foreseeability can serve as a helpful tool in defining the plaintiff class.

Injunctive relief is likely inappropriate, given that the tortfeasor’s conduct is a sufficient but unnecessary cause. Nevertheless, declaratory relief clarifying the availability of damages upon the harm of the tortfeasor’s conduct would assist insurers, companies, and future climate change-induced harm victims in planning for their future. Failure to provide some certainty regarding liability leaves the door open to the socialisation of climate change-induced harms and an unreasonable burden on the taxpayer’s purse when harm eventuates.