Smith v Attorney-General - [2025] 2 NZLR 1

Practice and Procedure — Strike out application — Certain untenable claim — Slow to strike out claims in developing area of law — Pre-emptive elimination appropriate where case bound to fail.

Bill of Rights Act — Right to life — Could extend to right to enjoy life with dignity — Climate change — Land uninhabitable — Could engage right — Even though effects entire population — Must be real and imminent threat to life — Timely and proximate risk to specified individuals — May be positive duty on Crown to put in place legislative and administrative framework — Effective deterrence to threat to right to life — Not impose impossible or disproportionate burden — Operational choice — Priorities — Court not second guess — Legislative framework intended to meet international obligations — No breach of right to life — New Zealand Bill of Rights Act 1990 s 8.

Bill of Rights Act — Right to culture — Climate change — Might be positive obligation on Crown to protect against denial of culture — Substantial interference required — Must establish failure to put in place framework to prevent breach — Reflects Crowns choices — Crown’s response to Crown emissions and national emissions — No breach of right to culture — New Zealand Bill of Rights Act 1990 s 20.

Treaty of Waitangi — Statutory framework gives effect to Crown Treaty obligations — Representation and consultation — No room for an independent duty — Not a breach of the Treaty — No separate fiduciary duty — Climate Change Response Act 2002.

Common law duty — No duty additional to New Zealand Bill of Rights — Public trust doctrine not extended — Inconsistent with Crown obligation to act in best interests New Zealand as a whole — Would not displace legislation — No room outside Climate Change Response Act 2002.