The background to all this is a trifle complex, but it bears repeating.
Back in 2019, Mike Smith, the Iwi Forum’s spokesman on climate change, took several of New Zealand’s largest companies to court, claiming damages in a civil suit for the harm they were allegedly doing himself and others through their discharge of greenhouse gasses.
Firstly, Smith is a veteran activist politician and is well aware of the value of a headline-generating stunt for a cause. Explaining is losing, and forcing firms to talk about what is emerging from their chimney stacks or their livestock might not be something they would relish.
Secondly, and relatedly, quite a few of those firms would quite likely want to head trouble off at the pass and demonstrate they had been acting on Mr Smith’s concerns before they made it to the courtroom. Call it greenwashing if you will — and Mr Smith likely would — but some improvement in environmental performance is better than none.
And finally, this issue was always likely to be elevated to the national political level — as indeed, it now has.
But back to the last decade, and the High Court did indeed — mostly — throw Smith’s case out. It found that his claims of public nuisance and negligence were not sustainable, but held out the possibility that he might be able to establish a duty of care for the companies to minimise or eliminate their polluting activities.
Ultimately though, the judge decided that if Parliament had wanted such cases to proceed, then Parliament needed to make a law permitting that to happen.
The case then went to the Court of Appeal, which agreed with the original judgement that what Mr Smith ultimately wanted was for the court to create a whole new tort — essentially, a ground under which to sue — and it wasn’t inclined to go down that route.
Smith then applied to appeal to the Supreme Court, and this is where Parliament starts to get involved. The court not only agreed to hear the case, but gave Smith, if not quite a victory, something equally as valuable to him — the chance to argue his case back at the High Court.
It is important to note that the court did not express a view on whether Smith had any prospect of success or not, but it did say he had some arguments that a judge should consider — notably, that tikanga should be considered. The cynical might suggest that is one of the reasons some MPs have got very exercised about this case.
Joseph Mooney’s problem with the case centres around the issue of creating a new tort. A lawyer, he is quite content with the torts New Zealand law has now and decided to put a Member’s Bill into the ballot which would bar all such climate change litigation.
It has yet to be drawn, but in the interim the government has decided to legislate along similar lines and pick up as government business the Bill of Mooney’s that was already sitting there.
This all hit the fan this week with the revelation that some of the firms party to the Smith case had lobbied the Prime Minister’s office about the case.
So far, so what? The PM’s office is lobbied all the time by all manner of people — some gain access, some don’t, some get what they want and some don’t. This is business as usual, for all governments — and oppositions for that matter.
But what makes this different is that not only did the paperwork on the issue fail to materialise when it was requested under the Official Information Act, but so had the staffer who apparently handled the matter.
At best this is simply appallingly bad office procedure. The Opposition has since expounded several different worst case scenarios.
But, in the background waving his arms about and yelling ‘look at me’, is Joseph Mooney.
He posted on social media on Monday to point out that more than a year before any of this happened he had drafted his Bill, had it approved by caucus, and then entered it in the ballot.
‘‘In my view we need to be focusing resources on a whole raft of other issues including climate adaptation, not wasting time and resources boxing at shadows,’’ he said.
‘‘For the record, I didn’t speak to a single industry representative or related person about this before drafting my Bill . . . I’m obviously very pleased that the Cabinet and government has recently decided to take up my Members Bill and make it a government Bill.’’
And he wanted people to know about it. On Tuesday, as Labour leader Chris Hipkins grilled Prime Minister Christopher Luxon on the matter, Mooney took a rare point of order to ask: ‘‘Does the Opposition leader want to ask another question about the member who actually wrote the Bill in question and can confirm that he had no meetings with anyone or nothing was passed on to him?’’
Speaker Gerry Brownlee wasn’t going to allow any such thing: ‘‘Well, look, it might have been an interesting observation from the member, but it doesn’t make much sense in the context of what we’re doing.’’
But Mooney wasn’t finished and was back for more during an ensuing urgent debate on the matter, heckling as Chloe Swarbrick put the case for the Opposition.
‘‘Oh, so much hot air — so much hot air,’’ he yelled, to be told ‘‘That’s enough’’ by the Speaker.
Swarbrick went on to lambast the government for meeting corporate lobbyists, when Mooney piped up again.
‘‘I wrote the Bill; they never met me,’’ he yelled. ‘‘They never met me, and I wrote the Bill.’’
‘‘That’s the last time I will require the member to be quiet,’’ the Speaker warned, finally bringing Mooney to order. But, no doubt, it is not the last time we will hear about this. — mike.houlahan@odt.co.nz
