The ‘missing’ briefing from Fonterra and Z Energy wasn’t lost, Henry Oliver writes in today’s excerpt from The Bulletin, it was in the private email account of the prime minister’s chief policy adviser.

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The curious case of the missing briefing email

Somewhat lost in the storm of budget-related news last week was a series of revelations about what happened to a briefing prepared by Fonterra and Z Energy and why it wasn’t disclosed earlier. Yesterday, Lillian Hanley of RNZ reported that the ‘missing email’ – the one not disclosed in court filings, the one not included in responses to Official Information Act requests – was sent to the private email of Matt Burgess, who was the prime minister’s chief policy adviser from January 2024 until October last year.

The prime minister has said that he didn’t know about the briefing and only found out about it through the media. He told reporters the communication through private channels was “unacceptable” and “has definitely not met the high standard that I have of staffers in the Beehive”. Labour leader Chris Hipkins says it “stinks to high heaven. What else are the Prime Minister and his office hiding from the New Zealand public?”

What briefing?

The briefing includes a draft statutory amendment which just happens to be substantially similar (in intention if not language – the statutory amendment has not been published yet) to the one proposed by the government which would prevent companies like Fonterra and Z Energy from being sued over damage caused by greenhouse gas emissions, applying the change to current and future cases. It appears to have been prepared by the law firm acting for the defendants, on behalf of all of them. Fonterra and Z Energy each delivered it separately, by hand, to Burgess in mid-2024.

Like what cases?

Like the case brought by Michael Smith – a spokesperson on climate change for the Iwi Chairs Forum – against seven large New Zealand companies, alleging their greenhouse gas emissions were damaging his whenua and moana. As summarised by The Law Association, The defendants included Fonterra, Genesis Energy, Z Energy, New Zealand Steel, Dairy Holdings, Channel Infrastructure, and BT Mining, collectively responsible for approximately one third of New Zealand’s greenhouse gas emissions.

The case initially failed at both High Court and Court of Appeal level, with both courts granting strike-out applications brought by the defendants – dismissing the case before it could proceed to a full trial. The Supreme Court overturned those decisions in February 2024, ruling that Smith could pursue the defendants for climate-related damage.

So what?

So, the case is currently scheduled for a full trial in April 2027, which, if successful, would be a landmark case internationally. If the law is changed, there will be no trial.

That the briefing remained hidden is itself significant. Two OIA requests – from the Environmental Law Initiative and Lawyers for Climate Action NZ – specifically sought information about meetings and documents relating to the Smith case. Neither returned the briefing.

The High Court had ordered defendants to disclose lobbying documents by March 2026; they missed the deadline. The document only emerged when Smith’s legal team forced its disclosure. Both companies then claimed confidentiality, which was denied by the judge.

The prime minister’s office says it has no record of the meetings or the briefing.

What’s the statute that might be changed?

The Climate Change Response Act 2002, which is New Zealand’s primary legal framework for meeting international climate obligations and managing domestic emissions. If the government proceeds as planned, it will be amended to make cases like Smith’s impossible to bring.

Paul Goldsmith has argued the change provides businesses with legal certainty and that courts are not the right place to resolve climate issues. Critics say that the existing framework – the Emissions Trading Scheme included – allocates no responsibility for damage caused by emissions. The ability to sue would. As researchers writing in The Conversation argued, under the proposed amendment, “those who profit most from more lax climate policy would be insulated from paying their share”. “Legislating away tort liability does not eliminate the cost – it transfers it to others, just as lax regulation of flood risk has imposed severe costs on councils, insurers and households.”