NZ’s Supreme Court Allows Groundbreaking Climate Change Case to Go Ahead

Hundreds of climate protesters walk from Times Square to New York Governor Kathy Hochul’s office to demand more action against climate change in New York City on Nov. 13, 2021. Spencer Platt/Getty Images

A Māori elder and climate change spokesperson for the Iwi Chairs Forum—a group of New Zealand tribal leaders—has won the right to sue some of New Zealand’s largest corporate greenhouse gas emitters.

Mike Smith seeks to establish civil (tort) liability for those emitters’ contributions to climate change, arguing that they have negatively impacted his family’s and tribe’s land, water, and cultural values.

Earlier this month, the Supreme Court overturned lower court rulings (pdf) which had struck out the claim, meaning he can now present his case to the High Court.

Mr. Smith is not seeking damages, saying he only wants a safer world. He has raised three causes of action in tort: public nuisance, negligence, and a novel duty to “make corporates responsible to the public for their emissions.”

The defendants in the case are:

• Fonterra—a dairy co-operative and one of the six largest dairy companies in the world, responsible for around 30 percent of the world’s dairy exports. It burns over 520,000 tonnes of coal each year in its eight dairy factories to generate energy.
• Genesis Energy—the largest electricity and natural gas retailer in New Zealand, which operates the Huntly Power Station, the largest thermal power station in New Zealand. It is fuelled by the combustion of coal and natural gases.
• Dairy Holdings Limited—the largest milk supplier, and shareholder, of Fonterra, and owner of meat processor Silver Fern Farms. It runs around 50,000 milking cows that release methane. Nitrogen dioxide is also released from nitrogen-based fertiliser use on the farms.
• New Zealand Steel—which operates a steel mill at Glenbrook, south of Auckland, which is primarily fuelled by the combustion of coal and has the capacity to burn 800,000 tonnes of coal per annum.
• Z Energy—which comprises some of the former assets of Shell New Zealand and sells fuel under the Z and Caltex brands at almost 500 service stations.
• Channel Infrastructure—an independent fuel infrastructure company that operates terminal and pipeline services. It imports and supplies the majority of petroleum-related fuel products consumed in New Zealand. Plus, the refining process at Marsden Point causes the release of greenhouse gases.
• BT Mining—the largest coal mining company in New Zealand. It produces bituminous, coking, and thermal coal, the majority of which is exported, much of it to China, where it is primarily burned in the production of steel.

The case alleges the respondents were together responsible for more than one-third of New Zealand’s total reported greenhouse gas emissions (and that just 15 companies were responsible for more than 75 percent).

Seeking Orders for Defendants to Attain Net Zero by 2050

Mr. Smith wants a declaration that the defendants unlawfully breached a duty owed to him or that they caused or contributed to a public nuisance, which had caused or would cause him loss.

He also sought an injunction requiring the defendants to reach net zero by 2050, or alternatively, to immediately cease emitting or contributing to greenhouse gas emissions.

The case provides an avenue by which new types of climate change litigation could be brought. It is attracting international attention and, if successful, will almost certainly lead to similar cases being run in other countries.

A house sits destroyed at the bottom of a large landslide on Moututara Road in Muriwai in Auckland, New Zealand, on Feb. 14, 2023. Phil Walter/Getty Images

Initially, the High Court struck out all but one cause of action. Then, the Court of Appeal struck out all three causes, concluding that “the magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursued through the courts,” which is “a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.”

However, on further appeal the Supreme Court took the view that, where a claim for negligence or nuisance is novel, the courts should lean towards full evaluation of evidence and argument at trial.

“As [Mr. Smith] puts it, the respondents are wronging him, and he seeks the courts’ aid to have them stop. No re-invention of tort law is required. The questions raised warrant a trial and determination upon evidence.”

It decided “Mr. Smith now gets his day in court,” an outcome it called “consistent with fully informed access to civil justice.”

It noted, however, that “common law has not previously grappled with a crisis as all-embracing as climate change” and, as a result, Mr. Smith will undoubtedly face “fundamental obstacles” at trial and that a refusal to strike out an application is “not a commentary on whether or not the claim will ultimately succeed.”

Māori Customary Lore Forms Part of the Case

In order to win, the plaintiff will have to prove “private harm,” so the court will need evidence about the harm that has been caused to him and to his land and his property from emissions by the defendants.

The High Court will also have to deal with a complex element to the case that other jurisdictions—where such private claims have failed—have not.

Mr. Smith will argue that tikanga Māori (broadly, traditional Māori custom and lore) should play a role. This system imposes obligations on everyone to care for nature and holds that breaching tikanga creates an issue requiring compensatory action to restore balance.

Tikanga Māori has been steadily gaining recognition in the courts and in statutes. The NZ Supreme Court has recently affirmed that it may be a source of enforceable rights and interests, and is relevant to developing common law. Tikanga is also expressly recognised in various ways in many Acts of Parliament.

If the High Court finds in Mr. Smith’s favour, it may decide to adapt established tort categories of public nuisance and negligence, but could also develop an entirely new “climate system damage” tort.