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One of NZ’s most contentious climate cases is moving forward. And the world is watching

Business / analysis
One of NZ’s most contentious climate cases is moving forward. And the world is watching

By Vernon Rive*

In recent weeks, the Supreme Court of New Zealand has delivered a landmark decision on a case brought by Māori elder Mike Smith against a group of New Zealand’s largest corporate greenhouse gas (GHG) emitters.

The Supreme Court overturned lower court rulings which had struck out Smith’s ambitious claim seeking to establish civil (tort) liability for those emitters’ contributions to climate change. Smith argued these contributions had a negative impact on his family’s and tribe’s land, water and cultural values.

With the Supreme Court decision, Smith has won the right to present his full case before the High Court.

While only the beginning of what could be a long legal process, the Supreme Court’s decision has attracted local and international attention as one that “may open a new avenue in climate law”.

The case against the corporate emitters

In 2019, Smith sued seven New Zealand-based corporate entities in his capacity as an elder of the Ngāpuhi and Ngāti Kahu iwi (tribes) and climate change spokesperson for a national forum of tribal leaders.

The defendants include New Zealand’s largest company Fonterra (responsible for around 30% of the world’s dairy exports), along with other corporate entities involved in industries either directly emitting GHGs or supplying fossil fuels such as oil, gas or coal.

Smith argued the activities and effects of the corporate defendants amount to three forms of “tort” or civil wrong: public nuisance, negligence, and a new form of civil wrong described as a “proposed climate system damage tort”.

The first two causes of action – public nuisance and negligence – have long lineages in the common law.

As touched on in the Supreme Court decision, public nuisance claims were used by claimants affected by various forms of pollution and other harm during the Industrial Revolution in the 19th century.

Many of the leading common law tort cases – especially on public nuisance – were decided well before the emergence of modern scientific understanding and consensus on climate change.

A major issue for the Supreme Court (and now the High Court, where this claim will proceed) was whether longstanding rules and principles of tort liability should be adjusted in light of the contemporary, existential challenges presented by climate change.

This might involve adapting established tort categories of public nuisance and negligence. It might also involve fashioning an entirely new “climate system damage” tort.

A key plank of the corporate emitters’ argument was that the courts “are ill-suited to deal with a systemic problem of this nature with all the complexity entailed”. They argued the courts should leave those inherently political issues to the politicians.

The Supreme Court rejected that argument. Unless parliament has, through statute, clearly displaced civil obligations – and the court found that it had not – a judicial pathway is “open for the common law to operate, develop and evolve”.

The challenges of establishing causation

Questions of causation and proximity have been stumbling blocks for litigants overseas attempting to bring similar tort claims to Smith’s.

Defendants typically argue it is impossible to show the global emission contributions of a small group of even relatively large entities can be evidentially linked to the climate-related harm experienced by plaintiffs. In this case, the seven corporate emitters are associated with around 30% of total New Zealand emissions.

However, New Zealand contributes less than 0.2% of global emissions. As the High Court judge put it, “the defendants’ contribution to […] global emissions is minute”. To accept Smith’s claim “would be to expose (them) to an undue burden of legal responsibility, way beyond their contribution to damaging global greenhouse gas emissions”.

The Supreme Court did not agree that the challenges of causation or proximity necessarily doom Smith’s case to failure. The court suggested that there may be scope for adjusting the causation rules to better reflect the nature of modern environmental issues like climate change.

Smith’s position (in part) is that instead of requiring litigants to prove that damage to their land and resources is directly attributable to the activities of one or more corporate emitters, the legal test should be adjusted to establish civil liability if defendants have materially contributed to the global problem.

But the Court didn’t think these difficult questions could be resolved without a full trial.

What role for tikanga and where now?

An important dimension of the case which distinguishes it from similar proceedings overseas is the relevance of a body of indigenous custom, law and practice known as “tikanga Māori”.

Recent Supreme Court decisions have accepted and applied tikanga as the “first law of New Zealand” including in relation to environmental protection.

The Court followed that approach in this case, accepting that crucial aspects of Smith’s case rely on tikanga principles.

Smith is not just suing on his own behalf, “but as a kaitiaki (carer) acting on behalf of the whenua (land), wai (freshwater) and moana (sea) – distinct entities in their own right”. The court pronounced that “addressing and assessing matters of tikanga simply cannot be avoided”.

With Smith’s claim having been reinstated, the parties now return to the High Court. Unless there is legislative intervention, the normal pretrial steps of discovery, evidence exchange and preparation will proceed. It promises to be one of New Zealand’s hardest fought and most closely watched private law climate cases.The Conversation

*Vernon Rive, Associate professor, University of Auckland, Waipapa Taumata Rau.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Smith should be grateful his offspring may get their historic Polynesian Warm Period kumara growing zones back. Without which the first settlers' kumara would not have not survived the first winter. It would have been a long wait for potatoes to show up.

'When the kumara was first introduced into New Zealand, it is probable that its growing would have been attempted after the same manner as in the tropics. There is sufficient evidence to suggest that in the present climate the plants would be unlikely to survive more than their first growing season, after which frosts would destroy them entirely. Because of the more favourable climate in that early period, however, it is suggested that introduction into the warmer northern parts of the country might need to undergo little modification of the island cultivation methods to survive.'

"Climate change seems a plausible explanation for the retreat of gardening, if not necessarily the only one. Kumara will not produce in soil temperatures of less than 150C for five consecutive months, conditions barely met in central New Zealand even today.20  A northward retreat of 150 km on temperature grounds implies a decline in mean annual temperature at sea level of about 10C. Looking at evidence of changing temperatures over the last millennium, it is apparent that an early period, estimated as 0.3-0.50C warmer on average than the twentieth century, was followed by a cold period of similar deviation below the twentieth century average. This is recorded in various sources."

View of The Making of the Māori Middle Ages (



Ok, the effects of the Medieval Warm period were experienced globally-I have no problem with that. Vineyards were recorded in the Domesday Book, but today, there are many many more vineyards in England than were recorded then-over 700 now- including some big champagne names.


This is a ridiculous use of the Justice system for selfish Activism

A law change is required by Parliament to stop this. 


Most libertarians (i.e., ACT being the closest to that political philosophy here in NZ) would suggest that tort/common law should be the standard in terms of individuals claims to environmental and/or enjoyment harm.  In other words, less regulation (i.e., less prescription in environmental law) and tort law instead being used to resolve this type of matter.

Here's an example I use for students;……

The first suggesting a regulatory fix is needed to resolve; the second being a tort/common law approach.



Indeed. But we live in a very not-libertarian system. 


The covid debacle clearly demonstrated ACT are authoritarian not libertarian! They couldn't even be bothered defending the Bill of Rights or the UNDHR.


"the legal test should be adjusted to establish civil liability if defendants have materially contributed to the global problem".

Well, our current CO2e emissions represent around 0.16% of global emissions and taking the figure that these companies-Fonterra and others-are responsible for 30% of our emissions, then we have a figure of around 0.048%. Does that represent a 'material' contribution to climate change? If liability were to be established, to whom would payment be due? Every Kiwi? What might be negative effects on the economy be?

However, i will now suggest to my grandchildren that they become climate lawyers and a lucrative future will await them.


New Zealand's homicide rate of ~130 per annum represents about 0.029% of the world's annual intentional homicide rate of ~450,000. 

It's hardly a material contribution to the world's overall rate. If we didn't have to establish liability think about how much taxpayer money would be saved. 

I might suggest my children become criminal lawyers because a lucrative future will await them. 


The government won't hold its donors to account so I'm glad someone has the balls to step up and challenge them.


To this low point within our law we have now arrived. There is so much poor law out there you could litigate blue was red & you'd win. As long as Mr Smith underwrites his own legal costs until proven otherwise. 

Having said that, I should give Maori their dues for playing the legal game pretty well over the last 50 years.


Anyone else still missing the Privy Council?


For a start, how can these seven NZ corporates individually be held responsible for the effects of what is a global activity. As the article states, their actions in this country represent only a part of what is just 0.2% of global greenhouse gas emissions created by New Zealand. 

What if Channel Infrastructure NZ is told to stop importing all refined fuels by the Supreme Court on the grounds that this business activity is a 'public nuisance', as is argued in Mr. Smith's crazy case. What would happen to this country then? No petrol, diesel or aviation gasoline.  Really, that just isn't going to happen and I cannot see any outcome here other than an 'all or nothing'. 

Can someone explain who is funding Mike Smith's case?  It certainly won't come cheap.  


By ecotard logic shouldn't they be rewarded given deaths from natural disasters have plummeted in the 19th and 20th Century? Globally there has never been a safer time to be alive.

"What we see is that in the early-to-mid 20th century, the annual death toll from disasters was high, often reaching over one million per year. In recent decades we have seen a substantial decline in deaths. Even in peak years with high-impact events, the death toll has not exceeded 500,000 since the mid-1960s.

This decline is even more impressive when we consider the rate of population growth over this period. When we correct for population – showing this data in terms of death rates (measured per 100,000 people) – we see an even greater decline over the past century."


I hope I am not paying for this!!!

I would think that he will struggle to prove loss

and the other parties should  counter claim for the benefits he has received from living in a warmer climate