New Zealand Supreme Court Releases Smith v Fonterra & Ors Decision On Novel Climate Change Claims

• Published date: 21 March 2024
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Climate Change
• Law Firm: Travers Smith LLP
• Author: Alice Childs, Caroline Edwards and Heather Gagen

In a unanimous judgment, the Supreme Court of New Zealand has overturned the Court of Appeal's decision, which struck out Mr Smith's three tortious claims against seven corporate defendants (read our previous briefing here). The Supreme Court has allowed Mr Smith's claims in negligence, public nuisance, and a novel "climate system damage" tort to proceed to trial.

Recap - High Court and Court of Appeal decisions

Mr Smith is an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesman for the Iwi Chairs Forum. He claims against seven corporate defendants on the basis that they are each involved either in an industry which releases greenhouse gases into the atmosphere or manufactures and supplies products which release greenhouse gases when they are used. Mr Smith seeks: (i) declarations that each defendant has unlawfully caused or contributed to public nuisance or has breached duties of care to Mr Smith; and (ii) injunctions requiring each defendant to achieve net zero emissions by 2050.

The High Court determined that Mr Smith's claims in public nuisance and negligence were not reasonably arguable and struck them out. It declined to strike out the claim based on the proposed climate system damage tort. Mr Smith appealed and the respondents cross-appealed.

The Court of Appel struck out all three causes of action. Its overarching view was 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. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international coordination".

Supreme Court's decision

Two preliminary points are worth noting at the outset:

1. The Supreme Court was only considering whether the claims should be struck out and emphasised that "a refusal to strike out a cause of action is not a commentary on whether or not the claim ultimately will succeed".
2. The Supreme Court only addressed Mr Smith's claim in nuisance (being that the defendant companies are substantially and unreasonably interfering with rights to public health, safety comfort, convenience and peace). Having found that the nuisance claim was tenable, the Court allowed the remaining two causes of action to proceed on the basis that they would not materially add to costs, hearing time or other court resources that would be used in any event.

Perhaps most interesting about the judgment is the Supreme...