New Zealand Supreme Court Allows Climate Change Action To Proceed
Published date | 28 March 2024 |
Law Firm | Fasken |
Author | Ms Kimberly Potter and Kerry Kaukinen |
In the recent case Smith v. Fonterra, 1 the Supreme Court of New Zealand allowed an appeal in a private law climate change action, permitting the appellant's tort claims to proceed and rejecting the respondent corporations' arguments that the causes of action were doomed to fail.
This is an important case for those interested in climate change litigation. New Zealand's top court found that the New Zealand common law may indeed be flexible enough to accommodate new forms of claims targeted at private entities alleged to be contributing to the complex issue of climate change. Whether these causes of action will succeed at trial is not yet known, but in Smith, the Supreme Court was not willing to strike them at a preliminary stage.
This result is likely to embolden climate activists worldwide in pursuing new and creative forms of private law relief, or in arguing that existing private law causes of action can be repurposed to respond to climate change.
In Smith, the plaintiff, Michael John Smith, a Māori elder and climate change spokesperson for a national forum of tribal leaders, commenced a proceeding against seven New Zealand companies in a range of sectors including energy, mining and others fueled primarily by combustion of coal and fossil fuels. The seven companies are alleged to be collectively responsible for more than one-third of New Zealand's greenhouse gas emissions. Mr. Smith raised three tort claims: public nuisance, negligence, and a proposed new tort based in a private duty in relation to climate change. Mr. Smith sought declarations with respect to the tort claims and injunctions requiring the companies to reduce emissions within a prescribed time frame or alternatively, immediately cease emitting net emissions.
The respondent companies applied to strike out Mr. Smith's claims, arguing that his pleadings disclosed no reasonable cause of action. The New Zealand High Court struck the claims in public nuisance and negligence and let the novel tort claim stand. The Court of Appeal then struck out all three causes of action, finding that "the magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law claims pursued through the courts," and that rather the matter called for a "sophisticated regulatory response at a national level supported by international co-operation."
On appeal, the Supreme Court took a capacious view of the common law's ability to respond to harms caused in connection...
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