This is a significant decision from New Zealand’s highest court on the availability of private law claims and remedies to address greenhouse gas emissions. It is also one of the first times in the common law world that a court has recognised an arguable possibility that tort law can be used to challenge the greenhouse emissions of a private entity.
In a unanimous judgment, the Supreme Court has overturned the Court of Appeal’s earlier decision to strike out all three claims against the seven corporate defendants and allowed Mr Smith’s claims in negligence, public nuisance, and a novel “climate system damage” tort to proceed to trial.
In doing so, the Court has questioned the prevailing orthodoxy that climate change cannot be adequately addressed by common law tort claims while leaving open a number of questions that will now need to be addressed in the course of a High Court trial process.
Mr Smith is an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesman for the Iwi Chairs Forum. He has brought 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 brought claims in public nuisance, negligence and breach of a proposed new “climate system damage” duty to cease contributing to damage to the climate system, drawing on principles of tikanga Māori in the formulation of his claims. He sought a declaration that the defendants’ emitting activities are unlawful. He also requested an injunction that either requires a peaking of net greenhouse gas emissions by 2025 and linear reductions to net zero by 2050 or immediate cessation of net greenhouse gas emissions.
In March 2020, the High Court struck out Mr Smith’s claims in public nuisance and negligence but declined to strike out his proposed new “climate change damage” duty. Mr Smith appealed and the defendants cross-appealed. In October 2021, the Court of Appeal concluded that all claims should be struck out. It held that the response to climate change was best left to other branches of government with “a sophisticated regulatory response at a national level supported by international co-ordination”.
Mr Smith appealed this decision to the Supreme Court, which heard the appeal in August 2022.
Supreme Court decision
The Supreme Court unanimously over-turned the decision of the Court of Appeal and held that each Mr Smith’s claims should be reinstated and proceed to trial.
- The Court emphasised that a measured approach to strike out is appropriate where a claim is novel but is founded on seriously arguable non-trivial harm. That is, the Court must be satisfied that the claim was bound to fail and should lean towards receipt of the claim over pre-emptive elimination.
- The Court rejected the argument that climate-change related claims in tort are excluded by statute. In its view, enactments such as the Climate Change Response Act and Resource Management Act left a pathway open for the common law to operate, develop and evolve (if required).
- The Court did not consider that the strike out threshold had been met. Focussing on Mr Smith’s public nuisance claim, the Court concluded that Mr Smith had tenably pleaded interference with an actionable public right (e.g. public rights to health, safety, comfort, convenience). The Court agreed with the Court of Appeal that Mr Smith did not have to show an independently illegal act by the defendants. It observed that the public nuisance requirement to show “special damage” would need to be reconsidered at trial in light of full evidence and argument. It refused to accept that apparent difficulties in directly attributing the harm claimed by Mr Smith to the emissions of the defendants was fatal to the continuation of the claim.
- The Court did not independently consider the tenability of Mr Smith’s remaining claims in negligence and the “climate change damage” tort. Instead, it allowed both claims to proceed on the basis that their continuation would be unlikely to add materially to the cost, hearing time and judicial resources required to consider the primary public nuisance claim.
- The Court accepted the role of tikanga in Mr Smith’s claim and noted that the trial court will be required to “grapple” with the fact that Mr Smith purports to bring proceedings as a kaitiaki (loosely, those whose role it is to care for the environment) acting on behalf of whenua (land), wai (fresh water) and moana (sea) and with the tikanga conceptions of loss that are neither physical nor economic. The Court acknowledged that tikanga may impact particular aspects of the tort claims – including the special damage rule in public nuisance and questions of loss.
- The Court acknowledged there were “obstacles” with Mr Smith obtaining an injunction that required the cessation of net greenhouse gas emissions but acknowledged the utility of a declaration.
The judgment marks one of the first times in the common law world that a court has recognised an arguable possibility that tort law can be used to challenge the greenhouse emissions of a private actor.
The Court has questioned the prevailing orthodoxy that climate change cannot be appropriately or adequately addressed by common law tort claims pursued through the Courts or that the response to climate change is best left to other branches of government to strike an appropriate balance through regulation. In doing so, it has left open a number of questions about the proper scope of such private law claims, the possibility that they might succeed, and the court process that will be required to assess them.
The case will now return to the High Court for case management through to trial.
Bell Gully acts for one of the defendants in the proceeding and is closely monitoring legal developments on the response to climate change. For more information get in touch with the contacts listed or your usual Bell Gully adviser.