Will New Zealand Finally Have a Climate Change Tort? Explaining the Smith v Fonterra Update and Our Progress Compared to Other Countries
By Joanna Jiang
The possibility of a new climate change tort is back on the cards for New Zealand. The Supreme Court, in a long-awaited update to the Smith v Fonterra litigation, refused to strike out the three causes of action raised by Mr Smith: 1) public nuisance, 2) negligence, and 3) a new tort based on contribution to climate change.[1] Refusal to strike out does not mean that Mr Smith has succeeded in his causes of action, but rather that they have been deemed non-trivial and are allowed to proceed to trial.
Background
Mr Smith is an elder of Ngāpuhi and Ngāti Kahu and a climate change representative for the Iwi Chairs Forum, a national forum of iwi leaders. He first made his claim in 2019, raising the three causes of action against seven New Zealand companies who Mr Smith alleges to have damaged his customary land. The seven New Zealand companies involved either emit greenhouse gases (GHGs) or supply products which release GHGs when burned.
The Claims
Mr Smith’s first claim is public nuisance, which is the wrong of unreasonably interfering with the comfort and convenience of a section of the public.[2] Mr Smith’s claim falls into the “continuing interference with public rights” category of public nuisance.[3] Smith claimed he would suffer substantial harm from the respondents’ contribution to climate change, including loss of ancestral land, a decline in the economic value of land, damage to spiritually significant sites and customary fisheries, and a detriment to the health of particularly vulnerable Māori communities like his own.[4] He also pleaded that there was a substantial, unreasonable, and material interference with the following public rights: the right to public health, public safety, public comfort, public convenience, public peace, and to a safe and habitable climate system.[5]
Additionally, Mr Smith claimed that the companies had been negligent. A negligence cause of action arises when there is a duty on one party to take reasonable care when carrying out an activity, and that duty is breached.[6] Mr Smith argued that the respondents had a duty to take reasonable care to not operate in a way that would create a dangerous level of emissions and cause him loss, and that they had breached this duty.[7]
The third claim was the novel, proposed climate change tort. Mr Smith pleaded that “the defendants owe a duty, cognisable at law, to cease materially contributing to damage to the climate system”.[8] He alleged that the respondent companies breached this duty by continuing to emit GHGs for profit, knowing their activities damage the climate system and adversely affect people like Mr Smith.
The Outcome
The Supreme Court first addressed — and rejected — the companies’ argument that climate action could only be statutory.[9] They argued that the legislation, written by Parliament, was the only way to address climate change and thereby excluded any claims arising from common law (law made by the courts). The statutory scheme in place relating to climate action is the Climate Change Response Act 2002 (CCRA). The CCRA is designed to accompany the Resource Management Act 1991 (RMA) — which regulates the environmental effects of human activity.[10] Section 23(3) of the RMA explicitly preserves common law and any other rights of action. The Court concluded that the climate statutory scheme was designed to supplement a common law cause of action and did not displace it.
The Supreme Court then considered whether the elements for a public nuisance claim had been met. It agreed with the Court of Appeal that the public rights alleged to have been breached were actionable in public nuisance and that there did not have to be an independent unlawful act causing the nuisance.[11] However, the Supreme Court disagreed with the Court of Appeal and found that Mr Smith had suffered ‘special damage’ because of the damage to his coastal land and to his fishing and cultural interests.[12] The court also concluded that there was a sufficient connection between the pleaded harm and the respondents’ activities. However, the requirement of a “substantial and unreasonable interference with public rights” remains a question to be decided in trial.
Ultimately, the Court determined there was no reason to pre-emptively strike out Mr Smith’s claims, noting that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity”.[13] His primary claim, public nuisance, has barely been developed over the last century— let alone applied to modern challenges like the climate crisis. No matter the result, not striking out the claim and allowing it to proceed to trial will allow for further development of the law of public nuisance. Mr Smith’s other claims, negligence and the novel climate change tort, were also reinstated.
Climate Change Litigation in Other Jurisdictions
In Australia, the 2021 ruling in Minister for Environment v Sharma sparked hope for the advancement of climate litigation but was promptly overturned the following year.[14] The case involved the proposed extension of the Vickery coal mine in New South Wales, brought by eight teenagers and a nun as their litigation guardian. They sought an injunction preventing the Minister for Environment from approving the extension. In 2021, the Federal Court made a declaration that the Minister of Environment owed a duty to avoid causing injury and death to Australian children resulting from GHG emissions. However, this ruling was overturned. The Full Federal Court in 2022 found that, ultimately, the imposition of a duty of care was not a question for the judiciary, was inconsistent with the statutory scheme, and that there was not a close enough relationship between the parties to warrant such a duty.[15] This ruling suggests that, in Australia, tort law is not suitable for addressing climate issues.
Over two-thirds of climate litigation occurs in the United States, potentially due to the lack of climate legislation. Many of these claims involve activist groups filing claims against the government, but there have also been claims against companies filed by local government and activist shareholders. Notably, in a claim filed by 16 activists in Montana, the judge found that their right to a “clean and healthful environment” written in the state constitution had been breached due to the state’s pro-fossil fuel policies. This ruling is only binding within the state of Montana, but could influence other states to add similar “green” provisions to their constitutions. Overall, the US seems to favour climate litigation over statute.
The 2015 Urgenda climate case in the Netherlands was the first in the world to establish that the government had a legal duty to its citizens to prevent dangerous climate change. The success of the claim, brought by the non-profit Urgenda, saw a flood of subsequent climate litigation worldwide. Now, in 2024, there have been more than 2500 climate cases globally, according to databases run by Columbia University's Sabin Center for Climate Change Law. One of these cases was a ruling in the European Court of Human Rights, in which Switzerland was found to have "failed to comply with its duties under the Convention concerning climate change".The plaintiffs were a group of elderly women who were particularly vulnerable to Switzerland’s climate induced heat waves. This ruling is binding on 46 European countries — setting a significant precedent for future climate-related claims and pushing European countries to carefully comply with the Convention. Since these European rulings are against governments, they do not directly impact private companies emitting GHGs; however if countries implement the courts’ findings in legislation this will likely force companies to reduce their emissions.
Conclusion
Climate litigation in tort law has been gaining momentum globally. New Zealand seems to favour a statutory response over litigation, but if Mr Smith ultimately succeeds in his claims, this could change in the future. While questions of whether litigation is a suitable vehicle for climate action are valid, it is clear from overseas cases that tort law principles can, and have been, applied to fight the climate crisis. New Zealand has yet to do this. The Supreme Court’s willingness to reinstate Mr Smith’s claims may be the first step.
[1] Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5.
[2] Stephen Todd Todd on Torts (8th ed, Thomson Reuters New Zealand Ltd, 2019) at 534.
[3] At 590.
[4] Smith v Fonterra, above n 1, at [63].
[5] At [64].
[6] Todd, above n 2, at 427.
[7] Smith v Fonterra, above n 1, at [67].
[8] At [71].
[9] At [86].
[10] At [95] and [100].
[11] At [146]–[147].
[12] At [152].
[13] At [172].
[14] Minister for the Environment v Sharma [2022] FCAFC 35.
[15] At [7].
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