New Zealand: Huge Climate Win for Maōri Leader in Case Against Dairy & Fossil Fuel Polluters

New Zealand’s Supreme Court has ruled in favour of Māori leader Mike Smith’s climate case versus fossil fuel and dairy companies, which include Fonterra.

In a landmark win for environmental rights, the New Zealand Supreme Court has ruled in favour of Northland iwi leader Mike Smith, whose case against seven big polluters (including dairy giant Fonterra) has been hanging in the balance for years.

Smith has now won the right to continue his case against the corporations, which include Fonterra, Genesis Energy and Z Energy, together responsible for about a third of the country’s emissions. The country’s highest court has ruled that these companies have a legal duty to Smith and others in communities who are facing the worst effects of climate change.

The unanimous decision on Smith v Fonterra overturned the Court of Appeal’s earlier decision to strike out all three claims of negligence, public nuisance and breach of a proposed new ‘climate system damage’ duty, arguing that there was no reasonable basis for the argument. But now, Smith will get his day in court.

“We’re facing a climate emergency. The latest advice from the IPCC has told us in unequivocal terms that we are on the brink of catastrophe and it is now or never to rein in emissions. We’ve got to pull out all the stops to turn things around,” said Smith.

Supreme Court overturns Court of Appeal decision

Smith, an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesman for the Iwi Chairs Forum (a national tribal leaders’ forum), filed a statement of claim against dairy and fossil fuel companies in 2019 for their role in emitting greenhouse gases or supplying products that release them when burnt.

Fossil fuels are by far the largest contributor to climate change, accounting for 73% of global emissions. Dairy, meanwhile, is responsible for 3.4% of global emissions – that’s nearly double the impact of the entire aviation industry – with the highly potent gas methane being the biggest source (59%). Within New Zealand, methane emissions were the biggest reason behind the 21% increase in GHG emissions between 1990 and 2020, with growing dairy cattle numbers and carbon dioxide from road transport the biggest culprits.

Smith drew on principles of tikanga Māori (Māori culture and customs), reflecting on how it determines his relationship to coastal land and waters that are being flooded and damaged. Among his three claims was a proposed ‘climate system damage’ tort, which underlines the duty to cease contributions to the climate crisis.

The plaintiff was seeking a declaration that the defendants’ emissions activities are unlawful, and requesting an injunction that would require either a peaking of net GHG emissions by 2025 and linear reductions to reach net zero by 2050, or a complete and immediate cessation of emissions.

In March 2020, a High Court struck out Smith’s claims of public nuisance and negligence but refused to do so for the climate system damage duty. Both sides appealed, which led to a Court of Appeal striking all three claims and stating that the response to climate change is best left to government branches via “a sophisticated regulatory response at a national level supported by international coordination”.

Smith then appealed to the Supreme Court, which heard his case in August 2022, which overturned the decision and reinstated all three of his claims, allowing him to proceed to trial against the seven companies: Fonterra, Genesis Energy, Z Energy, Dairy Holdings Limited, New Zealand Steel, Channel Infrastructure NZ, and BT Mining.

“These companies are actively contributing to climate change by emitting greenhouse gases into the atmosphere with no immediate plans to stop. They are putting profit ahead of the billions of people all over the world who are already suffering the effects of climate change. The planet is burning and we need to hold those responsible to account,” he said.

Smith v Fonterra represents growing trend of climate litigation

In an online comment, Bell Gully, a law firm for one of the case’s defendants, said: “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.”

Analysing the decision, Professor Caroline Foster, director of the New Zealand Centre for Environmental Law, said: “Our legal system has proven itself able to adapt in the past to deal with major challenges and it will be interesting to see what happens in the case of Smith v Fonterra and the parallel constitutional law proceedings in Smith v Attorney General, currently awaiting a decision on appeal against strike-out in the Court of Appeal.”

“People across Aotearoa are willing to use every avenue possible to resist the intensive dairy industry, and now Mike Smith’s case has confirmed polluters like Fonterra could be held legally responsible for the climate devastation they’ve caused,” said Russel Norman, executive director of Greenpeace Aotearoa. “These big polluters have taken that right away from New Zealanders across the country, and now, the Supreme Court has put them on notice for their climate crimes.”

Foster added: “Courts worldwide are currently dealing with similar issues, however, New Zealand law is arguably especially well equipped to do so. The common law embraces both customary international law and tikanga within its rich heritage, and these traditions emphasise due regard for present and future generations.”

There has been a growing number of cases around climate change lately. In December 2019, the Supreme Court in The Hague ruled in favour of climate activists asking the Dutch government to cut emissions by at least 25% by the end of 2020 (from a 1990 benchmark). It came a day after Swiss climate activists had gained enough signatures to force a referendum on setting climate-mitigating goals in the constitution.

In August last year, young climate activists in Montana, US registered a first-of-its-kind legal victory when a judge ruled that the state’s fossil fuel policy was violating their constitutional right to a clean and healthful environment. In January, a Norwegian court issued an injunction blocking the development of three oil and gas fields and forbidding the state from granting any new permits on those fields.

Additionally, climate litigation has also seen lawsuits against governments including Italy, Turkey, Pakistan and the UK, with the latter two favouring the plaintiffs and forcing legislators into action.

Smith will hope his case will do the same in New Zealand. “Today, the New Zealand courts have recognised that these climate polluting companies need to face a full trial and that they may be breaching important duties to our people,” he said.

“We are in a global war against those responsible for the climate emergency and we are seeing the courts play an increasingly important role in enforcing the rights of those directly affected by it,” says Smith.

Smith v Fonterra & Ors will now return to the lower courts for a full hearing with expert evidence.