Indigenous Peoples and Human Rights

August 14, 2022

Iwi leader up against New Zealand's biggest climate polluters in Supreme Court

Iwi Mike Smith

Iwi Mike Smith faced off with 30 attorneys in today's hearing.
                                                     Photo courtesy Mike Smith.

Iwi leader up against NZ’s biggest climate polluters in Supreme Court

Press statement
Monday 15 August 2022
Watch live during court sessions

Iwi leader Mike Smith is facing off against some of New Zealand’s biggest climate polluters today in the Supreme Court.

Smith is suing fossil fuel and dairy companies, including Genesis Energy, Fonterra, and Z Energy for public nuisance and negligence for their contributions to climate change. Over the next three days, the Supreme Court will decide whether the polluter companies may be breaching important duties to New Zealanders and ought to face a full trial.

Smith (Ngāpuhi, Ngāti Kahu), who is co-chair of the climate directorate for the Iwi Chairs Forum, says that it is now or never to hold climate polluters to account.

“We are running out of time to curb the climate crisis. The Government has failed us on climate change, and it won’t act in time because every effort is undermined by lobbying from climate polluting interests. My hope is that the Courts can play their vital role and help stop the biggest wrong of all times.

“These companies are actively contributing to climate change by causing greenhouse gas emissions, and they have no immediate plans to stop. They are putting profit ahead of the billions of people all over the world who will suffer the effects of climate change. This should be the biggest wrong the law has ever seen" he says.

Smith is also arguing that a full trial is needed to take account of tikanga evidence and principles. Supporting submissions will be made by the Lawyers for Climate Action NZ, Te Hunga Rōia Māori o Aotearoa (the Maori Law Society) and the Human Rights Commission.

Smith is also suing the New Zealand Government for failing to take greater action on climate change.

"We're facing a climate emergency. The latest IPCC report has told us in unequivocal terms that we are on the brink of catastrophe and it is now or never to rein in emissions. The UN Secretary-General has called our inaction “collective suicide” and he is right,” Smith says.

The case is now one of many climate cases against companies globally. A Dutch decision in 2021 in the Hague District Court ordered Shell to reduce its emissions by 45% by 2030 (including not just its own emissions but those of its customers).

“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 that,” says Smith.

For the first time, the Supreme Court is sitting in Auckland.

The Supreme Court is sitting in the Auckland Environment Court, Courtroom 2, Chorus House, 41 Federal Street.

The case is expected to run from Monday 14th to Wednesday 16 August from 10:00am - 4:00pm


What could Newstalk ZB host Mike Hosking possibly have in common with Mike Smith, the Māori activist taking a landmark climate-change case to the supreme court today? As well as sharing a first name, Smith, like Hosking, could be a pioneer in New Zealand tort law should he succeed this week.

The Northland iwi leader’s case against Fonterra, Genesis, Z Energy and four others has already attracted interest from around the globe. In short, Smith says these corporate high-emitters should be liable to the public in various strands of tort law. When the case went to appeal, its lawyers noted it was the first commonwealth climate-change case using tort law to seek wide-ranging private law remedies. Tort law is developed by judges, not parliaments, and is driven by moral underpinnings which change over time.

In Mike Hosking's 2005 case, the court of appeal felt a need to establish a privacy tort for intrusion into private affairs. Smith argues there should be a new tort recognizing climate change. In the high court, Justice Ed Wylie said he couldn’t rule out such a tort. However, the court of appeal struck the case down, saying it was an issue for the government and regulators to deal with. Smith’s current appeal only relates to the strikeout of his case, a preliminary step. If he wins, he only gets the right to proceed to trial.

So, will the supreme court open the gates? It is possible to take hints from comments made by Justices Helen Winkelmann, Susan Glazebrook and Ellen France, who will all hear today’s case (alongside Justices Joe Williams and Justice Stephen Kos). In a 2019 paper written before the Mike Smith suit was filed, the judges said, “the difficulties of tort law are starkly apparent” when dealing with climate change, before adding, “some headway is evidently being made”.

“Courts may be more willing to hold corporations responsible if emissions can be scientifically linked to actions,” the paper added. NZ’s courts are often seen as more liberal than similar jurisdictions. Chief justice Winkelmann was already going against the grain in 2013 when she said resource consents should take into account the effects of climate change. She thought the effects of climate change were not too remote to be considered. However, she was the dissenting minority, in that case involving open-cast mining by Buller Coal.

The opportunity here is for the supreme court to tell parliament it is not moving fast enough or with enough precision in this area. My bet is that it does this, without letting the claim get through. In Mike Hosking’s case, the court said there was a right to privacy, but he didn’t win because it wasn’t actually breached. Corporate reality Win or lose, corporates shouldn’t fear just this one case. It is, though, another reminder of the reality, or the 'mainstreaming' of climate-change action. This case has been brought by one activist, supported by an army of pro bono lawyers, led by the prolific silk Davey Salmon QC.

Salmon’s notable cases include forcing the government into a negligence settlement for kiwifruit growers, the above-mentioned Buller Coal case, and winning back Greenpeace’s charitable status. These cases may make him appear a champion of the little guy but, don’t worry, he’s still a hired gun for the big end of town. Other clients include CBL’s Peter Harris, America's Cup boss Grant Dalton and Du Val’s Kenyon Clarke. Salmon is not officially part of, but has done plenty of free work for, the Lawyers for Climate Action Group. The not-for-profit has 300 members who do free legal work in favor of climate-change action.

It's hard to evaluate its success so far. In the most recent case that it took alongside other environmental groups, as part of All Aboard Aotearoa against Auckland Transport, it lost a judicial review complaining the supercity’s transport body didn’t make planning decisions properly. It still awaits an outcome in its judicial review challenge to the Climate Change Commission’s advice to the government. As a long-time legal industry watcher, it fascinates me that the stodgy profession which still can’t let go of paper and has a terrible track record on how women are treated can be so progressive that it has a group bold enough to take such a stance. Lawyers are meant to be hired guns and not “lean” any particular way.

The climate-change group is led by the fairly corporate, fairly mainstream former Bell Gully litigator Jenny Cooper QC. Whatever happens in Smith’s case, these highly intelligent, organized lawyers are only going to bring more cases. That’s a problem for corporates because these highly technical and practical lawyers are showing where the law and science should meet. It's one thing to faff about and ignore the science, but another to ignore the law.

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