Climate Change Litigation Unfolds: Implications from Smith v Fonterra
Source: The DairyNews
The Supreme Court of New Zealand has granted permission for a case to proceed to trial, introducing a potential new common law tort.
This proposed duty involves ceasing to materially contribute to climate system damage, dangerous anthropogenic interference, and adverse climate change effects. While the decision might hint at a new avenue for climate-related tort claims, it primarily aligns with existing procedural rules in New Zealand, emphasizing the claimant's status as a representative of the indigenous population.
In 2022, Michael Smith initiated a tort claim against seven major New Zealand greenhouse gas emitters, alleging their collective responsibility for over a third of the country's emissions. The Supreme Court's recent ruling refused to strike out the causes of action, signaling a cautious approach to a novel yet arguable claim based on non-trivial harm.
The court addressed critical questions, including the potential exclusion of common law actions over greenhouse gas emissions by statute. Despite New Zealand's climate legislation, the court found no statutory exclusion and preserved the right to bring common law claims. The decision challenges the notion that Mr. Smith's claim conflicts with parliamentary policy and legislation.
The ruling also explored whether a public nuisance claim was destined to fail. The court disagreed with the notion that parallel unlawfulness between common law and criminal or civil law was a prerequisite, paving the way for the claim to proceed. The court emphasized Mr. Smith's legal and tikanga interests, indicating a potential departure fr om English law standards.
Moreover, the court recognized the role of tikanga (Māori custom) in shaping tort claims. It acknowledged that tikanga could inform common law claims, particularly in considering non-economic concepts of loss and recognizing Mr. Smith's representation of land, water, and sea.
While drawing comparisons with the Milieudefensie v Shell case in the Netherlands may be tempting, the legal principles differ. Smith v Fonterra relies on established common law and indigenous principles, contrasting with Milieudefensie's attempt to incorporate international law obligations into domestic civil law.
The impact of this case on other jurisdictions remains uncertain. Its heavy reliance on indigenous principles specific to New Zealand might lim it its influence in jurisdictions with different legal developments. However, if the case proceeds to trial and garners a published judgment, it could have broader implications for common law jurisdictions navigating climate-related tort claims.
In 2022, Michael Smith initiated a tort claim against seven major New Zealand greenhouse gas emitters, alleging their collective responsibility for over a third of the country's emissions. The Supreme Court's recent ruling refused to strike out the causes of action, signaling a cautious approach to a novel yet arguable claim based on non-trivial harm.
The court addressed critical questions, including the potential exclusion of common law actions over greenhouse gas emissions by statute. Despite New Zealand's climate legislation, the court found no statutory exclusion and preserved the right to bring common law claims. The decision challenges the notion that Mr. Smith's claim conflicts with parliamentary policy and legislation.
The ruling also explored whether a public nuisance claim was destined to fail. The court disagreed with the notion that parallel unlawfulness between common law and criminal or civil law was a prerequisite, paving the way for the claim to proceed. The court emphasized Mr. Smith's legal and tikanga interests, indicating a potential departure fr om English law standards.
Moreover, the court recognized the role of tikanga (Māori custom) in shaping tort claims. It acknowledged that tikanga could inform common law claims, particularly in considering non-economic concepts of loss and recognizing Mr. Smith's representation of land, water, and sea.
While drawing comparisons with the Milieudefensie v Shell case in the Netherlands may be tempting, the legal principles differ. Smith v Fonterra relies on established common law and indigenous principles, contrasting with Milieudefensie's attempt to incorporate international law obligations into domestic civil law.
The impact of this case on other jurisdictions remains uncertain. Its heavy reliance on indigenous principles specific to New Zealand might lim it its influence in jurisdictions with different legal developments. However, if the case proceeds to trial and garners a published judgment, it could have broader implications for common law jurisdictions navigating climate-related tort claims.
