Academics weigh in on Smith v Fonterra

The unanimous Supreme Court decision to give the go-ahead to a case brought by Iwi leader Michael Smith against seven of the country’s biggest polluters signals that the Court is united in its acceptance of the existential challenges posed by climate change, say University of Auckland law academics.

Smith, an elder of Ngāpuhi and Ngāti Kahu, and a climate change spokesperson for the Iwi Chairs Forum, alleges that the companies damaged, and will continue to damage, his whenua and moana, including places of customary, cultural, historical, food gathering and spiritual significance to him and his whānau.

And although the companies, which include Fonterra, Genesis Energy and Z Energy, applied to strike out the proceeding, the Supreme Court decision this month on 7 February, to allow Mr Smith’s case to proceed, highlights the relevance and importance of judicial involvement in responding to climate-related challenges, and the capacity of the common law, and common-law method to be part of the response, says New Zealand Centre for Environmental Law member Associate Professor Vernon Rive.

“For our Supreme Court to be saying ‘we’ll look at this’ is significant. The role of tikanga Māori is an important element in this case - it may inform the evolution of tort law, and that’s breaking new ground.”

Associate Professor Rive and Director of the New Zealand Centre for Environmental Law, Professor Caroline Foster, stress that, globally, swift and coordinated action is needed to manage climate change risks.

“Climate change and the global biodiversity crisis pose major medium to long-term problems which require international action now to avoid serious harm in the future,” says Professor Foster.

“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," she says.

“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.”

Professor Foster says that as the Smith v Fonterra case moves ahead, special attention will need to be given to the law on standing and causation, and to remedies.

She argues that forward-looking and constructively crafted remedies are most important compared to the more backward-looking apportionment of liability.