Far North iwi leader Mike Smith’s win against big polluters ‘significant’ - law experts

Far North iwi leader Mike Smith has won the right to sue seven big polluters for their role in causing climate change - a win that legal experts say marks a ‘‘significant judicial recognition of climate issues’’.

A Supreme Court decision granting Far North iwi leader Mike Smith the right to sue seven big polluters for their role in causing climate change is a significant ruling showing the court is united in its acceptance of the existential challenges posed by climate change, legal experts say.

The Supreme Court reinstated Smith’s case after it was earlier thrown out by the Court of Appeal which ruled there was no reasonable basis for argument.

The climate activist said the group - including Fonterra, Z Energy and Genesis Energy (which together make around a third of New Zealand’s emissions) - have a legal duty to him and others in communities who are being damaged by planet-heating gases. Smith wants them to either stop polluting or start bringing emissions down quickly.

The Supreme Court noted it was not ruling on whether the case had a good chance of succeeding, only that Smith now gets his day in court.

Smith (Ngāpuhi, Ngāti Kahu), who is the climate spokesperson for the Iwi Chairs Forum, was delighted with the decision he considered a vital step in holding climate polluters to account.

University of Auckland law academics say the Supreme Court’s decision to advance Smith’s climate lawsuit against major polluters marks a significant judicial recognition of climate issues.

New Zealand Centre for Environmental Law member Associate Professor Vernon Rive said although the companies applied to strike out the proceeding, the court allowing the case to proceed highlighted 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.

Rive and Director of the New Zealand Centre for Environmental Law, Professor Caroline Foster, stressed that globally swift and co-ordinated 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,” Foster said.

“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 said 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.

Foster argued that forward-looking and constructively crafted remedies are most important compared with the more backward-looking apportionment of liability.

Smith is also suing the Government for failing to take effective action on climate change. That case is awaiting a judgement from the Court of Appeal following a hearing in October.

Genesis Energy said in a statement it was “disappointed”, and that the case would divert resources from actually cutting emissions by building up renewable energy. Lawyers for the big emitters had argued in court that damage from climate change affected everyone, and was best tackled by laws and Parliament, not by the courts using common law.

But the Supreme Court ruled that just because Parliament had laws for addressing climate change, did not stop Smith bringing a case.