Iwi leader Mike Smith’s landmark case against New Zealand’s biggest climate polluters has cleared another hurdle, after the High Court rejected efforts by the country’s biggest corporate polluters, including Fonterra and Genesis, which would have required the proceedings to include thousands more companies.

Smith says “This was yet another attempt by the corporations to escape responsibility for their emissions.

“Now that this has been cast aside, I can finally look forward to the case being heard in court.

Justice Andrew’s judgment highlighted his concerns with the length of time and number of hurdles Mr Smith has faced in order to have his case go to trial.

“...it is now nearly six years since the proceedings were commenced and the trial is only two years away. The present application could have been brought at any point before now.

“It is clear that further delay and complexity would have a hugely significant impact on Mr Smith and his right of access to justice.”

“Furthermore, while the facts are yet to be fully tested, in substance, Mr Smith is claiming that he wishes to hold the defendants to account for their emissions before it is too late and irreparable damage ensues.”

The defendant's intervention sought to bring other emitters from around the country and the world into the proceeding, arguing that if they are to face scrutiny, then so should all polluters. This could have amounted to thousands of companies.

The Judge discarded their arguments, saying “The defendants cannot, by a representative order, force Mr Smith to sue people he does not sue or wish to sue.

For Smith, their strategy was clear. “They wanted to increase complexity, delay the case even further, and raise legal costs in the hope of weakening my position.

“I brought this case against these defendants deliberately—they are some of the largest polluters in Aotearoa and reflect a cross section of the economy. And despite years of knowing about their contribution to the climate crisis, they are not curtailing their emissions.”

The hearing is scheduled for April 2027.

Background to the case

Smith’s long path to being heard

In 2019, Mr Smith (Ngāpuhi, Ngāti Kahu) brought proceedings against six of New Zealand’s biggest polluters, as an individual suffering loss resulting from climate change and as kaitiaki acting on behalf of his whenua, wai and moana.

Smith’s case has endured despite attempts by the companies – Fonterra, Genesis Energy, Dairy Holdings Ltd, NZ Steel, Z Energy, and BT Mining – in the High Court, Court of Appeal and Supreme Court to strike out his proceedings.

While the case was struck out in full by the Court of Appeal, the path was cleared for the trial to proceed by the Supreme Court in 2024.

The defendants have consistently claimed that the case is too big for tort law and tried to strike out the case on the basis that he had not sued every contributor to climate change. However, the Supreme Court held that Mr Smith did not need to do that, and the claim could proceed against the named defendants only.

This has now been reinforced by Justice Andrews judgment. Mr Smith is entitled to choose who he sues.

Significance of the case

The case will now proceed with a clear scope, allowing the Court to focus on whether the named defendants can be held liable in tort for their contributions to climate harm.

A tort in New Zealand law is a civil wrong, such as negligence or public nuisance, that can lead to the person responsible having to pay compensation.

If successful, the case may lead to the development of a new tort, which establishes a duty on entities to “cease materially contributing to damage to the climate system”.

Smith says such a development would be internationally significant. “In the meantime, Justice Andrew’s decision affirms the right of individuals and communities to bring focused legal action against major emitters.”

Members Bill would outlaw climate litigation

National MP Joseph Mooney recently filed a member’s bill which would outlaw the public from taking climate change litigation, in an apparent attempt to shut down Mr Smith’s proceedings.

Smith says Mooney’s legislation would turn New Zealand into a banana republic, where corporate power reigns supreme over the rights of communities and citizens.

Smith predicts the bill to be short-lived, “There will be a tremendous backlash because it is such a brazen attack on democratic rights and climate action.”

Notes:

The key components of the Court’s decision:

No to International Parties: The Judge ruled that there is no need to bring in global polluters to resolve this case.

No to National Expansion: The defendants cannot shift focus away from their own conduct by including additional parties across New Zealand.

No to Representative Orders: The case does not represent all polluters or all harms; it is a targeted claim against specific defendants with substantial emissions profiles across a range of sectors of the economy.

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