The Supreme Court decision allowing the Smith v Fonterra Co-operative Group Limited and Others climate change case to go to trial is a welcome outcome, says Te Kāhui Tika Tangata Human Rights Commission.

The decision means that Mike Smith (Ngāpuhi, Ngāti Kahu) will be allowed to pursue his allegations that seven major New Zealand companies are either substantial emitters of greenhouse gases or supply products which release them when burned and, therefore, contribute materially to climate change.

Mr Smith claims that the companies’ emissions have, and continue to, cause damage to his whenua, and sites of cultural and historical significance for him and his whānau.

Mr Smith appealed to the Supreme Court after the Court of Appeal had said that the case could not possibly succeed and, therefore, there was no reason for the defendants to be put to the expense and inconvenience of a long trial.

The Supreme Court heard the case in August 2022 and released its unanimous decision yesterday. It reinstated Mr Smith’s claim. That claim will now proceed to trial in the High Court.

The focus of the Supreme Court’s decision was on Mr Smith’s vindication of public rights though the common law of public nuisance. The Supreme Court held that the “principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity”.

Te Kāhui Tika Tangata Human Rights Commission was one of several organisations granted leave to intervene. The Court said that it was assisted by the submissions of the interveners.

The Commission submitted that in deciding whether Mr Smith’s claim should be allowed to proceed to trial, the Supreme Court needed to be cognisant of the right not to be deprived of life in s 8 and the right of minorities to enjoy their culture in s 20 of the New Zealand Bill of Rights Act 1990.

The Commission also submitted that the principle that New Zealand's domestic law should be compatible with New Zealand's international obligations, including under both international human rights law and the international law of environmental protection.

The Supreme Court noted that whether the respondents’ actions amount to a substantial and unreasonable interference with public rights would turn on evidence at trial, as well as an analysis of policy factors and consideration of the human rights obligations raised by the Commission in its submissions, such as the International Covenant on Civil and Political Rights and the United Nations Declaration on the Rights of Indigenous Peoples.

The Court also noted that Mr Smith pleads that tikanga Māori should inform his case though he does not allege that the respondents directly owed, or violated, any obligations under tikanga Māori.

The Supreme Court said that "tikanga was the first law of New Zealand, and it will continue to influence New Zealand's distinctive common law" and concluded that "addressing and assessing matters of tikanga simply cannot be avoided”.

The Commission’s Tatau-Urutahi Tino Rangatiratanga Leader Julia Whaipooti says this is an excellent outcome for climate change action and upholding human rights, especially for communities who will be disproportionately burdened by the adverse effects of climate change.

“Allowing the claim to proceed to trial is an important way for human rights and Te Tiriti rights to be progressed through the courts,” Whaipooti says.

“Mr Smith’s case highlights Aotearoa’s obligation to respond to climate change as part of a universal effort to uphold human rights.”

Whaipooti says it is also significant that the Supreme Court’s stated that tikanga will need to be considered at a trial.

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