One of NZ’s most contentious climate cases is moving forward. And the world is watching
The Supreme Court overturned lower court rulings which had struck out Smith’s ambitious claim seeking to establish civil (tort) liability for those emitters’ contributions to climate change.
- The Supreme Court overturned lower court rulings which had struck out Smith’s ambitious claim seeking to establish civil (tort) liability for those emitters’ contributions to climate change.
- With the Supreme Court decision, Smith has won the right to present his full case before the High Court.
The case against the corporate emitters
- Smith argued the activities and effects of the corporate defendants amount to three forms of “tort” or civil wrong: public nuisance, negligence, and a new form of civil wrong described as a “proposed climate system damage tort”.
- Read more:
Children's climate change case at the European Court of Human Rights: what's at stake? - The first two causes of action – public nuisance and negligence – have long lineages in the common law.
- A key plank of the corporate emitters’ argument was that the courts “are ill-suited to deal with a systemic problem of this nature with all the complexity entailed”.
The challenges of establishing causation
- Questions of causation and proximity have been stumbling blocks for litigants overseas attempting to bring similar tort claims to Smith’s.
- In this case, the seven corporate emitters are associated with around 30% of total New Zealand emissions.
- The court suggested that there may be scope for adjusting the causation rules to better reflect the nature of modern environmental issues like climate change.
What role for tikanga and where now?
- Recent Supreme Court decisions have accepted and applied tikanga as the “first law of New Zealand” including in relation to environmental protection.
- The Court followed that approach in this case, accepting that crucial aspects of Smith’s case rely on tikanga principles.
- The court pronounced that “addressing and assessing matters of tikanga simply cannot be avoided”.
Vernon Rive has previously received funding from the New Zealand Law Foundation.