NZ environmental lawsuit could break new ground

New Zealand’s Supreme Court has unanimously given the go-ahead to a case brought by Iwi leader Michael Smith against seven of the country’s biggest polluters. The companies, which include Fonterra, Genesis Energy and Z Energy, had applied to strike out the proceeding.

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 whanau (extended family grouping). Mana whenua and mana moana are concepts intrinsically linked to Māori cultural and environmental landscapes and identity.

The Supreme Court decision on 7 February, to allow 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, said 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 [Māori customs and values] is an important element in this case — it may inform the evolution of tort law, and that’s breaking new ground,” Rive said.

The Director of the New Zealand Centre for Environmental Law, Professor Caroline Foster, said that 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.

“Courts worldwide are currently dealing with similar issues; however, New Zealand law is arguably especially well equipped to do so,” Foster said.

“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.

“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.”

Foster added that forward-looking and constructively crafted remedies are more important than the more backward-looking apportionment of liability.

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