A climate change court challenge against some of Aotearoa’s largest corporates will go ahead after the High Court on Friday refused to strike it out, reports Cat McLennan.

Over the past few years, court proceedings have been mounted in a number of countries to challenge lack of action on climate change by both government and corporates. Now New Zealand has a new case of its own.

Overseas, such legal challenges have gone both ways. In January, an appeals court threw out a landmark climate change lawsuit brought on behalf of young people against the US federal government. However, one month later, the UK Court of Appeal ruled that plans for a third runway at Heathrow Airport were illegal, as ministers had failed adequately to take into account the government’s climate change commitments.

Although most of the climate change court challenges to date have been unsuccessful, they have the potential to bring about large-scale change if – or when – courts decide that the time is ripe for creating new principles and duties relating to the environment.

The New Zealand case involves court proceedings filed last year by Iwi Chairs’ Forum climate change spokesperson Mike Smith, of Ngāpuhi and Ngāti Kahu, against Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy, the New Zealand Refining Company and BT Mining Ltd.

Each of the companies is either involved in an industry which releases greenhouse gases, or supplies products which discharge greenhouse gases.

Smith’s court action was based on three claims alleging that he would suffer harm from the effects of dangerous anthropogenic interference with the climate system. In particular, he said that climate change would increase sea levels, irrevocably damaging his family’s land in Northland and resulting in the loss of customary fisheries and landing sites as well as burial caves and cemeteries.

Smith said that the companies owed him a duty to take reasonable care not to operate their businesses in a way that caused him loss by contributing to anthropogenic interference in the climate system. He said that the corporates had known – or should have known – since 2007 that they needed to immediately and significantly reduce their greenhouse gas emissions, but they had continued to emit.

The claim seeks declarations that the corporates have unlawfully contributed to climate change impacts, and injunctions requiring each company to reach zero net emissions by 2030.

The defendants responded by asking the High Court to strike out Smith’s claims on the grounds that they raised issues which could not be resolved through the courts, and disclosed no reasonably arguable cause of action, a legal term for the factual basis that enables a court case to be brought. The companies said that the case involved complex policy matters that had already been dealt with by parliament, or which were currently before parliament.

The decision

On Friday, Justice Ed Wylie agreed to scupper two of the causes of action, but said that the third one could proceed. He noted that Smith’s claim raised novel issues that had not previously been dealt with by the New Zealand courts.

Wylie said that New Zealand’s overarching climate change law was the Climate Change Response Act 2002, which provided the framework for this country to develop and implement its climate change policies. Relevantly, given Smith’s claim, the act recognised the Crown’s responsibilities under the Treaty of Waitangi and required the minister to include in emission reduction plans a strategy to recognise and mitigate the impacts on iwi and Māori.

However, in relation to the first claim of public nuisance, the court held that the damage alleged by Smith was no more severe than that suffered by the public generally and was not the direct result of the corporates’ actions. It accordingly could not succeed and would be struck out.

Wylie noted that the Attorney-General had the power to sue for an injunction to stop public nuisances, and said that Smith could prepare fresh proceedings in the Attorney-General’s name and submit them to him for consideration.

Secondly, the court said that the parties agreed that Smith’s negligence claim was novel, as it asserted there was a duty on each defendant to take reasonable care not to operate its business in a way that would cause Smith loss by contributing to dangerous anthropogenic interference.

However, Wylie concluded that the damage claimed by Smith was not a reasonably foreseeable consequence of the companies’ acts or omissions. Further, the most appropriate entity in the country to address climate change was not the defendants, but the government. This cause of action would therefore also be struck out.

In relation to Smith’s third claim, Wylie said he was reluctant to conclude that recognition of a new duty making corporates responsible to the public for their emissions was untenable. The law was capable of creating new principles and causes of action. Smith had made no attempt to refer to recognised legal obligations or incrementally identify a new obligation, and it would accordingly be a significant step for the court to decide that a new legal duty should be recognised.

However, it might be that a novel claim such as that filed by Smith could result in further evolution of the law. That could only be explored properly at trial and, for that reason, the third cause of action would not be struck out. This means that the case will proceed to trial.

Wylie nevertheless cautioned that, if Smith succeeded in his claim, it would be possible for the declarations he sought to be made, but it would be virtually impossible for him to win injunctions halting the defendants’ activities.

One of Smith’s lawyers, Davey Salmon, acted in law student Sarah Thomson’s 2017 judicial review case challenging the previous government’s climate change policy. Although the proceedings were unsuccessful, such legal challenges can be expected to continue in New Zealand and overseas as climate activists seek to force governments to act on climate change.

Smith has a more than uphill battle to achieve that with his claim, but both the case and the precedent it sets will be significant if he succeeds.