This case centres on an appeal by Michael John Smith (“Smith”), a prominent climate change advocate and elder of Ngāpuhi and Ngāti Kahu tribe, against several major New Zealand corporations. These corporations are involved in industries contributing significantly to greenhouse gas (GHG) emissions. The issue at hand is whether Smith’s claim, seeking injunctions to limit emissions and establish accountability for climate change damage, should proceed to trial or be struck out.
Background
Smith filed a claim in 2019 against seven respondents, including Fonterra Cooperative Group, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy, Channel Infrastructure, and BT Mining. Smith argued that these companies, through their activities, contributed materially to climate change, causing significant harm to his land, culture, and well-being.
Smith’s legal action is based on three causes of action:
- Public Nuisance: Smith claims that the respondents’ emissions constitute a substantial and unreasonable interference with public rights, including the right to a safe climate.
- Negligence: He argues that the respondents have a duty of care to avoid causing foreseeable harm through their emissions.
- Proposed Climate System Damage Tort: Smith advocates for the recognition of a new tort requiring entities to cease materially contributing to climate system damage.
Court Proceedings and Decisions.
In the High Court, Wylie J struck out Smith’s claims, finding them untenable under existing legal frameworks. The Court of Appeal upheld this decision, emphasising that climate change is a global issue requiring legislative solutions, not judicial intervention.
Smith appealed to the Supreme Court, contending that his claims fit within traditional common law principles and that courts have a role in addressing significant social issues like climate change. He argued that dismissing the case without trial denies him the opportunity to prove the harm caused by the respondents.
The respondents, on the other hand, argued that the claims lacked a solid legal basis. They maintained that climate change is a complex policy matter best addressed by Parliament and international cooperation. They also raised concerns about standing, causation, and the potential for open-ended liability.
Supreme Court’s Analysis
The Supreme Court framed its analysis around two primary questions:
- Are common law actions on GHG emissions excluded by statute? The respondents contended that the Climate Change Response Act (CCRA) and related legislative frameworks comprehensively regulate emissions, effectively displacing any common law claims. However, the Court noted that while the CCRA establishes emissions targets and policies, it does not explicitly preclude common law actions. Parliament’s regulatory role does not immunise emitters from potential liability.
- Can the causes of action proceed to trial? The Court underscored the principle that novel legal claims should not be dismissed prematurely if they raise arguable issues. While acknowledging the complexity of climate change litigation, the Court determined that Smith’s claims warrant a trial to assess evidence and legal arguments thoroughly. The Court emphasized that allowing the case to proceed is not a commentary on its eventual success but a recognition of the importance of judicial access.
The Supreme Court allowed the appeal, reinstating Smith’s claim and permitting it to proceed to trial. This landmark decision highlights the potential for courts to play a role in climate change mitigation by holding major emitters accountable. By refusing to strike out the claim at this early stage, the Court signalled that novel and complex legal issues deserve careful consideration, especially when they involve significant societal concerns like climate change.
Relating to Malaysia: Legal Perspective
In Malaysia, the legal landscape concerning climate change is still evolving. While Malaysia has ratified international treaties such as the Paris Agreement and has enacted domestic legislation like the Environmental Quality Act 1974 and the Energy Commission Act 2001, there is no specific climate change law akin to New Zealand’s Climate Change Response Act. It is understood that Malaysia is developing a Climate Change Act to regulate and enforce actions to reduce greenhouse gas emissions and transition to a low-carbon economy under the Ministry of Natural Resources and Environmental Sustainability (NRES). Malaysia needs to meet its commitments under the Paris Agreement, enhance climate change governance, and achieve net-zero greenhouse gas emissions by 2050.
The recognition of public nuisance and negligence as potential avenues for climate litigation could inspire similar legal actions in Malaysia. Under Malaysian law, public nuisance is recognised under the common law and codified in the Penal Code under section 268. However, applying it to climate change would be novel and could push the boundaries of current legal doctrines. Similarly, negligence claims require proving duty of care, breach, causation, and damage. Malaysian courts may need to consider whether major emitters owe a duty of care to the public concerning climate-related harms.
The proposed climate system damage tort advocated by Smith, though novel, highlights the potential for the judiciary to develop new legal principles to address emerging societal challenges. While Malaysian courts traditionally follow precedents from common law jurisdictions, they may draw lessons from the New Zealand Supreme Court’s approach in allowing complex and novel claims to proceed to trial, especially where fundamental rights and environmental protection are at stake.
For Malaysia, this case underscores the need for a robust legal framework addressing climate change and opens the door for judicial innovation in environmental law. The outcome of the trial could have far-reaching implications for climate litigation not only in New Zealand but also in Malaysia and other jurisdictions grappling with similar environmental challenges. We look forward to Malaysia’s Climate Change Act.
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