On 7 February 2024, the Supreme Court issued its reserved decision in Smith v Fonterra¹, an appeal against the striking out of a claim in tort for alleged climate harm.

The appellant, Mr Smith had brought claims in public nuisance, negligence and a novel climate system damage tort. Two of the causes of action were struck out by Wylie J in the High Court,² but the third cause of action – the novel climate system damage duty – was permitted to proceed to hearing. Upon appeal, in late 2021, the Court of Appeal had struck out all three causes of action. Upon further appeal, the Supreme Court unanimously reversed the Court of Appeal’s decision, allowing the three pleaded causes of action to proceed to trial in one of the first private law climate change claims in the common law world.

In allowing the appeal, the Supreme Court held that the public nuisance claim was not bound to fail as the requirements of special damage and causation were sufficiently met (capable of argument) at the strike-out stage. As a result, the Court declined to strike out the negligence and novel tort causes of action on the basis that secondary causes of action should generally not be struck out if a primary cause of action survives.

The Court also observed that matters of tikanga Māori would need to be addressed at trial as the pleaded harm invoked tikanga-related interests. By way of brief background, tikanga is the first law of Aotearoa New Zealand.³ It is a body of Māori customs and practices, rooted in the system of custom brought to Aotearoa by Kupe.⁴  It is a values-based system that is internally coherent and flexible, and suited to small communities where making peace had primacy, alongside keeping to principle.⁵ This article focuses on the implications of the Court’s observations.

 

 

Background

 

Mr Smith is an elder of Ngāpuhi and Ngāti Kahu, and climate change spokesperson for the Iwi Chairs Forum. In August 2019, he filed a statement of claim in the High Court against seven defendants.⁶ Each is a New Zealand company involved in emission or supply of products which release greenhouse gases (GHGs). Mr Smith alleged that the defendants damaged, and will continue to damage, his whenua (land) and moana (ocean), including places of customary, cultural, historical, nutritional and spiritual significance to him and his whānau (family group).

The relief sought by Mr Smith, based on the three tortious causes of action pleaded included: a declaration that the defendants have (individually and/or collectively) unlawfully either breached a duty owed to him or caused or contributed to a public nuisance, and have caused (or will cause him) loss through their activities.  Injunctive relief is also sought which would require the defendants either to reduce their emissions by specified amounts over a defined period of time, or to cease emitting (or contributing to) net emissions immediately.

In the Court of Appeal, Mr Smith amended his claim to include a reference to tikanga Māori.  He relied on tikanga Māori principles to “inform the legal basis of the pleaded causes of action and the development of the common law of New Zealand”. His pleading was constructed as follows:⁷

[7] … The proposed new clause reads:

Kaitiakitanga as a principle of tikanga Māori incorporates concepts of guardianship, protection and stewardship of the natural environment including recognising that a right in a resource carries with it a reciprocal obligation to care for its physical and spiritual welfare as part of an ongoing relationship.

Mr Smith claimed that, under tikanga, environmental harm is an intrinsic form of harm which creates harm to those with environmental interests, such as kaitiaki (custodians) and mana whenua (indigenous rights holders) and that, from a tikanga perspective, a wrong (hara) in the form of environmental harm has a collective and individual dimension to those responsible for causing the harm and those that suffer the harm’s consequences.⁸

 

Approach taken to tikanga

 

The Court observed that tikanga was a fundamental element of the specific loss claimed by Mr Smith and that the trial court will be required to “engage” with tikanga.⁹  Aside from tikanga’s impact on the positioning of specific causes of action, it was noted that the trial court will have to consider tikanga’s potential effect on the special damage requirement in a public nuisance claim (if such a requirement is necessary).¹⁰  It was acknowledged that the trial court will need to engage with whether tikanga related harm is a “cognisable form of loss”.¹¹

The Court recognised that tikanga’s application to tortious causes of action is not a contemporary occurrence.¹² It recorded that tikanga had been applied by New Zealand courts since the common law was introduced.¹³ This acknowledgment was made by reference to two early High Court decisions.¹⁴ More contemporary (re)engagement with tikanga was noted,¹⁵ with reference made to Attorney-General v Ngati Apa,¹⁶ Takamore v Clarke,¹⁷ Trans-Tasman¹⁸ and Ellis (Continuance)¹⁹. In the latter cases, it noted that the court had considered tikanga’s relationship with the common law, as operating outside the legal regime of customary title.²⁰  In summary, the Court accepted that tikanga was New Zealand’s first law and that tikanga continues to affect New Zealand’s common law “as appropriate according to the case and to the extent appropriate in the case”.²¹

The decision in Smith underscored the importance of taking a case-by-case, context-specific approach to tikanga, as the Court had previously set out in the Ellis (continuance) decision.²²  The Court highlighted the fundamental importance of providing the court with the appropriate tikanga detail in relation to the case at hand, whether that is by way of submissions, an expert’s statement of tikanga, or for a court appointed pūkenga (expert).²³ In concluding its discussion of tikanga, the Court noted that the trial court will need to “grapple”²⁴ with the notion that, in addition to bringing a proceeding as an individual who has suffered loss, Mr Smith brought proceedings as kaitiaki acting on behalf of his whenua, wai and moana (land, river and ocean) — all of which, in their own right are distinct entities.

Beyond reference to its previously commended case and context-specific analytical approach, as detailed in Ellis (continuance)²⁵, the Supreme Court did not provide additional guidance to parties in proceedings where tikanga Māori may be relevant.

 

 

Conclusion

 

The Supreme Court’s decision continues to leave the question open as to the extent that the common law might be altered to account for tikanga, affirming at least that this area of law remains in a state of active consideration and development.

It can be hoped that, with the path cleared for Mr Smith’s claims to proceed to trial, judicial decisions at first instance and, in all likelihood, on appeal will bring further clarity to litigants engaged in this developing area of law.

 

Endnotes

 

¹ Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5.

² Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394.

³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] summarising the tikanga majority at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J. 

⁴ Dealt with in detail by the Waitangi Tribunal in Waitangi Tribunal Ko Aotearoa Tinei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011). For more detail, refer to Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" (2013) 21 Wai L Rev 1 at 2.

⁵  At 5.

⁶ Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, [2022] NZLR 284.

⁷ Smith v Fonterra, above n 3, at [7].

⁸ Smith v Fonterra, above n 1, at [61].

⁹ At [182].

¹⁰ At [182].

¹¹ As above.

¹² At [183].

¹³ Smith v Fonterra Co-operative Ltd [2024] NZSC 5 at [183].

¹⁴ “James Reynolds v Simon Tuangau” West Coast Times (New Zealand, 8 August 1866) at 2–3. It was common in the 19th century for newspapers to report court proceedings in detail. A summary of this case is provided in Reynold v Tuangau SC Wellington, 7 August 1866 available at www.wgtn.ac.nz/law/nzlostcases/; and Baldick v Jackson (1910) 30 NZLR 343 (SC).

¹⁵ Smith v Fonterra Co-operative Ltd, above n 10, at [183].

¹⁶ Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).

¹⁷ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 

¹⁸ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801

¹⁹ Ellis v R (Continuance), above n 4.

²⁰ Smith v Fonterra Co-Operative Ltd, above n 10, at [187].

²¹ Smith v Fonterra Co-Operative Ltd, above n 10, at [187], citing Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023).

²² At [189] citing, Ellis, above n 16, at [121]–[125] per Glazebrook J, [181] per Winkelmann CJ and [261]–[273] per Williams J.

²³ As above.

²⁴ At [188].

²⁵ Ellis, above n 16, at [121]–[125] per Glazebrook J, [181] per Winkelmann CJ and [261]–[273] per Williams J.