The New Zealand Climate Change Tort Case - A Legal Opinion Sought Out By Arnis Luks

A recent climate change case from New Zealand raises important political and jurisprudential (legal) issues, that are relevant to not just New Zealand but other Western countries, especially Australia and the United States.

First, by way of general background, before going into details, the climate change case involves the applicant, Mike Smith, who is a Māori elder and climate change spokesperson for the Iwi Chairs Forum, which is a group of New Zealand tribal leaders, being granted the right to sue a large number of New Zealand corporations, who are alleged to be significant greenhouse gas emitters. The initial claim was made in the lower courts, which decided against the plaintiff and struck out the claim, but on appeal to the New Zealand Supreme Court, the lower court ruling was over-turned. This now enables the plaintiff to take the case to New Zealand's High court.

The Supreme Court case is:


As can be seen the applicant is litigating against some of New Zealand's biggest corporations which are:

  • "Fonterra—a dairy co-operative and one of the six largest dairy companies in the world, responsible for around 30 percent of the world's dairy exports. It burns over 520,000 tonnes of coal each year in its eight dairy factories to generate energy.
  • Genesis Energy—the largest electricity and natural gas retailer in New Zealand, which operates the Huntly Power Station, the largest thermal power station in New Zealand. It is fuelled by the combustion of coal and natural gases.
  • Dairy Holdings Limited—the largest milk supplier, and shareholder, of Fonterra, and owner of meat processor Silver Fern Farms. It runs around 50,000 milking cows that release methane. Nitrogen dioxide is also released from nitrogen-based fertiliser use on the farms.
  • New Zealand Steel—which operates a steel mill at Glenbrook, south of Auckland, which is primarily fuelled by the combustion of coal and has the capacity to burn 800,000 tonnes of coal per annum.
  • Z Energy—which comprises some of the former assets of Shell New Zealand and sells fuel under the Z and Caltex brands at almost 500 service stations.
  • Channel Infrastructure—an independent fuel infrastructure company that operates terminal and pipeline services. It imports and supplies the majority of petroleum-related fuel products consumed in New Zealand. Plus, the refining process at Marsden Point causes the release of greenhouse gases.
  • BT Mining—the largest coal mining company in New Zealand. It produces bituminous, coking, and thermal coal, the majority of which is exported, much of it to China, where it is primarily burned in the production of steel."

The applicant had mounted a case for tort liability against the respondent corporations, arguing that there had been a negative impact upon him, his family and tribe, which they caused. Three causes of action were raised in the lower court, of public nuisance (an interference with rights of the general public), negligence (failure to take proper care that a reasonable person would take), and a supposed duty to "make corporates responsible to the public for their emissions," a duty which the plaintiff hopes the courts will recognise and make as "new law," based as we will see upon Māori lore.

Damages are not being sought, only rulings related to the control of greenhouse gas emissions, with the respondents being allegedly responsible for around one-third of New Zealand's annual greenhouse gas emissions. A declaration is sought that that the corporations breached a duty of care owed to the applicant, causing a public nuisance leading to his loss. An injunction was also sought that the corporations commit to zero net emissions by 2050, or cease emitting greenhouse gases now, by presumably closing up their operations! New Zealand becomes de-industrialised!

The other important element to mention here, as noted above, is that the case has made use of Māori customary lore as one basis for the case. This was discussed by the Supreme Court and was accepted as open for argument, and the matter will be considered below. Before going into more details, the significance of the case was observed by a commentary in the Epoch "The case provides an avenue by which new types of climate change litigation could be brought. It is attracting international attention and, if successful, will almost certainly lead to similar cases being run in other countries." As we will see, the political flavour of the case will certainly lead to similar cases in Australia against all aspects of development, and the foundations of what remains of Australia's industry and agriculture, done by the radical Left.

The Law as it Stands

The New Zealand High Court has not yet considered this case, so all we have a present is the decision of the New Zealand Supreme Court. While the lower courts had rejected the applicant's arguments, the Supreme Court decided that the arguments had enough merit to be considered by the High Court. The Supreme Court held that where a claim for negligence or nuisance is novel, the courts should undertake a full evaluation of evidence and argument at trial. This is a radical departure from the usual conservativism, where courts were reluctant to revise established law unless necessary. "As [Mr. Smith] puts it, the respondents are wronging him, and he seeks the courts' aid to have them stop. No re-invention of tort law is required. The questions raised warrant a trial and determination upon evidence." The court concluded that "Mr. Smith now gets his day in court," saying that this outcome was "consistent with fully informed access to civil justice." Some would differ and see this as a creative application of the law to meet a political agenda associated with climate change.

Equally as alarming, the court did not object to the use made of Māori customary lore, tikanga Māori which supposedly has existed since the ancient past, and posits a universal obligation to care for nature. Breaches of this lore require compensation, and of course, that fits into the legal claim. Here is what the Supreme Court decided regarding customary law which has now crept into New Zealand law, and elsewhere:

"[187] In more recent times, the common law has re-engaged with tikanga. For example, in 2003, a five-judge bench in the Court of Appeal affirmed that Māori land rights (including in the foreshore and seabed) derived from tikanga were cognisable at common law.259 Citing extensive authority, the Court found that this had been the position since the common law's arrival in 1840. And in Takamore v Clarke, 260 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board261 and Ellis v R (Continuance) 262 this Court considered the relationship between tikanga and the common law as it operates outside the sphere of customary title. 263 To summarise the essential conclusions reached, tikanga was the first law of New Zealand, and it will continue to influence New Zealand's distinctive common law as appropriate according to the case and to the extent appropriate in the case.264 The respondents do not challenge these propositions. As noted, their argument is not with the relationship between tikanga and the common law, but with its practical utility in the circumstances of this case. [188] So, to return to the starting point, whatever the cause of action, the trial court will need to grapple with the fact that Mr Smith purports to bring proceedings not merely as an alleged proprietor who has suffered loss, but as a kaitiaki acting on behalf of the whenua, wai and moana—distinct entities in their own right.265 And it must consider some tikanga conceptions of loss that are neither physical nor economic. In other words, addressing and assessing matters of tikanga simply cannot be avoided. [189] The analytical methodology outlined in Ellis (Continuance) will assist the court in this respect,266 but more neither can nor need be said at this early stage since all we have are factual assertions that must be accepted for strike out purposes. Mr Smith's ultimate prospects at trial will depend, in part, on the quality of the evidence, including that in relation to tikanga."

So, rather than consider this was a conventional tort case, tikanga considerations will be made. The aim no doubt will be to produce a new judge-made tort, a duty to limit, or not even emit carbon dioxide, which will be a new climate change damage tort. The foundations of tikanga are already within New Zealand law, and as the quoted judgment indicates, there is not considered a radical change to extend existing concepts to meet the so-called climate change challenge. It will come down to a question of evidence.

It should be noted that the use of multicultural diversity in climate actions is not new. As detailed in an article extracted below, this has been seen in the United States where the Biden administration blocked seven oil and gas leases in Alaska in recognition of the Indigenous knowledge, whatever that means. The New Zealand case will take all of these measures to the next level.

So, is the case likely to succeed? The Supreme Court held that allowing a day in court does not mean that the applicant's case is accepted, which is trivially true. Even given the tikanga framework, there will still be the issue of showing causation, that the corporations did specific harm to the applicant, and this can be itemised. It will not do to simply argue that they are carbon emitters, carbon did some harm X, so therefore they are guilty, which is too general. And as well, the corporations are key manufacturers for New Zealand. It would be unquestionably the case that the applicant benefited from their products, and by using energy and resources, was a participant in whatever mischief he alleges, hence refuting the notion of victimhood. He was a joint carbon emitter.

We will be watching this case closely. It is likely now that similar cases will be launched in Australia using the indigenous line mixed with climate change alarmism, a dangerous brew. The Left leave no stone unturned.

"When the Biden administration stepped in last year to block seven oil and gas leases in Alaska, it said it was doing so in part to recognize the "Indigenous Knowledge" of the Native Americans who originally inhabited the land.

The move was indicative of the administration's embrace, in late 2022, of "Indigenous Knowledge"—that is, Native American folk wisdom—as part of their scientific assessments. so when Secretary of the Interior Deb Haaland announced on Sept. 6 2023, that the entire United States Arctic Ocean was off limits to new oil and gas leasing, and canceled seven oil and gas leases issued by former president Donald Trump after a review, she cited "the best available science" and said the decision was also a "recognition of the Indigenous Knowledge of the original stewards of this area."

That announcement has prompted a scientific integrity complaint by Protect the Public's Trust, a watchdog group. "Indigenous Knowledge," the complaint says, privileges "subjective beliefs over and above evidence derived from the application of the scientific method."

"The American public can rightly hold serious concerns that the Biden administration's decision making, through the use of Indigenous Knowledge, is susceptible to manipulation without even the pretense of adhering to scientific principles," Protect the Public's Trust director Michael Chamberlain wrote in the complaint.

Haaland's remarks are the latest example of how "Indigenous Knowledge," a pseudoscience which posits native people possess unique insights into the laws of the universe, has pervaded the federal government. A variety of federal agencies have hosted "Indigenous Knowledge" seminars. And Health and Human Services is poised to order all of its sub agencies, which include the Food and Drug Administration and the Center for Disease Control, to incorporate "Indigenous Knowledge" into its decision making at some point this year.

The Department of the Interior did not respond to a request for comment.

Biden administration officials, in memos and public records, conflate "Indigenous Knowledge" with the scientific method. Federal agencies, White House records state, are encouraged to consider the "spiritual wisdom" of native peoples when issuing new rules or regulations.

"The elevation of subjective beliefs over and above evidence derived via the scientific method flies in the face of the Biden administration's purported fealty to science," Chamberlain told the Washington Free Beacon.

Considering "Indigenous Knowledge" may also run afoul of federal law, Protect the Public's Trust notes in its complaint. The research released by federal agencies, including the Department of the Interior, is governed by a 2001 bill called the Information Quality Act.

The Information Quality Act dictates what kind of data sources the federal government may use when it issues new rules. "Indigenous Knowledge" is not mentioned anywhere in that law's text and the Department of the Interior's guidelines state that "information released by the Department will be developed only from reliable data sources based on accepted practices and policies."

Haaland promised, in an October 2021 interview with the Washington Post, that she "directed" the U.S. Geological Survey, which is under the umbrella of the Department of the Interior, to "unleash the science!"

"Scientists need to be able to have the freedom to do what they do best—research, compile data, share it with the world, and use that data to help all of us make the best decisions for our planet now and for the future," she said. "I have expressed over and over again my support for the scientists and for the work they do."

Last April, the U.S. Geological Survey hosted a webinar called "Incorporating Indigenous Knowledges into Federal Research and Management: What are Indigenous Knowledges?" There, an outside "Indigenous Knowledge" consultant warned against practices that could "disrespect the spirits."

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