Now is the time to think “slow and hard” about climate change and tort law, the supreme court was told this morning.
This nation's top court is holding a rare sitting in Auckland to hear climate change activist Mike Smith's case against major corporates, including Fonterra and Genesis.
More than 30 lawyers sat elbow to elbow packing a room at the environment court for the hearing.
“We can’t expect politicians to do it, the one place where [climate change] can be addressed is here. Courts can understand scientists and time and damage,” Smith’s lawyer, Davey Salmon QC, told the court.
“A knee-jerk reaction would be to say this problem is too big and is already being dealt with by government,” he added.
Smith’s claim, based in the judge-made realm of tort law, seeks remedy for public nuisance, negligence and a novel climate change tort.
The court of appeal rejected his claim after the high court partially allowed it.
Salmon said this morning the panel of judges should “be thinking slow and carefully about tort law, and a trial will help us and see what is appropriate”.
“This is the most acute opportunity to ask and answer whether the law responds to fundamental rights, property rights and human rights, rights that are conventionally and consistently protected by the law of torts,” he added.
The defendants
But Salmon faced careful questioning from the bench over who should be held responsible. Justice Joe Williams queried “where’s the line?” to decide who should be defendants.
“You are asking the court to define by reference to numbers, that have some reference to actuality but otherwise they are numbers on a whiteboard, they mean nothing,” Justice Williams said.
Justice Stephen Kos asked why he was not a defendant, given that he owns a Land Rover (and also an electric car, he pointed out).
“You are attacking these [corporate] defendants, but in a way, they are a proxy for us. Your attacks are on a failure to act politically, but in a sense, it is an attack on the consumer who puts gas in their tank or uses it to keep their houses warm.”
Salmon explained the defendants chosen were those who had caused bottlenecks of emissions.
Tort law and tikanga
Smith’s submissions say that tort law must be developed in Aotearoa in accordance with tikanga Māori, and that makes the environment different from other international cases.
“The essence of Mr Smith’s submission on tikanga is not that tikanga Māori creates direct obligations on the parties to this case, rather that its principles must inform how tort law develops in Aotearoa in relation to climate change.
“There are aspects of tikanga that speak to the existing torts of public nuisance and negligence but, in particular, tikanga principles would assist in the framing of the alternative novel tort.”
Smith’s legal team will give submissions up until tomorrow
What the corporates say
According to the submissions of the corporates which include Fonterra, Genesis, NZ Steel and Z Energy, the claim goes too far.
“Mr Smith’s claim is a call to arms, inviting this court to stretch, bend and invent tort law to injunct sectors of the New Zealand economy because the courts, “free from the myopic electoral focus of politicians”, must act now to mitigate impacts of climate change on vulnerable communities.
“But this private law claim is a policy position overlaid by the language of legal rights and duties, and cannot be the vehicle for that response. Allowing it to proceed would not prevent the pleaded harm to Mr Smith.”
Some of the corporates have made separate submissions including the NZ subsidiary of Bathurst Resources which claims not all of the companies are “one homogenous group of greenhouse gas emitters”.
“Amongst the respondents, BT Mining is in a very different – and the furthest removed – position.”
The interveners
Other interested groups have filed submissions with the supreme court. Legal lobby group Lawyers for Climate Change Action NZ is one of those in support of Smith’s appeal.
“To follow the court of appeal’s approach, in which there is no role for tort law, no matter how bad climate change gets and no matter how inadequate the statutory response, would be an abdication of the role and responsibility of the courts,” the submissions said.
The legal group’s submissions said that even if the courts do not allow this particular claim to go through, the top court should leave open the ability for tort law to address climate change in the future.
Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, has also argued that tikanga must be considered when developing a new tort law. However, its submissions don’t provide evidence on how that might work.
“Actions that jeopardise the ability for future generations to enjoy the use of the land and resources are contrary to this core belief and therefore to tikanga,” it said.
The Humans Rights Commission is also an intervener, but its submissions are informative as to how tort law operates within the Bill of Rights, rather than taking a position.
The hearing is scheduled to run until the end of Wednesday.
Smith also ran a parallel case making similar claims against the government, but this was struck out at the high court level by Justice Christine Grice.
It is the first time the supreme court has sat in Auckland with Justice Susan Glazebrook and Ellen France, Justice Helen Winkelmann, sitting alongside Justices Williams and Kos.