In Smith v Fonterra Co-operative Group Limited , the plaintiff, Mr. Smith, is an elder of two Maori tribes Ngāpuhi and Ngāti Kahu, and he is also the climate change spokesperson for the Iwi Chairs’ Forum. In summary, he claimed that seven large New Zealand companies were causing climate change by emitting greenhouse gases, and that they owed him a duty of care not to cause such damage.
The plaintiff issued proceedings in the High Court.
|The claim relied on three causes of action in tort: public nuisance, negligence, and a proposed new tort described as breach of duty.|
The plaintiff sought declarations and an injunction to stop the defendants from producing such greenhouse gases, effectively seeking zero emissions. The defendants applied to strike out the claim on the basis that it had no prospect of success. The Court of Appeal agreed.
The plaintiff, in support of asking the court to uphold the new tort to prevent climate change, urged the Court of Appeal to be bold, submitting that it was part of the tradition and strength of the common law that it was responsive to changing times.
The Court of Appeal held that to accede to such a request, “would in fact be contrary to the common law tradition which is one of incremental development and not one of radical change...”.
"The issue of climate change cannot be effectively addressed through tort law. Rather, this pressing issue calls for a sophisticated regulatory response at a national level, supported by international co-ordination." New Zealand Court of Appeal, 2021