Supreme Court releases landmark judgment on impacts on climate change...

The Supreme Court has recently released a landmark decision allowing for claims against corporate and private parties to proceed to trial. The judgment sets a major new standard where it allows a pathway for Court action against the greenhouse gases emitted by corporations and businesses.

Procedural History

The plaintiff originally filed proceedings in the High Court against seven corporate parties, which he said were involved in industries which either emit greenhouse gases, or supply products which release greenhouse gases when burned.

The plaintiff alleged that the seven corporate parties had damaged, and would continue to damage, his whenua and moana, including places of customary, cultural, historical, food gathering, and spiritual significance to him and his whānau.

The plaintiff raised three causes of action in tort, namely: public nuisance; negligence; and a proposed climate system damage tort. A tort is a civil wrongful act which injures or causes harm to another.

The plaintiff sought a declaration from the Court that the corporates had unlawfully either breached a duty owed to him, or caused or contributed to a public nuisance, and have or would cause him to suffer loss through their operations and activities.

The corporates had initially sought to remove the proceedings, indicating that the claims were unreasonable. The High Court struck out the claims of public nuisance and negligence but allowed for the proposed climate system damage tort to proceed.

In the Court of Appeal, the Court struck out all three causes of action. The Plaintiff then filed an appeal of the Court of Appeal’s decision to the Supreme Court, and this was granted.

The Supreme Court Decision

The Supreme Court unanimously allowed the plaintiff’s appeal and reinstated his claim on the basis that it be allowed to proceed to be heard by the Court at a trial.

The Court preferred a measured approach to strike out applications, especially in situations where a claim is founded on arguable harm.

It further rejected the argument that climate change related claims in tort are excluded by the law, indicating that laws such as the Climate Change Response Act 2002 and the Resource Management Act 1991 enabled Court written law to operate alongside it.

In discussing the public nuisance claim, the Court found that the claims of interference with public rights were able to be upheld, particularly with reference to the damage to coastal land in which the plaintiff claimed legal and tikanga-based interests.

The Supreme Court agreed with the Court of Appeal that the plaintiff was not required to show that the actions of the corporations in question were independently unlawful.

The Court decided that on a strike out application it must assume that the consequences of those emissions attributable to the corporates’ activities was harm to the land. The Plaintiff will have the difficult task at the full hearing to prove the impact of the emissions.

The Court acknowledged the part which tikanga played in the statement of claim, noting that earlier Courts had found it challenging to understand the plaintiff’s position as a kaitiaki (guardian), acting on behalf of the whenua, wai and moana (land, water, and sea) in question.

This judgment establishes a first precedent of a Court in New Zealand recognising the possibility of tort law’s application in challenging greenhouse gas emissions of a private company or corporation. It remains to be seen what the outcome of the case will be when the present case returns to the High Court for the full hearing. No doubt further appeals will also follow.

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Shaun Cousins and Raiyan Azmi