ESG Enforcement Tracker

Key facts:

The Supreme Court of New Zealand has handed down judgment in a case brought against seven of New Zealand’s largest corporate greenhouse gas (GHG) emitters.

The claimant, Mr Smith, is a Māori elder and a climate change spokesman for a national forum of tribal leaders. He brought a claim against the seven GHG emitters seeking to establish civil liability for their contributions to climate change. He alleged that their actions amounted to public nuisance, negligence and a new cause of action described as a “potential climate system damage tort”.

Mr Smith also argued that the emissions affected him personally as a Māori elder acting on behalf of the whenau (land), wai (freshwater) and moana (sea). Some of his arguments therefore relied on a body of indigenous custom, law and practice known as “tikanga Māori”. The companies applied to strike out the proceedings.

The High Court struck out the claim, and the Court of Appeal upheld this decision. However, the Supreme Court disagreed. Under New Zealand law, claims may be struck out if they “disclose no reasonably arguable cause of action”, which is a high threshold.

The Supreme Court held that applying orthodox, long-settled legal principles, the claim could not be said to be bound to fail and should not have been struck out. It therefore reinstated Mr Smith’s statement of claim. Mr Smith’s causes of action, including the novel tort, will now proceed to trial.