Smith v Fonterra Co-Operative Group Limited - [2021] NZCA 552

Date of Judgment

21 October 2021


Smith v Fonterra Co-Operative Group Limited (PDF 355 KB)


The appellant, Mr Smith, an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for the Iwi Chairs’ Forum contends that too little is being done in the political sphere on the issue of climate change and calls for a bold response from the common law.  He issued proceedings in the High Court against seven New Zealand companies, the respondents, who are all involved to some lesser or greater extent in industries that either emit greenhouse gases or produce/supply products which release greenhouse gases when they are burned. 

These activities, Mr Smith says, contribute to dangerous anthropogenic interference with the climate system and lead to adverse climate events.  He alleges that poor and minority communities will be disproportionately burdened by these adverse effects.  Mr Smith seeks redress against the defendants under three tortious causes of action — public nuisance, negligence and a proposed new tort “breach of duty”.  As to remedy, Mr Smith seeks declarations that each respondent has unlawfully caused or contributed to the negative effects of climate change or breached duties owed to him.  He also seeks injunctions requiring each respondent to produce zero net emissions by 2030. 

The Court of Appeal considered to recognise such a duty would be a radical response contrary to the common law tradition which is one of incremental development.  This is especially true in this case which would require fundamental principles to be departed from.  No other tort claim recognised by the courts involves a scenario where every person in New Zealand and the world (to varying degrees) is both responsible for causing the relevant harm and is also the victim of that harm.

Mr Smith sought to identify a small group of those responsible, but he was unable to identify any principled basis for singling them out.  It was accepted that none of the defendants standing alone materially contributed to climate change.  If their contribution to climate change is an actionable wrong, the logic underpinning that finding would apply to every individual and every business that has not achieved net zero emissions.   

It would be a surprising result if every person and business in New Zealand could be brought before the courts for contributing to climate change and therefore restrained from doing so — such a situation would have tremendous social and economic consequences.  Additionally, such restraint would have to be enforced and monitored by the courts which would require some sort of emissions offset and trading regime parallel to the statutory regime.  Actions would have to be brought on an ad hoc basis which would be inherently inefficient and unjust.  For these reasons, and others, the Court of Appeal explains the issue of climate change cannot be effectively addressed through tort law.  Climate change is a pressing issue which involves competing social and economic considerations which are more appropriately addressed by the legislature.