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The impact of Mike Smith’s legal case against Fonterra

27 February, 2024

Interview by Olivia Bing, adapted by Kate Walker

Associate Professor at the University of Auckland School of Law, Vernon Rive, says Mike Smith’s legal case against Fonterra and several other New Zealand corporations could pressure companies — domestically and internationally, to address their impact on the climate crisis. Image: Wikimedia Commons

On 7 February, the Supreme Court ruled that Far North iwi leader Mike Smith (Ngāpuhi, Ngāti Kahu) can take some of our largest climate polluters to court.

Smith has argued that Fonterra and six other companies including Genesis Energy, New Zealand Steel, and Z Energy have caused harm to his whenua and moana.

Associate Professor at the University of Auckland School of Law, Vernon Rive, told 95bFM’s The Wire that climate change cases are becoming more common around the world.

“Climate litigation is growing in significance. It’s a significant part of climate action.”

Rive says Smith’s case is different due to its consideration of Tikanga Māori and Smith's relationship to coastal land and waters which are being flooded and damaged, and because it is using tort (private) law.

“Smith will argue that the kind of damage to his land and resources has dimensions to it, which are different to conventional Western understandings of damage.”

Rive believes it will be tough for Smith to prove that high-emitting companies' emissions have caused detectable harm to his interests.

“Smith, lawyers, and experts have to convince the court that the companies’ share of about 0.06% or 1% of global emissions is enough for tort liability to kick in.”

However, as the corporations will be required to provide details on what they are doing to address the climate crisis to the court, Rive says this may put pressure on them and their policies regardless of the trial's outcome.

“The pressure being put on these corporations will itself be quite significant and that will potentially have an influence on their reputations and activities, even if Smith doesn't win his case.”

Rive says the case will also demonstrate how tort law can be applied to the climate crisis.

“Parliament has not legislated away tort liability in relation to climate change.”

“The Supreme Court says, ‘well, maybe the courts can offer remedies which can support, rather than undermine, the responses that Parliament has put in place’, and I think that position has some real force to it.”

Rive says that Smith’s case, and its outcome, may also impact legal decisions overseas due to international interest in the case.

“New Zealand court decisions are well respected… so what happens in New Zealand might be picked up overseas.”

“Perhaps New Zealand courts will develop some innovations which will then be translated elsewhere.”

Listen to the full interview

Public Interest Journalism funded through NZ On Air