Court throws out ‘attempt to delay’ climate case

Wednesday, 23 April 2025

Climate activist Mike Smith has cleared another hurdle in his landmark legal battle against six industrial polluters.

Last year, the Supreme Court ruled the Northland iwi leader has the right to sue dairy exporter Fonterra, fuel company Z Energy, power generator Genesis Energy, NZ Steel, BT Mining and Dairy Holdings, claiming they contributed to climate change.

Five of the defendants then sought permission from the High Court to bring overseas greenhouse gas emitters or all significant domestic polluters into the proceedings. That would have added thousands of companies to the case.

But the court has rejected the application, noting that joining third parties would lead to complexity, expense, and delay.

Justice Peter Andrew also noted the Supreme Court's previous judgment anticipated the proceedings continuing against the named defendants only.

He found granting the application would be inconsistent with High Court rules for the “just, speedy and inexpensive determination of any proceeding” and may prejudice Smith's access to justice by adding to the cost and potentially pushing the trial beyond its scheduled April 2027 date.

“The defendants cannot, by a representative order, force Mr Smith to sue people he does not sue or wish to sue,” Justice Andrew wrote.

Smith, a Ngāpuhi and Ngāti Kahu elder, said on Tuesday: “This was yet another attempt by the corporations to escape responsibility for their emissions.

“Now that this has been cast aside, I can finally look forward to the case being heard in court.”

Smith said the companies wanted to further complicate and delay the case, raising legal costs “in the hope of weakening my position”.

He added: “I brought this case against these defendants deliberately — they are some of the largest polluters in Aotearoa and reflect a cross section of the economy. And despite years of knowing about their contribution to the climate crisis, they are not curtailing their emissions.”

For half a decade, Smith has argued that by contributing planet-heating gases, the six companies with the country’s largest carbon footprints are in breach of well-established common law principles.

He wants the court to order the companies to reduce their polluting activities.

The firms argued the case is too big for tort law — where individuals can seek compensation for harm caused by the wrongful actions of others — and tried to strike out the case on the basis that Smith was not suing every contributor to climate change.

Fonterra, Genesis, and Dairy Holdings wanted to bring global polluters to the proceedings, arguing their own contribution was infinitesimal.

Those three companies, and NZ Steel and Z Energy also sought a representative order that they be sued on behalf of all New Zealand enterprises that produce greenhouse gases significantly greater than an ordinary citizen.

Justice Andrew said the defendants were free to argue at trial that Smith’s claims raised policy and economic considerations that the court was not capable of determining.

“Equally, they will be able to continue to maintain the position that, in circumstances where their contribution to the global phenomenon of climate change is ‘infinitesimal’ and ‘de minimus’, the element of unreasonableness simply cannot be met,“ he wrote.

In a statement, a spokesperson for Fonterra said, “the decision recognises the wide reaching ramifications of the claim, and that New Zealand’s entire productive economy may be directly affected by this case.

“The decision also recognises that there is merit in the position that, if the defendants are liable, any other corporate emitter in New Zealand will be liable, as well as that overseas parties are within scope.

“We continue to believe Parliament, not the Courts, is the appropriate place to determine public and economic policy on matters of significant public interest such as climate change, and this decision confirms that this will be a key issue when the case goes to trial.”