Mike Smith says this decision means he has "cleared another hurdle" in having his case heard. Photo: Johnny Blades / VNP
Iwi leader Mike Smith is hailing the High Court's refusal to expand his "internationally significant" case against big New Zealand polluters to thousands of other companies as a victory.
The ruling - which backs the Supreme Court's approach - paves the way for his case against a number of fossil fuel and dairy companies, with the hope of setting a precedent that big emitters could be held liable for contributing to climate change.
Smith says he can "finally look forward" to his case starting in April 2027 after the court rejected the defendants' application, which he says was an attempt to "delay the case even further".
Fonterra and Z Energy - two of the companies being sued - say it is for Parliament to respond to climate change, not the courts.
Smith won the right in the Supreme Court early last year to sue seven companies - Z Energy, Channel Infrastructure, Genesis Energy, NZ Steel, BT Mining, Dairy Holdings, Fonterra - for their role in causing climate change.
Six of those companies had since taken an application to the High Court, making a case to "join third parties", meaning more companies would be included in the case given the seven companies aren't solely responsible for contributing to greenhouse gas emissions.
It could have extended to other companies in New Zealand as well as global polluters.
But the judge in the case - Justice Andrew - declined the application saying "the applicants say it is in substance a claim against the whole world" and allowing it to proceed would add "further delay and complexity" and have a significant impact on Smith's "right of access to justice".
It was uncertain as to which particular "third parties" might be joined, and the scope for "multiple and endless joinder/ additional party applications" would be "great", said the judge.
"The defendants cannot, by a representative order, force Mr Smith to sue people he does not sue or wish to sue."
'Clearing another hurdle'
Smith said this decision meant he had "cleared another hurdle" in having his case heard.
He believed the defendants' intervention "sought to bring other emitters from around the country and the world into the proceeding, arguing that if they are to face scrutiny, then so should all polluters".
That could have amounted to "thousands of companies", he said.
"They wanted to increase complexity, delay the case even further, and raise legal costs in the hope of weakening my position."
Smith said the defendants have consistently claimed the case is "too big for tort law" and tried to strike out the case on the basis he had "not sued every contributor to climate change".
But he said he was focused on these defendants "deliberately", because 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."
Justice Andrew's judgement outlined the companies' position that a "narrow focus, isolated to specific defendants" might suit Smith tactically, but was not an appropriate lens for "litigation of a global phenomenon".
The defendants say they have "only an infinitesimal impact" on that global phenomenon.
Justice Andrew said they posed the question "why, in this kind of case only, must the applicants stand alone to be held solely responsible for alleged damage to which their own contributions are infinitesimal".
But Smith said he was not "suing for an indivisible loss caused by many other emitters in New Zealand and abroad".
Justice Andrew said Smith's case focused on the "specific context" in which the defendants operate, and their particular business models.
He also noted that it was now nearly six years since the proceedings started, and the trial was only two years away.
"The present application could have been brought at any point before now."
His ruling reiterated the Supreme Court finding the proceedings are to continue, and there is "real force in Mr Smith's submission that the complexity and uncertainty that my granting the application would likely give rise to would simply overwhelm him and effectively mean that there would never be a trial".
Smith wants to "hold the defendants to account for their emissions before it is too late and irreparable damage ensues".
'NZ's entire productive economy may be directly affected'
Fonterra said in a response it acknowledged the applications were declined, but 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."
Fonterra said Parliament - not the courts - was the "appropriate place to determine public and economic policy on matters of significant public interest such as climate change," which would be a "key issue" when the case goes to trial.
Z Energy general manager corporate affairs Hayley Mortimer said she was reviewing the judgement, but the company's overall position in relation to the case "remains unchanged".
"Z believes it is the role of the government, not the courts, to develop policy and legislation needed to transition Aotearoa New Zealand to a low carbon economy."
The case will now go ahead, Smith said, with a "clear scope" allowing the court to focus on whether the "named defendants can be held liable in tort for their contributions to climate harm."
A tort in New Zealand law is a civil wrong, such as negligence or public nuisance.
Smith believed if the case was successful it could lead to the development of a new tort, establishing a duty on entities to "cease materially contributing to damage to the climate system".
"Such a development would be internationally significant."
The hearing is scheduled for April 2027.
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