The world is watching for the outcome of a unique climate change case in front of our Supreme Court that will expose the actions - or lack of them - of our biggest polluters
Photo: 123rf
The bosses of several of our biggest polluting companies will soon be under the microscope when they take the stand in the High Court and reveal what they are doing about their carbon footprints.
"This is one of the most significant climate change cases that New Zealand has ever experienced," says Auckland University associate law professor Vernon Rive, an expert in climate change law. "We're all on the edge of our seat."
Seven companies - Fonterra, Z Energy, Genesis, Dairy Holdings, NZ Steel, Channel Infrastructure and BT Mining - are being taken to the High Court by Northland leader Mike Smith, of Ngāpuhi and Ngāti Kahu, over their greenhouse gas emissions.
It follows a landmark unanimous decision earlier this month by the Supreme Court that Smith had the right to sue the seven, going against previous decisions by the High Court and the Court of Appeal.
The decision surprised many in the sector.
"Until the Supreme Court's decision the general thinking was that you couldn't bring a court claim against another person for their greenhouse gas emissions," says Blair Keown, who is a partner at Bell Gully which is involved in the case. "If you did it would be struck out before going to trial."
Keown says the case is the first of its kind in the world and it is being closely watched here and overseas.
"The Supreme Court has opened a door that was pretty firmly closed and some may see opportunities arising out of that. That could involve the bringing of similar claims, it could involve testing the boundaries of other legal principles.
"But against that some could wait to see how the Smith case develops before deciding whether to bring a claim of their own because climate change-related cases are complex, they're challenging, they're potentially time consuming and so there's arguably a case for waiting to see how that develops before deciding whether or not to bring an action of one's own."
Mike Smith Photo: Johnny Blades / VNP
Many of the country's largest law firms are representing the seven corporates at the High Court trial, which Smith hopes will start this year, given what he sees as the urgency of the matter.
"It's not just the seven named defendants," says Rive. "But it's all of the other large emitters who might be impacted by what I call the snowball effect if Mr Smith was successful, so there will be a lot of boards and directors looking carefully and talking to their lawyers a little nervously to say where is all this heading, what might be the result and what should we be doing."
Rive explains to The Detail the significance of the unanimous decision by the Supreme Court's five judges and their report, co-written by Justice Joseph Williams and Justice Stephen Kós.
It "sends a message that the court is united in its view that not only is climate change a real issue that needs to be carefully examined by the courts, but also that tikanga is an important issue and that needs to be considered carefully about what its implications might be for tort law".
He describes what it means for Smith to seek to establish civil - or tort - liability for those emitters' contributions to climate change. As part of his claim Smith says these contributions had a "negative impact on his family's and tribe's land, water and cultural values".
The case has also sparked debate over whether the courts are the place to make decisions on carbon footprints that could have a huge impact on the individual companies and wider economies, or whether it should be left to parliament.
"There is a question as to what the right institution is to engage in some of the tricky questions thrown up," says Keown. "There are a number of tricky issues to deal with because at its core what these sorts of claims involve is an issue where everyone emits, equally everyone suffers or feels the effects of climate change, so does that mean that everyone can bring a claim, does it mean that everyone can have a claim brought against them, where do you draw the line between who's in and who's out?"
Even if Smith doesn't succeed, says Rive, he will have "put these corporates to the test, put them under the microscope, for them to have to stand in front of a court under oath and tell judges what they're doing, what they're not doing. And that will be massive."
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