Smith v. Fonterra Co-Operative Group Limited

The plaintiff, Michael John Smith (Ngāpuhi, Ngāti Kahu), is the climate change spokesperson for the Iwi Chairs Forum and claims a customary interest in lands and resources in Northland that are at risk due to climate change. Mr Smith’s claim is against six New Zealand corporate defendants: Fonterra Co-operative Group, Genesis Energy Limited, Dairy Holdings Ltd, New Zealand Steel, Z Energy, and BT Mining Ltd.

Mr Smith’s claim raised three causes of action: negligence, public nuisance and a novel tort claim. Public nuisance is alleged on the basis that the ongoing, dangerous, anthropogenic interference with the climate system, which has been caused or contributed to by the defendants, has or will substantially, materially and unreasonably interfere with a range of public rights. The “proposed new tort involv[es] a duty, cognisable at law, to cease materially contributing to: damage to the climate system; dangerous anthropogenic interference with the climate system; and the adverse effects of climate change.” Mr Smith additionally pleads that tikanga Māori should inform the development of the common law with regard to the causes of action. Mr Smith is not seeking damages but rather injunctive and declaratory relief.

In 2020, the High Court struck out the claims in public nuisance and negligence as not reasonably arguable, holding that imposing a duty of care would be "inconsistent with Parliament's regulation of emissions" under the CCRA. The Court declined to strike out the proposed new tort. In 2021, the Court of Appeal struck out all three causes of action, holding that imposing a duty of care would cut across the existing legislative framework and that the proposed new tort was a "bare assertion" lacking scope. The Court held that "climate change simply cannot be appropriately or adequately addressed by common law tort claims" and that a national regulatory response was required instead.

In February 2024, the Supreme Court reversed the Court of Appeal's decision, holding that the threshold for strike-out was not met and “Mr Smith now gets his day in court”. The Supreme Court held that the CCRA did not displace or modify the application of tort law in the context of climate change for several reasons, including because the CCRA “neither authorises nor immunises GHG emissions” but merely “facilitates state-introduced market signals via a trading system”. Instead, the CCRA was designed to complement existing planning legislation, which expressly preserves common-law action.

Following the Supreme Court's decision, a series of interlocutory applications have been heard. In April 2025, the High Court declined two applications. The first, by the first to third defendants, sought a determination that it was properly arguable that overseas commercial, government and non-profit emitters could be joined as third parties. The Court held that joinder would introduce complexity, expense, and delay, inconsistent with the objectives of the High Court Rules and with access to justice, and would very likely derail the April 2027 trial ([49]).

The second, by the first to fifth defendants, sought orders declaring the proceeding a "universal representative proceeding" against all New Zealand commercial enterprises that emit significantly more than an ordinary citizen. The Court held that the Supreme Court's judgment clearly proceeded on the basis that Mr Smith could sue the named defendants alone; the application effectively sought to relitigate that issue, and a representative order would not enhance access to justice ([60]–[61], [74]).

In June 2025, the Court declined BT Mining's application to have two questions determined before trial, whether it could be liable despite having carried out no relevant GHG-emitting activity of its own, and whether liability could arise where the emitting activity occurs overseas, finding no clear demarcation between the claims against BT Mining and the other defendants ([13]). It also declined BT Mining's application for security for costs of $150,000 ([21]), and Mr Smith's application to split the trial into liability and relief phases, though the latter may be revisited ([45]). The Court also declined Mr Smith's applications for protective costs orders, including for any 'pure' third-party funder, finding that absent an identified funder the Court could not assess whether it was “pure”, and Mr Smith personally did not meet the threshold of necessity, having made clear he would continue regardless ([76]). The decision was without prejudice to a further application in respect of an identified funder ([77]).

On May 12, 2026, the New Zealand Government announced that it would amend the Climate Change Response Act 2002 to preclude tort liability for climate change-related harm caused by greenhouse gas emissions in both current and future proceedings, including this case.

On July 10, 2026, the High Court released an interim decision releasing Mr Smith from his implied discovery undertaking and granting him leave to use certain documents discovered by the first and fifth defendants (Fonterra and Z Energy) for collateral purposes. On July 11, 2026, Fonterra and Z Energy obtained a stay from the Court of Appeal, conditional on their seeking leave to appeal in the High Court. Subsequently, on July 24, 2026, the High Court granted leave on the papers, in the interests of justice given the unique circumstances of the litigation and its significance to all parties.

The Climate Change Response (Tort Liability) Amendment Act 2026 came into force on August 25, 2026.