Michael John Smith (appellant) v Frontera Co-operative Ltd et al. [2024] NZSC 5
This appeal to the Supreme Court of New Zealand involved the quashing of a tort action (consisting of 3 grounds of action) relating to damages caused by climate change. The question was whether the plaintiff’s claim should be admitted at trial or whether, regardless of what could be proved at trial, it would be doomed to fail and would now be overturned.
The implications of this ruling could be enormous, especially if English courts stick to the New Zealand model. In its conclusion on this lengthy judgment, the New Zealand Court observed that “the principles governing public nuisance will not have to stand still in the face of large, demanding environmental situations attributable to human economic activity. The common law, when not obviously excluded, responds to demanding situations and adjustments in a considerate manner, through trials involving the examination of evidence.
The complainant is a Māori tribal elder and weather spokesperson for a national forum of tribal leaders. The defendants were all New Zealand corporations involved in an industry that emitted greenhouse gases or released greenhouse gases when burned.
Arguments of the Court
The plaintiff alleged that the defendants had materially contributed to the climate crisis and had damaged, and would continue to damage, his land, adding places of customary, cultural, historical, nutritional and religious significance to him and his “whānau” (a Māori). term). concept for the extended family group). He based his claim on three grounds of action: nuisance, negligence, and a new tort proposal involving a duty to stop materially contributing to the damage to the climate system. It also claimed that the defendants had unlawfully breached a legal responsibility owed to them. or caused or contributed to a public nuisance, and caused or will cause you a loss through your activities.
Precautionary measures requiring definers to limit their emissions until 2025, targeted emissions relief through the end of 2030 and 2040, and net-zero emissions through 2050 were also requested.
The defendants sought to have the proceedings set aside on the grounds that they did not disclose any highly debatable cause of action. In his view, this involved complex political issues that would be better dealt with through Parliament.
The High Court dismissed the claims for public nuisance and negligence but admitted the claim based on the proposed tort related to the climate replacement system. The Court of Appeals dismissed all three grounds of action. This Court concluded that “the magnitude of the climate crisis simply cannot be adequately addressed or addressed by non-unusual legal tort lawsuits brought before the courts. Basically, this is a factor that requires a complicated regulatory reaction at the national level, supported by external coordination. “
With respect to the proposed grievance for the weather system, the CA stated that the
“The mere exposition of the nature of a new crime, without any attempt to delimit its scope, insufficient to deal with disqualification, based on the hypothesis that science could evolve over the time that the case is tried. “
The lower court found that climate substitution poses insurmountable liability challenges, i. e. , those of state and causation, when everyone contributes to and is adversely affected by GHG emissions, and that emissions cannot be evidentiarily related to the damages suffered by plaintiffs. The appellate judges also stated that if the law were to evolve in the direction advised by Mr. Smith, this would introduce unlimited liability for defendants and, in particular, disrupt economies. They also argued that the courts are not prepared to deal with a systemic challenge. of this nature with all the complexity that entails. Instead, it is better to leave this resolution to Parliament; indeed, one can simply think that Parliament has already addressed the scenario and followed a detailed and coherent legislative response.
Climate change
The fact that human-induced weather replaces a floor is not unusual between the parties and there is no dispute that human-induced weather replacing the climate has negatively affected nature and people. Vulnerable communities, which have traditionally contributed less to the problem, are disproportionately affected by climate replacement. . Limiting warming to 1. 5 degrees Celsius or, at best, 2 degrees requires “rapid, deep and, in maximum cases, immediate greenhouse gas emissions across all sectors during this decade. “
In northern New Zealand, where the plaintiff’s tribal lands are located, bushfires are larger and the land is drier, while more excessive flooding is experienced. The Kyoto Protocol and the Paris Agreement require signatory states – including New Zealand – to transition to low-carbon societies. The New Zealand Parliament responded by passing a move setting a 50% net emissions relief target by 2030 (the Climate Change Response Act 2002, “the CCRA”). This law sets targets to reduce emissions to 0 by January 1, 2050. An emissions trading formula has been implemented, as has been the case in many other countries and in the EU, to drive effective habit replacement through the reward to traders of surplus sets. (assigned by the government) and encouraging them to further reduce their emissions to offload more salable equipment. According to respondents, this was a legislative scheme that the usual law does not deserve to infringe; such intervention through the courts would create a parallel and inconsistent regulatory regime.
The Applicant’s Case
The complainant claimed common interests over land and other resources in Mahinepua, Northland, northern New Zealand. According to him, this land has sites of common cultural, ancient, nutritional and spiritual importance to him and his representatives, as well as fishing grounds. , trails leading to the ocean, burial caves, rivers, wetlands, and other sites of ancient significance. It alleged that dairy plants owned by two of the respondents and the burning of coal, oil and petroleum through others accounted for a third of New Zealand’s output. total GHG emissions.
The whistleblower alleged that respondents had not credibly engaged in taking action that would contribute to the required minimum emissions reductions, and that they had “actively lobbied” to oppose any regulatory action requiring them to reduce emissions.
“The consequence, in fact and in law, of [the defendants’] moves is that [the plaintiff and his tribe], his descendants, and others will bear the burden of addressing the damages caused by historical, supply, and long-term GHG emissions. events. “
It was also based on the principles of Māori standard law, which entails a connection to the land that implies a legal responsibility to care for the environment.
The plaintiff argued that he would be harmed by the effects of harmful anthropogenic disturbances in the climate caused by the defendants. The defendants’ activities infringed a number of public rights, including the right to public health, safety, public peace, and a habitable climate formula. It sought a declaration that the defendants had unlawfully caused a public nuisance through their broadcasting activities, as well as an injunction requiring the defendants to comply with their emission reduction obligations.
The plaintiff alleged that the defendants owed him a duty, through the defendants, not to take moderate precautions not to operate his business in a manner that would cause him losses by contributing to harmful anthropogenic interference with the climate system. At the root of this statement, the plaintiff argued that the defendants knew that their activities would contribute to such interference and that, despite this knowledge, they had continued to emit GHGs into the atmosphere. The relief sought was expressed in terms similar to the public nuisance cause of action mentioned above. .
He said respondents had a duty to stop materially contributing to damage to the climate system, harmful anthropogenic interference with the climate system, and the adverse effects of climate change through their GHG emissions into the atmosphere.
The reparation was intended to be the same as that requested in paragraphs 2 and 3 above.
Scratch
Any court contemplating an expungement request will have to ensure that the request is so untenable that it cannot be successful. The court is reluctant to dismiss claims in an emerging legal arena. In New Zealand courts, it is now established that a claim is dismissed on the basis that the policy precludes the duty of care only if this can be said to be unquestionably the case. It all depends on whether a trial is mandatory or not to “allow for a fair trial and fully informed political decision. “
In that case, the High Court relied on the judgment of the House of Lords in X (Minors) v Bedfordshire County Council, in which Lord Browne-Wilkinson observed that “where the law is not established it is still in the process of being developed”. . . it is generally irrelevant to make a decision on new issues about hypothetical facts,” that is, when it comes to whether there is a legal duty of care that is not unusual. If it were inconceivable that the court would answer with certainty whether the claim was collectible, it would not be desirable to suppress it.
In that case, the Supreme Court considered it significant that the new complaint was “at least based on a non-trivial and seriously questionable prejudice. “
Legal regime of private remedies
The plaintiff argued that there was nothing unusual about relying on personal right of damages to statutory regulation. The defendants responded by filing that the application filed invited the judges to criticize the legal framework, thus creating a parallel and inconsistent regulatory scheme.
A prominent example of a legal scheme that replaces personal claims for bodily injury in New Zealand is the 2001 Accident Compensation Ace. It (and its predecessors) prohibits such claims by offering a legal payment formula and is taught in law schools around the world as a successful form of no-fault payment. On the other hand, New Zealand’s regulatory formula related to environmental damage does not preclude non-unusual legal action; It comprises a provision that expressly preserves access to non-unusual legal rights of action. With respect to the CCRA and its effects on actions for damages, the Court noted that there is no clear language in the statute.
As the Court observed, “this is not unexpected given the age of the movements damaging the environment and the continued use of them. “
For this reason, the Supreme Court concluded that unless the CCRA had fairly transparent language to that effect or was a mandatory result of the CCRA’s operations, it was inherently unlikely to exclude personal movements under a non-unusual law. And emissions trading systems established under the law do not allow or immunize GHG emissions. It simply facilitates market position signals transmitted through the state through an emissions trading system. “Parliament did not preemptively rule out a non-unusual legal reaction to the damage caused by GHG emissions” (para. 100).
The Court’s Findings
1) Public nuisance
In the early years of the not unusual law, it became apparent that there were socially reprehensible movements and omissions that may not form the basis of an action for personal nuisance because the harm was suffered through “a network as a whole and not through individual victims and because the members of the network “violated the rights of the public as such and not as personal owners or occupants. “
There are a number of limits to tort for public nuisance.
First, it is a strict liability tort, which means that negligence is not required; A defendant will only be liable if the type of harm suffered was a fairly foreseeable result of the defendant’s conduct, meaning there was a genuine threat of harm.
Second, the act or omission of the defendant will have to substantially and unreasonably prejudice public rights.
Third, tort does not depend on whether a specific user has suffered harm. However, the option of a user action would arguably be limited to users who can demonstrate that they have suffered specific harm as a result of the interference. This is known as the “special damages” rule.
In relation to the plaintiff in that case, the High Court held that the damage he claimed was neither express nor direct, nor more serious or more truly extensive than that suffered by the general public. Moreover, given the nature of climate change, the plaintiff simply cannot argue that without the defendants’ activities it would not suffer the damages claimed.
The Role of Customary Law in Addressing Climate Change
The defendants argued that the Court does not intervene in a judicial reaction to a climate replacement because it is unwilling to design or put it into effect. The challenge is polycentric and political; a wide range of interests and trade-offs are at stake; and complex clinical and economic judgments are required. It would be a break with the common law’s “progressive progression method” and an invitation to the judiciary to “rewrite the fundamentals of tort law and move beyond tort law and into the realm of justice. “the political powers. ” (Paragraph 131)
The defendants further contended that the damage alleged by the plaintiff was not sufficiently express or direct; It was not another kind of damage that thousands more people will suffer. This claim bore no resemblance to the pesky personal sewage cases where there is a relational and causal connection between the plaintiff and the defendant. The defendant in such moves will have to have contributed directly and seriously to the harm in question. While in this case respondents are not to blame for at least 99. 8% of global emissions.
For the whistleblower and the climate crusade teams involved, it was argued that the whistleblower’s allegations were based on the banal proposition that those who harmed him should be held accountable. One of the purposes of tort law is to promote potency by requiring Americans to internalize the pricing of damages caused by injuries and pollutants. To this end, finding the owner of a polluting plant guilty for the damage caused to the environment through the plant will inspire the adoption of appropriate measures to reduce that damage.
It was argued that the plaintiff’s nuisance claim fell within the orthodox principles of public nuisance. Even if the Court were to consider causation “without” a requirement of existing law, it would merit expressly recognizing that those who materially contribute to the environmental harm deserve to be held liable even if the harm had been suffered without their individual contributions.
Finally, it was argued on behalf of the claimant that the courts apply a strong presumption that New Zealand’s domestic law, by adding the general law of damages, is consistent with New Zealand’s foreign obligations, by adding foreign environmental law and human rights.
The Supreme Court ordered the plaintiff to appear in court; In this case, the situations of cancellation of the list did not occur. The appeal was upheld and the applicant’s application was reinstated.
Reasoning for the Court’s decision
(1) The rights claimed by the plaintiff (the rights to public health, public safety, public convenience, public convenience, and public peace) are within (or sufficiently connected with) the express rights known in the important Rimmington nuisance case as providing a basis for alleging public nuisance: i. e. , public rights to life, health, property, or comfort.
(2) Although the offence of disorderly conduct derives from criminal law – at least in England – parallel illegality is a prerequisite in New Zealand “and it is doubtful whether it will remain so in England” (para. 147). is that the act or omission does not cause unusual harm.
(3) The “special prejudice” rule: This is a status rule and boils down to the undeniable question of whether the harm suffered through the plaintiff is different from that suffered through other members of the community.
The Supreme Court found that the special damages rule required reconsideration in the context of the twenty-first century, in which “the implications of widespread harms such as pollutants (including GHGs) are more apparent and better understood, and in which movements of elegance and active control of court cases have evolved and are better able to address the fears of a multiplicity of oppressive movements. “
In any event, regardless of whether the status rule was repealed, confirmed, or reformed, the Court held that the plaintiff had a moot claim to meet his existing needs because of his argument of damage to the coastal lands on which he and others he represents claim. a separate legal interest and “tikanga” interests.
“The purported effects [of climate change], coupled with the flooding of coastal lands and the effects on fisheries and cultural interests, go beyond anything unusual interference with public rights. (Paragraph 152)
“It is possible, in fact, that the common law is not for dealing with climate change, but lately we are not convinced at this level of the procedure, with respect only to expungement, that the common law is not capable of dealing with the tortuous facets of climate change. “(Paragraph 154)
Comment
This is a vital breakthrough in common law regarding the damage caused by anthropogenic climate change. The Court held that “there is no doubt that the defendants were very large emitters of GHGs or that they were (or had been) very large suppliers. “fossil fuels that released GHGs when burned through others. “
We noted that the common law had never addressed a crisis as global as the climate crisis. But in the 19th and early 20th centuries it faced an existential, albeit minor, crisis when the commercial revolution dramatically increased the threat of injury due to the mechanization of factories, transportation, and mining. The landmark ruling in Donoghue v. Stevenson creates the perception of a duty of care based on non-physical proximity. In artistic application of the common law (St Helen’s Smelting Co v Tipping), the House of Lords held a factory owner liable for personal nuisance for destructive discharges from a copper smelting chimney which was diffused in the assets of the plaintiff’s country on the outskirts of the city. In these activities (sewage disposal and smelting) “there is a set of public and personal damages and public and personal property, and the common law (sometimes revised statutorily) has had to arbitrate the responsibility of the former. “Climate renewal presents similar complexities, albeit on a large scale. (Paragraph 157)
In other words, defendants can’t hide other polluters and get away with aggravating the poor state of the water, air, or, in this case, CO2 contributions to the atmosphere. This would make the defendant’s GHG emission activities legal. The fact that a large number of people commit similar acts of nuisance in the watercourse does not correspond to a complaint of nuisance. Each of them is subject to separate action and sanction.
“How tort law deserves to address cumulative causation in a public nuisance case involving newer technologies and more recent harms (GHGs, in addition to wastewater and other types of water pollution) is a question that deserves not to be answered preemptively, without evidence and without political analysis. . higher than that which would be obtained at the time of the request for withdrawal (para. 166).
For a lawsuit to result in a public nuisance, there will have to be a really extensive and unreasonable interference with public rights. “be de minimis, even though the collective movements of Americans are driving climate change. . . Such movements carried out by the Americans would possibly be simply a component of life in society” (para. 168). But that was a question for the court to be the basis of all the evidence presented to it, not the basis of an application for annulment.
The Court’s findings on Māori standard law, while interesting, are beyond the scope of this article.
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