When the matter came before the Court of Appeal, Smith’s action was struck out because it had little chance of success. The matter came before the Supreme Court which ruled that the Court of Appeal had applied the wrong test. It suggested that the test for strike-out was much higher. The matter was remitted for trial. That has prompted the Government to introduce legislation to prevent the use of the Courts for cases such as climate change. The effect of this is that Mr Smith’s case is stopped in its tracks.
The Government has the power to correct what it considers to be incorrect decisions of the Courts. However, the proposed legislation has retrospective effect in that it will mean that Smith may no longer pursue his action.
The New Zealand Bill of Rights Act has a provision about the retrospective effect of legislation. Attorney-General Chris Bishop will be required to advise Parliament that this legislation breaches NZBORA. But Parliament may, as it has done in the past, proceed nevertheless. If it does so Smith has a legitimate grievance about the way he and his action have been treated.
In this article I do not propose to consider whether the test expounded by the Court for strike out was too high. What I will do is look at the causes of action that Smith relied upon, consider their elements and some of the difficulties that they encountered and why continuing the action to trial may have been problematic. I will also make some observations on the way in which the Supreme Court used Smith’s Case to further cement tikanga lore as part of New Zealand law.
The Causes of Action
Mr Smith advanced three distinct causes of action, and it is important to be precise about each because they raise quite different doctrinal problems.
First Cause of Action: Public Nuisance
What Was Pleaded
Public nuisance is the most orthodox of the three claims and the one the Supreme Court took most seriously. The tort — ancient in origin — concerns acts or omissions that endanger the life, health, property or comfort of the public, or obstruct the public in the exercise of rights common to all. It has both criminal and civil dimensions. Common law crimes were abolished in New Zealand in 1893, leaving a self-sustaining civil tort.
Mr Smith pleaded that the respondents had interfered, or would interfere, with the following public rights: the rights to public health, public safety, public comfort, public convenience, public peace, and a safe and habitable climate system.
He alleged that the respondents knew, or ought to have known since at least the IPCC’s Fourth Assessment Report in 2007, that their activities were contributing to dangerous anthropogenic interference with the climate system, and that despite that knowledge they continued to emit or facilitate the emission of greenhouse gases. He pleaded that the interference was substantial, material and unreasonable.
Importantly, he also pleaded special damage particular to himself: specifically, damage to the Mahinepua C block, an approximately 91-hectare block of Māori freehold land on the Northland coast in which he and his whānau hold interests, through erosion, inundation and sea level rise; damage to customary fisheries, landing sites and burial caves; ocean warming and acidification affecting coastal and freshwater fisheries he customarily uses; and adverse health impacts to which he and Māori communities have particular vulnerability.
The relief sought was declaratory — that the respondents had unlawfully caused or contributed to a public nuisance — and injunctive, requiring each respondent to achieve a peaking of emissions by 2025, specified reductions by 2030 and 2040, and net zero emissions by 2050, with ongoing court supervision. Alternatively, he sought an immediately operative injunction requiring cessation of net emissions.
Why It Was Problematic
The public nuisance claim faced four distinct doctrinal problems, each of which requires separate analysis.
The public rights question. The first question was whether the rights pleaded — particularly a right to a safe and habitable climate system — were rights capable of grounding a public nuisance action. The established public rights in the case law are specific and historically grounded: rights of navigation on highways and waterways, rights of fishery, rights to clean air and water in a neighbourhood context.
A generalised right to a safe climate system would be an extension beyond anything previously recognised.
Both the High Court and Court of Appeal found this problematic, though the Court of Appeal ultimately accepted that the rights pleaded were at least tenably within the tort’s scope by analogy with recognised rights to public health, safety and comfort. The Supreme Court agreed on this narrow point.
The independent illegality question. The second question was whether the respondents’ conduct needed to be independently unlawful — that is, unlawful apart from the alleged nuisance itself.
The significance of this is acute in the climate context because the respondents were complying with all applicable statutory and regulatory requirements.
The High Court found independent illegality was required and that its absence was fatal. The Court of Appeal and Supreme Court both disagreed, holding that what matters is whether the act or omission causes common injury, not whether it is otherwise unlawful. This aspect of the claim is probably the least problematic doctrinally.
The special damage rule. The third and more serious problem concerns the rule that a private plaintiff suing in public nuisance must demonstrate damage particular to themselves — damage different in kind or degree from that suffered by the public generally.
The rationale is that public rights are vested in the Crown and vindicated by the Attorney-General; a private plaintiff needs a special reason to bring the action themselves.
This rule creates a structural tension with any climate change claim. Climate change affects everyone. Its effects — sea level rise, increased flooding, ocean acidification, biodiversity loss, extreme weather events — are widely distributed across New Zealand and globally.
Mr Smith’s argument was that his interests in specific coastal land at Mahinepua, together with his tikanga-based cultural, spiritual and nutritional interests in specific places, gave him damage sufficiently particular.
The Court of Appeal was unpersuaded: it found that very many people across New Zealand, including many other iwi and hapū with coastal land and customary interests, suffered substantially the same harm. That was not a contestable factual question capable of being overcome by re-pleading or invoking tikanga.
The Supreme Court took a different view but only partially and conditionally.
It found that the special damage rule itself required reconsideration in light of modern procedural developments and that Mr Smith’s pleading of specific damage to identified coastal land with both legal and tikanga interests was at least tenably sufficient.
But this reasoning has a circularity problem: if the ubiquity of climate change harm is itself what the plaintiff relies on to establish its seriousness, that same ubiquity undermines the particularity of any individual plaintiff’s position. The more serious and widespread the harm, the harder it becomes to say any one plaintiff’s position is materially different from the general public’s.
Mr Smith’s coastal land interests are specific, but so are the coastal land interests of thousands of other New Zealanders. The tikanga dimension arguably adds something qualitatively distinct, but whether it adds enough to constitute special damage in the technical sense is genuinely unclear.
The causation and sufficient connection question. This is the most fundamental problem and the one that is likely to prove ultimately fatal even if the claim reaches trial. The difficulty operates at several levels simultaneously.
At the most basic level, the but-for test — would the harm have occurred but for the defendant’s conduct — plainly cannot be satisfied. Climate change is caused by cumulative global emissions over more than a century from millions of sources. New Zealand’s total contribution is approximately 0.17 per cent of global output. The respondents’ share of that is a further fraction. The harm to Mr Smith’s land would occur even if the respondents ceased all emissions tomorrow.
The Supreme Court’s response was to draw on the material contribution principle established in the 19th-century waterway cases and to suggest that but-for causation may not be required in public nuisance.
A defendant who materially contributes to a state of affairs constituting a nuisance may be liable even if that contribution is not independently sufficient and even if the harm would occur anyway due to others’ contributions.
This approach faces several difficulties. The waterway cases involved physically traceable pollution in geographically bounded systems where the defendant’s contribution was observable and where cessation would produce identifiable improvement.
The causal chain from a specific respondent’s GHG emissions to specific harm at Mahinepua C runs through atmospheric accumulation of gases from millions of global sources over decades, complex climatic mechanisms, global temperature increases, sea level rise, and local coastal effects.
Each link in that chain involves scientific complexity and uncertainty of a different order from tracing effluent downstream. The practical problem is not just legal but empirical: attribution science — the field that attempts to connect specific emissions sources to specific climatic effects — is developing but has not reached the point where it could sustain the causal findings a court would need to make.
There is also a related problem about the relationship between the defendants’ conduct and any remedy.
The injunctions sought would require the respondents to achieve specified emission reductions under ongoing court supervision. Even assuming full compliance, New Zealand’s total emissions are such a small fraction of global output that the climatic effect of those reductions would be undetectable. The harm Mr Smith pleads would continue essentially unabated.
This makes the causal connection between the remedy and the plaintiff’s harm vanishingly thin, which creates a problem not just for establishing liability but for justifying injunctive relief as an equitable remedy. Equity will not grant an injunction that cannot achieve the purpose sought.
Second Cause of Action: Negligence
What Was Pleaded
The negligence claim alleged that the respondents owed Mr Smith a duty to take reasonable care not to operate their businesses in a way that would cause him loss by contributing to dangerous anthropogenic interference with the climate system.
Breach was pleaded on the basis that the respondents knew or ought to have known from 2007 that their activities contributed to such interference, and continued them regardless.
Why It Was Problematic
Negligence requires establishing a duty of care, breach, causation and loss. Each element generates difficulties in this context.
Duty of care is the primary problem. The orthodox test in New Zealand, developed through South Pacific Manufacturing and associated cases, asks whether the harm was reasonably foreseeable, whether there is sufficient proximity between the parties, and whether it is fair, just and reasonable to impose a duty.
The proximity question is acutely problematic here. There is no pre-existing relationship between Mr Smith and any of the respondents. They have never interacted. The respondents’ activities affect not just Mr Smith but potentially every person on earth.
Imposing a duty in these circumstances raises the spectre of indeterminate liability — a concern the common law has consistently treated as a powerful reason to deny a duty of care.
The statutory framework creates a further difficulty. The High Court’s reasoning — that recognising a duty would be inconsistent with Parliament’s regulatory choices — has force even if it does not amount to complete statutory displacement.
When Parliament has made specific choices about how to regulate an industry’s environmental impact, imposing a superimposed common law duty requires careful justification.
The negligence claim provides less of that justification than the public nuisance claim, because negligence is more directly relational and requires a closer connection between plaintiff and defendant than public nuisance historically has.
Causation in negligence is if anything more problematic than in public nuisance. Negligence has traditionally required but-for causation — the plaintiff must show their loss would not have occurred but for the defendant’s breach.
The material contribution exception, recognised in cases like Fairchild v Glenhaven in the context of mesothelioma caused by asbestos exposure from multiple employers, has not been extended in any jurisdiction to the climate context.
The conditions that justified the Fairchild exception — a single indivisible disease, a scientifically established causal mechanism connecting each defendant’s contribution directly to the plaintiff’s specific injury, a finite identifiable class of defendants — are not replicated in the climate context.
Policy considerations reinforced these doctrinal difficulties. The courts in both Australia (Sharma) and the United States have generally declined to extend negligence to the climate context, finding that the polycentric nature of the problem, the need for regulatory judgement across multiple competing interests, and the indeterminate character of potential liability make negligence an unsuitable vehicle.
Third Cause of Action: The Proposed Climate System Damage Tort
What Was Pleaded
This was the most novel element of Mr Smith’s claim. The pleading was as follows:
The Government has the power to correct what it considers to be incorrect decisions of the Courts. However, the proposed legislation has retrospective effect in that it will mean that Smith may no longer pursue his action.
The New Zealand Bill of Rights Act has a provision about the retrospective effect of legislation. Attorney-General Chris Bishop will be required to advise Parliament that this legislation breaches NZBORA. But Parliament may, as it has done in the past, proceed nevertheless. If it does so Smith has a legitimate grievance about the way he and his action have been treated.
In this article I do not propose to consider whether the test expounded by the Court for strike out was too high. What I will do is look at the causes of action that Smith relied upon, consider their elements and some of the difficulties that they encountered and why continuing the action to trial may have been problematic. I will also make some observations on the way in which the Supreme Court used Smith’s Case to further cement tikanga lore as part of New Zealand law.
The Causes of Action
Mr Smith advanced three distinct causes of action, and it is important to be precise about each because they raise quite different doctrinal problems.
First Cause of Action: Public Nuisance
What Was Pleaded
Public nuisance is the most orthodox of the three claims and the one the Supreme Court took most seriously. The tort — ancient in origin — concerns acts or omissions that endanger the life, health, property or comfort of the public, or obstruct the public in the exercise of rights common to all. It has both criminal and civil dimensions. Common law crimes were abolished in New Zealand in 1893, leaving a self-sustaining civil tort.
Mr Smith pleaded that the respondents had interfered, or would interfere, with the following public rights: the rights to public health, public safety, public comfort, public convenience, public peace, and a safe and habitable climate system.
He alleged that the respondents knew, or ought to have known since at least the IPCC’s Fourth Assessment Report in 2007, that their activities were contributing to dangerous anthropogenic interference with the climate system, and that despite that knowledge they continued to emit or facilitate the emission of greenhouse gases. He pleaded that the interference was substantial, material and unreasonable.
Importantly, he also pleaded special damage particular to himself: specifically, damage to the Mahinepua C block, an approximately 91-hectare block of Māori freehold land on the Northland coast in which he and his whānau hold interests, through erosion, inundation and sea level rise; damage to customary fisheries, landing sites and burial caves; ocean warming and acidification affecting coastal and freshwater fisheries he customarily uses; and adverse health impacts to which he and Māori communities have particular vulnerability.
The relief sought was declaratory — that the respondents had unlawfully caused or contributed to a public nuisance — and injunctive, requiring each respondent to achieve a peaking of emissions by 2025, specified reductions by 2030 and 2040, and net zero emissions by 2050, with ongoing court supervision. Alternatively, he sought an immediately operative injunction requiring cessation of net emissions.
Why It Was Problematic
The public nuisance claim faced four distinct doctrinal problems, each of which requires separate analysis.
The public rights question. The first question was whether the rights pleaded — particularly a right to a safe and habitable climate system — were rights capable of grounding a public nuisance action. The established public rights in the case law are specific and historically grounded: rights of navigation on highways and waterways, rights of fishery, rights to clean air and water in a neighbourhood context.
A generalised right to a safe climate system would be an extension beyond anything previously recognised.
Both the High Court and Court of Appeal found this problematic, though the Court of Appeal ultimately accepted that the rights pleaded were at least tenably within the tort’s scope by analogy with recognised rights to public health, safety and comfort. The Supreme Court agreed on this narrow point.
The independent illegality question. The second question was whether the respondents’ conduct needed to be independently unlawful — that is, unlawful apart from the alleged nuisance itself.
The significance of this is acute in the climate context because the respondents were complying with all applicable statutory and regulatory requirements.
The High Court found independent illegality was required and that its absence was fatal. The Court of Appeal and Supreme Court both disagreed, holding that what matters is whether the act or omission causes common injury, not whether it is otherwise unlawful. This aspect of the claim is probably the least problematic doctrinally.
The special damage rule. The third and more serious problem concerns the rule that a private plaintiff suing in public nuisance must demonstrate damage particular to themselves — damage different in kind or degree from that suffered by the public generally.
The rationale is that public rights are vested in the Crown and vindicated by the Attorney-General; a private plaintiff needs a special reason to bring the action themselves.
This rule creates a structural tension with any climate change claim. Climate change affects everyone. Its effects — sea level rise, increased flooding, ocean acidification, biodiversity loss, extreme weather events — are widely distributed across New Zealand and globally.
Mr Smith’s argument was that his interests in specific coastal land at Mahinepua, together with his tikanga-based cultural, spiritual and nutritional interests in specific places, gave him damage sufficiently particular.
The Court of Appeal was unpersuaded: it found that very many people across New Zealand, including many other iwi and hapū with coastal land and customary interests, suffered substantially the same harm. That was not a contestable factual question capable of being overcome by re-pleading or invoking tikanga.
The Supreme Court took a different view but only partially and conditionally.
It found that the special damage rule itself required reconsideration in light of modern procedural developments and that Mr Smith’s pleading of specific damage to identified coastal land with both legal and tikanga interests was at least tenably sufficient.
But this reasoning has a circularity problem: if the ubiquity of climate change harm is itself what the plaintiff relies on to establish its seriousness, that same ubiquity undermines the particularity of any individual plaintiff’s position. The more serious and widespread the harm, the harder it becomes to say any one plaintiff’s position is materially different from the general public’s.
Mr Smith’s coastal land interests are specific, but so are the coastal land interests of thousands of other New Zealanders. The tikanga dimension arguably adds something qualitatively distinct, but whether it adds enough to constitute special damage in the technical sense is genuinely unclear.
The causation and sufficient connection question. This is the most fundamental problem and the one that is likely to prove ultimately fatal even if the claim reaches trial. The difficulty operates at several levels simultaneously.
At the most basic level, the but-for test — would the harm have occurred but for the defendant’s conduct — plainly cannot be satisfied. Climate change is caused by cumulative global emissions over more than a century from millions of sources. New Zealand’s total contribution is approximately 0.17 per cent of global output. The respondents’ share of that is a further fraction. The harm to Mr Smith’s land would occur even if the respondents ceased all emissions tomorrow.
The Supreme Court’s response was to draw on the material contribution principle established in the 19th-century waterway cases and to suggest that but-for causation may not be required in public nuisance.
A defendant who materially contributes to a state of affairs constituting a nuisance may be liable even if that contribution is not independently sufficient and even if the harm would occur anyway due to others’ contributions.
This approach faces several difficulties. The waterway cases involved physically traceable pollution in geographically bounded systems where the defendant’s contribution was observable and where cessation would produce identifiable improvement.
The causal chain from a specific respondent’s GHG emissions to specific harm at Mahinepua C runs through atmospheric accumulation of gases from millions of global sources over decades, complex climatic mechanisms, global temperature increases, sea level rise, and local coastal effects.
Each link in that chain involves scientific complexity and uncertainty of a different order from tracing effluent downstream. The practical problem is not just legal but empirical: attribution science — the field that attempts to connect specific emissions sources to specific climatic effects — is developing but has not reached the point where it could sustain the causal findings a court would need to make.
There is also a related problem about the relationship between the defendants’ conduct and any remedy.
The injunctions sought would require the respondents to achieve specified emission reductions under ongoing court supervision. Even assuming full compliance, New Zealand’s total emissions are such a small fraction of global output that the climatic effect of those reductions would be undetectable. The harm Mr Smith pleads would continue essentially unabated.
This makes the causal connection between the remedy and the plaintiff’s harm vanishingly thin, which creates a problem not just for establishing liability but for justifying injunctive relief as an equitable remedy. Equity will not grant an injunction that cannot achieve the purpose sought.
Second Cause of Action: Negligence
What Was Pleaded
The negligence claim alleged that the respondents owed Mr Smith a duty to take reasonable care not to operate their businesses in a way that would cause him loss by contributing to dangerous anthropogenic interference with the climate system.
Breach was pleaded on the basis that the respondents knew or ought to have known from 2007 that their activities contributed to such interference, and continued them regardless.
Why It Was Problematic
Negligence requires establishing a duty of care, breach, causation and loss. Each element generates difficulties in this context.
Duty of care is the primary problem. The orthodox test in New Zealand, developed through South Pacific Manufacturing and associated cases, asks whether the harm was reasonably foreseeable, whether there is sufficient proximity between the parties, and whether it is fair, just and reasonable to impose a duty.
The proximity question is acutely problematic here. There is no pre-existing relationship between Mr Smith and any of the respondents. They have never interacted. The respondents’ activities affect not just Mr Smith but potentially every person on earth.
Imposing a duty in these circumstances raises the spectre of indeterminate liability — a concern the common law has consistently treated as a powerful reason to deny a duty of care.
The statutory framework creates a further difficulty. The High Court’s reasoning — that recognising a duty would be inconsistent with Parliament’s regulatory choices — has force even if it does not amount to complete statutory displacement.
When Parliament has made specific choices about how to regulate an industry’s environmental impact, imposing a superimposed common law duty requires careful justification.
The negligence claim provides less of that justification than the public nuisance claim, because negligence is more directly relational and requires a closer connection between plaintiff and defendant than public nuisance historically has.
Causation in negligence is if anything more problematic than in public nuisance. Negligence has traditionally required but-for causation — the plaintiff must show their loss would not have occurred but for the defendant’s breach.
The material contribution exception, recognised in cases like Fairchild v Glenhaven in the context of mesothelioma caused by asbestos exposure from multiple employers, has not been extended in any jurisdiction to the climate context.
The conditions that justified the Fairchild exception — a single indivisible disease, a scientifically established causal mechanism connecting each defendant’s contribution directly to the plaintiff’s specific injury, a finite identifiable class of defendants — are not replicated in the climate context.
Policy considerations reinforced these doctrinal difficulties. The courts in both Australia (Sharma) and the United States have generally declined to extend negligence to the climate context, finding that the polycentric nature of the problem, the need for regulatory judgement across multiple competing interests, and the indeterminate character of potential liability make negligence an unsuitable vehicle.
Third Cause of Action: The Proposed Climate System Damage Tort
What Was Pleaded
This was the most novel element of Mr Smith’s claim. The pleading was as follows:
The defendants owe 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 through their emission of greenhouse gases into the atmosphere.
Breach was pleaded as continuing to emit greenhouse gases for profit while knowing that those emissions contribute to climate system damage and injury to the plaintiff.
Why It Was Profoundly Problematic
The proposed tort is problematic at almost every level of analysis, and understanding why requires examining what a tort actually is and what work the new tort was trying to do.
It lacks a coherent duty structure. Existing torts have defined duty structures. Negligence requires proximity and reasonable foreseeability bounded by policy considerations. Nuisance requires interference with recognised rights or interests.
The proposed tort defines the duty simply by reference to the outcome to be prevented — damage to the climate system — without specifying the relational or structural basis for imposing that duty on these defendants towards this plaintiff.
A duty defined entirely by its content, without a principled basis for why it falls on some actors rather than others, is not really a duty in the legal sense. It is closer to a general obligation imposed on all significant emitters by reference to their contribution to a global problem, which is precisely the kind of obligation that has historically been imposed by regulation rather than private law.
It has no common law precedent anywhere. No court in any common law jurisdiction has recognised a climate system damage tort.
The Court of Appeal noted this. The Supreme Court effectively acknowledged it by declining to address the tort’s foundations, allowing it to survive only on procedural grounds.
The absence of any precedent is not conclusive — the common law develops — but a wholly novel tort with no doctrinal lineage and no obvious limiting principle raises serious questions about judicial competence and legitimacy.
It has no limiting principle. If there is a duty to cease materially contributing to climate system damage, the duty is potentially owed by every significant emitter to every person affected by climate change.
That is, in principle, every large industrial enterprise in the world to every human being. The tort as pleaded provides no basis for limiting the class of potential defendants or the class of potential plaintiffs other than a vague materiality threshold whose content is undefined.
A cause of action without an intelligible limiting principle is not a viable tort — it is a mechanism for imposing liability of indeterminate scope, which is precisely what the law of torts has consistently refused to do.
It collapses the distinction between private law and regulation. The relief sought — court-supervised emission reduction schedules aligned with IPCC targets — is indistinguishable in substance from the kind of regulatory scheme Parliament enacts through the CCRA.
The difference is that a court would be imposing it on selected defendants through private litigation, without the democratic accountability, stakeholder consultation, economic analysis, and policy coherence that legislative regulation involves.
This is the strongest version of the respondents’ institutional competence argument, and it applies with greatest force to the proposed new tort.
It creates retrospective liability for conduct that was lawful when undertaken. The respondents were complying with all applicable regulatory requirements. Holding them liable under a newly recognised tort for past conduct that was lawful when it occurred raises rule of law concerns that, while not necessarily dispositive, require serious engagement.
The common law does develop retrospectively in the sense that new decisions apply to past facts, but the recognition of an entirely new tort to capture conduct that was previously entirely unregulated by private law pushes that principle to its limit.
The Structural Problem Underlying All Three Claims
Standing back from the individual doctrinal difficulties, there is a structural problem that runs through all three causes of action and that explains why they are collectively difficult even if individually arguable.
Tort law is built on a relational model. A defendant owes a duty to a plaintiff, breaches it, and thereby causes the plaintiff identifiable harm. The remedy corrects the specific wrong by compensating the specific plaintiff or restraining the specific defendant’s conduct. This model presupposes a relatively direct relationship between conduct, breach, causation and harm.
Climate change does not fit this model. The harm is caused by the cumulative effect of all human economic activity over more than a century. The connection between any specific defendant’s conduct and any specific plaintiff’s harm runs through chains of causation so complex, diffuse and global that the relational model of tort cannot easily accommodate them. The remedy sought — supervised emission reductions — would not actually stop the harm to Mr Smith’s land because New Zealand’s contribution to global emissions is too small to affect the climatic trajectory materially.
What Mr Smith’s claim is really asking the court to do is use private law as a lever to force specific large emitters to reduce their emissions, in the hope that this will contribute to a broader global movement toward decarbonisation, which will in turn slow climate change, which will in turn reduce harm to his land and interests.
That causal chain from judicial order to climatic benefit is speculative and long. It is not the kind of direct relationship between remedy and relief that tort law has historically required.
This does not mean the claim is frivolous or brought in bad faith. The underlying wrong Mr Smith identifies — that large commercial enterprises have profited from activities whose foreseeable consequence is damage to others’ land and interests — is morally coherent.
But the mechanism by which tort law is supposed to address that wrong is strained to breaking point by the nature of the problem. That is why the Court of Appeal concluded it was quintessentially a matter for legislative rather than judicial response, and why the Supreme Court’s decision to allow the case to proceed to trial, while defensible on procedural grounds, leaves the substantive difficulties entirely unresolved.
The Tikanga Issue
If one were uncharitably minded the contribution of Justice Williams as one of the authors of the decision might mean that a discussion of tikanga was inevitable. But the involvement of tikanga in this case is deeper than mere authorship of the decision.
Why Tikanga Was Relevant
Tikanga’s relevance operated at two distinct levels in the case, and keeping them separate matters.
The Factual Level
At the most immediate level, tikanga was unavoidably relevant because Mr Smith’s pleaded loss was partly tikanga-based.
He claimed interests in the Mahinepua C block and surrounding environment not merely as a property owner in the conventional sense but as a kaitiaki — one whose role under tikanga is to care for the environment — and as mana whenua with traditional authority in that place.
The harm he pleaded included damage to wāhi tapu, tauranga ika, ara moana and other sites whose significance is intelligible only through tikanga.
The court could not assess whether he had suffered cognisable loss without engaging with tikanga, because the loss itself was defined in tikanga terms. This engagement was therefore not optional or peripheral — it was required by the structure of the pleading.
The Doctrinal Level
At a broader level, Mr Smith argued that tikanga should inform the development of the common law causes of action themselves.
Specifically he pleaded that tikanga principles — whakapapa, whanaungatanga, kaitiakitanga — push against narrow individualistic conceptions of proximity and standing (Western European concepts), and support a more relational understanding of who can bring a claim and on whose behalf.
This had particular relevance to the special damage rule in public nuisance. If tikanga recognises that environmental harm is harm to those connected to the environment through genealogical and kinship relationships, that conception of harm potentially satisfies or modifies the requirement that a plaintiff demonstrate damage particular to themselves.
The Supreme Court accepted that tikanga could operate at both levels, drawing on its earlier decisions in Takamore v Clarke, Trans-Tasman Resources and Ellis v R (Continuance) to confirm that tikanga is the first law of New Zealand and continues to influence the common law as appropriate to the case.
Do These Observations Further Embed Tikanga in New Zealand Law?
Yes, and in ways that go beyond mere repetition of earlier holdings.
Consolidation of Existing Principle
The Court’s invocation of the historical record — the 1866 pounamu case Reynolds v Tuangau and the 1910 whale case Baldick v Jackson — was deliberate. It demonstrated that tikanga has been cognisable in common law proceedings not as a modern innovation but since the earliest operation of the common law in New Zealand.
This historical grounding strengthens the doctrinal foundation considerably. It is harder to characterise tikanga’s role as judicial activism when the Court can point to an unbroken line of engagement stretching back 160 years.
Extension Into Tort
What is genuinely new in Smith v Fonterra is the explicit recognition that tikanga can inform the substantive content of tort law — not just property rights or customary title as in Ngati Apa, but the elements of established torts including standing requirements and the definition of cognisable loss.
The Court held that the special damage rule in public nuisance may need to be reconsidered partly in light of tikanga’s implications for standing.
That is a meaningful extension. It suggests tikanga is not confined to areas where it has obvious historical operation but can reshape common law doctrine across a broader range of private law contexts.
The Kaitiaki as Plaintiff
Perhaps the most significant observation, though expressed briefly, is the Court’s acknowledgment at paragraph [188] that the trial court would need to grapple with Mr Smith bringing proceedings not merely as an alleged proprietor who has suffered loss but as a kaitiaki acting on behalf of the whenua, wai and moana as distinct entities in their own right.
This gesture toward environmental legal personhood — the idea that the natural environment might have cognisable interests that a kaitiaki can vindicate — is legally significant.
It has not been fully worked out and the Court was careful not to endorse it definitively. But placing it on the table as a matter the trial court must address effectively legitimises it as a live legal question in New Zealand private law.
Limitations and Uncertainties
These observations should not be overstated. The Court was careful to confine its tikanga reasoning to what was necessary for the strike-out determination. It explicitly said more neither could nor needed to be said at that stage, and that Mr Smith’s ultimate prospects would depend on the quality of the tikanga evidence at trial.
The legislative intervention announced by the Government in May 2026 — amending the CCRA to exclude tortious liability for GHG emissions — means the trial at which those questions would have been worked out will not now occur.
The tikanga observations in Smith v Fonterra therefore remain somewhat suspended: recognised in principle but not developed in the fertile ground of full evidential inquiry that the Court anticipated.
Nevertheless the judgment adds another significant layer to the architecture through which tikanga is being incorporated into New Zealand common law.
Read alongside Ellis, Trans-Tasman Resources and Takamore, it confirms a consistent trajectory: tikanga is not a parallel legal system operating separately from the common law, nor a merely cultural consideration relevant only to Māori-specific contexts, but an integral element of New Zealand’s distinctive common law that courts are required to engage with wherever it is genuinely implicated by the facts.
The embedding is real, even if its full implications in private law remain to be worked out in future cases.
There might be some who would say that the legislation limiting climate change litigation could well include a limitation on the use of tikanga.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
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