Novel climate tort? The New Zealand Court of Appeal decision in Smith v Fonterra Co-operative Group Limited and others

Abstract

In Smith v Fonterra the New Zealand High Court and Court of Appeal struck out all causes of action in proceedings seeking orders that seven New Zealand companies cease direct and indirect greenhouse gas emissions by 2030 grounded in the three distinct claims of negligence, public nuisance and a proposed novel tort referred to as “breach of duty”. The Court of Appeal's judgment is under appeal before the New Zealand Supreme Court. This commentary seeks to open up discussion around the reasons given for the various aspects of the judgment. In particular the commentary puts the view that there is scope for the creation of a novel common law climate tort. This tort must be forward-looking and preventive in orientation and may differ fundamentally from existing torts.