MIke Smith stands still in his khaki vest, posing for a photo against the dark autumn leaves of the Auckland Domain gardens. He joked that he had a determined look on his face, his eyes raised to the horizon, creating a “Che Guevara look.”
“You know that? The way he looks up wistfully?” Smith says of the famous portrait of the Cuban revolutionary.
Mr Smith may be joking, but the 67-year-old grandfather and kaumatua (elder) of Northland’s Ngapuhi and Ngāti Kahu peoples is quietly taking a stand against climate change and those responsible for it. Trying to lead a revolution. And after five years in court, he just celebrated a big victory.
in Landmark decision in FebruaryNew Zealand’s Supreme Court unanimously ruled that Mr Smith has a 100% liability for New Zealand, including fuel companies Z Energy and Channel Infrastructure, electricity and gas company Genesis Energy, NZ Steel, coal companies BT Mining and Dairy Holdings, as well as other New Zealand companies. The court ruled that the company had the right to sue the seven corporations in which it is based.the biggest one, and largest emitter Dairy exporter Fonterra claimed they were contributing to climate change.
Photo: David Clapp/Getty Images
Sitting in a cafe on the Domain grounds, Smith, a veteran Māori activist, recounts the trajectory of his life that culminated in this particular battle.
Mr Smith, who is also the climate change spokesperson for the Iwi Chairs Forum, a national forum of tribal leaders, was born in Northland to a Māori father and a Pakeha (New Zealand European) mother, and whose own ancestry They also shared a history and they sat across borders. They sat together at the table in 1840 when they signed New Zealand’s founding document, the Treaty of Waitangi.
Smith was a child of the World War II generation. He grew up in the midst of the cultural revolution of his 1960s, and how decolonization, capitalism, environmentalism, and especially extractive industries have plundered land and indigenous peoples in the name of profit. exposed to conversations about
Armed with this knowledge and connection to the land, Smith turned into an activist. For Māori, a love of the environment is “hardwired into us,” Smith said, and when it comes to the dire effects of climate change, “the future of our children and grandchildren is at stake.” That’s what it means.
“That means when we see these things happening, we can’t sit there and remain silent. We have to take responsibility. It puts us in conflict with parts of the economic and political system that destroy that relationship.”
Mr Smith said the defendants’ activities, including the direct emission of greenhouse gases and the supply of fossil fuels, constituted a public nuisance, negligence and a new form of civil tort called the “proposed tort of climate system damage”. It is argued that it corresponds to three forms. ”.
He claims that these companies together accounted for more than a third of the total greenhouse gas emissions reported by the country between 2020 and 2021. Smith argues that these companies have contributed to the climate crisis and damaged whenua (land) and moana (sea) in small areas. The coastal hamlet of Mahinepua – his five hours north of Auckland – contains sites of customary, cultural, historical, nutritional and spiritual significance to him and his whānau (family).
A distinctive element of Smith’s case is that Māori principles of tikanga (broadly speaking, a system of traditional obligations and recognition of wrongs) may influence his actions, as well as New Zealand customs. His argument is that this should have an impact on the law as a whole.
The companies applied to quash Mr. Smith’s proceedings in the lower court, calling his claims “disjointed” and undermining the integrity of tort law. In 2021, the Court of Appeals agreed and discontinued the case, believing it was doomed to fail.
But in a major reversal, the Supreme Court said the judicial path should be open and the common law should be able to evolve. The law recognized climate change as an “all-encompassing” existential threat and said laws should take into account 21st century conditions.
In other words, Mr. Smith should be allowed to examine the damage caused by climate change through the courts.
Challenging political “inertia”
Ms Smith said she was driving when she received a call from her defense team, led by attorney Davey Salmon KC, with the verdict.
“I threw it out once, and I thought, this is a longbow guy. [they] “We won!” And I heard them all shouting in the background. It was a very exciting moment… but it took me a little while to process,” Smith says.
In a statement provided to the Guardian, Fonterra, Z Energy and Channel Infrastructure said that Parliament, not the courts, is the appropriate place to decide public and economic policy on matters of public concern such as climate change. He said that.
Fonterra and Genesis Energy expressed disappointment with the Supreme Court’s decision.
Those who responded said they were all actively working toward a low-emissions future. BT Mining, Daily Holdings and NZ Steel did not respond to requests for comment.
Climate litigation as a form of activism is gaining momentum around the world, with communities and individuals frustrated by slow or inadequate government responses seeking redress through the courts.
by UN 2023 Global Climate Litigation ReportClimate change litigation is now seen as an essential part of securing climate action and justice, with the number of cases worldwide more than doubling since 2017, from 884 cases to 2,180 cases by 2022. It becomes. Companies that directly contribute to climate change are increasingly being targeted.
Like others around the world, Smith is suffering from inertia in tackling climate change.
“One corner of that inertia is the power of lobbyists and the political process, and the other corner is politicians’ fear of public backlash against innovative change.”
Because the matter was so pressing, Smith ended up going to court.
“If the government can’t do that, [act]We need compliance and enforcement decisions from courts that force companies to act and give them no choice. ”
“The time has come for the trial”
Vernon Ribb, a climate change law expert and associate professor of law at the University of Auckland, said the world would be watching Smith’s case closely.
Most climate-related litigation in the courts is through groups challenging government or local government decisions. Greenpeace sues against coal-fired power plant consent.
“This is nothing like that,” Liv says. “In common law jurisdictions around the world…tort litigation is less advanced, so the Supreme Court’s decision to hold a full trial is a significant event.”
Lib said both sides will face significant challenges when discussing their respective cases. Smith must convince the High Court that the seven companies’ contributions to global emissions are harming his land and culture, while the defense says it should be left to governments to tackle climate change. The court must be persuaded that this is the case.
But even if Mr. Smith doesn’t win the orders he sought (including with companies that stop pollution or reduce emissions quickly), Mr. Lib said, Mr. Smith “already won something important.” Told.
“He has gained the ability to invite some scrutiny of companies’ actions on climate change, which could put pressure on companies and influence how they approach their emissions reduction strategies.”
It could be another year or two before Mr Smith’s case reaches the High Court, and if it fails he could face millions of dollars in costs.
After finishing his drink, Smith is hesitant to predict the outcome of the lawsuit. Although he is confident in his team and argument, he is also skeptical that the court will find a favorable outcome for Māori.
“Having said that, courts are being dragged down by the morality of the times…maybe this is a trial whose time has come.”
