Smith v Fonterra: New Zealand’s Climate Tort Case

Smith v Fonterra is a New Zealand climate change lawsuit brought by Māori elder Michael Smith against seven of the country’s largest greenhouse gas emitters, seeking court-ordered emissions reductions rather than money. In February 2024, the Supreme Court unanimously ruled that Smith’s three tort claims could proceed to trial, a first for a common law jurisdiction. A 15-week High Court trial is set to begin in April 2027, but the government announced in May 2026 that it intends to amend the Climate Change Response Act 2002 to bar climate tort claims and shut the case down before it is decided.¹

Who Is Suing, and What He Wants

Michael Smith is an elder of the Ngāpuhi and Ngāti Kahu iwi from Northland and the climate change spokesperson for the Iwi Chairs Forum. He brings the case as a kaitiaki, or guardian, of the whenua, wai, and moana, pointing to damage to coastal sites near Mahinepua that hold customary, cultural, historical, nutritional, and spiritual significance to him and his whānau.²

The seven defendants together account for roughly one-third of New Zealand’s total greenhouse gas emissions and span agriculture, energy, fuel, heavy industry, and mining:³ Fonterra Co-operative Group Limited (the country’s largest dairy company and single biggest emitter), Genesis Energy Limited, Z Energy Limited, New Zealand Steel Limited, Dairy Holdings Limited, Channel Infrastructure NZ Limited, and BT Mining Limited.²

Smith does not seek monetary damages. He asks the court for declarations that the defendants’ activities are unlawful and injunctions requiring them to peak emissions by 2025, reduce them by 2030 and 2040, and reach net-zero by 2050.²

The Three Tort Claims

Smith’s case rests on three causes of action, one of them entirely new to New Zealand law.

Public Nuisance

Smith alleges that the defendants’ greenhouse gas emissions endanger public health, safety, comfort, and rights common to all New Zealanders. Private plaintiffs bringing public nuisance claims usually have to show “special damage” distinct from harm suffered by the general public. The Supreme Court found Smith had a tenable argument on that requirement because of particular damage to coastal land in which he and those he represents hold distinct tikanga-based interests.⁴

Negligence

The negligence claim argues the defendants breached a duty of care owed to Smith. The Supreme Court flagged the defendants’ knowledge of their own emissions, and the foreseeability of climate-related harm, as relevant to that claim at trial.³

A Proposed New Climate Tort

The most novel claim asks the court to recognize an entirely new tort: a duty to cease materially contributing to damage to the climate system, dangerous anthropogenic interference with the climate system, and the adverse effects of climate change. It does not fit neatly into negligence or nuisance and would create a forward-looking legal duty aimed specifically at corporate emitters.⁴ The High Court acknowledged “significant hurdles” in recognizing such a duty but declined to strike it out, with Justice Wylie stating he was “reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable.”⁵

How Tikanga Māori Fits In

Smith does not allege the defendants directly breached obligations under tikanga. He argues instead that tikanga Māori, the traditional Māori system of customary obligations, should shape how the common law understands the scope of the duty of care, the nature of the harm to his whenua and moana, and whether that harm counts as special damage for public nuisance purposes.²

The Supreme Court treated this as a substantive question for trial, acknowledging tikanga as a source of New Zealand’s common law and signaling that a trial court would need to decide whether tikanga-related harm is a legally cognizable loss.⁶ Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) intervened in the Supreme Court proceedings alongside Lawyers for Climate Action NZ and the Human Rights Commission.²

How the Case Reached Trial

The case moved through three courts over four years before Smith won the right to a hearing on the merits.

In March 2020, the High Court struck out the public nuisance and negligence claims as “not reasonably arguable,” finding climate change “could not be effectively addressed through tort law.” Justice Wylie kept the novel third cause of action alive.⁷

In October 2021, the Court of Appeal struck out all three, holding there were “strong policy reasons against imposing private law duties on greenhouse gas emitters” and that “matters of this complexity are best dealt with legislatively.”⁸

On 7 February 2024, a five-judge Supreme Court panel unanimously reversed and reinstated all three claims. Chief Justice Winkelmann sat with Justices Glazebrook, Ellen France, Williams, and Kós, and the judgment was delivered by Williams and Kós JJ.²

The court reasoned that under orthodox strike-out principles, the claims were not “bound to fail.” It rejected the argument that New Zealand’s climate statutes displaced the common law, holding that neither the Climate Change Response Act 2002 nor the Resource Management Act 1991 created a “right to emit” or immunized defendants from tort liability.⁴ It compared the causation issues raised by climate change to those in 19th-century industrial pollution cases and concluded that such questions required evidence and policy analysis at trial rather than summary dismissal.³ In a widely quoted passage, the court said “the common law must develop, if at all, in the fertile fields of trial, not on the barren rocks of a strike out application.”⁹

The Government’s Move to Block the Case

On 12 May 2026, Justice Minister Paul Goldsmith announced the government would amend the Climate Change Response Act 2002 to prevent courts from finding companies liable in tort for climate change damage caused by greenhouse gas emissions. The amendment would apply to the pending Smith v Fonterra proceedings as well as any future climate tort claims.¹

Goldsmith said climate litigation undermines business confidence and that courts are “not the right place to resolve claims of harm from climate change,” arguing such issues should be handled through Parliament, the Emissions Trading Scheme, and existing climate legislation.¹⁰ According to Cabinet papers released by the Ministry of Justice, the amendment would not alter the government’s own responsibilities under the Climate Change Response Act or businesses’ obligations under the Emissions Trading Scheme.¹¹ Fonterra publicly welcomed the proposal, restating its position that climate policy is a matter for Parliament rather than the courts.¹²

As of mid-2026, the bill had not been formally introduced or referred to a select committee. The government indicated it intended to progress the legislation before the November 2026 general election.¹

Reactions to the Proposed Bar

Smith called the proposal “an outrageous abuse of parliamentary power” and “a calculated political intervention.”¹³ Lawyers for Climate Action NZ organized an open letter signed by more than 100 academic and civil society leaders in New Zealand and abroad, arguing the legislation “risks undermining the rule of law and the separation of powers.”¹⁴

Sam Bookman, a climate law lecturer at Melbourne Law School, called the government’s move “deeply cynical,” noting the Supreme Court had already unanimously held Smith had a tenable case.¹⁴ Bjørn-Oliver Magsig and Graeme Austin of Victoria University of Wellington described the proposed liability shield as a “deliberate dismantling of a system of climate accountability.”¹⁵ Green Party co-leader Chlöe Swarbrick labeled the reform “shady cookery,” Greenpeace Aotearoa’s Gen Toop called it a “shocking abuse of executive power,”¹³ and ClientEarth described the move as “deeply concerning,” pointing to a July 2025 International Court of Justice advisory opinion on states’ legal obligations to address climate harm.¹

Why the Case Matters Beyond New Zealand

The 2024 Supreme Court decision is regarded as a breakthrough in common law climate litigation. Earlier landmark rulings against corporations came out of civil law systems, most notably the 2021 Dutch court decision ordering Shell to reduce emissions by 45% by 2030. Smith v Fonterra is one of the first common law decisions to let climate tort claims against private emitters reach trial,³ with over 30 similar suits pending against private companies in the United States alone.

In July 2025, the International Court of Justice issued its first advisory opinion on state obligations regarding climate change, finding that states have a “stringent” due diligence duty to mitigate climate change, including an obligation to regulate private actors such as fossil fuel producers.¹⁶ Some commentators have argued the proposed New Zealand bar may conflict with those obligations and with non-regression clauses in the country’s free trade agreements.¹⁷

Where Things Stand

The case sits at a crossroads. The 15-week High Court trial remains scheduled to open in April 2027, and discovery is under way, with Fonterra sharing documents with Smith.¹² At the same time, the government aims to pass its Climate Change Response Act amendment before the November 2026 general election, which would prevent the claims from being decided on their merits.¹⁴ Under New Zealand’s system of parliamentary supremacy, Parliament has the constitutional power to strip litigants of common law rights without judicial review, though critics argue that doing so to defeat a specific pending claim is what international tribunals have historically recognized as a denial of justice.¹⁷ Whether the case is decided in a courtroom or extinguished by statute will likely be settled before the trial date arrives.

1
Reuters. New Zealand Plans Law Change to Stop Private Climate Lawsuits
2
Courts of New Zealand. Smith v Fonterra Co-Operative Group Limited, 2024 NZSC 5
3
Columbia Law School Climate Change Litigation Blog. Smith v Fonterra: A Common Law Climate Litigation Breakthrough
4
Climate Case Chart (Sabin Center, Columbia Law School). Smith v Fonterra Co-Operative Group Limited
5
University of Otago. Pushing Boundaries: Novel Torts and Climate Change in Light of Smith v Fonterra
6
Courts of New Zealand. Media Release: Smith v Fonterra Co-Operative Group Limited, 2024 NZSC 5
7
Australian Environmental Law (University of Melbourne). Smith v Fonterra Co-Operative Group Ltd
8
Courts of New Zealand. Case Synopsis: Smith v Fonterra
9
Edward Elgar Publishing. Smith v Fonterra Co-Operative Group Ltd
10
New Zealand Ministry of Justice. Tort Law Change
11
Beehive (New Zealand Government). Government Brings Certainty Climate Change Tort Law
12
Fonterra. Fonterra’s Case for Legislative Change to Climate Change Response Act
13
ICLG. New Zealand Moves to Block Climate Lawsuits Ahead of Landmark Trial
14
Inside Climate News. New Zealand Amends Climate Law Protects Polluters
15
The Conversation. Changing Climate Law to Prevent Civil Cases Removes a Key Protection for NZ Citizens
16
Harvard Environmental and Energy Law Program. The International Court of Justice’s Climate Opinion and What It Means for the US
17
EJIL Talk. Denial of Environmental Justice: Would a Bar on Climate Tort Litigation Be Inconsistent with New Zealand’s International Obligations