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Anthony Willy

A “Global Warmer” Against the Polluters 

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On the 7 February 2024 the Supreme Court of New Zealand or I Te Koti Nui O Aotearoa as it has become known, issued a judgment in a dispute between Michael John Smith against seven of our largest industrial companies: Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy Channel Infrastructure, and BT Mining. Mr. Smith (the man who chopped the tree down on One Tree Hill in Auckland) is described in the judgment as an elder of Ngapuhi and Ngati Kahu tribes. He is also the climate change spokesman for the Iwi Chairs Forum. He began these proceedings in the High Court in August 2019. He alleges that the defendants by their activities have “damaged and will continue to damage his whenua and moana (not translated into English in the judgment) including places of customary, historical , nutritional and spiritual significance to him and his whanau.” He says this will cause him some unspecified  loss.

The defendants moved to strike out the proceedings on the basis that the claim rises no arguable cause of action because the claim relates to “complex policy matters best addressed by (and having been addressed by Parliament) within the relevant statutory and regulatory requirements, i.e. according to established Parliamentary procedures. In both the High Court and the Court of Appeal the four judges accepted this argument saying the magnitude of the global warming crisis:

“cannot be appropriately or adequately addressed by common law tort claims through the Courts …it requires a sophisticated regulatory response at a national level supported by international co-ordination.”

 One would have thought that to be the end of the matter involving the waste of no further court time, but not so. The judgment of the Court of Appeal was appealed to the Supreme Court comprising five judges including Winkelman CJ, Kos J., Glazebrook and Williams JJ. The case was argued by twenty-six  lawyers, four of them for the plaintiff, including two Kings Counsel. The costs of the three hearings will have been enormous, but the plaintiff, Mr. Smith is described as a litigant “pro bono” which usually means bringing the case in the public good, and at the end of it no costs were awarded for or against any party. In addition to the parties to the litigation the court heard from Lawyers for Climate Change, The Maori Law Society, and the Human Rights Commission.

The arguments for the defendants

One would have thought their case unanswerable as did the four judges in the High Court and Court of Appeal. Put simply they say: The Common law does not recognise such an attempt to “stretch, bend and invert tort law to injunct sectors of the New Zealand economy.” Climate change they say, “raises insurmountable problems for liability- particularly ones of standing and causation-where everyone both contributes to and is adversely affected by climate change.” Put simply the court will not recognise a claim brought by an individual relating to a claim based on the crisis of climate change which  affects all humanity. Thus issue is joined and as at all three hearings it is clear that the central issue is “climate change”

Climate Change and the pleadings

Although the judgments don’t specifically say so in introducing the subject it is clear that they mean to refer to “human induced climate change.” That is clear from the excerpts they quote from the intergovernmental Panel on Climate Change (IPCC). The judges accept as a given that “climate change threatens human wellbeing and planetary health” and that “the window of opportunity to ensure a liveable and sustainable future for all is rapidly closing.” The judges say “the evidence is unequivocal that humans have warmed the atmosphere, ocean and land, principally through the emission of GHGs.” For readers who follow this debate the arguments are familiar that it is the industrialisation of society which has cause unsustainable temperature increases which in turn will degrade our ability to produce food and result in massive sea level rises around the globe. Anybody who denies the truth of these assertions is labelled a climate denier raising the powerful image of “holocaust deniers.” In addition, the Court accepted Mr. Smith’s evidence concerning sea level rise, acidification, ocean warming , and his bare assertion that the 91 Ha of land in which he has some (unspecified) interest has become drier but at the same time subject to extreme flooding. His claim is brought on behalf of his family and descendants with an interest in that land, and describes his spiritual connections to the land in some detail. Having decided solely on the basis of what the IPCC, and Mr Smith say is provable, the court is satisfied that the appellant has a factual basis for his claims albeit in an amended statement of claim tendered at the hearing and not before the lower courts. It then goes on to consider as did the lower courts whether this can amount to a cause of action recognised at common law. In doing so it traverses the various internation treaties to which New Zealand is a party beginning with Kyoto in 1992, adopted in 2005, and the legislation of our Parliament which follows. Its clear from the summary of legislation that Parliament has, in a democracy, taken the matter as far as it thinks reasonable and necessary. Based on the foregoing Mr. Smith analyses the contribution of atmospheric CO2 as amounting to 75% of the total. Although in doing so he adds 8 companies not subject to the claim and specifies 7 ways in which climate change will affect the planet including that poor and minority communities, of which presumable he is claiming to be a member, will be disproportionately affected. For a lay litigant he has an astonishing knowledge of the current literature on climate change which he applies to the ways in which the defendants must reduce their CO2 emissions. He then extrapolates this to assert that if he is successful the results will be applicable to all New Zealand entities which emit CO2 as part of their activities.


In addition to relying on the common law Mr. Smith invokes the notion of Maori customary lore or Tikanga. The general theme being that if the defendants cause environmental harm that affects his role in the care of the environment and his traditional authority over the land in question leading to the imposition of traditional use and impact controls.

Pausing at this point it is clear beyond doubt that neither the amended pleadings before the court or the evidence given by Mr. Smith cannot possibly be his own work, encompassing as it does the whole of the relevant field of a position taken by the IPCC and the detailed consequences if CO2 are not arrested. Clearly his personal interest in the infinitesimal amount of CO2 emitted by the defendant’s affecting specifically the land in which he has an interest cannot factually found a cause of action recognised by the court. Plainly he is being used by one or more of the interveners as a vehicle to advance their claims which otherwise could not form a recognisable cause of action. It is surprising that the Judges failed to recognise this fact.

Common Law causes of action and the defendant’s motion to strike out the claim

It would weary the readers to spend any time on this aspect of the case except to record that the claims are made in public nuisance and negligence, and a new cause of action dreamed up by the plaintiff, “climate system damage tort”. The court in a closely reasoned judgment which all lawyers should read, has decided that these causes of action are available to the plaintiff and that his claim is neither frivolous or vexatious and should be allowed to proceed to a hearing . Their Honours are undeterred by the magnitude of the issues or the fact that Parliament has specifically legislated on the matter. The question then arises what will be the form of the hearing in the High Court should it ever come to trial, or will it be quietly settled by payment of a sum of money (Koha) to satisfy the plaintiffs concerns.

The hearing in the High Court

If the case ever gets to a hearing the plaintiff will be required to prove on the balance of probabilities i.e. it is more likely than not that the amount of CO2 which the defendants emit into the atmosphere are causing the plaintiff’s land to suffer from sea level rise, drought and flooding, and the other “spiritual” harm of which he complains. To do this in such a contentious matter it will be highly unlikely that the court will allow the plaintiff to rely on affidavit evidence alone more likely it will be necessary for the court to hear expert oral evidence which in turn is available for cross examination and questioning from the bench. Even if the court does allow affidavit evidence, then the defendants are entitled to give notice they wish to cross examine the deponents. Thus, the plaintiff will not be allowed to rely on the uncontested views of a group such as the IPCC as the sole evidence before the court. It is highly unlikely that the defendants will accept the shallow nonsense “that the science is settled.” Science is merely a method of examining facts and drawing conclusions which may or may not stand the test of time. In the particular case there is a great deal of international research by suitably qualified experts in their fields which casts serious doubt on not only the conclusions reached by the IPCC but more worryingly the methods used to draw those conclusions. To take but one example of many: From the outset of the CO2 scare in the early 1980s eminent scientists such as Richard Lindzen dismissed the warmers theory on the simple basis that rises in CO2 levels comes after any global warming and therefore cannot cause it. He was dismissed as a denier, but recent research in peer reviewed papers has shown him to be correct. Such a conflict of views will open the door to massive litigation for the simple reason that there is an unbridgeable gap between the views of such as the IPCC people and a wide range of other climate scientists. In hearing evidence from the IPCC people, the judge will be confronted by the incontestable fact that their remit is limited to considering only the effects of human induced CO2 on the atmosphere. They are therefore unable to consider the other influences which beyond argument affect the earth’s climate. To name a few; these will include volcanic activity the warming effect of which has been measured at least since the Pinatubo eruption and since, involving the Iceland eruptions and more recently the Hawaii and Pacific Island volcanic contributions. All of which result in massive increases in atmospheric water vapour over extended periods of time. As water vapour is a prolific atmospheric component this is a substantial and measurable contribution to climate changes. Then there is the question of what is the human induced CO2 component of atmospheric gasses? It has been reliably measured at 0.04% or 400 parts per million. Over the millennia this has varied widely.  For example during the last great ice age, it has been measured at 190 parts per million. There are any number of scientists who could be called to give this or proximate evidence. Then the court will be required to examine what is the New Zealand component of total atmospheric CO2. It has been measured at 0.17%. Thus’ the total contribution of New Zealand induced CO2 to the atmosphere is in the region of 0.0131ppm. But as this case concerns only some industrial companies who are emitting CO2 there will need to be evidence as to precisely how much of that figure they are in fact contributing. Bearing in mind that  the judge will not sit as a scientist and that it will be necessary for him or her to understand and rule on these matters. But that will not be the end of the information which may be given in evidence on  which the judge will be required to make findings of proven facts, including:

Computer models

The judge will be told in evidence that the IPCC predictions are based on computer modelling with scant attention to real time data collection. It is well known that in many cases computer modelling is worthless. This has been proved time and again for example computer model that told us 1000,000 people would die of covid, or the model used to control the NASA rocket which collapsed on its moorings during take off. For this reason many in the scientific community use the term rubbish in, rubbish out. In order to make sense of this the judge will need to become conversant with the use of modelling and whether the IPCC models give  scientifically provable results. In fact it is known that they do not when it comes to the methane component of the atmosphere . Evidence is available that the readings were inflated, and the model has been abandoned. There is also a growing problem concerning the mixing (homogenising) of urban and rural recordings see below.

Sea level rise

This is essential to the plaintiff’s case but will be met by evidence of highly qualified scientists in this field of geology that since the last great ice age, sea levels around the globe have risen by about 120 m consequent on the melting of the ice sheets and then stabilised. More recently the sea levels in Sydney harbour since recordings began in the early 1800s have shown rises and falls of a few mm. In this matter the IPCC relies heavily on the melting of ice in Antarctica without giving any weight to the fact the parts of the Southern Continent cover live subterranean volcanoes. On this topic much is heard from the United Nations  about the effects of sea level rise on some Pacific Islands. Should this become an issue in this case then no doubt the defendants would call evidence that those most at risk are in fact the crater rims of volcanoes and sinking by natural processes.

The influence of the earth’s relationship with the Sun

It is well understood that the Sun is an unstable mass powered by nuclear fusion. From time to time, it emits massive amounts of solar radiation which impacts upon the earth’s climate in ways that are as yet not fully understood but about which there is much scientific speculation. In addition is the fact that the earth’s orbit around the Sun is not spherical, but elliptical. Which results in the warming and cooling effect of the sun varying over ambit of the ellipse. Recent research has complicated this by showing that the orbit is itself elastic and not perfectly elliptical with the result that at times the position of the earth will stretch towards one or other end of its orbit with a resultant impact on the climate.

Forestry and agriculture

It is of course well understood that all life on the planet depends on CO2 for its existence. No CO2 no plant life, and therefore no oxygen. Yet as a result of its narrow remit the IPCC and its supporters are unable to consider the effect of the growth of natural forests around the planet. For example the Amazon rain forests are at their greatest recorded extent, notwithstanding logging. One would have thought it a matter of common sense that the more, and larger the trees in our forests the greater the absorption of CO2.In addition there have been changes in agricultural practice whereby hitherto bare summer pasture has been replace with vineyards and other more intensive forms of farming, which as a matter of common sense absorb more CO2. For some reason best known to the “warmers” our native forests and changes in agriculture are not counted in assessing the effect of CO2 on the atmosphere but small increases in Methane levels are . All of this has a bearing on Mr. Smith’s claim and is open to evidence at the hearing.

The economic effect of injuncting the defendants from continuing their present industrial practices

It will be open to the defendants to call evidence of the economic effect of injuncting their industrial practices, both in terms of the effect on their shareholders and the wider economy. In the case of Fonterra alone this could have disastrous consequences, given our dependence on the manufacture and export of dairy products. A judge would be faced with the impossible task of pandering to Mr Smith’s cultural sensibilities on the one hand and preserving the economy upon which the other 5 million citizens depend. This is a matter upon which evidence exists overseas particularly places such as The United Kingdom, Europe, and Japan. Governments there are backing away from their firm timelines of  becoming in that idiotic term “carbon free.” China and India etc. simply ignore the whole thing and continue to put out as much CO2 as their industrial expansion requires.

Urban heat effect and homogenisation

It is a fact that many of the temperature recording devices relied on by the IPCC are to be found in urban areas surrounded by buildings and surfaced roads. (One of them was found to be in the flight path of Jet planes landing and taking off at Heathrow Airport.) Unless adjusted these recordings give a false reading of atmospheric temperatures when mixed with rural recordings. In order to correct for these anomalies, the IPCC has for some years run what it calls an homogenisation algorithm. Extensive recent research however has shown that there are major flaws in this practice which yields bizarre results consistently over stating the global temperatures. There are a number of highly qualified researchers who if called to give evidence could testify to this matter. 

Overseas trends

Mr. Smith is not alone in bringing this sort of litigation. The Supreme Court of the United States will soon be required to hear and rule on a similar case brought by the State of Hawaii against the Federal Government alleging that it is not doing enough to curb “climate change.” It appears that the contest there will concern  the obligation of States to observe existing Federal law relating to  CO2 emissions rather than their own legislation. Both in the United States and New Zealand, if this claim succeeds in the Hight Court the door will be open to any person or pressure group to bring similar proceedings. This is a nightmare scenario for our society and its economy, not to mention an already overtaxed Court system, and the industries concerned.

Existing Government legislation dealing with this matter, and the interface between the Courts and the legislature on matters of policy

The Courts exist to administer the Law. It is no part of their function to intrude into areas of policy. The separation of powers between the Democratically elected Parliament and the appointed Judges  has been an inviolate pillar of our unwritten constitution. The Courts apply the law be it the common law or statute and Parliament does not interfere with or criticise the Judges in doing so. If this convention becomes eroded by activist Judges, as it has here by our Supreme Court then they are open to the accusation recently levelled by James Allen a prolific Canadian writer on Judicial matters, in commenting on this case that we are in danger of a new class of as he put it  “Imperial judges.” Those who imagine that they are there to right wrongs as they see them and free to impose their views on the community.


The Court allowed evidence of the tribal values of the plaintiff in weighing the outcome in this case as is permitted by the 2016 Courts Act. To treat such matters as merely evidence is not to treat them as becoming part of the Common Law (as the Supreme Court appeared to say (Obiter) in the Ellis case. Tribal customs around the British Empire were for centuries allowed as questions of fact in evidence by the Privy Council but they never became part of the Common Law as we have known it since 1840.


These are but a few of the issues which would arise and about which expert evidence, will be needed if this case goes the full distance of a defended hearing on the merits. Because of the highly contentious nature of this matter although the relief claimed is by way of injunction and or declaration which cases are usually dealt with by way of affidavit evidence, it is open to any party to seek leave to  cross examination and re- examination a witness. In addition, in such a complicated case  the Judge would almost certainly want to ask questions of witnesses and require answers. It is entirely possible that the outcome of the case could be a Judicial finding of fact and law that the whole IPCC case of upon which Mr. Smith relies in obtaining leave to proceed is unproven, and the plaintiff fails at the substantive hearing. Quite how the government would deal with such an outcome doesn’t bear thinking about. It would place the whole of its climate change legislation out on a limb and possibly subject to attack from interests such as the parties in this case or any number of other industrial users. There is no hint in the Supreme Court Judgment that their Honours were even cognizant of any these problems. Accepting as they did that the IPCC pronouncements are holy writ and have been followed and applied by our government. It seems not to have occurred to their Honours as it did to the High Court and Court of Appeal that such being the case there is no need for this litigation because Mr Smith’s rights are fully protected by existing legislation.

Ancillary matters

There remain two important ancillary matters: Who is funding this litigation – and Judicial impartiality.


Assuming the lawyers are charging their usual going rates for their time, the costs of this litigation to date will be enormous and one would think far beyond the capacity of a lone gentleman with an interest in 90 ha of communal land. Add to that the costs of the interveners such as the Maori Law Society and the climate change people. Either they are getting their legal representation free, or they too have significant financial reserves. If that is not the case it is not sufficient to blithely dismiss the costs question as “pro bono” or in the public good. Given there is no mention in the judgment of legal aid some very deep and shadowy pockets must be backing Mr. Smith and the other parties advancing Mr. Smith’s cause.  And that raises the question of “Maintenance” which is funding litigation in which the funder is not a party, along with Champerty. These have always been disallowed on the basis that persons who come before the courts (unless they can find an acceptable and publicly known litigation funder) must fight and finance their own battles. Litigation brought by a person should be for his or her benefit and not the benefit of others. Of course, the massive costs of this litigation may be borne by the lawyers out of their own pockets, given that the outcome of the proceedings has the potential to prevent the demise of all life on the plant. In which case hats off.

Judicial impartiality

It is crucial to the administration of justice that all judges approach the cases before them with open minds and setting aside all pre-conceived views and beliefs. Once that corner stone is eroded then our court system rapidly descends to one of patronage, and who you know.  In this case one of the sitting Supreme Court justices in the recent past delivered a talk to a group of young and impressionable lawyers encouraging them to take an interest in bringing climate change litigation. Well, that encouragement has borne fruit in this case. It is a classic example of why the Lord Chancellor Viscount Kilmuir absolutely forbade any judges under his control to make public statements on any matter which might conceivably come before them as litigation. Not only does doing so raise questions of bias and predetermination but it brings the law into disrespect as did another of the sitting judges in this case when he announced in a speech to Otago University law students that he knows no law and when he needs to, he will ask somebody. He may have been joking but if so, the joke was in damaging poor taste.

Given these concerns there is every reason to fear the outcome of the direction in which some of  our senior judges are taking the Common Law.