Smith V Fonterra: A Pathway Forward Through Public Nuisance?

Abstract

This paper asks the question of whether the Supreme Court of New Zealand can, and if so, whether it should, allow the public nuisance cause of action to proceed to full trial in its upcoming judgment in Smith v Fonterra Co-Operative Group Ltd. In answering this question, the barriers raised by the High Court and Court of Appeal in their respective decisions to strike out the cause of action, are examined in detail. These barriers can be split into two distinct categories – ‘doctrinal’ and ‘institutional’. Doctrinally, there are difficulties in satisfying the ‘special damage rule’ required to establish standing, as well as with defining a principally justifiable class of defendant, and most importantly, with establishing causation. Institutionally, there are additional concerns that a climate change action exceeds the scope of what is understood to be ‘public nuisance’, that allowing such an action would undermine the legislature’s existing regulatory response, and in any case, that the Courts are not wellequipped to provide appropriate remedies. In response to both sets of concerns, this paper seeks to provide a doctrinal framework built on past precedent, as well as a set of institutional justifications, through which each difficulty could conceivably be overcome. Were the Supreme Court to adopt such a framework, it is argued that the tort of public nuisance could co-exist alongside legislative regulation, enhancing New Zealand’s response to climate change instead of undermining it. While allowing Smith to proceed to full trial would require a shift in the paradigm of public nuisance, it is contended that the existential nature of the threat dictates that the Supreme Court should be unafraid to do so, engaging its legal imagination in order to ‘do its part’ in combatting climate change in New Zealand.