SUPERHUMAN SMITH V. SEVEN GHASTLY GREENHOUSE GASERS

Unpacking the Pith & Myths of a Mystical New Zealand Supreme Court Decision

New Zealand’s highest Court, the Supreme Court, has decided that a claim by Maori activist Mike Smith against seven New Zealand business should go to a formal Court trial. Smith’s claim is that the businesses are harming him and his whānau (extended family group) by increasing the amount of greenhouse gases (carbon dioxide, methane etc.) in Earth's atmosphere.

Mike Smith is the Smith who sawsmithed the pine tree on Auckland’s One Tree Hill, amongst other vandalistic protests. He’s a man with strong convictions.

The businesses to go on trial are Fonterra, Genesis Energy (owner of the Huntly Power Station), Dairy Holdings (dairy farming company), New Zealand Steel (owner of the Glenbrook Steel Mill), Z Energy, Channel Infrastructure (owner of the mothballed Marsden point oil refinery and petrol/diesel importer) and BT Mining (owner of New Zealand’s biggest open cast coal mine, and coal exporter).

Let’s call greenhouse gases by the vogue acronym “GHGs”. And let’s call these in-the-Smith-gun businesses, the “Gasers”.

What does Smith want?

Quoting from the Supreme Court’s decision, “Mr Smith claims that he will suffer harm from the effects of dangerous anthropogenic interference with the climate system caused or contributed to by the [Gasers] jointly and separately”. Smith is asking to the Courts to do the following:

• Declare that each Gaser, by either emitting GHGs or producing/supplying stuff (petrol, coal etc.) that on combustion emits GHGs, has:

  • unlawfully caused or contributed to a “public nuisance” for Smith

  • negligently breached a duty of care owed to Smith, causing him harm

  • breached a novel “proposed climate change tort”

• Grant injunctions requiring each Gaser to:

  • Ensure its GHGs emissions peak by 2025

  • Emit net zero GHGs emissions by 2050

  • Cease production/supply of GHGs-producing products

In deciding to put the Gasers on trial, the Supreme Court overturned an earlier decision of the Court of Appeal - the court directly below the Supreme Court in New Zealand’s Court hierarchy. The Court of Appeal had decided to strike out Smith’s claims on the ground they were bound to fail. Rule 15.1(1)(a) of the Court Rules provides that the court may strike out all or part of a claim if it “discloses no reasonably arguable cause of action”.

Why the Supreme Court got it manifestly wrong

Smith’s essential claim, as restated in the Supreme Court’s decision, is that “it is possible for the [Gasers] to reduce the emissions from their activities and products to reflect these required reductions, and that requiring them to cease or reduce their GHGs emissions (or contribution to emissions from producing and selling fossil fuels) will materially reduce the adverse effects of climate change”.

In requiring the Gasers to be put on trial, the Supreme Court decided (and necessarily had to decide) that Smith’s claim could tenably be found to be correct. But the Supreme Court’s decision is clearly wrong, for quite simple reasons:

• The amount of GHGs in Earth’s atmosphere is a global phenomenon that doesn’t differentiate between regions or countries

• New Zealand currently produces about 0.08% (1/1250) of global GHGs emissions

• Smith claims the Gasers produce about a third of New Zealand’s GHGs emissions. Smith’s claim is exaggerated and the Gasers produce less than that third. But assuming Smith’s claim is correct and rounding up in favour of his claim, the Gasers produce 0.03% (1/3333) of global GHGs emissions

Which all means that, even if the Gasers produced zero GHGs from tomorrow, that couldn’t and wouldn’t reduce to any significant degree any harm that Smith and his whānau allegedly suffer from global climate changes. In other words, given climate change is a global phenomenon and New Zealand’s contributions to GHGs are miniscule on a global scale, nothing the Gasers do or don’t do could possibly make any difference to Smith and his whānau. The central plank of Smith’s claim – that the Gasers are causing or contributing to harm caused to Smith and his whānau – is therefore sawdust. Curtailing the Gasers’ emissions of GHGs simply cannot “materially reduce the adverse effects of climate change”

Smith’s Sacred Feelings & Trampled Tikanga

Smith’s claim falls judiciously short of expressly alleging that the harms he says he is suffering at the hands of the Gasers are nothing more than hurt feelings. But the Supreme Court’s judgement is forced to flirt with hurt feelings, stating:

‘Mr Smith relies on principles of tikanga Māori to “inform the legal basis of the pleaded causes of action and the development of the common law of New Zealand” ’

‘He further claims that, under tikanga, environmental harm is a harm in and of itself, creating corresponding harm to those who have interests in the environment, including kaitiaki (loosely, those whose role it is to care for the environment) and mana whenua (again loosely, those with traditional authority in the particular environment)’

The Supreme Court judges are aroused by the idea that there exists enforceable Maori lore/law (tikanga) that pre-dates, and is impervious to, legislation and common law generated by the Courts. This heightened state of arousal is essentially a constitutional power play. If there is indeed such ancient transcendental law, then ultimate power is with the Supreme Court and “Maori” (as an elite singularity). In its desperate defence of the judicial enforceability of tikanga, the Supreme Court rummages back in history to find and latch onto a couple of obscure old Court decisions:

• An 1866 Court case involved a dispute about ownership of a boulder of pounamu (greenstone). Reynolds had grabbed the boulder, broken it up and moved it. Mr Tuangau had, however, previously worked, and left his mark, on the pounamu, and was rightly adjudged to own the greenstone. The Supreme Court attributed Tuangau’s success in Court to the application of “tikanga”. But of course, Tuangau won simply because he had prior ownership of the rock – nothing to do with tikanga.

• A 1910 case involved a dispute over the ownership of – I kid you not - a dead whale. Baldick’s cunning plan was to argue that Jackson, a whaler, didn’t own the carcass because a 14^th century British statute stated that the British Monarch owned all whales. The Judge decided that statute didn’t apply because “Maoris…were accustomed to engage in whaling” and whale “carcassing” was protected by Article Two of the Treaty of Waitangi (that’s the Article guaranteeing all Maori – or all common New Zealanders, no-one knows for sure - undisturbed possession of their property/treasures). Of course, pre-European Maori weren’t “whalers”, as in killers of live whales. They simply liked whale carcasses, mainly for the bones. This case’s connection to tikanga is oblique at best.

But why?

Exposing the flaws in the Supreme Court’s decisions involves nothing more than basic maths, logic, and legal reasoning. No Rocket Science is required, and neither does one have to take any particular view on climate change.

So, what motivated the Legal Luminaries who inhabit New Zealand’s Supreme Court, headed by Dame Helen Winkelmann, to espouse a collective view that the Gasers could be causing Smith and his whānau actual harm, and that the relief sought against the Gasers could possibly reduce such harm. In short, what’s going on here? What wider cultural and other factors might be at play?

First, New Zealand’s top judges tend to be arrogant, unaccountable pseudo-intellectual snobs who (apart from when they are angling to become judges) detest most politicians. They typically regard politicians as grubby, striving individuals who represent the horrid commoners. They don’t like the statutes that Parliament passes and gleefully distort the literal meanings of our Acts of Parliament when it doesn’t suit their ideological biases. Smith is a Maori activist, and our current Supreme Court Judges are “judicial activists”, which means they just sort of make things up, regardless of earlier Court decisions and the literal meanings of Acts of Parliament. Our Supreme Court therefore adores the idea that there is are ancient, pre-European laws (lore) – like “tikanga” - that Parliament can’t touch, and that trump the laws that emanate from our democratically elected Parliamentarians. New Zealand’s Supreme Court judges, not too deep down, are not fond of New Zealand’s democratic institutions.

It all started with judicial activist Baron Lord Robin Cooke of Thorndon. Cooke was the New Zealand lawyer who, as President of our Court of Appeal, in 1987 announced that the Treaty of Waitangi is “akin to a partnership”.

Secondly… being an elite, Supreme Court judges imbue themselves with metaphysical powers to divine things that ordinary people can see. Such as being able to magically perceive that Smith suffers actual harm when land to which Smith claims a spiritual connection is affected by the weather. This astonishing insight nicely overcame the fundamental difficulty for Smith’s claim that, in order to succeed, established common law requires that he has to be suffering “special damage”. In the words of the judgement:

‘[Smith] alleges that his tikanga-based connection to the subject environment provides a foundation for the claim that the injury to place is also an injury to himself, his whānau (extended family) and descendants. It is alleged that the respondents must bear some responsibility for these harms’

‘[The trial Court] must consider some tikanga conceptions of loss that are neither physical nor economic. In other words, addressing and assessing matters of tikanga simply cannot be avoided’

With New Zealand’s interest in Christianity and traditional religions waning, Supreme Court judges and their ilk are our new self-appointed religious High Priests.

Thirdly…our Supreme Court Judges honesty – albeit immodestly - reckon they can, by their sublime pronouncements and actions, help Smith change the climate affecting his ancestral land simply by generating lengthy legal sophistry. Holy Climate Smoke!

Jacinda Ardern, just before her tank emptied and she fly away, took a different tack. In 2021 she promised New Zealand will voluntarily donate - to amorphous overseas interests - about NZD30 billion of our collective money for climate change “credits”. This commitment was part and parcel of Ardern’s Aotearoan climate change world leadership. The discerning reader may wonder who “SERA” is in the above image. SERA stands for “Socialist Environment and Resources Association”, a UK-based supporter of Labour Parties throughout the world. SERA adored Ardern.

At cocktail parties, our Supreme Court judges are quick to decry the political partisanship of the United States’ Supreme Court Judges. But amongst the many things to which these judges are blind is that fact that New Zealand’s Supreme Court is far more uniformly politically biased than even the US Supreme Court.

My tentative prediction…Smith will win the trial, and our Wally Courts will assert that Parliament cannot pass a law to overturn the result. Which will make historic Kangaroo Courts look like Wannabe Wallabies.