How an old British law may hold New Zealand’s biggest polluters to account

Seven companies representing a third of New Zealand’s carbon emissions will defend their impact on the environment, in a case brought by Māori activist Mike Smith—with help from a 19th-century ruling on Birmingham sewage.

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J P Neale / T Matthews

For centuries, in the rolling green fields of the British Midlands, Hams Hall sat nestled in a copse of sturdy yew trees. The inhabitants of the three-storey stone mansion and its surrounding hamlets relied on the River Tame, a gentle stream that flowed through the estate, for a place to bathe, a source of water for their cattle, and reliable nourishment for their gardens.

By 1858, this bucolic idyll had turned foul. Several miles up the Tame lay the city of Birmingham. Over the previous century, the Industrial Revolution transformed Birmingham into “The Workshop of the World”; between 1811 and 1851, the city nearly tripled in size to 232,000 people. That led to an enormous increase in sewage, which was expelled into the Tame and allowed to drift downriver to Hams Hall, polluting the water, poisoning the people, and turning paradise into a pooscape.

Charles Adderley, lord of the manor, decided to take the Borough of Birmingham to court. The Borough admitted that the sewage was “highly offensive”, but argued that growth was inseparable from modernisation and that the “inconvenience” of the sewage’s “evil” was the price Britain had to pay for progress.

The court disagreed. It ruled in favour of Adderley, forcing Birmingham to build a sewerage system which eventually allowed the residents of Hams Hall to enjoy the river unpolluted.

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Almost two centuries later, in New Zealand, Mike Smith (Ngāpuhi) was worried about the impact climate change was wreaking on his whenua in the Far North, where rising seas and temperatures had led to extreme floods and wildfires. Determined to stop that steady deterioration, he decided to take New Zealand’s biggest polluters to court. But he wasn’t sure how to do it.

Reading back over Adderley’s case, Auckland lawyer David Bullock realised that Hams Hall might be the answer. He and Smith just needed to convince our courts that the rules which stopped Birmingham from releasing waves of poo should prevent big polluters from producing clouds of carbon dioxide. And so they sued seven companies: Fonterra (which burns coal in the milk production process), Genesis Energy, New Zealand Steel, Dairy Holdings, Channel Infrastructure (an oil importer), BT Mining (which produces coal) and Z Energy. Together they represent roughly a third of New Zealand’s carbon emissions.

Auckland commercial litigator David Bullock identified a British case that may open a pathway to suing corporates for producing carbon emissions.

“It seemed like everyone laughed at the idea,” recalls Bullock. The companies’ lawyers considered it so far-fetched that they argued the courts should strike the case out before it could be properly heard. Then, in February, the mockery stopped. The Supreme Court announced that Smith’s case was arguable.

Soon, for the first time in New Zealand’s legal history, the country’s biggest polluters will be put on trial in a court of law for their climate impact.

Smith’s case against them is part of a global trend. In the United States and Europe in particular, there has been a burst of climate litigation, with thousands of people suing dozens of governments and large polluters in myriad courts for breaching their constitutional rights by failing to take action to stop climate change.

Most famously, in 2019 the Dutch Supreme Court upheld a decision that the Dutch government was breaching its duty to protect Dutch citizens’ right to life under the European Convention on Human Rights, because it was failing to reduce the country’s carbon emissions by at least 25 per cent by 2020.

In 2021, a Dutch environmental group built off that success to bring a case against Shell, the oil company, arguing that its greenhouse gas emissions violated human rights. A Dutch district court agreed and ordered the company to reduce its emissions by 45 per cent by 2030. (Shell is presently appealing the decision.)

In New Zealand, however, taking polluters to court has been more difficult. The legal system we inherited from the British doesn’t provide the kind of inalienable constitutional rights that the legal systems in the United States and Europe do (in an odd twist of fate, our legal system is partly the product of Charles Adderley, who was the initial drafter of New Zealand’s first Constitution Act).

As a result, the climate litigation that has taken place in New Zealand has largely focused on forcing the government to make climate-related decisions in a certain way, rather than on stopping the government or large companies from polluting in the first place.

That makes the Supreme Court’s decision “hugely significant for the development of climate change law”, says Catherine Iorns, a professor of environmental law at Victoria University of Wellington, even though the fundamental nature of the case, with its roots in old England, “is the same old same old”.

Now that the Supreme Court has allowed the case to continue, it will return to the High Court. Over the coming years, that court will hear evidence from Smith (and any experts that he calls) on the negative impact of the companies’ pollution. Smith’s lawyers will cross-examine executives and other witnesses from the companies. In turn, the companies will fight to disprove Smith’s claims and argue that their contribution to climate change is minimal.

That fight alone will be significant. Big Tobacco’s fall from grace began in 1994 when its top executives testified under oath in a congressional hearing in America that nicotine wasn’t addictive: the claim was obviously preposterous. Over subsequent decades, documents obtained through legal cases against tobacco companies exposed how much the companies knew about the harm that cigarettes caused and revealed an accompanying pattern of lies and misdirection. The combination prompted the public mood against Big Tobacco to swing sharply negative.

The goal of Smith’s case is to convince the court to agree with him and impose penalties: either injunctions that would force New Zealand’s biggest polluters to reduce their carbon emissions, or declarations that their actions are unlawful.

Smith initially came to prominence in New Zealand for taking a chainsaw to the Monterey pine on top of One Tree Hill in 1994, an act of activism that he says was aimed at “igniting a massive debate about the symbols of colonisation” and bolstering Māori sovereignty.

Mike Smith (Ngāpuhi and Ngāti Kahu) is a climate activist who filed his case against seven high-emitting companies in 2019.

But Smith’s activism on climate issues goes back even further, to the 1992 Global Earth Summit in Rio de Janeiro, which he attended on behalf of Ngāpuhi, his iwi. In the decades that followed, he watched as neglect and paralysis dominated the climate debate.

In the meantime, Smith saw how climate change was gnawing at his whenua at Mahinepua in the Far North. For centuries, the region has been as idyllic as Hams Hall: a place of lush valleys and native forests from which kai could be easily caught or grown, of sprawling coastal cliffs that offered panoramic views of the Bay of Islands, and of golden beaches where kaimoana could be gathered.

But in recent years, the region has become drier, making wildfires increasingly common. Sea level rise has left its coastal communities more vulnerable to extreme flooding, while the cliffs are threatening to collapse from years of erosion.

Motivated by that threat, Smith began leading the Iwi Chairs Forum’s work on climate change. Now, he sees his activism on climate change and indigenous issues as intertwined. “The nexus between those two things is close. They both have their roots in the imperialism of last century and the century before last,” he says.

It is ironic, then, that his attempt to address those colonial legacies is rooted in old English common law. But the Supreme Court also agreed with Smith that a different kind of law was relevant as well. In its judgment, it acknowledged tikanga as the first law of New Zealand and emphasised that tikanga needed to be considered in assessing Smith’s claim—a note that will likely strengthen Smith’s case.

For Smith, that was deeply significant. “For us as Māori, protecting our families, our hapū and our iwi—which includes our environment—is a sacred duty and intergenerational obligation.”

The response from polluters, said Bullock, has been interesting.

“The arguments of larger companies in New Zealand is not that it’s impossible for them to stop their emissions, but that it’s too expensive or too hard,” he says. “What we’re arguing is: that shouldn’t be a problem for the person you’re hurting: that’s a problem for you, the person doing the harm.”

Now, Bullock hopes that the case will “lay a path for the courts to play a bigger role in the future as these issues become more and more pressing”.

Despite the case’s early stage, Iorns expects that it will inspire a wave of similar suits, in part because other methods of pursuing climate action are proving insufficient. “We have to do change fast on a large scale. That means changing rules that everyone has to abide by, and that might mean changing rules faster than people want.”

The lack of government action in particular is what motivated Smith.

“Because of political inertia, we could be asking the government to do something until the cows come home,” he says. “Given the urgency required, we thought we’d go straight to the companies and campaign against them directly. Going straight to industry can be the faster route to victory.”

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Lawyers around the world are watching. Bullock says many have reached out since the Supreme Court’s decision. Some are from countries where climate litigation is already well established. But he hints that much of the interest has come from so-called “common law” legal systems like England, which—like New Zealand—have historically provided fewer options for would-be legal climate warriors.

That said, climate litigation is no guarantee of success. Smith’s case will take time: his team currently expect it to go to trial sometime in 2026, and a victory won’t immediately stop the damage to places like Mahinepua.

As a cautionary example, Smith need only look at Hams Hall. Several decades on from Adderley’s legal success, Birmingham’s continued industrialisation made the estate unviable. Much of the land was eventually bought by the Borough of Birmingham, which built a coal power station on it, thought to be the largest in Europe. The resulting pollution and development devastated much of the surrounding countryside.

But that isn’t the end of the story. Following the power plant’s closure and demolition in the late 20th century, the landscape has begun to recover. Now, where the old Hams Hall and former power station once stood, an Environmental Studies Centre has been built with the goal of restoring “a wetland landscape, rich in wildlife and accessible to all”. Time will tell whether that mission, and Smith’s, will succeed.

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