The relief sought by Mr Smith, based on the three tortious causes of action pleaded included: a declaration that the defendants have (individually and/or collectively) unlawfully either breached a duty owed to him or caused or contributed to a public nuisance, and have caused (or will cause him) loss through their activities.  Injunctive relief is also sought which would require the defendants either to reduce their emissions by specified amounts over a defined period of time, or to cease emitting (or contributing to) net emissions immediately.

In the Court of Appeal, Mr Smith amended his claim to include a reference to tikanga Māori.  He relied on tikanga Māori principles to “inform the legal basis of the pleaded causes of action and the development of the common law of New Zealand”. His pleading was constructed as follows:⁷

[7] … The proposed new clause reads:

Kaitiakitanga as a principle of tikanga Māori incorporates concepts of guardianship, protection and stewardship of the natural environment including recognising that a right in a resource carries with it a reciprocal obligation to care for its physical and spiritual welfare as part of an ongoing relationship.

Mr Smith claimed that, under tikanga, environmental harm is an intrinsic form of harm which creates harm to those with environmental interests, such as kaitiaki (custodians) and mana whenua (indigenous rights holders) and that, from a tikanga perspective, a wrong (hara) in the form of environmental harm has a collective and individual dimension to those responsible for causing the harm and those that suffer the harm’s consequences.⁸

Approach taken to tikanga 

The Court observed that tikanga was a fundamental element of the specific loss claimed by Mr Smith and that the trial court will be required to “engage” with tikanga⁹. Aside from tikanga’s impact on the positioning of specific causes of action, it was noted that the trial court will have to consider tikanga’s potential effect on the special damage requirement in a public nuisance claim (if such a requirement is necessary)¹⁰. It was acknowledged that the trial court will need to engage with whether tikanga related harm is a “cognisable form of loss”¹¹.

The Court recognised that tikanga’s application to tortious causes of action is not a contemporary occurrence.¹² It recorded that tikanga had been applied by New Zealand courts since the common law was introduced ¹³ This acknowledgment was made by reference to two early High Court decisions.¹⁴ More contemporary (re)engagement with tikanga was noted,¹⁵ with reference made to Attorney-General v Ngati Apa,¹⁶ Takamore v Clarke,¹⁷ Trans-Tasman¹⁸ and Ellis (Continuance)¹⁹ . In the latter cases, it noted that the court had considered tikanga’s relationship with the common law, as operating outside the legal regime of customary title.²⁰ In summary, the Court accepted that tikanga was New Zealand’s first law and that tikanga continues to affect New Zealand’s common law “as appropriate according to the case and to the extent appropriate in the case”.²¹

The decision in Smith underscored the importance of taking a case-by-case, context-specific approach to tikanga, as the Court had previously set out in the Ellis (continuance) decision.²² The Court highlighted the fundamental importance of providing the court with the appropriate tikanga detail in relation to the case at hand, whether that is by way of submissions, an expert’s statement of tikanga, or for a court appointed pūkenga (expert). ²³ In concluding its discussion of tikanga, the Court noted that the trial court will need to “grapple”²⁴ with the notion that, in addition to bringing a proceeding as an individual who has suffered loss, Mr Smith brought proceedings as kaitiaki acting on behalf of his whenua, wai and moana (land, river and ocean) — all of which, in their own right are distinct entities.

Beyond reference to its previously commended case and context-specific analytical approach, as detailed in Ellis (continuance) ²⁵ the Supreme Court did not provide additional guidance to parties in proceedings where tikanga Māori may be relevant.

Conclusion

The Supreme Court’s decision continues to leave the question open as to the extent that the common law might be altered to account for tikanga, affirming at least that this area of law remains in a state of active consideration and development.

It can be hoped that, with the path cleared for Mr Smith’s claims to proceed to trial, judicial decisions at first instance and, in all likelihood, on appeal will bring further clarity to litigants engaged in this developing area of law.