Smith v. Fonterra and the Possible Redefinition of Environmental Liability in Canada
Arthur Zimmerman
As climate change litigation increasingly gains traction worldwide, international cases like New Zealand’s Smith v. Fonterra challenge established legal frameworks and push the boundaries of tort law. If applied to the Canadian context, these developments could transform environmental liability, reshaping how courts address corporate responsibility and climate harm.
Getty Images: Koodda
In early 2020, Michael Smith, through his role as climate change spokesperson of the National Iwi Chairs’ Forum and member of the Ngāpuhi and Ngāti Kahu tribes of New Zealand, brought a statement of claim against the country’s seven largest Greenhouse Gas (GHG) emitters. His lawsuit, which included Fonterra Co-operative Group Ltd as co-defendant, alleged public nuisance, negligence and a novel tort of climate system damage. [1] Smith alleged that each defendant, through their commercial activities, contributed and will continue to contribute to “dangerous anthropogenic interference with the climate system and to the adverse effects of climate change.” [2]
In response, all seven defendants filed applications seeking to strike out proceedings. The trial court struck out two of the three claims but allowed the third novel tort to proceed to trial. The Court of Appeal subsequently reversed that decision, striking out all three. [3] Almost four years after the initial suit was filed, in February 2024, the New Zealand Supreme Court (NZSC) unanimously reversed the lower court’s decision. They ruled that the claimant had reasonable cause of action for all three claims and allowed the case to proceed to trial. [4]
Although this decision by the NZSC doesn’t guarantee success at trial, it has the potential to become the “first full climate tort claim in a common law jurisdiction,”[5] highlighting a recent trend which suggests “courts are becoming increasingly willing to seriously engage with such cases.” [6]
These recent and potential future developments could have serious ramifications for Canadian climate change litigation.
Current Canadian Context
Currently, climate change litigation in Canada largely centers around claims under the Canadian Charter of Rights and Freedoms. [7] Because the Charter guarantees justiciable and clearly defined legal rights, climate claims have a more direct legal foundation when pursued through this framework. [8] Cases, such as Environnement Jeunesse v Attorney General of Canada, [9] have challenged government inaction in the face of climate change, claiming they violate citizens’ rights to “life, liberty, and security of the person.”[10] Others, including Mathur v Ontario, [11] base their claims on s. 15 rights. [12] Although the constitutional route may prove more direct, it primarily holds government actors accountable rather than corporations. Tort law, on the other hand, allows plaintiffs to sue corporations directly, creating an avenue for corporate responsibility for climate harm. This being said, claims in tort are much less common. Even rarer are those against corporations. Of the 226 previous and ongoing climate change litigation cases outside the United States against corporations, only four are based in Canada. [13] Of those four, none concern GHG emissions. [14]
One of the main obstacles facing climate change litigation in Canada is the court’s reluctance to rule on such issues. Many cases have been dismissed over the years because courts argue that the issues they touch on veer into the realm of public policy and are best left to be dealt with by the legislature. [15] In Lho’imggin et al. v. Her Majesty the Queen, the Federal Court dismissed the claim brought by the plaintiffs, an indigenous group, arguing that “climate change is an inherently political issue left to the executive and legislative branches of government.”[16] Similarly, in La Rose v. Canada, the same court ruled that climate change “concern[s] broad policy decisions that fall within the purview of the legislative and executive branches, not the judiciary.” [17] This phenomenon is not unique to Canada, however. Courts in Germany, the United States, Belgium, and Chile, among others, have also ruled similarly. [18] The judiciary in many countries is reticent to engage with suits that potentially problematize the concept of the separation of powers.[19]
Applicability in the Canadian Context
In Smith, the New Zealand Supreme Court dismissed the Court of Appeal’s argument that “climate change simply cannot be appropriately or adequately addressed by common law tort claims.” [20] It also rejected the claim that imposing common law liability would inappropriately undermine the authority of parliament and contradict a “comprehensive legislative framework.” [21] These findings, if transposed in the Canadian context, would remove some of the aforementioned obstacles and would permit more cases to, at least, make it to court.
In addition to its precedential value for public nuisance, the Smith decision also raised the possibility of introducing a novel tort for “climate system damage.” [22] This tort would involve a duty “cognisable at law, to cease materially contributing to: damage to the climate system; dangerous anthropogenic interference with the climate system; and the adverse effects of climate change.”[23] Due to its unprecedented nature and its present lack of recognition in New Zealand itself, it is difficult to say whether Canadian courts would be willing to recognize such a tort. Nevertheless, one Canadian case left this possibility open. In British Columbia v. Canadian Forest Products Ltd., the provincial government sued Canfor for damages caused by a forest fire sparked by the company’s logging operations. The government sought compensation not only for timber loss but also for environmental damage as a stand-alone legal injury. Despite this second claim ultimately failing, the court opened the door, in the future, to the Crown suing private corporations for injunctions and damages “on account of public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts [emphasis added].” [24] Albeit the substantial differences between the cases, and while it cannot be asserted that Justice Binnie, writing for the majority of the Supreme Court of Canada over 20 years ago, anticipated the emergence of a new tort for climate system damage, his reasoning nonetheless left an opening that could now serve as a valuable foundation the future of climate change litigation in Canadian tort law.
The legal matrices of New Zealand and Canada differ significantly in various respects, with these distinctions being particularly evident in the realm of environmental litigation. For instance, in many cases, New Zealand’s Ressource Management Act 1991 (RMA), [25] which serves as a governing framework regulating “the environmental effects of human activity,” limits the scope of common law tort claims like a public nuisance. [26] With no singular Canadian statute mirroring the RMA, [27] it is difficult to tell how the patchwork of both federal and provincial statutes in Canada would be able to deal with, limiting or allowing, potential evolution in tort law.
Many question marks remain as, nearly a year after the historic New Zealand Supreme Court decision, no trial date has yet been set. This being said, and despite the uncertainty surrounding the Smith case, Canadian courts will soon assume an ever-growing role in global climate litigation. While Canada has historically relied on legislative and regulatory approaches to climate policy, this approach has repeatedly proven fruitless. [28] The judiciary will thus become an essential forum for addressing climate-related disputes, particularly as plaintiffs seek to enforce government commitments, hold corporations accountable, and expand tort law to address environmental harms. [29] By drawing on the approach taken by the New Zealand Supreme Court, they have the opportunity to establish a precedent that will shape the trajectory of Canadian climate law. As put beautifully by Sir Joe Williams and Sir Stephen Kós during their concluding remarks, the principles of tort “ought not to stand still in the face of massive environmental challenges attributable to human economic activity.” [30]
Arthur is a first-year Law student at McGill, interested in international law, politics and human rights. He previously completed a degree in Social Sciences at CEGEP Champlain St-Lawrence. Special thanks to Charlie Zhu for his help and advice while writing this blog.
[1] Smith v Fonterra Co-operative Group Ltd, [2020] NZHC 419.
[2] Ibid at para 8.
[3] Ibid at para 109; Smith v Fonterra Co-operative Group Ltd, [2021] NZCA 552 at paras 129—130 [Smith 2021].
[4] Smith v Fonterra Co-operative Group Ltd, [2024] NZSC 5 at para 190 [Smith 2024].
[5] Sabin Center for Climate Change Law, “Global Climate Change Litigation Database: Smith v Fonterra” (last visited 16 February 2025), online: <climatecasechart.com> [perma.cc/BGU5-EC97]; United Nations Environment Programme, Global Climate Litigation Report: 2020 Status Review (Nairobi: United Nations Environment Programme, 2020) (“no court has awarded a plaintiff damages for climate change harms suffered as a result of a defendant’s contribution to climate change” at 42).
[6] Joana Setzer & Catherine Higham, Global Trends in Climate Change Litigation: 2023 Snapshot (London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science, 2023) at p 33. See also United Nations Environment Programme, supra note 5.
[7] Ahmad Hassan, “Climate Change Litigation in Canada” in Robert C. Brears & Jade Lindley, ed, Palgrave Handbook of Environmental Policy and Law (London: Palgrave Macmillan, 2024) [forthcoming in 2025] at p 3; Lisa Benjamin & Sara L. Seck, “Mapping Human Rights-based Climate Litigation in Canada” (2021) 13:1 J Human Rights & Envt 178.
[8] Lorne Sossin, “Justiciability, Access to Justice and the Development of Justiciability, Access to Justice and the Development of Constitutional Law in Canada” (2017) 45:4 Federal L Rev 707.
[9] Environnement Jeunesse v Attorney General of Canada, 2021 QCCA 1871.
[10] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11[Charter].
[11] Mathur v Ontario, 2023 ONSC 2316 [Mathur].
[12] Charter, supra note 9, s 15.
[13] Sabin Center for Climate Change Law, “Non-U.S. Climate Change Litigation: Suits Against Corporations” (last visited 17 February 2025), online: <climatecasechart.com> [perma.cc/D4JU-24CX].
[14] Ibid.
[15] Hassan, supra note 7 at 3—4.
[16] Lho’imggin et al. v. Her Majesty the Queen, 2020 FC 1059; United Nations Environment Programme, Global Climate Litigation Report: 2023 Status Review (Nairobi: United Nations Environment Programme, 2020) at 68.
[17] La Rose v. Canada, 2020 FC 1008.
[18] See Administrative Court of Berlin, 31 October 2019, Family Farmers and Greenpeace Germany v Germany, 00271/17/R/SP (Germany). See also American Electric Power Co., Inc. v. Connecticut, 564 US 410 (2011).
[19] Ibid; United Nations Environment Programme, supra note 5 at 37—40.
[20] Smith 2024, supra note 4 at para 154, citing Smith 2021, supra note 3 at para 16.
[21] Ibid.
[22] Ibid at para 4.
[23] Ibid.
[24] British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38 at para 81 [emphasis added].
[25] Ressource Management Act 1991 (NZ), 1991/69 (NZ).
[26] Smith 2024, supra note 4 at para 95.
[27] Instead, Canada regulates environmental matters through both federal and provincial laws. See Canadian Environmental Protection Act, SC 1999, c 33 and Environmental Protection Act, RSO 1990, c. E.19.
[28] See Larose v. The King, 1901 CanLII 72 (SCC); Mathur, supra note 11. See also Yahey v. British Columbia, 2021 BCSC 1287.
[29] United Nations Environmental Programme, supra note 5; Setzer & Higham, supra note 6 at 45.
[30] Smith 2024, supra note 4 at paras 172—173.