Mike Smith in Whangaroa, Northland. (Photo supplied)

Michael Smith, a Māori climate activist of more than 30 years, is taking seven of the country’s biggest polluters — including Fonterra, Genesis Energy and Z Energy — to court over their contributions to the climate crisis and the knock-on effects on Aotearoa and its people.

A recent Supreme Court ruling ensures the case will be heard despite an earlier bid to have it thrown out. Here, Mike talks to Siena Yates about taking on the fight, and the tikanga entangled in it.

 

This is a very black humour way to look at it but at an international climate event a couple of years ago, my partner Hinekaa and I were asked to speak about some of the cultural, or tikanga, responses to the climate crisis. Our answer was: “Well, if anybody comes into our village or homes and puts the future of our children and our families at risk — if what they’re doing will bring death into our communities — our tikanga response, where I’m from, is to kill them on the spot.”

That’s obviously the tikanga mai rānō, tikanga tuku iho, from ancient times, so of course we don’t do that now — although it is a tikanga that’s unfortunately still practised around the globe if you look at countries like America or Israel or Russia. However, our modified tikanga is to banish those people. To say: “Haere atu. You can come back once you’re not doing that anymore.”

In a way, that’s what we’re saying through the courts — that these companies’ dangerous practices are not acceptable, and they have to either modify or abandon those activities.

So, for example, for Fonterra that means no more burning coal to produce milk powder, and also supporting the reduction of the size of the national herd to allow our whenua, rivers and coastlines across Aotearoa to breathe again. And for the energy companies, that means investing in renewable energy options as a viable transition away from burning fossil fuels. These shifts can provide new models of operating for our future.

It’s time for companies to engage in more respectful communication with hapū and iwi as they start projects — that kind of collective ownership with communities is already working effectively in offshore wind overseas. It is the perfect time for taiao-centred energy production and distribution with our people engaged in co-management and co-ownership. We all know the entrenched extraction industries profit model that consolidates wealth and power to a few is in dire need of a poroporoaki.

If they don’t stop those activities, well then, they’re not fit for purpose, and they’ve got to be shut down. That’s the tikanga aspect, as I see it. We’re not seeking the death penalty, just modified behaviour — and if they can’t do that, then we don’t want to see them operating on our whenua.

There was a reference in the Supreme Court decision which acknowledged tikanga as the first law of Aotearoa. So based on that, we can now start to reference our tikanga as a legitimate part of the legal process in this country. That’s still a developing area, so there’s a chance this case could create new platforms for the evolving recognition of customary law, which could be very exciting.

I think that’s proof that this is the perfect time to be undertaking this case. As with Indigenous, gay or women’s rights, at different points in history those movements wouldn’t have gained much traction. But as society’s thinking has changed as we’ve matured as communities, we’ve had landmark court rulings on those sorts of issues, and we’ve progressed on that basis. And I think the climate is no different. I think we are now in an era of increasing climate awareness, and all our systems within society, not just the courts, must reflect that new reality.

Mike Smith in 2018 at COP24 in Poland. (Photo supplied)

I’ve been doing this work since 1992. That’s when I attended the first of the Global Earth Summits on greenhouse gas emissions, in Rio de Janeiro. Since then, there’s been glacial progress towards lowering emissions. With every day, month and year that goes by, it’s becoming more and more critical that we see really strong action, because if we don’t, our future is pretty clear. There’s a scientific consensus that we’re going off the climate cliff and it’s going to collapse the global economy and millions of people are going to die. We’re just not making the progress we should be, given the scale and speed at which this crisis is rolling out.

That was the driver to try and take this issue directly to the companies. Our Iwi Chairs climate group has been petitioning the government over the years to take firmer action, but to no avail. We had some success in pushing out the fossil fuel industry’s oil mining ambitions with the activism to protect our rohe moana in 2010-2018. That was a concerted campaign where we thought: “If we can’t get the government to make the moves that they need to make, then we’ll just need to target the companies.”

That strategy ultimately caused the government to issue a moratorium on any new oil exploration licences being issued to that sector. So what that tells us is that, while we can expect and demand that the government do things, quite often they won’t. So we have to take other avenues — like taking on the companies themselves, directly.

So that’s what we’re doing. It may look like it’s just me doing it, because my name is the one on the lawsuit, but that’s just because there’s a certain amount of risk associated with taking a case like this — in terms of the costs and damages if you’re unsuccessful. So we went for maximum impact with minimum casualties. The way I see it, we’re all already on the line anyway. So, I think of it as standing up to the line, and that’s what all of us in our Iwi Chairs group have been doing consistently for decades now.

If we’re successful this time, it means the courts will make binding legal remedies that have compliance and enforceability aspects to them and that’s what will shift these companies. They’ve got advisers, and they already know what impact they’re having and what the risks are to people. You’d think responsible organisations would be taking urgent action to remedy their impacts and their culpability, but they’re not. So they have to be compelled to do it.

We’re really excited that the Supreme Court has ruled for this case to get its day in court. That means we can now start to apply for all the evidence that the defendants are going to use, and we can start organising our own evidence from climate experts within Aotearoa and potentially overseas too.

We have a really good legal team led by Davey Salmon KC and David Bullock with strong support from Te Hunga Roia Māori, Lawyers for Climate Action and the Human Rights Commission — who all offered their services pro bono which has saved not just me, but everybody involved, a huge amount of costs.

So I’m very grateful, especially because I’ve seen a lot of accusations on social media platforms that we’re being funded by left-wing groups and all that, but we’re not being funded at all. Even when people have asked how they can give koha towards the case, I’ve thanked them but said: “We’re actually okay.”

People have also accused us of all being on the dole and doing this just to try to get money, but we aren’t even suing for monetary damages. We want the win because it will benefit everybody. Not just here in Aotearoa but, because we contribute to the overall global emissions, if we can do our bit, it will flow on to the whole world.

I obviously can’t predict what will happen — that’s up to the judges. But I’m really confident in the science, the expert witnesses, and the evidence that we can bring to bear. There are satellites that can fly over the polar regions and determine, within a millimetre or two, the thickness of the ice and how much is melting at any particular moment. There are weather-modelling computers that can generate really sophisticated information — and when you think about the technological ability to understand weather and climate and atmosphere, it’s huge. So I’ve got real confidence in all that, and we will present that as evidence in the trial.

The case specifically references damages to our whenua, a place called Mahinepua on the east coast in the Far North. It’s a place that’s representative of us all. We all have papakāinga, whenua, urupā. Our tūpuna often built our villages close to the sea and kaimoana, and in valleys where the fresh water ran down through the middle, so that you had a fertile floodplain which was good for growing kai. In the Whangaroa region, for example, we have about 14 coastal communities that are all vulnerable. And it’s no different for our neighbours either side of us, or indeed right around the motu.

But rather than make a blanket claim, it’s good to be able to focus on specific instances and show that, if it’s happening here to this community in this kind of way, then you can apply that rule right around the country. On that basis, we argued that the corporate defendants are committing public nuisance, negligence, and something described as a climate system damage tort.

That’s a new form of civil wrong we’re proposing, which would recognise there is a legal duty to stop contributing to the climate crisis, and the Supreme Court has agreed that we have the right to argue for that. So this case has the potential to open up new avenues of law, and I think that’s why it’s got so much interest from around the world.

We don’t have a date for the hearing yet, but we’re thinking that it could be next year, or the beginning of 2026. It’s going to take a while to pull everything together and be ready to go to trial.

Plus, I’d imagine the defendants — the big companies and their legal teams — will be doing everything that they can to delay and to disrupt the trial going ahead. That’s a typical tactic. They’ve obviously got deeper pockets than us so they might just try to knock us out that way. I’m 67, so I’m not going to be around forever, and they could just drag it out until I head off to the happy hunting grounds of Hawaiki. But we’ve got plans to deal with those types of things as well.

My main concern is that we simply don’t have much time. We need to be dealing with climate change at speed and scale. That’s what the Supreme Court judgment actually said — that there’s a window of opportunity to address these things and once we miss it, it all becomes a little bit moot. It’d just be a case of could’ve, would’ve, should’ve — but didn’t.

When I think back to even just two years ago, climate change was a totally abstract concept, and it was seen as so far away. People were talking about seeing impacts by the end of the century but now it’s upon us.

Last year went down as the hottest year ever in recorded history, and it’s supposed to be the same this year and probably next year too. These kinds of records will continue to break as heat rises, and that’s something we can physically feel when we step out into the sun each day. Plus, that heat is then generating events like Cyclone Gabrielle and the Port Hills fire, so all of these things are now present and observable to a point where people are starting to wake up to what we’re dealing with.

Fundamentally, it’s the future of humanity that’s at stake. We could talk about economies and geographical features being at risk, and the conversation around the risks to the oceans and the implications of that, which is just horrendous. But those things can be abstract to a lot of people.

The bottom line is that it’s about our tamariki and our mokopuna and, in te ao Māori especially, everything we do is for the security and the wellbeing of our whānau. That is the sacred responsibility that we have — and we’ll do whatever we can to make sure we uphold it.

Mike Smith as part of the Te Moananui o Toi trust at Rehua Marae, Aotea Great Barrier Island in 2020. (Photo supplied)

Michael Smith (Ngāpuhi, Ngāti Kahu) is a climate change activist, a father, grandfather, and an uncle to thousands as a kaumātua from Te Tai Tokerau. With over 30 years’ experience in climate education, and strategic organisation and action in Aotearoa and internationally, Mike co-chairs the Pou Take Āhuarangi, the climate directorate of the National Iwi Chairs Forum, which provides strategic leadership on climate priorities for te aō Māori.

© E-Tangata, 2024

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