Indigenous law in climate-change litigation - reclamation of the law as a tool for indigenous legal assertions
Dr Adrienne Paul, University of Canterbury, Metiria Stanton Turei, University of Otago
Abstract
While the law continues to be a technology of dispossession for Indigenous Peoples, Indigenous communities are fighting back, using indigenous law to bring new challenges to injustices.
In Michael Smith v Fonterra Cooperative Group Limited [2024] NZSC 5 the Supreme Court held that Mike Smith is entitled to pursue his tikanga Māori tortious claims against seven of New Zealand’s major greenhouse gas emitters. Smith claims that as a result of the defendants failure to reduce their emissions, despite their ability to make reductions, they cause and will cause harm to his, his whānau’s and his descendants whakapapa (genealogical connection) and whanaungatanga (exercise of responsibilities) to their land, waters, food sources and atmosphere.
He is making a tikanga Māori legal argument that tikanga Māori imposes obligations of kaitiakitanga (guardianship) on him and his people to make the claim. The defendants greenhouse gas emissions breach tikanga and causes harm that demands mitigation. He relies on the tort of public nuisance, seeking a declaration that the defendants have caused or contributed to a public nuisance through their emitting activities and an injunction on the defendants’ activities to reduce their emissions.
This is a significant new development in tikanga Māori law, climate change law and tort law in Aotearoa New Zealand. Our presentation will consider how tikanga Māori legal principles are expressed, debated and developed within tikanga Māori claims concerning climate change. We will describe how tikanga Māori is being used for innovations in tort law on kaitiakitanga matters as well as in the development of the common law in other areas. This presentation will assist with informing theory and application of bijuralism, bicultural and bilingual expressions in Aotearoa New Zealand courts and the legal education system, which will impact how legal academics and law schools will ensure that law students have the knowledge and skills they need to support innovative Indigenous legal challenges.
This research is funded by a grant from Ngā Pae o te Maramatanga, New Zealand's Māori Centre of Research Excellence.
Biographies
Dr Adrienne Paul is a senior lecturer at the Faculty of Law, University of Canterbury specialiing in Land law, Māori land law, Resource management law, New Zealand Maritime law, and Space law. She is a current practising lawyer and brings a wealth of legal experience into her teaching.
Metiria Stanton Turei is a Pūkenga Matua at the Faculty of Law, University of Otago, specialing in tikanga Māori law, Māori jurisprudence, Indigenous legal theory, isual jurisprudence and visual art. She is a lawyer and was a member of the New Zealand Parliament for 15 years and Co-leader of the Green Party for 9 years.