Climate Change, Māori and the Law

The Labour coalition-led parliament passed the Zero Carbon Act 2019.
Civil society engagement, including right-wing parties and the agricultural industry, led to a less ambitious biogenic methane reduction target.
A key issue is how the government and legal system will reduce carbon emissions (including methane) from the agricultural industry.
The Lawyers for Climate Action decision demonstrated civil society's role in holding the Climate Change Commission accountable.

Kaitiakitanga: A principle of tikanga Māori that incorporates guardianship, protection, and stewardship of the natural environment, emphasizing a reciprocal obligation to care for its physical and spiritual welfare.
Environmental harm under tikanga: Environmental harm is an intrinsic harm affecting kaitiaki (custodians) and mana whenua (indigenous rights holders), from a tikanga pov, a wrong (hara) in the form of environmental harm has a collective and individual dimension to those responsible and those facing the consequences.
Climate change as a threat multiplier: Heightened risks for hapori Māori due to geographical locations and industries they predominantly work in.
Disproportionate impact: Māori households face similar exposure to climate hazards but are at greater risk due to poverty, health disparities, and justice concerns.
Exposure to flooding: More than 8 out of 10 Māori households live in areas exposed to some level of flooding.
Coastal flooding: Approximately 1 in 7 Māori households live in coastal areas projected to flood due to rising sea levels.

Forced displacement: Many hapū were forced to occupy sub-optimal lands like floodplains, increasing vulnerability to flooding and coastal erosion.
Water supply issues: Rural Māori often lack secure drinking water, increasing susceptibility to drought.
Planning rule consequences: Restrictions may hinder hapū from implementing adaptation actions like relocating communities or building water storage.
Income disparities: Whānau Māori in isolated areas may struggle to afford protection against natural hazards and extreme weather events.

Background: Smith sued 7 companies for excessive greenhouse gas emissions, alleging damage to his whenua and moana.
Claims: Breaches of tort law, including nuisance, negligence, and a new climate tort.
Request/ sought: A declaration of liability and an injunction to reduce emissions to zero net emissions by 2030.

Argument: Company emissions would cause rising sea levels, damaging family land and resources.
Court Decision: Struck out; no special damage to Smith or his land, and causation not established.

Argument: Companies did not take reasonable care to prevent loss from climate change.
Court Decision: Struck out; no duty of care owed to Smith, relationship not close enough, and loss not sufficiently connected to company actions.

Argument: The Court should recognize a new tort that creates a duty on companies to stop contributing to climate change
Court Decision: Did not strike out this claim - need a full trial to find out

Appeal: The Supreme Court allowed the appeal in full, meaning Smith can argue all three causes of action in the High Court
Important points made by the Supreme Court:
- Climate change threatens human well-being and planetary health
- Strikeout applications require a measured approach
- The law of torts in the realm of climate change in New Zealand had not been displaced by statute.

Smith's loss is partially tikanga-based, requiring the trial court to engage with tikanga.
This engagement includes considering the potential effect of tikanga on any special damage requirement in public nuisance and whether tikanga-related harm is a recognizable form of loss.

Key question: What does the Smith v Fonterra litigation tell us about New Zealand's legal system's ability to adequately respond to climate change?

Role of the Tribunal: A commission of inquiry established through the Treaty of Waitangi Act 1975 that can inquire into claims, make recommendations, and examine proposed legislation.
Claims: Māori can bring claims likely to be prejudicially affected by Crown acts, regulations, policies, or practices.

Claims include:
- Inadequacy of the Emissions Trading Scheme and Emissions Reduction Plan.
- Failure to consult with Māori over climate change policies.
- Failure to take adequate steps to sufficiently reduce GHG emissions.
- Detrimental impact of Crown's forestry schemes on Māori communities.

Climate change is an existential threat.
Māori have a unique relationship with te taiao.
The Tribunal can advise on Treaty principles in the context of climate change.
Priority is granted for a kaupapa inquiry into climate change policy, focusing on physical, spiritual, and socioeconomic impacts on Māori and the Crown’s response.

Climate Change Priority Inquiry (WAI 3325) currently underway.
The government announced an independent review of the Waitangi Tribunal to refocus its scope and purpose.

Key question: What does the climate change claim before the Tribunal tell us about New Zealand's legal system's ability to adequately respond to climate change?

Understand the adverse effects of climate change through a tikanga Māori lens.
Māori face heightened risks due to colonisation, geographic location, and resulting risks of poverty, health disparities, and justice concerns.
The Smith v Fonterra litigation shows Māori civil society engaging with the courts to hold corporations accountable using tikanga Māori-based arguments.
Māori civil society has turned to the Waitangi Tribunal to argue Crown's Treaty breaches regarding climate change laws and policies.