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Zum Symposium

Indigenous Climate Litigation in Anglophone Settler-Colonial States

Context, Cases and Caution

25.03.2022

The “Global South” is a concept constructed by histories of colonialism., reflecting a  binary divide between empires and colonies. Current and former colonies of the Global South continue to bear disproportionate scars of extractivism: not only the physical pockmarks of mines and wells, but also historic and ongoing exploitation of labor, globalization of culture, and outflow of capital. Both colonialism and carbon capitalism are modes of extracting wealth from vulnerable communities. Māori activist Indian Logan-Riley, speaking to delegates at COP26 in Glasgow, describes climate change as the “final outcome of the colonial project”. 

Colonialism is not only a phenomenon experienced by the Global South. A particular brand of colonialism, settler colonialism, brought with it human beings as well as systems of extraction. Many of these settler-colonial states today form part of what is perceived as the “Global North”. As Māori scholar Moana Jackson points out, the distinction between settler- and other forms of colonialism has been reified in international law through concepts such as the “blue water doctrine”, relieving settler-colonial states of their obligation to decolonize. 

Nevertheless, Indigenous peoples in the settler-colonial states of the Global North continue to experience many of the same processes of colonization as those situated in the Global South. This includes the experience of climate change, which the Potawatomi scholar Kyle Whyte has (like Logan-Riley) identified as a form of “intensified colonialism”: “an intensified repetition of anthropogenic environmental change inflicted on Indigenous peoples via colonial practices that facilitated capitalist industrial expansion”. Displacement, loss of sovereignty, and environmental degradation continue to render countries of the Global South – as well as Indigenous peoples of settler-colonial states – far more vulnerable to the effects of climate change, despite being responsible for a small share of historic greenhouse gas emissions.

The legacy of colonialism suggests a shared affinity between climate litigation in the Global South, and climate litigation brought by Indigenous peoples in the settler-colonial states of the Global North. This blog post focuses on claims brought by Indigenous peoples in the Anglophone settler-colonial states of Australia, Canada, the United States and Aotearoa/New Zealand. I begin by setting out the disproportionate impact of climate change experienced by Indigenous peoples, as well as Indigenous movements of resistance and adaptation. In doing so, I draw on claims brought by various Indigenous groups and individuals in the course of climate litigation. Framing climate litigation as part of this response, I then survey Indigenous climate litigation across the four jurisdictions. I end with some notes of caution regarding the essentializing and exploitation of Indigenous peoples by the climate litigation movement, cautions which may be applicable to litigation in the Global South. 

Indigenous Peoples and Climate Change

Vulnerability & Relationship to Land

Indigenous peoples across the Global North and Global South face particular vulnerabilities to climate change. Many Indigenous peoples live in areas at greater risk of becoming uninhabitable, such as islands and coastal areas, as well as fragile polar and forest ecosystems. Furthermore, many Indigenous cultural, spiritual, and economic practices depend on a stable relationship to land, often accompanied by legal systems based on care and stewardship. The risk to Indigenous peoples is far from accidental. As suggested by Whyte and Logan-Riley, it is in large part a result of colonization. The harmful effects of climate change have been produced by colonial powers, often drawing on resources extracted from lands once inhabited by Indigenous communities. And centuries of displacement, neglect, and oppression have left many Indigenous communities without the necessary power and infrastructure to adapt to the effects of climate change, further undermining Indigenous sovereignty. In spite of this fact, global empirical research continues to demonstrate that recognition of Indigenous rights and sovereignty offers many of the best outcomes in environmental protection.

Cases brought by Indigenous individuals and communities in the Global North offer a documented record of this vulnerability. In Pabai v Commonwealth of Australia, a case recently filed in the Federal Court of Australia, plaintiffs detail the vulnerability of Torres Strait Islander communities in the face of climate change, ranging from the loss of stable fisheries to sea level rises which are already damaging sacred sites and cemeteries. They observe that “shifts in lifestyles and loss of traditional knowledge”, as well as “heavy reliance on climate-sensitive primary industries and strong social connections to the natural environment” mean that “Indigenous peoples in Australia have higher than average exposure to climate change and face particular constraints to adaptation”. The effects of climate change also impair the observance of Ailan Kastom, “the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally, or of a particular community or group of Torres Strait Islanders”. Practices such as cultural ceremonies, connection to sacred sites, and marine hunting and fishing are all threatened by the failure of the Australian government to act on climate change. In the WAI2607 claim lodged in Aotearoa/New Zealand’s Waitangi Tribunal, claimants note that “the well-being of natural ecosystems if of paramount importance to Māori particularly given the fundamental role of defining Māori culture and values … Māori ethics, expressed through tikanga [customary law], recognize that cultural order comes from the natural environment and hence people have a responsibility to care for those systems”. The cites specific effects of climate change on natural ecosystems, agriculture and horticulture, fisheries, forestry, and coastal communities. The claimants note that “[t]he health and well-being of Māori people is dependent on the stability of social and cultural infrastructure which in turn relies on the sustainability and condition of natural resource systems”. 

Related effects of climate change have been recounted by Indigenous plaintiffs in the United States. In Native Village of Kivalina v. ExxonMobil Corp., one of the first ever instances of climate litigation, Indigenous plaintiffs record the dramatic realities of living through climate change in the Alaskan Arctic. Plaintiffs recount that “in recent years, the sea ice has formed later in the year, attached later than usual, broken up earlier than expected, and has been thinner and less extensive in nature. As a result, Kivalina has been heavily impacted by storm waves and surges that are destroying the land where it sits. Massive erosion and the possibility of future storms threaten buildings and critical infrastructure in the village with imminent devastation. If the village is not relocated, it may soon cease to exist”. An amicus brief in Aji P. v. Washington records that “[t]aken holistically, these harms – the acceleration of traditional lands and waters that have sustained the Tribes’ ancestors since time immemorial – strike at the heart of what it means to be a Tribal member. Parents fear their children will no longer be able to live in their ancestral homeland. Children face an uncertain future in which their individual choice to pursue the Tribal way of life is increasingly imperiled.” 

Indigenous Resistance

These injustices have provoked a forceful response from Indigenous peoples in both the Global North and Global South. Many Indigenous groups have incorporated resistance to climate change and other environmental challenges – the product of global elites and extractive industries – within a broader framework of resistance and decolonization, including campaigns for Indigenous sovereignty and return of land. 

Perhaps the best-known international manifestation of this phenomenon in relation to environmental issues more broadly is the longstanding action at Standing Rock, protesting the routing of the Dakota Access Pipeline close to the Standing Rock Indian Reservation. Demonstrations have been taking place against the pipeline since 2016 even in the face of brutal responses from law enforcement. The story of Standing Rock also highlights the growing transnational nature of Indigenous resistance to the drivers of climate change. Demonstrations have been supported politically and physically by Indigenous groups from around the world, including from the Global South, and have addressed not only the United States, but also the international community: appeals have been made to the UN Human Rights Council, the Inter-American Commission on Human Rights, and several UN Special Procedures. Movements for Indigenous sovereignty and land return cross the Global North-South divide. As Nick Estes, the founder of the Red Nation movement has observed, these actions cannot be separated from their broader context of colonialism and environmental exploitation.

The example of Standing Rock also illustrates the close connection between Indigenous political mobilization against the environmentally destructive impacts of ongoing colonization, and the use of litigation as a means of resistance. Legal action against the pipeline remains ongoing. While the Standing Rock litigation has focused primarily on the non-climate change dimensions of the pipeline (and instead focused on threats to water sovereignty), as the below discussion demonstrates, other groups have embraced litigation alongside direct action in the climate context.

Indigenous Climate Litigation in Aotearoa/New Zealand, Australia, Canada and the United States

In this context of vulnerability and resistance, many Indigenous plaintiffs and interveners have brought litigation to force states and private companies to cut greenhouse gas emissions or facilitate climate adaptation. Several types of Indigenous plaintiffs have brought these claims, ranging from individuals to community groups and nonprofit organizations, as well as sovereign entities such as tribes. In addition to the types of plaintiffs, defendants, and actions involved, the cases can be further categorized on the basis of the type of law applied. While some cases are brought under general legal frameworks (such as tortious public nuisance claims), others involve legal frameworks specifically intended to address Indigenous issues (such as treaty provisions or Indigenous rights protections). An increasingly common set of claims are brought under a hybrid of the two, with Indigenous legal provisions informing the application of general law. The cases below are drawn from an extensive search carried out on the Sabin Center Climate Litigation Databases.

Litigation brought under general legal frameworks

In many instances, Indigenous individuals, groups and sovereign entities have used general common law and statutory provisions to take action against governments and corporations. In these cases, plaintiffs’ Indigenous status does not offer any particular legal advantages per se. However, the particular situation of Indigenous communities may render them more vulnerable to climate change, and thus more likely to overcome procedural hurdles of standing and causation. The first such claim (and indeed, perhaps the first ever climate case) was the case of Native Village of Kivalina v. ExxonMobil Corp. As noted above, Kivalina is a small Alaskan village threatened by climate-change-induced coastal erosion. Estimates suggest it would cost up to US$400 million to relocate the village, well beyond the villagers’ own means. The village instead sued a number of high-emitting corporations to recover damages under a theory of public nuisance, among other tortious claims. Kivalina’s claim was ultimately unsuccessful, coinciding with an unrelated decision of the US Supreme Court which effectively barred public nuisance climate cases under US federal common law.

Tort law, including the tort of public nuisance, has also been employed in litigation against corporations in Aotearoa/New Zealand. In Smith v Fonterra, Michael Smith, the Climate Spokesperson for the Iwi Chairs Forum, brought claims in public nuisance, negligence, and a novel tort of interference with the climate system, against New Zealand’s seven largest greenhouse gas emitting firms. Smith’s interest in the case derived from his status as a representative of broader whanau (family) interests in a low-lying block of land that was threatened by climate change, and thus at risk of losing “various sites of customary, cultural, historical, nutritional and spiritual significance to him”. Smith’s claim partially survived a strike-out application at the trial court, before being wholly struck out by the New Zealand Court of Appeal.

In the United States, plaintiffs have also utilized general provisions of administrative law to challenge climate-harming government policies. Such actions were brought by a wide range of plaintiffs during the Trump administration, including by Indigenous groups. In Alatna Village Council v. Padgett, several federally-recognized sovereign Tribes challenged the federal Bureau of Land Management’s approval of an industrial road through remote parts of Alaska. The claim rested in part on the defendants’ failure to consider the climate impacts of the project in the environmental impact statement which preceded the project. Similarly, in Gwich’in Steering Committee v. Bernhardt an Indigenous nonprofit organization sued under several environmental statutes to challenge the approval of oil and gas leasing in the Arctic National Wildlife Refuge, arguing (among other matters) that the environmental impact statement failed to address climate mitigation measures. Both cases have been stayed since the Biden administration took office.

Hybrid claims

Smith and Kivalina illustrate many of the difficulties of using traditional tort law as a means of achieving climate justice. In addition to the unique federalism challenges faced in the United States, courts have been reluctant to accept that particular firms may be responsible for damages to particular individuals or communities, citing problems related to standing, causation, and general policy difficulties. To overcome these difficulties, several recent cases have involved Indigenous plaintiffs supplementing general tort, administrative law, or rights claims with specific obligations owed to Indigenous peoples.

This strategy was attempted by the plaintiff on appeal in Smith v. Fonterra. Smith argued that government obligations under the Treaty of Waitangi/Te Tiriti o Waitangi – the treaty signed in 1840 between many Māori rangatira (chiefs) and the British Crown – as well as the Māori customary law principle of kaitiakitanga (roughly, guardianship) augmented the Court’s consideration of all three causes of action. The Court rejected this argument, finding that the Treaty of Waitangi “underline[s] the need for shared action and a common approach that pays attention to distributional effects, not a piecemeal one”. By contrast, in Trans-Tasman Resources Ltd. v Taranaki-Whanganui Conservation Board, the Supreme Court of New Zealand accepted an argument that both the Treaty of Waitangi and tikanga Māori must be considered by administrative decisionmakers in interpreting environmental permitting requirements under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. The Court dismissed an appeal against a trial court order which quashed a permitting decision that would have allowed seabed mining in New Zealand’s exclusive economic zone.

Similarly, plaintiffs in Pabai v Commonwealth of Australia argue that Indigenous-specific obligations under the Torres Strait Treaty and Australian native title law augment a duty of care owed by the Australian government to the Indigenous inhabitants of the Torres Strait Islands. As noted above, these islands are at extreme risk of exposure to climate change. The plaintiffs consequently argue that the Australian government has negligently breached a duty of care owed to them and is effectively extinguishing rights guaranteed under Australia’s Native Title Act 1993. The case was recently filed and has yet to be heard. 

In North America, Indigenous plaintiffs have cited equality rights provisions in constitutional rights claims against governments for lack of climate action. These claims draw on legal frameworks which generally prohibit differential treatment but are not explicitly addressed to the rights of Indigenous peoples. For example, in Lho’imggin v. The Queen, two Indigenous leaders have argued that Canada’s failure to meet its international commitments to reduce greenhouse gas emissions amounts to a violation of Canada’s equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms, as well as the right to life, liberty and security (section 7) and an alleged implied duty to protect peace, order and good government (drawing on section 91 of the Constitution Act 1867). All arguments were rejected by a trial court and are under consideration by the Canadian Federal Court of Appeal. 

In at least two cases, Indigenous plaintiffs have joined claims brought by groups of children arguing that states’ climate mitigation failures violate those children’s rights. Plaintiffs in these cases have stressed that Indigenous children suffer a double violation of their equality rights, being disadvantaged both by age and by the particular climate vulnerability of Indigenous peoples.  In La Rose v. The Queen, plaintiffs’ complaint stresses the unique impacts on Indigenous children in Canada, ranging from loss of permafrost to impacts on hunting to loss of traditional knowledge and enjoyment of land. The brief maintains that harm “is exacerbated when these persons are Indigenous persons who rely on a Stable Climate System to meaningfully engage in traditional practices and cultural rights”. The case was dismissed by a federal trial court but is under appeal. In the United States case of Aji P. v. Washington, plaintiffs arguing a violation of rights guaranteed under the constitution of the state of Washington  include several Indigenous plaintiffs. The claim has been supported by a brief filed by three Native American sovereign entities, who argue that for Indigenous peoples, the “right to a livable climate” is “a building block of … community” (citing the US Supreme Court decision in the same-sex marriage case Obergefell v. Hodges) and “a prerequisite to the free exercise of specific, enumerated rights”, and thus meets the criteria for the recognition of unenumerated state constitutional rights. Nevertheless, the argument was rejected by the Washington Court of Appeals, which found that for the state as a whole, “the right to a healthful environment – for better or worse – has not been embedded in our societal values such that it is considered a protected interest”.

Litigation brought under Indigenous-specific legal frameworks

In Aotearoa/New Zealand and North America, the relationship between Indigenous peoples and colonial governments is marked by a history of treaties and broken promises. Nevertheless, in recent years Indigenous groups have begun to utilize these frameworks in order to challenge states’ failures to combat climate change. 

In 2016, claimants representing the Mataatua District Māori Council lodged a claim in the Waitangi Tribunal, a permanent commission of inquiry with the power to make recommendations concerning breaches of the Treaty of Waitangi. The claim alleges that the New Zealand government owes “obligations towards Māori in regards to climate change policy”, including “that New Zealand bears its fair share as a developed nation in reducing greenhouse gas emissions so as to keep global temperature rises below dangerous levels that will threaten Māori in the use of their land and resources”. The claimants specifically argue that the government’s emissions trading scheme fails to adequately protect Māori from the harmful effects of climate change. Five years after the claim was submitted, it is yet to be heard.

In Rosebud Sioux v. US Department of the Interior, two federally-recognized Native American tribes brought claims against the Trump administration’s Department of the Interior, challenging permits given to allow the development of the Keystone XL pipeline. In addition to administrative law arguments similar to those advanced in Alatna Village Council and Gwich’in Steering Committee (discussed above), the plaintiffs argued that the pipeline’s approval violated three promises to protect the tribes “against the commission of all depredations by the people of the United States.” The plaintiffs also argued that the administrative law failures amounted to “a de-facto violation” of treaty guarantees. The case was dismissed without prejudice by agreement of the parties following the Biden administration’s decision to revoke the challenged permits.

Assessment

The above survey of Indigenous litigation demonstrates that cases are proliferating, but that few have been successful. Only in Trans-Tasman Resources have Indigenous plaintiffs succeeded, and climate issues played only a peripheral role in the decision. But it should be noted that many of the cases have not yet played out through full appeals processes, and many of the United States cases were stayed (sometimes with the support of the plaintiffs) following the end of the Trump administration. 

Furthermore, the litigation strategies have diversified and become more complex. Following the failure of many traditional public nuisance claims, Indigenous plaintiffs have complemented private and administrative law challenges with specific claims relating to special obligations that governments owe to Indigenous peoples, particularly through equality rights, Indigenous custom, and treaty claims. These claims have significant potential to overcome many of the traditional barriers in climate litigation. A central challenge in climate litigation is to overcome hurdles of standing, causation and policy to demonstrate why (1) a particular government or corporation’s responsibility for greenhouse gas emissions should give rise to (2) a remedy in favor of harms experienced by a particular plaintiff. Courts are reticent to award remedies in the absence of particularized obligations. The use of preexisting equality or Indigenous rights provisions in a country’s legal framework can help Indigenous plaintiffs address this challenge, while the existence of treaty enforcement regimes may help to overcome procedural burdens associated with general tort litigation. The progression of hybrid and Indigenous-specific claims in these four countries should therefore be watched with interest and could become a model for further litigation across the world, including in the Global South where many Indigenous peoples have also been at the forefront of climate litigation, and also have preexisting treaty or constitutional rights.

Caution

Some caution must be applied, however, in extracting any “lessons” from the story of Indigenous climate litigation to date. 

First, Indigenous people and movements must not be essentialized as guardians of nature who are uninterested in economic development or exercising sovereignty over resources. Indigenous individuals and groups have a range of different interests, not all of which may align with those of broader environmental movements. Indeed, the history of environmentalism in the Global North is marked by legacies of racism, viewing Indigenous people as passive features of natural environments rather than active managers. Taking Indigenous sovereignty seriously means allowing space for Indigenous leadership in climate coalitions, and also accepting Indigenous demands for economic development. Indeed, the WAI2607 claim repeatedly stresses that climate change poses not only a cultural or spiritual threat to Māori, but also an economic threat, noting that “forestry is a mainstay of the Māori economy”, and that government policy which devalues domestic climate credits amounts to a breach of Treaty of Waitangi obligations. The promise of Indigenous climate litigation should not be allowed to permit the neocolonial mischaracterization of Indigenous peoples in the imagination of other environmental activists.

Relatedly, litigation brought by Indigenous peoples must not be exploited by broader climate action movements. International climate programs, such as the REDD deforestation program (and is successor REDD+ program), have long-been criticized for requiring Indigenous peoples to make sacrifices of natural capital so that governments of the Global North can meet climate commitments. Climate action is not a responsibility that can be farmed out to Indigenous peoples, obviating action by others. Conversely, broader climate movements must make room for Indigenous leadership and critique.

Finally, the promise of Indigenous climate litigation should not lead to the fetishization of courts (and law generally) as the solution to climate change. Courts have been deeply implicated in the colonial project, both as instruments of power in historic colonization processes, and as reifiers of modern systems of global capital which continue to allow for the exploitation of Indigenous communities in the Global North and South. At best, legal systems are tools which permit leverage and action as part of a broader strategy; any meaningful response to climate change requires actions well beyond the courtroom.

Autor/in
Sam Bookman

Sam Bookman is an SJD candidate at Harvard Law School. His research focuses on the way in which constitutional structures state responses to environmental challenges, including through climate litigation.

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