{"id":16966,"date":"2022-03-25T10:00:49","date_gmt":"2022-03-25T09:00:49","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=16966"},"modified":"2022-03-25T12:23:43","modified_gmt":"2022-03-25T11:23:43","slug":"indigenous-climate-litigation-in-anglophone-settler-colonial-states-context-cases-and-caution","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/indigenous-climate-litigation-in-anglophone-settler-colonial-states-context-cases-and-caution\/","title":{"rendered":"Indigenous Climate Litigation in Anglophone Settler-Colonial States"},"content":{"rendered":"<p><span style=\"font-weight: 400\">The \u201cGlobal South\u201d is a concept constructed by histories of colonialism., reflecting a\u00a0 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. M\u0101ori activist Indian Logan-Riley, speaking to delegates at COP26 in Glasgow, <\/span><a href=\"blank\"><span style=\"font-weight: 400\">describes<\/span><\/a><span style=\"font-weight: 400\"> climate change as the \u201cfinal outcome of the colonial project\u201d.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">Colonialism is not only a phenomenon experienced by the Global South. A particular brand of colonialism, <\/span><i><span style=\"font-weight: 400\">settler <\/span><\/i><span style=\"font-weight: 400\">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 \u201cGlobal North\u201d. As M\u0101ori scholar Moana Jackson<\/span><a href=\"blank\"><span style=\"font-weight: 400\"> points out,<\/span><\/a><span style=\"font-weight: 400\"> the distinction between settler- and other forms of colonialism has been reified in international law through concepts such as the \u201cblue water doctrine\u201d, relieving settler-colonial states of their obligation to decolonize.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">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) <\/span><a href=\"blank\"><span style=\"font-weight: 400\">identified<\/span><\/a><span style=\"font-weight: 400\"> as a form of \u201cintensified colonialism\u201d: \u201can intensified repetition of anthropogenic environmental change inflicted on Indigenous peoples via colonial practices that facilitated capitalist industrial expansion\u201d. Displacement, loss of sovereignty, and environmental degradation continue to render countries of the Global South \u2013 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">as well as Indigenous peoples<\/span><\/a><span style=\"font-weight: 400\"> of settler-colonial states \u2013 far more vulnerable to the effects of climate change, despite being responsible for a small share of historic greenhouse gas emissions.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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.\u00a0<\/span><\/p>\n<p><strong>Indigenous Peoples and Climate Change<\/strong><\/p>\n<p><em>Vulnerability &amp; Relationship to Land<\/em><\/p>\n<p><span style=\"font-weight: 400\">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, <\/span><a href=\"blank\"><span style=\"font-weight: 400\">global empirical research<\/span><\/a><span style=\"font-weight: 400\"> continues to demonstrate that recognition of Indigenous rights and sovereignty offers many of the best outcomes in environmental protection.<\/span><\/p>\n<p><span style=\"font-weight: 400\">Cases brought by Indigenous individuals and communities in the Global North offer a documented record of this vulnerability. In <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Pabai v Commonwealth of Australia<\/span><\/i><\/a><span style=\"font-weight: 400\">, 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 \u201cshifts in lifestyles and loss of traditional knowledge\u201d, as well as \u201cheavy reliance on climate-sensitive primary industries and strong social connections to the natural environment\u201d mean that \u201cIndigenous peoples in Australia have higher than average exposure to climate change and face particular constraints to adaptation\u201d. The effects of climate change also impair the observance of <\/span><i><span style=\"font-weight: 400\">Ailan Kastom<\/span><\/i><span style=\"font-weight: 400\">, \u201cthe body of customs, traditions, observances and beliefs of Torres Strait Islanders generally, or of a particular community or group of Torres Strait Islanders\u201d. 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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">WAI2607 claim<\/span><\/a><span style=\"font-weight: 400\"> lodged in Aotearoa\/New Zealand\u2019s Waitangi Tribunal, claimants note that \u201cthe well-being of natural ecosystems if of paramount importance to M\u0101ori particularly given the fundamental role of defining M\u0101ori culture and values \u2026 M\u0101ori 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\u201d. The cites specific effects of climate change on natural ecosystems, agriculture and horticulture, fisheries, forestry, and coastal communities. The claimants note that \u201c[t]he health and well-being of M\u0101ori people is dependent on the stability of social and cultural infrastructure which in turn relies on the sustainability and condition of natural resource systems\u201d.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">Related effects of climate change have been recounted by Indigenous plaintiffs in the United States. In <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Native Village of Kivalina v. ExxonMobil Corp.<\/span><\/i><\/a><span style=\"font-weight: 400\">, 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 \u201cin 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\u201d. An amicus brief in <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Aji P. v. Washington<\/span><\/i><\/a> <span style=\"font-weight: 400\">records that \u201c[t]aken holistically, these harms \u2013 the acceleration of traditional lands and waters that have sustained the Tribes\u2019 ancestors since time immemorial \u2013 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.\u201d<\/span><i><span style=\"font-weight: 400\">\u00a0<\/span><\/i><\/p>\n<p><em>Indigenous Resistance<\/em><\/p>\n<p><span style=\"font-weight: 400\">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 \u2013 the product of global elites and extractive industries \u2013 within a broader framework of resistance and decolonization, including campaigns for Indigenous sovereignty and return of land.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">UN Human Rights Council<\/span><\/a><span style=\"font-weight: 400\">, <\/span><a href=\"blank\"><span style=\"font-weight: 400\">the Inter-American Commission on Human Rights<\/span><\/a><span style=\"font-weight: 400\">, and several <\/span><a href=\"blank\"><span style=\"font-weight: 400\">UN Special Procedures<\/span><\/a><span style=\"font-weight: 400\">. Movements for Indigenous sovereignty and land return cross the Global North-South divide. As Nick Estes, the founder of the <\/span><a href=\"blank\"><span style=\"font-weight: 400\">Red Nation movement<\/span><\/a> <a href=\"blank\"><span style=\"font-weight: 400\">has observed<\/span><\/a><span style=\"font-weight: 400\">, these actions cannot be separated from their broader context of colonialism and environmental exploitation.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">ongoing<\/span><\/a><span style=\"font-weight: 400\">. 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.<\/span><\/p>\n<p><strong>Indigenous Climate Litigation in Aotearoa\/New Zealand, Australia, Canada and the United States<\/strong><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">Sabin Center Climate Litigation Databases<\/span><\/a><span style=\"font-weight: 400\">.<\/span><\/p>\n<p><em>Litigation brought under general legal frameworks<\/em><\/p>\n<p><span style=\"font-weight: 400\">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\u2019 Indigenous status does not offer any particular legal advantages <\/span><i><span style=\"font-weight: 400\">per se<\/span><\/i><span style=\"font-weight: 400\">. 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 <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Native Village of Kivalina v. ExxonMobil Corp.<\/span><\/i><\/a> <span style=\"font-weight: 400\">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\u2019 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\u2019s claim was ultimately unsuccessful, coinciding with an <\/span><a href=\"blank\"><span style=\"font-weight: 400\">unrelated decision of the US Supreme Court<\/span><\/a><span style=\"font-weight: 400\"> which effectively barred public nuisance climate cases under US federal common law.<\/span><\/p>\n<p><span style=\"font-weight: 400\">Tort law, including the tort of public nuisance, has also been employed in litigation against corporations in Aotearoa\/New Zealand. In <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Smith v Fonterra<\/span><\/i><\/a><span style=\"font-weight: 400\">, 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\u2019s seven largest greenhouse gas emitting firms. Smith\u2019s 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 \u201cvarious sites of customary, cultural, historical, nutritional and spiritual significance to him\u201d. Smith\u2019s claim partially survived a strike-out application at the trial court, before being wholly <\/span><a href=\"blank\"><span style=\"font-weight: 400\">struck out<\/span><\/a><span style=\"font-weight: 400\"> by the New Zealand Court of Appeal.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Alatna Village Council v. Padgett<\/span><\/i><\/a><span style=\"font-weight: 400\">, several federally-recognized sovereign Tribes challenged the federal Bureau of Land Management\u2019s approval of an industrial road through remote parts of Alaska. The claim rested in part on the defendants\u2019 failure to consider the climate impacts of the project in the environmental impact statement which preceded the project. Similarly, in <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Gwich\u2019in Steering Committee v. Bernhardt<\/span><\/i><\/a><span style=\"font-weight: 400\"> 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.<\/span><\/p>\n<p><em>Hybrid claims<\/em><\/p>\n<p><i><span style=\"font-weight: 400\">Smith <\/span><\/i><span style=\"font-weight: 400\">and <\/span><i><span style=\"font-weight: 400\">Kivalina<\/span><\/i><span style=\"font-weight: 400\"> 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.<\/span><\/p>\n<p><span style=\"font-weight: 400\">This strategy was attempted by the plaintiff on appeal in <\/span><i><span style=\"font-weight: 400\">Smith v. Fonterra.<\/span><\/i><span style=\"font-weight: 400\"> Smith argued that government obligations under the Treaty of Waitangi\/Te Tiriti o Waitangi \u2013 the treaty signed in 1840 between many M\u0101ori rangatira (chiefs) and the British Crown \u2013 as well as the M\u0101ori customary law principle of kaitiakitanga (roughly, guardianship) augmented the Court\u2019s consideration of all three causes of action. The Court rejected this argument, finding that the Treaty of Waitangi \u201cunderline[s] the need for shared action and a common approach that pays attention to distributional effects, not a piecemeal one\u201d. By contrast, in <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Trans-Tasman Resources Ltd. v Taranaki-Whanganui Conservation Board<\/span><\/i><\/a><span style=\"font-weight: 400\">, the Supreme Court of New Zealand accepted an argument that both the Treaty of Waitangi and tikanga M\u0101ori must be considered by administrative decisionmakers in interpreting environmental permitting requirements under the <\/span><a href=\"blank\"><span style=\"font-weight: 400\">Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012<\/span><\/a><span style=\"font-weight: 400\">. The Court dismissed an appeal against a trial court order which quashed a permitting decision that would have allowed seabed mining in New Zealand\u2019s exclusive economic zone.<\/span><\/p>\n<p><span style=\"font-weight: 400\">Similarly, plaintiffs in <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Pabai v Commonwealth of Australia<\/span><\/i><\/a><span style=\"font-weight: 400\"> 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\u2019s Native Title Act 1993. The case was recently filed and has yet to be heard.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Lho\u2019imggin v. The Queen<\/span><\/i><\/a><span style=\"font-weight: 400\">, two Indigenous leaders have argued that Canada\u2019s failure to meet its international commitments to reduce greenhouse gas emissions amounts to a violation of Canada\u2019s equality guarantee in section 15 of the <\/span><a href=\"blank\"><span style=\"font-weight: 400\">Canadian Charter of Rights and Freedoms<\/span><\/a><span style=\"font-weight: 400\">, 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.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">In at least two cases, Indigenous plaintiffs have joined claims brought by groups of children arguing that states\u2019 climate mitigation failures violate those children\u2019s 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.\u00a0 In <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">La Rose v. The Queen<\/span><\/i><\/a><span style=\"font-weight: 400\">, plaintiffs\u2019 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 \u201cis exacerbated when these persons are Indigenous persons who rely on a Stable Climate System to meaningfully engage in traditional practices and cultural rights\u201d. The case was dismissed by a federal trial court but is under appeal. In the United States case of <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Aji P. v. Washington<\/span><\/i><\/a><span style=\"font-weight: 400\">, plaintiffs arguing a violation of rights guaranteed under the constitution of the state of Washington\u00a0 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 \u201cright to a livable climate\u201d is \u201ca building block of \u2026 community\u201d (citing the US Supreme Court decision in the same-sex marriage case <\/span><i><span style=\"font-weight: 400\">Obergefell v. Hodges<\/span><\/i><span style=\"font-weight: 400\">) and \u201ca prerequisite to the free exercise of specific, enumerated rights\u201d, and thus meets the criteria for the recognition of unenumerated state constitutional rights. Nevertheless, the argument was rejected by the <\/span><a href=\"blank\"><span style=\"font-weight: 400\">Washington Court of Appeals<\/span><\/a><span style=\"font-weight: 400\">, which found that for the state as a whole, \u201cthe right to a healthful environment \u2013 for better or worse \u2013 has not been embedded in our societal values such that it is considered a protected interest\u201d.<\/span><\/p>\n<p><em>Litigation brought under Indigenous-specific legal frameworks<\/em><\/p>\n<p><span style=\"font-weight: 400\">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\u2019 failures to combat climate change.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">In 2016, claimants representing the Mataatua District M\u0101ori Council lodged <\/span><a href=\"blank\"><span style=\"font-weight: 400\">a claim in the Waitangi Tribunal<\/span><\/a><span style=\"font-weight: 400\">, 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 \u201cobligations towards M\u0101ori in regards to climate change policy\u201d, including \u201cthat 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 M\u0101ori in the use of their land and resources\u201d. The claimants specifically argue that the government\u2019s emissions trading scheme fails to adequately protect M\u0101ori from the harmful effects of climate change. Five years after the claim was submitted, it is yet to be heard.<\/span><\/p>\n<p><span style=\"font-weight: 400\">In <\/span><a href=\"blank\"><i><span style=\"font-weight: 400\">Rosebud Sioux v. US Department of the Interior<\/span><\/i><\/a><span style=\"font-weight: 400\">, two federally-recognized Native American tribes brought claims against the Trump administration\u2019s 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 <\/span><i><span style=\"font-weight: 400\">Alatna Village Council <\/span><\/i><span style=\"font-weight: 400\">and <\/span><i><span style=\"font-weight: 400\">Gwich\u2019in Steering Committee <\/span><\/i><span style=\"font-weight: 400\">(discussed above), the plaintiffs argued that the pipeline\u2019s approval violated three promises to protect the tribes \u201cagainst the commission of all depredations by the people of the United States.\u201d The plaintiffs also argued that the administrative law failures amounted to \u201ca de-facto violation\u201d of treaty guarantees. The case was dismissed without prejudice by agreement of the parties following the Biden administration\u2019s decision to revoke the challenged permits.<\/span><\/p>\n<p><em>Assessment<\/em><\/p>\n<p><span style=\"font-weight: 400\">The above survey of Indigenous litigation demonstrates that cases are proliferating, but that few have been successful. Only in <\/span><i><span style=\"font-weight: 400\">Trans-Tasman Resources<\/span><\/i><span style=\"font-weight: 400\"> 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.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">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\u2019s 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\u2019s 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.<\/span><\/p>\n<p><strong>Caution<\/strong><\/p>\n<p><span style=\"font-weight: 400\">Some caution must be applied, however, in extracting any \u201clessons\u201d from the story of Indigenous climate litigation to date.\u00a0<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">legacies of racism<\/span><\/a><span style=\"font-weight: 400\">, 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 M\u0101ori, but also an economic threat, noting that \u201cforestry is a mainstay of the M\u0101ori economy\u201d, 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.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">sacrifices of natural capital<\/span><\/a><span style=\"font-weight: 400\"> 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 <\/span><a href=\"blank\"><span style=\"font-weight: 400\">critique<\/span><\/a><span style=\"font-weight: 400\">.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The \u201cGlobal South\u201d is a concept constructed by histories of colonialism., reflecting a\u00a0 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 [&hellip;]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6977],"article-categories":[3572],"doi":[],"class_list":["post-16966","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-sam-bookman","article-categories-symposium"],"acf":{"subline":"Context, Cases and Caution"},"meta_box":{"doi":"10.17176\/20220325-120937-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16966","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=16966"}],"version-history":[{"count":6,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16966\/revisions"}],"predecessor-version":[{"id":17009,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16966\/revisions\/17009"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=16966"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=16966"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=16966"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=16966"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=16966"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=16966"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}