Climate case explores how law and tikanga intersect

In December 1840, the British Cabinet Minister Lord John Russell wrote to William Hobson with news that Queen Victoria had appointed Hobson the first governor of the New Zealand colony.

Part four of the dispatch from Russell, who would later become British prime minister, was concerned with “The Aborigines”. Initially, the letter questions Māori law and customs, which “lead one tribe to fight with, drive away, and almost exterminate each other”. But those law and customs – tikanga – also found favour.

“Amongst the many barbarous tribes with which our extended colonial empire brings us into contact in different parts of the globe, there are none whose claims on the protection of the British Crown rest on grounds stronger than those of the New Zealanders.

“They are not mere wanderers over an extended surface in search of a precarious subsistence, nor tribes of hunters or of herdsmen; but a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil; who are not without some measure of agricultural skill, and a certain subordination of ranks; with usages having the character and authority of law.”

More than 180 years later, tikanga is a “distinctive aspect” in a case between iwi leader Mike Smith and seven climate-polluting companies – dairy giant Fonterra, its biggest supplier and shareholder Dairy Holdings, electricity generator Genesis Energy, which operates the Huntly power station, New Zealand Steel, owner of the Glenbrook mill, fossil fuel company Z Energy, oil refinery owner Channel Infrastructure, which imports and supplies most of the country’s petroleum-related fuel, and Stockton Mine owner BT Mining.

(Those seven companies were responsible for more than a third of Aotearoa’s greenhouse gas emissions in 2021-22.)

This past week, the Supreme Court rejected a strikeout appeal from those companies, allowing the case to progress to a substantive hearing.

The companies argue they are operating within statutory and regulatory requirements. In an anonymised statement, Genesis said: “Allowing this case to proceed will consume extensive time and resources that could otherwise be channelled into building more renewable generation and customer support to help New Zealand reach its goal of being net zero by 2050.”

Smith (Ngāpuhi and Ngāti Kahu), a climate change spokesperson for the Iwi Chairs Forum, told the court tikanga Māori has “its own system of obligations and recognition of wrongs arising from those obligations”.

Here’s the logical progression: obligations are grounded in whakapapa (genealogical) and whanaungatanga (kinship) relationships; and these relationships include a connection to whenua (land and the environment); which gives rise to obligations of kaitiakitanga (to care for or nurture). Breaching tikanga creates a hara or take (issue or cause), requiring utu (compensatory action) to restore ea (harmony or balance).

Following that architecture, Smith claims a whakapapa and whanaungatanga connection to whenua – in this case, 91 hectares of Māori land on the coast of Wainui Bay, in Northland – and the wai (fresh water), and moana (sea) in and around it.

“He claims that the respondents have contributed to climate change effects that are causing ongoing injury to the customary, cultural, historical, spiritual and nutritional values associated with these places.

“He alleges that his tikanga-based connection to the subject environment provides a foundation for the claim that the injury to place is also an injury to himself, his whānau (extended family) and descendants. It is alleged that the respondents must bear some responsibility for these harms.”

Smith’s legal team argued tikanga principles would help frame a proposed “tort” – an area of law dealing with obligations of one party to another – of climate system damage. For example, “tikanga would push against a narrow conception of proximity founded on individualism”.

Lawyers for the polluting companies said “generalised allusions” to tikanga didn’t salvage his claim, and what was needed was an adequate articulation of how tikanga works within the framework and principles of tort law. A key issue was “relational proximity to the alleged wrongdoer”.

The court said in the “specific loss” pleaded by Smith, an essential fact was, in part, based on tikanga. “In addressing this part of the claim the trial court will be required to engage with tikanga.”

Nicole Roughan, an Associate Professor of Law at the University of Auckland, says the Supreme Court decision was interlocutory, and therefore narrow – the consequence of which is full argument and evidence will be presented in the High Court.

“The Supreme Court’s description of the arguments on both sides reveals that there are competing arguments about whether tikanga supports Mr Smith’s claims, and about how tikanga might interact with both general tort law principles and the continuing development of tort law.”

Two worlds collide

Professor Wiremu Doherty (Tūhoe, Ngāti Awa) is chief executive of Te Whare Wānanga o Awanuiārangi – a Whakatāne-based indigenous tertiary institution. He’s also a mātanga (expert) in tikanga, although his academic expertise is in education.

Doherty contributed to He Poutama, a Law Commission study paper on tikanga published this past year. The law and tikanga are sophisticated systems with a long history of use and engagement, he says.

“You’re not going to get them working together overnight,” Doherty tells Newsroom. “The coming together of these particular two world views has to be done carefully because what we don’t want to do is have one assimilate the other.”

The University of Otago website describes tikanga, simply, as protocols and customs.

The Government’s data branch’s explanation is longer: “Tikanga are appropriate customary practices or ‘layers of the culture’ developed by Māori communities and individuals and informed by common cultural values and concepts.”

Just as the law has grundnorms (German for basic norms), Doherty says tikanga’s foundational principle is connection. “It is that deep connection and everything must be connected.

“You will often hear people describe the Māori world view as holistic. You cannot pull a component out and analyse it on its own because the minute you pull that out you have disconnected it from its natural environment, and therefore it has become meaningless, and it loses its context and it loses its purpose.”

(A key aspect of Smith’s case is whether there is sufficient connection between the harm he claims to be suffering and the polluting companies’ activities.)

The connection may be to the past, Doherty says – or to the present, the environment, landscape, history, knowledge, language, to each other, to identity.

“The minute you sever that connection you have lost its context.”

Tikanga isn’t part of something, therefore it’s the sum of all parts, he says.

Doherty splits tikanga in two – the intent, and the performativity of that intent. Though the intention is the same up and down Aotearoa, he says, how individual iwi, hapū, or marae express that intent will change dramatically.

That changing expression shows its malleability to new ideas, which can be introduced, interpreted and applied.

“That ensures we can build, using our tikanga, to allow the knowledge, the language, the ideas, the systems to evolve and develop where they don’t become static. Because the minute it becomes static, it is dead.”

Another important aspect of tikanga is it outlines what Doherty calls a set of rights and responsibilities those connected to that place are required to uphold. One of those is to ensure no harm is done to the land-base. Again, in the spirit of interconnectedness, people are connected to whenua.

Doherty underlines the importance of language by giving examples of compound words.

Ngahere, or forest, is a mix of the plural “nga”, and “here”, meaning connection. The word to describe a tree in Māori is rākau – which means “by the sun it is achieved”.

“This is that binary that talks about this very deep relationship we have with the environment. Tikanga outlines this connection.”

Once tikanga is understood properly, it allows labels such as Māori or Pākēhā to fall away: “It simply is just a way of being.”

Long journey for tikanga and law

Right now, it’s impossible to know what the High Court will make of Smith’s claims.

His contention is his whānau, descendants and others will bear the cost of the harms caused by the companies’ pollution – historical, current and future emissions. To reduce those harms, he wants the companies to reduce their emissions.

The iwi leader says science has shown increased climate pollution will warm the Earth’s surface and atmosphere, which will lead to dangerous interference with the climate system and adverse effects.

These effects include sea level rise, and ocean warming and acidification, which will erode and inundate his family’s land, and irrevocably damage customary fisheries, burial caves and cemeteries. Increasing adverse health impacts may also disproportionately affect Māori.

This month’s Supreme Court judgment noted attribution of damage caused by the companies “remains difficult”. However, the ruling went on: “In such a case the common law should lean towards receipt of the claim, and full evaluation based on evidence and argument at trial, over pre-emptive elimination”.

The judgment notes tikanga has been applied to tort actions since the early days of this country’s common law. It refers back to an 1866 dispute “over title to a pounamu boulder weighing ‘considerably more than a ton’”, and a 1910 case about the ownership of a right whale carcass.

Roughan, of the University of Auckland, cautions against making much of the court’s brief comments about tikanga.

“The courts have long been grappling with ways of addressing the many matters of common concern that entangle tikanga and state law together. The issues in Smith v Fonterra are just another (albeit very important) issue in which there is interaction of state law and tikanga.”

The associate professor also contributed to He Poutama. Her paper to the Law Commission argues the engagement between state law and tikanga is crucial for achieving the rule of law in Aotearoa.

“To have the rule of law, people need to be able to recognise the law’s claim to justly administer public standards for a community,” she summarises for Newsroom. “Law is not the mere imposition of force; it claims a kind of rightful authority and legitimacy.

“However, if state law (developed through legislation and common law) excludes or fails to engage with tikanga, it effectively imposes itself forcefully upon persons who recognise tikanga as an operative legal order. 

“This is not just a problem for those who recognise tikanga, but for everyone, because it means that some people are governed through law, and others through force. That’s fundamentally at odds with equality, undermines the claimed legitimacy of state law, and leaves us all with the rule of force rather than the rule of law.”