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Joyce, Rosie --- "A challenge of worldview reconciliation and reluctant leadership: Indigenous environmental knowledge in climate change law" [2023] UOtaLawTD 16

Last Updated: 11 April 2024

A Challenge of Worldview Reconciliation and Reluctant Leadership: Indigenous Environmental Knowledge in Climate Change Law

Rosie Joyce

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Ōtākau

October 2023

Acknowledgements

To Nicola Wheen, thank you for your fantastic teaching over my time at Otago, for sparking my interest in environmental law, and for your incredible supervision and encouragement this year. I have really appreciated your academic wisdom and personal guidance, including frank and funny conversations about all things environmental and public law. Thanks also to Metiria Turei and Christine Winter for your guidance and to Metiria for helping me to uncover some very hard-to-find documents!

To Bridget, Shani, Shae, J Small, Portia, Ruby, Emilie, J Miller, Georgia, Annabelle, Josie, Sarah, Emily and Izzy, thanks for making my five years spent in Dunedin the best yet.

To Robbie, Lily and Mum, thanks for the endless love and support.

Contents

1. Māori cosmology: te timatanga o te ao 36
2. Te ao, tikanga and mātauranga Māori 36
3. MEK: mātauranga taio 37
5. Adaptation 53

Acronyms Used Throughout

I Introduction

Indigenous environmental knowledge (IEK) is an ever-evolving, dynamic knowledge base that, along with Western science, law and policy, is necessary for the global response to the climate change crisis. This dissertation discusses whether the international climate change regime makes adequate provision for the successful utilisation of IEK within the climate change response and, if not, asks why that is the case. It then discusses how the international regime has influenced Aotearoa New Zealand’s (A/NZ) domestic climate change law’s recognition of the value of Māori environmental knowledge (MEK).

At the time of commencing this dissertation, my home town, Napier, and a large portion of the East Coast and Northland of A/NZ had just been ravaged by Cyclone Gabrielle, leaving 11 fatalities and hundreds displaced from their homes and communities.¹ The event shares a clear link with an unprecedented number of events that have occurred in 2023 and in the past decades: anthropogenic climate change-induced extreme weather events which, statistically, disproportionately affect Indigenous peoples. Indigenous peoples have experienced climatic changes for centuries and have used IEK to respond to these changes. Now, at a time when predominantly Western industrialised human activity causes climate change, which Indigenous peoples are more likely to suffer from,² the incorporation of IEK into the legal response is indispensable.

A Positionality Statement

1. am a non-Indigenous, pākehā, New Zealander researching Indigenous worldviews and concepts and discussing whether Western law makes adequate provision for them. Within this context, I recognise there are many limitations to my research. I understand the difficulty of understanding Indigenous concepts from Western-based academic texts when Indigenous peoples commonly communicate teachings in other fashions. I also recognise my advantage as a Western researcher with access to plentiful resources. Therefore, I attempt to avoid what Linda Tuhiwai Smith describes as “positional superiority”: the extraction, appropriation and

¹ Cherie Howie “Cyclone Gabrielle: Who are the 11 victims?” RNZ (New Zealand, 20 February 2023).

² Zoltán Grossman “Indigenous Nations’ Responses to Climate Change” (2008) 32 AICRJ 5 at 8.

distribution of Indigenous knowledge.³ To reconcile these difficulties and many more, when learning about Indigenous concepts, I have attempted to utilise only texts written or endorsed by Indigenous individuals to ensure my understanding of IEK comes from an appropriate source. Additionally, I do not attempt to make any claims about how IEK should be used in climate change law. As a non-Indigenous person I am not informed enough to make such claims. Instead, I utilise Indigenous literature to discuss whether and how the law has accounted for IEK.

B What is IEK?

The literature uses many terms to describe the knowledge Indigenous peoples gain from their relationship with the environment. Most commonly, this knowledge is termed “indigenous environmental knowledge” and used interchangeably with “traditional ecological/environmental knowledge” or “local ecological/environmental knowledge.” ⁴ Broadly, these terms explain a “system of knowledge, practice, and belief that describes the relationship of living beings and their environment.”⁵ Maxine Burkett explains that IEK differs from Western scientific knowledge in at least three ways: 1) Indigenous peoples cultivate knowledge “through hands-on experience rather than formal education;” 2) The knowledge is “embedded in culture and unique to specific locations;” and 3) The knowledge “is a way of life and a worldview.”⁶

It is essential to highlight the difficulty of conceptualising this knowledge in non-Indigenous, contemporary literature. Broadly, the terms above explain the knowledge that has evolved through tradition and adapted to changing environmental conditions, not necessarily beliefs set in stone since their inception. ⁷ Because of a traditional connection with a specific area, Indigenous peoples have gained comprehensive knowledge of their local environment. ⁸ No single term can describe this knowledge and in an attempt to do so, non-Indigenous literature

³ Linda Tuhiwai Smith Decolonising Methodologies: Research and Indigenous Peoples (3rd ed, Zed Books, London, 2021) at 67.

⁴ Maxine Burkett “Indigenous environmental knowledge and climate change adaptation” in RS Abate and EA Kronk (eds) Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar Publishing Limited, Cheltenham, 2013) 96 at 100.

⁵ At 100.

⁶ At 101.

⁷ At 100-101.

⁸ At 102.

risks enveloping distinctly separate Indigenous knowledge into theories and practices of Western environmental academia.⁹

Despite the danger of trying to conceptualise this type of knowledge, when using the term IEK, this dissertation is attempting to describe knowledge derived from the essential similarities of Indigenous worldviews: the idea that “interaction with [the local environments of indigenous peoples] has yielded deep environmental knowledge that, coupled with cultural beliefs, has formed models of how the natural world works - and how humans work best in harmony.”¹⁰

C The Value of IEK in the Climate Change Response

Indigenous peoples themselves have long upheld that they have unique contributions to make to climate change action due to “extensive experiential knowledge.” ¹¹ Nowadays, contemporary climate change literature often highlights the value of integrating Western science and IEK into climate change action. ¹² This value comes from the resilience and inherent dynamism of IEK systems. ¹³ IEK is developed and constantly renewed through experimenting and learning-by-doing, allowing Indigenous peoples to respond to environmental change effectively. ¹⁴ Within mitigation, among other techniques, IEK has allowed many Indigenous communities to understand about and undertake natural carbon sequestration practices and effectively preserve bio-diversity, both considered essential and successful mitigation strategies.¹⁵

Above all, academics have argued that the utilisation of IEK creates a “moral economy” by identifying a person within a cultural context.¹⁶ Utilisation of IEK within the climate change

⁹ Chris S Duvall “Context Matters: The holism and subjectivity of environmental knowledge” in Thomas F Thornton and Shonil A Bhagwat (eds) The Routledge Handbook of Indigenous Environmental Knowledge (Routledge, Oxon, 2021) 35 at 43.

¹⁰ Burkett, above n 4, at 102.

¹¹ Douglas Nakashima, Kirsty Galloway McLean, Hans Thulstrup, Ameyali Ramos Castillo and Jennifer Rubis Weathering Uncertainty: Traditional Knowledge for Climate Change Assessment and Adaptation (UNESCO, Paris, France, 2012) at 42.

¹² Donna Green and Gleb Raygorodetsky “Indigenous knowledge of a changing climate” (2010) 100 Clim Change 239 at 240.

¹³ Nakashima, McLean, Thulstrup, Castillo and Rubis, above n 11, at 42.

¹⁴ At 42.

¹⁵ A Nyong, F Adesina and B Osman Elasha “The value of indigenous knowledge in climate mitigation and adaptation strategies in the African Sahel” (2007) 12 Mitig Adapt Strat Glob Change 787 at 792-793.

¹⁶ Nyong, Adesina and Elasha, above n 15, at 794.

response would, in theory, encourage decision-makers to contemplate the broader ramifications of decision-making, focussing on how decisions will holistically affect all beings and their environment, outside of a solely Western worldview.

D Structure of Dissertation

Part 1 discusses the initial disregard for IEK within the international climate change regime. Chapter II focuses on the framework for the current international legal climate change regime from its inception in 1992. This Chapter discusses the United Nations Framework Convention on Climate Change’s (UNFCCC) disregard for IEK. It asks why, in an era when so many other international environmental agreements recognised IEK, the UNFCCC seemingly ignored its value. Chapter III then focuses on the Kyoto Protocol, which established the emissions trading scheme (ETS), a mitigation strategy many have criticised as detrimental to Indigenous communities and at odds with IEK.

Part 2 discusses the apparent shift towards IEK recognition within international climate change law. Chapter IV discusses the idea that this shift is symptomatic of the international community’s recognition of the distinct Indigenous human right to the protection of the environment. Chapter V outlines how that shift influenced the Paris Agreement. The Paris Agreement is the most recent landmark, binding multilateral climate change agreement to explicitly recognise IEK. This Chapter specifically considers the strength of its IEK references.

Part 3 discusses A/NZ’s recognition of MEK within domestic climate change law and policy. Chapters VI and VII recount Māori scholars’ and activists’ perspectives of the current climate change regime and then discuss what a kaupapa Māori approach to the climate change response entails. Chapter VII reviews A/NZ’s primary piece of climate change legislation and explores whether the obligations it creates and policies it provides for successfully recognise the value of MEK.

Ultimately, this dissertation discusses the challenge of providing for two contrasting worldviews within one climate change response while Western science, economics and law dominate the current regime. It illustrates that world leaders and the A/NZ Parliament have not yet reconciled this challenge to successfully recognise IEK's inherent value in the climate change response.

Part 1: Early Disregard for IEK in the International Climate Change Regime

II The UNFCCC: Why Was IEK Left Out in 1992?

A What is the UNFCCC?

The UNFCCC was one of the documents that emerged from the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil. The Convention produced the ultimate objective of “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” ¹⁷ It adopted the convention-protocol approach whereby the international community establishes a framework as a first step and then creates specific commitments through subsequent protocols.¹⁸

During negotiations, it became clear that scientific uncertainties surrounding climate change and the global economy’s dependence on fossil fuels meant that many delegations were unwilling to agree to specific commitments.¹⁹ As a result, the Framework Convention that evolved disappointed those unhappy with the “vaguest of commitments” regarding stabilisation and no commitments to reductions of greenhouse gas (GHG) emissions. ²⁰ Despite indeterminate commitments, academics have praised the UNFCCC for defining a common long-term objective, setting forth principles to guide future work, and establishing a process designed to “improve [the] information base and reduce uncertainties.”²¹ The UNFCCC is now the framework that defines international climate change law, policy and action.

¹⁷ United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for signature 4 June 1992, entered into force 21 March 1994), art 2.

¹⁸ Jonathan Kuyper, Heike Schroeder and Björn-Ola Linnér “The Evolution of the UNFCCCC” (2018) 43 Annu Rev Environ Resour 343 at 345.

¹⁹ Daniel Bodanksy “The United Nations Framework Convention on Climate Change: A Commentary” (1993) 18 Yale J Int’l L 451 at 454.

²⁰ At 454.

²¹ At 455.

B The Only UNCED Agreement to Disregard IEK

Despite that praise, the “improved .. information base” that the UNFCCC established was solely of Western information regarding climate change; there is no reference to Indigenous peoples or IEK in the 1992 UNFCCC text.

By contrast, all other documents that emerged from the 1992 Rio Conference illustrate a “large- scale legitimisation of the importance of Indigenous knowledge and participation” at the UNCED.²² The Rio Declaration on Environment and Development establishes a set of 27 principles to guide decision-makers’ actions concerning the environment and sustainable development issues.²³ Principle 22 is devoted to recognising that IEK plays a “vital role in environmental management and development” and prescribing that states must support IEK and enable effective Indigenous participation in sustainable development goals.²⁴ Agenda 21 is a comprehensive action plan for sustainable development. ²⁵ The document references Indigenous issues in 24 of the 40 chapters.²⁶ In particular, Chapter 26 recognises the historical relationship that Indigenous peoples have with their lands and the “holistic traditional scientific knowledge” that evolves from this relationship.²⁷ Additionally, Agenda 21 recognises that national and international efforts to implement environmentally sustainable development should “recognise, accommodate, promote and strengthen the role of Indigenous people and their communities.²⁸ Critics believe that “the adoption of Agenda 21 set the international stage for Indigenous peoples’ engagement in global governance.”²⁹ There is also a strong emphasis

²² Biliana Cicin-Sain and Robert W Knecht “Analysis of Earth Summit Prescriptions on Incorporating Traditional Knowledge in Natural Resource Management” in Susan Hanna and Mohan Munasinghe (eds) Property Rights and the Environment: Social and Ecological Issues (International Bank for Reconstruction and Development, Washington DC, 1995) 104 at 106.

²³ At 107.

²⁴ Rio Declaration on Environment and Development UN Doc A/CONF 151/5 (14 June 1992), principle 22.

²⁵ Agenda 21 UN Doc A/CONF 151/26 (14 June 1992).

²⁶ Cicin-Sain and Knecht, above n 22, at 108.

²⁷ Agenda 21, above n 25, chapter 26(1).

²⁸ Chapter 26(1).

²⁹ Kirsty Galloway McLean, Sam Johnston and Ameyalo Ramos Castillo “The role of indigenous peoples in global environmental governance: looking through the lens of climate change” in Jose Puppim de Oliveira (ed) Green Economy and Good Governance for Sustainable Development: Opportunities, Promises and Concerns (UNU Press, Tokyo, 2012) 245 at 247.

in the Statement of Forest Principles on Indigenous knowledge and participation in Principles 2 and 5(a).³⁰

The emphasis on IEK in the Rio Declaration, Agenda 21, and the Statement of Forest Principles illustrates a strong recognition of the value that IEK can bring to environmental development that was clearly in focus at the time of the UNCED negotiations. However, there is an argument that in an era predominantly focused on Western-based science and economy, these three documents only presented an opportunity to recognise IEK due to their non-binding nature. States saw an opportunity to showcase their ability to incorporate diverse interests and knowledge into their discussions and ultimate agreements without necessarily formally adhering to them by creating binding obligations on state parties. However, an analysis of the Convention on Biological Diversity (CBD), which also arose through UNCED, refutes this argument. The CBD is a binding convention that established a framework for countries to develop national strategies for conserving biodiversity.³¹ In doing so, the CBD addresses the importance of maintaining knowledge of “Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.”³² Indigenous concerns are also expressly addressed in arts 10(c), 17(2) and 18(4). The reference to IEK in all these documents raises the question of the reason for the blatant disregard of IEK within the UNFCCC.

C So Why the Disregard?

Ultimately, it is unclear why there is no reference to Indigenous peoples and IEK in the UNFCCC. Some possible explanations for this disregard are discussed below.

1. A framework convention

The “framework” nature of the UNFCCC sets it apart from the Rio Declaration, Agenda 21 and the Statement on Forest Principles. Unlike these documents, the framework nature of the

³⁰ Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests UN Doc A/CONF 151/6 (21 April 1992).

³¹ Secretariat of the Convention on Biological Diversity Handbook of the Convention on Biological Diversity

(Earthscan, New York, 2001).

³² Convention on Biological Diversity 1760 UNTS 69 (opened for signature 5 June 1992, entered into force 29 December 1993), art 8(j).

UNFCCC allows for the incorporation of IEK in its subsequent agreements and protocols. Arguably, explicit incorporation of IEK within the original UNFCCC document was, therefore, unnecessary.

Again, the plentiful references to Indigenous issues and knowledge within the CBD, another framework convention, significantly contrasts with the UNFCCC. Like the UNFCCC, the CBD’s framework nature allows for further development in the biological diversity space by negotiating subsequent annexes and protocols. ³³ And yet, in doing so, the CBD provides a flexible framework for “encouraging partnerships between national and local authorities, local and Indigenous communities, and the private sector.³⁴ These references suggest that despite the potential for subsequent UNFCCC documents to incorporate IEK into the climate change response at a later date, state parties at the UNCED who negotiated the CBD recognised the value of its incorporation into the original framework. It is unclear why UNFCCC negotiators and drafters did not realise this same value.

In 1989, during the planning stages of the UNFCCC, the participants of an IPCC Response Strategies Working Group workshop recognised the inadequacy of existing international legal instruments addressing climate change. ³⁵ They agreed that the then-future convention on climate change should include, at minimum, a “legal and institutional framework for monitoring and assessing climate change and developing and implementing responses.”³⁶ Nothing inherent in this statement makes it obvious why IEK would be excluded from this framework when the UNCED parties included it in the equivalent CBD framework.

2. A state-centric convention

The original mandate for the Convention was to provide a forum “primarily for negotiating climate change mitigation agreements between states.”³⁷ Consequently, Indigenous peoples could only gain a role in negotiations through voluntary inclusion by their national

³³ Elia Morgera and Elsa Tsioumani “Yesterday, Today, and Tomorrow: Looking Afresh at the Convention on Biological Diversity” (2010) 21 Yearb Int Environ Law 3 at 6.

³⁴ At 3.

³⁵ Bodanksy, above n 19, at 473.

³⁶ At 473.

³⁷ James Ford, Michelle Maillet, Vincent Pouliot, Thomas Meredith and Alicia Cavanaugh “Adaptation and Indigenous peoples in the United Nations Framework Convention on Climate Change” (2016) 139 Clim Change 429 at 440.

government.³⁸ Instead of placing Indigenous peoples within the negotiations, this gave them an “observer status” at negotiations (further discussed in Chapter V).³⁹

The state-centric status of the UNFCCC further excludes Indigenous peoples through its developed-developing country distinction. The Brundtland Report of 1987 influenced the UNCED: a report which distinguished between the environmental concerns of the predominantly developed “North” and the development concerns of the predominantly developing “South.” ⁴⁰ Industrialised countries were responsible for approximately three- quarters of global carbon emissions at the time.⁴¹ As such, the UNFCCC ensures that developed country parties “take the lead in combating climate change and the adverse effects thereof”⁴² to ensure that developing countries can enjoy their share of global emissions to “meet their social and development needs.”⁴³ This emphasis on developed-developing nations and their respective responsibilities means that funding through the Convention is unidirectional: from developed to developing, with no specific focus on Indigenous peoples.⁴⁴ There is nothing in the developed-developing binary that obliges states to think specifically about the needs of Indigenous peoples. This priority distinction “deepens Indigenous peoples’ underrepresentation” in climate governance.⁴⁵

While the state-centric, developed-developing emphasis of the UNFCCC is one possibility for disregarding Indigenous peoples and their knowledge within the original text, the argument falls short when analysing UN multilateral agreements generally. Western international leaders designed the United Nations (UN) out of “Westphalian-inspired notions of state-centricity.”⁴⁶ As such, it is the nature of the multilateral agreements that it produces to be state-centric. Nevertheless, as discussed, agreements like the CBD have emphasised Indigenous peoples and their knowledge while maintaining a state-centric outlook. The CBD also maintains the

³⁸ Megan M Shea and Thomas F Thornton “Tracing country commitment to Indigenous peoples in the UN Framework Convention on Climate Change” (2019) 58 Global Environmental Change 1 at 1.

³⁹ At 2.

⁴⁰ John Lanchberry “The Rio Earth Summit” in David H Dunn (ed) Diplomacy at the Highest Level: The Evolution of International Summitry (St. Martin’s Press, New York, 1996) 220 at 221.

⁴¹ Bodanksy, above n 19, at 457.

⁴² United Nations Framework Convention on Climate Change, above n 17, art 3(1).

⁴³ Preamble.

⁴⁴ Ford, Maillet, Pouliot, Meredith and Cavanaugh, above n 37, at 441.

⁴⁵ Pedram Rashidi and Kristen Lyons “Democratizing global climate governance? The case of indigenous representation in the Intergovernmental Panel on Climate Change (IPCC)” (2021) Globalizations 1 at 2.

⁴⁶ A Claire Cutler “Critical reflections on the Westphalian assumptions of international law and organization: a crisis of legitimacy” (2001) 27 Rev Int Stud 133 at 133.

developed-developing distinction, acknowledging that “special provision [is] required to meet the needs of developing countries.”⁴⁷ This proves that a state-centric outlook that emphasises the needs of developing countries, especially one that UNCED parties developed at the same time as the UNFCCC, inspired by the same Brundtland Report of 1987, could not have been a significant barrier to the incorporation of an Indigenous perspective into the UNFCCC.

Despite being an unlikely explanation for IEK's disregard, the state-centric nature of the UNFCCC is relevant to an analysis of the contemporary international climate change regime's ability to meaningfully incorporate IEK. For example, as discussed in Chapter V, the state- centricity of the UNFCCC presents a barrier to Indigenous participation at the Conferences of the Parties (COPs) to the UNFCCC.

3. Rushed negotiation process

Another possible reason for the UNFCCC’s disregard of IEK was the rushed negotiation process and its controversial topic. The UN General Assembly tasked the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC) with the Convention’s negotiations.⁴⁸ Due to the high stakes of these negotiations, this task was not an easy feat. The negotiations took place in the context of a world economy that depends on fossil fuels. Additionally, at the time, states were speculative of the GHG issue due to scientific uncertainties about “virtually every aspect of the problem.” ⁴⁹ In light of this context, from the beginning, there was little agreement within the INC itself as to what the international community should do to address climate change.⁵⁰

Parties negotiated the UNFCCC over the two years preceding the UNCED.⁵¹ During this time, due to the contentious nature of the climate change issue and the wide variety of interests in the matter, states “enunciated and reiterated their positions instead of bridging their differences by finding compromises.”⁵² Consequently, real negotiations only began in the final months before UNCED.⁵³ Even then, there was no consensus on matters of importance and, had it not

⁴⁷ Convention on Biological Diversity, above n 32, preamble.

⁴⁸ Lanchberry, above n 40, at 225.

⁴⁹ Bodanksy, above n 19, at 475-476.

⁵⁰ Lanchberry, above n 40, at 225.

⁵¹ At 223.

⁵² Bodanksy, above n 19, at 475.

⁵³ At 475.

been for the political significance of the Convention and public visibility of the UNCED process, critics doubt the INC would have produced any agreement at all.⁵⁴ The INC redrafted the entire text in the final week of negotiations to make the main features ambiguous and, therefore, acceptable to most governments.⁵⁵ The draft Convention which resulted was a “mass of square brackets.”⁵⁶

There is a possibility that the rushed and non-conclusive negotiation process of the UNFCCC is the reason for IEK’s disregard within the originating text. More realistically, however, even with rushed and disputed negotiations, it is unlikely that negotiators inadvertently omitted the IEK issue, given its comprehensive discussion within other UNCED documents negotiated by many of the same signatory parties. It is more likely that the high stakes within which the negotiations took place resulted in its omission, as negotiators perceived it to be a low-priority issue.

4. The IPCC as the “authoritative science”

One of the most plausible reasons for disregarding IEK within the original UNFCCC text emerges from a discussion about what state parties at the time classed as authoritative information to inform “priority issues.” This information resulted primarily from the Intergovernmental Panel on Climate Change (IPCC).

The IPCC was established in 1988 to give the most comprehensive and authoritative knowledge base on climate change to inform policymakers, experts and the general public.⁵⁷ It releases periodic international assessments of the causes, impacts and possible response strategies to climate change. ⁵⁸ The IPCC emerged in the context of ongoing Western scientific expansion, with Western scientists positioned as experts.⁵⁹ Reflecting this context, the IPCC endeavours to produce knowledge by drawing upon experts of scientific and market-based solutions to

⁵⁴ Lanchberry, above n 40, at 226; Bodanksy, above n 19, at 475.

⁵⁵ Lanchberry, above n 40, at 226.

⁵⁶ At 226.

⁵⁷ Nelson Chazna and Anton de Wit “Enhancing climate governance through indigenous knowledge: Case in sustainability science” (2016) 112 S Afri J Sci 1 at 1; Rashidi and Lyons, above n 45, at 1.

⁵⁸ IPCC “Introduction” in ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson (eds) Climate Change 2007: Impacts, Adaptation and Vulnerability – Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) 1 at 1.

⁵⁹ Rashidi and Lyons, above n 45, at 3.

climate change.⁶⁰ Therefore, not only did the IPCC prefer Western science as an authoritative source, but it also informed this view through the knowledge of experts that promote science in a way that pursues “economic growth to maintain the existing liberal global order.”⁶¹ This liberal global order sits within a Western-centric worldview, which often deems that people are dominant over nature and that the world allows humans unlimited opportunities.⁶²

This context, and the disregard for IEK within early IPCC reports and documents, implies that the IPCC disregarded other forms of knowledge as “non-scientific.”⁶³ In this way, the IPCC created a hierarchy of knowledge, with IEK viewed as being of “lesser value.”⁶⁴ Commentators also believe that the IPCC saw some of the underlying beliefs and ethics of IEK as being “at odds with capitalist economic systems.”⁶⁵ The IEK agenda does not seek to privilege economic goals but instead a holistic goal of the well-being of both people and nature.⁶⁶ Some critics also believe that the IPCC simply manifested an intergovernmental intention to reassert control over the contentious nature of the climate change debate which was becoming an “increasingly prominent political issue.”⁶⁷

Likely due to the IPCC’s influences, the UNFCCC original text omitted references to IEK.

Academics, Biliana Cicin-Sain and Robert W Knecht, argue that, at the time of its drafting:⁶⁸

discussions of issues that seem to be largely technical and scientifically oriented and that have been largely developed by the global scientific community appear[ed] not to be sensitive to the role of Indigenous peoples.

⁶⁰ At 3.

⁶¹ At 3.

⁶² Ann-Marie Kennedy, Cathy McGouran and Joya A Kemper “Alternative paradigms for sustainability: a relational worldview” (2020) 54 Eur J Mark 825 at 831.

⁶³ Rashidi and Lyons, above n 45, at 6.

⁶⁴ Jan Petzold, Nadine Andrews, James D Ford, Christopher Hedemann and Julio C Postigo “Indigenous Knowledge on climate change adaptation: a global evidence map of academic literature” (2020) 14 Environ Res Lett 1 at 2.

⁶⁵ At 2.

⁶⁶ Krystyna Swiderska “Here’s why Indigenous economics is the key to saving nature” (12 April 2021) International Institute for Environment Development <https://www.iied.org/heres-why-indigenous-economics- key-saving-nature>.

⁶⁷ Bodanksy, above n 19, at 465.

⁶⁸ Cicin-Sain and Knecht, above n 22, at 111.

D Conclusion

It is unclear why the UNFCCC was the only UNCED document to disregard IEK. The framework nature of the agreement, when compared to the CBD’s framework, offers no plausible explanation. Similarly, the state-centricity of the Convention is not plausible, given the state-centricity of the UN regime generally and other agreements that the UN has produced which positively acknowledge and incorporate IEK. The rushed negotiation process of the UNFCCC likely only illustrates the parties’ omission of IEK as a perceived low-priority issue. However, the low priority of IEK helps to explain the most plausible reason for its omission within the UNFCCC: the hierarchy of knowledge created by the IPCC as the authoritative source of scientific knowledge to inform the climate change response. In setting up a climate change response solely informed by Western science and a Western economic agenda, the UNFCCC, and as such, the current climate change regime, was designed to operate antithetically to an Indigenous worldview.

III The Kyoto Protocol and the ETS

The parties to the UNFCCC have met every year since its signing in 1992 (excluding pandemic years). In 1997, COP3 produced the Kyoto Protocol, the first major, binding multilateral agreement to emerge from the climate change regime framework. The signing of the Kyoto Protocol saw the emergence of the now well-established ETS phenomenon, a key facet of the international effort to mitigate climate change. Having been signed only five years later and resulting from its framework, the Kyoto Protocol followed the UNFCCC's footsteps in making no references to Indigenous peoples or IEK within the document, and thus in relation to the ETS.

A Climate Change Mitigation: the ETS

Contrasting recent climate change adaptation policies emerging from the international climate change regime (discussed in Chapters IV and V), Indigenous concerns about and contributions to climate change mitigation have played a minor role in decision-making.⁶⁹ Climate change mitigation is the human intervention to reduce or stabilise the level or enhance the removal of GHG emissions in the atmosphere.⁷⁰ On the other hand, adaptation is the “adjustment to the actual or expected climate change and its effects.”⁷¹ Due to these differences, Western world leaders view mitigation efforts as requiring long-term planning, economic resources and management in a top-down manner. In contrast, they view adaptation efforts as requiring less central control and thus able to be undertaken at a local level.⁷² Brugnach and others recognise that “as a consequence, Indigenous communities have become passive recipients of international recipes for mitigation with little possibilities to defend their own legitimate interests and to contribute to climate change solutions.”⁷³ Multilateral agreements emerging from UNFCCC, like the Kyoto Protocol, illustrate this passive recipience.

⁶⁹ M Brugnach, M Craps and A Dewulf “Including indigenous peoples in climate change mitigation: addressing issues of scale, knowledge and power” (2017) 140 Clim Change 19 at 20.

⁷⁰ Karolina Praźmowska-Marcinowska “Climate Change Mitigation and Adaptation: With or Against Indigenous Peoples” (2023) 96 Studia Iuridica 286 at 289.

⁷¹ At 289.

⁷² At 289.

⁷³ Brugnach, Craps and Dewulf, above n 69, at 21.

Before Kyoto, the IPCC had concluded that an immediate reduction of carbon dioxide emissions was necessary to stabilise atmospheric concentrations.⁷⁴ Thus, the Kyoto Protocol emerged, creating an agreement to reduce GHG emissions by an average of 5.2 per cent below 1990 levels by the end of 2012.⁷⁵ To achieve this target, parties to the Protocol agreed to the market-driven mechanism, which, in theory, subjects the planet’s atmosphere to the ‘safe’ and legal emission of GHG gases: the global ETS.⁷⁶

Parties to the Protocol framed the stabilisation of GHGs in the atmosphere through market- driven measures as a “highly technical problem favouring scientific understanding.” ⁷⁷ The statement implies a rejection of the value of other types of knowledge, including IEK. It is, therefore, a clear illustration of the “hierarchy of knowledge” imposed by the IPCC (as discussed in Chapter II).

Additionally, parties viewed the stabilisation of GHGs as a global mitigation effort rather than a local one because the GHG composition of the atmosphere operates at the worldwide level.⁷⁸ This view likely stems from the UNFCCC’s acknowledgement that “the change in the earth’s climate and its adverse effects are a common concern of humankind.” ⁷⁹ This statement contrasts with the “common heritage of mankind” statement that international agreements apply to, for example, deep seabed mineral resources and the moon. ⁸⁰ This distinction is significant. The common heritage principle connotes shared ownership that is not subject to the permanent sovereignty of states. ⁸¹ On the other hand, the common concern principle “operates within the principle of permanent sovereignty of states.”⁸² The UNFCCC’s creation of this distinction allowed the Kyoto Protocol to create a technical mitigation scheme subject to state sovereignty. As individuals who live within the bounds of states that have long denied their sovereignty, framing the GHG composition of the atmosphere as something that solely concerns state sovereignty denies Indigenous peoples a voice at the decision-making table.

⁷⁴ Heidi Bachram “Climate Fraud and Carbon Colonialism: The New Trade in Greenhouse Gases” (2004) 15 Capital Nat Social 5 at 5.

⁷⁵ At 6.

⁷⁶ At 6.

⁷⁷ Brugnach, Craps and Dewulf, above n 69, at 24.

⁷⁸ At 21-22.

⁷⁹ United Nations Framework Convention on Climate Change, above n 17, preamble.

⁸⁰ Bodanksy, above n 19, at 465.

⁸¹ Thomas Cottier, Philipp Aerni, Baris Karapinar, Sofya Matteotti, Joelle de Sépibus and Anirudh Shingal “The Principle of Common Concern and Climate Change” (2014) 3 Archiv des Völkerrechts 293 at 308.

⁸² At 308.

There is thus no evidence of Indigenous contribution to the Kyoto Protocol and the ETS phenomenon. The emphasis on Western-expert-dominated economic knowledge in mitigation efforts, such as ETSs, has been criticised for being “disconnected from local situations and, in consequence, offering inadequate guidance to policy.” ⁸³ This is especially true for those Indigenous peoples, like the Trios group of South America, who only recently adopted the concept of money and therefore have to reconcile the idea of global markets in climate change mitigation with their own understanding of climate change and economic exchanges.⁸⁴

B Climate Colonialism

Along with causing this disconnect from local situations, from early on, critics also believed that the mitigation effort of emissions trading “open[ed] the door to a new form of colonialism.”⁸⁵ ETSs “parcel up the atmosphere” into carbon credits and establish “‘permits to pollute’ as though they were like any other international commodity.”⁸⁶ An emission credit entitles polluters to dump GHGs into the atmosphere. ⁸⁷ This way, the atmosphere is commodified, claimed as property and exploited. The arrangement controls “how the atmosphere, perhaps the last global commons, is used.”⁸⁸

The global ETS established by the Kyoto Protocol also allows polluters who have used up their total allowance to invest in reduction schemes in other regions to “earn” more credits. ⁸⁹ Reduction schemes (or Clean Development Mechanism projects) come in many forms.⁹⁰ The most common is the “carbon-sink” approach: monoculture tree plantations which theoretically absorb carbon from the atmosphere.⁹¹ The polluters commonly access land for these plantations in locations where Indigenous peoples live, often encroaching on their lives and “expanding the potential for neo-colonial land-grabbing.” ⁹² Furthermore, many old-growth rainforests inhabited by Indigenous peoples for thousands of years do not qualify as “managed” under the

⁸³ Brugnach Craps and Dewulf, above n 69, at 22.

⁸⁴ At 22.

⁸⁵ Bachram, above n 74, at 10.

⁸⁶ At 6.

⁸⁷ At 13.

⁸⁸ At 13.

⁸⁹ At 7.

⁹⁰ At 10.

⁹¹ At 10.

⁹² At 13.

Kyoto Protocol because carbon-sinks only qualify for emissions credits if managed by those with official status (those run by the state or a registered private company).⁹³

The international ETS has diminished Indigenous interests in the atmosphere due to the imposition of colonialism, imperialism and capitalism, leading to the “separation of humans from nature, imposing competition over cooperation.” ⁹⁴ Furthermore, concepts imposed through the capitalisation of the atmosphere, like ‘global mean temperature’ and ‘tonne of carbon’, have a “tendency to erase differences in human experiences, understandings, epistemologies, values and meanings of climate change." ⁹⁵ Consequently, these Western concepts that are privileged as “legitimate” suppress Indigenous peoples’ ability to contribute their IEK to the scheme.⁹⁶

C Conclusion

This Chapter has discussed themes such as the concepts emerging from capitalist economic systems that view humans as dominant over the environment, the idea of state-centricity preventing a barrier to Indigenous participation, and the hierarchy of knowledge, which perceives IEK as lesser value than Western science. Overall, Part 1 has discussed the idea that because these themes contributed to the creation of the UNFCCC, they became ingrained into the framework of the climate change response, evidenced by their inclusion in the ETS. The parties to the Kyoto Protocol, therefore, produced the Protocol in a way that did not only disregard the value of IEK within the ETS, but actively diminished Indigenous interests in the atmosphere and their ability to use their IEK.

⁹³ At 13.

⁹⁴ Joanna Cabello and Tamra Gilbertson “A colonial mechanism to enclose lands: A review of two RED+- focused special issues” (2012) 12 Ephemera 162 at 174.

⁹⁵ Jean Foyer and David Dumoulin Kervan “Objectifying traditional knowledge, re-enchanting the struggle against climate change” in Stefan C Akyut, Jean Foyer and Edouard Morena (eds) Globalising the Climate: COP21 and the Climatisation of Global Debates (London, Routledge, 2017) 153 at 154.

⁹⁶ Cabello and Gilbertson, above n 94, at 174.

Part 2: The Shift Towards IEK Recognition in the International Climate Change Regime

IV What Caused the Shift Towards IEK Recognition in the International Climate Change Regime?

Despite the disregard for IEK within the UNFCCC and its subsequent Kyoto Protocol, this Part discusses the apparent shift of the international climate change regime towards incorporating IEK. As this Part discusses, recognition of IEK is evident in the most recent, binding multilateral agreement to the UNFCCC: the Paris Agreement. This Chapter discusses the proposition that this shift is symptomatic of the international human rights regimes' recognition of Indigenous peoples' distinct human right to environmental protection.

A Climate Change: a Human Rights Concern

The extent of the international community's recognition of the fundamental human right to environmental protection is a matter of contention. The first international meeting concerning the human environment, the United Nations Conference on the Human Environment 1972 in Stockholm, Sweden, issued the Stockholm Declaration on the Human Environment.⁹⁷ The Declaration recognised that humans have the “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”⁹⁸ Luis E Rodríguez-Rivera argues that this reference to human rights illustrates that those present at the Conference knew that “the human right to environment existed and was recognised by the international community.”⁹⁹ Nevertheless, during the period (the 1940s) when the international community discussed and identified the United Nations Declaration on Human Rights (UNDHR), the global conscience had not yet developed adequate environmental knowledge and sensibilities to recognise the human right to the environment

⁹⁷ Stockholm Declaration on the Human Environment UN Doc A/CONF 48/14 (16 June 1972).

⁹⁸ Principle 1.

⁹⁹ Luis E Rodríguez-Rivera “The Human Right to Environment in the 21st Century: A Case for its Recognition and Comments on the Systemic Barriers to its Encounters.” (2018) 34 Am U Int’l L Rev 144 at 157.

within this document.¹⁰⁰ Rodríguez-Rivera is of the opinion that evidence of this consciousness as early as the Stockholm Declaration illustrates that “if the UNDHR were drafted today, it would include a human right to the environment.”¹⁰¹

Be that as it may, authors such as Alison Dundes Renteln argue that the human rights asserted by the UNDHR bear a “Western imprint” and are not necessarily universally applicable to all worldviews.¹⁰² For many authors, values that the UDHR upholds, such as a right to property (art 17) and articles concerning Western political systems (arts 18 to 21), “clearly embody” a preferred set of Western values that are not necessarily universally accepted.¹⁰³ As Part 1 has argued, the international climate change regime also asserts values that are not consistent with an Indigenous worldview. Therefore, there is an argument that human rights, which Rodríguez- Rivera argues the international climate change regime has long recognised, are distinctly Western and do not necessarily drive the recognition of the rights that Indigenous peoples value.

Despite the historical disregard for distinct Indigenous human rights, several key multilateral agreements emerged at the end of the first decade of the 2000s, which began recognising that Indigenous human rights, including those relating to the environment, needed explicit protection. In 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) declared Indigenous peoples have the right to the protection of the environment and the “productive capacity of their lands or territories and resources.”¹⁰⁴ Then, in 2009, Resolution 10/4 of the United Nations Human Rights Council (UNHRC) framed climate change as a human rights issue and stated that its effects “will be felt most acutely by those segments of the population who are already in a vulnerable situation.”¹⁰⁵ These documents articulated that the human rights endorsed within the climate change response are not simply the Western articulation of rights that the international climate change regime had traditionally embodied.

¹⁰⁰ At 156.

¹⁰¹ At 194.

¹⁰² Alison Dundes Renteln International Human Rights: Universalism versus Relativism (Sage Publications, London, 1990) at 53.

¹⁰³ Renteln, above n 102, at 52.

¹⁰⁴ United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007), art 29(1).

¹⁰⁵ UN Human Rights Council Resolution 10/4 2009 UN Doc A/HRC/10/L 11 (March 31 2009), at 1.

B Early References of IEK in International Law and Policy

By explicitly recognising distinct Indigenous human rights in relation to the environment and climate change, the UNDRIP and Resolution 10/4 of the UNHRC created space for Indigenous peoples and their rights within the international climate change discourse. In conjunction with declaring Indigenous peoples as a stakeholder in environmental concerns, the UNDRIP also specifically referenced how IEK can contribute to international environmental law and policy, recognising that respect for knowledge and traditional practices “contribute to sustainable and equitable development and proper management of the environment.” ¹⁰⁶ This reference illustrated how Indigenous peoples could participate in the climate change discussions and formally contribute to those negotiations.

Possibly due to the early 2000s shift towards the Indigenous human rights agenda, the IPCC Fourth Assessment Report 2007 is one of the first to recognise the potential benefits of including local and IEK in public policy on climate change adaptation and sustainable development. ¹⁰⁷ However, true to a sentiment common to the time, the report limits the expression of those benefits to complementing “more formal technical understanding generated through scientific research,” ¹⁰⁸ suggesting IEK lacks a scientific basis. The IPCC Fifth Assessment Report 2014 illustrates a more meaningful acceptance of the value of IEK by outlining that “deployment of science and relevant technologies” to moderate the impacts of climate change “cannot take place in a vacuum... [but] combine technology options with local knowledge.”¹⁰⁹ Instead of simply “complementing” contemporary science, the 2014 Report recommends that the co-production of Western science with IEK can benefit climate change adaptation.¹¹⁰

¹⁰⁶ United Nations Declaration on the Rights of Indigenous Peoples, above n 104, annex.

¹⁰⁷ GW Yohe, RD Lasco, QK Ahmad, NW Arnell, SJ Cohen, C Hope, AC Janetos and RT Perez “Perspectives on climate change and sustainability” in ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson (eds) Climate Change 2007: Impacts, Adaptation and Vulnerability – Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) 811.

¹⁰⁸ At 832.

¹⁰⁹ F Denton, TJ Wilbanks, AC Abeysinghe, I Burton, Q Gao, MC Lemos, T Masui, KL O’Brien and K Warner “2014: Climate-resilient pathways: adaptation, mitigation, and sustainable development” in CB Field, VR Barros, DJ Dokken, KJ Mach, MD Mastrandrea, TE Bilir, M Chatterjee, KL Ebi, YO Estrada, RC Genova, B Girma, ES Kissel, AN Levy, S MacCracken, PR Mastrandrea, and LL White (eds) Climate Change 2014: Impacts, Adaptation, and Vulnerability – Part A Global and Sectoral Aspects – Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge and New York, 2014) 1101 at 1119.

¹¹⁰ At 1121.

The human rights documents of the early 2000s likely also influenced the recognition of IEK within UNFCCC decisions. COP16 to the UNFCCC in Cancun, Mexico, in 2010 prompted the first of a series of UNFCCC decision texts to recognise IEK in this way. The Cancun Agreement on Climate Change addressed the rights of Indigenous peoples as stakeholders in the 2013 Reducing Emissions from Deforestation and Forest Degradation in Developing Countries policy, particularly through safeguarding the respect for Indigenous knowledge and rights, while referencing the then-recent adoption of the UNDRIP.¹¹¹ COP16 also established the Cancun Adaptation Framework, which stated that action on adaptation “should be based on... the best available science and, as appropriate, traditional and indigenous knowledge.”¹¹² Despite its relatively weak approach to the balance between contemporary science and IEK (indicated by the “as appropriate” qualifier), COP16 was an important stepping stone for later UNFCCC decisions and agreements that increasingly began referencing IEK within their recommendations. Nevertheless, the phrasing of the reference to IEK in the Cancun Agreement implies a hierarchy of knowledge (as discussed in Part 1), which the Paris Agreement replicates (discussed in Chapter V). Therefore, despite the shift towards incorporating IEK within the climate change response, it is questionable whether international actors have set up the legal climate change regime in a way that can meaningfully incorporate IEK.

C Conclusion

This Chapter has discussed the idea that it was not until the international community recognised that Indigenous human rights were distinct from Western human rights and needed explicit protection that the international community understood and protected the Indigenous human right to the protection of the environment. Along with this human rights recognition came the acceptance that IEK was valuable within this protection. This shift in international human rights law appeared to influence the emergence of climate change law, policy and research in the early 2000s, which explicitly recognised the value of IEK in the climate change response.

¹¹¹ Report of the Conference of the Parties on its sixteenth session UN Doc FCCC/CP/2010/7/Add 1 (15 March 2011) at 26.

¹¹² At 4.

V The Paris Agreement

The most significant development for IEK’s recognition within the international climate regime is the most recent, binding, multilateral climate agreement from the Paris Climate Conference 2015. Despite its explicit recognition of IEK, Indigenous peoples and other critics have voiced their disappointment about the Paris Agreement’s impractical incorporation of this knowledge.

A Explicit Reference to Indigenous Peoples and IEK in the Agreement

The Paris Agreement crucially sets the goal of holding the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels. ¹¹³ Parties to the Agreement are to achieve this goal through nationally determined contributions (NDCs) to the global response to climate change.¹¹⁴

There are two explicit references to Indigenous peoples in the Paris Agreement. The first is in the preamble, where parties agree that they must consider the rights of Indigenous peoples.¹¹⁵ This makes the Paris Agreement the first-ever legally binding global climate change agreement to reference these rights. ¹¹⁶ The reference is a clear nod to the 2014 proposal by the International Indigenous Peoples’ Forum on Climate Change (IIPFCC), listing their demands for COP20 and COP21.¹¹⁷ The Forum, who represent the Indigenous Peoples Caucus members who attend the UNFCCC COPs, demanded “recognition of a human rights-based approach which respects Indigenous peoples’ rights in climate-change agreements and related actions.”¹¹⁸ Yet, Indigenous peoples appeared displeased by the ultimate reference to their rights within the Paris Agreement because of its non-binding nature. ¹¹⁹ In the IIPFCC’s statement at the COP21 closing plenary, the representative for the Forum communicated their

¹¹³ Paris Agreement 3156 UNTS (opened for signature 12 December 2016, entered into force 4 November

2016), art 2(a).

¹¹⁴ Art 3.

¹¹⁵ Preamble.

¹¹⁶ Annalisa Savaresi “Traditional knowledge and climate change: a new legal frontier?” (2018) 9 JHRE 32 at 49.

¹¹⁷ Jill Leaness “Vulnerability and the Voice of Indigenous Peoples through the Lens of Climate Change Policy” in Keith E Peterman, Gregory P Foy and Matthew R Cordes (eds) Climate Change Literacy and Education: Social Justice, Energy, Economics and the Paris Agreement Volume 2 (ACS Publications, New York, 2017) 1 at 5.

¹¹⁸ IIPFCC “About the International Indigenous Peoples’ Forum on Climate Change”

<http://www.iipfcc.org/who-are-we> Leaness, above n 117, at 5.

¹¹⁹ Leaness, above n 117, at 5.

disappointment that the UNFCCC did not assure the reference to their rights in the operative section of the Agreement, but simply the preambular text.¹²⁰ The non-binding nature of the reference to Indigenous rights is also represented by encouraging the action using the word “should.”¹²¹ Without using the direction, “shall,” countries are not legally required to adhere to the statement. ¹²² Nevertheless, scholars believe that the reference is not imposing new human rights obligations but drawing attention to comply with existing ones (eg. within the UNDRIP) and, in this way, “the Agreement provides an entry point for considering states’ existing obligations under international human rights law.”¹²³

The other reference to Indigenous peoples within the Paris Agreement is that in art 7(5) on climate change adaptation (mirroring the IEK reference within the Cancun Adaptation Framework, discussed in Chapter IV): “Parties acknowledge that adaptation action... should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems.” ¹²⁴

Article 7(5) is again a nod to the IIPFCC’s 2014 proposal, which demanded “recognition of, and respect for, Indigenous traditional knowledge and the role of Indigenous peoples in adaptation and mitigation.”¹²⁵ Nevertheless, the article represents a continuation of the theme discussed in Chapter III: COPs asserting that IEK is relevant to adaptation but ignoring its potential contribution to climate change mitigation efforts (despite the IIPFCC’s explicit demand). The IIPFCC’s closing statement expressed their concern that reference to IEK should have applied “everywhere in the Agreement.”¹²⁶

The IIPFCC closing statement also expressed their disappointment about the relatively weak IEK reference. Despite its placement in the operative section of the Agreement, the IIPFCC claim that it should have existed without the qualification “as appropriate.”¹²⁷ Among other inferences, the phrase seems to suggest that parties to the Agreement should refer to IEK only

¹²⁰ Frank Ettawageshik “International Indigenous Peoples Forum on Climate Change Statement” (Closing Plenary of UNFCCC COP 21, Paris, France, 12 December 2015).

¹²¹ Paris Agreement, above n 113, preamble.

¹²² Leaness, above n 117, at 5.

¹²³ Savaresi, above n 116, at 49.

¹²⁴ Paris Agreement, above n 113, art 7(5).

¹²⁵ Leaness, above n 117, at 5.

¹²⁶ Frank Ettawageshik, above n 10.

¹²⁷ Frank Ettawageshik, above n 10.

where they identify a “knowledge gap.” In this way, parties would present IEK simply as a new source of data, whereby “the complexity and diversity of Indigenous knowledge systems and the holistic and spiritual nature of this knowledge are not adequately captured.” ¹²⁸ The qualification also presents an opportunity for IEK to be over-looked altogether.¹²⁹

B Indigenous Participation at Paris

There is a link between these non-binding references to IEK in the Paris Agreement and the participation processes at UNFCCC COPs, which overlook or even outwardly deny the representation and participation of Indigenous peoples.¹³⁰ Indigenous peoples have tried to seek credentials as sovereign nations within multilateral agreements since at least 1923 when an Iroquois Six Nations Confederacy chief unsuccessfully petitioned for representation at the League of Nations. ¹³¹ Nevertheless, within the UNFCCC processes, unless they can gain official accreditation, most Indigenous peoples are offered the same rights and access as non- governmental organisations and research institutions: observer status. ¹³² As observers, Indigenous peoples cannot voice their concerns nor ensure the UNFCCC addresses them.¹³³ The IIPFCC's closing statement particularly illustrates this point. The state-centred approach of the COPs justifies this representation because states within which Indigenous peoples reside are supposed to speak to their interests within COP processes. ¹³⁴ Histories of the marginalisation of these peoples within their home states, however, often render this approach meaningless.

The dichotomy between the state parties to the Agreement and those simply granted observer status was particularly apparent in Paris. The Paris Conference only permitted those with official accreditation to access the conference arena (the “Blue Zone”).¹³⁵ The Conference

¹²⁸ Foyer and Kervan, above n 95, at 161.

¹²⁹ Melanie Zurba and Anastasia Papadoplous “Knowledge Participation and the Incorporation of Indigenous Knowledge and Perspectives in Global Environmental Governance Forums: A Systematic Review” (2023) 72 J Environ Manage 84 at 91.

¹³⁰ Zurba and Papadoplous, above n 129, at 87.

¹³¹ Claudia Comberti, Thomas F Thornton and Michaela Korodimou Addressing Indigenous Peoples’ Marginalisation at International Climate Negotiations: Adaptation and resilience at the margins (Environmental Change Institute, Working Paper, November 2016) at 5.

¹³² At 7.

¹³³ Zurba and Papadoplous, above n 129, at 90.

¹³⁴ Comberti, Thornton and Korodimou, above n 131, at 7.

¹³⁵ Comberti, Thornton and Korodimou, above n 131, at 13.

relegated Civil Society (including Indigenous peoples and NGOs) to the “Green Zone”, which refers to the space in and around the central conference zone which is accessible to the public.¹³⁶ Many discussions at the COP were closed off from groups in the Green Zone despite promises otherwise.¹³⁷ The IIPFCC hosted the Indigenous Peoples’ Pavilion within the Green Zone for “hundreds of Indigenous peoples from around the world to communicate key messages, facilitate knowledge exchange, and share innovative solutions to climate change.”¹³⁸ Yet, these actors had limited opportunity to communicate their views and ideas to the main conference. Some side events to the COP for Civil Society to present these views occurred within the Blue Zone itself. ¹³⁹ However, the event coordinators expected that members of Civil Society would supply their own translators to communicate to the audience members.¹⁴⁰ Many Indigenous participants in these processes are severely under-resourced and lack the capacity to send adequate personnel to these events, let alone translators.¹⁴¹ Negotiating parties rarely visited the Green Zone and thus left Indigenous Peoples “watching and voicing from the margins.”¹⁴²

In recognition of these barriers to participation within UNFCCC processes, in 2017, parties to COP23 adopted a decision to operationalise the Local Communities and Indigenous Peoples Platform (LCIPP).¹⁴³ Parties to the UNFCCC created the Platform to “enhance the engagement of local communities and Indigenous peoples in the UNFCCC process.”¹⁴⁴ The Platform is the “first formal, permanent and distinct space created for Indigenous Peoples within the UNFCCC.”¹⁴⁵ Scholars believe we are yet to see the impacts of the LCIPP.¹⁴⁶ However, there is potential for parties to the COPs to use the Platform to relegate Indigenous voices to one body. This may have the effect of reducing Indigenous participation within the UNFCCC

¹³⁶ At 13.

¹³⁷ At 13.

¹³⁸ IIPFCC “Indigenous Peoples’ Pavilion at COP 21” <http://www.iipfcc.org/cop21> .

¹³⁹ Comberti, Thornton and Korodimou, above n 131, at 14.

¹⁴⁰ At 14.

¹⁴¹ Zurba and Papadoplous, above n 129, at 90.

¹⁴² Comberti, Thornton and Korodimou, above n 131, at 16.

¹⁴³ Savaresi, above n 116, at 32.

¹⁴⁴ Local Communities and Indigenous Peoples Platform “Overview” (2020) United Nations Climate Change

<https://lcipp.unfccc.int/lcipp-background/overview>.

¹⁴⁵ Elle Belfer, James D Ford, Michelle Maillet, Malcolm Araos and Melanie Flynn “Pursuing an Indigenous Platform: Exploring Opportunities and Constraints for Indigenous Participation in the UNFCCC” (2019) 19 GEP 12 at 27.

¹⁴⁶ Belfer, Ford, Maillet, Araos and Flynn, above n 145, at 29.

anyway.¹⁴⁷ There are further concerns that parties to the Convention will view the LCIPP as the only effort necessary for Indigenous participation within the UNFCCC.¹⁴⁸

C Conclusion

Limited references to IEK in the Paris Agreement illustrate how the COPs have viewed notions of Western economic theory and scientific theory as superior to IEK. As they have continued to dominate the climate change regime since the original UNFCCC agreement, these two forces diminish any ability for IEK to be meaningfully incorporated within the scheme. The dichotomy between state parties to these Agreements and Indigenous peoples, illustrated by the Blue Zone-Green Zone distinction in Paris, is a further obstacle to IEK incorporation within the legal regime.

Ultimately, this Part illustrates a need for more robust references to IEK within the international climate change regime to recognise its value in climate change action. Nevertheless, these references are unlikely to gain any strength while the Western worldview continues to dominate the scheme.

¹⁴⁷ At 27.

¹⁴⁸ At 27.

Part 3: A/NZ’s Recognition of MEK in Domestic Climate Change Law and Policy

VI A/NZ: A Kaupapa Māori Approach to Climate Change

As a party to the UNFCCC, the Kyoto Protocol and the Paris Agreement, the A/NZ Government must respond to climate change according to these international agreements. Māori, as a result of colonisation, are bound by the A/NZ Government’s actions within this space. Along with Indigenous Peoples elsewhere, this places Māori in a difficult position as a population of people who are disproportionately affected by the impacts of climate change, who have a unique knowledge set to deal with these impacts, but whose rights and ability to respond to climate change are undermined by inherently Western international and domestic approaches to climate change action.

A Māori and the UNFCCC

Māori are the tangata whenua of A/NZ. Therefore, the overarching aim for Māori “is the protection of Aotearoa, the Earth and the Earth’s atmosphere in accordance with Māori kaitiaki obligations.”¹⁴⁹ In 1997, Andrea Tunks recognised that this aim could only be achieved at the international level “through the empowerment and inclusion of indigenous peoples in the creation of legal instruments for the Earth’s protection.” ¹⁵⁰ There is evidence of Māori contribution to the climate change regime since UNCED 1992.¹⁵¹ Nevertheless, as the previous Chapters have discussed, this over-arching aim has been impeded for Māori and other Indigenous Peoples by a delayed and limited recognition of IEK within the international regime.

The Indigenous Peoples of the Pacific Group, including Māori from A/NZ, submitted a declaration to COP21 calling for several actions to result from the Paris Agreement. One of

¹⁴⁹ Andrea Tunks “Tangata Whenua Ethics and Climate Change” (1997) 1 NZJEL 67 at 68.

¹⁵⁰ At 68.

¹⁵¹ Interview with Mike Smith, Climate Activist (Mana Wikaire-Lewis, Te Ao Māori News, 21 October 2022).

these “calls” was for the language and terms of the Paris Agreement to be consistent with the World Conference and Indigenous Peoples Outcome Document, which stated that “Indigenous peoples’ knowledge and strategies to sustain their environment should be respected and taken into account when we develop national and international approaches to climate change mitigation and adaptation.”¹⁵² As discussed, the resulting Paris Agreement makes provision for IEK within adaptation action. Nevertheless, this weak provision and the lack of recognition of the value of IEK within the climate change mitigation scheme explains why Ngāpuhi and Ngāti Kahu Climate Activist, Mike Smith, has claimed that the international regime needs a “morality reset.” ¹⁵³ Smith contends that colonisation has eroded the tikanga and systems that have allowed Indigenous communities to “walk softly” on the earth.”¹⁵⁴

Additionally, Smith argues that the capitalist, extractivist economic model of the international climate change regime “puts profit before the well-being of our present and future generations.” ¹⁵⁵ According to Christine Winter, this is because Westerners harness intergenerational environmental justice theory to justify budget constraints through a cost- benefit analysis whereby “living individuals may evade obligations to unidentifiable potential beings of time to come”. ¹⁵⁶ By contrast, Māori epistemologies and ontologies view the generations as co-existing.¹⁵⁷ Nevertheless, Ngāti Kahunungunu, Ngāti Rongomaiwahine and Rangitāne climate activist India Logan-Riley sees the mention of intergenerational equity in the preamble of the Paris Agreement as a “little win that can be used to leverage bigger wins later on.”¹⁵⁸

Mike Smith contends that “we need a new economic model” that is not locked into extractive economies based “fundamentally on selfishness and greed.” ¹⁵⁹ The international climate change regime is based on this economic model of capitalist notions of individual ownership

¹⁵² Indigenous Peoples of the Pacific Pacific Indigenous Peoples Declaration on Climate Change to the UNFCCC Conference of the Parties 21 (Te Piringatahi o Maungaronga Marae, Declaration, September 2015) at 2.

¹⁵³ Interview with Mike Smith, above n 151. ¹⁵⁴ Interview with Mike Smith, above n 151. ¹⁵⁵ Interview with Mike Smith, above n 151.

¹⁵⁶ Christine Jill Winter “Does time colonise intergenerational environmental justice theory?” (2020) 29 Environ Polit 278 at 279.

¹⁵⁷ At 283.

¹⁵⁸ Maia Wikler “What Indigenous Land Defenders at COP26 Want” (11 November 2021) Vogue Culture

<https://www.vogue.com/article/what-indigenous-land-defenders-at-cop26-want>.

¹⁵⁹ Interview with Mike Smith, above n 151.

which fundamentally contrasts with the functioning social and economic model of whakapapa and utu developed by and still practised by Māori.¹⁶⁰

It is the stark contrast between the current international climate change regime and MEK and practices that caused India Logan-Riley to state in their speech at COP23 that: ¹⁶¹

as Indigenous peoples, our traditional knowledge and technological innovations, anchored in the natural world, have enabled our peoples to not merely survive, but to prosper, adapt and thrive in an ever- changing world, without being at odds with Mother Earth.

Logan-Riley went on to say that “[Indigenous peoples] will continue to listen to Mother Earth and uphold our traditional knowledge because this is where solutions lie.”¹⁶² Four years later, at COP26, their message was more robust: “This COP, learn our histories, listen to our stories, honour our knowledge and get in line or get out of the way.”¹⁶³ Nevertheless, Te Rūnanga o Te Rarawa chair, Haami Piripi, who attended the latest COP (COP27) believed that it was a “bloody waste of time” for the Māori delegation to attend the conference because they were unable to “get to the heart of the conference” (speaking about the confined Blue Zone - Green Zone distinction discussed in Chapter V).¹⁶⁴ It, therefore, seems unlikely that the UNFCCC fully acknowledged Logan-Riley’s message the year before.

The message from Māori attendees of the COPs is clear: the UNFCCC needs to do more to honour IEK within the international climate change regime. Māori also push this message regarding incorporating MEK into our domestic regime in A/NZ (discussed in Chapter VII).

¹⁶⁰ Kassie Hartendorp “Utu and capitalism: a harmful imbalance” (2018) 32 Contiuum J Media Cult Stud 678 at 680.

¹⁶¹ India Miro Logan-Riley “Ms. India Logan-Riley on behalf of indigenous peoples organisations” (UNFCCC, High Level Segment Statements of COP21/CMP13/CMA1 2, November 2017).

¹⁶² India Miro Logan-Riley, above n 161.

¹⁶³ India Miro Logan-Riley, Climate Change Activist “Opening Conference Speech” (Opening Conference of COP26, Scottish Event Campus, Glasgow, Scotland).

¹⁶⁴ Interview with Haami Piripi, Te Rūnanga o Te Rarawa chair (Gideon Porter, Waatea News, 23 November 2022).

B What is MEK?

1. Māori cosmology: te timatanga o te ao

Te timatanga o te ao is the traditional Māori creation story, describing how Te Kore, a single spiritual source gave birth to Te Po and “the many realms of the night and darkness within which the Earth, Papatūānuku and the Sky, Ranginui, were formed.”¹⁶⁵ The descendants of Papatūānuku and Ranginui assumed “pivotal roles in the creation and control of the natural world. ¹⁶⁶ However, there is no single pan-Māori cosmology that defines this process. ¹⁶⁷ Nevertheless, the essential elements of this cosmology recognise an “intimately connected material and spiritual world ... [which] conceptualises the environment as a total, integrated system.”¹⁶⁸

2. Te ao, tikanga and mātauranga Māori

Te timatanga o te ao explains te ao Māori: the Māori worldview which acknowledges the interconnectedness and interrelationship of all living and non-living things.¹⁶⁹ Within te ao Māori exists the values that underpin tikanga.¹⁷⁰ Mātauranga Māori comprises tikanga and te ao Māori to produce uniquely Māori knowledge that Māori have developed over many centuries.¹⁷¹ Daniel Hikuroa describes ‘mātauranga’ as the “ūkaipō of knowledge in New Zealand.” ¹⁷² Literally, the word “ūkaipō” refers to night feeding a baby, but also metaphorically refers to human life and its dependence on Papatūānuku, therefore, explaining ‘mātauranga’ as the “infant body of knowledge generated in, by and for this country.”¹⁷³

¹⁶⁵ Tunks, above n 149, 71.

¹⁶⁶ At 71.

¹⁶⁷ DNT King, A Skipper and WB Tawhai “Māori knowledge of local weather and climate change in Aotearoa - New Zealand” (2008) 90 Clim Change 385 at 390.

¹⁶⁸ At 390.

¹⁶⁹ Sandeeka Mannakkara, Elrasheid Elkhidir and Aimee Matiu “The Journey Towards Understand and Valuing Indigenous Knowledge for Climate Change Adaptation in Northland, Aotearoa-New Zealand” in Gopal Krishna Panda, Uday Chatterjee, Nairwita Bandyopadhyay, Martiwi Diah Setiawati and Debarpita Banerjee (eds) Indigenous Knowledge and Disaster Risk Reduction: Insight Towards Perception, Response, Adaptation and Sustainability (Springer Nature, Cham, 2023) 387 at 396.

¹⁷⁰ At 396.

¹⁷¹ At 396.

¹⁷² Daniel Hikuroa “Mātauranga Māori - the ūkaipō of knowledge in New Zealand” (2017) 47 JRSNZ 5.

¹⁷³ Georgina Tuari Stewart “Mātauranga Māori: a philosophy from Aotearoa” (2022) 52 JRSNZ 18 at 18.

3. MEK: mātauranga taio

King, Skipper and Tawhai refer to MEK as “mātauranga taiao.”¹⁷⁴ These authors believe MEK incorporates traditional and non-traditional knowledge “and represents the totality of experiences of generations of Māori in Aotearoa.”¹⁷⁵ In response to the Waitangi Tribunal claim about the place of mātauranga Māori in New Zealand laws, Ko Aotearoa Tēnei,¹⁷⁶ the Tribunal explained the “deep values” that underpin MEK as follows:

a Whanaungatanga / whakapapa

The Tribunal explains that whanaungatanga is the “organising principle of mātauranga.”¹⁷⁷ In English, the term means kinship, but in the broader sense, explaining family lines that stretch countless generations. ¹⁷⁸ The principle explains the relationship between people, natural resources and related bodies of knowledge within te ao Māori.¹⁷⁹ Whakapapa is the “practical manifestation of the kinship principle.” ¹⁸⁰ Through whakapapa, Māori understand the environment holistically rather than separating humans, ecosystems, flora, fauna and the climate.¹⁸¹ These concepts explain the te ao Māori ontology of intergenerational co-existence between human and non-human.¹⁸² As explained by Māori academics, Anne-Marie Jackson, Joanne Baxter and Hauiti Hakopa, whakapapa and whanaungatanga explain the te ao Māori anthropomorphising of the environment: “All natural resources, all life was birthed from Mother Earth. Thus the resources of the earth did not belong to man, but rather, man belonged to the earth.” ¹⁸³

¹⁷⁴ King, Skipper and Tawhai, above n 167, at 387.

¹⁷⁵ At 387.

¹⁷⁶ Waitangi Tribunal Ko Aotearoa Tēnei (Wai 262, 2011).

¹⁷⁷ At 105.

¹⁷⁸ At 105.

¹⁷⁹ At 105.

¹⁸⁰ At 105.

¹⁸¹ Garth Harmsworth and Shaun Awatere “Indigenous Māori Knowledge and Perspectives of Ecosystems” in JR Dymond (ed) Ecosystem services in New Zealand - conditions and trends (Manaaki Whenua Press, Lincoln, 2013) 274 at 275.

¹⁸² Winter, above n 156, at 284.

¹⁸³ Anne-Marie Jackson, Joanne Baxter and Hauiti Hakopa “Hauroa Maori – He Timatanga: Maori Health – An Introduction” in Lyn Carter, Suzanne Duncan, Gianna Leoni, Lachy Paterson and Matiu Tai Ratima (eds) Te Koparapara: An Introduction to the Maori World (Auckland University Press, Auckland, 2018) 324 at 328.

b Kaitiakitanga

The Waitangi Tribunal explained that kaitiakitanga is the other core value of MEK. Kaitiakitanga, they acknowledge, is more than guardianship or stewardship as it also contains a spiritual dimension that animates the concept.¹⁸⁴ Whanaungatanga creates a kaitiakitanga obligation as “an intergenerational obligation arises by virtue of the kin relationship.”¹⁸⁵ The connection explains “why iwi refer to mountains, rivers, lakes and harbours in the same way that they refer to close human relations.”¹⁸⁶ Māori, as kaitiaki, are recipients and, therefore, stewards of the environment.¹⁸⁷ This understanding of kaitiakitanga, the Tribunal explains, illustrates why “kaitiakitanga... can be described as Māori environmental law, policy and practice.”¹⁸⁸

C Why is the Use of MEK in A/NZ’s Domestic Climate Change Regime Important?

1. Climate change does, and will continue to, disproportionately affect Māori

Māori are disproportionately affected by the effects of climate change for two principal reasons: climate change erodes the unique relationship Māori have with the environment and their ancestors, and Māori are disproportionately within socio-economic groupings that are more vulnerable to the effects of climate change.

The threads of whakapapa that connect all Māori and natural resources to Ranginui and Papatūānuku mean that when the effects of climate change deplete resources, the deep spiritual connections Māori have to the environment and their ancestors are also diminished.¹⁸⁹ Climate change thus hinders Māori kaitiaki obligations.

¹⁸⁴ Waitangi Tribunal Ko Aotearoa Tēnei, above n 176, 105.

¹⁸⁵ At 105-106.

¹⁸⁶ At 106.

¹⁸⁷ At 105.

¹⁸⁸ At 111.

¹⁸⁹ Anne-Marie Jackson, Joanne Baxter and Hauiti Hakopa “Hauroa Maori - He Timatanga: Maori Health - An Introduction” in Lyn Carter, Suzanne Duncan, Gianna Leoni, Lachy Paterson and Matiu Tai Ratima (eds) Te Koparapara: An Introduction to the Maori World (Auckland University Press, Auckland, 2018) 324 at 329.

The spiritual connection Māori have with the environment is just one factor in what many describe as a “matrix” of issues facing Māori society due to the effects of climate change.¹⁹⁰ Māori and the Māori economy are, and will be, deeply ingrained within the sectors that are most affected by climate change: agriculture, fisheries, and forestry. ¹⁹¹ Māori commonly occupy remote and rural areas more vulnerable to extreme weather events than urban environments.¹⁹² Water availability, allocation and quality are challenges for Māori in eastern and northern regions prone to drought and climate change only exacerbates this factor. ¹⁹³ Climate change also depletes the wellbeing of natural terrestrial and freshwater ecosystems. This a disproportionate effect on Māori not only because of their kaitiaki obligations toward these ecosystems but because of the utilisation of public land, waterways and coastal resources for Māori recreational activities and the collection of cultural resources.¹⁹⁴ Māori communities are also commonly situated within coastal areas that are highly vulnerable to sea level rise.¹⁹⁵ Lastly, Māori health and wellbeing are affected by climate change through direct effects such as extreme temperatures and indirect effects such as physical, social and economic conditions that make Māori less resilient to climatic changes. ¹⁹⁶ This list is only an example of the “matrix” of issues that arise for Māori due to climate change. As discussed below, Māori have responded to climate change for centuries in A/NZ. Nevertheless, colonisation’s impacts have meant that Māori cannot adapt or relocate as easily as they once could because many Māori “now live in permanent communities and have to negotiate greatly circumscribed social and economic situations.”¹⁹⁷

2. MEK works

Possibly the most apparent reason for the incorporation of MEK within our climate change regime is because, as discussed, Māori have been experiencing natural climatic changes in A/NZ and the Pacific for centuries and have area-specific knowledge of how to mitigate and

¹⁹⁰ Darren King, Guy Penny and Charlotte Severne “The climate change matrix facing Māori society” in Richard Nottage, David Wratt, Janet Bornman and Keith Jones (eds) Climate Change Adaptation in New Zealand: Future Scenarios and some sectoral perspectives (New Zealand Climate Change Centre, Wellington, 2010) 100.

¹⁹¹ At 104-105.

¹⁹² At 106.

¹⁹³ At 107.

¹⁹⁴ At 107.

¹⁹⁵ At 107.

¹⁹⁶ At 107.

¹⁹⁷ At 103.

respond to its effects. Mātauranga recognises that the initial migration of Māori from the Pacific resulted from climate change.¹⁹⁸ For Māori, climate change is not a new phenomenon.¹⁹⁹ For example, traditional Māori cosmology speaks about the changing climate phenomenon. Tāwhirimātea (the weather god) responds to the challenges of his brothers Tāne (god of forests and birds) and Tūmatauenga (god of war and hunting/food cultivation/fishing/cooking), whose human descendants are continually altering the balance of the climate. ²⁰⁰ Tawhiri Matea’s upset about their father, Ranginui’s depletion through the misdemeanours of humankind is reflected in the form of strong winds, hurricanes and the like - otherwise known as climate change.²⁰¹ Māori now use their tried and tested area-specific knowledge to respond to the effects of anthropogenic climate change.

Iwi like Te Whānau-ā-Apanui monitor the climate by the local sequence of natural events like the movement of stars, the growth of certain trees and flowers and the age and aspect of the moon, which enables them to make “vital decisions about the timing, safety and viability of daily and seasonal activities.”²⁰² King, Skipper and Tawhai, after interviewing Te Whānau-ā- Apanui, argued that “there is considerable potential to gain from long-term Māori experiences with weather and climate, particularly where new settlements have been established in areas with otherwise short-term environment records.” ²⁰³ Moreover, they discussed that “when combined with oral histories of weather and climate change, this experience and knowledge can enable the detection of subtle, yet significant changes, taking place in the environment.”²⁰⁴

Daniel Hikuroa discusses how pūrākau, an essential facet of mātauranga Māori, can enable the detection of these subtle but significant environmental changes.²⁰⁵ Pūrākau are a “traditional form of Māori narrative, containing philosophical thought, epistemological constructs, cultural codes and world views.”²⁰⁶ In Matata, a pūrākau regarding the Waitepuru stream speaks of a taniwha ngārara residing there. The shape of the stream reflects the taniwha’s anatomy. Māori use this to describe the stream’s behaviours, including the description of the taniwha’s tail

¹⁹⁸ Tunks, above n 149, at 83.

¹⁹⁹ At 83.

²⁰⁰ At 79.

²⁰¹ At 79.

²⁰² King, Skipper and Tawhai, above n 167, at 402.

²⁰³ At 402.

²⁰⁴ At 402.

²⁰⁵ Hikuroa, above n 172.

²⁰⁶ At 6.

which “starts as the stream flows out of the uplifted land onto the Rangitaiki Plains and is said to flick from side to side.”²⁰⁷ Not only does the pūrākau of the ngārara present an understanding of the geomorphology of the stream and its behaviour, but in te ao Māori, the presence of a taniwha is precautionary and suggests danger associated with the body of water. ²⁰⁸ Māori considered this pūrākau when selecting building sites for the four marae in Matata. ²⁰⁹ Accordingly, when debris flows smashed through Matata in 2005, none of the four marae were impacted, while these flows destroyed many houses in the area.²¹⁰ Using pūrākau in Matata climate change adaptation is evidence of what India Logan-Riley spoke about in their opening ceremony address to COP26: “What we (Indigenous peoples) do works. In the face of mediocre leadership, Indigenous peoples shine through.”²¹¹

D Conclusion

As discussed in Chapter IV, the UNDRIP realises the value of MEK within climate change law as it specifically acknowledges that respect for knowledge and traditional practices “contribute to sustainable and equitable development and proper management of the environment.” ²¹² Nevertheless, Māori have argued that the current international climate change regime, and its limited references to and utilisation of traditional knowledge, are failing to uphold their rights as Indigenous peoples.

Like all Indigenous peoples, Māori have a distinct, area-specific, ever-evolving traditional knowledge of their environment. For Māori, this relationship with the environment is especially significant given their kaitaiki obligations and whakapapa connection to the land and climate. Nevertheless, their position within communities and socio-economic groups who are, and will continue to be, disproportionately affected by climate change diminishes their ability to exercise kaitiakitanga effectively. Within this context, A/NZ has a considerable moral obligation to successfully recognise the importance of MEK within our domestic climate change regime.

²⁰⁷ At 7.

²⁰⁸ At 7.

²⁰⁹ At 7.

²¹⁰ At 7.

²¹¹ India Logan-Riley, above n 163.

²¹² United Nations Declaration on the Rights of Indigenous Peoples, above n 104, annex.

VII A/NZ’s International Obligations in Practice: Climate Change Legislation and Policy

A/NZ’s obligations under the international climate change regime have influenced domestic law and policy. The Climate Change Response Act 2002 (CCRA/the Act), its subsequent amendments, the various institutions and policies it provides for, and A/NZ’s first NDC, are all manifestations of this international obligation. This Chapter shows that A/NZ’s climate change law reflects the international regime’s limited provision for IEK.

A A/NZ’s Obligations Under the International Regime

1. Under the Kyoto Protocol

As discussed in Chapter III, the Kyoto Protocol established the international ETS regime. The CCRA is A/NZ’s primary piece of climate change legislation which the then-Government enacted in the lead-up to ratification of the Kyoto Protocol.²¹³ The CCRA first established the New Zealand Emissions Unit Register, allowing A/NZ to participate in the Kyoto Protocol trading mechanism.²¹⁴ Later amendments to the Act established the New Zealand Emissions Trading Scheme (NZ ETS) (discussed below).²¹⁵

2. Under the Paris Agreement a Legislative response

To implement the Paris Agreement into our domestic law, the Government further amended the CCRA through the Climate Change Response (Zero Carbon) Amendment Act 2019 (ZCAA) to provide a framework to contribute to the Paris Agreement’s goal of limiting the average temperature increase to 1.5 degrees Celsius above pre-industrial levels.²¹⁶ The ZCAA

²¹³ Samuel P Leonard “Commitment Issues: A Critical Analysis of New Zealand’s Emissions Trading Scheme” (2015) 19 NZJEL 113 at 120.

²¹⁴ Climate Change Response Act 2002, Part 2, Subpart 2.

²¹⁵ Climate Change Response (Emissions Trading) Amendment Act 2008; Climate Change Response (Moderated Emissions Trading) Amendment Act 2009.

²¹⁶ Philipp Semmelmayer “The Climate Change Response (Zero Carbon) Amendment Act - A Critical Analysis of New Zealand’s Response to Climate Change” 24 NZJEL 157 at 158.

establishes the Climate Change Commission, the need for regular national climate change risk assessments and adaptation plans, and amends the Act’s Treaty of Waitangi clause (discussed below).²¹⁷

b NDCs

The Paris Agreement obliges A/NZ to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.”²¹⁸ A/NZ’s first NDC as updated in November 2021, sets the goal of reducing net GHG emissions to 50 per cent below gross 2005 levels by 2030.²¹⁹ In setting NDCs, the UN suggests that parties should outline their implementation plans, including public participation and engagement with local communities and Indigenous peoples. ²²⁰ A/NZ’s NDC outlines that the CCRA requires that Māori are “adequately consulted” on emissions reduction plans (ERPs), suggesting limited (if any) Māori participation in producing the plans themselves. Additionally, the NDC stated that the Government was “working on” a range of policies that will include Government and iwi/Māori working together and the Government supporting Māori to create a transition strategy that applies “Māori values and mātauranga Māori to the transition.”²²¹ The phrase illustrates that at the time of setting the NDC, these strategies were in an embryonic stage, suggesting decision- makers did not incorporate mātauranga within the NDC in the first place.

Crucially, the NDC did set out that existing policies for “engagement with indigenous peoples” included the “Vision Mātauranga” government policy. ²²² The policy aims to enable opportunities for Māori leadership in research and is “concerned with discovering the distinctive contribution that Māori knowledge, resources and people can make” to research.²²³ While the policy recognises the inherent value of mātauranga in research and is undoubtedly often applied to climate change research, nothing in the policy focuses distinctly on climate

²¹⁷ Climate Change Response Act, ss 3A, 5A, 5ZP and 5ZS.

²¹⁸ Paris Agreement, above n 113, art 4(2).

²¹⁹ New Zealand Government New Zealand’s First Nationally Determined Contribution: Updated 4 November 2021 (New Zealand Government, Submission Under the Paris Agreement, 4 November 2021) at 1.

²²⁰ United Nations “All about NDCs” Climate Action <https://www.un.org/en/climatechange/all-about- ndcs#:~:text=Simply%20put%2C%20an%20NDC%2C%20or,update%20it%20every%20five%20years.>; New Zealand Government, above n 219, at 9.

²²¹ New Zealand Government, above n 219, at 9.

²²² At 9.

²²³ Ministry of Research, Science and Technology Vision Mātauranga: Unlocking the Innovation Potential of Māori Knowledge, Resources and People (Booklet, July 2007).

change research. Thus, its showcasing to the UN may simply be an example of the Government ‘box-ticking’ its NDC requirements.

B A/NZ’s Legislative Climate Regime: the CCRA

As discussed in Chapter V, the Paris Agreement makes two limited references to Indigenous peoples in the context of parties promoting and considering Indigenous rights and being guided by Indigenous knowledge where appropriate in adaptation action. The CCRA's inclusion of MEK reflects this international obligation to include it: a weak obligation. The CCRA's enactment and subsequent amendments have reflected successive governments' aims to balance their international responsibilities and secure support from the voting public and supporting political parties. As such, including MEK within this regime is only one of a myriad of interests that the CCRA aims to adhere to. MEK references within the CCRA reflect this tension.

1. Treaty clause

Section 3A of the CCRA is one of (now) many examples of Parliament’s inclusion of a ‘Treaty clause’ within legislation. Treaty clauses create a statutory obligation for Crown representatives to, for example, “have regard to”²²⁴, “take into account”²²⁵, or “give effect to”²²⁶ the principles of the Treaty of Waitangi. The Courts and the Waitangi Tribunal have long confirmed that one of those principles, active protection, refers to the Crown’s obligation “to protect Māori capacity to retain tribal authority over tribal affairs and to live according to their cultural preferences.” ²²⁷ Crucially, the Waitangi Tribunal has confirmed that mātauranga Māori is a taonga that the Crown is required to actively protect.²²⁸ Therefore, by listing several obligations within the CCRA to “recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi,”²²⁹ Parliament is directing decision-makers to actively protect mātauranga Māori, and necessarily MEK, in their climate change response.

²²⁴ Crown Minerals Act 1991, s 4.

²²⁵ Resource Management Act 1991, s 8.

²²⁶ Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 12.

²²⁷ Te Puni Kōkiri He Tirohanga ō Kawa ki te Tiriti o Waitangi: The Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (Guide, 2001) at 93.

²²⁸ Waitangi Tribunal The Wānanga Capital Establishment Report (Wai 718, 2009) at 48.

²²⁹ Section 3A.

Unfortunately, however, active protection of mātauranga through this clause is not so straightforward. The section lists six positive obligations on decision-makers to “recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi” as shown in Appendix A. In circumscribing these obligations, the section contrasts with, arguably, more “powerful”²³⁰ unelaborated Treaty clauses, such as that in the Conservation Act 1987, which requires that the Act “be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.”²³¹ Skellern argues that the elaborated clause in s 3A “creates no overarching provision for Treaty principles to be considered” and “the open language... is nothing more than a statement of purpose that does not create any enforceable legal obligation.”²³² Despite providing decision-makers certainty as to how Parliament intended to “recognise and respect” the principles, Skellern stated the section is a “double-edged” sword, as it “has potential to place limitations upon the breach and force” of the Treaty clause.²³³ Former Member of Parliament, Metiria Turei, shared Skellern’s criticisms at the clause’s inception, stating during Parliamentary debate that s 3A is a “complicated clause” which is actually “very narrow in its approach.”²³⁴

Despite these views, the Supreme Court has held, concerning the similar elaborated Treaty clause in s 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, that elaborated clauses instead contain “strong” directions to decision-makers, illustrating “the trend in more recent statutes to give a greater degree of definition as to the way in which Treaty principles are to be given effect.”²³⁵ Furthermore, the Court held that the constitutional significance of the Treaty meant that an “intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear.”²³⁶ A recent High Court decision has somewhat read- down this articulation when they stated that this did not mean that “discretionary decision- makers are obliged to comply with the principles absent express provision.”²³⁷ Nevertheless,

²³⁰ Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122 at [52].

²³¹ Conservation Act 1987, s 4.

²³² Anna-Marie Skellern “The Climate Change Response Act 2002: The Origin and Evolution of s 3A – the Treaty Clause” (2012) 10 NZJPIL 167 at 185.

²³³ At 185.

²³⁴ (24 November 2009) 659 NZPD 8022.

²³⁵ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 at [150] per Young and France JJ and [296] per Williams J.

²³⁶ At [151].

²³⁷ Students for Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116 at [90].

that Court agreed with the Supreme Court that the constitutional significance of the Treaty means that making decisions that conflict with the principles should only be done when Parliament has expressly provided for this.²³⁸

What results from these judgments, therefore, is that decision-makers should not actively make decisions that conflict with the Crown’s responsibility to protect MEK unless Parliament has expressly provided for this. There appears to be no such provision within the CCRA. On the other hand, for decision-makers to always give effect to the Crown’s responsibility to actively protect MEK within CCRA, the Act has to expressly provide for this. Arguably, the CCRA does not explicitly provide for this for all decision-making: only decision-making prescribed within s 3A’s subsections. However, the Supreme Court has made it clear that regardless of the potential strength of the elaborated clause, the Courts should apply the principle of legality²³⁹ to give effect to Treaty principles given their constitutional significance.²⁴⁰ Nevertheless, this interpretation does not remedy the uncertainty of the strength of the section and suggests that active protection of MEK will only occur if the judiciary becomes involved in the process.

It is further arguable that express provisions to give effect to the Crown’s responsibility to actively protect MEK via the principle of the Treaty of Waitangi within s 3A of CCRA are not as strong as they could be. For example, the indirect wording, “pay particular attention to” and “have regard to” in subsections (ab) and (ac) does not mandate the Minister for Climate Change to appoint Māori to the Climate Change Commission.²⁴¹ Furthermore, the uses of the word “consult” in subsections (ad) and (ab) do not obliged the Minister to implement Māori wishes into ERP strategies or secondary legislation, as consultation requires no agreement or compromise between Māori and the Crown.²⁴² Lastly, subsection (ae) requires that the Minister “take into account” the consequences on Māori when considering plans for national adaptation. What follows is that the Minister need only “weigh the matter with other matters being considered and in making a decision, effect a balance between the matter at issue and be able to show that he or she has done so.” ²⁴³ These phrasings, therefore, largely leave the

²³⁸ At [93].

²³⁹ Jason NE Varuhas “The Principles of Legality in Aotearoa New Zealand” (2023) 33 Public Law Review Forthcoming 1 at 14-15.

²⁴⁰ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 235, at [151].

²⁴¹ Honour Kelly “Frustration and Failure: The Zero Carbon Bill and the Treaty of Waitangi” (LLB(Hons) Dissertation, Victoria University of Wellington, 2019), at 18.

²⁴² At 18-19.

²⁴³ Haddon v Auckland Regional Council [1993] NZPT 204; [1994] NZRMA 49 (PT) at 61, as cited in Kelly, above n 241, at 19.

responsibility of active protection to decision-maker discretion. While the constitutional significance of the Treaty means that those decision-makers should not make decisions that conflict with that responsibility, their “giving effect” to it can be as vigorous as their deems appropriate. In a general election year filled with political party promises to end “race-based policies,”²⁴⁴ this discretion could allow future decision-makers to be considerably less likely to use their discretion in the interests of active protection of MEK.

2. Climate change commission

The only express mentions of mātauranga, and therefore MEK, within the CCRA are in ss 5H and 5M relating to the appointment of members to the Climate Change Commission and matters the Commission must consider. The ZCAA amended the CCRA to establish the Climate Change Commission to provide independent, expert advice to the Government on mitigating and adapting to climate change and to monitor its progress towards its emissions reductions and adaptation goals.²⁴⁵ In appointing members to the Commission, s 5H(1)(d)(ii) stipulates that the Minister must have regard to the need to have members who, collectively, have skills, experience, and expertise in “te ao Māori (including tikanga Māori, te reo Māori, mātauranga Māori and Māori economic activity).” The clause illustrates Parliament’s recognition of their international obligation in the Paris Agreement to guide adaptation action with Indigenous knowledge.²⁴⁶ However, the A/NZ Parliament has gone one step further than the Paris Agreement with this clause, which recognises the value of guiding both adaptation and mitigation with MEK.

As with the Treaty clause, however, the ability of s 5H to practically enforce an inclusion of MEK is questionable. The Commission has no decision-making or enforcement powers to prevent the independent body from being politicised. ²⁴⁷ Therefore, the powers of the Commission are defined narrowly as being able to “provide advice” and “monitor”. ²⁴⁸ An independent body, like the Commission, that operates at arms-length from the Government is typical of A/NZ’s constitutional system, and is important to ensure advice provided for policy

²⁴⁴ ACT Party “Real change means one set of laws for all New Zealanders” ACT For Real Change

<https://www.realchange.nz/co-governance>.

²⁴⁵ Sections 5A-5B.

²⁴⁶ Paris Agreement, above n 113, art 7(5).

²⁴⁷ Semmelmayer, above n 216, at 165.

²⁴⁸ Section 5B.

creation is independent and uninfluenced by political party politics and public opinion. ²⁴⁹ Nevertheless, the lack of enforcement powers means that members of the Commission who are potentially appointed for their expertise in MEK (per s 5H(1)(d)(ii)) can only provide advice as to the importance and usefulness of MEK within climate change policy. There is no guarantee that the Commission will pass on MEK advice, which sits among a number of other climate change considerations, to governments. Furthermore, if MEK advice is passed on, there is no guarantee governments will accept that advice and implement it into climate change law and policy.

Another weakness of s 5H lies in the strength of the Minister’s obligation to appoint a Commissioner with MEK expertise. Identical to s 5H’s reference within the Treaty clause is the direction that the Minister must “have regard” to the need for a Minister to have such expertise.²⁵⁰ As discussed above, this does not mandate the appointment of a Commissioner with MEK expertise to the Climate Change Commission. ²⁵¹ A further weakening of s 5H(1)(d)(ii)’s MEK reference comes from the organisation and format of s 5H itself. The need to have skills, experience, expertise in, and an understanding of innovative approaches to, specifically, the Treaty of Waitangi and te ao Māori is only one consideration of three areas of expertise a member of the Commission must have within subsection (1)(d). Furthermore, the need for a Commissioner to have skills, experience, expertise and an understanding of innovative approaches is only one of four considerations within subsection (1). Because the Minister is not mandated to appoint a Commissioner with MEK expertise, the Minister may consider any (of the many) other considerations more important.

Furthermore, the CCRA stipulates that all Commissioners should collectively hold the recommended expertise, experiences, knowledge and skills listed as considerations within s 5H. Other considerations include the need to appoint members with “experience working in or with local and central government” and “knowledge of the process by which public and regulatory policy is formed and given effect to.” ²⁵² A Minister is more likely to appoint Commissioners who, individually, hold a wide range of these areas of expertise listed within those considerations to ensure the collective group of Commissioners have a wide range of

²⁴⁹ Semmelmayer, above n 216, at 165-166.

²⁵⁰ Section 5H.

²⁵¹ Kelly, above n 241, at 18.

²⁵² Section 5H(1)(b)-(c).

expertise. The danger is that someone with specific expertise in te ao Māori is less likely to also hold experience in, for example, the fundamentally opposite Westminster style of governance. A Commissioner who ticks more of the s 5H boxes could be, therefore, more likely to be appointed than one with distinct MEK knowledge. The fact that none of the current Commissioners’ online biographies expressly state they hold te ao, mātauranga, te reo, or tikanga expertise is potentially illustrative of this point.²⁵³

Section 5M lists specific factors the Commission must consider in exercising its functions, duties and powers under the Act. Te ao Māori is one of three considerations listed in subsection

(f) among seven other considerations within the overall section. Two statutory interpretation matters arise from s 5M. The first is that “must consider” is a juxtaposing phrase. “Must” indicates an obligation placed on the decision to do something, whereas “consider” is an invitation to act or not act: after ‘considering’ the subject matter, the decision-maker can decide how to use that consideration. For example, after considering te ao Māori, the Commission can decide whether or not to implement it when performing functions, duties and powers. The utilisation of the imperative “must'' is thus somewhat redundant. The other matter is relevant to the organisation of s 5M itself. Case law suggests that the order in which provisions appear can reflect a broad hierarchy of subject matter.²⁵⁴ This is relevant to s 5M, which lists “current available scientific knowledge” as the first consideration in subsection (a). In contrast, “te ao Māori” (including mātauranga Māori per s 5H) is found within the second to last subsection. The implicit suggestion of a hierarchy of knowledge, with Western science at the top and mātauranga Māori at the bottom, reflects the same implication within art 7(5) of the Paris Agreement, discussed in Chapter V.

3. Emissions reductions

The requirement to create an Emissions Budget is a key feature of the CCRA that the ZCAA implemented. The Minister must set regular emission budgets to meet A/NZ’s emission reduction target for net zero GHG emissions (except for biogenic methane) by 2050. ²⁵⁵

²⁵³ Climate Change Commission “Our Board and Chief Executive”

<https://www.climatecommission.govt.nz/who-we-are/our-people/our-people- 2/#:~:text=Professor%20James%20Renwick%2C%20Commissioner&text=Professor%20James%20Renwick% 20is%20a,in%20weather%20and%20climate%20research.>

²⁵⁴ Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1810.

²⁵⁵ Sections 5Q and 5X.

Parliament set this target to contribute to the Paris Agreement's global effort to limit the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels.²⁵⁶ There is a further requirement for the Minister to prepare a plan for meeting the relevant emissions budget.²⁵⁷ This plan must include a strategy to mitigate the impacts of reducing emissions and increasing removals on iwi and Māori.²⁵⁸ Additionally, in preparing a plan, the Minister must ensure adequate consultation with iwi and Māori.²⁵⁹ Crucially, these are the only references to Māori in the Part of the Act dealing with emissions reduction.²⁶⁰

Despite the lack of reference to MEK within this part of the Act, and therefore no obligation on the Minister to incorporate MEK into the ERP, the current ERP makes extensive reference to mātauranga Māori.²⁶¹ The ERP recognises that the transition to a “climate-resilient society will depend on a diverse range of approaches, beyond Western knowledge systems”²⁶² and that “recognising the importance of mātauranga Māori in the climate response is one way the Government will uphold te Tiriti.”²⁶³ Practical implementation of mātauranga, it states, “will involve protecting the relationship of Māori with taonga and providing support and access to the same resources, tools, institutions and developments as other knowledge systems.”²⁶⁴ The use of mātauranga is referenced throughout the document, for example, within an emphasis on nature-based solutions, incorporating mātauranga into urban development, and informing a circular economy with mātauranga. ²⁶⁵ These references suggest that the Government recognises the need for MEK incorporation into mitigation strategies despite the lack of international obligation to do so, and weak obligations within domestic law. Nevertheless, there is no statutory requirement for future governments to make such extensive provisions for MEK within successive ERPs. The Māori response to the 2022 ERP was varied, praising the plan for recognising that the Crown needs to be “learning from Māori leadership on climate change”

²⁵⁶ Climate Change Response Act, s 5W(a).

²⁵⁷ Section 5ZG(1)(a).

²⁵⁸ Section 5ZG(3)(a).

²⁵⁹ Section 5ZI(1)(b).

²⁶⁰ Part 1(b).

²⁶¹ Minister of Climate Change Te hau mārohi ki anamata: Towards a production, sustainable and inclusive economy (Ministry for the Environment, Emissions Reduction Plan, May 2022) at 42-54.

²⁶² At 49.

²⁶³ At 50.

²⁶⁴ At 50.

²⁶⁵ At 162.

but at the same time, arguing that the plan “would not fulfil the needs of the Treaty of Waitangi.”²⁶⁶

4. NZ ETS

Part 4 of the CCRA establishes the NZ ETS, enacted through the Climate Change Response (Emissions Trading) Amendment Act 2008. The amendment established the New Zealand Emissions Unit (NZU) as the primary domestic trade unit.²⁶⁷ The NZ ETS is a polluter-pays system whereby participants must surrender NZUs (or other Kyoto units) to the Government to cover their GHG emission pollution.²⁶⁸ As with the global ETS under the Kyoto Protocol, there is scepticism that the ETS simply sets up a “license to pollute.”²⁶⁹

Almost mirroring the establishment of the global ETS within the Kyoto Protocol (which did not refer to Indigenous peoples), Māori and MEK are not referenced within Part 4 of the CCRA, except for s 160, which relates to the Minister’s initiation of a review of the NZ ETS. The section allows the Minister a considerable discretion to review the scheme “by any method the Minister considers appropriate.” ²⁷⁰ The Minister may decide to appoint a review panel to conduct a review. ²⁷¹ If the Minister decides not to appoint a panel, they must “consult representatives of iwi and Māori who appear to the Minister to be likely to have an interest in the review.”²⁷² The NZ ETS scheme extensively impacts Māori and affects Māori interests in economic, land, and cultural sustainability.²⁷³ During initial consultation leading up to the implementation of the NZ ETS, Māori lamented that their interests were not reflected in discussion of climate change issues and “asserted their rights to actively participate in shaping their own future in a manner which aligns with [Māori] laws, values and worldview.”²⁷⁴ These

²⁶⁶ Ashleigh McCaull “Māori leaders say Te Tiriti approach missing from Emissions Reductions Plan” RNZ

(New Zealand, 17 May 2022).

²⁶⁷ Part 4, Subpart 2.

²⁶⁸ Leonard, above 213, at 121.

²⁶⁹ Indigenous Corporate Solutions Summary of Key Themes from Emissions Trading Scheme Consultation Hui with Māori (Ministry for the Environment, Summary Document, February 2008) at 23.

²⁷⁰ Section 160(2).

²⁷¹ Section 160(3).

²⁷² Section 160(5)(b).

²⁷³ 37 Degrees South Limited and Cognitus Advisory Services Limited Māori Impacts from the Emissions Trading Scheme: Detailed Analysis and Conclusions (Ministry for the Environment, Report, January 2008) at 1- 3.

²⁷⁴ Linda Te Aho “Contemporary Issues in Māori Law and Society: The Tangled Web of Treaty Settlements, Emissions Trading, Central North Island Forests and the Waikato River” [2008] WkoLawRw 11; (2008) 16 Wai L Rev 229 at 231.

criticisms suggest that the current clause about consultation with Māori in a review of the NZ ETS should be stronger, reflecting a need to widely consult with Māori, given their interests at stake that the A/NZ Government has historically neglected.

In these initial consultations, Māori emphasised that the starting point for the discussion should be about Māori knowledge, laws, values and ways of viewing the world.²⁷⁵ Nevertheless, the NZ ETS adopts the same economic-focused scheme as the global ETS, focused on commodifying the atmosphere. For this reason, Kāi Tahu, Kāti Mamoe, Waitaha and Te Rapuwai researcher, Lyn Carter, recognises that the impact of the scheme on Māori is significant because the scheme itself sits “outside of any [MEK] approach that seeks balance across the environment, social, cultural and economic factors.” ²⁷⁶ Instead of the holistic approach to climate change mitigation that MEK calls for, the Crown’s primary focus has been on the NZ ETS.²⁷⁷

Te Rarawa, Te Aupouri, Ngāti Kahu, Taranaki and Tarara academic, Nin Tomas, recognised that our legal climate change regime cannot reconcile the two competing world views that result in a holistic approach to environmental management on the one hand and an economically-centred approach to environmental management on the other.²⁷⁸ She asserted that “one views the Earth and her systems as disposable chattels, while the other views the Earth as a living entity with a powerful and independent personality.” ²⁷⁹ Instead of the economic focus on the environment, Tomas suggested that our climate change regime should begin to recognise Papatūānuku as a living entity with integrated systems of which humans should stop unnecessary exploitation. ²⁸⁰ Nevertheless, she did not suggest that Māori are innocent bystanders to this exploitation. Tomas recognised that “the monetary value of tradeable land and resources and commodities in an international [and domestic] market holds a magical allure for wealth that was previously unattainable” for Māori in post-colonial

²⁷⁵ Te Aho, above n 274, at 231.

²⁷⁶ Lyn Carter Indigenous Pacific Approaches to Climate Change (Palgrave Macmillan, Cham, 2019) at 63.

²⁷⁷ Naomi Johnstone “Negotiating climate change: Māori, the Crown and New Zealand’s Emission Trading Scheme” in Randall S Abate and Elizabeth Ann Kronk (eds) Climate Change and Indigenous Peoples (Edward Elgar Publishing Limited, Cheltenham, 2013) 508 at 508.

²⁷⁸ Nin Tomas “Maori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219 at 241.

²⁷⁹ At 241.

²⁸⁰ At 240.

A/NZ.²⁸¹ The Labour and the Green Parties accused the first amendments to the NZ ETS of being a “hopelessly inadequate response to climate change which would impose a huge cost on future generations.”²⁸² Yet, it was the Māori party who enabled the passing of amendments into law. Tomas disapproved, stating that: ²⁸³

One is left with the uneasy feeling that when Western thinking might be developing beyond viewing commercial exploitation of the environment as a societal good, Māori may be poising themselves to fill the empty space.

Tomas’s statement is condemning, however, it does suggest how the economic incentives that the NZ ETS provides have prevailed as a mitigation scheme at the expense of an MEK approach. As discussed in Chapter III, without an Indigenous contribution from its inception, the ETS phenomenon has diminished Indigenous interests in the atmosphere due to the imposition of colonialism, imperialism and capitalism. The NZ ETS is no exception.

5. Adaptation

The Paris Agreement, as discussed, specifically provides for the incorporation of IEK within adaptation action, albeit the provision is weakened by the “as appropriate” qualification.²⁸⁴ The Paris Agreement also stipulates the need for parties to engage in adaptation planning processes by formulating and implementing national adaptation plans (NAPs).²⁸⁵ Part 1C of the CCRA deals with adaptation. It explicitly recognises that in preparing a NAP the Minister must take into account “New Zealand’s relevant obligations under international agreements.” ²⁸⁶ The CCRA recognises the obligation to incorporate MEK into this adaptation action without making an express provision.

Nevertheless, statutory interpretation of this phrase, again, questions the strength of the Minister’s obligation to incorporate MEK. As discussed above, the phrasing “take into account” suggests that the Minister need only “weigh the matter with other matters being

²⁸¹ At 238.

²⁸² Peter Wilson “Emissions Trading Scheme Passed into Law on 63-58 Vote” (25 November 2009) Guide2

<www.guide2.co.nz/politics/news/emissions-trading-scheme-passed-into-law-on-63-58-vote/11/12803> , as cited in Tomas, above n 278, at 238.

²⁸³ Tomas, above n 278, at 239.

²⁸⁴ Paris Agreement, above n 113, art 7(5).

²⁸⁵ Article 7(9).

²⁸⁶ Section 5ZS(4)(c).

considered and in making a decision, effect a balance between the matter at issue and be able to show that he or she has done so.”²⁸⁷ The phrasing is significant given that, while making no provision for MEK within the list of considerations in s 5ZS(4), “scientific and technical advice” is an express consideration the Minister must take into account when preparing NAPs. The phrasing opens up another opportunity for decision-makers to privilege Western science and technology over MEK.

The current Government, however, has released the first NAP which produces the ‘Rauora framework’ as a lens through which to progress adaptation action, “bringing together Māori values and principles into an indigenous worldview of climate change.”²⁸⁸ Notably, the NAP asserts that the Rauora framework is a vehicle for both mitigation and adaptation and is, therefore, a key action in the ERP.²⁸⁹ Interestingly, however, there is no specific reference to the Rauora framework within the ERP.

Like the ERP, the NAP weaves references to mātauranga throughout the document. These references and the overall Rauora framework lens demonstrate that the Government has begun to deliver an MEK-consistent approach to adaptation action. As discussed, however, weak requirements within the statutory regime to include such extensive references to MEK could see successive Governments weigh other interests as more important than interweaving a Māori worldview into climate change adaptation. The international obligation for A/NZ to incorporate MEK into adaptation action only falls on the A/NZ Government where “appropriate.” In domestic law, recognising this international obligation is only one of several considerations the Minister must consider when creating an NAP. The Ihirangi Group, a group of Māori climate and environmental experts, developed the Rauora framework within the current NAP.²⁹⁰ The present Government contracted with Ihirangi to create the framework. There is no telling whether successive Governments will recognise the importance of such a framework or continue to work with Māori experts, like Ihirangi, to inform future NAPs.

²⁸⁷ Haddon v Auckland Regional Council, above n 243, at 61, as cited in Kelly, above n 241, at 19.

²⁸⁸ Minister of Climate Change Adapt and thrive: Building a climate-resilient New Zealand (Ministry for the Environment, National Adaptation Plan, August 2022) at 29.

²⁸⁹ At 29.

²⁹⁰ Ihirangi Exploring an Indigenous Worldview Framework for the National Climate Change Adaptation Plan

(Ministry for the Environment, Report, June 2021) at 2.

C Issues Arising from Statutory Interpretation

A/NZ law beyond climate change has begun incorporating tikanga and, consequently, MEK into our conservation regime by appointing legal personhood to Te Uruwera and Te Awa Tupua. This legal regime recognises the whakapapa link between the land and the river and the iwi/hapū of the areas, illustrating how “Western colonial law can positively force a bridge to Indigenous laws.”²⁹¹ Jacinta Ruru spoke of the importance of the incorporation of MEK within A/NZ’s legal conservation regime when she said: ²⁹²

If we are to disrobe the colonial shackles and recognise Indigenous peoples and our legal systems not as “savage” but as equally, albeit differently, civilised, then our state and legal systems can and should adapt.

The statement is relevant to all legal systems in A/NZ, including our climate change regime. However, the weak incorporation of MEK in the CCRA is unlikely to “disrobe the colonial shackles” if CCRA drafting allows other considerations to continuously prevail over the practical utilisation of MEK.

A poignant example of why MEK references within the CCRA should be more robust, as should references within environmental law altogether, is the unsuccessful judicial review brought by Te Runanga o Te Whānau-ā-Apanui and Greenpeace in Greenpeace of New Zealand Inc v Minister of Energy and Resources.²⁹³

Te Whānau-ā-Apanui claimed that the Minister of Energy and Resources both failed to comply with Treaty obligations of consultation and active protection of Māori in the use of their land and water and failed to consider Te Whānau-ā-Apanui rights under its Māori customary title when granting a license for seismic testing in the Apanui rohe.²⁹⁴ The Court contended that the true complaint of Te Whānau-ā-Apanui is the general issue of offshore exploration and how it interferes with their concern for their taonga within marine life and waters. ²⁹⁵ The Court’s decision hinged on whether Te Whānau-ā-Apanui had, historically, made enough effort to

²⁹¹ Jacinta Ruru “Seeing Indigenous Humanness” (2021) 30 Hum Rights Def 43 at 44.

²⁹² At 43.

²⁹³ Greenpeace of New Zealand Incorporated v Minister of Energy and Resources [2012] NZHC 1422.

²⁹⁴ At [80]-[86].

²⁹⁵ At [129].

inform the Crown of their taonga concern.²⁹⁶ The Court concluded that “without being told by individual iwi/hapū of a particular taonga concern, it is unrealistic to expect the Crown to make informed decisions relevant to them” and, for that reason, the Crown did not breach any of its obligations to the iwi.²⁹⁷ The decision places a burden on Māori iwi and hapū to effectively communicate concerns to the Crown about MEK and tikanga where the statutory regime does not provide for its robust incorporation within law and policy. Christine Winter examined that “kaitiakitanga frames a set of obligations and duties that are integral to being Apanui - a necessary expression of identity, culture, political influence and determination,” and yet, “the Court could only hear a corpus of rules that legitimise extraction at the expense of the environment and Māori communities.”²⁹⁸

Andrea Tunks recognised that the only way of achieving the over-arching aim of protection of A/NZ, the Earth and the Earth’s atmosphere according to Māori kaitiaki obligations at the domestic level is “by Māori and their ethics having a meaningful and effective role in forming climate change policy.”²⁹⁹ The Court’s decision above suggests that where the CCRA does not expressly ingrain MEK, iwi, hapū and Māori individuals will struggle to bring their claims to fruition in the courts. In the Mataatua District Council's claim to the Waitangi Tribunal that the Government's response to climate change represents a breach of the Crown's Treaty of Waitangi obligations, the Council claimed that the Crown is “obliged to deal with the threat of global climate change as part of its overall obligations to actively protect Māori from these negative impacts and to actively protect Māori kaitiaki relationships with the environment.”³⁰⁰ Furthermore, in the Ko Aotearoa Tēnei report, the Waitangi Tribunal recognised that “the Crown must actively protect the continuing obligations of kaitiaki towards the environment.”³⁰¹ A key way that the Crown can meet its obligations is by strengthening the CCRA’s implementation of MEK within the regime.

²⁹⁶ At [139].

²⁹⁷ At [139]-[140].

²⁹⁸ Christine J Winter “Disaster? No surprise” (2022) 31 Environ Politics 70 at 83-83.

²⁹⁹ Tunks, above n 150, at 68.

³⁰⁰ Waitangi Tribunal Memorandum of Counsel for the Applicant in Support of Urgency Application (Wai 2607, 2017) at [54].

³⁰¹ Waitangi Tribunal, above n 177, at 118.

D Conclusion

The CCRA reflects the international climate change regime’s weak obligations on A/NZ to incorporate IEK into their climate change response. While decision-makers should, in theory, give effect to the requirement to actively protect MEK throughout decisions under the Act due to the Treaty clause, courts have contested the strength of elaborated clauses like s 3A, making its practical application uncertain. The principle of legality strengthens the clause altogether. Nevertheless, it is unlikely that all decision-makers will be aware of the duty to, or will be willing to, apply the principle of legality. Therefore, enforcing the principle will often rely on the judiciary rather than the decision-maker. In keeping with international obligations, the Act only makes two explicit references to MEK, and statutory interpretation of those references illustrates their unconvincing ability to practically enforce MEK incorporation into the climate change response.

Despite weak references, the current Government has made extensive provision for MEK within the ERP and the NAP, suggesting their recognition of its importance within A/NZ’s climate change response. Nevertheless, the existing references within the CCRA create no obligations for further governments to follow suit. Unless Parliament strengthens this obligation, it is unlikely that MEK will gain a meaningful role in A/NZ’s climate change response.

VIII Conclusion

This dissertation has questioned whether the international and A/NZ’s climate change regime makes adequate provision for the successful utilisation of IEK within the global response to climate change. It has illustrated that, despite recent recognition of the value of IEK within the climate change regime, these references ought to be stronger for IEK to make a meaningful impact.

Indigenous peoples, who have tried and tested area-specific understandings of the climate and how to adapt to and mitigate climatic changes, have long accepted their value in the climate change response. Nevertheless, the framework convention of the current regime (the UNFCCC) was the only document to emerge from the UNCED that disregarded Indigenous peoples and IEK, most likely explained by the fact that the IPCC was appointed as the authoritative source to inform priority issues of the global climate change response. The IPCC, especially at the time, curated climate change research by drawing on Western science experts and market-based solutions and disregarding other forms of knowledge as “non-scientific.” From the beginning, the IPCC appeared to frame the climate change response issue as something for which IEK was not valuable.

The Kyoto Protocol emerged from the framework, producing the ETS. The ETS is now the fundamental mitigation mechanism of the global response to climate change despite any evidence of IEK’s contribution to this scheme’s design and implementation. Many now criticise the ETS as being at odds with many Indigenous worldviews and perpetuating contemporary climate colonisation. This dissertation argues that the way that the climate change regime was designed from the beginning (to neglect IEK and pose Western scientific, economic and legal theories as more authoritative) has allowed the contemporary regime to develop in a way that is ill-suited to meaningful incorporation of IEK.

Since the emergence of critical human rights documents, like the UNDRIP and UNHRC Resolution 10/4, which recognise the rights of Indigenous peoples to the protection of their

lands and their traditional knowledge in the face of climatic changes that they will feel “most acutely” as peoples in vulnerable situations, the international community has slowly begun to accept the value of IEK in the response to anthropogenic climate change.

The Paris Agreement is the first major, binding, multilateral climate change agreement to recognise Indigenous rights and IEK. Nevertheless, the IIPFCC has criticised these references as being too confined to adaptation action and too weak to avoid decision-makers overlooking IEK altogether in practice. The dichotomy between state parties to the Agreement and those relegated to the outside of the Conference in Paris suggests that it is unlikely that Indigenous criticisms about the Agreement will be able to influence reform until COPs allow for shared decision-making between state parties and Indigenous actors.

The international regime has directly influenced the strength of A/NZ’s provision for MEK within our domestic climate change regime. This dissertation has explained what a kaupapa Māori approach to climate change looks like and why this approach is necessary within A/NZ’s climate change response. Nevertheless, like the international regime, the CCRA makes limited, meaningful provisions for MEK incorporation.

The CCRA’s Treaty clause recognises the Crown’s responsibility to actively protect MEK. However, legal academics and the courts contest the strength of elaborated treaty clauses in general. Additionally, this dissertation argues that s 3A’s specific statutory drafting weakens the obligations that it creates. Crucially, the CCRA explicitly recognises IEK with reference to the climate change commission, whose role is to provide expert advice to governments about mitigation and adaptation, suggesting that A/NZ goes further than the international community in recognising that IEK is relevant to both mitigation and adaptation. Nevertheless, statutory interpretation of this section and other sections of the CCRA suggests Parliament's reluctance to give force to any reference to IEK within the Act.

A/NZ’s current Government has proven their willingness to incorporate MEK into climate change policy despite the weak obligations in the CCRA to do so. Nevertheless, Parliament would need to strengthen statutory obligations to bind all future governments to meaningfully incorporate MEK into A/NZ’s climate change response. However, without firmer direction within the international community, state parties to the international climate change regime,

like A/NZ, can continue to afford IEK as much value as they deem appropriate to adhere to its Western scientific, economic, and legal framework.

Appendix A

3A Treaty of Waitangi (Te Tiriti o Waitangi)

In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi,-

(a) [Repealed]

(ab) with respect to section 5G (which relates to nominations for the Climate Change Commission), particular attention is required to seeking nominations from iwi and Māori representative organisations:

(ac) with respect to section 5H (which relate to appointments of members of the Commission), the Minister must, before recommending the appointment of a member to the Commission, have regard to the need for the Commission to have members wo have technical and professional skills, experience, and expertise, and innovative approaches, relevant to the Treaty of Waitangi (Te Tiriti o Waitangi):

(ad) with respect to sections 5ZG and 5ZI (which require the Minister to prepare and publish an emissions reduction plan), the Minister must include in an emissions reduction plan a strategy to recognise and mitigate the impacts on iwi and Māori of reducing emissions and must ensure that iwi and Māori have been adequately consulted on the plan:

(ae) with respect to section 5ZG (which requires the Minister to prepare a national adaptation plan), the Minister must, in preparing a plan, take into account the economic, social, health, environmental, ecological, and cultural effects of climate change on iwi and Māori:

(b) with respect to the following provisions (which relate to the powers to make secondary legislation),

before recommending the making of secondary legislation, under those provisions, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or the chief executive likely to have an interest in the secondary legislation:

(i) section 2A(5B) or (5D) (Part 5 of schedule 3):

(ii) section 30G(1)(b)(j), (c), (j), or (k) (dealings with units under Part 2):

(iii) section 30GA (auctions to sell New Zealand units):

(iv) section 30GB (limits and price controls for units):

(v) section 30GD (auction monitor)

(vi) section 30M (infringement offences):

(via) section 30W(1)(a) (price of carbon)

(vii) section 60 (exceptions in respect of activities listed in Schedule 3):

(viii) section 60A (exceptions for participants in standard forestry or permanent forestry):

(ix) section 84A or 84B (phase-out rates for eligible industrial activities):

(x) section 161D(1)(a) (notice specifying description of activity in relation to industrial allocations), unless the only purpose of the notice is to require persons to provide electricity-related contracts or any information related to those contracts.

(xi) section 161G (eligible agricultural activities):

(xii) section 162 (adding further activity to Part 2 of Schedule 4):

(xiii) section 163 methodologies and verifiers):

(xiv) section 164 (unique emissions factors):

(xv) section 168(1)(nb) (New Zealand’s best practice forest management):

(xva) section 180G (exceptions for deforestation of land with tree weeds):

(xvi) section 181W (p90 offsetting):

(xvia) section 190F (pecuniary penalty for clear-felling):

(xvib) section 191I (averaging):

(xvic) section 192U (P89 offsetting):

(xvid) section 193R (temporary adverse event suspensions):

(xvii) section (input returns):

(xviii) section 196F (forestry classifications:

(xix) section 244 (exceptions from payment of synthetic greenhouse gas levy):

(xx) section 246(1)(a) to (e) (synthetic greenhouse gas levy):

(xxi) section 258 (verifiers):

(c) [Repealed]

(d) with respect to section 161 (which relates to the appointment and conduct of a review panel),-

(i) if the Minister initiatives a review under section 160(1) or 269(1) and appoints an independent panel under section 160(3) or 269(3), the Minister must ensure that the review panel has at least 1 member who, in the Minister’s opinion, has the appropriate knowledge, skill, and experience relating to the principles of the Treaty of Waitangi and tikanga Māori to conduct the review; and

(ii) the review panel must consult with the representatives of iwi and Māori that appear to the panel likely to have an interest in the review; and

(iii) the terms of reference for the review panel must incorporate reference to the principles of the Treaty of Waitangi.

(e) [Repealed]

(f) [Repealed]

(g) [Repealed]

(h) [Repealed]

(i) [Repealed]

(j) [Repealed]

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Eugene Hunn “Indigenous Ecological Knowledge: Why bother?” in Thomas F Thornton and Shonil A Bhagwat (eds) The Routledge Handbook of Indigenous Environmental Knowledge (Routledge, Oxon, 2021) 23.

F Denton, TJ Wilbanks, AC Abeysinghe, I Burton, Q Gao, MC Lemos, T Masui, KL O’Brien and K Warner “2014: Climate-resilient pathways: adaptation, mitigation, and sustainable development” in CB Field, VR Barros, DJ Dokken, KJ Mach, MD Mastrandrea, TE Bilir, M Chatterjee, KL Ebi, YO Estrada, RC Genova, B Girma, ES Kissel, AN Levy, S MacCracken, PR Mastrandrea, and LL White (eds) Climate Change 2014: Impacts, Adaptation, and Vulnerability – Part A Global and Sectoral Aspects – Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge and New York, 2014) 1101.

Garth Harmsworth and Shaun Awatere “Indigenous Māori Knowledge and Perspectives of Ecosystems” in JR Dymond (ed) Ecosystem services in New Zealand - conditions and trends (Manaaki Whenua Press, Lincoln, 2013) 274.

GW Yohe, RD Lasco, QK Ahmad, NW Arnell, SJ Cohen, C Hope, AC Janetos and RT Perez “Perspectives on climate change and sustainability” in ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson (eds) Climate Change 2007: Impacts, Adaptation and Vulnerability – Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) 811.

IPCC “Introduction” in ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson (eds) Climate Change 2007: Impacts, Adaptation and Vulnerability – Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) 1.

Jean Foyer and David Dumoulin Kervan “Objectifying traditional knowledge, re-enchanting the struggle against climate change” in Stefan C Akyut, Jean Foyer and Edouard Morena (eds) Globalising the Climate: COP21 and the Climatisation of Global Debates (London, Routledge, 2017) 153.

Jeff Gayman “Challenges Surrounding Education and Transmission of Ainu Indigenous Ecological Knowledge in Japan: Disparate valuations of a people and their IEK” in Thomas F Thornton and Shonil A Bhagwat (eds) The Routledge Handbook of Indigenous Environmental Knowledge (Routledge, Oxon, 2021) 136.

Jill Leaness “Vulnerability and the Voice of Indigenous Peoples through the Lens of Climate Change Policy” in Keith E Peterman, Gregory P Foy and Matthew R Cordes (eds) Climate Change Literacy and Education: Social Justice, Energy, Economics and the Paris Agreement Volume 2 (ACS Publications, New York, 2017) 1.

John Lanchberry “The Rio Earth Summit” in David H Dunn (ed) Diplomacy at the Highest Level: The Evolution of International Summitry (St. Martin’s Press, New York, 1996) 220.

Kirsty Galloway McLean, Sam Johnston and Ameyalo Ramos Castillo “The role of indigenous peoples in global environmental governance: looking through the lens of climate change” in Jose Puppim de Oliveira (ed) Green Economy and Good Governance for Sustainable Development: Opportunities, Promises and Concerns (UNU Press, Tokyo, 2012) 245.

Linda Tuhiwai Smith Decolonising Methodologies: Research and Indigenous Peoples (3rd ed, Zed Books, London, 2021).

Lyn Carter Indigenous Pacific Approaches to Climate Change (Palgrave Macmillan, Cham, 2019).

Maxine Burkett “Indigenous environmental knowledge and climate change adaptation” in RS Abate and EA Kronk (eds) Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar Publishing Limited, Cheltenham, 2013) 96.

Michael Sharp, Nicole Smith and Tania Te Whenua “Climate change claim on behalf of New Zealand’s indigenous Māori peoples” in Claude Henry, Johan Rockström and Nicolas Stern (eds) Standing up for a Sustainable World: Voices of Change (Edward Elgar Publishing, Cheltenham, 2020) 179.

Naomi Johnstone “Negotiating climate change: Māori, the Crown and New Zealand’s Emission Trading Scheme” in Randall S Abate and Elizabeth Ann Kronk (eds) Climate Change and Indigenous Peoples (Edward Elgar Publishing Limited, Cheltenham, 2013) 508.

Nin Tomas “Maori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219.

Priscilla Wehi, Hēmi Whaanga, Krushil Watene and Tammy Steeves “Mātauranga as knowledge, process and practice in Aotearoa New Zealand” in Thomas F Thornton and Shonil A Bhagwat (eds) The Routledge Handbook of Indigenous Environmental Knowledge (Routledge, Oxon, 2021) 186.

Robin Wall Kimmerer Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and Teachings of Plants (Penguin Books, London, 2020).

Sandeeka Mannakkara, Elrasheid Elkhidir and Aimee Matiu “The Journey Towards Understand and Valuing Indigenous Knowledge for Climate Change Adaptation in Northland, Aotearoa-New Zealand” in Gopal Krishna Panda, Uday Chatterjee, Nairwita Bandyopadhyay, Martiwi Diah Setiawati and Debarpita Banerjee (eds) Indigenous Knowledge and Disaster Risk Reduction: Insight Towards Perception, Response, Adaptation and Sustainability (Springer Nature, Cham, 2023) 387.

Secretariat of the Convention on Biological Diversity Handbook of the Convention on Biological Diversity (Earthscan, New York, 2001).

Wendy Jackson and Phil Lyver “Who benefits? Indigenous Environmental Knowledge (IEK) in multilateral biodiversity agreements” Thomas F Thornton and Shonil A Bhagwat (eds) The Routledge Handbook of Indigenous Environmental Knowledge (Routledge, Oxon, 2021) 317.

E Journal Articles

A Claire Cutler “Critical reflections on the Westphalian assumptions of international law and organization: a crisis of legitimacy” (2001) 27 Rev Int Stud 133.

Andrea Tunks “Tangata Whenua Ethics and Climate Change” (1997) 1 NZJEL 67.

Annalisa Savaresi “Traditional knowledge and climate change: a new legal frontier?” (2018) 9 JHRE 32.

Anna-Marie Skellern “The Climate Change Response Act 2002: The Origin and Evolution of s 3A – the Treaty Clause” (2012) 10 NZJPIL 167.

Ann-Marie Kennedy, Cathy McGouran and Joya A Kemper “Alternative paradigms for sustainability: a relational worldview” (2020) 54 Eur J Mark 825.

A Nyong, F Adesina and B Osman Elasha “The value of indigenous knowledge in climate mitigation and adaptation strategies in the African Sahel” (2007) 12 Mitig Adapt Strat Glob Change 787.

Christine J Winter “Disaster? No surprise” (2022) 31 Environ Politics 70.

Christine Jill Winter “Does time colonise intergenerational environmental justice theory?” (2020) 29 Environ Polit 278.

Daisee Francour “Nature-Based Solutions are False Climate Change Solutions: Indigenous Peoples Hold the True Solutions to Climate Change” (2022) 46 CSQ 18.

Daniel Bodanksy “The United Nations Framework Convention on Climate Change: A Commentary” (1993) 18 Yale J Int’l L 451.

Daniel Hikuroa “Mātauranga Māori - the ūkaipō of knowledge in New Zealand” (2017) 47 JRSNZ 5.

Deborah McGregor “Coming Full Circle: Indigenous Knowledge, Environment, and Our Future” (2004) 28 Am Indian Quart 385.

DNT King, A Skipper and WB Tawhai “Māori knowledge of local weather and climate change in Aotearoa - New Zealand” (2008) 90 Clim Change 385.

Donna Green and Gleb Raygorodetsky “Indigenous knowledge of a changing climate” (2010) 100 Clim Change 239.

Elia Morgera and Elsa Tsioumani “Yesterday, Today, and Tomorrow: Looking Afresh at the Convention on Biological Diversity” (2010) 21 Yearb Int Environ Law 3.

Elle Belfer, James D Ford, Michelle Maillet, Malcolm Araos and Melanie Flynn “Pursuing an Indigenous Platform: Exploring Opportunities and Constraints for Indigenous Participation in the UNFCCC” (2019) 19 GEP 12.

Erika M Zimmerman “Valuing Traditional Ecological Knowledge: Incorporating the experiences of indigenous people into global climate change policies” (2005) 13 NYU Envtl L J 803.

Georgina Tuari Stewart “Mātauranga Māori: a philosophy from Aotearoa” (2022) 52 JRSNZ 18.

Heather A Smith and Karyn Sharp “Indigenous climate knowledges” (2012) 3 Wiley Interdiscip Rev Clim Change 467.

Heidi Bachram “Climate Fraud and Carbon Colonialism: The New Trade in Greenhouse Gases” (2004) 15 Capital Nat Social 5.

Jacinta Ruru “Seeing Indigenous Humanness” (2021) 30 Hum Rights Def 43.

James Ford, Michelle Maillet, Vincent Pouliot, Thomas Meredith and Alicia Cavanaugh “Adaptation and Indigenous peoples in the United Nations Framework Convention on Climate Change” (2016) 139 Clim Change 429.

Jan Petzold, Nadine Andrews, James D Ford, Christopher Hedemann and Julio C Postigo “Indigenous Knowledge on climate change adaptation: a global evidence map of academic literature” (2020) 14 Environ Res Lett 1.

Jason NE Varuhas “The Principles of Legality in Aotearoa New Zealand” (2023) 33 Public Law Review Forthcoming 1.

Joanna Cabello and Tamra Gilbertson “A colonial mechanism to enclose lands: A review of two RED+-focused special issues” (2012) 12 Ephemera 162.

Jonathan Kuyper, Heike Schroeder and Björn-Ola Linnér “The Evolution of the UNFCCCC” (2018) 43 Annu Rev Environ Resour 343.

Karolina Praźmowska-Marcinowska “Climate Change Mitigation and Adaptation: With or Against Indigenous Peoples” (2023) 96 Studia Iuridica 286.

Kassie Hartendorp “Utu and capitalism: a harmful imbalance” (2018) 32 Contiuum J Media Cult Stud 678.

Linda Te Aho “Contemporary Issues in Māori Law and Society: The Tangled Web of Treaty Settlements, Emissions Trading, Central North Island Forests and the Waikato River” [2008] WkoLawRw 11; (2008) 16 Wai L Rev 229.

Luis E Rodríguez-Rivera “The Human Right to Environment in the 21st Century: A Case for its Recognition and Comments on the Systemic Barriers to its Encounters.” (2018) 34 Am U Int’l L Rev 144.

M Brugnach, M Craps and A Dewulf “Including indigenous peoples in climate change mitigation: addressing issues of scale, knowledge and power” (2017) 140 Clim Change 19.

Megan M Shea and Thomas F Thornton “Tracing country commitment to Indigenous peoples in the UN Framework Convention on Climate Change” (2019) 58 Global Environmental Change 1.

Melanie Zurba and Anastasia Papadoplous “Knowledge Participation and the Incorporation of Indigenous Knowledge and Perspectives in Global Environmental Governance Forums: A Systematic Review” (2023) 72 J Environ Manage 84.

Michael R Dove “Indigenous People and Environmental Politics” (2006) 35 Annu Rev Anthropol 191.

Mihiata Pirini and Rhianna Morar “Climate Change and the Claiming of Tino Rangatiratanga” (2021) 5 NZWLJ 86.

Nelson Chazna and Anton de Wit “Enhancing climate governance through indigenous knowledge: Case in sustainability science” (2016) 112 S Afri J Sci 1.

Noam Obermeister “From dichotomy to duality: Addressing interdisciplinary epistemological barriers to inclusive knowledge governance in global environmental assessments” (2017) 68 Environ Sci Policy 80.

Pedram Rashidi and Kristen Lyons “Democratizing global climate governance? The case of indigenous representation in the Intergovernmental Panel on Climate Change (IPCC)” (2021) Globalizations 1.

Philipp Semmelmayer “The Climate Change Response (Zero Carbon) Amendment Act - A Critical Analysis of New Zealand’s Response to Climate Change” 24 NZJEL 157.

Sam Adelman “Human Rights in the Paris Agreement: Too Little, Too Late?” (2017) 7 TEL 17.

Samuel P Leonard “Commitment Issues: A Critical Analysis of New Zealand’s Emissions Trading Scheme” (2015) 19 NZJEL 113.

Sharan B. Merriam, Juanita Johnson-Bailey, Ming-Yeh Lee, Youngwha Kee, Gabo Ntseane and Mazanah Muhamad “Power and positionality: negotiating insider/outsider status within and across cultures” (2010) 20 Int J Lifelong Educ 405.

Shari Gearheard, Matthew Pocernich, Ronald Stewart, Joelie Sanguya and Henry P Huntington “Linking Inuit knowledge and meteorological station observations to understand changing wind patterns at Clyde River, Nunavut” (2010) 100 Clim Change 267.

Shirley V Scott “Does the UNFCCC Fulfil the Functions Required of a Framework Convention? Why Abandoning the United Nations Framework Convention on Climate Change Might Constitute a Long Overdue Step Forward” (2015) 27 J Environ Law 69.

Thomas Cottier, Philipp Aerni, Baris Karapinar, Sofya Matteotti, Joelle de Sépibus and Anirudh Shingal “The Principle of Common Concern and Climate Change” (2014) 3 Archiv des Völkerrechts 293.

Zoha Shawoo and Thomas F Thornton “The UN local communities and Indigenous peoples’ platform: A traditional ecological knowledge-based evaluation” (2019) 10 WIREs Clim Change 1.

Zoltán Grossman “Indigenous Nations’ Responses to Climate Change” (2008) 32 AICRJ 5.

F Waitangi Tribunal

Waitangi Tribunal Ko Aotearoa Tēnei (Wai 262, 2011).

Waitangi Tribunal Memorandum of Counsel for the Applicant in Support of Urgency Application (Wai 2607, 2017).

Waitangi Tribunal The Wānanga Capital Establishment Report (Wai 718, 2009).

G Reports

Aroha Te Pareake Mead Māori Congress Report for UNCED: UN Conference on Environment & Development (Māori Congress, Report, June 1992).

Claudia Comberti, Thomas F Thornton and Michaela Korodimou Addressing Indigenous Peoples’ Marginalisation at International Climate Negotiations: Adaptation and resilience at the margins (Environmental Change Institute, Working Paper, November 2016).

Ihirangi Exploring an Indigenous Worldview Framework for the National Climate Change Adaptation Plan (Ministry for the Environment, Report, June 2021).

India Miro Logan-Riley “Ms. India Logan-Riley on behalf of indigenous peoples organisations” (UNFCCC, High Level Segment Statements of COP21/CMP13/CMA1 2, November 2017).

Indigenous Corporate Solutions Summary of Key Themes from Emissions Trading Scheme Consultation Hui with Māori (Ministry for the Environment, Summary Document, February 2008).

Indigenous Peoples of the Pacific Pacific Indigenous Peoples Declaration on Climate Change to the UNFCCC Conference of the Parties 21 (Te Piringatahi o Maungaronga Marae, Declaration, September 2015).

International Labour Office Indigenous peoples and climate change: From victims to agents through decent work (International Labour Office Geneva, Report, 2017).

Māori Marsden Section II: Some Aspects of Traditional Māori Relationships Between People and the Environment (Ministry for the Environment, Resource Management Law Reform Volume 8, 1988).

Minister of Climate Change Adapt and thrive: Building a climate-resilient New Zealand

(Ministry for the Environment, National Adaptation Plan, August 2022).

Minister of Climate Change Te hau mārohi ki anamata: Towards a production, sustainable and inclusive economy (Ministry for the Environment, Emissions Reduction Plan, May 2022).

Ministry of Research, Science and Technology Vision Mātauranga: Unlocking the Innovation Potential of Māori Knowledge, Resources and People (Booklet, July 2007).

New Zealand Government New Zealand’s First Nationally Determined Contribution: Updated 4 November 2021 (New Zealand Government, Submission Under the Paris Agreement, 4 November 2021).

Te Puni Kōkiri He Tirohanga ō Kawa ki te Tiriti o Waitangi: The Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (Guide, 2001).

37 Degrees South Limited and Cognitus Advisory Services Limited Māori Impacts from the Emissions Trading Scheme: Detailed Analysis and Conclusions (Ministry for the Environment, Report, January 2008).

H Internet Resources

ACT Party “Real change means one set of laws for all New Zealanders” ACT For Real Change

<https://www.realchange.nz/co-governance>.

Climate Change Commission “Our Board and Chief Executive”

<https://www.climatecommission.govt.nz/who-we-are/our-people/our-people-

2/#:~:text=Professor%20James%20Renwick%2C%20Commissioner&text=Professor%20Ja mes%20Renwick%20is%20a,in%20weather%20and%20climate%20research.>

Eugenia Recio and Dina Hestad “Indigenous Peoples: Defending an Environment for All” (April 2022) International Institute for Sustainable Development

<https://www.iisd.org/articles/deep-dive/indigenous-peoples-defending-environment-all>.

IIPFCC “About the International Indigenous Peoples’ Forum on Climate Change”

<http://www.iipfcc.org/who-are-we> .

IIPFCC “Indigenous Peoples’ Pavilion at COP 21” <http://www.iipfcc.org/cop21> .

Krystyna Swiderska “Here’s why Indigenous economics is the key to saving nature” (12 April 2021) International Institute for Environment Development <https://www.iied.org/heres-why- indigenous-economics-key-saving-nature>.

Local Communities and Indigenous Peoples Platform “Overview” (2020) United Nations Climate Change <https://lcipp.unfccc.int/lcipp-background/overview>.

Maia Wikler “What Indigenous Land Defenders at COP26 Want” (11 November 2021) Vogue Culture <https://www.vogue.com/article/what-indigenous-land-defenders-at-cop26-want>.

Peter Wilson “Emissions Trading Scheme Passed into Law on 63-58 Vote” (25 November 2009) Guide2 <www.guide2.co.nz/politics/news/emissions-trading-scheme-passed-into-law- on-63-58-vote/11/12803>.

United Nations “All about NDCs” Climate Action <https://www.un.org/en/climatechange/all- about- ndcs#:~:text=Simply%20put%2C%20an%20NDC%2C%20or,update%20it%20every%20fiv e%20years.>.

I Speeches

Frank Ettawageshik “International Indigenous Peoples Forum on Climate Change Statement” (Closing Plenary of UNFCCC COP 21, Paris, France, 12 December 2015).

India Miro Logan-Riley, Climate Change Activist “Opening Conference Speech” (Opening Conference of COP26, Scottish Event Campus, Glasgow, Scotland).

J News articles

Ashleigh McCaull “Māori leaders say Te Tiriti approach missing from Emissions Reductions Plan” RNZ (New Zealand, 17 May 2022).

Cherie Howie “Cyclone Gabrielle: Who are the 11 victims?” RNZ (New Zealand, 20 February 2023).

K Interviews

Interview with Haami Piripi, Te Rūnanga o Te Rarawa chair (Gideon Porter, Waatea News, 23 November 2022).

Interview with Mike Smith, Climate Activist (Mana Wikaire-Lewis, Te Ao Māori News, 21 October 2022).

L Parliamentary Debate

(24 November 2009) 659 NZPD 8022.

M Unpublished Papers

Honour Kelly “Frustration and Failure: The Zero Carbon Bill and the Treaty of Waitangi” (LLB(Hons) Dissertation, Victoria University of Wellington, 2019).