Aotearoa New Zealand and the Fragility of Environmental Law Gains: Tort Prohibition, Rights of Nature and Indigenous Approaches to the Environment

Rights of Nature and Indigenous Approaches to the Environment: Convergence, Tension, and the Reshaping of International Ocean and Environmental Law

Ruby Moynihan-Magsig

This paper examines the evolving normative foundations of the burgeoning field of rights of nature (RoN) in international and comparative law, exploring their application in freshwater and marine law and their interfaces with Indigenous approaches to the environment, drawing lessons from Aotearoa New Zealand for the global RoN movement.

New Zealand's legal landscape reveals the complex relationship between rights of nature and Indigenous approaches to the natural world. While the Te Awa Tupua framework confers legal personhood upon the Whanganui River, numerous legislative instruments recognise Indigenous relational ontologies, principles and approa.ches to environmental management without invoking RoN architectures, and significant opposition to RoN exists among some Indigenous peoples. The regime applying to the internationally designated Whangamarino wetland exemplifies the interaction between the Ramsar Convention on Wetlands, domestic law and Indigenous law, demonstrating how Indigenous approaches reconfigure legal relationships with ecosystems and how traditional knowledge functions as a complementary epistemic system alongside Western science without explicit reference to RoN. In the marine domain, RoN frameworks remain underdeveloped; however, initiatives such as He Whakaputanga Moana and the Moananui Sanctuary Agreement are increasingly contesting conventional understandings of the marine environment.

The paper critically assesses RoN's potential to transform humanity's legal relationship with the environment, delivering enhanced protection, ecological integrity and intergenerational equity. It argues that one of RoN's most significant contributions may be translational: its capacity to carry Indigenous perspectives and relational ontologies into Western legal systems, reshaping how humans understand, narrate and experience environmental degradation. Yet RoN is no panacea. Its greatest promise lies within a pluralistic framework where Indigenous principles and approaches, alongside existing legal principles prioritising ecosystem health and equity, are operationalised collectively.

Legislating Immunity: New Zealand's Climate Tort Prohibition and the Limits of Parliamentary Sovereignty in International Law

Bjørn-Oliver Magsig

In February 2024 the New Zealand Supreme Court held unanimously in Smith v Fonterra that tort claims brought by a Māori elder against seven of the country's largest greenhouse gas emitters could proceed to trial, among the most significant developments in Commonwealth climate litigation. The trial will now never be heard. Introduced under urgency in June 2026, the Climate Change Response (Tort Liability) Amendment Bill creates an absolute statutory bar on tort liability for emissions-related climate harm, applies retrospectively to proceedings not yet determined, and was through its second reading within six weeks on a truncated select committee timetable. It leaves no corrective remedy in its place: the Emissions Trading Scheme has been amended to exclude agriculture permanently, agricultural emissions pricing has been abandoned, and the Government's stated reliance for the country's largest emissions source is the commercial discretion of one of the defendants.

The paper examines the prohibition through two lenses. Constitutionally, it tests the conventions restraining a parliament facing no entrenched constitution and no strike-down power. Retrospective extinguishment of a live, named proceeding, brought by an Indigenous claimant, following lobbying by defendants to it, sits uneasily with legal certainty, comity between branches, and equality before the law. That the Bill of Rights Act reporting machinery did not arrest it is part of the diagnosis. Internationally, the paper argues that domestic supremacy offers no shelter: the prohibition is difficult to reconcile with the ICJ's 2025 finding of a stringent due diligence duty to regulate private emitters, with the right of access to court under Article 14(1) ICCPR as applied to New Zealand in Mahuika, with Indigenous rights jurisprudence after Billy v Australia, and with non-regression commitments in New Zealand's trade agreements.

The claimant has now sought judicial review of the decision to legislate itself. Where European courts have expanded climate accountability, New Zealand supplies the counter-case: a mature democracy legislating accountability out of existence, and a test of whether international law can discipline sovereignty exercised against a state's own citizens.