Private Law Theory

ABSTRACT
Indigenous peoples occupy an outsize role in climate government. Many drivers of climate change are also those which have led to the colonisation and subjugation of Indigenous peoples and their laws. While often vulnerable to the effects of climate change, Indigenous peoples are also often agents in leading responses to the crisis. Yet many Indigenous peoples face difficult choices in responding to climate change’s impacts, while also drawing on their resources to secure economic prosperity. This chapter explores the role of private law in this dynamic. It begins by identifying Indigenous peoples’ efforts to hold climate emitters to account through tort law (including the integration of Indigenous legal norms into tort law doctrine). It then identifies the role of Indigenous and state legal norms in mediating the relationship between Indigenous peoples and their lands. Next, this chapter identifies issues at the frontier of climate law and Indigenous peoples, including fiduciary (and quasi-fiduciary) duties, private law models of reparations, and the legal protection of traditional ecological knowledge. The agency and difficult choices faced by Indigenous peoples shape all these issues. So too does the relationship between Indigenous and state law within a given jurisdiction. The agency of Indigenous peoples, often expressed through private legal norms, is limited in the absence of Indigenous self-determination.

Bookman, Sam, Indigenous Peoples, Private Law, and Climate Change (July 2, 2025). Forthcoming in Oxford Handbook of Private Law and Climate Change (OUP), Douglas Kysar and Ernest Lim eds.