On 11th October, 2020, Indigenous peoples called a Day of Rage Against Colonialism. Main actions organized were against the forced assimilation of Indigenous peoples and for an alternative to Columbus Day. Colonial statues were felled across the United States.
In Arizona, O’odham Anti-Border Collective protested the construction of a border wall. Customs and Border Protection Agencies assaulted the Indigenous protestors with tear gas, rubber bullets, and arrests.
Joyce Echaquan, a 37 year old Indigenous woman, died in a hospital in Quebec. From her deathbed, she had live-streamed the racist and misogynist comments of her nurses. Vigils, rallies, and demonstrations were organized after the video went viral.
Disputes over fishing rights between Indigenous peoples and commercial fishers in Nova Scotia led to mob violence. The commercial fishers have threatened, abused, sabotaged against the Sipekne’katik First Nation group. Indigenous peoples across the nation are organizing solidarity actions.
Secwepemc people in Canada have demanded a halt in the construction of the Trans Mountain Pipeline. The pipeline threatens salmon population, on which both neighboring human and nonhuman communities depend upon. The protestors were assaulted by arrests.
Wet’suwet’en people have been protesting the Coastal Gas Link pipeline for over a decade. On February, the Wet’suwet’en launched a series of rail, port and highway blockades. More recently, calls for solidarity actions have begun to circulate as the Coastal GasLink pipeline is preparing to drill under the Morris river.
Check out the Facebook page of the Wet’suwet’en Access Point on Gidimt’en Territory.
In July, members of the Haudenosaunee Confederacy occupied a proposed development site in Ontario. Community mobilization and highway blockades were organized as a response to the militarized raid on August 5th by the Ontario Provincial Police. The Ontario government has tried to isolate the encampment by criminalizing and arresting supporters. Resistance has been going strong since then.
Photo: 2009 algae bloom in western Lake Erie. Photo by Tom Archer.
It should be clear to anyone following the events surrounding attempts by the citizens of Toledo, OH, with help from nonprofit law firm the Community Environmental Legal Defense Fund (CELDF), to protect Lake Erie with the Lake Erie Bill of Rights, that the American legal system and all levels of government in their current form exist to protect corporations’ ability to destroy nature in the name of profit and protect those corporations from outraged citizens injured by corporate activities.
In the scorching summer heat of August 2014, nearly half a million people in Toledo, OH were told not to use tap water for drinking, cooking, or bathing for three days because a harmful algae bloom poisoned Lake Erie. Harmful algae blooms on Lake Erie have become a regular phenomenon. They produce microcystin, a dangerous toxin. Microcystin “causes diarrhea, vomiting, and liver-functioning problems, and readily kills dogs and other small animals that drink contaminated water.” The Ohio Environmental Protection Agency reports that mere skin contact with microcystin-laden harmful algae blooms can cause “numbness, and dizziness, nausea…skin irritation or rashes.” Scientists have also discovered that harmful algae blooms produce a neurotoxin, BMAA, that causes neurodegenerative illness, and is associated with an increased risk of ALS, and possibly even Alzheimer’s and Parkinson’s. In 2018, a federal judge found that the principal causes of Lake Erie’s perennial harmful algae blooms are “phosphorus runoff from fertilizer, farmland manure, and, to a lesser extent, industrial sources and sewage treatment plant discharges.”
The Environmental Working Group and Environmental Law and Policy Center report that, not surprisingly, between 2005 and 2018 the number of factory farms in the Maumee river watershed – a river that flows into Lake Erie and boasts the largest drainage area of any Great Lakes river
“exploded from 545 to 775, a 42 percent increase. The number of animals in the watershed more than doubled, from 9 million to 20.4 million. The amount of manure produced and applied to farmland in the watershed swelled from 3.9 million tons each year to 5.5 million tons.”
The groups also state that “[t]he amount of phosphorus added to the watershed from manure increased by a staggering 67 percent between 2005 and 2018.” And, “69 percent of all the phosphorus added to the watershed each year comes from factory farms in Ohio.”
Many Americans believe regulatory laws like the Clean Water Act and regulatory agencies like the United States Environmental Protection Agency (EPA) exist to protect against phenomena like harmful algae blooms. But, Senior US District Court Judge James G. Carr recently described how regulatory laws and agencies have failed to protect Lake Erie. In a 2018 decision in a case brought by the Environmental Law and Policy Center under the Clean Water Act for the failures of the US and Ohio EPAs, Carr described, “Ohio’s long-standing, persistent reluctance and, on occasion, refusal, to comply with the [Clean Water Act].” He also wrote:
“As a result of the State’s inattention to the need, too long manifest, to take effective steps to ensure that Lake Erie (the Lake) will dependably provide clean, healthful water, the risk remains that sometime in the future, upwards of 500,000 Northwest Ohio residents will again, as they did in August 2014, be deprived of clean, safe water for drinking, bathing, and other normal and necessary uses.”
Despite Carr explaining that he “appreciate[s] plaintiffs’ frustration with Ohio’s possible continuation of its inaction,” he ruled that he could not expedite Ohio’s compliance with the Clean Water Act because he could not determine that Ohio had “clearly and unambiguously” abandoned its obligations under the Clean Water Act.
In response to the regulatory framework’s failure to stop harmful algae blooms, on Tuesday, February 26, 2019, citizens in Toledo, OH voted to protect Lake Erie with the Lake Erie Bill of Rights (“LEBOR” or “the Bill”). The Bill “establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish, and naturally evolve, a right to a healthy environment for the residents of Toledo” and “elevates the rights of the community and its natural environment over powers claimed by certain corporations.”
Toledoans for Safe Water (TSW) is the grassroots coalition of local Toledo citizens who ushered the Bill through Ohio’s constitutional citizen initiative process. Ohio’s citizen initiative process allows citizens to draft and propose laws and to place those laws on a ballot so citizens can directly vote on the law’s enactment. Typically, laws are drafted, proposed, and voted on solely by legislators. Initiative processes like Ohio’s are some of the only avenues American citizens have for directly proposing and enacting laws and providing a direct check and balance on an “out of touch” or corrupt legislature. It is important to understand, however, that, even with citizen initiative processes, it is incredibly difficult to not only democratically enact laws that would actually protect the natural world, but it is incredibly difficult to even place rights of nature laws on the ballot in the first place.
Toledoans for Safe Water’s experience is enlightening. Formed after the harmful algae bloom of August 2014, TSW worked tirelessly to pass an initiative protecting their water source including overcoming efforts by the Lucas County Board of Elections and BP North America to keep such an initiative off the ballot. First, TSW had to gather 5,244 signatures to place LEBOR on the ballot. They far exceeded that total by gathering approximately 10,500 signatures. Despite gathering much more than the necessary signatures, the Lucas County Board of Elections voted against putting the initiative on the November 2018 ballot.
Toledoans for Safe Water members sought an order from the Ohio Supreme Court to put the measure on the ballot, but the Court denied the request in September 2018. Fortunately, in October 2018, in another case involving a different charter initiative, the Ohio Supreme Court ruled that city councils may force county boards of election to place charter amendment initiatives on the ballot. This ruling expressly overruled precedent previously relied on to prevent Toledo citizens from voting on LEBOR. Armed with this new ruling, TSW successfully asked the Toledo City Council to put LEBOR on the ballot. However, in December 2018, a Toledo citizen sought a writ of prohibition from the Ohio Supreme Court to block LEBOR. TSW found themselves in front of the Ohio Supreme Court once again. This time TSW won.
After ensuring LEBOR made it to the ballot, Toledoans for Safe Water had to convince enough voters to vote for the Bill before it could be enacted. In the weeks leading up to the election, BP North America wired $302,000 to the Toledo Coalition for Jobs and Growth, the primary group opposing LEBOR. In the end, TSW spent $7,762 in support of LEBOR, while Toledo Coalition for Jobs and Growth, with the massive donation from BP North America, spent $313, 205 to stop LEBOR. Despite this disparity, LEBOR passed with 61 percent of the 15,000 Toledoans who voted.
But, mere hours after the City of Toledo certified LEBOR’s election results, Drewes Farms Partnership sued the City seeking an injunction against enforcing LEBOR and a court ruling that LEBOR is unconstitutional. Several Toledo city-council members spoke out against the enactment of LEBOR before the election, and it appears that the City will not enforce LEBOR. Yes, you read that correctly: After LEBOR won with 61% of the vote (nearly two-thirds of those who voted), the City of Toledo agreed to an injunction prohibiting them from enforcing the law.
In response to such bald face tactics, we must ask, if a local city government agrees not to enforce the will of its citizens, then what really is left of the notion of a government for and by the people? And the inevitable answer must be, nothing. Indeed, as environmental author Derrick Jensen explains in his book Endgame:
“Surely by now there can be few here who still believe the purpose of government is to protect us from the destructive activities of corporations. At last most of us must understand that the opposite is true: that the primary purpose of government is to protect those who run the economy from the outrage of injured citizens.”
Jensen’s conclusion eerily reflects the very plain statement by Attorney General Richard Olney, who served under President Grover Cleveland in 1894 about the newly-formed Interstate Commerce Commission. The ICC was the very first federal regulatory agency, created to ‘regulate’ the railroad industry, but as Olney (a former railroad attorney, himself) said:
“The Commission…is, or can be, made of great use to the railroads. It satisfies the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things.”
Nearly 200 years later, Jensen’s observation reflects the reality that not only does our regulatory system not protect the interests of the people of this country; it was never intended to. It was created to protect industry.
And so the parade of horribles that Toledoans for Safe Water have encountered should come as no surprise. A little over two months after the lawsuit was filed by the agriculture industry to strike down LEBOR, the State of Ohio requested, and was granted, the right to intervene to argue with Drewes Farms Partnership that LEBOR should be invalidated. TSW also tried to intervene on behalf of Lake Erie, exercising their new rights under LEBOR and arguing that the City is not an adequate representative of LEBOR. The City neither opposed TSW’s intervention in the case, nor denied that it would be an inadequate representative of LEBOR. Regardless, on Tuesday, May 7, Judge Jack Zouhary, a U.S. District Judge in the Northern District of Ohio, Western Division denied Toledoans for Safe Water’s intervention. Lake Erie and TSW asked the Sixth Circuit Court of Appeals to stay (legalese for postpone) the case while they appealed Zouhary’s denial of their intervention. But, the Sixth Circuit refused to stay the case.
Because Zouhary has denied Toledoans for Safe Water’s intervention and the Sixth Circuit did not grant Lake Erie’s and TSW’s request to stay the case, it will proceed with no one who supports LEBOR present to argue on behalf of Lake Erie or the citizens of Toledo for the remainder of a case that will decide the fate of a law enacted by the citizens of Toledo. To be clear, the City government, popularly assumed to represent the will of the City’s people, is specifically not representing the will of the people.
About an hour after denying Lake Erie and Toledoans for Safe Water’s intervention, Zouhary scheduled a phone conference for Friday, May 17 while ordering the parties to the lawsuit to send him letters regarding a Motion for Judgment on the Pleadings. Typically, parties to a lawsuit file motions and briefs describing their arguments and these motions and briefs become part of the public record so that the public can see why legal decisions are made. In specifically asking for letters, Zouhary shielded Drewes Farms Partnership’s, the State of Ohio’s, and the City of Toledo’s arguments from public scrutiny. Here we see how the will of the people, expressed through the legislative process, can be effectively silenced by the judicial process. The courts, commonly thought of as a check on abuses of power by the legislative branch of government that encroach on fundamental rights of individuals, have now been unmasked as a vehicle to silence and overturn the will of the people and to legitimize further violations of fundamental rights of the people – in this case the simple and essential right to clean water.
And to round out the evidence that we do not live in a democracy, on Thursday, May 9, the Ohio House of Representatives adopted its 2020-2021 budget with provisions that prohibit anyone, including local governments, from enforcing rights of nature laws. The State of Ohio is using its power of preemption – a long-established legal doctrine that defines the relationship of municipal governments to state and federal governments as one of parent to a child – to prevent Ohio residents from protecting the natural world with rights of nature at any time in the future.
This is a perfect example of why CELDF lawyer and executive director Thomas Linzey often states that, “Sustainability itself has been rendered illegal under our system of law.” And:
“Under our system of law, you see, it doesn’t matter how many people mobilize or who we elect – simply because the levers of law can’t be directly exercised by them. And even when they do manage to swing the smallest of those levers, they get swung back (either through the legislature or the courts) by a corporate minority who claimed control over them a long time ago.”
Toledoans for Safe Water swung “the smallest of those levers” and now they have been “swung back” by both the legislature and the courts in favor of the corporate minority. We see then, that under our current system of laws, there is no government actor that validates and protects the will of the people. In the case of Lake Erie, the City of Toledo, the State of Ohio, two levels of federal courts (the District Court for the District of Ohio and the Sixth Circuit Court of Appeals), have all actively undermined the health and welfare and the express political will of the citizens of Toledo – all in the name of preserving and protecting the freedom of agricultural interests to continue polluting Lake Erie for the sake of their own profits.
***
With it being all but certain that the Lake Erie Bill of Rights will soon be officially invalidated, has Toledoans for Safe Water’s work been in vain?
Not entirely.
“Unquestioned beliefs are the real authorities of a culture,” critic Robert Coombs tells us. Right now, the culture of profit in our country, sanctioned by the legal system is destroying the planet. Informing this dominant culture is a collection of unquestioned beliefs that authorize and allow the massive environmental destruction we currently witness. Stopping the destruction requires changing the dominant culture and changing the dominant culture requires publicly challenging unquestioned beliefs so those unquestioned beliefs are exposed to the light where they can be seen, understood, and condemned.
Perhaps surprisingly, one of the unquestioned beliefs authorizing ecocide is the belief that we live in a democracy and, because we live in a democracy, that our government reflects the will of the governed. This mistaken belief leads to more mistaken beliefs including a belief that the best way to make change is to petition your elected representatives, and if they won’t listen, to elect new ones who will. This misconception includes the further mistaken belief that the American regulatory framework exists to protect the natural world and the humans who depend on Her and that therefore filing lawsuits under the Endangered Species Act, the National Environmental Policy Act, and the Clean Air and Clean Water Acts can stop the destruction of endangered species, our habitat, and the air and water we require.
We should all know the truth, by now. We do not live in a democracy, and our government was never intended to reflect the will of the governed. Our elected representatives only listen to us when the corporations they’re beholden to aren’t telling them what to do. The regulatory framework does not exist primarily to protect the natural world; it exists to issue permits, to give permission, to legalize the harm corporate projects wreak on the natural world, and to make it near impossible for the citizenry to oppose those projects.
Even some of the current government’s most sacred documents, such as the Declaration of Independence, the Ohio State Constitution, as well as many other state constitutions, declare that people have a right to reform, alter, or even abolish the very governments those documents create when those governments fail to reflect the will of the people. The people of Toledo tried to exercise that right by passing LEBOR. Regardless, the very institutions supposedly tasked with honoring these documents are preventing the people from exercising the rights asserted in the Declaration of Independence and protected by the Ohio State Constitution.
We should all know the truth, by now, but most people still don’t. It’s one thing to tell people the truth. And, it’s another to show them. A major question, then, for social and environmental justice advocates is: How do we show people the truth?
One way is through acts of civil disobedience like enacting the Lake Erie Bill of Rights. A primary purpose of civil disobedience is to expose unquestioned beliefs for what they really are. In the case of the regulatory fallacy described above, these unquestioned beliefs serve as propaganda intended to pacify the people. Civil disobedience can stage the truth of our situation for the public to behold. Properly applied, civil disobedience can illuminate unquestioned beliefs and unveil their falsehoods.
CELDF attacks unquestioned beliefs through what it calls “organizing jujitsu.” CELDF helps communities suffering from destructive corporate projects (like fracking, factory farms, and toxic waste storage) ban those projects by passing local laws establishing rights of nature and invalidating judicially-created corporate rights. These laws, however, are currently illegal under American law and are, inevitably, struck down by the courts.
So, why does CELDF keep helping communities pass laws that are almost always struck down? This is where the organizing jujitsu happens. The laws that CELDF helps communities pass are frontal challenges to long-settled legal doctrines. When judges rule against local laws, judges’ rulings can be used as proof of how the structure actually operates. In CELDF’s words:
“Much like using single matches to illuminate a painting in a dark room, enough matches need to be struck simultaneously (and burn long enough) so that the painting can be viewed in its entirety. Each municipality is a match, and each instance of a law being overturned as violative of these legal doctrines is an opportunity for people to see how the structure actually functions. This does the necessary work of penetrating the denial, piercing the illusion of democracy, and removing the blinders that prevent a large majority of people from seeing the reality on the ground.”
With the indicators of ecological collapse constantly intensifying, it is imperative that we penetrate the denial, pierce the illusion of democracy, and remove the blinders that prevent people from seeing reality as quickly as possible. Due to the thoroughness of American indoctrination, the education civil disobedience can provide needs to be supported by real-time commentary that highlights why a specific tactic failed. This real-time commentary will help the public see the truth.
Toledoans for Safe Water has used every legal means at their disposal to protect Lake Erie and, yet, the Lake Erie Bill of Rights is not being enforced and is almost certain to be invalidated in court. Meanwhile, the poisoning of Lake Erie intensifies. Toledoans for Safe Water’s civil disobedience, despite challenging a widespread faith in the American legal system, has failed to physically protect Lake Erie. Breaking this faith is a necessary, but not sufficient, step towards dismantling the dominant culture and replacing it with a new culture rooted in a humble recognition of our dependency on the natural world. For those who see the truth that neither the legal system nor the government will protect us, the question becomes: What are we willing to do to protect ourselves?
—
Will Falk is a biophilic writer and lawyer. He believes the natural world speaks. And, his work is an attempt to listen. In 2017, he helped to file the first-ever federal lawsuit seeking rights of nature for a major ecosystem, the Colorado River. His book How Dams Fall which chronicles his experiences representing the Colorado River in the lawsuit, will be published by HomeBound Publications in October, 2019. You can follow Will’s work at willfalk.org.
Sean Butler is a technology lawyer and environmental activist based in Sequim, WA. In addition to his practice supporting venture-backed startups he is working to advance the rights of nature.
Documentary follows Attawapiskat’s journey from obscurity into the international spotlight
Downstream from a De Beers diamond mine, the remote community of Attawapiskat, Ontario lurches from crisis to crisis, while facing mounting environmental issues and an inability to directly benefit from resource revenues.
Filmed over five years, After the Last River is a documentary that follows Attawapiskat’s journey from obscurity and into the international spotlight during the protests of Idle No More. Filmmaker Victoria Lean connects personal stories from the First Nation to entwined mining industry agendas and government policies, painting a complex portrait of a territory that is a imperiled homeland to some and a profitable new frontier for others.
SYNOPSIS
In the shadow of a De Beers mine, the remote community of Attawapiskat lurches from crisis to crisis, while facing mounting environmental issues and an inability to directly benefit from resource revenues. Filmed over five years, After the Last River is a point of view documentary that follows Attawapiskat’s journey from obscurity and into the international spotlight during the protests of Idle No More.
After the Last River is a complex examination of a community under pressure. Poverty, neglect, and isolation combine to force the remote reserve of Attawapiskat into accepting a De Beers diamond mine on it’s traditional territory. As the mine removes billions of dollars worth of diamonds, the promised jobs barely materialize and the community is threatened by potentially devastating contamination.
Filmmaker, Vicki Lean, follows the remote reserve’s five-year journey into the international spotlight. Through interviews with executives and government, and day-in-the-life footage of the community, Lean weaves a tapestry of the issues effecting indigenous rights today.
After the Last River connects personal stories from the First Nation to industry agendas and government policies, painting a complex portrait of a territory that is an imperilled homeland to some and a profitable new frontier for others.
Police say three people will be charged after Mohawk protesters calling for an inquiry into missing and murdered aboriginal women occupied CN Rail tracks in eastern Ontario.
Provincial police say demonstrators moved onto the tracks Saturday morning in Napanee, leading to CN issuing a stop order for all trains.
Police say a man struck the window of an unmarked police cruiser, breaking the glass.
Sgt. Kristine Rae says four people were arrested, and that three of them will face charges that have yet to be determined by investigators.
VIA Rail issued a travel advisory on Saturday saying the blockade affects the movement of VIA Rail trains on the Toronto – Montréal and Toronto – Ottawa routes, in both directions.
The stop order was lifted early in the afternoon, and train service is resuming.
Demonstrators had vowed on Friday to step up their protest in response to a parliamentary report into missing and murdered indigenous women that rejected numerous calls for a full public inquiry.
Spokesman Shawn Brant has said that there will be consequences for a national inquiry not being called.
The activists have been blockading a road east of Belleville since last Sunday night.
The release of the missing women report on Friday set off a firestorm of criticism from opposition critics, First Nation leaders and human rights groups.
Liberal and NDP members who sat on the all-party panel issued their own dissenting reports, accusing the federal Conservatives of sanitizing the final report on an ongoing crisis that has caught the attention of the United Nations.
Among its 16 recommendations, the report calls on the Conservative government to work with the provinces, territories and municipalities to create a public awareness and prevention campaign focusing on violence against aboriginal women and girls.
It’s estimated there are hundreds of cases of missing and murdered aboriginal women in Canada dating back to the 1960s – officially as many as 600, and likely hundreds more unreported victims.
Passengers are being told to expect delays. Service recovery measures such as late train travel credits or travel credits for bus substitutions will not be offered for affected trains. Extra charges paid for Business Class tickets will be reimbursed in the case of a bus substitution.
Environmental justice protestors temporarily shut down a hearing into a proposal to have tar sand oil piped through Ontario. The hearing took place place in London, Ontario, on Wednesday.
The three day hearing, held by the National Energy Board (NEB), is examining a proposal by Enbridge to reverse the flow of an existing pipeline (Line 9), which currently carries imported overseas oil west. Enbridge wants to instead use the pipeline to bring tar sands oil east. This oil may then be exported to Europe.
After entering the hearing, protestors employed the People’s Mic, where the crowd would echo back whatever was said by a spokesperson in order to project their voices. After a few minutes of the People’s Mic commencing, most other attendees at the hearing exited the room. The NEB hearing was shut down for approximately an hour.
The spokesperson who led the Peoples Mic was arrested and then removed from the room. She was later released with a ticket for trespass.
The protestors raised concerns about the environmental impacts of the Alberta tar sands, the possibility of a spill in Ontario and the lack of prior and informed consent being sought from First Nations in Ontario.
“Six Nations rights already have been violated in this review process,” stated Wes Elliot, a resident of Six Nations in a press release. “Free, prior, and informed consent is not a factor in these hearings.”
Line 9 cuts through the Haldimand Tract, land which was deeded to Six Nations in 1784.
“We also must object to the illegitimate and anti-democratic conduct of the officials who are fast-tracking this review,” said Elliot in the release.
Following the protest, demonstrators held what they dubbed an unofficial “People’s Hearing on the Tar Sands Pipeline.”
“The current framework of the National Energy Board hearings does not allow us to draw connections between tar sands extraction, toxic refineries and upgraders, and various other downstream consequences,” said Taylor Flook a member of Occupy Toronto who attended the event in London. “The People’s Hearing was arranged as a more open forum, where anyone can share any of their concerns about relevant issues.”
“The tar sands industry is attempting to build as many pipelines as they can,” said Flook. “We should not accept the fast-tracking of these projects,” she said. “No tar sands operations should proceed without the consent of everyone who may be impacted.”
As the extraction of tar sands from Alberta has increased, a series of new pipeline projects have emerged to bring the dirty oil to refineries and ports across Canada and the US.
The Harper government has loudly endorsed these projects. But following a series of protests against TransCanada’s XL pipeline, which would send tar sands oil south, President Obama delayed approval for a section of the project that goes through the United States until after US elections, which will take place in November.
Opposition by First Nations and environmentalists to Enbridge’s proposed Northern Gateway pipeline, which would bring oil from Alberta to the BC coast for shipment overseas, has garnered attention across Canada.
Protestors worry the Line 9 Reversal could be rushed through before there is time to build awareness and opposition to the pipeline. But they say many of the concerns with the Northern Gateway Pipeline also apply to the Line 9 reversal.
The Line 9 approval process is taking place in two phases. The London hearing deals with bringing oil from Sarnia, Ontario, to Westover, Ontario. The second phase regards oil transport from Westover to Montreal, Quebec.
