On December 18, 2018, the Center for Biological Diversity and the Wild Fish Conservancy threatened the Trump administration with a lawsuit under the Endangered Species Act (ESA) for allowing salmon fisheries to take too many salmon, which the critically endangered Southern Resident orcas depend on for food.
The impulse to protect the orcas is a good one. Southern Resident orcas are struggling to survive — only 75 remain. According to the statement by the Center for Biological Diversity and Wild Fish Conservancy, “The primary threats to Southern Resident killer whales are starvation from lack of adequate prey (predominantly Chinook salmon), vessel noise …that interferes with … foraging … and toxic contaminants that bioaccumulate in the orcas’ fat.”
You probably assume, when reading that list of primary threats to the orcas, that the threatened lawsuit would demand an end to these harmful activities. But it doesn’t. Instead, the organizations are merely asking the National Marine Fisheries Service — the agency responsible for issuing permits to Pacific coast fisheries — to deal with alleged violations of the ESA.
The Center for Biological Diversity and the Wild Fish Conservancy aren’t asking that activities harmful to Chinook salmon, and consequently to the Southern Resident orcas, be stopped. They aren’t asking for noisy vessels that disturb the whales’ foraging behaviors to be prohibited. They aren’t even asking for an end to the toxic contaminants that accumulate in the whales’ fat.
Why aren’t they asking for any of these things? Because under American law they aren’t allowed to ask for them.
All they are asking is that these harmful activities receive the proper permits.
Right now, laws like the Endangered Species Act are the main legal means for protecting threatened species and habitat in the United States. But these laws only allow us to challenge permit applications and ask that projects complete the permit process.
While it may hard to believe, these permits are designed to give permission to cause harm. Regulatory agencies only regulate the amount of harm that takes place. They do not, and cannot, stop ecocide. Instead they allow for softer, sometimes slower versions of ecocide.
To understand this, it helps to know a bit about how the Endangered Species Act actually works. The Act prohibits any person, including any federal agency, from “taking” an endangered species without proper authorization. “Take” is defined as: “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
You might expect that the Act completely prohibits any activity that “takes” an endangered species. But it doesn’t. Under the Act, federal agencies may harm members of an endangered species as long as the activity is “not likely to jeopardize the continued existence of any endangered species.”
While that may sound more promising, it isn’t. When a proposed action is likely to jeopardize an endangered species, the agency can then issue an Incidental Take Statement (ITS), which merely sets a limit on the number of individuals of an endangered species that can be taken.
In other words, a species that has already endured so much destruction can legally be further harmed if that harm is in compliance with certain terms and the correct forms are filled out.
So an ITS allows a federal agency to harm endangered species. But there are also Incidental Take Permits (ITPs). These allow private entities to harm endangered species. All a private entity needs to do to get an ITP is create a plan that purportedly minimizes and mitigates harm to an endangered species.
The irony is not lost on Professor J.B. Ruhl, who describes the situation in his aptly-titled law review article, “How to Kill Endangered Species, Legally”:
“Rather, when we strip away its noble purpose… at bottom the ESA is little different from the modern pollution control statutes which broadly prohibit a defined activity with one hand, then with the other hand give back authority to do the same activity under regulated conditions.”
In the original 1973 version of the Endangered Species Act, ITS and ITP exemptions did not exist. They are the result of amendments passed by Congress in 1982 to undermine several pro-environmental Supreme Court decisions that interpreted the Act as broadly protecting endangered species. Those amendments are a powerful and dangerous loophole.
In a 2011 report, a trial attorney with the Environmental Crimes Section of the U.S. Department of Justice, Patrick Duggan, found that ITPs are being issued at alarming rates — and with ever-broader scopes. “In the first decade after the 1982 Amendments, there were 14 ITPs issued, by August 1996, there were 179, and by April 2010, there were 946 approved by the U.S. Fish and Wildlife Service (FWS) alone.” Even FWS has acknowledged this trend of permissiveness, recently noting how the number of approved plans has “exploded.”
Most people mistakenly believe that regulations are being enforced by regulatory agencies. They’re not. Some environmental lawyers call this the “regulatory fallacy.” Not surprisingly, this drains focus from potentially more effective tactics by funneling it into a belief that government agencies will actually protect people and natural communities by denying permits.
The system isn’t working — and it’s very unlikely that it will protect the critically endangered Southern Resident orcas. But why doesn’t it work?
To begin to understand why the Endangered Species Act is failing, it’s helpful to acknowledge perhaps the most fundamental assumption of the Act and all similar pollution control statutes, as Professor Ruhl calls them. That assumption is that we have an inalienable right to use the natural world for our own purposes.
The answer to the regulatory fallacy, then, is to turn this on its head. If we truly want to protect endangered species like the Southern Resident orcas, our laws cannot treat them and their essential food source as objects or property. Instead, we must acknowledge their inherent rights to exist, and create laws that uphold and enforce those rights. True sustainability requires transforming the status of nature from a legal object to a rights-bearing subject.
This transformation begins with granting nature the legal right to challenge the conduct of someone else in court. As Supreme Court Justice William O. Douglas wrote in his famous 1972 dissent in Sierra Club v. Morton, this “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers…”
In the US, the rights-based approach has been pioneered by the Community Environmental Legal Defense Fund (CELDF), a nonprofit, public interest law firm. Since 2006, CELDF has helped dozens of communities in ten states enact rights of nature laws. Their model uses a “Community Bill of Rights,” which declares that citizens of the city or county have a right to clean air, clean water, etc., and that the natural communities within its borders have a right to exist, flourish, regenerate and naturally evolve. Natural communities are specifically granted legal standing and citizens are empowered to bring lawsuits to enforce these rights. This is similar to the way guardians represent children in court.
Southern Resident orcas range from as far south as California and along the coasts of Oregon and Washington. If the communities along the West Coast had rights of nature laws, they could now bring a lawsuit on behalf of the Southern Resident orcas, with claims that fishery practices, dams, shipping activities and pollution violate the whales’ rights to exist, flourish, regenerate and naturally evolve. They could ask the courts to completely ban harmful fishery practices in order to protect the rights of nature, and to order those responsible for harm to pay for the regeneration of the natural community. They could seek this relief from the courts because the fundamental rights of the ocean and its residents are being violated.
What’s more, because the plaintiff in such a lawsuit would be a whole population of salmon or whales, or even an entire ecosystem like the Salish Sea, the damages awarded would be measured according to the losses suffered by the natural communities themselves. And any award of damages would go toward the restoration of those communities, rather than to human plaintiffs who might not use it to benefit the ecosystem that has been damaged.
“We’d be having very different conversations and much more effective results if we approached recovery with the orcas’ best interests in mind,” says Elizabeth M. Dunne, Esq., who is part of a coalition that helped draft the Declaration for the Rights of the Southern Resident Orcas, led by the grassroots community group, Legal Rights for the Salish Sea. Dunne explains that, “by signing the Declaration, we want people, organizations and governments to recognize that the Southern Residents’ have inherent rights, to recognize that we have a responsibility to protect those rights, and to commit to taking concrete actions to protect and advance those rights.”
Environmentalists who engage within today’s regulatory framework and rights of nature proponents begin in the same place. They both want to protect the natural world. But the way they frame the issue could not be more different. Environmentalists who rely on regulatory laws frame the issue as one of improperly prepared reports or how many parts per million of toxins may permissibly be released into water supplies. For example, the Center for Biological Diversity and Wild Fish Conservancy want to protect the Southern Resident orcas, but all they can ask for under the ESA is that the responsible federal agency “reinitiate and complete consultation on the Pacific Coast salmon fisheries” with new scientific information.
Rights of nature proponents, on the other hand, affirm nonhumans’ value as subjective beings, framing the issue in terms of whether a proposed action violates their fundamental rights. Though we cannot put an orca on the witness stand to testify about the impacts that the National Marine Fisheries Service’s plan has on her species, empowering humans to speak for her through enforcement of her legal rights brings nature’s voice directly into the courtroom.
Originally listed as endangered in 2005, Southern Resident orca numbers have continued to decline. The Center for Biological Diversity reports that the population is at its lowest point in 34 years. And, “In 2014, a population viability study estimated that under status quo conditions, the Southern Resident killer whales…would reach an expected population size of 75 in one generation (or by 2036).” Instead, it was just four years later that the Southern Resident orca population stood at 75.
In the end, the only measure of success in this case should be the whales’ recovery. The people of Washington aren’t concerned that regulations haven’t been followed— we’re concerned that our neighbors, the Southern Resident orcas, are starving. We’re horrified that these beautiful animals’ right to life is not being respected and that their ecosystem is being destroyed. And we’re outraged because deep down we believe that the natural world does have inherent value — and therefore inherent rights.
It’s time to stop begging for regulatory table scraps. It’s time to have the courage of our convictions and create new laws that recognize the inherent rights of the Southern Resident orcas and the Salish Sea as a whole to exist, flourish and evolve.
Ogiek stake claim for the Mau forest after victory at African court
The Ogiek have demanded the return of the Mau forest land to the community.
The community is laying claim to more than 21 forest blocs and the Maasai Mau Trust Land that makes up the Mau Complex saying it is their ancestral land.
The demands were tabled yesterday in Nakuru when representatives of the community met a taskforce on the implementation of the African Court’s ruling on the Ogiek land rights in the Mau forest.
Ogiek steadfast on their unceded forest homeland. Members of the Ogiek community during a meeting when they presented their memorandum on February 6, 2019 to the members of the task force on implementation of the African Court’s decision on the Ogiek community’s land rights in the Mau forest issued against the government of Kenya in 2017. [Photo: Harun Wathari]
In May 2017, the African Court ruled that the Government had infringed on the Ogiek community rights. The Arusha-based court ruled that the Mau had been part of the community’s ancestral land for decades.
The ruling arose from a case filed in 2006, in which the Ogiek complained that Kenya Forest Service (KFS) officials issued them with notices to vacate the forest without factoring in how this would affect their lives.
Follow-up
In a follow up to the ruling, the Ogiek People’s Development Programme Executive Director Daniel Kobei yesterday tabled a 13-point memorandum.
Top on the list of the memoranda is that the Mau forest ownership be returned to the community for safekeeping.
“We wish to remain the custodians of the land and forest. With the help of the Government, we will see to it that all misery and degradation of forested homelands are restored,” said Kobei.
The Ogiek are seeking community land titles which shall not be alienable in future.
“Member households will have rights for house and farm plots in perpetuity but any transfer shall be done to their fellow members of the Ogiek community,” he said.
The community proposed that the habitation within the forest shall be limited to areas agreed upon with the Kenya Forest Service and other agencies and grazing restricted to naturally unforested zones or as advised by the government.
It also wants a sharing agreement for all revenue generated from the Mau and compensation for loss of property, development and freedom to exercise its culture.
MEMORANDUM FROM THE OGIEK COMMUNITY
Presented on 6 th February 2019, Nakuru Town, Kenya
TO:
THE TASKFORCE ON THE IMPLEMENTATION OF THE DECISION OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS ISSUED AGAINST THE GOVERNMENT OF KENYA IN RESPECT OF THE RIGHTS OF THE OGIEK COMMUNITY OF MAU AND ENHANCING THE PARTICIPATION OF INDIGENOUS COMMUNITIES IN THE SUSTAINABLE MANAGEMENT OF FORESTS
Dr. Robert Kibugi (2nd right) receiving the memorandum from the Ogiek Community in Nakuru on 6. January 2019. Left in red shirt the most steadfast Ogiek defender of many decades Mr. Joseph Towett and 3rd from right Mr. Daniel Kobei. [picture: Pristone Mambili]
Dr. Robert Kibugi – Chairperson
Dr. Sally Kimosop – Vice Chairperson
Ole Kamuaro Olottisatti Nabulu – Member
Malik Aman Abdi – Member
Stephen King’uyu – Member
Esau Oginga Omollo – Member
Cyrus Mutuku Maweu – Member
Eugene N. Lawi – Member
Alfred Mumpasoi Keriolale – Member
Emmanuel Bitta – Member
Belinda Okello – Member
Tom Abuta – Member
IN RESPECT OF THEIR INALIENABLE RIGHTS TO DIGNITY, SURVIVAL, AND WELL BEING
Preamble
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all, is the foundation of freedom, justice and peace.
Recognizing, the urgent need to respect and promote the inherent rights of Indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.(UNDRIP) Article 10 of UNDRIP, Indigenous peoples shall not be forcibly removed from their lands and territories. No relocation shall take place without the free, prior informed consent of the indigenous peoples concerned and after agreement on just and fair compensation, and where possible , with the option of return.
Inspired by the provisions of Article 1.1 of the Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities; which states that ‘States shall protect the existence and the national or ethnic, cultural, religious, and linguistic identity of minorities within their respective territories shall encourage conditions for the promotion of their identity.
It is our hope that the Taskforce on the implementation of the Decision of the African Court on Human and Peoples’ Rights issued against the Government of Kenya in Respect of the Rights of the Ogiek Community of Mau Complex and enhancing the participation of indigenous communities in the sustainable management of forests which was appointed by the Cabinet Secretary for Environment and Forestry Vide Gazette Notice No. 11215 of 2018, shall endeavour to take constructive and decisive steps to fulfilling their Terms of Reference, which includes a review of the decision of the African Court on Human and Peoples’ Rights issued against the Government of Kenya in respect of the rights of the Ogiek Community of Mau and any other judgements issued by domestic courts in relation to the Ogiek Community’s occupation of the Mau Forest.
Further, we call on the government to speed up the implementation by remedying all the violations meted on the Ogiek people as identified by the African Court decisions i.e. the violations of articles 1, 2, 4, 8, 14, 17, 21, and 22 of the African Charter while honouring the decision of the African Court on Human and Peoples’ Rights which is one of the guiding principle in addressing the land claims of the Ogiek community.
Specifically, through this Task force, we call on the Government of Kenya to recognize of our right to live in the Mau Forest as our ancestral land in accordance with the Constitution of Kenya (Article 63 (2) (d) (ii)), and on conservation conditions to be agreed. The objective is to save our lands, our culture and our forests.
The Ogiek of Mau
We, the undersigned are all members of the Mau Ogiek community of approximately 45,000 members, historically and presently living in and around the Mau Forest Complex in central Rift Valley. We have consulted with the Mau Ogiek people and the submission made here is made of and on behalf of all Mau Ogiek.
We are closely related to our brothers Ogiek living historically and presently on Mount Elgon. They face the same problems of having their lands wrongfully taken as government then made public lands, set aside for so-called forest protection. Our forests have not been protected and our lives have been almost destroyed. We have always known and still know that the key to our survival and contributions as all Kenyans as forest protectors is recognition of our rightful ownership of our forested territories. We welcomed the Constitution of Kenya in 2010 with relief and tears because it provided for this. Government’s failure to deliver on Article 63 (2) (d) (ii) is an abuse of the Constitution and all the human, development, and other modern rights it pledges for all Kenyans.
The Mau Ogiek are concentrated mainly, but not solely, in the following areas:
8. The remainder of the Ogiek people mainly live in the forested areas of Mount Elgon, at Chepkitale.
The Ogiek of Mt. Elgon will make their own submissions to the Task Force as will other indigenous forest peoples: the Sengwer, Yiaku, Watha and Aweer. We have all suffered the same ill-treatment of our land and human rights during the 20 th century.
We have been subjected to numerous violations of our rights to our land and resources stemming from colonial times. We have been displaced, disposed and evicted numerously from our ancestral lands after extensive de-gazettement of our forest land in Mau and elsewhere by the government through protectionist policies with camouflage of conservation that do not recognize our historical claims to forest areas, being our ancestral land. The African Court ruling recognized the Mau as our ancestral lands. Our primary concern is to see this delivered.
Summary of Human and Land Rights issues experienced by the Ogiek
i. Land tenure issues: – Lack of land tenure has made the Ogiek vulnerable to land loss through evictions, dispossession and displacements. The land loss has been occasioned by irregular excision and allocations that took place in the Ogiek land in Mau and are aggravated by perennial evictions. Further, corruption and fake land documents or title deeds have catalyzed dispossessions of Ogiek land through numerous court cases. Illegal titles have become a source of conflict with corruptions draining the community of resources spent in litigation while making the community poorer by day. To end this the entire Ogiek land must be restored to us through revocation and cancellation of all title deeds.
ii. Recognition of the Ogiek Community as a distinct separate people. The Kenyan constitution and the reports from the Ministry of Home Affairs indicate that there are 43 ethnicities in Kenya. Like other hunter gatherer communities in Kenya, the Ogiek are not included in that number. This is contrary to international standards on recognition of indigenous peoples, especially since the Ogiek meet both the objective and subjective criteria of any existing definition. Though the current constitution refers to the Ogiek as a minority community or marginalized group, we are yet to witness meaningful impact of this recognition.
iii. Some laws and policies have criminalized Ogiek culture. Between 1930 and 1935, a Carter Land Commission constituted by the British Colonial government recommended that the Ogiek and other hunter gatherer groups be assimilated into the communities they neighbour. Subsequent wildlife and forest laws outlawed hunting and gathering thus effectively criminalizing the Ogiek hunting and gathering cultures. New laws e.g. the Forest Act 2005 and Forest Conservation and Management Act 2016, do not also cater for the interests of hunter gatherer communities as primary rights holders to their forest lands. The last law does allow for community forests on community land, but first we need recognition that these are our lands. These laws provide only for forest people to register as Community Forest Associations (CFAs) and enter into management agreements with the government before they can be given the right to help Government protect forest lands. This fundamentally denies the inherent existence of communities for who such forests have always been their homes, and makes their continued existence dependent on state recognition. It has further eroded Ogiek traditional rights by introducing user charges, privileging the emergence of competing interests and resulting in massive loss of forest.
iv. Logging and other illegal activities in the Mau forest constitute the biggest threat to Ogiek cultures, religious and livelihoods. The licensed and unlicensed logging activities not only also threaten the biodiversity of the forest but are leading to the rapid drying up of rivers a e.g. Lake Nakuru, Elementaita and Naivasha. The Mara River that sustains the Maasai Mara Game Reserve – one of the Seven Wonders of the World is also threatened. We would not allow logging and other illegal activities if our lands were recognized as our property.
v. Frequent arrests and intimidation of Ogiek leaders and community members is also a major problem. Many Ogiek are facing land related cases in Court in spite of the court rulings that protects them, more specifically those residing in Mariashoni and Ngongongeri (Esingetit). There has been selective and malicious prosecution of Ogiek community. Some of the community members having sentence to life imprisonment due to land related matters.
vi. Fruitless government engagement and consultation with the Ogiek:
The Ogiek have, on numerous occasions, engaged the government in negotiations and approached the Kenyan courts to seek justice. However, for reasons not well known to them, none of their cases have been successful prosecuted and on the rare occasions when decisions have been in their favour, they have not been fully implemented. Besides the legal redress mechanisms, the Ogiek have also engaged the government in abide to resolve land grievances on the following instances:-
a) During 2009/2010 the Hassan Noor led Interim Coordinating Secretariat to the Mau Task Force Report
b) 2014/15 engagement with the Ministry of Environment and Natural resources led by then Permanent secretary in the Ministry Dr.Richard Lesiyampei
c) And recently (2015/16) the engagement with the National Lands Commission led by Prof. M. Swazuri
Worth noting is the several past attempt by the government to address the Ogiek issues through task forces, commissions and committees but which after their term ends there has been no positive change but rather perpetuation of the vice against the Ogiek peoples. Government has been consistently not serious in both recognizing our land rights and seeing this as the best means through which the tragically degraded Mau forests can be saved. It has been advised many times that this is practical and right including by these projects and documents; the Kenya Indigenous Forest Conservation (KIFCON-1991 to 1994), the Njonjo Commission of Inquiry 1999, the Ndung’u Commission 2002, the Truth Justice and Reconciliation Commission 2012, the Mau Task 2009.
We respectfully ask this Task Force to advise Government to end this tragedy, for the sake of our rights and for the sake of forest conservation.
These are our submissions:
1. We demand restitution of our ancestral lands which extend over much of the Rift Valley comprising the 21 Government Forests blocks and the Maasai Mau Trust Land Forest that make up the Mau Complex. These includes lands lost through land grab and other irregular and corrupt schemes e.g. Farms of Ngongongeri, Likia, Teret.
2. We want these forests returned to our ownership and fully accept that this transfer must be made on these conditions:
a. That Ogiek are not ready for commercialization of their rights. As such we remain custodians of our land and forest and would never agree to sell these lands. Our precious forests, also sources of Kenya’s most precious water towers ARE NOT FOR SALE. Our descendants will hold these lands in posterity in the same way as our forefathers did, and as we expect to be formalized today.
b. We will keep these forestlands for time immemorial as forests safeguarding them against encroachment, exploitation and dilapidation.
c. We will, with Government help, see that all the misery and degradation of our forested homelands are restored as far as possible to their former glory. WE WANT OUR HOMELAND BACK AND ITS CONDITION.
d. We want the government to recognize the Ogiek as a people with unique interaction with the nature by recognizing Ogiek special cultural zones and erecting a monument for the Ogiek in Mau forest.
3. We have a strong will to do this and in doing so we safeguard national Kenyan interests in ensuring that the forests are restored to their former condition. We submit that it is of direct importance for us more than for other Kenyans, that the Mau is rehabilitated. This is because forests are the foundation of our livelihood and culture. Our society will die without the forests. We have been fighting against that for many years and no matter what happens, we will keep fighting for our cultural survival.
4. We want Mau returned to us as our communal land. This is how we lived in and kept the forests in good condition, because we were spread out by clans.
5. The resources accruing from the natural resources of Mau shall have benefit sharing arrangement. These would include and not limited to forest products but also the waters of Mau flowing to various parts Kenya.
6. Compensation of the Ogiek for all damages suffered as a result of the violations, including the payment of pecuniary damages to reflect the loss of their property, development and natural resources, the payment of non-pecuniary damages, to include the loss of their freedom to practise their religion and culture, the establishment of a community development fund for the benefit of the Ogiek, the payment of royalties from existing economic activities in the Mau Forest, and ensuring that the Ogiek benefit from any employment opportunities within the Mau;
7. We seek formal entitlements reflecting our ancient territorial arrangements and which are still practical today. We expect entitlement in the form of Community Land Titles. Each territory will be known as Ogiek op Nessuit Community Land, Mariashoni Community Land, Sasimwani Community Land, and so on. This ownership will never be alienable. This may be inscribed on our title deeds.
8. The Constitution of Kenya 2010, recognizes that we are community landholders and that we are eligible for issue of formal title (Article 63 (2) (d) (ii). The Land Act, 2012 protects customary land ownership as equally important as private ownership (section 5). The Community Land Act, 2016 was enacted to enable all communities to identify and secure their lands under titles. We urge all possible action to see the Community Land act 2016 is operationalized including in our regard. This will also mean we can declare Community Forests on our lands (see below).
9. Member households of each community landowner will have rights. They will be issued usufruct entitlements for house and farm plots in perpetuity. They will be permitted to transfer these entitlements to other members of the community or to other Ogiek and outsiders through a procedure that each community will individually decide upon. Ultimate title to these parcels will remain with the community. This is also what the Community Land Act provides for.
10. We want our indigenous knowledge and innovations contributing to conservation of Mau forest biodiversity is recognized and valued. Ogiek are protectors of bees and birds which are pollinators of our crops and plants which contribute to food sovereignty. It is worth noting that the Ogiek community in conjunction with KFS and other stakeholders have rehabilitated over 100 acres of indigenous trees and 25 community scouts have volunteered to protect the forest as show case of our potentiality.
11. Habitation within each zone will be limited to areas which we agree with Kenya Forestry Service or other appropriate agencies. These will include areas that are naturally unforested and lands in and around present Forest Stations. Grazing will be restricted to zones that are naturally unforested (glades and moorlands), again in agreement with our technical adviser, the Kenya Forest Service.
12. Each community will also define Community Forest Reserves. In most cases we believe this will fall into two categories: Community Protected Forests and Community Use Forests. Different rules will apply. In neither case will any habitation or farming be permitted.
13. a) We understand that responsibilities go with rights. We look forward to becoming the rehabilitators and conservators of the Mau Complex in service for the nation. We look forward to working with the Ministry of Environment and all its agencies towards saving the Mau, and saving our society. We need and want their advice to help us do the very best job.
13. b) We make a prayer to the Task Force on the implementation of the decision of the African Court on Human and Peoples’ Rights issued against the government of Kenya in respect to the Ogiek Community of Mau to address our shared land and forest rights as a priority for action. We acknowledge that it is not practical to return land to all aggrieved people of Kenya. But the case of traditional forest dwellers is straightforward and special. We have been waiting for recognition of our homeland forests for over 100 years. We know that without return of our forestlands, we cannot survive. We also know that without restoration of our land rights the Mau will slowly but surely disappear.
14. We also demand that while all the above is being delivered that we, the rightful owners of the Mau Forests will not be evicted from our homeland.
It’s worthy noting that the Ogiek are an important part of Kenyan history and heritage. Protecting our culture and guaranteeing our survival is an inherent duty of the State. In the face of wrongdoing, as found conclusively by the African Court on Human and Peoples’ Rights, it is the obligation of the State to take the necessary steps to restore our dignity and worth, and we call upon the Task Force to work to urgently implement this path-breaking judgment.
We wish to implore to the Taskforce to consider Ogiek Peoples Development Program (OPDP) for any form of consultation on behalf the Ogiek Community of Mau, as the case was with ACHPR. It will ease and deter masqueraders from intruding to the Task Force.
This memorandum is an addendum to the judgment of the African Court on Human and Peoples’ Rights and formal submission we have made to the Court since at is request. This submission is consistent with that submission held by the Court. It does not supersede the wishes of the Ogiek community and the ruling of the Court.
6 th February 2019, Nakuru Town, Kenya
Signed by 71 Ogiek Elders
—
“At the moment we cannot say we have much for public consumption but by May we shall have our report and submit to the CS,” the task force chair Dr. Robert Kibugi said after visiting various forest blocks of the Mau.
The meeting was also attended by Kuresoi South MP Joseph Tonui and nominated Senator Victor Prengei.
The African Union landmark ruling was delivered already on May 26, 2017 and Kenya is in delay to follow the verdict and implement the remedies.
The Court found that the Kenyan government violated various rights of Ogiek by evicting them from their ancestral land in Mau Forest.
The court ordered the Kenyan government to take all appropriate measures within a reasonable time frame to remedy all the violations committed against the Ogiek.
The latest Living Planet report from the WWF makes for grim reading: a 60% decline in wild animal populations since 1970, collapsing ecosystems, and a distinct possibility that the human species will not be far behind. The report repeatedly stresses that humanity’s consumption is to blame for this mass extinction, and journalists have been quick to amplify the message. The Guardian headline reads “Humanity has wiped out 60% of animal populations”, while the BBC runs with “Mass wildlife loss caused by human consumption”. No wonder: in the 148-page report, the word “humanity” appears 14 times, and “consumption” an impressive 54 times.
There is one word, however, that fails to make a single appearance: capitalism. It might seem, when 83% of the world’s freshwater ecosystems are collapsing (another horrifying statistic from the report), that this is no time to quibble over semantics. And yet, as the ecologist Robin Wall Kimmerer has written, “finding the words is another step in learning to see”.
Although the WWF report comes close to finding the words by identifying culture, economics, and unsustainable production models as the key problems, it fails to name capitalism as the crucial (and often causal) link between these things. It therefore prevents us from seeing the true nature of the problem. If we don’t name it, we can’t tackle it: it’s like aiming at an invisible target.
Why capitalism?
The WWF report is right to highlight “exploding human consumption”, not population growth, as the main cause of mass extinction, and it goes to great lengths to illustrate the link between levels of consumption and biodiversity loss. But it stops short of pointing out that capitalism is what compels such reckless consumption. Capitalism – particularly in its neoliberal form – is an ideology founded on a principle of endless economic growth driven by consumption, a proposition that is simply impossible.
No extinction risk for ‘commodity species’. Baronb / shutterstock
Industrial agriculture, an activity that the report identifies as the biggest single contributor to species loss, is profoundly shaped by capitalism, not least because only a handful of “commodity” species are deemed to have any value, and because, in the sole pursuit of profit and growth, “externalities” such as pollution and biodiversity loss are ignored. And yet instead of calling the irrationality of capitalism out for the ways in which it renders most of life worthless, the WWF report actually extends a capitalist logic by using terms such as “natural assets” and “ecosystem services” to refer to the living world.
By obscuring capitalism with a term that is merely one of its symptoms – “consumption” – there is also a risk that blame and responsibility for species loss is disproportionately shifted onto individual lifestyle choices, while the larger and more powerful systems and institutions that are compelling individuals to consume are, worryingly, let off the hook.
Who is ‘humanity,’ anyway?
The WWF report chooses “humanity” as its unit of analysis, and this totalising language is eagerly picked up by the press. The Guardian, for example, reports that “the global population is destroying the web of life”. This is grossly misleading. The WWF report itself illustrates that it is far from all of humanity doing the consuming, but it does not go as far as revealing that only a small minority of the human population are causing the vast majority of the damage.
Global map of Ecological Footprint of consumption, 2014. Although the WWF report highlights disparity in consumption, it says nothing about the capitalism which produces this pattern. WWF Living Planet
From carbon emissions to ecological footprints, the richest 10% of people are having the greatest impact. Furthermore, there is no recognition that the effects of climate and biodiversity collapse are overwhelming felt by the poorest people first – the very people who are contributing least to the problem. Identifying these inequalities matters because it is this – not “humanity” per se – that is the problem, and because inequality is endemic to, you guessed it, capitalist systems (and particularly their racist and colonial legacies).
The catch-all word “humanity” papers over all of these cracks, preventing us from seeing the situation as it is. It also perpetuates a sense that humans are inherently “bad”, and that it is somehow “in our nature” to consume until there is nothing left. One tweet, posted in response to the WWF publication, retorted that “we are a virus with shoes”, an attitude that hints at growing public apathy.
But what would it mean to redirect such self-loathing towards capitalism? Not only would this be a more accurate target, but it might also empower us to see our humanity as a force for good.
Breaking the story
Words do so much more than simply assign blame to different causes. Words are makers and breakers of the deep stories that we construct about the world, and these stories are especially important for helping us to navigate environmental crises. Using generalised references to “humanity” and “consumption” as drivers of ecological loss is not only inaccurate, it also perpetuates a distorted view of who we are and what we are capable of becoming.
By naming capitalism as a root cause, on the other hand, we identify a particular set of practices and ideas that are by no means permanent nor inherent to the condition of being human. In doing so, we learn to see that things could be otherwise. There is a power to naming something in order to expose it. As the writer and environmentalist Rebecca Solnit puts it:
Calling things by their true names cuts through the lies that excuse, buffer, muddle, disguise, avoid, or encourage inaction, indifference, obliviousness. It’s not all there is to changing the world, but it’s a key step.
The WWF report urges that a “collective voice is crucial if we are to reverse the trend of biodiversity loss”, but a collective voice is useless if it cannot find the right words. As long as we – and influential organisations such as the WWF, in particular – fail to name capitalism as a key cause of mass extinction, we will remain powerless to break its tragic story.
RIO GRANDE VALLEY, Texas— The Trump administration announced today that it will waive dozens of environmental laws to speed border-wall construction through protected Rio Grande Valley property, including a national wildlife refuge and famed butterfly center.
“The Trump administration is ignoring thousands of people in Hidalgo County who don’t want these disastrous border walls,” said Laiken Jordahl, borderlands campaigner at the Center for Biological Diversity. “The Rio Grande Valley is one of the most spectacular and biologically important landscapes in the country. Every acre is irreplaceable. We’ll do everything in our power to stop this destruction.”
The waiver, to take effect Thursday, is intended to speed about 18 miles of border-wall construction by sweeping aside 28 bedrock environmental and public-health laws that protect clean air, clean water, public lands and endangered wildlife. This is the fifth time the Trump administration has used the REAL ID waiver. The Center is considering whether to challenge the waiver in court.
The waiver is being issued during a comment period for border-wall construction in Hidalgo County, where so far more than 8,500 people say they oppose the plan. U.S. Customs and Border Protection opened the comment periodin September after the Center and 42 groups requested public input. Comments remain open until Nov. 6.
“It’s appalling that the Trump administration is willing to seize family farms by eminent domain and bulldoze beautiful nature reserves that support the local economy,” Jordahl said. “Trump is ripping the Rio Grande Valley in two for political sport. His despicable disregard for the law and the borderlands must be stopped.”
A 2017 study by the Center identified more than 90 endangered or threatened species that would be threatened by wall construction along the 2,000-mile U.S.-Mexico border. Endangered and threatened species in the area include the ocelot, jaguarundi and aplomado falcon, as well as a host of migratory birds.
The Center is suing the Trump administration over its use of the long-expired waiver for border-wall construction at the Santa Teresa Port of Entry in New Mexico. The Center is also appealing a federal court ruling in its lawsuit to stop the border wall replacement project near San Diego.
Beyond jeopardizing wildlife, endangered species and public lands, the U.S.-Mexico border wall is part of a larger strategy of ongoing border militarization that damages human rights, civil liberties, native lands, local businesses and international relations. The border wall impedes the natural migrations of people and wildlife that are essential to healthy diversity.
The proposal seeks to waive these laws:
The National Environmental Policy Act
The Endangered Species Act
The Clean Water Act
The National Historic Preservation Act
The Migratory Bird Treaty Act
The Migratory Bird Conservation Act
The Clean Air Act
The Archeological Resources Protection Act
The Paleontological Resources Preservation Act
The Federal Cave Resources Protection Act
The Safe Drinking Water Act
The Noise Control Act
The Solid Waste Disposal Act
The Comprehensive Environmental Response, Compensation, and Liability Act
The Archaeological and Historic Preservation Act
The Antiquities Act
The Historic Sites, Buildings, and Antiquities Act
The Farmland Protection Policy Act
The Coastal Zone Management Act
The Federal Land Policy and Management Act
The National Wildlife Refuge System Administration Act
The National Fish and Wildlife Act
The Fish and Wildlife Coordination Act
The Administrative Procedure Act
The River and Harbors Act
The Eagle Protection Act
The Native American Graves Protection and Repatriation Act
For the eight different tribes of Ethiopia’s Omo valley region, the Gibe III dam and related sugar plantations project have already proved devastating. The dam has enabled local authorities to syphon off water from the Omo river to irrigate vast sugar plantations.
Forcibly evicted from their land, many of the country’s tribespeople have lost not only their homes but an entire way of life. The dam has ended the natural flood they depended on for flood retreat agriculture as well as depriving them of access to the river for fishing and for growing their crops.
Survival has received disturbing reports that tribal peoples are suffering from hunger and continue to suffer abuse and harassment if they speak out about the situation. Many communities are under pressure to relocate to government villages, a policy that most oppose.
The dam is also causing problems for the thousands of tribal peoples in northern Kenya who live around Lake Turkana and who fish its waters for their livelihood.
According to Ikal Ang’elei, director of the NGO Friends of Lake Turkana which has campaigned for years against the Gibe III dam: “The lives of local communities now hang in the balance given that their main sources of livelihood are facing extinction. This decision by the UNESCO World Heritage Committee should serve as a notice to Ethiopia to cancel any further dams planned on the Omo River.”
As early as 2010, one such expert predicted that the dam would reduce the lake’s inflow by some 50% and would cause the lake’s depth to drop to a mere 10 meters. “The result could be another Aral Sea disaster in the making,” he warned.
The World Heritage Centre Committee now recognises that the dam has led to “overall rapid decline in water levels” and has meant that seasonal fluctuations have been “heavily disrupted.” As a result, the Committee agrees that “the disruption of the natural flooding regime is likely to have a negative impact on the fish population in Lake Turkana, which may in turn affect the balance of the ecosystem, the livelihoods of the local fishing communities and the floodplains, which support herbivore species.”
UNESCO’s decision follows several years of lobbying by indigenous and international organizations.
The Omo Valley tribes did not give their free, prior and informed consent to the Gibe III dam project, a fact that Survival International highlighted in its submission to the African Commission on Human and Peoples’ Rights.
Despite the mounting evidence of the serious impacts of Gibe III on tribal peoples in Ethiopia and Kenya, the Ethiopian government is currently building another dam on the Omo river called Koysha, or Gibe 4.
Grim news for the world’s raptors—an iconic group of birds consisting of hawks, falcons, kites, eagles, vultures and owls.
After analyzing the status of all 557 raptor species, biologists discovered that 18 percent of these birds are threatened with extinction and 52 percent have declining global populations, making them more threatened than all birds as a whole.
Comparatively, 40 percent of the world’s 11,000 bird species are in decline, according to an April report from BirdLife International.
The new research, published last week in the journal Biological Conservation, was led by biologists at The Peregrine Fund and in collaboration with nine scientific organizations and is the first to focus specifically on the status of raptors, according to Stuart Butchart chief scientist at BirdLife International and one of the paper’s coauthors.
“In particular, raptor species that require forest are more likely to be threatened and declining than those that do not, and migratory raptors were significantly more threatened than resident species,” Butchart said on the BirdLife International website. “The greatest concentrations of threatened species are found in South and South-East Asia.”
Unfortunately, human activities are one of the main reasons behind the decline. Threats include habitat alteration or destruction, intentional killing, intentional and unintentional poisoning, electrocution and climate change, the research shows.
“Vultures in South Asia have suffered catastrophic population declines owing to the toxic effects of the veterinary drug diclofenac,” Butchart continued. “In Africa, vultures and owls are killed for their body parts to be used for supposed medicinal benefits. Many other raptors are vulnerable to electrocution or collision with powerlines. But as with most bird species, unsustainable agriculture and logging are the primary threats.”
Raptors, also known as birds of prey, have hooked bills, curved talons, sharp eyesight and other special features to allow them to hunt for food.
Although raptors are at the top of the food chain, they reproduce slower than many other birds, meaning they are “more sensitive to threats caused by humans and are more likely to go extinct,” Sarah Schulwitz, director of the American Kestrel Partnership at The Peregrine Fund, explained in a press release.
Saving these carnivorous birds is important because they play a key ecological role. For instance, avian scavengers such as vultures clean up dead animals and other carcasses from the environment. Raptors also control populations of rodents and other small mammals.
“Raptors provide critical ecosystem services, but there has never been a systematic, global synthesis of their conservation status or threats. We needed to change that so we can identify and prioritize our conservation efforts,” Chris McClure, director of Global Conservation Science at The Peregrine Fund added in the release.
The researchers offered a number of recommendations to stop this decline.
“As well as site protection, we need to strengthen and enforce laws preventing illegal killing and unsustainable hunting,” Butchart advised. “Other priorities include education and awareness-raising, policy changes such as improved regulation on the use of poisons, and safety measures for dangerous powerlines. For migratory species, international cooperation is of particular importance, including through Species Action Plans such as those developed under the Convention of Migratory Species.”
