India’s National Tiger Conservation Authority (NTCA) is coming under increasing pressure over its illegal order banning the recognition of tribal forest rights in tiger reserves. The order prompted Survival International to launch a global tourism boycott in November.
Information released to Survival has revealed that India’s tribal peoples’ Commission (officially called the National Commission for Scheduled Tribes (NCST)) has directly challenged the NTCA’s order in private meetings in Delhi. The Commission demanded that the NTCA suspend any planned evictions of tribal peoples, who have been dependent on and managed their forests for millennia.
After demanding to meet with the NTCA, the Commission argued that the order violates India’s Forest Rights Act – which guarantees tribal peoples’ rights to their forests. It was intended to address the “historical injustice” against tribes and other “traditional forest dwellers.”
In November, representatives of tribal communities met with many human rights and environment activists in Delhi, amidst mounting concern over the NTCA order.
J.K. Thimma, a Jenu Keruba man who lives in Nagarhole National Park, and was present at the meeting, said: “The NTCA order is an attack against our culture and our tradition. This is anti-Constitutional and the NTCA have no right to stop the implementation of an Act passed by the Parliament… This is denial for our existence. The order needs to be withdrawn as soon as possible, it is creating fear among all of us.”
Another tribal man, Shankar Barde from Tadoba Tiger Reserve, said: “After years of restrictions and hardships, finally we were told early this year by the district administration that our rights have been recognized. We were excited… but then we were told by the district administration that NTCA order does not allow our rights to be recognized. This is a complete injustice. Dozens of outsiders are earning large sums of money in our backyard while we struggle to even live with dignity.”
Indian law specifically states that the NTCA does not have the power to “interfere with or affect the rights of local people, particularly… tribes.” Tribal rights are under the jurisdiction of the Ministry of Tribal Affairs.
Despite this, conservation authorities have violated the rights of tribal peoples. Across India, tribal peoples endure harassment, coercion, and illegal eviction from their ancestral homelands in the name of conservation.
After eviction, tribal people face lives of poverty and exclusion on the fringes of Indian society. Meanwhile, huge numbers of tourists are then invited into tiger reserves, disrupting tiger habitats and making tigers more vulnerable to poaching.
Survival’s Director Stephen Corry said: “This order is an attack on India’s tribal peoples – it’s also illegal. Polluting and destructive industries such as uranium mining and tourism are apparently welcome in tiger reserves, but conservationists in India remain determined to kick tribal people off their land. It’s time they partnered with the best conservationists and guardians of the natural world, and stopped persecuting them. Tribal peoples know their land and its animals better than the conservationists.”
HAWAII: For the first time, ecosystems and natural communities on eight acres of land on the island of Kaua’i possess legal rights to exist, thrive, regenerate, and evolve. This is the first Rights of Nature conservation easement on the Hawaiian Islands.
The effects of pollution and climate change wrought by corporate practices are devastating habitats and destabilizing communities on Hawaii and other Pacific islands. For many residents, waiting for government to protect them is no longer an option.
“Rights of Nature is already in the air, the sea, and the people of Hawaii, so recognizing legal Rights of Nature on land that is in my name came quite easily for me,” explained Joan Porter, the Kaua’i landowner who recognized nature’s rights through the conservation easement. “I established the easement in hopes that other landowners and governments will also understand the need to change the status of nature from property to bearing rights.”
CELDF assisted Porter in the drafting of the easement, making Kaua’i the second locality where a private landowner in the U.S. changed the status of nature through an easement to recognize the rights of ecosystems and natural communities in perpetuity. The Kaua’i easement contains provisions on climate change, genetic engineering, restriction of corporate rights, and enforcement language.
A key partner in the Rights of Nature work in Hawaii has been the Kaua’i-based organization Coherence Lab. Prajna Horn, co-founder and executive director, stated, “There is a fundamental shift happening across our planet today, where more people are beginning to understand Indigenous wisdom and the inseparable relationship between humans and the Earth. Rights of Nature is rooted in Indigenous wisdom and is based on aligning with Natural Law. Thus, the legalization of the Rights of Nature is really about a remembering of how to live a harmonious, balanced and respectful life for the sake future generations. I’ve been engaged in the Rights of Nature movement for close to a decade. Through this conservation easement and other Rights of Nature work, I am grateful to have had the chance to bring CELDF to Kaua’i.”
For over a decade, CELDF has been assisting communities, countries, and tribal nations to transform the legal status of nature. In 2006, Tamaqua Borough, Pennsylvania, became the first government in the world to legally recognize nature’s rights. Since then, more than three dozen communities in more than 10 states in the U.S. have secured nature’s rights. In 2008, CELDF assisted Ecuador to draft constitutional provisions recognizing the Rights of Nature. The new constitution was overwhelmingly adopted by citizens. Most recently, the General Council of the Ho-Chunk Nation in Wisconsin approved an amendment to their tribal constitution to recognize the Rights of Nature.
As the Rights of Nature builds momentum, in the past year, courts in India and Colombia have issued decisions recognizing the rights of rivers and glaciers. In its decision securing rights of the Atrato River, the Colombia Constitutional Court wrote:
“…[H]uman populations are those that are interdependent on the natural world – not the other way around – and…they must assume the consequences of their actions and omissions in relation to nature. It’s about understanding this new socio-political reality with the aim of achieving a respectful transformation with the natural world and its environment, just as has happened before with civil and political rights…economic, social and cultural rights…and environmental rights.”
“The Rights of Nature easement is a bold first step in a broader legal and cultural paradigm shift,” says Kai Huschke, Northwest and Hawaii organizer for CELDF. “For generations, the people and ecosystems of Hawaii have endured ‘legalized’ colonization, toxic pollutants, and GMOs. People are saying ‘Enough!’ Many residents in Hawaii – and around the world – are moving towards law being used to protect the rights of coral reefs or the rights of tropical forests, rather than law being used to destroy them.”
The Community Environmental Legal Defense Fund is a non-profit, public interest law firm providing free and affordable legal services to communities facing threats to their local environment, local agriculture, local economy, and quality of life. Its mission is to build sustainable communities by assisting people to assert their right to local self-government and the Rights of Nature. www.celdf.org.
Featured image: Supporters of the Bears Ears and Grand Staircase-Escalante national monuments during a rally Saturday, Dec. 2, 2017 in Salt Lake City. AP Photo/Rick Bowmer
On Dec. 4, President Trump traveled to Utah to sign proclamations downsizing Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 50 percent. “[S]ome people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Trump said. “And guess what? They’re wrong.”
Native American tribes and environmental organizations have already filed lawsuits challenging Trump’s action. In our analysis as environmental and natural resources law scholars, the president’s action is illegal and will likely be overturned in court.
Contests over land use
Since 1906 the Antiquities Act has given presidents the authority to set aside federal lands in order to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
History of the Antiquities Act.
When a president creates a national monument, the area is “reserved” for the protection of sites and objects there, and may also be “withdrawn,” or exempted, from laws that would allow for mining, logging or oil and gas development. Frequently, monument designations grandfather in existing uses of the land, but prohibit new activities such as mineral leases or mining claims.
Because monument designations reorient land use away from resource extraction and toward conservation, some monuments have faced opposition from local officials and members of Congress. In the past two decades, Utah has been a flashpoint for this debate.
In 1996 President Clinton designated the Grand Staircase-Escalante National Monument, a region of incredible slot canyons and remote plateaus. Twenty years later, President Obama designated Bears Ears National Monument, an area of scenic rock formations and sites sacred to Native American tribes.
Utah’s governor and congressional delegation have long argued that these monuments are larger than necessary and that presidents should defer to the state about whether to use the Antiquities Act.
Zinke’s review
In April President Trump ordered a review of national monuments designated in the past two decades. Trump directed Interior Secretary Ryan Zinke to recommend steps to eliminate or shrink these monuments or realign their management with Trump administration priorities.
Secretary Zinke’s review was an arbitrary and opaque process. During a rushed four-month period, Zinke visited only eight of the 27 monuments under review. At the end of the review, the Interior Department released to the public only a two-page summary of Zinke’s report.
Interior Secretary Ryan Zinke visiting Bears Ears National Monument, May 9, 2017. DOI, CC BY-SA
In September the Washington Post published a leaked copy of Zinke’s detailed recommendations. They included downsizing, changing management plans or loosening restrictions at a total of 10 monuments, including three ocean monuments.
Trump’s proclamations
Trump’s proclamations on Bears Ears and Grand Staircase-Escalante note the long list of objects that the monuments were created to protect, but claim that many of these objects are “not unique,” “not of significant scientific or historic interest,” or “not under threat of damage or destruction.”
As a result, Trump’s orders split each monument into smaller units, excluding large tracts that are deemed “unnecessary.” Areas cut from the monuments, including coal-rich portions of the Kaiparowits Plateau, will be reopened to mineral leasing, mining and other uses.
The key question at issue is whether the Antiquities Act empowers presidents to alter or revoke decisions by past administrations. The Property Clause of the Constitution gives Congress the power to decide what happens on “territory or other property belonging to the United States.” When Congress passed the Antiquities Act, it delegated a portion of that authority to the president so that administrations could act quickly to protect resources or sites that are threatened.
Critics of recent national monuments argue that if a president can create a national monument, the next one can undo it. However, the Antiquities Act speaks only of designating monuments. It says nothing about abolishing or shrinking them.
Two other early land management statutes – the Pickett Act of 1910 and the Forest Service Organic Act of 1897 – authorized the president to withdraw other types of land, and specifically stated that the president could modify or revoke those actions. In contrast, the Antiquities Act is silent on reversing past decisions.
Ruins at Chaco Culture National Historic Park, New Mexico, originally protected under the Antiquities Act by President Theodore Roosevelt in 1907 to prevent looting of archaeological sites. Steven C. Price/Wikipedia, CC BY-SA
In 1938, when President Franklin D. Roosevelt considered abolishing the Castle-Pinckney National Monument – a deteriorating fort in Charleston, South Carolina – Attorney General Homer Cummings advised that the president did not have the power to take this step. (Congress abolished the monument in 1951.)
Congress enacted a major overhaul of public lands law in 1976, the Federal Land Policy and Management Act, repealing many earlier laws. However, it did not repeal the Antiquities Act. The House Committee that drafted the 1976 law also made clear in legislative reports that it intended to prohibit the president from modifying or abolishing a national monument, stating that the law would “specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”
Since that time, no president until Trump has attempted to revoke or downsize any national monument. Trump’s changes to Bears Ears and Grand Staircase-Escalante depend on an argument that presidential declarations about what a national monument protects are subject to second-guessing by subsequent presidents. These claims run counter to every court decision that has examined the Antiquities Act.
Courts have always been deferential to presidents’ use of the law, and no court has ever struck down a monument based on its size or the types of objects it is designed to protect. Congress, rather than the President, has the authority to alter monuments, should it decide that changes are appropriate.
The value of preservation
This summer 118 other law professors, as well as California Attorney General Xavier Becerra and a number of conservation organizations, cited our analysis in letters to Secretary Zinke concluding that the president does not have authority to downsize or revoke national monuments.
Although many national monuments faced vociferous local opposition when they were declared, including Jackson Hole National Monument (now part of Grand Teton National Park), over time, Americans have come to appreciate them.
Indeed, Congress has converted many into national parks, including Acadia, the Grand Canyon, Arches and Joshua Tree. These four parks alone attracted over 13 million visitors in 2016. The aesthetic, cultural, scientific, spiritual and economic value of preserving them has long exceeded whatever short-term benefit could have been derived without legal protection.
Bears Ears and Grand Staircase-Escalante are home to many natural and archaeological wonders, including scenic bluffs, petroglyphs, burial grounds and other sacred sites and a rich diversity of plant and animal life. The five Native American tribes that supported protecting Bears Ears, led by the Navajo Nation, have vowed to defend the monuments in court. President Trump’s effort to scale back these monuments oversteps his authority and is unlikely to stand.
Editor’s note: This is an updated version of an article originally published on April 27, 2017.
Before murdering millions during the Holocaust, the Nazis referred to Jews as rats. After murdering 17 people and lobotomizing some of his victims in an attempt to preserve them, alive but in a catatonic state, serial killer Jeffrey Dahmer explained, “…I tried to create living zombies…I just wanted to have the person under my complete control, not having to consider their wishes, being able to keep them there as long as I wanted.” In vivisection labs, scientists commonly cut animals’ vocal cords, so the scientists don’t have to listen to the animals scream.
These examples illustrate a common psychological phenomenon: In order to commit atrocities, humans characterize their victims as sub-human, objectify and silence them. It is, after all, much easier to destroy the less than human and the voiceless.
Civilized humans are currently destroying the natural world. Water continues to be polluted, air is poisoned, soil is lost faster than it can be replaced, and the collapse of every major biosphere across the planet intensifies. This destruction is made possible through the objectification and silencing of the natural world. The American legal system defines nature as property. Capitalism calls nonhumans “natural resources” and only values them as profits. The Abrahamic religions remove the sacred from the natural world and give it to an abstract, patriarchal God who somehow exists beyond the natural world.
It’s no wonder, then, that many in Park City participate in the silencing of nature, too. Many Parkites, for example, celebrate the existence of thousands of acres of land designated as “protected open space.”
There are several problems with this. First, the term “open space” is dishonest and works to objectify nonhumans while silencing the natural world. Objectification and silencing pave the way for exploitation. Second, as long as runaway climate change threatens snowfall, creates droughts, and contributes to wildfire intensity, no natural community in Park City can truly be considered “protected.” To call endangered natural communities protected leads to complacency, and we cannot afford complacency while the world burns.
The “Save Bonanza Flats” Campaign, which raised $38 million to protect 1,350 acres of high-altitude land from development, was a beautiful expression of the community’s love for life. Do not mistake me, I am deeply glad that Bonanza Flats is safe from hotels and multi-million dollar homes. But, Bonanza Flats is not safe, and will never be safe, as long as the dominant culture’s insatiable appetite for destruction is ensured by humans who believe the natural world is nothing more than lifeless matter for humans to use.
***
While working on this essay, I decided to head up Guardsman Pass to ask those who live in Bonanza Flats what they think about “protected open space.” Hiking is contemplative for me. I was asking myself just how, exactly, I thought the nonhumans in Bonanza Flats would express their feelings about being “open space” when I rounded a bend to find myself face to face with a bull and cow moose grazing among the aspen.
The aspen were mature, many of them boasting trunks eighteen and twenty-four inches in diameter. They grew closely together, creating an ancient silvan atmosphere with dappling silvers, golds, and greens. The afternoon sunshine mixed with aspen leaves to give me the slight, pleasant sense of existential vertigo that accompanies the timelessness of life’s original joys.
I met the bull moose’s gaze. My bones recognized their nearness to a greater collection of their kindred. My muscles, observing the moose’s, remembered their first purpose and tingled with excitement. His eyes, browns in brown, reflected all the different woods he’d ever strode through. I’m not sure how long we considered each other, but when he finally looked away, his wisdom was undeniable.
And, I had my first answer: To share an aspen grove with a bull moose in Bonanza Flats, is to know this space is anything but open.
I continued on to find a stone to sit on and watched the lazy orange flutter of butterfly wings. I listened to the soft hum of bees, the breeze through quaking aspen leaves, and the hypnotic click of grasshoppers in flight. I saw mule deer bounding over a fence, a red-tailed hawk riding wind pockets, and squirrels tossing pine cones to the ground, narrowly missing human heads (for the squirrels’ winter caches). All these beings confirmed the lesson the bull moose taught me. Bonanza Flats is not open, it is filled with countless living beings.
An approaching rain cloud brought tidings of the radical interconnectedness of all life and proved that Bonanza Flats is not truly protected. When the cloud arrived to give its water, the rain evaporated well before it reached us. I was reminded that Bonanza Flats, like all communities along the Wasatch Range, depend on snowpack for life-giving water. Simple arithmetic tells us that as long as total snowpack diminishes decade after decade, as it has been since the 1950s, sooner or later there won’t be enough water left.
While Bonanza Flats is safe from the developers’ bulldozers and chainsaws, many threats, just as deadly, still exist. Marssonina fungus spores, aided by climate change, could spread over aspen leaves until they no longer quake. Shorter winters allow the tiny pricks of too many tick bites to suck moose lives away. The worrisome scent of wildfire smoke haunts the wind. And, the asthmatic cough of children brought to the mountains by their parents to escape the Salt Lake Valley’s terrible air quality ring across Bonanza Flats’ trails.
***
Not all humans have objectified and silenced the natural world. For the vast majority of human history, humans lived in balance with the natural world we depend on. We lived in this way, in part, because we developed cultures that taught the sacredness of the natural world.
I’m writing this from the eastern edge of the Great Basin where the Western Shoshone, Paiute, Goshute, Washo and others lived sustainably for millennia. Much of my work in the region has been to protect pinyon-juniper forests from government-sponsored clearcuts. The forests make poor livestock grazing and ranchers make more money when the forests are replaced with grasses, so the forests are demonized. And, just like the demonization of Jews led to the Holocaust, the demonization of pinyon-juniper forests leads to millions of acres of clear-cuts.
Food from pinyon pine nuts and medicine from juniper trees were staples in many of the Great Basin’s traditional cultures. Pine nuts and juniper berries can be harvested without damaging the forests, so native peoples lived on what the land freely gave. In my research, I stumbled upon the transcript of a presentation[1] Glenn E. Wasson, a Western Shoshone man, gave at a pinyon-juniper conference hosted by the University of Nevada-Reno, the United States Forest Service, and the Bureau of Land Management. His words describe his people’s spirituality and represent a healthy relationship with the natural world.
Wasson said, “Each living entity constitutes a link in the chain of life. All those seen and unseen, all who grow from the ground, all those who crawl, all those who swim, all those who walk on legs, all those who fly, are all intertwined in the chain of life. Each plays a vital role in the keeping of a strong, healthy, and living Mother Earth, who provides each and every entity with all the necessities for life.” Contrast Wasson’s worldview with the dominant culture’s conception of nature as property, as resources, as objects and we begin to see why we’re in the mess we’re in.
While criticizing the Forest Service and BLM’s treatment of pinyon-juniper forests, Wasson described the mindset all of us must embrace. He said “…the cutting down of a single living tree is sacrilegious – the cutting down of a forest – UNTHINKABLE!” Until we begin to see individual nonhumans as sacred and natural communities worthy of our utmost respect, the destruction will continue.
Simply changing our language will not stop the destruction and I am not criticizing anyone’s efforts to protect Bonanza Flats from development. We need much more than better words and any land that stands free of development today, has a chance to stand free of development tomorrow. Land developed today may take decades to recover.
It’s not just Bonanza Flats. Park City boasts 8,000 acres of so-called protected open space. These are not protected open spaces. These are living natural communities where countless nonhumans live with lives as valuable to them as yours is to you. And, their lives are under attack.
I’m not writing anything you don’t already know. Most people in Park City are concerned about the natural world. Unfortunately, it appears that most Parkites are more interested in using the natural world, than in saving it. Why do I say this? Well, ask yourself, do most people in Park City spend more time confronting the forces destroying snow, or more time skiing on it? Do most people spend more time working to protect threatened Canada lynx, or more time mountain biking through Canada lynx’ homes? Do most people spend more time trying to save Colorado Pikeminnows, or more time flying fishing the waters Colorado Pikeminnows swim through?
There’s nothing wrong with enjoying the natural world. But, nonhumans do not exist for human enjoyment, they exist for themselves. It is only through centuries of cultural conditioning, teaching us to see the natural world as full of objects for our use, that some humans find nothing wrong with spending more time riding bikes than fighting for our nonhuman kin.
Life is created by complex collections of relationships formed by living creatures in natural communities. Water, air, soil, climate, and the food we eat depend on natural communities. The needs of these communities are primary; morality, the efforts of our daily lives, and our cultural teachings must emerge from a humble relationship with these natural communities. True sustainability is impossible without this.
Not long ago, all humans lived in humble relationships with natural communities. We developed traditional cultures that were rooted in the connectedness of all living beings. These cultures insisted upon the inherent worth of the natural communities who gave us life. Members of these cultures did not know “open spaces,” they knew places filled with those who grow from the ground, those who crawl, those who swim, those who walk on legs, and those who fly.
The dominance of a culture that objectifies and silences nature and calls natural communities “open space” enables its destruction. This culture has pushed the planet to the verge of total collapse. To avert collapse, the destruction must stop. We must create cultures where the exploitation of individual nonhumans is sacrilegious, and wholesale environmental destruction is unthinkable. We must stand in solidarity with all those – human and nonhuman – who share this living community we call Park City.
[1]Wassen, G.E. 1987. The American Indian response to the pinyon-juniper conference. In: Everett, R.L., comp. Proceedings: Pinyon-juniper conference. Gen. Tech. Rep. INT-GTR-215. Ogden, UT: U.S. Department of Agriculture, Forest Service, Intermountain Research Station: 38-41.
The landmark mediation talks between Survival and the World Wildlife Fund (WWF) over breaches of Organization for Economic Co-Operation and Development (OECD) guidelines for multinational corporations have broken down over the issue of tribal peoples’ consent.
WWF refused, at which point Survival decided there was no purpose continuing the talks.
Survival lodged the complaint in 2016, citing the creation of conservation zones on Baka land without their consent, and WWF’s repeated failure to take action over serious human rights abuses by wildlife guards it trains and equips.
It is the first time a conservation organization has been the subject of a complaint under the OECD guidelines. The resulting mediation was held in Switzerland, where WWF is headquartered.
WWF has been instrumental in the creation of several national parks and other protected areas in Cameroon on the land of the Baka and other rainforest tribes. Its own policy states that any such projects must have the free, prior and informed consent of those affected.
A Baka man told Survival in 2016: “[The anti-poaching squad] beat the children as well as an elderly woman with machetes. My daughter is still unwell. They made her crouch down and they beat her everywhere – on her back, on her bottom, everywhere, with a machete.”
Another man said: “They told me to carry my father on my back. I walked, they beat me, they beat my father. For three hours. Every time I cried they would beat me, until I fainted and fell to the ground.”
Background briefing
– Survival first raised its concerns about WWF’s projects on Baka land in 1991. Since then, Baka and other local people have repeatedly testified to arrest and beatings, torture and even death at the hands of WWF-funded wildlife guards.
– The OECD is the Organization for Economic Co-Operation and Development. It publishes guidelines on corporate responsibility for multinationals, and provides a complaint mechanism where the guidelines have been violated.
– The complaint was lodged with the Swiss national contact point for the OECD, as WWF has its international headquarters in Switzerland. Talks took place in the Swiss capital, Bern, between representatives of WWF and Survival.
– The principle of Free, Prior and Informed Consent (FPIC) is the bedrock of international law on indigenous peoples’ rights. It has significant implications for big conservation organizations, which often operate on tribal peoples’ land without having secured their consent.
Tribal peoples like the Baka have been dependent on and managed their environments for millennia. Contrary to popular belief, their lands are not wilderness. Evidence proves that tribal peoples are better at looking after their environment than anyone else. Despite this, WWF has alienated them from its conservation efforts in the Congo Basin.
The Baka, like many tribal peoples across Africa, are accused of “poaching” because they hunt to feed their families. They are denied access to large parts of their ancestral land for hunting, gathering, and sacred rituals. Many are forced to live in makeshift encampments on roadsides where health standards are very poor and alcoholism is rife.
Survival’s Director Stephen Corry said: “The outcome of these talks is dismaying but not really surprising. Conservation organizations are supposed to ensure that the ‘free, prior and informed consent’ of those whose lands they want to control has been obtained. It’s been WWF’s official policy for the last twenty years.
“But such consent is never obtained in practice, and WWF would not commit to securing it for their work in the future.
“It’s now clear that WWF has no intention of seeking, leave alone securing, the proper consent of those whose lands it colludes with governments in stealing. We’ll have to try other ways to get WWF to abide by the law, and its own policy.”
“Pygmy” is an umbrella term commonly used to refer to the hunter-gatherer peoples of the Congo Basin and elsewhere in Central Africa. The word is considered pejorative and avoided by some tribespeople, but used by others as a convenient and easily recognized way of describing themselves.
Editor’s note: This is an updated version of an 
