by Deep Green Resistance News Service | Nov 1, 2017 | Indigenous Autonomy
Featured image: Casey Camp-Horinek with her granddaughter
by Movement Rights / via Intercontinental Cry
San Francisco, CA – After suffering for years with poisoned water and serious health issues due to fracking and injection wells on and near their reservation the governing body of the Ponca Nation of Oklahoma voted to pass a statute recognizing the rights of nature on Friday, October 20, 2017. When enacted, the Ponca will be the first tribal nation to recognize the rights of nature into statutory law.
“On Friday, October 20th the Ponca Tribe of Oklahoma took the historic step of agreeing to add a statute to enact the Rights of Nature. We are proud to be moving into the future by honoring our original instructions to respect all life on our Mother Earth,” said Casey Camp-Horinek, a member of the Ponca Tribal Business Council. “We would like to thank everyone who has brought information about the Rights of Nature and those who continue to share ways to bring back respect for the natural laws that have sustained all life for millenniums. A special thanks to Movement Rights founders, Shannon Biggs and Pennie Opal Plant for all the support provided over the last few years.”
Movement Rights has been working with members of the Ponca Nation to assist the tribe with fracking issues utilizing the recognition of the rights of nature as a model to protect the land and health of tribal members. “Dozens of communities in the United States and several countries, including New Zealand, India, Ecuador and Bolivia, have passed laws that stop treating nature as property to be destroyed. The rights of nature legal framework recognizes the legal rights of ecosystems to exist and regenerate their vital life cycles,” said Shannon Biggs, the Executive Director of Movement Rights. “These communities and countries are using this new legal framework to protect people and natural communities from harmful activities including fracking. They are shifting human law to align with natural law.”
Ponca, Oklahoma is the epicenter of earthquakes caused by fracking and injection wells. Tribal members have experienced diseases that have decimated their population since the fracking industry began in their area. Every single water well on the reservation is too toxic to drink, bathe in or allow pets and livestock to drink. There have been 448 earthquakes in and around the Ponca reservation this year, in a state that was essentially earthquake free before the fracking industry moved in to the area. The Ponca Nation is expected to enact the Rights of Nature Statute into law by the end of 2017.
“We all know that water is life. The years of fish kills related to the fracking and injection wells amount to environmental genocide,” said Casey Camp-Horinek. “It is going to take all of us humans because we’re speaking for those without voices, for the deer, the cattle, those that fly. In our tribe we have a funeral a week now. We’re being fracked to death and It’s time to take a stand for our people and defend the earth.”
The Ponca Nation and Movement Rights also conducted two events which took place on Saturday, October 22nd called “Ponca Environmental Community Action Day”. The day included a prayer walk to the Phillips 66 refinery in the City of Ponca as well as a community meeting. “I feel like we are gaining strength, we had more tribal nations represented this time as well as non-natives,” said Ponca Tribal member, Suzaatah Williams. “We had elders and even a newborn on this walk and every age group in between. Even if only one of these people share the information they learned we have made a difference. Knowledge is power and we are only getting stronger!”
Speakers for the community events included Casey Camp-Horinek, Mekasi Horinek, Shannon Biggs, Bryan Parras of the Sierra Club and TEJAS in Houston, Texas, and Robby Diesu, coordinator for the National Stop the Frack Attack Network based in Washington, DC.
“Most importantly, thanks to our Creator, Wakonda,” said Casey Camp-Horinek. “We believe that the prayers and guidance provided are leading us to further protect our Mother Earth, who sustains us; and make a way for the generations to come.”
Contact:
Casey Camp-Horinek caseycamphorinek@yahoo.com (580) 716-7015
Shannon Biggs shannon@movementrights.com (415) 298-9419
Pennie Opal Plant pennie@gatheringtribes.com (510) 390-0386
by Deep Green Resistance News Service | Oct 19, 2017 | Strategy & Analysis
Editor’s note: The first Rights of Nature lawsuit in the US was filed on September 25, 2017, in Denver, Colorado. The full text of the complaint can be found here.
by Will Falk / Deep Green Resistance Great Basin
In the war for social and environmental justice, even the best lawyers rarely serve as anything more than battlefield medics.
They do what they can to stop the bleeding for the people, places, and causes suffering on the front lines, but they do not possess the weapons to return fire in any serious way. Lawyers lack effective weapons because American law functions to protect those in power from the rest of us; effective legal weapons are, quite literally, outlawed.
Nonetheless, understanding the limits of the law to affect change through my experiences as a public defender, I recently helped the Colorado River sue the State of Colorado in a first-in-the-nation lawsuit — Colorado River v. Colorado — requesting that the United States District Court in Denver recognize the river’s rights of nature. These rights include the rights to exist, flourish, regenerate, and naturally evolve. To enforce these rights, the Colorado River also requests that the court grant the river “personhood” and standing to sue in American courts.
Four of my comrades in the international environmental organization Deep Green Resistance (DGR) and I, are listed as “next friends” to the Colorado River. The term “as next friends” is a legal concept that means we have signed on to the lawsuit as fiduciaries or guardians of the river. I also serve, with the brilliant Deanna Meyer, as one of DGR’s media contacts concerning the case.
Several times, I’ve been asked whether I think our case is going to win. We have provided, in the complaint we filed, the arguments the judge needs to do the right thing and rule in our favor. In this sense, I think we can win. And, if we do win, the highly endangered Colorado River will gain better protections while the environmental movement will gain a strong new legal weapon to use in defense of the natural world.
But, when has the American legal system been concerned with doing the right thing? While every ounce of my being hopes we win, if we lose, I want you to know why. I want you to be angry. And, I want you to possess an analysis that enables you to direct your anger at the proper targets.
***
The Community Environmental Legal Defense Fund (CELDF) does incredible work to demonstrate how the American legal system is stacked against us. CELDF began as a traditional public interest law firm working to protect the environment. They fought against industrial projects like waste incinerators and dumps only to encounter barriers in the legal system put in place by both government and corporations.
According to CELDF, government and corporations “developed a structure of law which – rather than focused on protecting people, workers, communities, and the environment – was instead focused on endless growth, extraction, and development.” This structure is “inherently unsustainable, and has, in fact, made sustainability illegal.”
The current structure of law forces us into what CELDF calls the “Box of Allowable Activism.” The Box is formed by four legal concepts that have so far proven to be unassailable. Those concepts are state preemption, nature as property, corporate privilege, and the regulatory fallacy. State preemption removes authority from local communities by defining the legal relations between a state and its municipalities as that of a parent to a child. Local communities are not allowed to pass laws or regulations that are stricter than state law.
Currently, nature is defined as property in American law. And, anyone with title to property has the right to consume and destroy it.
As CELDF notes, “this allows the actions of a few to impact the entire ecosystem of a community.” To make this worse, corporations – who own vast tracts of nature – are granted, by American courts, corporate rights and “personhood.” Corporate personhood gives corporations the power to request enforcement of rights to free speech, freedom from search and seizure, due process and lost future profits and equal protection under the law.
Finally, CELDF explains that “the permitting process, and the regulations supposedly enforced by regulatory agencies, are intended to create a sense of protection and objective oversight.” But, while water continues to be polluted, air poisoned, and the collapse of every major ecosystem on the continent intensifying, we must conclude that this protection is not happening.
Regulatory agencies give permits. By definition, they provide permission to destructive activities. CELDF states, “When they issue permits, they give cover to the applicant against liability to the community for the legalized harm.”
***
I went to law school at the University of Wisconsin-Madison and became a public defender in Kenosha, WI because I thought I could push back against the institutional racism of the American criminal justice system. Just like CELDF learned working through traditional environmental law, I learned quickly that my hands were tied by the legal structure, too.
Something similar to CELDF’s “Box of Allowable Activism” exists in criminal law. Prosecutors overcharge. For example, I represented a single mother of three charged with six counts of theft despite the total value of what she was accused of stealing amounting to less than $30 — one count for the bag of rice, one for the butter, one for the salt, one for the pack of chicken breasts, one for the onion, and one for the garlic.
Then, prosecutors offer plea deals taking advantage of a defendant’s rational self-interest and fear. In my previous example, the prosecutor offered to dismiss four of the six counts of theft and recommend 30 days in jail if my client pled guilty to two counts, the rice and chicken. When the prosecutor made her offer, she reminded my client that not taking the deal meant facing a long trial process while risking conviction on all six counts and being exposed to two years in jail.
Defense attorneys are ethically bound to defer to their clients’ desire to take a plea deal. Meanwhile, public defender offices are woefully underfunded. And, with the majority of criminal defendants so poor they qualify for court-appointed counsel, public defenders are notoriously overworked producing mistakes that lead to their clients’ incarceration.
Credit: Wikimedia Commons
Deep ecologist, Neil Evernden, connects the problems facing lawyers fighting institutional racism and lawyers fighting ecocide in his book “The Natural Alien: Humankind and Environment.” Evernden asks us to imagine we are lawyers defending a client who is black in apartheid South Africa or the Jim Crow American south.
He asks, “What would you do if faced with a trial judge who denies your client any rights and who, after hearing your case, simply says: ‘So what — is he white?’”
Everndem claims that we only have two options in this situation. We can demand that the judge recognize the rights and dignity of our client and risk condemning our client to execution. Or, we can play by the rules, reinforce problematic law, contribute to its precedence, and detail our client’s genealogical records at length “to try to prove our client white.”
Evernden correctly notes that too often when environmentalists are challenged to justify their declarations on behalf of the living world, they proceed to try to prove their client white. Evernden writes, “Rather than challenge the astonishing assumption that only utility to industrialized society can justify the existence of anything on the planet” the environmentalist “tries to invent uses for everything.” But, “the only defense that can conceivably succeed in the face of this prejudice is one based on the intrinsic worth of life, of human beings, of living beings, ultimately of Being itself.”
We want our lawsuit, specifically, and the rights of nature framework, generally, to be legal arguments for the intrinsic worth of life and of living beings like the Colorado River.
We are attacking two of the walls forming the Box of Allowable Activism. We seek to overturn the concept that nature is only property, and we seek to erode corporate power by giving the source of corporate power (nature) rights to stop corporate exploitation. These arguments are not currently accepted, but neither was the argument that “separate is inherently unequal” when Thurgood Marshall argued this and ended school segregation in Brown v. Board of Education.
This is all well and good, but we are still forced to construct our argument only with currently acceptable legal language. We seek “personhood” for the Colorado River, for example. But, the river is much more than a person. The river is an ancient and magnificent being who carved the Grand Canyon, who braved some of the world’s most arid deserts on her path from the Rocky Mountains to the Gulf of California, and who facilitates countless lives, human and nonhuman.
I am afraid, that in seeking personhood for the Colorado River, people will mistake our arguments as trying to prove the Colorado River a “person” while reinforcing the notion that a being only has value as far as that being resembles a human.
***
Evernden only contemplated two options. We can prove the Colorado River a person, or we can demand recognition of our client’s dignity. But, there is a third option: Dismantle the power stacking the legal system against communities and natural ecosystems.
To fight this power, we must understand how power works. Dr. Gene Sharp, who CNN has called “a dictator’s worst nightmare” and the “father of nonviolent struggle,” is the world’s leading theorist of power.
Sharp identifies two manifestations of power – social and political. Social power is “the totality of all influences and pressures which can be used and applied to groups of people, either to attempt to control the behavior of others directly or indirectly.” Political power is “the total authority, influence, pressure, and coercion which may be applied to achieve or prevent the implementation of the wishes of the power-holder.”
Sharp lists six sources of power: authority, human resources, skills and knowledge, intangible factors, material resources, and sanctions. Interfering with these sources of power is the key to a successful resistance movement.
The powerful know where their power comes from and they protect the sources of their power. It is one thing to protect these sources with brute force. But, why use brute force when you can persuade the oppressed that there is nothing they can do to affect the sources of power? Or, when you can mislead the oppressed about where those sources of power are?
In this spirit, the powerful do everything they can to convince the oppressed that the current arrangement of power is inevitable. They seek to convince us that the legal system exists to protect communities and the environment. They teach us to look back through history to view our few victories as the result of a system devoted to justice.
These few victories are held up as proof that sooner or later the courts always make the right decision. We are pacified with assurances that if our lawyers are clever enough, if they work hard enough, if they articulate the truth eloquently enough, judges will recognize the brilliance of our lawyers’ arguments and justice will be served.
Justice for the natural world has rarely been served. CELDF names the final blockade to justice the “Black Hole of Doubt” and teaches, “We think we’re not smart enough, strong enough, or empowered enough – we literally do not believe we have the inalienable right to govern.” Sharp says, “Power, in reality, is fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue.”
Any resistance movement aspiring to true success must engage in shrewd target selection to undermine sources of power. Taking Sharp a step further, it is possible to prioritize which sources are more essential to the functioning of power than others. Corporate power is maintained through the exploitation of the natural world. There is no profit without material products. There are no material products without the natural world. If corporations lose access to ecosystems like the Colorado River, they will fail. If corporations fail, they can no longer control our system of law.
We may win in court and corporations will have to respect the Colorado River’s rights to exist, flourish, regenerate, and naturally evolve. We will also gain a foothold for other ecosystems to assert their own rights. We may fail in court, but that does not mean the fight is over.
In many ways, our failure would simply confirm what we already know: the legal system protects corporations from the outage of injured citizens and ensures environmental destruction. If we fail, we must remember there are other means — outside the legal system — to stop exploitation.
Regardless of what happens in our case, we encourage others to employ whatever means they possess to protect the natural world who gives us life.
To repost this or other DGR original writings, please contact newsservice@deepgreenresistance.org
by Deep Green Resistance News Service | Jan 8, 2017 | Lobbying, Strategy & Analysis
Featured image: Cofan Indigenous leader Emergildo Criollo looks over an oil contaminated river hear his home in northern Ecuador. Photo by Caroline Bennett / Rainforest Action Network (flickr). Some rights reserved.
by Kiana Herold / Intercontinental Cry
Indigenous battles to defend nature have taken to the streets, leading to powerful mobilizations like the gathering at Standing Rock. They have also taken to the courts, through the development of innovative legal ways of protecting nature. In Ecuador, Bolivia and New Zealand, indigenous activism has helped spur the creation of a novel legal phenomenon—the idea that nature itself can have rights.
The 2008 constitution of Ecuador was the first national constitution to establish rights of nature. In this legal paradigm shift, nature changed from being held as property to a rights-bearing entity.
Rights are typically given to actors who can claim them—humans—but they have expanded especially in recent years to non-human entities such as corporations, animals and the natural environment.
The notion that nature has rights is a huge conceptual advance in protecting the Earth. Prior to this framework, an environmental lawsuit could only be filed if a personal human injury was proven in connection to the environment. This can be quite difficult. Under Ecuadorian law, people can now sue on the ecosystem’s behalf, without it being connected to a direct human injury.
The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature. The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. In that sense, this model provides an alternative to the model of development, by instead prioritizing living sustainably with Pachamama, the Andean goddess of mother earth. Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production.
The Preamble of the Ecuadorian Constitution reads:
“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”
The traditional Quechua relation to the natural world is firmly rooted in the Constitution. The interchangeable use of nature and Pacha Mama testifies to the indigenous influence on the Constitution.
The concept and the praxis
In the 1970s, Christopher Stone, an American environmental legal scholar, articulated the legal notion of the rights of nature in his widely read essay Should Trees Have Standing? Stone envisioned a new way of conceptualizing nature through law that broke with the existing paradigm of the commodification of nature, often established through law.
Property rights are a primary example of commodifying the natural world. When treated as property, nature incurs damages that often go unrecognized. Stone writes that an argument for “personifying” nature can best be considered from a welfare economics perspective. Under capitalist economic logic, many externalities that negatively impact the environment are not registered when calculating the cost of an action. Transforming nature legally from mere property to a rights-holding entity would force byproduct environmental effects of production to factor into cost calculations. Under this framework, nature would be better protected.
Incorporating rights of nature into a national constitution is a powerful paradigm shift, but may seem hypocritical and idealistic given states’ continuing dependence on extractive industries. In Ecuador, 14.8 percent of the GDP comes from profits from natural resources as of 2014.
Moreover, under Ecuadorian law, the rights of nature are subject to principles of so-called national development. Article 408 of the constitution stipulates that all natural resources are the property of the state, and that the state can decide to exploit them if deemed to be of national importance, as long as it “consults” the affected communities. However, there is no state obligation to abide to the result of the consultation to these communities– a gaping hole in full protection of these environments and the people living within them.
Nonetheless, Ecuador’s Constitution was a significant step in changing the legal paradigm of rights to one that is inclusive of nature.
Bolivia follows
Bolivia followed in Ecuador’s footsteps. Evo Morales, the first indigenous head of state in Latin America, was elected in 2005 and called for a constitutional reform that ultimately established rights to nature in 2009.
Again, indigenous philosophies were instrumental in the formulation of Bolivia’s new Constitution. The constitution’s preamble states that Bolivia is founded anew “with the strength of our Pachamama,” placing the indigenous understanding of nature as central to the very creation of the revised political state. Like in Ecuador, the Bolivian Constitution allows anyone to legally defend environmental rights.
Bolivia’s government soon instituted the Law of Mother Earth in 2010, later re-coining it as the Framework Law of Mother Earth and Integral Development to Live Well. The law lays out a number of rights for nature, such as the right to life and to exist, to pure water, clean air, to be free from toxic and radioactive pollution, a ban on genetic modification, and freedom from interference by mega-infrastructure and development projects that disturb the balance of ecosystems and local communities.
Part of the rationale behind the law is the hope of helping the environment through reducing causes of climate change, which is directly in Bolivia’s interests. Increasing temperatures in Bolivia pose problems to the nation’s farming sector and water supply.
Again, however, this legal concept does not match economic realities. The rights of nature are directly at odds with extractive industries that are intimately tied to Bolivia’s model of economic development. Despite legal frameworks defending the rights of nature, Bolivia’s profits from natural resources comprise 12.6 percent of the GDP as of 2014.
But there are alternatives to the Andean experience. Across the Pacific, New Zealand has also granted a legal status of personhood to specific rivers and forest, thus enabling the environment itself to have rights.
The New Zealand Take on Rights of Nature
Unlike Ecuador and Bolivia, New Zealand’s rights of nature are not embedded in its constitutional law, but rather protect specific natural entities. Native communities in New Zealand were instrumental in creating new legal frameworks that give legal personhood, and thus rights, to land and rivers.
New Zealand has bestowed legal personhood on the 821-square mile Te Urewara Park, and the Whanganui River, the nation’s third-largest river. This was part of the government’s reparation efforts for the historical injustice at the foundation of New Zealand’s state: colonial conquest of land from native peoples.
The Tuhoe tribe’s ancestral homeland is currently the Te Urewara Park. With the imposition of colonial governance, most of their land was taken from them without consultation, resulting in great spiritual and socio-economic losses. The land was designated a national park in 1954.
The Tuhoe tribe never signed the 1840 Treaty of Waitangi with the British Crown, which stripped the tribe of their sovereign right over their land. They have since contested the British assertion of sovereignty that undergirds the formation of the modern New Zealand state.
Their centuries-long struggle finally yielded results. As part of New Zealand’s reparation process towards Indigenous Peoples, the national government negotiated with the Tuhoe tribe regarding their historic land. In 2012 the Tuhoe tribe accepted the Crown’s offer of financial reparations, a historical account and apology and co-governance of Te Urewera lands. The national government renounced ownership of the land, giving the land its own personhood.
Under this framework, the land is now a legal entity in itself, owned neither by the government nor the Tuhoe tribe. The land is no longer property. It is its own untamed natural presence in and of itself, with, as per native understanding, its own life force and identity.
The land is now co-governed by the Tuhoe people and the New Zealand government.
The 2014 Te Urewara Act declares the park “a place of spiritual value.” The Act acknowledges that it is the sacred home of the Tuhoe people, integral to their “culture, language, customs and identity,” while also being of intrinsic value to all New Zealanders.
In a similar process of granting legal personhood, the local Maori tribe, the Iwi, helped the Whanganui River earn legal personhood status in 2014 after winning a long-fought court case.
This was part of a centuries-long struggle that the Whanganui tribes undertook to protect the river. Since the signing of the Treaty of Waitangi, the river has been subject to gravel extraction, water diversion for hydro-electric plans, and river bed works to better navigability, under protest from local tribes.
The Maori fought to protect the river through a series of court cases beginning in 1938, defending their claim to the management of the river as its rightful guardian. Throughout the court cases, negotiations were undergirded by the native saying “Ko au te awa, ko te awa ko au,” which translates to “I am the river and the river is me.” This reflects native philsophies of reciprocal and equal relations between people and nature.
New Zealand’s attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying “In their worldview, ‘I am the river and the river is me,’” he said. “Their geographic region is part and parcel of who they are.”
Expanding Legal Horizons?
The legal concept of rights of nature signal the influence of Indigenous Peoples as political actors in state-making, fundamentally reimagining law and how the natural world is conceived. These ideas present a revolutionary rupture in the conventional anthropocentric understanding of sovereignty, and a realignment of how the natural world is valued. In fact, they could chart the path forward for a new understanding of mankind’s relation to the natural world, even if they operate within the legal structures that are not conducive to indigenous philosophies.
It is true that the rights of nature as they currently stand have deep limitations, particularly given the ongoing extraction of non-renewable natural resources in Ecuador and Bolivia. Problems of corruption, environmental inequality and economic dependence on extractive industries are major challenges to the full realization of the rights of nature.
Yet small acts can lead to lasting change. This shift in the way we relate to and legally protect nature, however small and plagued by obstacles, could be an incremental step toward a more sustainable relation to the planet that could allow us to preserve the earth for future generations.
