by Deep Green Resistance News Service | Jul 28, 2015 | Climate Change, Lobbying, Strategy & Analysis
By Thomas Linzey / CELDF
Four years ago, as we were leaving Spokane to help rural Pennsylvania communities stop frack injection wells and gas pipelines, this region’s environmental groups couldn’t stop talking about “stopping the coal trains.”
After people in British Columbia – including NASA’s top climate scientist James Hansen – were arrested for blocking oil trains; and after people in Columbia County, Oregon have now proposed a countywide ban on new fossil fuel trains, one would think that both the Spokane City Council and the region’s environmental groups would have begun to take strong steps here to, well, actually stop the coal trains.
After all, there is now almost universal agreement that the continued use of fossil fuels threatens almost every aspect of our lives – from scorching the climate to acidifying the oceans and fomenting widespread droughts.
But it seems that both the Council and this region’s environmental groups have resigned themselves to being silent accomplices to this slow-moving disaster.
A few weeks ago, at a forum on coal and oil trains, rather than propose a citywide ban on oil and coal trains, those groups instead focused on the dangers of train derailments and coal dust – two real issues to be sure – but ones that fall completely short of recognizing the underlying problems posed by the trains.
If the problem is derailments and dust, then the solution is to reinforce and cover the railroad cars. That may or may not happen, but even if it does, it doesn’t solve the fundamental problem posed by the coal and oil trains. Instead, such a stance broadcasts the message from the City of Spokane and this region’s environmental groups that the coal and oil trains are okay as long as they are “safe.”
The real problem, of course, is that the fossil fuels that the oil and coal trains carry – when used the way they are intended to be used – can never be made “safe” because their guaranteed combustion is slowly boiling the very planet on which we live.
At the end of Spokane City Council President Ben Stuckart’s presentation at the forum last week, he spoke about his dead-end meetings with state and federal officials, whose doors were open to the energy and railroad corporations but not to communities affected by the trains. Stuckart declared that he wasn’t sure that anything short of laying down on the tracks would stop the coal and oil trains.
For one brief shining moment, it seemed that the heavens had parted and what we’re really up against – a governmental system controlled by the very corporations it is ostensibly supposed to regulate – came shining through.
As I watched, people across the room began to shout and applaud; and then, just as quickly as it had come, it passed, as the hosts of the forum steered everyone back to their latest moving target – this time, urging people to write letters begging Governor Inslee to stop proposed oil and gas exports. In other words, now nicely asking the Governor to stop more oil and coal trains from invading Spokane.
I then realized why I stopped going to those gatherings – I stopped because the form of activism proposed by the groups actually strips us of the belief that we’re capable of doing anything by ourselves, as a community, to actually stop the trains. Writing letters reinforces a hopelessness of sorts – that we’re completely dependent on the decision by others to “save” us, and that we’re incapable of taking action to save ourselves.
It would be akin to the civil rights movement writing letters to congress instead of occupying the lunch counter or the seats at the front of the bus. Or Sam Adams sending a letter to King George urging him to put safety bumpers on the ships carrying tea, rather than having a tea party by dumping casks of tea in the harbor.
Until we confront the energy and railroad corporations directly, they will continue to treat Spokane as a cheap hotel. We need to ban and stop the trains now – using everything that we can – before future generations wonder why we spent so much time sending letters and so little time protecting them.
Thomas Alan Linzey, Esq., is the Executive Director of the Community Environmental Legal Defense Fund and a resident of the City of Spokane. The Legal Defense Fund has assisted over two hundred communities across the country, including the City of Pittsburgh, to adopt local laws stopping corporate factory farms, waste dumping, corporate water withdrawals, fracking, and gas pipelines. He is a cum laude graduate of Widener Law School and a three-time recipient of the law school’s public interest law award. He has been a finalist for the Ford Foundation’s Leadership for a Changing World Award, and is a recipient of the Pennsylvania Farmers Union’s Golden Triangle Legislative Award. He is admitted to practice in the United States Supreme Court, the Third, Fourth, Eighth, and Tenth Circuit Courts of Appeals, the U.S. District Court for the Western and Middle Districts of Pennsylvania, and the Commonwealth of Pennsylvania. Linzey was featured in Leonardo DiCaprio’s film 11th Hour, assisted the Ecuadorian constitutional assembly in 2008 to adopt the world’s first constitution recognizing the independently enforceable rights of ecosystems, and is a frequent lecturer at conferences across the country. His work has been featured in the New York Times, the Los Angeles Times, Mother Jones, the Nation magazine, and he was named, in 2007, as one of Forbes’ magazines’ “Top Ten Revolutionaries.” He can be reached at tal@pa.net.
by DGR Colorado Plateau | Jan 18, 2015 | Biodiversity & Habitat Destruction, Lobbying, Obstruction & Occupation, Strategy & Analysis
Featured image by Sierra Forests Legacy
By Michael Carter / Deep Green Resistance Colorado Plateau
Read Part 1 of this series here
Law enforcement has been so ineffective in preventing illegal ORV use that citizens are usually left to face the problem on their own. Stopping ORVs isn’t easy, but short of an end to gasoline—which we can’t wait for—impacts will continue to worsen if there’s no intervention. In remote areas like the Mojave Desert and Colorado Plateau, where would-be activists are scattered and overwhelmed and the police are essentially powerless and blasé, all strategies for stopping ORVs involve active and sustained effort. Here are a few:
Pressure law enforcement to do their jobs. Carry a camera with you always, and photograph illegal activity, if at all possible getting clear images of license plates. Document the time, place, and circumstances. Bring it to the attention of both the local and federal police, if on federal land. Be polite but persistent.
Physically close illegal trails. This can be surprisingly effective. Adopt an area and close off illegal trails with rocks, logs, whatever is handy and doesn’t further disturb the land. ORVers will keep trying to use the trail, but continued discouragement might eventually work.
Physically close legal trails. Similar to the last category, people may choose to carry out underground actions that close legal routes. [1] There must be a strict firewall between aboveground and underground activists: people or groups choosing to use underground tactics should not engage in aboveground actions, and vice versa. [2]
Close and reclaim established, authorized routes through administrative and legal channels. It’s the open roads that draw ORVs deeper into land they can then illegally violate, so every closed road is particularly helpful. This, too, takes a long and sustained effort. One helpful organization is Wildlands CPR (Now Wild Earth Guardians), [3] but don’t expect any non-profit group to have the resources to do the job for you. If you love the land you live in, be prepared to fight for it—a simple solution of hard, dedicated effort. Organize with those who agree with you, and fight.
Coyote Canyon Revisited
Private landowners neighboring Coyote Canyon in southeast Utah fought the originally illegal ORV use of the canyon, and tried to stop the BLM from sanctioning it. They pleaded with the public via every venue they could think of to write letters to the BLM opposing the move, yet ORV interests grossly outnumbered the effort. Fewer than ten opponents to the trail even bothered writing letters, and when the decision to open the canyon to ORVs was made the BLM didn’t even bother notifying the respondents, a violation of the National Environmental Policy Act.
Otherwise, however, the agency had prepared its documents thoroughly and neighbors were advised that a legal challenge probably wouldn’t have been effective. Although the BLM offered a number of concessions—the trail is only open Friday and Saturday to registered users, from 9:00 a.m. until 5:00 p.m., among other restrictions—the agency legitimized crime, rewarding criminals with the sacrifice of another dwindling scrap of feral public land.
The Coyote Canyon example highlights several reasons why so few are willing to protect the land, and why they’re losing so badly. One is fear of reprisals from enemies (such as intentional trespass and vandalism of property, already an issue for neighbors of Coyote Canyon). Another is a reasonable assumption that their efforts will be ineffective—though of course making no effort will certainly be ineffective. Yet people tend to accept whatever situation they’re given. It’s uncommon to question an established arrangement, whatever it may be, and if one continues to question it life gets more uncomfortable. A resister will always face ridicule, accusations of poor mental, emotional and social adjustment, eventual ostracizing and occasionally murder. Yet social changes demand challenges to established practice.
When the BLM announced their decision to open Coyote Canyon to oil spills, noise, litter, piles of shit and soiled rags of toilet paper, almost everyone who was asked to help offered only a passing moment of sympathy. Not “what can I do,” not “what are our options,” but “that’s too bad.” It’s no wonder fights like this are frequently lost, when reactions are so feeble.
Industry and recreation groups, by contrast, are well organized and ready to rush to their own common cause. The right wing tends to be more accepting of orders; the boss says jump, they ask how high. They have something tangible they’re working for, a thing they like doing, a righteous maintenance of their privilege—such as driving anywhere they want. They stand to gain something where resistance stands only to prevent something—at least in situations like Coyote Canyon, where no comparable force opposes them.
Fighting Back
Resistance is tough. It means making one’s self unpopular, a hard thing to do among those who’ve been taught their whole lives that popularity is everything. Organizing can provide the possibility of overcoming our fear of reprisal, of ridicule, and of failure; it’s the only chance at effectively confronting injustices. Those who wish to prevent agency actions like the Coyote Canyon trail, or to promote re-localization of food production—any defensive or restorative action—can become an effective force if they work together, consistently and reliably supporting one another. Many progressives have been bled off by dogmas of non-confrontation, by intoxicating feel-good-ness, and by the idea that individualism is of primary importance. They’ve become lazy, fatalistic, and cynical; committed, organized struggle seems to be the sorry lot of desperately poor people in faraway places.
The examples that we have of committed resistance movements often are of desperately poor people, immediately threatened by the activities of rich and powerful enemies. The Movement for the Emancipation of the Niger Delta is one good example, and so are the more than 130 First Nations governments in western Canada that have gathered against the tar-sands Enbridge Northern Gateway Project and the Kinder Morgan pipeline and tanker projects. [4] We who are in a position to protect the land mostly lack the ability to respond, to turn our empathy for places like Coyote Canyon into action.
The situation at the frontiers of wild land is desperate, too. Wealth and privilege let us pretend it isn’t, because we get food from supermarket shelves and water from a tap. We see little or no connection between the health of the land and our own well-being. Public land use is an issue that can be influenced relatively easily—unlike, say, racism—because land managers so routinely ignore or violate laws and effective tactics usually have to do with citizen enforcement. But environmentalists continue to lose, partly because exploiters have miscast conflict as user-group obstruction—framing the terms of the debate to ridicule love of the wild world, separating its fate from human fate. By allowing this, would-be activists surrender the land and leave the future to sadists and imbeciles.
The destruction of the planet, however easy it is to ignore, will catch up with us all. The civilized economies that steal from the poor to give to the rich will eventually end. They need to consume limited resources to exist and those resources—fossil fuels, topsoil—will not last forever. When this happens, we will again depend upon the land to sustain us. If that land is stripped of its capacity to sustain life by industry, agriculture, and recreation, then there will be nowhere else to go, and nothing to do but wage war and starve.
Abuse of the land is now normalized by faith in nonexistent frontiers (of renewable energy and electric cars, for example) and by misguided tolerance. Naming abuse—the destruction of the land in the name of fun or individualistic pursuits and the destruction of our selves by abusive people and systems—is often portrayed as abusive in itself. This is outrageous and infuriating, but should be expected.
Though it is far less damaging than industry and agriculture, the evidence for ORV destruction is well documented and easy to come by. It’s not even really contested by ORVers themselves. Those of us determined to stop this behavior face the same problem law enforcement does: the damage is so widespread and difficult to regulate that there’s little anyone can do. But there’s also a serious lack of activists with effective tactics and a coherent strategy to follow through on. This doesn’t mean, though, that we should back down.
Identifying with the Real World
Once on Cedar Mesa, in Southeast Utah, I watched an ORV intentionally veer to crush a dozing snake. The reptile churned and writhed in the machine’s track, dead or near dead as its nerves popped and struggled and ran down. I went to it, to witness its pointless death. A thick and handsome bull snake, it spent its last moments bleeding out in the dust. Why? Why do this? What drives this sick, stupid behavior? Why does our culture hate every living thing?
I lifted the snake into the sage and blackbrush so it could at least die in its home. “If they can’t evolve to get out of the way,” someone once told me about road killed animals, “then that’s their problem.” Of course, not evolving to changing conditions is what causes extinction. There’s little doubt that our culture will not voluntarily evolve to halt the worsening conditions that industry and recreation are creating on the planet. So how does anyone fight activity like this? How do we stop deforestation, global warming, ocean acidification? And given those immense problems, is ORV land abuse something to focus limited energy and resources on?
In addition to the suggestions made in these articles, activists can develop tactics and strategies and their way forward will eventually become clear. With hard work and determination a chance of winning would almost certainly emerge. But in a world of Keystone XL pipelines and epidemic levels of fracking, is the effort worth it? If you caretake a few acres of land, blocking travel and pulling weeds, how much does it matter if you stop, or get distracted, or die? If those acres are again immediately vulnerable, is your effort a waste?
Few things anger me more that seeing wanton destruction for fun. I wonder, though, if this is an unhelpful distraction. It’s easy to get angry at something so obviously disrespecting of the land. In terms of permanent impacts, though, industry is much worse, and the scale of destruction is enormous. Of course what runs it is oil. Always this—the temporary, illusory power locked in a liquid hydrocarbon, driving ORVs, factory fishing trawlers, factory farms, and industrial agriculture. It’s warming the atmosphere and leading us to a horribly impoverished future, where most of us will be unable to afford the lifestyle we’ve been subjected and addicted to, let alone find enough to eat.
Remove the oil and the engines stop, and a besieged biosphere can begin to heal. This is part of the strategy that Deep Green Resistance has proposed. [5] But in the meanwhile…ORVs, just one part of the picture, continue to cut apart what little wild life remains, the last seed bank of evolution as we’ll ever know it. The momentum of established civilized practice is now enormous—seemingly unstoppable—and its terminal is in global destruction, the eradication of all complex life. Challenge to this system is so psychologically and practically difficult that most of us ignore it.
Fighting for the real, wild world can begin with the understanding that humans are not everything, and that the fate of the world is ultimately our fate. It is much different to fight for your own beloved family than for a rocky canyon you’ll never visit. We progressives like to talk about how hatred of “other” races cannot be tolerated (not that much is ever done about that). But we hardly ever extend this principle to the non-human world—constant victim of our culture’s violence—because we’ve been conditioned to believe that humans are all that matter. The loons, the snakes, the too-slow creatures smeared across the roads and ground under rubber tires into the dirt, they and the people yet to come who won’t be able to live as we have because the oil is gone—none of them will care about our abstract, self-indulgent moral wrestling. That is the wall that human supremacy has built around us; it must be torn down.
Imagine again that an occupying culture, whose every act is force and theft, was destroying the means of your survival. Imagine them extracting fuel to use the world as a playground. Of course, it is not enough to stop them from driving their toys in every possible place. To survive in the long term we must also stop the extraction, the root of the problem, and eliminate the fuel for destruction. We must reclaim our adult responsibilities and stand up to defend the land where we live, knowing that until oil extraction and consumption is ended, there will always be a new group of occupiers finding new ways to destroy the land.
Endnotes
[1] Foreman, Dave. Ecodefense: A Field Guide to Monkeywrenching. Tucson: Ned Ludd Books, 1987, 89-109.
[2] Security Culture: A Handbook for Activists (PDF)
[3] “Resources,” Wild Earth Guardians, accessed July 13, 2014, http://www.wildearthguardiansresources.org/
[4] Carrie Saxifrage, “How the Enbridge Pipeline Issue Unified Northern BC,” The Vancouver Observer, February 13, 2012, http://www.vancouverobserver.com/politics/2012/02/13/nation-building-how-enbridge-pipeline-issue-unified-northern-bc
“Interior First Nations Pipeline Ban,” Dogwood Initiative, You Tube, December 2, 2010, http://www.youtube.com/watch?v=4G5KtqPSW8Q
Carrie Saxifrage, “No Oil Pipeline Here: Enbridge Northern Gateway Joint Review Panel in Smithers finds 100% opposition,” The Vancouver Observer, January 17, 2012, http://www.vancouverobserver.com/sustainability/2012/01/17/enbridge-northern-gateway-joint-review-panel-smithers-finds-100-opposition
[5] “Decisive Ecological Warfare,” Deep Green Resistance, accessed August 28, 2014
by DGR News Service | Sep 6, 2014 | Agriculture, Education, Lobbying
By Norris Thomlinson / Deep Green Resistance Hawai’i
Open Sesame examines the importance of seeds to humans as the genesis of nearly all our domesticated foods. It details the tremendous loss in varietal diversity of our crops over the last century, due in large part to increasing corporate control over the seed market.
Farmers and gardeners in every region once had access to dozens of varieties of each vegetable and staple crop, finely adapted to the specific growing season, temperatures, rainfall patterns, insects, diseases, and soils of their area. With few people now saving their own seed, we’ve entrusted our food supply to a handful of seed companies selling the same handful of varieties to growers across the US. This will prove increasingly problematic as climate chaos increases divergence from climatic norms. We need a return to seed saving and breeding of numerous local varieties, each starting from a baseline adaptation to the specific conditions of each area. Diversity gives a better chance of avoiding complete catastrophic crop failure; this variety may yield in the heavy rains of one year, while that variety may succeed in the drought of the next.
The film shows beautiful time lapse sequences of seeds sprouting and shooting into new life. Even rarer, it shows people feeling very emotional about seeds, displaying extra-human connections we normally only see with domesticated pets, and hinting at the human responsibility of respectful relationship with all beings described by so many indigenous people. The movie highlights great projects from seed schools and the Seed Broadcast truck educating people on why and how to save seed, to William Woys Weaver and others within Seed Savers Exchange doing the on-the-ground work of saving varieties from extinction, to Hudson Valley Seed Library trying to create a viable business as a local organic seed company.
Civilization and Agriculture
Unfortunately, Open Sesame has an extremely narrow focus. Though it rightly brings up the issue of staple crops, which many people ignore in their focus on vegetables, it trumpets our dependence on grains, even showing factory farmed cattle, pigs, and chickens in an uncritical light. This assumption that humans need annual crops reveals an ignorance of agriculture itself as a root cause of our converging environmental crises. Even before industrialism accelerated the destruction and oppression, civilization and its cities, fed by organic agriculture, was eroding soil, silting up waterways, turning forests into deserts, and instituting slavery and warfare. Though the diminished diversity within our food crops should indeed cause concern, the far greater biodiversity loss of mass species extinctions under organic agriculture should spark great alarm, if not outright panic.
In one scene, the documentary shows a nighttime urban view of industrial vehicles and electric lights, bringing to mind the planetary destruction enacted by the creation and operation of these technologies. Beneath the surface, this scene contains further social and imperialistic implications of packing humans into artificial and barren environments. The residents of this scene are fully reliant on imported food and other resources, often stolen directly, and all grown or mined from land stolen from its original human and non-human inhabitants. But the film goes on to point out, without any irony, that all civilizations began with humans planting seeds, as if the only problem we face now is that industrialization and corporate control applied to agriculture threaten the stability of otherwise beneficial systems.
In a similar disconnect, Open Sesame proclaims the wonders of gardening, farming, and “being in nature” while showing simplified ecosystem after simplified ecosystem ― annual gardens and fields with trees present only in the background, if at all. As any student of permaculture or of nature could tell you, the disturbed soil shown in these human constructions is antithetical to soil building, biodiversity, and sustainability. The film describes seeds “needing” our love and nurturing to grow, positioning us as stewards and playing dangerously into the dominating myth of human supremacism. Such dependence may (or may not) be true of many of our domesticated crops and animals, but I think it crucial to explicitly recognize that in indigenous cultures, humans are just one of many equal species living in mutual dependence.
Though the documentary chose not to tackle those big-picture issues, it still could have included perennial polycultures, groups of long-lived plants and animals living and interacting together in support of their community. For 99% of our existence, humans met our needs primarily from perennial polycultures, the only method proven to be sustainable. The film could have chosen from hundreds of modern examples of production of vegetables, fruit, and staple foods from perennial vegetable gardens, food forests, and grazing operations using rotating paddocks. Even simplified systems of orchards and nutteries would have shown some diversity in food production options. Besides being inherently more sustainable in building topsoil and creating habitat, such systems rely much less on seed companies and help subvert their control.
Liberal vs Radical
The Deep Green Resistance Youtube Channel has an excellent comparison of Liberal vs Radical ways of analyzing and addressing problems. In short, liberalism focuses on individual mindsets and changing individual attitudes, and thus prioritizes education for achieving social change. Radicalism recognizes that some classes wield more power than others and directly benefit from the oppressions and problems of civilization. Radicalism holds these are not “mistakes” out of which people can be educated; we need to confront and dismantle systems of power, and redistribute that power. Both approaches are necessary: we need to stop the ability of the powerful to destroy the planet, and simultaneously to repair and rebuild local systems. But as a radical environmentalist, I found the exclusively liberal focus of Open Sesame disappointing. There’s nothing inherently wrong with its take on seed sovereignty; the film is good for what it is; and I’m in no way criticizing the interviewees doing such great and important work around seed saving and education. But there are already so many liberal analyses and proposed solutions in the environmental realm that this film’s treatment doesn’t really add anything new to the discussion.
A huge challenge I have with liberal environmentalism is its leap of logic in getting from here (a world in crisis) to there (a truly sustainable planet, with more topsoil and biodiversity every year than the year before.) Open Sesame is no exception: it has interview after interview of individuals carrying out individual actions: valuable, but necessarily limited. Gary Nabham speaks with relief on a few crop varieties saved from extinction by heroic individual effort, but no reflection is made on the reality of how much we’ve lost and the inadequacy of this individualist response. We see scene after scene of education efforts, especially of children. We’re left with a vague hope that more and more people will save their own seed, eventually leading to a majority reclaiming control over their plantings while the powerful agribusiness corporations just fade away. This ignores the institutional blocks deliberately put in place precisely by those powerful companies.
The only direct confrontation shown is a defensive lawsuit begging that Monsanto not be allowed to sue farmers whose crops are contaminated by patented GMOs from nearby fields. The lawsuit isn’t even successful, and the defeated farmers and activists are shown weary and dejected, but with a fuzzy determination that they can win justice if they keep trying hard enough. The film could instead have built on this example of the institutionalized power we’re up against and explored more radical approaches to force change. Still within the legal realm, CELDF (Community Environmental Legal Defense Fund) helps communities draft and pass ordinances banning things like factory farming, removing corporate personhood, and giving legal rights to nature within a municipality or county. Under such an ordinance, humans could initiate a lawsuit against agricultural operations leaching chemicals and sediment, on behalf of an impacted river. This radical redistribution of decision making directly confronts those in power and denies them the right to use it against the community and the land.
In the non-legal realm, underground direct attacks and aboveground nonviolent civil disobedience have successfully set back operations when people have cut down GMO papayas, burned GMO sugar beets, and sabotaged multiple fields and vineyards. The ultimate effectiveness of these attacks deserves a whole discussion in and of itself, but they would have been worth mentioning as one possible tactic for ending agribusiness domination of our food supplies.
In a perfect demonstration of the magical thinking that wanting something badly enough will make it happen, the documentary concludes with a succession of people chanting “Open sesame!” We’ve had 50 years of experience with this sort of environmentalism, long enough to know it’s not working. We also know that we, and the planet, have no time left to waste. We need to be strategic and smart in our opposition to perpetrators of destruction and in our healing of the damage already done. The Decisive Ecological Warfare strategy of Deep Green Resistance offers a possible plan for success, incorporating all kinds of people with all kinds of skills in all kinds of roles. If you care about the world and want to change where we’re headed, please read it, reflect on it, and get involved in whatever way makes the most sense for you.
by DGR News Service | Aug 4, 2014 | Colonialism & Conquest, Lobbying
By Will Falk / Deep Green Resistance San Diego
There’s a common joke I’ve heard many indigenous people tell. It goes like this: “What did indigenous peoples call this land before Europeans arrived? OURS.”
This joke – or truth – reflects many of the problems inhering to the Supreme Court of Canada’s recent ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. From my radical view, the Tsilhqot’in decision leaves much to worry about. In this article, I examine the decision written by Chief Justice Beverly McLachlin to show why the decision is not as helpful it would seem and I anticipate how the government and corporations will bend the decision to their goals.
For me, the term “radical” denotes going to the roots of the problem. First Nations are suffering under the yoke of colonialism. Colonialism is the problem. To undermine colonialism, we must understand the processes making colonialism possible. One of the most powerful institutions perpetuating colonialism is the Canadian government and the Canadian court system as a branch of the Canadian government. It is my view that – for now – we must read the Tsilhqot’in decision not so much as a victory, but as another step down the long road of insidious colonialism.
First, there’s the general and underlying defeat that comes with the fact that colonialism has been so dominant in Canada that First Nations must submit to decisions made by Canadian courts. My second problem with the decision involves facing that there can be no true ownership of land when a dominated people must ask the courts of their conquerors for validation of their right to their own homelands. Placing the burden on First Nations to prove their land claims is another act of arbitrary power that works against cultural survival. Finally, I am deeply anxious about how clearly the Court spells out just what kind of governmental projects would be the type that the Court would sign off on. These projects include mining, forestry, agriculture, and the “general economic development of the interior of British Columbia.”
What Appealing to the Legal System Means
When celebrating what we view as a “good” decision by an imperial court it is easy to forget that the goal is to dismantle the power that gives the court its authority. We must not begin to view the so-called justice system as something like a benevolent paternal figure to appeal to when big-bad corporations come to destroy the land.
We must never forget that there will never be true justice in the courts of the oppressors because the courts of the oppressors are designed to protect the oppressors. Private property laws are the perfect example of this. What happens if you’re starving, walk into Walmart, take a loaf of bread, and are caught? You will be charged with transgressing property laws, dragged into court, and punished by the court for your transgression. Walmart’s right to a loaf of bread trumps your right to eat.
What does it mean, for example, that the Tsilhqot’in had to ask the courts to give them a right to land that they have lived on for thousands of years? Can a people ever truly own their land if they have to ask an occupying court to recognize their claims to land? The court protected the Tsilhqot’in after twenty-five years of deliberation, but what happens to the next aboriginal group that appeals to the courts and loses?
How is Aboriginal Title Established?
First, the Court lays out the process for establishing Aboriginal title. The burden falls on the Aboriginal group claiming title to prove its title. This means that a First Nation existing on its land for thousands of years must pay lawyers and subject its people to the stress of a legal proceeding – in courts established by settlers with access to First Nations land through centuries of genocide – to prove that the land is, in fact, theirs.
Aboriginal title is based on an Aboriginal group’s occupation of a certain tract of land prior to assertion of European sovereignty. A group claiming Aboriginal title must prove three characteristics about their occupation of a certain tract of land. First, they must prove their occupation is sufficient. Second, they must prove their occupation was continuous. Third, they must prove exclusive historic occupation. (¶ 50)
Proving Sufficient Occupation
To prove sufficiency of occupation, an Aboriginal group must demonstrate that they occupied the land in question from both an Aboriginal perspective and a common law perspective.
The Aboriginal perspective “focuses on law, practices, customs, and traditions of the group” claiming title. In considering this perspective for the purpose of Aboriginal title, the court “must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed.” (¶ 35)
The common law perspective comes from the European tradition of property law and requires Aboriginal groups to prove they possessed and controlled the lands in question. As the Court explains, “At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.” (¶ 36)
Simply put, proving sufficiency of occupation requires that the group claiming Aboriginal title were involved with the land in question more deeply than just using it in passing.
Proving Continuity of Occupation
Proving a continuity of occupation “simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.” So, the group claiming Aboriginal title must provide evidence that they were on the land in question in pre-sovereignty times. (¶ 46)
Exclusivity of Occupation
The last of the three general requirements for establishing Aboriginal title burdens a group with proving they have had the intention and capacity to retain exclusive control over the lands in question. As with sufficiency of occupation, the exclusivity element requires that the court view the evidence from both the Aboriginal and common law perspectives. According to the Court, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.” (¶ 48)
What Rights Does Aboriginal Title Confer?
This is one of the most important issues addressed by the Court in Tsilhqot’in – for what it says and what it does not say. The important thing to know here is that Aboriginal title does not provide Aboriginal groups with complete control of their own land. It may be common sense to assume that once an Aboriginal group gains Aboriginal title to their ancestral lands they are free to use their land how they see fit free of government interference. This simply is not true. And the Court is very clear to explain that this is not true.
According to the Court, “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” (¶73)
In the English common law, “fee simple” refers to the highest form of ownership of land. Traditional rights associated with “fee simple” are the ones mentioned in the quote above. As the Court explains, “Analogies to other forms of property ownership – for example, fee simple – may help us understand aspects of Aboriginal title. But they cannot dictate what it is and what it is not.” (¶72) The Court quotes Delgamuukw, “Aboriginal title is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts.”(¶72)
It is important to note, of course, that Aboriginal title does not actually give Aboriginal groups full ownership of their own land. Aboriginal title has some key restrictions.
The Court explains: Aboriginal title “is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes – even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations from the land will be a matter to be determined when the issue arises.” (¶74)
So, once Aboriginal title is established, Aboriginal groups can only sell or give their land back to the Crown. On top of this, the Court creates open doors for future litigation with all the restrictions. Aboriginal groups will be subject to defending their decisions from accusations that they do not know how to manage their own lands for the benefit of future generations. Forcing Aboriginal groups to defend their actions in Canadian courts is a statement that the courts know how to manage Aboriginal lands better than Aboriginal peoples.
Finally, through Tsilhqot’in, Aboriginal title is subject to being over-ridden by governments and other groups on the basis of the broader public good – which often spells disaster for First Nations and natural communities.
Infringing on Aboriginal Title
Government and other groups may infringe on Aboriginal title – or use Aboriginal lands against the wishes of aboriginal peoples – on the basis of the broader public good if it “shows (1) that it discharged its duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective, and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” (¶ 77)
The Duty to Consult
The Court predicates the duty to consult on what it calls the “honour of the Crown” and says that the “reason d’etre” of the duty to consult is the “process of reconciling Aboriginal interests with the broader interests of society as a whole.” (¶77 and 82)
It sets up a sliding scale for adjudicating just how hard the government or other groups must try to consult Aboriginal groups. The duty to consult is strongest where Aboriginal title is proven and weaker where the title is unproven. The Court quotes the Haida decision, “In general, the level of consultation and accommodation required is proportionate to the strength of the claim and the seriousness of the adverse impact the contemplated governmental action would have on the claimed right. The required level of consultation and accommodation is greatest where title has been established.” (¶ 79)
Nowhere does the Court say that a government or other group must literally accommodate the wishes of Aboriginal groups. Yes, the government has a duty to consult. But, the government is not charged with an absolute duty to respect the wishes of an Aboriginal group with title to land the government wants. No never actually means no when the government is concerned.
Compelling and Substantial Objectives
The Court is very careful to articulate that there are compelling and substantial objectives that would justify infringement on Aboriginal title. Just like we saw with the duty to consult, the Court will view what objectives will justify infringement through a desire to reconcile Aboriginal interests with the broader interests of society as a whole.
On its surface, this sounds great, but then the Court quotes the Delgamuukw decision to illustrate just exactly what kinds of activities might qualify as a compelling and substantial objectives (when reading this list, keep in mind the kinds of projects we are fighting against right now): “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” (¶ 83)
We have to recognize how dangerous this language is. Enbridge has long anticipated the language. You could pick any number of prominent quotes from Enbridge’s Northern Gateway website www.gatewayfacts.ca to see how Enbridge is already spinning rhetoric to match the Court’s Tsilhqot’in ruling.
Take this one, for example, under the heading, “A boost for our economy,” “Northern Gateway will bring significant and long-lasting fiscal and economic benefits. Economically, the project represents more than $300 billion in additional GDP over 30 years, to the benefit of Canadians from every province.”
Or this one under the heading “Building communities with well-paying jobs,” “The pipeline sector creates thousands of jobs across the country. In B.C. alone, Northern Gateway will help create 3,000 new construction jobs and 560 new long-term jobs. The $32 million per year earned in salaries will directly benefit the families and economies of these communities.”
This is exactly the type of governmental objective that the Court in Tsilhqot’in suggests is compelling and substantive enough to pass constitutional muster.
It is important to understand how easy it is to be misled by our desire for good news in the fight to defend the land and First Nations communities. While there are helpful aspects of the Tsilhqot’in ruling on Aboriginal title, the Court is a long way from giving First Nations total control over their own lands. It may be safer for land defenders to assume that nothing really has changed. Yes, Aboriginal title has been defined, but how meaningful is that title if governments and corporations can override title by pointing to the “general economic development of the interior of British Columbia”?
The Crown’s Fiduciary Duty
The final hurdle a government or other group must clear in infringing on Aboriginal title is proving that the proposed action is consistent with the Crown’s fiduciary duty to the Aboriginal group. This fiduciary duty supposedly requires the Crown to act solely in Aboriginal groups best interests. The problem, of course, is that it is the courts that decide what is in an Aboriginal groups best interest.
The Court explains that the Crown’s fiduciary duty impacts the infringement justification process in two ways. “First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations…This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.” (¶ 86)
The second way it impacts the infringement process is by imposing an obligation of proportionality into the justification process where the government’s proposed infringement must be rationally connected to the government’s stated goal, where the government’s proposed action must minimally impair Aboriginal title, and where the benefits the government expects to accrue from the proposed action are not outweighed by adverse effects on Aboriginal communities. (¶ 87)
Another glimpse at the Enbridge’s Northern Gateway website (http://www.gatewayfacts.ca/benefits/economic-benefits/) demonstrates how Enbridge anticipates the Court’s ruling. Under a heading titled “Aboriginal inclusion” the website reads, “First Nations and Metis communities were offered to become equity partners providing them a 10% stake in the project. With the $300 million in estimated employment and contracts, it adds up to $1 billion in total long-term benefits for Aboriginal communities.”
I do not think it is a stretch to expect that Canadian courts will rule that Aboriginal groups denying projects like the Northern Gateway are working contrary to their own best interests. But, this isn’t even really the point. The point is, for all the progressiveness we want the Tsilhqot’in decision to stand for, it still allows the courts to decide what the best interest of First Nations is and not First Nations themselves. The longer this system remains intact, the longer First Nations communities will be in danger.
by DGR News Service | Mar 4, 2014 | Lobbying, The Solution: Resistance
By Amaranta Herrero / eJolt
On the 14th of February, the regional government of Castilla y León cancelled the plan for Mountaintop Removal Coal Mining (MRT) in Laciana Valley (Spain).
During the last twenty years, irreversible changes have been taking place in the Southwestern Cantabrian Mountains, in an area of great ecological value, which is protected by EU environmental legislation.
The extractive technique known as Mountaintop Removal Coal Mining (MTR) has illegally modified during this time the topography and the life of people in Laciana Valley (León). Although it is literally an explosive industrial process, this mining activity developed in relative silence, away from public opinion. In general, MTR operations are remote, located beyond the landscape seen from city centers. At first glance, only a well-trained eye can detect the landscape morphological transformations involved in the amputation of the top of a mountain and its subsequent artificial reconstruction. But for the 10.000 inhabitants directly affected by this activity, mostly connoisseurs of mountain valley profiles, MTR is constantly visible and audible.
In the past two decades, Laciana Valley has fallen into severe socio-economic decline. Coal mining has gradually reduced, partially driven by EU liberalization measures of the energy market that reduce State subsidies for the extraction of coal. Since 1990, coal production has shrunk 67% in Spain. Surface mining in Spain began in the 1970s, but it was not until 1985 that MTR, much less labour-intensive, started replacing underground mining on Laciana’s private land. The number of coal mining jobs were reduced by 85,7% in the last 20 years in Spain. In 2010, the 6,429 jobs in the Spanish coal-mining sector included directives, technicians, administrative stuff and workers from underground mining and MTR.
The local population has been highly polarised with regard to the continued existence of MTR and the future of the valley. Coal mining has been for far too long an economic monoculture in Laciana, maintained by the very close relations between the political and the economic powers in the area. Suspicion of corruption has always surrounded the coal mining sector since the 90s. Victorino Alonso, the owner of Laciana’s MTR company, Coto Minero del Cantábrico, and the main Spanish coal entrepreneur was declared guilty of fraud in 2010. On the 10th of February 2014 all Spanish coal companies have been brought in front of the Court accused of fraud related to Coal Aid.
Laciana MTR mines have been active without the legally required environmental and planning permits. At the same time, these illegal activities have, curiously, been intensively subsidised by the Spanish government and indirectly by the EU. As a result of the illegalities, the biggest private mining company in Spain, Coto Minero del Cantábrico (CMC), was brought before a Spanish court by individuals and local environmental groups. In fact, some of the inhabitants of Laciana Valley together with regional environmental groups, autonomous activists and Members of the European Parliament, have spent twenty years opposing and struggling against this industrial activity. This heterogeneous ecological resistance movement has addressed the destruction of natural resources and environmental services and the residents’ future. They sued the company and the Town Council, appealed to the European Court, wrote articles and documents, tried to reach the media, organised talks, camps, and they have even put in more than one occasion their bodies in the middle to stop the mountain destruction. This movement has fought for a different future, based on economic activities that are truly compatible with the protection of the environment. This local environmental movement in Laciana has also faced an intense process of stigmatisation and scapegoating within the Valley.
In 2006, CMC received the highest environmental fine in the country’s history (approx. €170 million) and was ordered to stop activities by the regional Administrative Court. In November 2011, the European Court of Justice also recognised the environmental crimes in Laciana. Disregarding the legal verdict, the fine remaining unpaid, the company continued MTR activities and planned expansion. This expansion plan had been presented in 2008 by the regional government. It also represented a threat to Laciana’s inhabitants, ecosystems and future, until last 14th of Februrary. With the MTR expansion plan cancelled, Laciana’s people can start a promising transition towards different, diverse and environmentally lower impact economies.
Congratulations to everybody who fought against MTR coal mining in Laciana for their long and intense ecological resistance and their final victory. If we want to promote a new and sustainable energy model, as well as having a chance of avoiding runaway climate change, it is a must to challenge the coal industry, to end fossil fuels subsidies and to leave coal underground.
From eJolt: http://www.ejolt.org/2014/02/victory-no-more-mountaintop-removal-coal-mining-in-laciana-valley-spain/
by DGR News Service | Feb 1, 2014 | Lobbying, Obstruction & Occupation
By Inter Press Service
Residents of a town in Argentina have won the first victory in their fight against biotech giant Monsanto, but they are still at battle stations, aware that winning the war is still a long way off.
For four months, activists in Malvinas Argentinas, a town in the central province of Cordoba, have maintained a blockade of the construction site where the U.S. transnational company is building the world’s biggest maize seed treatment plant.
In this previously peaceful town, protestors continue to camp in front of the construction site and to block access to it, even after a provincial court order this month put a halt to the works.
The campaign against the plant, led by Asamblea Malvinas Lucha por la Vida (Malvinas Assembly Fighting for Life) and other social organizations, began Sept. 18 in this town 17 kilometers from the capital of Cordoba.
Tense situations ensued, with attempts by the provincial police to disperse the demonstrators and provocations by construction union envoys, but a provincial labor court ruling on Jan. 8 upheld the activists’ cause.
“The ruling shows that the residents’ arguments are just, because they are claiming basic rights that are recognized and established in the constitution and federal legislation,” Federico Macciocchi, the lawyer representing opponents of the plant, told IPS.
The court ruled that the municipal ordinance authorizing construction of the plant in this mostly working class town of 15,000 people was unconstitutional.
It ordered a halt to construction work and banned the Malvinas Argentinas municipality from authorizing the construction until two legal requirements are fulfilled: carrying out an environmental impact assessment and a public hearing.
“This is a big step forward in the struggle, achieved by working together on institutional demands, along with social activism on the streets,” Matías Marizza, a member of the Malvinas Assembly, told IPS.
“This struggle has resulted in guaranteeing respect for the law,” the activist said.
The Malvinas Assembly and other organizations have decided to continue to camp out at the site and block access until the project is abandoned for good.
Monsanto replied to IPS’s request for comment with a statement that describes local activists as “extremists” who are preventing their contractors and employees from “exercising the right to work.”
The court ruling arose from a legal appeal lodged by local residents and the Club de Derecho (Cordoba Law Club), presided by Macciocchi.
The labor court has ordered an environmental impact study and a public hearing, he emphasized.
The views expressed in the public hearing will be “highly relevant,” he said, although under the General Environment Law, participants’ objections and opinions “are not binding.”
However, the law does stipulate that if the opinions of the convening authorities differ from the results of the public hearing, “they must justify them and make them public,” he said.
Now the Malvinas Assembly also wants a public consultation with a secret ballot.
Such a ballot would comply with the environmental law and “guarantee citizens’ full rights to decide on which model of local development and what kind of social and economic activities they want for their daily life, and what environmental risks they are prepared to take,” Víctor Mazzalay, another resident, told IPS.
“It is the people who should have that information and decide whether or not to accept the costs and risks involved,” said Mazzalay, a social researcher funded by the National Scientific and Technical Research Council (CONICET) at the University of Cordoba.
“An environmental impact assessment should include a public consultation so that citizens can provide the ‘social license’ necessary for developing any social, economic and productive activity that may affect their environment and health,” he said.
Monsanto’s statement said the company does not agree with the court ruling, but respects judicial decisions and will abide by the verdict.
The company stated that it had already conducted an environmental assessment, which is currently under review by the provincial Secretary of the Environment.
In Macciocchi’s view, the court’s ruling is definitive and “brings the legal conflict to an end.”
“The ruling arose from a legal appeal, so there is no further recourse in ordinary law,” he said.
Monsanto can still appeal to have the decision overturned by the provincial High Court (Tribunal Superior de Justicia, TSJ).
The company has already said that it will appeal. “We consider our right to build legitimate since we have complied with all legal requirements and have obtained authorization to build according to the regulations, as confirmed by the ruling of the Court of First Instance of Oct. 7, 2013,” their statement said.
However, in Macciocchi’s view “this appeal will not overturn the labour court ruling.”
“If we consider how long the TSJ takes to process an appeal, by the time there is a decision, the Malvinas municipality and the Environment Secretariat will have complied with the laws they previously violated,” he said.
According to the lawyer, the high court takes up to two and a half years for appeals lodged by individuals under sentence, and five to seven years in labor or civil cases.
“It would create a real institutional scandal if the TSJ were to deal with this case by leap-frogging all the other cases that have lain dormant in its offices for years,” he said.
The Jan. 8 ruling cannot prevent the definitive installation of the plant, which Monsanto plans should become operational during 2014.
“But if the citizens’ demonstrations against the plant and the environmental impact assessment are unfavorable to the company, Monsanto will not be able to instal the plant in Malvinas Argentinas,” Macciocchi predicted.
Mazzalay emphasized that the “substance” of the arguments of opponents to Monsanto’s plant was “the defense of the people’s right to decide on the kind of productive activities and the type of environmental risks they wish to undertake.”
The company announced it was planning to build more than 200 maize silos, and to use agrochemical products to treat the seeds. Monsanto is one of the world’s biggest manufacturers of herbicides and genetically modified seeds, and has operated in Argentina since 1956 when it established a plastics factory.
“It is frequently argued that there is a reasonable doubt that this productive activity is harmless to human health,” Mazzalay said.
In his view, “a multiplicity of scientific studies have shown negative effects on health from both seed transportation and handling of and exposure to different agrochemical products.”
“When there is a health risk related to environmental issues, reasonable doubt should bring the precautionary principle into play, that is, an activity should not be developed until it has definitely been proved to be harmless,” he said.
From Upside Down World: http://upsidedownworld.org/main/argentina-archives-32/4669-argentine-activists-win-first-round-against-monsanto-plant
