This is the thirteenth installment in a multi-part series. Browse the Protective Use of Force index to read more.
Problem Two with Pacifism and Nonviolence: Nonviolence and pacifism as a Religion
Nonviolence fundamentalists do not deal well with the criticisms of their ideology and seem unphased by logical and practical critiques. Ward Churchill argues that it is delusional, racist, and suicidal to maintain that pacifism is always the most effective and most ethical approach. [1] He maintains that dogmatic pacifists (nonviolence fundamentalists) tend to deal with criticisms of their ideology by simply holding fast to their beliefs and reiterating pacifist principles. [2]
Pacifism and nonviolence originate from and share deep-seated ties to major religions. [3]
Derrick Jensen describes how pacifists put their self conception of moral purity above stopping injustice. [4] When he advocates for the use force in the fight to stop the destruction of the plant, liberal environmental activists and peace and justice activists often react with what Jensen calls the “Gandhi shield.” The Gandhi shield à la Jensen consists of repeating Gandhi’s name and invoking an inaccurate history to support dogmatic pacifism.
Peter Gelderloos in Nonviolence Protects the State dedicates a chapter to how nonviolence is deluded. This appears to be a trend noticed by many who must deal with the cult of dogmatic pacifism. Nonviolence fundamentalists are often caught up with principles, rather than focusing on what is needed to be effective. [5]
Nonviolence fundamentalists often base their worldview on a good-versus-evil dichotomy, and believe that they are good and positive for being peaceful and the state is bad and negative for using violence. This dichotomy results in a social conflict being framed as a morality play, with no material outcome. [6] I can see why some find the violence/nonviolence binary appealing; it’s straightforward but it doesn’t help us understand or act in the complex reality we all live in, especially if fighting for a better world.
Derrick Jensen states that for many pacifists, morality is abstracted from circumstance, meaning that direct violence is always wrong, under any circumstances, even if it might stop even more violence. [7] Does this mean the Jews that took up arms at the Nazi death camps were evil and wrong? Of course not. [8]
Problem Three with Pacifism and Nonviolence: Privileged and the Politics of the Comfort Zone
In Nonviolence Protects the State, Peter Gelderloos describes how nonviolence fundamentalists do not deal with oppression because of their often privileged position, and argues that nonviolence is often rooted in racist, statist, and patriarchal ideologies. Jeriah Bowser describes the typical “privileged pacifist”, who criticises those using violence and often does not see their own privilege. [9] Churchill describes the hypocrisy of pacifists supporting armed movements in colonized countries but being absolutely committed to nonviolence in the West. [10] It is not the place of pacifists or anyone in the West to tell oppressed people in colonial or neocolonial countries how to resist the oppression they face. [11]
Ward Churchill states that if you’re comfortable compared to others in your culture, this is a privileged position in society:
There is not a petition campaign that you can construct that is going to cause the power and the status quo to dissipate. There is not a legal action that you can take; you can’t go into the court of the conqueror and have the conqueror announce the conquest illegitimate and told to be repealed; you cannot vote in an alternative, you cannot hold a prayer vigil, you cannot burn the right scented candle at the prayer vigil, you cannot have the right folk song, you cannot have the right fashion statement, you cannot adopt a different diet, build a better bike path. You have to say it squarely: the fact that this power, this force, this entity, this monstrosity called the state maintains itself by physical force, and can be countered only in terms that it itself dictates and therefore understands.
It will not be a painless process, but, hey, newsflash: It’s not a process that is painless now. If you feel a relative absence of pain, that is testimony only to your position of privilege within the Statist structure. Those who are on the receiving end, whether they are in Iraq, they are in Palestine, they are in Haiti, they are in American Indian reserves inside the United States, whether they are in the migrant stream or the inner city, those who are “othered” and of color, in particular but poor more generally, known the difference between the painlessness of acquiescence on the one hand and the painfulness of maintaining the existing order on the other. Ultimately, there is no alternative that has found itself in reform there is only an alternative that founds itself — not in that fanciful word of revolution—- but in the devolution, that is to say the dismantlement of Empire from the Inside out. [12]
Problem Four with Pacifism and Nonviolence: Nonviolence Fundamentalists Complicity with the State
Another problem related to the last critique is nonviolence fundamentalists’ complicity with the state, when existing power structures aren’t challenged and the nonviolent activists “play the role of dissent,” which ultimately empowers and legitimises the state. Churchill describes how pacifism pretends to be revolutionary, with the “rules of the game” having been already agreed by both sides – demonstrations of “resistance” to state policies will be permitted as long as they don’t interfere with the actual implementation of those policies. [13]
Of course, not all nonviolence is so false, but the majority of pacifistic resistance could be described as a “performance.” The outcome is never in any doubt.
Nonviolence fundamentalist also criticise those who call for the use of force or violence, but will ignore the state violence happening every day. [14]
Bill Meyer makes the point in his essaythat, contrary to expectations:
Nonviolence encourages violence by the state and corporations. The ideology of nonviolence creates effects opposite to what it promises. As a result nonviolence ideologists cooperate in the ongoing destruction of the environment, in continued repression of powerless, and in U.S./corporate attacks on people in foreign nations.”
Anarchist writer Peter Gelderloos has serious issues with nonviolent activists working with the police by giving them information (snitching); removing masks, which is effectively snitching; using cameras to take photos of militants; and planning march routes in cooperation with the police. [15] Of course, there is a legitimate place for creating “family friendly” resistance spaces and marches, but resistance must extend well beyond this.
Gelderloos describes how nonviolence fundamentalists often operate as “peace police” to control protests. Examples include policing resistance to the I-69 in the US midwest in the 1990’s and 2000’s, protests against the police murder of Oscar Grant in 2009 in San Francisco, and the protest march against the police murder of homeless man Jack Collins in Portland in 2010. [16]
Derrick Jensen describes how nonviolent protesters have turned on Black Bloc Anarchists for smashing shop windows. [17] Ward Churchill describes how pacifists have reported militants to the police and have worked to tone down actions to make them more symbolic. [18] It’s important to ask why white support for the Black Panthers disappeared when they responded to violent state repression with armed resistance. [19]
Nonviolence fundamentalists are very open about working with the police to inform on militants that might “ruin” their protest. Srdja Popovic in Blueprint for a Revolution promotes taking pictures of anarchists and uploading them to social media. Marty Branagan in Global Warming, Militarism and Nonviolence: The Art of Active Resistance, suggests forging links with the police to try to get them to defect to the protest movement.
For me, I can see why there might be resistance to Black Bloc activities at a nonviolent protest as described in post seven. I can also completely understand why individuals want to use Black Bloc tactics at another ineffective protest. But what is appropriate very much depends on the circumstances of each protest event. The use of militant resistance at a nonviolent protest can dilute and disempower the message and reduce the movement building potential.
With regard to talking or working with the police: I think that trying to convince police to join resistance movements is a good thing to do where the opportunity presents itself, of course being aware that the police may simply be trying to gather information from you. It’s a fine line to walk, and not for everyone. I do not think it is acceptable to work (or suggest working) with the police to inform on other activists.
This is the thirteenth installment in a multi-part series. Browse the Protective Use of Force index to read more.
Endnotes
Pacifism as Pathology, Ward Churchill, 1998, page 84-86
Pacifism as Pathology, page 83
Pacifism as Pathology, page 83/4. Endgame Vol.1: The Problem of Civilization, Derrick Jensen, 2006, page 295 and 300
Engame, page 298/9
How Nonviolence Protects the State, Peter Gelderloos, 2007, chapter on nonviolence being deluded, Read online here
Pacifism as Pathology, page 52
Endgame, page 296
Pacifism as Pathology, page 53
Elements of Resistance: Violence, Nonviolence, and the State, page 111, Read online here
Pacifism as Pathology, page 70
How Nonviolence Protects the State, page 22/23
Pacifism as Pathology, page 27/8
Pacifism as Pathology, page 71-3
Elements of Resistance: Violence, Nonviolence, and the State, page 40-5, Read online here
Failure of Nonviolence, Peter Gelderloos, 2013, page 261-3
This is the twelfth installment in a multi-part series. Browse the Protective Use of Force index to read more.
Pacifism is objectively pro-Fascist. This is elementary common sense. If you hamper the war effort of one side you automatically help that of the other. Nor is there any real way of remaining outside such a war as the present one. . . . others imagine that one can somehow ‘overcome’ the German army by lying on one’s back, let them go on imagining it, but let them also wonder occasionally whether this is not an illusion due to security, too much money and a simple ignorance of the way in which things actually happen. . . . Despotic governments can stand “moral force” till the cows come home; what they fear is physical force.
Nonviolence has an important part to play in our resistance. That said, there are a number issues with how it is promoted. Also the advocates of nonviolence have not adequately responded to the arguments made against it.
The next four posts will explore the issues with nonviolence; the effectiveness of nonviolence; and why nonviolence has become the default tactic of western activists. Nonviolent action is a very important tool in our resistance against industrial civilisation. So is using force or self defense. When, and in what circumstance, a particular method should be used is dependent upon a number of factors.
Most activists do not hear any arguments against nonviolence; it’s generally accepted by liberal activists, and within liberal communities in general, that the use of “violence” or force is wrong and self-defeating. The state, mainstream media, and nonviolence fundamentalists have been very successful at demonising the use of force. As a result, many activists have internalised the fear and criticism directed at those willing to advocate for or use militant tactics to resist capitalism and the destruction of the natural world. [1]
Problem one with Pacifism and Nonviolence: Rewriting history to make nonviolence look more effective
Nonviolence fundamentalists have often reframed historic examples by (1) excluding important contributions made by groups using force or militant resistance and (2) overstating/exaggerating the (material) success of nonviolent movements and actions. Examples of these historical omissions and rewritings include the Indian Independence Movement, the US Civil Rights Movement and the African National Congress’ struggle to end Apartheid. [2]
Gandhi’s nonviolence movement would not have had the limited success it did without the insurrectional acts of Bhagat Singh [3] and Chandra Bose. [4] The Indian Independence movement was also assisted by the decline in British power after fighting two world wars in thirty years. [5]
The US Civil Rights Movement was largely nonviolent, but it is doubtful that participants would have been successful without the more militant strategies and tactics of Malcolm X and the Black Panthers. Groups like the Deacons for Defense provided critical armed protection from violent KKK groups and other white supremacists in the south, in many cases engaging in pitched shootouts. In other cases, their armed presence at rallies and houses where organisers lived prevented violence from taking place.
Faced with both militants and pacifists, the US government had a choice to work with Dr. King or to allow Malcolm X to gain more support. The US state ultimately chose to work with Dr King to reform civil rights laws. [6] Charles Cobb and Gabriel Carlyle argue that “although nonviolence was crucial to the gains made by the freedom struggle of the 1950s and ’60s, those gains could not have been achieved without the complementary – and under-appreciated – practice of armed self-defence.”
When Nelson Mandela was compared to Gandhi and King, Mandela’s responses was “I was not like them. For them, nonviolence was a principle. For me, it was a tactic. And when the tactic wasn’t working, I reversed it and started over.” [7]
While Mandela began by practicing only nonviolence, he realised that he could not effectively win the struggle against the South African Apartheid Government through nonviolent means alone. After this realisation, he helped to found the militant wing of the ANC, the Umkhonto we Sizwe (Spear of the Nation). The combination of nonviolent and violent strategies and tactics is what ultimately brought the South African state to the negotiating table in 1990 [8].
Ward Churchill argues that there has never been a successful revolution or social reorganisation based solely on pacifism ; some form of “violence” or force has been essential in every case. [9]
In many cases of “successful” nonviolent resistance movements, change has been decidedly partial. “Take, for example, the issue of colonization in India and South Africa. Although many sources credit nonviolent campaigns and practices with the “end” of colonization in these regions (and others), in reality both India and South Africa exist under neocolonialist rule and hierarchies; rather than an “end” to colonialist practices, nonviolent movements have perpetuated the oppressive colonialist structures of power by placing power in the hands of indigenous elites while imperial powers still maintain control of the banks.” [10]
Contrary to what nonviolent advocates and pacifists often maintain, neither Gandhi nor King were completely opposed to the use of force. On this point, Gandhi affirmed that “I do believe that, where there is only a choice between cowardice and violence, I would advise violence. I would rather have India resort to arms in order to defend her honor than that she should, in a cowardly manner, become or remain a helpless witness to her own dishonor,” and “it is better to be violent if there is violence in our hearts than to put on the cloak of nonviolence to cover impotence.” [11]
In response to accusations of pacifism, King said “I am no doctrinaire pacifist. I have tried to embrace a realistic pacifism…violence exercised in self-defense, which all societies, from the most primitive to the most cultured and civilized, accept as moral and legal…the principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi, who sanctioned it for those unable to master pure nonviolence.” [12]
Thus, the real views of these icons have been distorted into an dishonest, unhelpful lie.
Erica Chenoweth and Maria Stephan recently conducted a statistical analysis of the effectiveness of nonviolence. They compiled a list of 323 major nonviolent campaigns and violent conflicts from 1900 to 2006 and rated them as “successful,” “partially successful” or “failed.” [13]
On the whole, Chenoweth and Stephan utilize vague statistics to obscure more complex truths. They do not define violence in their analysis. They do not use a revolutionary criteria, and as a result the “Color Revolutions” and other reformist movements are classified as successful. They credit nonviolent movements with victory when international peacekeeping forces, i.e. armies, had to be called in to protect peaceful protesters. They have not published the list of campaigns and conflicts used in their original study. They explain that the list of major nonviolent campaigns was provided by “experts in nonviolence conflict,” who are likely to be biased toward promoting the efficacy of nonviolent campaigns and strategies. The “violent” conflicts they do include in their analysis are armed conflicts with over 1,000 combatant deaths: in others words, wars. Social movements and full-on wars are not comparable in this way; they do not occur under similar circumstances and factors beyond the participants’ choices influencing what sort of conflict occurs.
Chenoweth and Stephan state that they elected to include only “major” nonviolent campaigns, so weeded out ineffective nonviolent campaigns that only involved small numbers of people and yielded insignificant results. Chenoweth and Stephan took a number of measures to try to correct this bias in their study but none of these would of had a significant affect. [14]
This is the twelfth installment in a multi-part series. Browse the Protective Use of Force index to read more.
Endnotes
How Nonviolence Protects the State, Peter Gelderloos, 2007, page 5, Read online here
Chapter six of Elements of Resistance: Violence, Nonviolence, and the State, Jeriah Bowser, 2015, looks at these three examples in detail, Read online here
See the Resistance Profile for Hindustan Socialist Republican Association on the DGR website
How Nonviolence Protects the State, page 8-10. Counterpower: Making Change Happen, Tim Gee, 2011 page 127. Elements of Resistance: Violence, Nonviolence, and the State, page 68-96, Read online here
Elements of Resistance: Violence, Nonviolence, and the State, page 74
Elements of Resistance: Violence, Nonviolence, and the State, page 92
Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict, Erica Chenoweth and Maria Stephan, 2012
Failure of Nonviolence, Peter Gelderloos, 2013, page 43-46
NEW YORK, NY.: The Women’s Liberation Front (WoLF) announced today that it will be partnering with the Christian group Family Policy Alliance (FPA) in submitting a friend-of-the-court brief in the Supreme Court challenging President Obama’s Title IX “bathroom mandate.”
The joint brief argues that allowing males who self-identify as women access to female-only spaces threatens the safety of women and girls and results in the effective erasure of women under Title IX – a civil rights law enacted specifically to benefit women, who have been excluded from formal education, or discriminated against within it, for centuries.
What prompted WoLF to forge such an unlikely partnership?
Kara Dansky, Chair of the WoLF Board, says the alliance with FPA just makes sense.
“WoLF fights to protect all women and girls, regardless of political affiliation,” said Dansky. “WoLF is the only feminist organization standing up for the right of women and girls to maintain female-only spaces. We are happy to work with other organizations that agree with us on this point.”
“How wrong does something have to be for a Christian family group, and a radical feminist group, to take their argument together to the Supreme Court?” said Autumn Leva, director of policy for Family Policy Alliance.
The brief will be submitted in the Gloucester School Board v. G.G. case before the high court. A female who identifies as male is seeking the “right” to use the boys’ facilities.
The court will hear the case this spring with a decision likely in the summer.
WoLF board member Kara Dansky sat down with Family Policy Alliance as unlikely allies for privacy and the safety of women and girls. Watch their conversation below.
On November 1, 2016, the Constitutional Chamber of Costa Rica’s Supreme Court provided some good news to a Terraba (Teribe) Indigenous territory when it stopped the state-run Costa Rica Electricity Institute (ICE by its Spanish acronym) from going forward with the Diquis hydroelectric project for failing to consult Indigenous communities who would see part of their lands flooded.
The permit, issued in 2007 under former President Oscar Arias, had declared the dam to be located at the mouth of the General River Valley in the southern Pacific and part of the country of “national interest.”
The court ruling did not question the “national interest” part of the permit, but said ICE had failed to comply with a previous high court order to adequately consult the Indigenous communities. The project has been stalled since 2011 over the Indigenous consultation issue.
The 650 megawatt hydroelectric project was to be the largest such project in Central America. The project’s reservoir would occupy 7363 hectares of land, 830 hectares of which are Indigenous territories, and displace over 1547 people.
The project would also flood 10 percent of the Terraba (also known as Teribe) China Kichá Indigenous territory (104 hectares) and 8 percent of another Terraba communities of Curré and Boruca (726 hectares). Officials estimate that 200 sacred Indigenous sites would be destroyed by the reservoir.
Some see the development as very positive. The $2.5 billion project would provide employment in the region to 3,500 people. The Diquis project would increase that renewable energy capacity and also allow Costa Rica to sell energy to neighboring Central American countries. Costa Ricans are proud of their electrical energy system which provides energy mostly from renewable resources. In 2016, the country went most of the year without resorting to using oil-fired thermal generators. But sometimes even renewable energy has high cost, especially when it comes to hydro-electric dams.
The high court ruling referred to Article 8 of the Arias Administration decree which would have allowed ICE to gather materials for the dam, power station, and connected works in locales in the areas of El General, Buenos Aires, Changuena and Cabagra, despite the fact that Indigenous people live in the areas.
According to the Constitutional Chamber’s press office, the annulled article was challenged previously in September of 2011, when the court determined that the decree was constitutional just as long as the Indigenous communities were consulted within a period of six months from the notification of the ruling.
However, early the next year, the court ruled that the six months established by the Court had passed and the consultation had not been made. “The Constitutional Chamber has demonstrated that, in fact, in the space of time established in the 2011-12975 ruling, the referred to consultation was not made nor did any party come to this Chamber request an extension of the time limit granted. Therefore, since the condition dictated in ruling 2011-12975 have not been met, the Article 8 of the No. 34312-MP-MINAE executive decree is unconstitutional because the consultation failed to occur,” said the press office.
The Terraba say they are not interested in the offers made so far to relocate their communities to other lands and provide them with well-paid jobs. “We don’t believe in the promises of employment for Indigenous Peoples, as up until today it had been demonstrated that all the qualified and best paid personnel have been brought from outside, Indigenous workers are used only to break rocks,” said community leader Jehry Rivera.
For Indigenous people, ICE offers are only opportunism. Indigenous Peoples want better lands and compensation in order to agree for the project to go forward.
The Court said that the consultation of Indigenous communities under Costa Rican law was necessary since the project is located in areas declared as an Indigenous reserve, “In fact, Costa Rica could be in violation of not complying with international conventions in relation to the autonomy of Indigenous Peoples over their territory. Costa Rica is a signatory of the International Labor Organization’s Convention on Indigenous and Tribal People.”
Indigenous Peoples are not the only ones opposed to the project. Environmentalists say that the dam’s reservoir would dry up the intensely green Térraba River Valley and would destroy irreplaceable habitats such as the Ramsar wetland and the river delta that drains into the Pacific. The wetlands and delta are the nesting grounds for many species including the endangered hump-back whale.
–John McPhaul is a Costa Rican-American freelance writer based in San Juan, Puerto Rico. During his many years in Costa Rica, the land of his birth, he wrote for the Miami Herald, Time Magazine and Costa Rica’s The Tico Times among other publications.
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.
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.
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.
Cortlandt, NY — On Friday morning – in front of a packed courtroom of over 100 New York residents, activists, sympathizers and supporters opposed to Spectra’s “AIM” Pipeline – Cortlandt Town Court Judge Daniel McCarthy issued sentences for nine New York residents (known as the “Montrose 9”) that were arrested for blocking access to a Spectra Energy construction yard in November 2015. Each of the nine of the defendants were fined and sentenced to community service. The defendants had pled the “Necessity Defense,” arguing that their activity was justified because it was done to stop a danger more harmful than the violation of the law, and only after all other legal and regulatory options had been exhausted. The danger they oppose is Spectra’s “AIM” Pipeline, a high-pressure 42-inch gas pipeline that runs within 105 feet of critical Indian Point Nuclear Power Plant safety facilities. Even though Judge Daniel Murphy ultimately rejected this argument, it is groundbreaking for the necessity defense to be considered, and the community stands with the “Montrose 9.” The defendants’ lawyer, Martin Stolar, has filed an appeal with the appellate division of Westchester’s Supreme Court.
Despite their sentencing, the activists vowed that the fight is not over and that the resistance movement will continue. As “Montrose 9” defendant Linda Snider stated, “It‘s difficult for me to think of myself as ‘guilty’ when I was trying to stop a possible catastrophe. The first part of the Spectra pipeline is now in place and running under the Hudson, right next to a proposed oil barge anchorage site and Indian Point Nuclear Power Plant in Tompkins Cove. What could go wrong? The huge outcry against this and other pipelines lead me to believe that the entire Spectra pipeline will, in the end, never get completed.” Defendant Susan Rutman agreed, stating: “Our communities need champions to protect the citizens, not punish those of us who are taking action and standing up to try to prevent a Fukushima-on-the-Hudson catastrophe. It is with a very sad heart that I stand before you to be sentenced.” Defendant Melissa Friedman stressed, “As an attorney, mother of two and with an ailing partner, I have limited time but I had to do something,” citing a long list of problems related to fracking and climate change. She added, “We’re doomed and it’s time to start acting like it.”
By completing the AIM Pipeline, Spectra Energy has only completed one-third of their overall pipeline expansion project – the “Algonquin” Pipeline Expansion. This is really one pipeline project disguised as three pipelines in order to illegally circumvent Spectra Energy’s obligation to identify cumulative impacts of the project as a whole. So while the AIM battle is over, the Montrose 9 voiced their commitment to winning the overall war in court on Friday.
Defendant Monica Hunken stated to the Judge, “Although we have been found guilty, it will not deter us from continuing to peacefully fight the next two segments of the Spectra pipeline every inch of the way. Whatever punishment we receive is a small price to pay for defending the land, air, water and our precious communities…We are here doing our job, being shepherds of the land. If we do not stand up to corporations, they will mow us down. We cannot allow them to treat us like we are sacrifice zones. I am doing this for you and your family too.”
The “AIM” pipeline has been opposed by local residents, countless local officials, Governor Cuomo, Senator Schumer and Senator Gillibrand, as well as riddled with corruption exposés and conflicts of interest. On February 29, 2016, New York State Governor Andrew Cuomo called for an immediate halt to construction while the state conducts an independent risk assessment; the Federal Energy Regulatory Commission (FERC) denied the Governor’s request. On August 3, 2016, both New York Senators Schumer and Gillibrand wrote to FERC, calling for an immediate halt to construction of the pipeline; FERC also denied the Senators’ request. In November 2016, it was revealed publicly that Phil Suter, the spouse of high-ranking FERC official Maggie Suter – who led the review for two gas pipeline projects by Spectra Energy – is a paid consultant for Spectra on a related pipeline project. Without further regulatory action or support from elected officials, residents and advocates have taken matters into their own hands to directly stop construction. Defendant Mike Bucci questioned the Judge, asking “All of the pieces of government have failed us, and now the judicial system has failed us. Where do we go for protection?”
Although FERC granted Spectra’s request to place the Stony Point to Yorktown portion of the AIM Pipeline into service in 2017, Spectra Energy still needs to complete its Atlantic Bridge and Access Northeast projects for the project to be financially viable. Resist Spectra and its allies across the northeast will oppose Spectra Energy’s reckless plans, rampant greed and toxic proposals at every stage. Factually, these pipelines and their supporting infrastructures are destructive and put tens-of-millions of lives, communities, and the ecosystems on which we depend at risk of imminent danger. As defendant Kathleen Thomas stated in court to Judge McCarthy today, “The response to our plea has to do with the word ‘imminent’. When the real danger is imminent, it will be too late. Once this becomes imminent, we are all gone. There will be no chance to say ‘I told you so’.” By working in solidarity with similar fights across the nation, we will stop Spectra once and for all.
