Klamath River Dam Removal Project will Proceed as Biggest in US History

The largest dam removal project in US history has been green-lighted for 2023, when four antiquated dams will finally be demolished, ending a twenty-year environmental battle to save the Klamath River and its salmon runs. The river flows 257 miles from the Oregon desert into California and the Pacific Ocean. It traverses the forested tribal lands of the Karuk and Yurok and other native peoples, who have depended upon the river for physical and spiritual nourishment throughout their histories. The four dams were built on the Upper Klamath to divert water for farming and to produce hydroelectric power. Two of them are over fifty years old (which is the generally accepted life expectancy of a dam); the others two are over 100 years old. In recent years, toxic blue-green proliferated in the reservoirs behind the dams, and the already declining salmon runs plummeted precipitously.  

The campaign for dam removal began over 20 years ago.  Mounting a grass roots movement supported by fishermen and mainstream environmental groups, the Klamath basin tribes protested first at the headquarters of PacifiCorp, the dams’ owner, in Portland, Oregon. Later they took their campaign to Scottish Power, Pacific Corp’s parent company, in Edinburgh Scotland, where they challenged Scottish Power’s reputation as an environmental champion by publicizing the decimation of the Klamath salmon populations. In response, Scottish Power acknowledged that it was open to the possibility of dam removal; but, instead, it sold PacifiCorp to Berkshire Hathaway, Warren Buffet’s holding company. The tribes and their supporters persisted, shifting their protests to Berkshire Hathaway’s annual meetings in Omaha and to its corporate offices in six U.S. cities.

In 2008, PacifiCorp made its first public commitment to removal.  Years of negotiations followed between the tribes, which were supported by environmental groups and fishing associations, the states of Oregon and California, and PacifiCorp., which was supported by farming interests. A deal for the Klamath River Renewal Project was eventually signed, contingent on authorizing legislation, funding and environmental review. The federal government finally signed onto the deal in 2016, approving dam removal as early as 2020.  But, the federal regulatory agency (FERC) blocked implementation, allegedly based on concerns about Pacific Corp’s refusal to accept any responsibility for unbudgeted liability potentially arising from the removal. That obstacle was partially overcome when the two states agreed to shoulder risks of unbudgeted costs.  Then, in late July of this year, California Governor Newsom wrote to Warren Buffet, personally and publicly urging him to act “on behalf of this remarkable environmental and cultural restoration.”  

Pressure mounted, and ELC joined the chorus of those supporting the tribes’ efforts. Grant Wilson wrote to Warren Buffett, urging consideration of an Earth-centered perspective: “ The salmon populations nourish humans, both physically and financially; and they keep the forest healthy. The forest provides an invaluable climate buffer, keeping temperatures down, air clean, and rivers flowing. All presently living things have evolved in a climate which is fast disappearing. For their own present and future welfare humans and human organizations need to slow this change and stabilize the climate. The Klamath River Dam Removal Project is an important contribution to that effort. It … will serve as a model of governmental and private sector cooperation and foresight.”

It will also serve as an inspiring example of Native American leadership, coalition building, grass roots organizing, and perseverance. In November, PacifiCorp withdrew its last objection to the dams’ removal, virtually assuring that they will be razed. ELC salutes all those who have worked so long and hard on this project.  

Now we can turn to other rivers for which dam removal would help restore them to health. ELC has long advocated for the rights of the Snake River. This year, the Nez Perce General Council passed a resolution recognizing the rights of the river, including its right to flow. We hope this campaign will provide new support for removing the Lower Snake River dams, which devastate salmon populations as well as related marine species, such as Southern Resident Orcas.

Advancing Legal Guardianship for Nature

Humans routinely benefit from legal guardians, such as children who can’t always advocate for their best interests without some help. Why, then, do we not have a guardian system to protect our fragile Mother Earth? This is beginning to change as the Rights of Nature are increasingly put into practice through legal guardians.

What is the guardianship model of ecosystem protection?

The guardianship model of ecosystem protection is a key political framework emerging from the development of Earth Law worldwide, creating standards for decision-making based on the principles of sustainability, responsibility, reciprocity, and interconnectedness. Drawing inspiration from Indigenous perspectives, guardianship bodies allow local communities to speak on behalf of ecosystems—bodies of water, mountain ranges, forests, and others—that cannot physically speak for themselves.

When implemented effectively, guardianship bodies ensure that ecosystems are treated as living entities with intrinsic rights and political representation rather than property allocated strictly for human use. Although they act independently, guardianship bodies present a unique opportunity to assemble governments that are more inclusive of Indigenous populations, many of whom have intimate spiritual connections to their ancient tribal lands. 

Types of Guardians

While there is no universally accepted formula for the composition of guardianship bodies, New Zealand can serve as a blueprint for other communities considering the adoption of Rights of Nature guardianship frameworks. In accordance with the Māori belief that views the Whanganui River as a living whole, the government of New Zealand granted the River legal personhood status in 1978 under the name Te Awa Tupua. The Ministry of Conservation then formed a guardianship body composed of both Indigenous and Western representatives, who have since regularly exercised their collective authority to protect the interests of the river.

In general, guardianship bodies should include many types of knowledgeable representatives and stakeholders from the ecosystem’s region, including but not limited to the following:

• Indigenous Peoples: For centuries, Indigenous populations have lived in a sacred coexistence with their natural surroundings. It is therefore critical to include Indigenous peoples in ecosystem guardianship, as the interconnectedness they foster with their tribal lands is unmatched by any other group.

• Activists: Around the world, environment rights defenders work tirelessly to protect vital ecosystems and natural resources like clean air and water.

• Region & Ecosystem-specific Nonprofit Organizations: Hundreds of thousands of organizations exist globally that focus on local community and local ecosystem issues. Members are incredibly passionate and possess an intimate knowledge of their region’s natural areas.

• Federal, State & Local Governments: Governmental representatives can often provide additional power and helpful insights on legislative processes, key stakeholders, and historical contexts that surround a given issue. Although governments can play an important role in guardianship bodies, they must act independently to ensure they always act in the best interest of Nature.

Fundamental to the theory behind guardianship bodies is the principle that all relevant interests must be adequately represented. Ideally, state and federal governments should provide funding while non-state interests make decisions at local levels. Additionally, because the guardian body might include interests that are incongruous with each other, communities can choose to designate an oversight or advisory commission composed of local officials, tribal members, environmental scientists/ biodiversity experts, and local community members to (1) Provide advice when the legal guardians request so, and (2) To have a final say when there is deadlock in the guardianship body’s decision-making process. This system of broad representation managed by checks and balances offers the best opportunity for the protection of Nature’s interests and rights, both in courts and throughout wide-ranging policy and social fora.

Advocating for Guardianship in the Courts

In September, Earth Law Center, along with the Global Alliance for the Rights of Nature, the Center for Biological Diversity, International Rivers, and the Great Lakes Environmental Law Center, submitted an amicus brief to Ecuador’s Constitutional Court seeking the application of Rights of Nature principles to save the Los Cedros forest from the threat of mining. Among other requests, the brief called for the appointment of legal guardians for Nature to advocate for and oversee the protection of the Key Biodiversity Area. On November 2, the court conducted a day-long virtual hearing on the case, the outcome of which will shape the future of mining throughout Ecuador and serve as a precedent for Rights of Nature cases worldwide.

We must continue to advocate for robust, transparent, and independent guardianship bodies in the context of Rights of Nature. This will help solve one of the movements major shortcomings thus far—the lack of enforcement of many strong Rights of Nature laws. ELC will continue to advocate for the development of cutting-edge guardianship bodies in all of our advocacy, legal drafting, and amicus briefs.

What You Can Do

Earth Law Center seeks to secure practical rights for all of Nature, without which the human race cannot persist. We have decades of experience helping communities develop guardianship frameworks that best meet their unique needs.

Sk'aliCh'elh-tenaut’s Story: An orcas life in captivity and the efforts to free her

Earth Law Center recently announced our partnership with the Lummi Nation to bring Sk'aliCh'elh-tenaut (first named Tokitae and later known as her stage name, Lolita) home to the Salish Sea. This is our fifth blog in this series. Our previous blogs explored the history of the campaign by the Lummi Nation, ELC’s partnership with two members of the Lummi Nation, and the culture, lives and population structure of the Southern Resident Orcas of the Salish Sea. Our most recent blog delved more deeply into the relationships of the Lummi with orcas, and the worldview of indigenous peoples, generally. This blog will delve further into the life of Sk'aliCh'elh-tenaut and the decades-long legal battle to release her from the Miami Seaquarium.

 By Christian Muller and Laila Remainis

Meet Sk'aliCh'elh-tenaut

On August 8th, 1970 approximately 80 orcas were taken from the waters of Washington State. This event was one of the largest in history and involved dropping bombs into the water to drive the younger orcas into shallow coves.  Sk'aliCh'elh-tenaut was one of seven young orcas taken from her family that day.  Five orcas of Sk'aliCh'elh-tenaut’s pod were so seriously injured that they died shortly after.  Their bodies were filled with rocks so they would sink and thus avoid public attention. For weeks after, local residents reported the cries of the remaining pod members searching the abduction area seeking their loved ones.

The abduction of Sk'aliCh'elh-tenaut and other orcas profited by Ted Griffen and Don Goldsberry. The Miami Seaquarium then purchased Sk'aliCh'elh-tenaut who arrived there on September 23, 1970. Her first name, Tokitae, a Salish greeting meaning “nice day, pretty colors” was changed to Lolita.

Sk'aliCh'elh-tenaut’s abduction story as a mammal in captivity happened around the world and across the US. Capturing young cetaceans (whales and dolphins) from the wild to spend the rest of their lives in captivity for entertainment purposes began in the 1950s and continued until the early 1970s in the United States. This changed when the Marine Mammal Protection Act was passed prohibiting any “taking” of a mammal without a permit. Currently over 2,000 dolphins, belugas, and orcas are held in captivity internationally, with 5000 individuals having already died in captivity. Currently, there are 59 orcas in captivity in seven countries.

Sk'aliCh'elh-tenaut first lived in a tank at the Miami Seaquarium with a male orca, Hugo. Taken from the coast of Washington and sold to the Miami Seaquarium in 1968, Hugo performed with Sk'aliCh'elh-tenaut for ten years. Hugo’s behavior became increasingly compulsive and aggressive, which population biologists determined was caused by life restricted in a small tank.  Hugo would often slam his head against the walls of the shared tank, leading to repeated injuries requiring medical and surgical attention and resulted in his death in 1980 of a brain aneurysm.  Sk'aliCh'elh-tenaut witnessed 12 years of this behavior as well as Hugo’s death.

Now alone, Sk'aliCh'elh-tenaut lives in an 80 feet long, 35 feet wide and 20 feet deep tank (and even smaller quarters at times).  Her “home” happens to also be the smallest tank for an orca in the world. Sk'aliCh'elh-tenaut herself is 22 feet long. In the wild, she would have swam up to 40 miles every day and dive to depths between 100-500 feet several times a day to find food. Imagine for a moment how it would feel to be in solitary confinement: in a room where we could walk a few steps and turn around, without any windows and never being able to go outside again for the rest of our lives.

At one point, two Pacific white-sided dolphins were put into Sk'aliCh'elh-tenaut’s tank, and repeatedly scarred her skin with their teeth (defensive “raking” behavior). In 2015, Sk'aliCh'elh-tenaut was raked over 50 times, leaving her in need of both painkillers and antibiotics.

The shallow tank depth also leaves her vulnerable to both the hot Miami sun and major storms. In 2017 Sk'aliCh'elh-tenaut was left to fend for herself in an uncovered tank during Hurricane Irma. The Seaquarium’s lockdown in response to the hurricane, left the two dolphins and Sk'aliCh'elh-tenaut at risk of injury from debris, metal from a “rusty roof beyond repair,” and filtration malfunction. While free orcas are usually able to survive large storms by swimming to greater depths in the ocean, orcas in captivity are unable to.

Legal Battles to Free Sk'aliCh'elh-tenaut

In the 1990s, Washington Governor Mike Lowry and Secretary of State Ralph Munro launched the first “Free Lolita!” campaign. During the next ten years, multiple organizations and foundations including the Tokitae Foundation and Orca Network formed to raise awareness about Sk'aliCh'elh-tenaut’s plight.  In 2003, animal rights activists, including Russ Rector issued code violations against the park for the squalid living conditions.

The movement to free Sk'aliCh'elh-tenaut has spurred numerous lawsuits and petitions. These lawsuits largely cited the Endangered Species Act as well as the Animal Welfare Act. The Endangered Species Act (ESA) is the primary law in the United States for protecting imperiled species. Its goal is to develop and implement plans to recover species listed as threatened or endangered. If a species is listed, this prohibits agency actions that “may affect” a listed species, specifically prohibiting the “take” of such species, which broadly includes activities that harass, harm, or kill. The Animal Welfare Act creates and enforces that minimum standards of care and treatment be provided for certain animals bred for commercial sale, used in research, transported commercially, or exhibited to the public.

One of the first cases aiming to free orcas from captivity was filed in February 2012. People for the Ethical Treatment of Animals Foundation (PETA) attorneys brought a case against SeaWorld citing the 13th Amendment. The suit claimed SeaWorld was in violation of the 13th Amendment for enslaving five orcas. PETA argued that constitutional protections against slavery are not only limited to humans. Under the 13th Amendment the orcas’ capture and forced servitude was illegal. The court dismissed the action due to lack of subject matter jurisdiction and the judge issued a statement concluding no basis to extend the 13th Amendment to non-humans.  Although the case was dismissed, the news of the proceedings sparked a growth in public attention and concern for orcas used as show animals.

In 2005, the Southern Resident Orca population was listed as endangered under the Endangered Species Act. The extension of the protective listing was denied to Sk'aliCh'elh-tenaut. This spurred a petition in 2012 sponsored by PETA on behalf of the Animal Legal Defense Fund (ALDF), Orca Network, Howard Garrett, Shelby Proie, Karen Munro, and Patricia Sykes to include Lolita under the endangered listing of the Southern Resident population. With over 17,000 supporters, the National Marine Fisheries Service finally passed a rule in 2015 to list Lolita under the ESA.

In 2013, ALDF filed the case Lolita vs. USDA claimed that the Seaquarium’s exhibitor’s license renewal had violated the Animal Welfare Act on multiple counts. The violations included her small tank size, lack of protection from the sun and an absence of companionship (a critical issue considering the highly social nature of orcas). Seaquarium managers repeatedly rebuffed the accusations. The federal district court granted summary judgment for the USDA in 2014. The court found that while Congress established standards and procedures for the USDA to issue an exhibitor’s license, it is left to the agency to determine the standards and procedures for the license renewal process. The court determined that the USDA’s renewal process was legally permissible. The case was dismissed and lost on appeal in June 2015.

Following the death of a SeaWorld trainer, the Occupational Health and Safety Administration (OSHA) implemented new restrictions between trainers and orcas to ensure the safety of both parties. While the judge ruling specified new restrictions for SeaWorld performances, the Miami Seaquarium continued placing trainers in the water with Sk'aliCh'elh-tenaut. The American Legal Defense Fund (ALDF) alerted OSHA of violations. Miami Seaquarium responded with disagreement that the trainer’s lives were at any risk around Lolita. Ultimately in 2014, OSHA fined the Seaquarium $7,000 for violating the physical barrier requirement.

The year after the Miami Seaquarium was fined, Sk'aliCh'elh-tenaut was officially listed under the Endangered Species Act with the Southern Resident Orca population. Several weeks after the announcement, Orca Network, PETA, and ALDF sued the Seaquarium demanding Sk'aliCh'elh-tenaut be retired from entertainment and released to a seaside sanctuary. The groups proposed a retirement plan meant to transition her from to the Salish Sea. The orca advocacy team explained that the treatment and confinement of Lolita constituted a “take” (direct or indirect harassment) under the Endangered Species Act. The team cited thirteen different injuries stemming directly from the small size of her tank. The Miami Seaquarium attempted to claim that freeing her would make her more vulnerable to an injury or ailments. The initial court decision dismissed the case in 2016. It was appealed and a final decision was made in 2018. The federal judge dismissed the appeal, finding “to have taken an animal would require the action be a grave threat or have the potential to be a grave threat to the animal’s survival, and PETA did not provide evidence of conduct that met that standard.”   

A recent lawsuit filed concerns Sk'aliCh'elh-tenaut’s tank size and the new license granted by the USDA under the Animal Welfare Act.  PETA filed the lawsuit against the USDA in 2016, and it is currently on appeal. For years, animal advocacy groups have argued that Sk'aliCh'elh-tenaut’s tank is far too small for her size and intellect, and they soon had what seemed like the support of the federal agency. In a report released in 2017 by the U.S. Department of Agriculture’s Office of the Inspector General, an audit of Lolita’s tank found that it “may not meet all space requirements defined by the agency’s [Animal Welfare Act] regulations.” The primary measurements in question examined whether or not the trainers’ island podium infringes on  Sk'aliCh'elh-tenaut’s living space. However, the court found that the USDA did not violate the AWA by granting the license and the plight of Sk'aliCh'elh-tenaut needed to be brought up with Congress, instead of under an administrative procedure. The case was dismissed and appealed. The status of this case is still pending.

Sk'aliCh'elh-tenaut remains imprisoned. Her story illustrates the need to transform our legal system. After 50 years, it's time for Sk'aliCh'elh-tenaut to go home. Her right to exist, thrive, and evolve has been denied to her from the time she was stolen from her family to today living as a for-profit entertainment item in the world’s smallest orca tank.  This is why ELC is working with Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) of the Lummi Nation, who consider the orcas and Sk'aliCh'elh-tenaut their relatives under the waves. We are exploring all legal strategies that have yet to be tried, including indigenous rights as well as the rights of Sk'aliCh'elh-tenaut herself, to finally release her and see her return home.

Sk’aliCh’elh-tenaut’s future and return back to the Salish Sea will be monitored by not only the Lummi Nation but also by a highly committed community of scientists and experts. International experts led by the Whale Sanctuary Project are collaborating on the development of an operational plan in anticipation of MSQ agreeing to her release. The development of the plan will draw upon the knowledge of those with specialized experience in marine mammal rescue, transport, rehabilitation, research, repatriation and long-term care. Many have been thinking about the details of Sk’aliCh’elh-tenaut’s repatriation for years and believe if she is healthy, she can be transported safely. The goal is to bring her home in a responsible manner. This means ensuring everything is done in her best interest through steps such as a pre-transport evaluation, conditioning, on-site care at the Salish Sea site and long-term enrichment. Earth Law Center is committed to provide Sk'aliCh'elh-tenaut her opportunity to swim once again in the Salish Sea and hope you will join us.

You can support this initiative by:

Signing and sharing the petition

Donating to ELC

Contacting Miami Seaquarium and it’s parent companies (Palace Entertainment, Parques Reunidos, EQT Group, Groupe Bruxelles Lambert, and Corporación Financiera Alba) to let them know you want to see her released!

https://aldf.org/case/challenging-the-usda-for-licensing-miami-seaquarium/

https://www.miamiherald.com/news/local/environment/article16159679.html

https://theorcaproject.wordpress.com/2011/06/07/usda-aphis-fails-killer-whale-lolita-at-miami-seaquarium/

https://www.peta.org/blog/lolitas-friends-push-forward-lawsuit-seaquariums-license/

 https://www.miamiherald.com/news/business/article154928954.html

https://www.casemine.com/judgement/us/5c180e48342cca0c3163735a

http://www.orcanetwork.org/Main/index.php?categories_file=Free%20Lolita%20Update%20146

Sk’aliCh’elh-tenaut and the Lummi Nation (Lhaq'temish)

Sk’aliCh’elh-tenaut and the Lummi Nation (Lhaq'temish)- a story of kinship, relationship, family, connection and justice

My name is Nick Nesbitt and I am presently located in Collingwood, Ontario, the traditional land of the Petun, Anishinabewaki, Huron-Wendat, and Mississauga. Throughout my writing, I do not intend to speak on behalf of BIPOC communities but will use my voice to bring attention to matters that disproportionately affect underserved communities, lands, and people. I want to acknowledge my own privileges as a settler in what is currently Canada and emphasize my commitment to Etuaptmumk (Two-Eyed Seeing). My goal as an ally is to reduce environmental injustices by encouraging just action and demanding political accountability. I want to mention ‘The Dish with One Spoon’ treaty (created to promote peace and sharing) to highlight that we all share the same land. It is our collective responsibility to ensure this dish is never empty through respecting, honouring, and protecting the land and all life that it is home to. 

Introduction 

It is not completely uncommon for people to feel a deep connection with Nature. I do. And I believe I can speak for all of my colleagues at the Earth Law Center in saying, we do. After all, as humans, we are part of Nature, part of the Animal Kingdom. Unfortunately though, over the course of history, especially Western history, there has been this attempt to remove humans from Nature, to place humans above Nature, to control Nature, and to profit from Nature. And what has this led to? Ecosystem degradation on unprecedented scales, climate change, species loss, and the list goes on and on. However, one facet of this gross assault on Nature that often flies under the radar is our own intraspecies abuses. Abuses that come in the form of cultural genocide.  Abuses, by which human beings have been stripped of their way of understanding and connecting to the world around them. 

In June, ELC announced our partnership with two members of the Lummi Nation, Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley); a partnership that aims to bring Sk’aliCh’elh-tenaut (also known as Tokitae or her stage name, Lolita) home to the Salish Sea. 50 years ago, Sk’aliCh’elh-tenaut was captured violently, and without the prior consent of her family (her mother Ocean Sun is still alive in the Salish Sea). She was placed in a small tank and has been performing shows for profit ever since. And while the release of Sk’aliCh’elh-tenaut would be justice for her, it would also be for justice for Lummi Nation (Lhaq'temish), because at the heart of this matter lies a great disconnect between culture and law that must be rectified. This blog delves further into the indigenous aspect of this campaign. 

"We're at a time when we all need healing," Tah-Mas added. "We're all family, qwe'lhol'mechen and Lummi people. What happens to them, happens to us."

The Lhaq'temish, “The Lummi People” 

The Lummi Nation is a Native American tribe of the Coast Salish ethnolinguistic group in the Pacific Northwest region of Washington state in what is currently the United States. And to put it simply, the Lummi Nation holds a worldview that regards plants, animals, springs and trees as thinking and feeling beings that are sacred. Their human-Nature connection is one that understands and views Sk’aliCh’elh-tenaut as a member of their family. What better way to learn more about them than from their own words:

Jewell James and Doug James, Jr. Lummi tribal members

We are the Lhaq'temish, “The Lummi People”. We are survivors of the great flood. With a sharpened sense of resilience and tenacity we carry on. We pursue the way of life that our past leaders hoped to preserve with the rights reserved by our treaty. We will witness and continue to carry on our Sche langen. We are fishers, hunters, gatherers, and harvesters of nature’s abundance and have been so since time immemorial. We are the original inhabitants of Washington's northernmost coast and southern British Columbia known as the Salish Sea and the third largest Tribe in Washington State serving a population of over 5,000. We are one of the signatories to the Point Elliot Treaty of 1855. We are a fishing Nation and for thousands of years we have worked, flourished and celebrated life on the shores and waters of the Salish Sea. In 1855 our ancestors signed the Point Elliot Treaty ceding lands to the United States government in exchange for our Reservation lands and guarantees to retain the rights to hunt, fish, and gather at our usual and accustomed grounds and stations and traditional territories. We have exercised these rights since time immemorial and intend to maintain these rights for our children into perpetuity. We are a Sovereign Nation and Self-Governing Nation... 

We understand the challenge of respecting our traditions while making progress in a modern world. We know we must listen to the wisdom of our ancestors, to care for our lands and waterways, to educate our children, to provide family services, and to strengthen our ties with the outside community. We continue to invest in our tribal economic development and training our people to use the most modern technologies available while staying attentive to our tribal values. We envision our homeland as a place where we enjoy an abundant, safe, and healthy life in mind, body, society, environment, space, time, and spirituality where all are encouraged to succeed and none are left behind. 

The commitment to ‘leave none behind’ aligns with the immediacy of this issue. As Tah-Mas explains, "Sk’aliCh’elh-tenaut was taken from her family and her culture when she was just a child, like so many of our children were taken from us and placed in Indian boarding schools. Reuniting her with her family, reuniting her with us, helps make us all whole.”

A deep relationship with orcas

Sk’aliCh’elh-tenaut belongs to L-pod. She belongs to the Salish Sea. She belongs to herself: she has the inherent right to be home and to be free. But, as Tah-Mahs brings to light, she also belongs to the Lummi Nation’s larger sense of family. 

The Lummi term for “orca”, qwe’Ihol’mechen, translates literally to “our relations under the waves.” Like this, Lummi tradition acknowledges blackfish as kin and a cultural keystone species. Cultural keystone species are species of exceptional significance to a culture or a people and can be identified by their prevalence in language, cultural practices, traditions, diet, medicines, material items, and histories of a community. In effect, such a species influences social systems and culture and is a key feature of a community’s identity. As a cultural keystone species, the Lummi people and the qwe’Ihol’mechen have shared deep spiritual connections, kinship bonds, and cultural affinity since time immemorial. Thus, Sk’aliCh’elh-tenaut belongs to the Lummi people as both a family member and as the embodiment of necessary cultural and spiritual weight and meaning. 

Sadly, on August 8th, 1970, Sk’aliCh’elh-tenaut was captured alongside approximately 80 other Orcas at Penn Cove, Washington. From that day on, the South Salish Sea orcas' place, as a cultural keystone species, was put into jeopardy. And the traumatic events of that day in 1970 are still being felt to this day. “They were herded in by dynamite and underwater explosions, into a cove, and they took whale after whale.” Residents of Penn Cove remember “the haunting sounds of the screams of the killer whales.” You can watch the video of Sk’aliCh’elh-tenaut’s capture here: http://www.youtube.com/watch?v=iUlbZifjoqo. 

Penn Cove, place of capture

Last year Squil-le-he-le and Tah-Mahs, two Lummi members, sent a letter to the Miami Seaquarium, Palace Entertainment, and Grupo Parques Réunidos (the owners of the Seaquarium) asserting that Sk'aliCh'elh-tenaut qualifies to be returned to her native home based upon the Native American Graves Protection and Repatriation Act (NAGPRA), a federal law that requires the return of certain Native American "cultural items.” To no avail, their pleas have been ignored. Their beliefs have been disregarded. And while it seems odd that they have to do this in the first place, the disappearance of cultural items, and such disregard for Indigenous culture and worldview in western society and legal systems, unfortunately, is not uncommon. 

A disconnect between culture and law

In speaking about bison and a similar biocultural atrocity, Dr. Leroy Little Bear, a respected Kainai elder, Blackfoot scholar, a professor emeritus at the University of Lethbridge in Alberta and an Officer of the Order of Canada notes that “[T]he disappearance of iconic symbols in a society means the beginning of the disappearance of a culture… Imagine what would happen to Christians if all Christian crosses and churches were gone. The disappearance of the buffalo had a similarly devastating effect on our people. Our youth now hear our buffalo songs, stories, and watch our ceremonies, but they do not see the buffalo roaming around.” 

As an experiment: Reflect on your lifestyle, or way of life, the people and things that you would not be whole without. What makes you, you? Now imagine you are no longer able to perform that activity, see your loved one or that trait or object is taken from you. How do you feel? 

The essence of the Lummi way of knowing, doing and being is based on the interrelatedness and interdependence of humans and Nature. A number of Indigenous nations and allies have been working on reviving the Orca population in the Salish Sea, to restore the human-orca biocultural landscape and revive the culture-Nature connection. However, by allowing Sk’aliCh’elh-tenaut to remain in captivity, the American legal system is failing both Sk’aliCh’elh-tenaut and the Lummi People. And this is because the American legal system understands Nature, not for what it is, a complex and well-organized system of finite character, but instead, as a source of endless profit and growth potential. 

To better understand how American environmental laws evolved to protect extraction and consumption as opposed to life and cultural understandings of the world, one must look to the conservation ethic developed at the turn of the 20th century, by the first chief of the U.S. Forest Service, Gifford Pinchot. Pinchot, wrongly asserted that water, land, forests, air, soil, and wildlife are “resources” or “wealth” to be extracted, manipulated and controlled for human benefit. Such conceptions spread far and wide and became the guiding principle for human-nature interaction in the United States. And thus, America’s environmental laws, built on Pinchot’s ideological framework, developed into an elaborate network of permits and regulations that “control” uses, to treat the symptoms of accompanying environmental deterioration only just enough to avoid inconvenient, short-term, human impacts. 

Social Gabe Flickr

Indeed, Pinchot’s ideology prevailed, and under American environmental laws ecosystems’ needs, and collective long-term requirements, have become mere afterthoughts. But not for everyone. No. Instead, Indigenous people’s have remained steadfast in maintaining that the environment has intrinsic value on its own. And hence, Indigenous peoples have been on the frontlines fighting to rectify the weakness in current law that is allowing or at least not preventing deteriorating environmental conditions of ecosystems. 

The reunification of family and life

In 2018, Jay Julius, Chairman of the Lummi Nation released the following statement when declaring the Lummi Nation’s intention to bring Sk’aliCh’elh-tenaut home to the Salish Sea: "Tokitae’s [Sk’aliCh’elh-tenaut] story is more than a story of a whale. Her story is the story of the Native peoples of this country who have been subjected to bad policies. Because of the failure of policymakers to protect our wildlife, she was stolen from her family 47 years ago and taken to the Miami Seaquarium. Because she is a relative of the Lummi people, it is our sacred obligation to bring her safely home to the Salish Sea.” 

Today, two-years later, Sk’aliCh’elh-tenaut remains a captive of the Miami Seaquarium. But more broadly, a captive of western society. A captive of a society that allowed her to be stolen, traded, treated inhumanely, and prostituted for financial gain. And to this end, she is representative of the lasting effects of a colonialism that decimated both Indigenous and Orca communities. And she is symbolic of the struggles endured by Indigenous communities everywhere, but especially the struggles of the Lummi Nation who believe that it’s their sacred duty to protect the lands, waters, and communities of the Salish Sea. 

Earth Law Center feels it is our moral and ethical obligation to provide legal representation to Squil-le-he-le and Tah-Mahs, who are working to fulfil their Xa xalh Xechnging (sacred obligation). It is therefore our task to work across cultures and borders, to heal the ecosystems, the economies, and communities of all those who now call this place home. We are committed to protecting the lifeways and culture of Lummi, and honouring the larger ecosystem of which we’re all apart. 

The Miami Seaquarium’s failure to return her to the Salish Sea implicates their rights as Native Americans under US law and their rights as Indigenous peoples under international law (particularly the United Nations Declaration on the Rights of Indigenous Peoples). 

Our message to the Miami Seaquarium and their parent companies, Palace Entertainment, the Spain-based leisure park operator Parques Reunidos, and the Swedish-based global investment organization EQT, is that allowing Sk’aliCh’elh-tenaut to remain in captivity is entirely incompatible with supporting Indigenous rights. We ask all of these companies to listen to Indigenous voices, which have long known what many are only beginning to realize: that Sk’aliCh’elh-tenaut and all life on our planet has inherent value and rights that we must respect. The era of corporate exploitation of nature and of Indigenous communities must come to an end. It is not too late for these companies to do the right thing and to cross over into the right side of history. The Lummi people, as family members, know what is best for Sk’aliCh’elh-tenaut, and we must listen.

On September 24th we jointly held a virtual event on the 50th anniversary of Sk’aliCh’elh-tenaut’s arrival at the Seaquarium. You can watch the event here, which includes ceremonies sent from Indigenous peoples worldwide in solidarity.

Squil-le-he-le and Tah-Mahs and Samuel (Seminole Tribe) performing ceremony outside MSQ

JOIN US!

Collective support for this campaign has been growing for decades; over 20 petitions have been launched over time to bring home Sk’aliCh’elh-tenaut, with collective signatures at over 615,000 people. Countless others support this campaign in spirit. The global community is calling for the release of Sk’aliCh’elh-tenaut based on her own inherent rights, Indigenous rights, and other legal and moral justifications. 

1. Anyone can sign and share the petition.

1. We are asking indigenous leadership to stand in solidarity with Squil-le-he-le and Tah-Mahs by publicly signing onto this letter. This living document will be submitted to the Special Rapporteur on the rights of Indigenous Peoples.

1. Donate today to support our legal work.

Who Speaks for the Ocean?

By Michelle Bender

Constituting more than 95% of the biosphere, the Ocean supports all life forms by generating oxygen and absorbing carbon dioxide, recycling nutrients, and regulating global climate and temperature.  However, in just the past 50 years, overfishing, climate change, and plastic pollution have caused half of the Ocean’s species to disappear.

Our solutions are essentially band aid solutions, aiming to slow the decline in ocean health, but not aiming to stop or reverse it. Governments and industry continue to pollute and degrade marine ecosystems under the false assumption that activities which support conservation are costs to the economy and human livelihood. We see this time and again; scientific fishing restrictions are ignored for higher quotas to please fishermen, oil leases are sold in biodiverse or fragile areas because we seemingly profit more by exploiting an ecosystem rather than leaving it alone, and we resist the transition to renewable energy or sustainable gear because it does not produce the same profit margins.

We need a paradigm shift in how we value and treat the Ocean. We must recognize what indigenous people have known for millennia- that we have an intimate relationship with the Ocean and have a reciprocal responsibility to protect and conserve that which sustains us. Otherwise, we will continue to place our needs above that of the Ocean — and the health of the planet and subsequently human health will deteriorate. 

Transforming our relationship with the Ocean

Ocean Rights is an emerging legal framework that transforms our relationship with the natural world. The Ocean shifts from being viewed as a resource and property here for human use, to a living entity with intrinsic value worthy of representation. Such a transformation allows us to effectively conserve and protect the Ocean by creating standards for decisionmaking centered around reciprocity, interconnectedness, responsibility and relationships, sustainability (an ecocentric view) and harmonious living. 

For example, in 2008, Ecuador amended its Constitution to include the Rights of Nature, becoming the first country in the world to recognize that Nature has rights to exist, restoration and representation. Since, the general public has made multiple stands to protect the environment. Ecuadorians have stood up against the destruction of the Vilcabamba River by a road widening project, the destruction of Mangroves by shrimp farms, and helped to prevent a dolphinarium, all in the name of the Rights of Nature. In fact, there have been over 30 cases brought on behalf of Nature in Ecuador, both by the government and civil society.

And in 2017, New Zealand recognized the Whanganui River as a legal person - divesting ownership of the ecosystem. The Act created a guardianship system for the River, designating those who are legally responsible to represent the rivers interests in decisions and disputes, and to “promote and protect the health and well-being” of the river. Many ecosystems worldwide, including forests, and mountains, have followed suite.

The Ocean Race Summit in Newport, RI

In May 2020, The Ocean Race Summits brought together over 200 industry leaders, conservationists and experts virtually from The Hague to explore topics related to innovative solutions to restore ocean health. Ocean Rights was introduced at the summit, and you can watch the action lab here. The Ocean Race Summit on September 16th will gather, also virtually, a similar amount of leading voices on ocean health conservation from Newport, RI who will delve further into the Ocean Rights framework, in particular with respect to the High Seas. Here’s the link to watch the live streaming from 10am EDT.

With nearly two-thirds of the Ocean beyond areas of national jurisdiction (collectively called the High Seas), coordinated international action is necessary to protect ocean health. 

In 1982, the United Nations Convention on the Law of the Saw (UNCLOS) established the first international legal order for ocean governance. It is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the Ocean. The treaty that resulted from the convention creates guidelines for State activity in international waters, including business, diplomacy, mineral rights, pollution control and fishing rights. However, the legal and policy framework created by UNCLOS is insufficient in dealing with the increasing environmental crisis. 

UNCLOS provides that States have a duty to conserve the marine environment, and can create their own regulations within their 200 nautical mile jurisdiction to do so. But we know that there is not a distinct border between a State’s territory and international waters. Ecosystems are fluid. What happens in one ecosystem spills over into others. So how can we ensure that the interconnectedness of ecosystems is taken into account properly? We also know that there is no clear definition of what is a ‘healthy Ocean’ and therefore at what level a States “duty” is fulfilled. Can we better define “healthy” and ensure conservation is effective and long-term?

Ocean Rights may be the missing link. Ocean Rights enables a shift from an anthropocentric approach, where human objectives are prioritized and decisions focus on human benefit and utility - to an ecocentric approach, where we place humans as within and a part of the larger Earth system. This could mean creating a guardianship model for the Ocean as they did in New Zealand, or recognizing the Ocean has rights as they did in Ecuador. There are many approaches we could take to transform our relationship with the Ocean in a way that allows both humans and natural communities to thrive.

Join environmental lawyers, policy experts, activists, advocates and sailors September 16th to discuss ‘Who Speaks for the Ocean?’ We will delve into how can we ensure the Oceans’ interests and needs are a priority in decisionmaking, nationally and internationally? How might this look like in practice?

Great progress can be made when we have the collective will to do so. Business as usual is destroying the Ocean and we must transform our relationship with the Ocean in order to ensure a sustainable future for all. 

Participation in the Summit is primarily by invitation, but most of the broadcast (the 5 plenary sessions) will be streamed live for public viewing on www.theoceanrace.com. Watch on the livestream - September 16 – 10am-1pm EDT/1600-1900 CEST - Here.

About the author: Michelle Bender is the Ocean Campaigns Director at Earth Law Center (ELC) www.earthlawcenter.org, spearheading an innovative and paradigm-shifting solution to our ocean management challenges. She serves on the executive committee of the Global Alliance for the Rights of Nature; and is a member of the IUCN's World Commission on Environmental Law. Michelle graduated Summa Cum Laude from Vermont Law School, where she earned a Master’s in Environmental Law and Policy and holds a B.S. in Biology with a Marine Emphasis from Western Washington University.

The Global Pact for the Environment

Photo by Markus Spiske on Unsplash

Guest blog by Ben Thomas

This year, President Trump’s first term comes to a close. These previous four years of his presidency were marked by policy debates over issues such as immigration, trade, and now a global pandemic. Another topic of concern for the Trump administration, and an agenda relentlessly pushing forward, is rolling back regulations enacted by his predecessor.  A great bulk of these Obama-era policies are composed of climate and environmental regulations, and the President has largely succeeded in dismantling them.

Whether rolling back rules on air and water quality, or slashing restrictions on power plant carbon dioxide emissions, the Trump administration’s actions are putting the health of people and our planet at risk. But despite these decisions from the top, many lower governing bodies such as states, cities, communities, and other stakeholders such as businesses remain committed towards policies focused on environmental protection, such as promoting shifts to renewable sources of energy or joining coalitions supporting the Paris agreement.

While these actions are inspiring, more large-scale approaches are necessary to deal with the climate crisis. It was only less than two years ago that the UN Intergovernmental Panel on Climate Change reported that a 2°C rise of global average temperatures above pre-industrial levels would be disastrous for the planet and its inhabitants.

For such an enormous feat, voluntary action on behalf of regional governments and the private sector will not be enough. We need a stronger approach from the international community, an agenda that can lay the path forward through strong, multilateral commitments between nations. One possible solution could be the Global Pact for the Environment, the world’s most encompassing environmental legal initiative.

THE GLOBAL PACT: WHAT IS IT, AND WHY IS IT NECESSARY?

Possibly the next major UN environmental initiative of the century, the Global Pact for the Environment proposes the adoption of a legally binding treaty whose draft text was based on the principals of the right to a healthy environment and the duty to take care of the environment. This would be an important step for international law, shifting the rights of nature closer to the rights of humans. 

Advocates of the Global Pact also argue that the such a comprehensive legal instrument is necessary to fill the “gaps” in international environmental law, clarify and define important environmental principals, and improve coordination between overlapping bodies. This type of umbrella text would ultimately ensure that its component principles are feasibly integrated and implemented in global and national legal systems.

The Global Pact’s adoption could also contribute towards global environmental constitutionalism. In essence, this means that as its principles are transformed into compulsory environmental actions, the process of environmental norms being integrated into national legal systems could be accelerated. The movement for Environmental constitutionalism has been growing around the world, and the Global Pact would only help accelerate the process of countries adding environmental protection to their lists of fundamental values of governance.

Another important quality of the Global Pact’s enshrined principles, based off the principles of the Rio Declaration on Environment and Development, is that they would form binding obligations. These environmental covenants currently exist, but they lack the heft of being considered accepted norms. For example, due to being a soft-law instrument, some of the Rio Declaration’s principles, like the precautionary principle, have been subject to conflicting interpretations. This has consequently led to failures in effective implementation and enforcement. The Global Pact would settle the question of which principles are recognized as norms, fast-tracking their application across national legal systems.

Photo by Patrick Hendry on Unsplash

50 YEARS IN THE MAKING

How did the Global Pact initiative come into being, and where is it heading? The movement for creating a global legal framework for environmental protection can be traced back to the Stockholm Conference of 1972. This landmark event led to the creation of domestic environmental laws around the world, and even the advent of multiple national environmental ministries. Despite this impact, the conference’s resulting declaration was a soft-law instrument with no legal force.

The next major leap forward for the movement was the 1992 Rio Declaration on Environment and Development. Setting forth constitutional principles for global environmental governance, the Rio Declaration catalyzed the adoption of customary norms, many of which were adopted into international treaties. The soft-law principles of the Declaration laid the groundwork for the Global Pact, igniting a worldwide debate on the necessity of an all-encompassing legal framework.

In 2015, the legal think tank Club de Juristes released a report recommending the adoption of a Universal Pact to combine environmental law into one all-encompassing instrument. The report piggybacked off the success of the recent Paris Agreement and international support continued to grow through 2017, when over 100 environmental law experts from more than 40 countries convened to finalize a draft text. Later that year, the group of experts, led by COP 21 president Laurent Fabius, published the white paper Toward a Global Pact for the Environment.

International favor continued to grow at this time, with over 40 heads of state expressing support at the Summit on a Global Pact for the Environment. Action on behalf of the UN General Assembly was finalized in May of 2018 with the adoption of the resolution “Towards a Global Pact for the Environment.” 143 states voted to adopt the resolution with only 5 against, one of those five being the United States.

One condition of the resolution was for the UN Secretary General to prepare a report, which upon release in November 2018 expressed that international environmental law could indeed be strengthened by a comprehensive and unifying legal instrument. A working group, established to make recommendations to the UN General Assembly on the matter, met for three substantive meetings in Nairobi during 2019.

Photo by Markus Spiske on Unsplash

WHERE IS THE PACT NOW, AND WHAT’S NEXT?

As opposed to previous milestones within the Global Pact initiative, member states struggled to find consensus during the Nairobi meetings. The recommendations adopted by states were a firm setback compared to the original objectives of the initiative, taking the form of a vague declaration of encouraging actions that lack any binding substance. Most disappointingly, the recommendations proclaim that the path forward now lies in States making a “political declaration” on the matter in 2022, the 50th anniversary of the Stockholm Conference.

So, what’s next? Well, supporters of the initiative are hopeful that continued efforts could lead to a formal adoption of the Pact in 2022. Here in the United States, shifting political tensions regarding climate change could also lead to future support for such action. If the US government wishes to address concerns, it should take the lead in multi-lateral negotiations and help formulate the discussion. Instead, if our political situation in two years mirrors that of today’s, we may see the United States sidelined as the international community moves forward with shaping global environmental law. The US might desire avoiding such a situation as the disastrous effects of climate change worsen globally. Perhaps the country may even want to lead the charge against the threat, as it has done with other post World War II crises. This is the opportunity to showcase it.

Ecocide and the Importance of Prevention

Guest blog by Ben Thomas

In this time of crisis and uncertainty, I’ve found some solace in a little morning routine I’ve made for myself. Once I’m out of bed, I have a coffee and glue my eyes to the TV as I wait for Andrew Cuomo, the governor of my home state of New York, to make his morning address on the state of the coronavirus pandemic. While there is evidence that the outbreak of cases in New York could have been minimized with swifter action, the strict measures later imposed have put the state in a favorable position compared to other parts of the country. With the number of new cases appearing to be declining, the governor claims that evidence-based policies will now be critical in order to keep the virus at bay. This includes actions like contract tracing and the systematic reopening of businesses, but I am aware that the rate of Covid-19 cases could easily spike again in New York, as it has in other states. Now that we are a few months into the pandemic, this game of chess between the government and the virus has shed light on a crucial lesson: that an ounce of prevention is worth a pound of cure.

While many governments around the world were quick to implement reactionary policies to contain the outbreak, some researchers were already spreading the message of prevention, speaking out about what factors ignite epidemics. Many diseases like Ebola, HIV, and now Covid-19 have a history of spreading to humans from wildlife, and studies show that the number and frequency of zoonotic disease outbreaks has been increasing over recent decades. This flood of new diseases is already proving to be one of the 21st century's greatest threats towards humanity, and a new understanding is forming about how human activity has increased our exposure to the viruses and pathogens at the center of it all.

“We cut the trees; we kill the animals or cage them and send them to markets. We disrupt ecosystems, and we shake viruses loose from their natural hosts. When that happens, they need a new host. Often, we are it.” wrote David Quammen, author of Spillover: Animal Infections and the Next Human Pandemic, in a New York Times article.

“Possibilities for zoonotic disease transmissions.” Image from U.S. Government Accountability Office from Washington, DC, United States. Licensed under Public domain

Research shows that the rise of many diseases is linked to environmental change and human behavior. As environmental degradation occurs on a larger scale, we become more exposed to wildlife, increasing the likelihood that an infectious disease will make the transition from animals to humans. For example, take this recent Stanford University study that focused on deforestation in Uganda. Combining satellite imagery and in-person surveys, researchers analyzed the factors that led to physical interactions between humans and wild primates in different areas of the country. What they found was quite interesting: It wasn't the large areas of forest with dense primate populations that saw the most interactions, but small patches of forest that were bordered by human populations.

Widespread environmental degradation is already a topic of international concern. For example, the deforestation ravaging the Amazon Rainforest in Brazil has gotten significant media attention. In the Amazon, an area the size of a soccer field is cleared out every minute, and as more forest is converted to farmland, human-caused fires have increased in size and frequency. Last year, deforestation in the Amazon during the first 8 months of 2019 rose 76% above the rate in 2018, the highest overall in a decade, and this led to larger and more uncontrollable fires. As the fires raged, the Amazon began receiving serious international attention.

Millions of dollars were pledged to fight the fires, some countries froze aid to the region to pressure the government to act, and French President Emmanuel Macron even threatened to end a trade deal with Brazil. The private sector also rallied behind the cause. Companies called for a reduction in the reliance on deforestation, and many boycotted Brazilian industries.

It is crucial to make sure that the international response is effective and carefully targets those actually responsible for harm. Economically starving a population of people in response to the actions of their government will not get to the root of the problem. The Brazilian people, especially indigenous communities, remain the greatest victim of the deforestation of the Amazon. Meanwhile, members of Brazil’s leadership and wealthy corporations (including those based in the U.S.) encourage and benefit from the rainforest’s exploitation and deforestation.

Cases like the Amazon’s display the importance of developing a global legal framework in the name of preventing nature’s destruction. If the international community can come together to combat deforestation, why has it been so difficult to get preventative policies on the books?

“Fires and Deforestation on the Amazon Frontier.” Image by Jesse Allen and Robert Simmon. Licensed under Public domain.

Enter Ecocide

Ecocide has a few varying definitions, but all cases refer to the widespread destruction of nature and ecosystems such as which occurred in the Amazon in 2019. Like genocide, ecocide is of international concern, not only because of the aforementioned public health implications, but because without preventative laws put in place these catastrophic events will continue to put our planet and the life that lives on it at risk.

The greatest champion of establishing a set of international laws against ecocide is the late Polly Higgins, who notably claimed that “Ecocide is the missing international crime of our time.” While the few countries that have existing ecocide laws mostly base the crime off a requirement of criminal intent, Higgins argues that ecocide should be a strict liability crime. Under this standard, a person or entity that committed ecocide would be responsible for the consequences of the crime, regardless of the intent behind the action. On top of increasing the effectiveness of enforcement measures, the existence of strict liability would also place the main focus of policy on prevention.

International criminal laws against ecocide actually exist, but they relegate it to times of war. The Rome Statute, the major legal instrument in international criminal law, refers to the act as “widespread, long-term and severe damage to the natural environment…” This falls under War Crimes, one of the four crimes under the jurisdiction of the International Criminal Court. Polly Higgins sought to make ecocide the fifth crime under their jurisdiction, establishing it beyond just the scope of military acts. In 2010, she submitted a draft amendment of the Rome Statute to the United Nations. Her definition of the crime of Ecocide is below:

“Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”

Since Higgins death in 2019, her work has been carried on by her Stop Ecocide campaign co-founder Jojo Mehta. Jojo and the Stop Ecocide campaign are currently at the forefront of the ecocide legal movement, furthering efforts to get ecocide recognized as a crime in international criminal law.

Artist interpretation of ecocide. Image by Marek Studzinski from Pixabay.

 Problems with Enforcing Ecocide

It has been historically difficult to prosecute environmental crimes of this scale, especially when those thought to be responsible are nation states or corporate entities. One reason concerns the process of identifying the victim, which in many cases is nature itself. Nature is generally not considered a holder of legally protected rights, and international statutes tend to limit the definition of a victim to humans.

Finding a responsible party to connect to the crime of ecocide can be even more difficult. Let’s return to the 2019 fires in the Brazilian Amazon. In this case, who were the actors at fault? Was it Brazil’s President, Jair Bolsonaro, who slashed enforcement measures, encouraged development, and eventually declared that the deforestation would never stop? What about the companies that incentivize the fires, creating the demand that finances the deforestation in the region? Lastly, it was individuals that ultimately carried out the burning. Whether a farmer trying to feed their family or an agent acting on behalf of a larger organization, are they any more responsible than the aforementioned parties?

It is important to note that in a global economy where wealthy countries exploit the land and labor of poorer countries, holding the responsible actors accountable can be difficult when they are far removed from the scene of the crime.

The way ecocide is framed can also pose as a challenge to its application as a crime. This is because, in many cases, the act is an externality of another. During a war, some might view destroying nature as necessary to defeating the enemy. During peace, pollution of a river could be considered a negative side effect of increasing manufacturing production. These are both examples of nature being thought of as something for human use. If, as with genocide, the goal of regulating ecocide is to prevent it as much as possible, a new legal framework, one that goes beyond existing environmental laws and paves the way for efficient enforcement, will be necessary.

Conclusion

A discussion I have heard come up a lot regarding the coronavirus outbreak is how to balance the cost to public health with the cost to the economy. It seems the major consensus is that life must be prioritized above all else, and we as a society will deal with the economic fallout after we solve the public health crisis. Furthermore, an economic system can’t thrive when the public is unhealthy and its future is uncertain.

Earth Law takes a similar approach to the ecocide challenge. Under Earth Law, economic benefits to humans are never prioritized over an ecosystem’s right to thrive and survive. The establishment of ecocide finds a nice place within Earth Law, as an ecological consciousness is assumed, and harm to nature is not simply an externality of reaping economic benefits for humans.

Just as this current crisis has brought about changes in the ways through which we empower our communities, we can also change with ways through which we empower the natural world. An ounce of prevention is worth a pound of cure.

Why High School Education is Important For Students to Tackle Global Environmental Challenges

Almost two decades ago in 2003, Glendale High School students planted 500 trees in the Douglas Complex Burn, the author of this blog post argues that environmental education for today’s high school students would benefit from more tree planting and hands on activity (Image from Oregon Department of Forestry is licensed under CC BY 2.0)

By Charlotte Moog

Introduction from Earth Law Center:

This week’s blog is a guest submission from an eighth-grade student in New York, Charlotte Moog. She writes about how to improve high school education so that students can better tackle global environmental challenges. At Earth Law Center, part of our mission is to train the next generation of environmental leaders with the tools they need to save the planet. Although much of our education focuses on training college students and legal professionals, we also work with younger age groups to educate them on basic Earth law concepts—Rights of Nature, legal guardianship of Nature, nonhuman rights, and so forth. As you read this week’s blog, consider the importance of educating and empowering students of all ages to serve as stewards for the planet. 

Environmental Education in Nature

The best way to give students the education to be prepared for environmental challenges is to leave the classroom

High schools around the world are incorporating environmental education into the classroom, but not with enough urgency or impact.

Typically, schools invite a volunteer from a charity or organization to come and talk with students about what they do, how they do it, and how to get involved. Meetings might end with an emotional video showing upsetting photos and distressing statistics, aimed to inspire the students into action. The students then leave perhaps feeling motivated, but no doubt heavy-hearted, as they move onto their next class. By the time school is over, though, many students will have forgotten about the presentation and statistics. Once the next day arrives, their attention shifts to the upcoming test or the over-due essay, the dreadful statistics and video forgotten. (Of course, some schools and programs advance cutting-edge environmental education, but this not the norm.)

What if there was more action?

Students could get outside and pick up trash and recycle plastic as they forge a deeper connection with Nature. They could mail letters to the government or local town hall demanding the phase-out of fossil fuels, a ban on animal testing, or even the recognition of the Rights of Nature—a focus-area of Earth Law Center. Students could develop their own educational campaigns to inform local shops and stores, neighboring schools, community centers, family, and friends about important environmental issues and solutions. It could take as little as twenty minutes. Not even the whole afternoon. All it takes is a little walk, a little time, a little action to ensure a memory is remembered.

Even more than this afternoon, high schools (and other secondary schools) need to integrate environmental education into the curriculum in a permanent way. In order for students to take global challenges seriously, schools need to take the impending environmental calamity seriously. In order for schools to do so, legislation needs to change the curriculum to mandate that all high school students have to take environmental studies in order to graduate. It should be a requirement, much like history or math.

In turn, the environmental studies requirement would have to leave ripples of change outside the classroom walls. There needs to be an action component in environmental studies. It is not enough to talk about environmental issues, but students and schools need to do something about it.

Action Across The Globe

Across the globe, countries are beginning to find ways to include children and schools in environmental conservation. Schools and communities are working together to give their students the inspiration they need to change the worldwide problems.

In the Philippines, all it took was a shovel, dirt, and ten trees to get their students involved. On December 5, 2018, House Bill 8728 was passed in the Philippines, changing countless lives. The act requires all students graduating from elementary school, high school, and college to plant at least ten trees each in order to complete the academic year. The objective was to continue and strengthen environmental protection, biodiversity conservation, climate change mitigation, as well as adjustment for poverty reduction and food security.

This isn’t the only time where the Philippines had everyone engaged in biodiversity preservation. About forty years earlier, in 1977, Presidential Decree 1153 required every citizen to plant one tree every month for five consecutive years. Both requirements are a major step towards a greener future.

Tree Planting (Image by Alex Indigo licensed under CC BY 2.0)

In 1988, the Brazilian Constitution established that environmental education (EE) is a citizenship right and a duty of the state. By 2012, Brazil established the National Curriculum Guidelines for Environmental Education. The schools believe everyone in the community should know why environmental efforts are taking place. Schools have begun projects like building green roofs, electrical systems powered by solar energy, bamboo furnishings, botanical gardens ,and ecological streams. These projects include a variety of different opportunities for everyone to take part in and enjoy.

In 2004, Kwazulu Natal in South Africa become an Eco-School. The school’s green environment not only taught the children about sustainable education, but influenced other schools do to the same. Kwasulu Natal started with their focus on water. Students learned how to turn recycled materials into hand-washers. The school also turned their attention to the trash polluting the area. The solution was to fix both the unhealthy eating and the litter by handing out new snacks with little or no packaging, while the students reused the waste for art projects, and hand-made crafts

The Tangerang Selatan School in Indonesia generated a school compost to battle the important problem of food waste. Students took it upon themselves to ban styrofoam food packaging, while others planted trees and flowers and were responsible for caring for the plants. Not only did the Tangerine Selatan School create an eco-friendly environment, it’s something the students can be proud of.

Sustainable schools are catching on everywhere; one school located in the Shin-Shing village in Taiwan planted ethnobotanical gardens, installed solar energy technology, and built an ecological stream. Each of these sustainable features changed the students’ education for the better, as well as directly benefiting the local society. The stream treated sewage, the garden provided a hands-on learned experience, and the part-time jobs helped out local residents. Funding was granted from the Taiwan Sustainable Campus Program and had positive outcomes for both the school and the community.

Some schools, like Al-Kawthar Secondary School in Beirut, Lebanon, have begun to raise awareness of climate change within their school community. Projects that involve tree-planting, crafts made with recycled materials, helping national forests, and conserving water are a few examples. Al-Kawthar Secondary School’s environmental committee hosts events discussing ways to save the Earth, getting the adults involved, as well. The committee also develops action plans recapping what was learned and achieved the previous year, and in result the students have a well-structured, thorough, and clever environmental course to learn and work from.

Other countries are working closer to home, integrating lessons on sustainable development and environmental conservation into everyday life at school. Schools are teaming up with various programs to include environmental education in their curriculums. Global Environmental Education Program (GEEP), Environmental Education (EE), Green Flag Green Schools, Foundation for Environmental Education (FEE), Education for Sustainable Development (ESD), National Education for Sustainable Development Workgroup (NESDW) are only a handful of programs working to make environmental education mandatory. Many countries like Italy, Denmark, Malaysia, Finland, Panama, Canada, and more have already begun working with these programs and included environmental education in their mandatory school curriculum. The aim for environmental literacy in schools is slowly making its way, and though the progress is slow it is gradual.

Earth Law Center has been doing its part to strengthen environmental education. Several years ago, they began hosting high school mock trials on the Rights of Nature in New York. Students learn the nuts and bolts of legal systems that recognize and enforce basic rights for Nature. Then they take sides—some serving as Nature’s legal representation, others acting on behalf of government or industry—and present Rights of Nature arguments in a mock courtroom setting. This exercise teaches students about shortcomings of our current environmental laws and challenges them to think critically about how our legal system can work better for Nature. 

This chart outlining the various elements of a “The Whole-School approach to Climate Change” is represented in many of the school systems that the author describes (Image from UNESCO licensed under CC BY-SA 3.0-IGO)

What The Adults Think

A recent Ipsos/NPR poll on how parents in the United States feel towards teaching their children about climate change in schools received very optimistic responses. 84% of parents of children under eighteen support schools teaching about climate change; 78% of Americans agree their children should start learning about climate change as a whole.  A second Ipsos/NPR poll reports that teachers agree with parents. In Washington, DC, teachers were interviewed about their thoughts on climate change, and how it should be taught. 82% agreed that the climate was changing, and 86% believed it should be addressed in schools.

Stubborn Problems in Environmental Education

Despite these bright spots, environmental education as a whole still needs to come a long way.

Charles Saylan, a biology professor at the University of California-Los Angeles, a Marine conservationist, and co-author of ‘The failure of Environmental Education (and How We can Fix It)’, tells a Yale Environment 360 interviewer that the U.S. public educational system fails to make environmental values a major concern. Saylan emphasized that raising awareness was only half of the problem. Students, he says, should be able to take environmental problems in their communities as well as learning about the political processes, which is what the schools should adopt into their systems.

“Environmental Education has failed because it is not keeping pace with environmental degradation, with human impacts on the environment. I also think that it’s failed to provoke action.”

I agree with Saylan. The theme of ‘action’ isn’t being emphasized enough in schools. How else are millions of students across the world going to change anything?

“We don’t see a lot of motivation in these kids,” Saylan admits. “They knew the material and said what was expected of them, but we don’t see a change in behaviour or willingness to give up something for the benefit of the environment.”

Again, Saylan is spot on. Without motivation and outcome, environmental education becomes another class, where the message is quickly forgotten almost as quickly as it is learned, leaving few tangible results.

Charles Saylan tells Yale Environment 360 that though they might not have all of the answers required for the change, the biggest issue is the lack of relevance. “I don’t think that environmental education as it’s currently taught directly affects the lives of the students we’re teaching.” Schools may be teaching their students, but nothing can force them to take the initiative to start something themselves, which is where the engagement plays a large role. “We provided open access to other programs that offered hands-on experience — whale watching, marine-mammal rehabilitation — things that kids could get interested in and then take part in as much as they liked.” Saylan’s observations confirm that there are two parts in environmental education — the teaching in the classrooms, and the activity outside.

“We had kids coming back weekly, not only because we were giving them a good time, but also because they were pulling trash out of the water, and they couldn’t ignore the mountain of junk that was coming out.  That was a real object lesson.”

Listening to the Students

Speaking from the point of view of a student, I think environmental education should start from a young age. It should be a mandatory class incorporated into the school’s curriculum, as it is essential to change our habits early in order to alter the climate’s trajectory. The classes should be woven into daily life; students should approach the subject as if it were history or math. Environmental education would be a credited class required in order to graduate high school. A successful class would take students out of the classroom and engaged in an environmental curriculum of action. Each pupil would graduate from high school with the knowledge to live a sustainable life and act in a sustainable way.

Earth Law Education

Along with environmental studies, curricula should also touch on Earth law, including the Rights of Nature and other ecocentric legal movements. These legal movements require action in order to ensure they succeed—writing letters to politicians, educating businesses about the benefits of operating in harmony with Nature, and so forth. by learning about Earth law and taking action within their communities, students will also gain a deeper understanding of how to represent the voice of Nature in law, politics, grassroots movements, and other areas. As students become professionals—business leaders, lawyers, politicians, educators, and so forth—this knowledge will permeate their work and lead to stronger protections for the planet.

Interested in learning more about Earth Law Center’s educational programs? Contact info@earthlaw.org

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References

https://e360.yale.edu/features/green_failure_whats_wrong_with_environmental_education

https://www.fee.global

https://thegeep.org/learn/countries/denmark

https://www.forbes.com/sites/trevornace/2019/05/29/new-filipino-law-requires-every-student-to-plant-10-trees-if-they-want-to-graduate/#7990568e5aeb

http://congress.gov.ph/legisdocs/first_17/CR01007.pdf

https://www.officialgazette.gov.ph/1977/06/06/presidential-decree-no-1153-s-1977/

https://www.wwfmy-esd.com/ecoschoolsprogramme

https://e360.yale.edu/features/green_failure_whats_wrong_with_environmental_education

http://www.nea.org/home/Green-Schools-Environmental-Education.html

Think Like a Fish: Pacific Philosophies and Climate Change

New Zealand, Photo by Rod Long on Unsplash

Guest Writing by: Distinguished Professor Dame Anne Salmond DBE CBE FBA FANAS FRSNZ FNZAH

Introduction from Michelle Bender, Ocean Rights Manager at Earth Law Center:  

Pacific Islanders are considered by many to be the leaders and pioneers of ocean conservation efforts. This is because they understand better than most the deep connection and kinship the human race has with the Ocean. In particular, Indigenous peoples of New Zealand are taking the lead creating a transformation in our relationship with the natural world—rivers, national parks, mountains—and the Ocean. They recognize that the natural world is an indivisible whole, the Ocean has authority (mana) and life force (mauri), and that the Ocean and climate are inextricably tied.

Earth Law Center has partnered with groups and individuals across the Pacific, including Institut de Recherche pour le Développement (IRD), the Secretariat of the Pacific Regional Environment Programme (SPREP) and Conservation International Pacific Islands Programme plan to create a Convention on the Rights of the Pacific Ocean.

In November 2018, the first meeting of partners and groups with an interest in recognizing the rights of the Pacific produced a Statement from the Collective Thinking of those present. This statement is meant to be used to invite communities, businesses, and governments to redefine their relationships with the Ocean at local, regional, and global scales. This initiative comes at a critical time in light of international negotiations to create a new biodiversity treaty for the high seas and, more broadly, the growing global environmental crisis.

Below we share writing from Anne Salmond, a partner with Earth Law Center in the effort to recognize ‘Ocean Rights’. Anne Salmond is a Distinguished Professor at the University of Auckland, prize-winning author on Māori life and one of New Zealand's most prominent scholars in history and anthropology. The following writing “Think like a Fish: Pacific Philosophies and Climate Change” was previously published as an afterword in the book, Pacific Climate Cultures: Living Climate Change in Oceania (De Gruyter Open Press).

Think like a Fish is a story of culture, relationships, and kinship; a story to ground us all and remind us to place ourselves within the larger Earth community, as a part of the whole; a story of what is possible if we think like a fish.

An Afterword, Think like a Fish: Pacific Philosophies and Climate Change, in eds. Tony Crook and Peter Rudiak-Gould. Pacific Philosophies and Climate Change. Pacific Climate Cultures: Living Climate Change in Oceania (De Gruyter Open Press), 155-159

 

His Highness Tui Atua Tupua Tamasese Ta'isi Efi, the head of state of Samoa, opened this book by urging his readers to adopt a perspective based on va tapuia – ‘sacred relations between humans, animals, cosmos and the gods.’[1] He suggested we might think about climate change from the vantage-point of other life forms – a dog, perhaps, the ocean, the stars, trees, a bird or a fish; and explore Pacific worlds patterned by existential interlocks between people and other beings. 

In these ways of being, balanced exchanges between different life-forms generate health, peace and prosperity, while arrogance and greed breed ill-health, poverty and conflict.[2] While equilibrium is highly prized, it is always fragile. According to Maori ancestral chants, for instance, cosmic order is established in two main ways - by affinity and alliance, when different powers come together to create new forms of life; and by contestation and quarrelling, in which different beings separate (or are separated) from each other. 

According to the Te Arawa scribe Te Rangikaheke, for instance, at the beginning of the world there was just one founding ancestor, Rangi-nui the Sky Father and Papa-tuānuku the Earth Mother, a single being. For many pō (era of darkness) their children lived between them, cramped and frustrated.  Weary of their confinement, they began to talk about separating their parents so that light could enter the world.  Although the wind-ancestor Tāwhiri-matea disagreed with this idea, his older brothers ignored him.  After many unsuccessful attempts, Tāne, ancestor of the forests, lay on his back and pushed up with his legs, forcing earth and sky apart.

As Rangi wept for Papa, his tears became rivers and lakes, and she sent up mists to greet him.  Tormented by their grief, Tāwhiri-matea flew into a fury and attacked his brothers with whirlwinds and tornadoes, smashing Tāne’s trees to splinters, driving Rongo and Haumia’s root crops underground and lashing Tangaroa, the sea god into submission.  In the midst of this chaos, Tangaroa’s children fought with each other.  When Ika-tere, the ancestor of fish, taunted his brother Tū-te-wanawana, the ancestor of lizards, saying, ‘’You go inland, and be heaped up after fires in the fern!’ Tū-te-wanawana replied, ‘You go to sea, and be hung up in baskets of cooked food!’[3] After this quarrel, they went their separate ways.

Only Tū, the ancestor of people, stood tall in the face of Tāwhiri-matea’s onslaught.  For his bravery, he earned for his descendants the right to harvest his brothers’ offspring – birds, root crops, forest foods and trees, crayfish, shellfish and fish, although they had to ask the ancestors for permission. In Te Ao Māori, as in Samoan and other ancestral Pacific ways of living, the fundamental kinship between people and other life forms is never forgotten.

According to the Tainui scholar Pei te Hurinui Jones, the double spiral in Maori carving, painting and tattoo embodies this swirling emergence of the cosmos.[4] Unlike the linear arrow of modernist time, Maori space-time spins in and out from an ancestral source. When the sea ancestor Tangaroa breathes in, for instance, the sea spirals down his throat, forming a great vortex (Te Parata) at the heart of the ocean; the tide goes out and people die. As he breathes out, the tide flows and children are born into the world.  When Tāwhiri flies up to the highest heaven to fetch the baskets of knowledge, he ascends on a whirlwind. The spiral of space-time is at once destructive and creative.

Pei Te Hurinui Jones, Taken by an unidentified photograper. Location unknown / Public domain

To think like a fish, then, is to understand that apocalyptic storms may herald conflict and confusion, but also new forms of life. After millennia of sea living, Pacific islanders - especially fishers and navigators - are closely attuned to climatic shifts and changes. While ‘movements on the ocean are often unpredictable and surprising,’[5] their ancestors had the power to calm or raise particular winds, to smooth the sea or summon up waves to swamp the fleets of their enemies. In New Zealand, for instance, the early missionary Samuel Marsden spoke with a tohunga who controlled the winds and waters in the Hokianga harbour, and reported that according to the warrior chief Hongi Hika, the sea god Tangaroa lived in his forehead.[6]  When Marsden boarded a ship in the Bay of Islands, intending to take the errant missionary Thomas Kendall back to Port Jackson in defiance of Hongi’s wishes, the ship was wrecked before it left the Bay.  It was a fine, calm day, and Marsden could not understand what had happened. He had recently been told, however, about the wreck of another ship in the Hokianga, where the mate attacked some sacred rocks with a hammer, and the local taniwha (powerful water being) picked up his ship and smashed it on the rocks as he tried to sail out of the harbour.[7]

In this book, Maria Robertson describes exchanges with an elderly female navigator from Kiribati, Teueroa, and her connection with the ocean.  In a deep sense, she and the sea are one.  When Teueroa was born, her father took her umbilical cord out to sea and dropped into deep water, and in her early teens, she was initiated as a navigator when her father sailed out of sight of land, tossed her into the water and sailed away.  When he returned to pick her up, he asked her to point out the direction of the land. Later, he taught her how to predict the weather from the winds and stars. According to Teueroa, droughts that are explained by scientists as due to climate change have already been foretold by the stars. As Robertson remarks, 

[Given] the notion that the world is made of relationships, engaging in known and unknown ways, fixing and unfixing, always struggling and co-operating, the world emerges in these connections. And the notion of organised exchanges of energy … allows individuals to engage with systems and correct imbalances that could otherwise be said to be out of their control.[8]

These exchanges of energy may include songs, as well as ritual knowledge and other artistic interventions. As Elfriede Hermann and Wolfgang Kempf report, many Kiribati people address the prospect of catastrophic climate change with a prophetic song that exhorts them to ‘rise up’ and take practical action to avert the loss of their islands.[9] For New Guinea, Marian Strucke-Garbe describes powerful artistic responses.[10] Other examples include ‘Moana: The Rising of the Sea,’ a performance created by Vilsoni Hereniko at the University of Hawai’i that has featured at many international gatherings focused on climate change.[11]

In her account of Cyclone Pam in the Cook Islands, Cecile Rubow suggests that such storms (‘natural-cultural whirls’) may be reflected in ‘giant rotating, intensifying discursive systems’ that gather momentum across large networks, bringing together different knowledges and voices in ways that make different kinds of sense to different people. She suggests that ‘climate change’ is one of these spinning assemblages, sweeping across the islands and whirling together ancestral, Christian and scientific ideas, generating fear and vulnerability, practical responses and creative power.[12] 

Devastation after Cyclone Pam 14 March 2015 by Graham Crumb, licensed under CC BY-SA

This sense of being caught in relational vortices and yet having the power to strike new balances also emerges in John Connell’s account of the Carteret Islanders, a population of less than 1000 people who inhabit a cluster of six small atolls off Bougainville. While these people have been described by the global press as the first climate refugees - ‘frontline victims of the excesses of capitalism,’[13] they have suffered food, cash and timber shortages for at least half a century.  At the same time, tectonic shifts, seismic events, and local interventions such as dynamiting the reefs and building sea walls amplify their difficulties. Nevertheless, the discourse of climate change serves as a ‘weapon of the weak,’ giving them chances to build new lives in other places.

In this swirl of ideas, Pacific peoples have also been powerfully influenced by Christian narratives. As Jennifer Newell describes for Samoa and Emilie Nolet for Fiji, Biblical stories about God driving Adam and Eve out of the Garden of Eden for their sin of eating forbidden fruit; Noah building the Ark to survive the Great Flood; and the Apocalypse, when the sun scorches the earth, the rivers dry up and there is darkness and pain in the land are echoed in local debates around climate change.[14]

These mythic narratives also underpin metropolitan accounts of climatic change. Ideas such as ‘the Anthropocene’, ‘anthropogenic impacts,’ ‘ecosystem services’ and ‘resource management’ all reflect Biblical stories in which God gives Adam and Eve ‘dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth,’[15] putting people in control of the cosmos. An onto-logic in which all other beings are created for human purposes fosters a sense of exceptionalism and entitlement that helps to drive resistance to talk of climate change, biodiversity losses and related phenomena, alongside fears of Armageddon or being driven out of Paradise.  It is also very different from ancestral Pacific accounts in which all living phenomena including earth, sky, winds, rivers, birds, fish and people are linked together in kin networks, powered by reciprocal exchanges.

These kin-based philosophies have more in common with other strands in Western thought, for instance those that trace back to vitalist philosophies in the Enlightenment, and ideas about the ‘tree of life’ or the ‘web of life’ elaborated by scientists including Alexander Humboldt or Charles Darwin.[16] Ideas about complex networks and systems, symbiosis and ‘holobionts’ in the contemporary biological sciences[17] all resonate closely with Pacific ideas.

In these kinds of framings, it makes sense to ‘think like a fish’ – to consider the vantage-points of life forms other than human beings on planetary processes. In the context of attempts to sustainably manage the Pacific Ocean, for example, whether through exclusive economic zones or marine reserves, these perspectives might allow us to see that fish do not register such boundaries, and to come up with devices that do not allow them to be harvested to extinction.

If people and environment, culture and nature are not divided in ancestral ways of being in the Pacific, neither are mind and matter, theory and practice.   Engagements with Pacific forms of order are not just thought experiments, but also inform legal frameworks and practical action. In New Zealand, for instance, as part of the Treaty of Waitangi settlement process, both the Urewera, the ancestral territory of Tūhoe people, and the Whanganui River have recently been recognised as legal beings in their own right, with their own entitlements to health and well-being. 

Treaty of Waitangi / William Hobson, James Freeman, and James Busby (English version); Henry Williams and Edward Williams (Māori translation) / Public domain

These laws have many practical implications, and not just for Maori people.  While they place obligations of care on the iwi concerned, they also fundamentally reshape relationships between all people and these ancestral beings.  For the Whanganui river, its restoration becomes a right, not an optional extra; and for the Urewera, once a major national park, the iwi has initiated a regime that seeks to manage people, rather than communities of plants and animals.  Once issued with tramping, hunting and fishing permits, visitors now enter into ‘friendship agreements’ with the Urewera, and are guided by young Tūhoe who introduce them to new ways of understanding this place that is an ancestor.[18]

Such philosophical experiments can also inform scientific projects.  In the Te Awaroa project, for instance, funded by the University of Auckland, teams of scientists and local experts draw on mātauranga Maori (ancestral knowledge) along with an array of natural and social sciences to listen to the ‘voice of the river’ in different parts of the country, studying rivers as living systems through time, with their plants, animals and people, to inform healthier futures. In the wider Pacific, too, star navigators are again sailing across the ocean, carrying out scientific research and raising urgent concerns about the state of this great sea with its dying reefs, depleted fish stocks, gyres of rubbish and drowning islands.

In relation to climate change, Maori ancestral perspectives suggest that this is among an array of symptoms that show interlinked living systems are moving away from a state of ora (health, well-being and abundance) towards a state of mate (ill-health, dysfunction, degradation and failure). Intensive agriculture that over-tills or over-grazes the land, for example, while using many imported inputs (diesel for machinery, chemical sprays and palm kernels as feed, in the case of intensive dairying) may also degrade aquifers, rivers, estuaries and harbours, contribute to biodiversity losses through mono-cropping and deforestation, and drive climate change through animal methane emissions, deforestation and the use of fossil fuels.

To ‘think like a fish’, then, is to recognise that aspects of modernist science may be non-adaptive.  In order to understand these interconnected processes, the separation of the social from the natural sciences and the fragmentation of the disciplines are profoundly unhelpful.  If we are to deal intelligently with climate change, new paradigms that foster intelligent inquiry into an array of intricate relational networks and patterns of exchange among planetary systems at different scales are urgently needed.

As Tui Atua Tupua Tamasese Ta'isi Efi suggests, there is also a need to live differently – to confront human greed and the urge to exploit ‘natural resources’ for short term profit by considering the interests of future generations, and to pursue reciprocal exchanges that seek balance with other life forms, however elusive. The gravity of this challenge is highlighted by Nalau Bingeding’s account of a disjuncture in Papua New Guinea between the government’s powerful rhetoric about climate change in international fora and a lack of practical action at home.[19] On the island of Gau in Fiji, on the other hand, according to Veitayaki and Holland, the inhabitants are tackling climate change on many fronts through the Lomani Gau project, informed by rigorous inquiry and ancestral precedents.[20]

Across the contemporary Pacific, many thinkers are seeking to engage with climate change and related existential challenges by weaving together ancestral ideas with insights from the contemporary sciences, and activating these through innovative artistic, political and legal devices. In the face of apocalyptic visions that engender helplessness and despair, these experiments offer new ways of thinking, a sense of resilience and hope, and a will to take practical action:

As my mentor Eruera Stirling used to chant:

Whakarongo! Whakarongo! Whakarongo!      Listen! Listen! Listen!

Ki te tangi a te manu e karanga nei                 To the cry of the bird calling

Tui, tui, tuituiā!                                                 Bind, join, be one!

Tuia i runga, tuia i raro,                                    Bind above, bind below

Tuia i roto, tuia i waho,                                     Bind within, bind without

Tuia i te here tangata                                       Tie the knot of humankind

Ka rongo te pō, ka rongo te pō                         The night hears, the night hears

Tuia i te kāwai tangata i heke mai                   Bind the lines of people coming down

I Hawaiki nui, i Hawaiki roa,                             From great Hawaiki, from long Hawaiki

I Hawaiki pāmamao                                         From Hawaiki far away

I hono ki te wairua, ki te whai ao                     Bind to the spirit, to the day light

Ki te Ao Mārama!                                             To the World of Light!

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FOOTNOTES

[1] Efi in Crook and Rudiak 2018, 5.

[2] Ibid, 3.

[3] Te Rangikaheke in Curnow 1983, 254.

[4] Jones 1959, 232.

[5] Robertson in Crook and Rudiak 2018, 36.

[6] Salmond 2017.

[7] Ibid.

[8] Robertson in Crook and Rudiak 2018, 45.

[9] Herman and Kempf in ibid, 20-28.

[10] Strucke-Garbe in ibid.

[11] Steiner 2015.

[12] Rubow in Crook and Rudiak 2018, 31.

[13] Connell in ibid, 58.

[14] Newell and Nolet in ibid.

[15] King James Bible, Genesis 1:28.

[16] Reill 2005, Normandin and Wolfe, eds. 2013; Lash 2016.

[17] Gilbert, Sapp and Tauber 2012, 326.

[18] For more detailed accounts of these experiments, see Salmond 2017.

[19] Bingeding in Crook and Rudiak 2018, 101-112.

[20] Veitayaki and Holland in ibid, 89-100.

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REFERENCES

Crook, Tony and Rudiak-Gould, Peter 2018.  Encountering Climate Change and Scientific Prophecy in Oceania.

Curnow, Jenifer 1983. Wiremu Maihi Te Rangikaheke, M.A. thesis, University of Auckland.

Gilbert, Scott F., Sapp, Jan; and Tauber, Alfred L. 2012.  A Symbiotic View of Life: We have never been Individuals.’ The Quarterly Review of Biology 87/4, 325-341.

Jones, Pei te Hurinui 1959. King Potatau. Wellington, The Polynesian Society.

Lash, Scott 2016.  Life (Vitalism).  Theory Culture Society 23, 323-329.

Normandin, Sebastian and Wolfe, Charles T. eds. 2013. Vitalism and the Scientific Image in Post-Enlightenment Life Science 1800-2010. Dordrecht, Springer.

Reill, P.H., 2005. Vitalizing Nature in the Enlightenment. Berkeley: University of California Press.

Salmond, Anne 2017. Tears of Rangi: Experiments across Worlds.  Auckland, Auckland University Press.

Steiner, Candice 2015. A Sea of Warriors: Performing an Identity of Resilience and Empowerment in the Face of Climate Change in the Pacific. The Contemporary Pacific 27/1, 147-180.

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About the Author

Distinguished Professor Dame Anne Salmond DBE CBE FBA FANAS FRSNZ FNZAH

Anne Salmond

Anne Salmond is a Distinguished Professor in Māori Studies and Anthropology at the University of Auckland.   In 2013 she became the Kiwibank New Zealander of the Year. In 2017 she hosted Artefact, a TV series about the power of iconic taonga (treasures), past, present and future; with more episodes to come in 2020.

Dame Anne has written many prize-winning books on Māori life and early cross-cultural encounters in Aotearoa, Tahiti and the Pacific, and received the Prime Minister’s Award for Literary Achievement.

She has a strong interest in Maori and Pacific philosophies relating to land and sea, and a fascination with voyaging, reflecting on these in her latest book Tears of Rangi: Experiments across Worlds, a finalist for the Al-Rodhan Prize for Global Cultural Understanding from the British Academy.

Anne Salmond is a Foreign Associate of the National Academy of Sciences in the US, Corresponding Fellow of the British Academy, and Foreign Member of the American Philosophical Society. In 2018 she was awarded a Carl Friedrich von Siemens Research Award from the Alexander von Humboldt Foundation in recognition of lifetime achievements in research.

Dame Anne served on the founding Board of Te Papa Tongarewa and the Experts Advisory Committee for the Taputapuatea World Heritage site in Ra’iatea.  She is the patron of many cultural and environmental organisations, and co-founder of the Waikereru Ecosanctuary in Gisborne (https//www.waikereru.org).

Earth Law Center joins the fight to free Sk'aliCh'elh-tenaut

Earth Law Center joins the fight to free Sk'aliCh'elh-tenaut

By: Michelle Bender

Earth Law Center (ELC) recently announced our partnership with two tribal members of the Lummi Nation, Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) to bring Sk'aliCh'elh-tenaut (also known as Tokitae or her stage name, Lolita) home to the Salish Sea. This campaign is about more than a single Orcas story and release. It is a story of kinship, family, culture, Indigenous rights, morals and ethics and the rights of all species.

Orcas are family, not property

The Lhaq'temish people of the Lummi Nation are Indigenous peoples on the coast of northern Washington and southern British Columbia. The Lummi Nation has a strong connection with the Salish Sea, and has for thousands of years, and this includes the Sea’s inhabitants. Last year, Lummi Nation gave Tokitae the Lummi name “Sk’aliCh’elh-tenaut,” which means that she is a member of Sk’aliCh’elh, the resident family of Orcas who call the Salish Sea home. The Lummi term for “Orca” is “qwe’lhol’mechen,” which means “our relatives under the water.” 

Orcas are their family, and there is one family member missing.

Sk'aliCh'elh-tenaut was captured violently, and without prior consent of her family (her mother Ocean Sun is still alive in the Salish Sea), 50 years ago, and has lived in a tank at the Miami Seaquarium ever since. She has been on display in a small 80 ft. long, 20 ft. deep tank in hot sunny Florida, catering to the guests of the aquarium and performing two shows a day (outside the pandemic). Her well-being has taken a backseat to profit, being forced to perform even if she just had a procedure and could barely keep her eyes open. Many attempts have been made throughout the years to have discussions and come to a resolution with the owners of Miami Seaquarium, but they stand firm in the belief that she is well taken care of and happy. But Sk'aliCh'elh-tenaut has been screaming for help since her capture. [More on the history of Sk'aliCh'elh-tenaut’s life (her capture and life in captivity) will be in our next blog, so stay tuned.]

Photo by: https://sacredsea.org/resources/

 Squil-le-he-le and Tah-Mahs answered the call to bring Sk'aliCh'elh-tenaut back to her home to the Salish Sea, and believe this is the year. Indigenous peoples acknowledge a sacred obligation to “ensure all relations are treated in a dignified manner that reflects tribal cultural values.” The Lummi Nation, therefore, believes they have a sacred duty to take care of the Southern Resident Orcas (also known as Southern Resident Killer Whale), and protect the lands, waters and communities of the Salish Sea. Teachings indicate not only a deep cultural affinity and a spiritual connection between qwe’lhol’mechen and Lummi people but also deep kinship bonds. As Tah-mahs believes, “What happens to qwe ‘lhol ‘mechen happens to us. When they’re whole, we’re whole. She needs her family and her family needs her.” This echoes what Governor Inslee said after signing an Executive Order to produce more actions to recover the endangered population of Southern Resident Orcas: “Orcas are part of our identity as Washingtonians and we’ve gotten one step closer in protecting them, their homes and our own survival as we enter an unknown era of climate change. Our economic and climate change efforts need to aid their survival. For as the Orca go, so go we.”

An opportunity to bring Sk'aliCh'elh-tenaut home 

 As a result, in July 2019, Squil-le-he-le and Tah-Mahs announced an intent to sue the Seaquarium for a violation of the Native American Graves Protection and Repatriation Act (NAGPRA), in order to elicit Sk’aliCh’elh-tenaut’s release.

 Previous lawsuits have tried to release her but to date have been unsuccessful. These lawsuits largely fall under the purview of the Endangered Species Act and the Animal Welfare Act. NAGPRA could be the missing link. Under this federal law, enrolled tribal members of federally recognized tribes may request the respectful return of  remains, funerary objects, sacred objects, and objects of cultural patrimony held by an institution. As the National Park Service states: “By enacting NAGPRA, Congress recognized that human remains of any ancestry must at all times be treated with dignity and respect. Congress also acknowledged that human remains and other cultural items removed from Federal or tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, and Native Hawaiian organizations.”

 Therefore, NAGPRA has the ability to incorporate the culture and traditional knowledge of Indigenous peoples, and in particular honor their rights, which has been underutilized in previous attempts to bring her home. Sk’aliCh’elh-tenaut is not only family, but the embodiment of spiritual and cultural power and tradition. The relationship that exists between both Ellie and Raynell is one that contains both tangible and intangible cultural and spiritual properties. As Dr. Kurt Russo said, “NAGPRA is about cultural patrimony. This is not just about a single killer whale and two people, it’s about an essential sense of belonging that cannot be adequately expressed in legal language.” In 2018, the Affiliated Tribes Of Northwest Indians passed Resolution #18 -32 in support of the Lummi elders beliefs, recognizing that Sk’aliCh’elh-tenaut’s “capture and captivity are all one interconnected and continuous crime against nature and a violation of our ancestral cultural values such that it is our sacred obligation to reunite her with her family where she can assume her rightly place in the natural order, live out the remaining decades of her life in accordance with natural law, and help bring healing to the past trauma of L-pod.”

Earth Law Center works to transform our relationship with Nature

 ELC believes that it is long past due to return Sk’aliCh’elh-tenaut to her native habitat and ancestral waters. ELC works to advance ecocentric law, aligning human rights with Indigneous worldviews. Indigenous people worldwide are at the forefront of standing up for and defending the Earth. In the traditions of many Indigenous peoples, everything is rooted in their original instructions, or cosmovision; everything is connected and we are all related. It is our responsibility as humans to live in harmony with Mother Earth, because She is the reason for our being. She is our air, our water, our food and our shelter. Every component of the Earth, whether living or nonliving (abiotic or biotic) plays an essential role in maintaining life, and the critical cycles and relationships on the planet. We do not yet know what impacts our development will have on future generations. We have an obligation to leave the Earth no worse, and better, than what we received.

It is also our moral and ethical responsibility to honor the culture and values of our Indigenous peoples. Western law and society has largely lost sight of natural law, and Indigenous sovereignty (collective Indigenous rights); our laws fail to acknowledge that humans are a part of Nature and that the Earth’s systems have limits. The graphic below illustrates this well; current law is human-centered and places us, and the economic system on a higher level than Nature, when in fact humans belong as an equal part of Nature. 

ELC, therefore, seeks to fix the inherent flaws in our legal systems, and shed light on the growing awareness that Sk’aliCh’elh-tenaut and Orcas as a species, are living beings, with family relations, culture and knowledge of their own. We are committed to protecting the worldview and culture of our Lummi partners, and respecting and honoring the larger ecosystem of which we’re all a part.

 It’s quite simple really; our current legal system thinks of species and ecosystems as “objects” “property” or “natural resources.” This same system views Orcas as animals to be used for profit, rather than kin. What if we were to liken Orcas to family relations as the Lummi do? Orcas are sentient and intelligent beings, they feel emotion, grieve, form deep bonds, work and travel together, and have a sense of culture within their pods-- all traits shared with the human race. As kin to us, qwe’lhol’mechen and Sk’aliCh’elh-tenaut have rights, just like humans have inherent rights just for being. When our children are born they may not know what rights they have, or be able to speak up for such rights themselves, but their parents or guardians can speak on their behalf. Just as most would not let their child knowingly starve, be taken from them or be subjected to cruel treatment, Squil-le-he-le and Tah-Mahs are doing the same for Sk’aliCh’elh-tenaut.

 “Our belief is that not only the salmon and qwe ‘lhol mechen [Orca], but all the air, the land, the water, the creatures, they all have inherent rights,” says Dr. Kurt Russo, Lummi Nation. Thomas Berry defines rights as the freedom for all beings to fulfill their duties and responsibilities in the Earth community. In particular, there are three rights for every member: the right to be, the right to habitat and the right to fulfill its role in the ever- renewing processes of the Earth community. As a family member, Sk’aliCh’elh-tenaut has the right to be with her family, free from captivity and home in the Salish Sea. We can certainly seek new laws and policies that reflect this recognition, such as many laws now emerging worldwide under the ‘Rights of Nature’ movement, but ultimately, our values must change. We must redefine and transform our relationship with Nature and the Earth; we must recognize that we are a part of and dependent on a larger community; and we must recognize that we cannot continue on the path of destruction and dominion without consequences.

Join us in supporting  Squil-le-he-le and Tah-Mahs’s quest to bring home Sk'aliCh'elh-tenaut. We hope you will continue to follow along in the coming weeks, as we delve deeper into the story of Sk’aliCh’elh-tenaut, Indigenous cultures and rights, the movement towards legal rights for animals, and our advocacy and actions to encourage her return back home to her family. 

 If you want to support: please sign and share our change.org petition.

There is also a broadcast on Indian Country Today with Squil-le-he-le and Executive Director Grant Wilson.

Robert Pittman- NOAA

Donate today.

Learn more at www.sacredsea.org. 

Nature Has a Right to a Stable Climate System: Lessons from the Climate Change Youth Lawsuits

“YOUTH_v_GOV_IMG_1707-1” by Peg Hunter is licensed under CC BY-NC 2.0

By Ella Johnson

Introduction from Earth Law Center:

Within the past three centuries, the definition of what a “right” is and to whom it is owed has shifted. Rights that we take for granted today—such as the right to vote, bodily autonomy and freedom from discrimination—were previously unrecognized or even seen as fringe beliefs in the not so distant past. In this week’s blog, Ella Johnson argues that the impeding climate catastrophe of global warming will lead to greater acceptance of a new right, the right to a stable climate. This right is urgently needed for both humans and all other life on Earth. The legal movement to recognize the right to a stable climate has had some success, as well as some disappointing setbacks, but the author argues that coalition building between various youth and environmental groups and Rights of Nature-centered initiatives could be more effective in swaying public opinion and spurring future action.

The Current Climate Crisis

Scientific evidence overwhelmingly indicates that climate change poses an existential threat to humanity. With 1°C of warming already reached since preindustrial times, we face an increase in severe droughts, heatwaves, wildfires, and other extreme weather events;  250,000 human deaths per year (and rising);  and nearly 1 in 6 species at risk of extinction.

If things do not change soon, the situation will only get worse. Governments are failing to meet their current commitments under the Paris Agreement (the most recent international climate treaty). Even if governments met all of the commitments in the treaty, the world would warm to 2.8°C by 2100 according to the Climate Action Tracker, a scientific analysis by Climate Analytics and New Climate Institute that tracks climate pledges and climate action by nations.

The international community has been trying to solve this problem for over four decades. If we are going to succeed, we need a new approach.

Youth Climate Change Lawsuits

A lack of governmental regulation of carbon emissions threatens the liberty of billions of the worlds inhabitants to breathe clean air, drink clean water and be free from the fear of climate catastrophe and the loss of home and livelihood that that would bring. It also threatens the very existence of countless animal species and ecosystems.

Young people, who have never known a time when climate change was not widely understood to be a serious threat, have become some of the most vocal and passionate advocates for climate justice. However, their advocacy has not borne out their minimum and reasonable demands for reduced carbon emissions and the hope of a future without fear of climate instability.

One avenue that youth advocates have taken in response to the failures of their government to guarantee climate justice is to act as the role of plaintiff and sue their government for depriving them of their right to a healthy climate. The young plaintiffs in these cases are typically tasked with proving two basic argument: first, that the government is culpable in contributing to climate change by failing to act to curb carbon emissions, and second, that this negligence violates the plaintiffs human rights—mainly the right that the youth and all future generations have to inherit a healthy and habitable climate. 

While giving their testimony in these lawsuits, youth advocates have aimed to show the damages they have suffered as a result of unchecked emissions. They have described the destruction of their family’s homes in climate change spurred disasters, decreased production on their family’s farms, loss of forests that they depend on for cultural traditions, and a loss of freshwater that they need for drinking, hygiene, and recreation. The testimonials of these youth advocates emphasize that climate change impacts every aspect of our lives as human beings and the right to a stable climate is a prerequisite to every other guaranteed right.

“Supporters of the Youth Climate Lawsuit Against the Government Chicago Illinois 10-29-18 4997” by “Charles Edward Miller” licensed under CC BY-SA 2.0

Juliana et al. vs USA et al.: A Youth Climate Change Lawsuit

One of these youth lawsuits, Juliana et al. vs. USA et al. (2015, has become a landmark case on the subject of climate stability rights. The petitioners in Juliana are 21 young persons, the nonprofit Earth Guardians, and all “future generations” as represented by former NASA scientist and climate activist James Hansen. In the suit, the plaintiffs claim that the U.S. government is depriving them of life, liberty and property by sanctioning fossil fuel emissions and thus allowing for climate change to accelerate.

Juliana worked its way through the court system and received media coverage from high profile news outlets like the New Yorker, who wrote that the “right to a stable climate is the constitutional question of the twenty-first century.” The lawsuit received notable media attention again in 2016 when Judge Aiken of the U.S. district court of Oregon refused to dismiss it, stating that a clean environment is a fundamental right.

In 2020, five years after the lawsuit began, the case was dismissed by the Ninth Circuit Court of Appeals in a close 2-1 decision. Writing for the majority, Judge Hurwitz argued that the remedies that the suit would necessitate—wide-reaching policy changes—went beyond the court’s jurisdiction.

What is interesting about the Juliana case, is that the court did not dispute the plaintiffs’ claims of harm, nor that the government was responsible for them. However, they also did not see the case as a matter of “rights,” and thus were not emboldened to rule in favor of the plaintiffs. If they had seen the case as a matter of human rights, then policy changes (which are always outside the jurisdiction of the court) would have been no obstacle. An example of the court choosing to protect human rights despite not being able to control policy implementation can be found in Brown vs. Board of Education, where the court ordered schools to integrate without concerning themselves with the policy specifics on the ground. This comparison, between Brown vs Board of Education and Juliana was made by Judge Staton in her famous dissent of the court’s opinion, where she states with some sarcasm, "my colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.”

Turning back to climate change litigation, a similar approach to Brown vs. Board of Education was taken in 2019 Urgenda case in the Netherlands. Here, similar to the Ninth Circuit Court of Appeals in Julianna, the Dutch Supreme Court did not want to overstep its authority and infringe upon the powers of the other branches of government. However, the Dutch Supreme Court found that it could still order emissions reductions (a human rights issue) so long as the other branches of governments could determine the means of making those reductions (a policy-making issue).

Extending Rights to Nature

Our current legal system has proved insufficient in assuring the right to climate stability. The Rights of Nature movement can provide an alternative to our current legal system and reshape the way we think about the environment and our right to climate stability.

The Rights of Nature framework is a school of thought that conceives of animals, plants, and ecosystems as living beings with rights of their own to exist, rather than as property. The Rights of Nature framework emphasizes that humans are a part of these systems and that our health is dependent upon Nature’s. One of the principles of the Rights of Nature framework is that nature should be allowed direct legal representation in court and other legal processes.

The Rights of Nature movement challenges key assumptions that our current legal frameworks make, including that only human needs and desires should be taken into account when making decisions. Instead, the Rights of Nature movement considers the right of all living beings to exist. As Earth Jurisprudence scholar Thomas Berry states: “human rights do not cancel out the rights of other modes of being to exist in their natural state.”

The Rights of Nature movement emphasizes the importance of ecosystems, or the interconnected survival of all species in concert. This understanding of ecosystems shows that the choice between immediate human needs and climate stability is a false one, as meeting any immediate human need that threatens the climate will make it impossible to meet human needs in the future. Therefore, the choice between profit and health is no choice at all.

Applying a Rights of Nature Framework to Climate Advocacy

A Rights of Nature framework fits naturally within the climate justice movement. One of the only differences between the two is that while the Climate Justice movement has thus far advocated for climate stability on the basis that it is a human right, the Rights of Nature movement advocates for the right of all living beings and their environment by proxy. 

This theory of rights as being for all living entities provides many benefits. It forces us to reconcile the rights of our environment with our immediate desires. It also asks us to consume with care so that Earth’s ecosystems can thrive and are still available for future generations.  Finally, through enforceable rights-based standards, it ensures that humans live within Nature’s limits not just for our own benefit, but for the benefit of all life. The application of the Rights of Nature framework, which justifies long-lasting environmental and human stability over profit, can help Climate Justice leaders in their work and advocacy by integrating a new voice into the debate: that of Nature itself.

Aerial view of the Amazon Rainforest from Wikimedia Commons licensed under CC BY-SA 2.0

Successes and Setbacks within the Colombia Youth Climate Lawsuits

Around the same time that the Juliana case was introduced, another youth lawsuit was being filed in Colombia. This lawsuit, which drew comparisons to Juliana, was filed by 25 young people with the support of Dejusticia, a Colombia-based research and advocacy organization. In the lawsuit, the plaintiffs claim that both the deforestation of the Amazon and the impacts of climate change impede on their rights to a healthy environment, life, health, food and water. In Colombia, deforestation of the Amazon is the main source of carbon emissions, generating approximately 180 million tons of carbon per year.

The Supreme Court of Justice agreed with the youth. The court granted the youths’ petition and ordered the government to halt deforestation and adjust existing land management plans with an eye toward climate change mitigation and adaptation. Furthermore, the court also recognized the Colombian Amazon forest as a legal entity which the government has a duty to protect, conserve, maintain, and restore. This was a win for climate activists and proof that Rights of Nature can win in major courts and are supportive of other climate justice movements.   

However, it is important to note that even with the positive ruling, government action in response to the youths’ demands has been slow to materialize. In 2019, Dejustica reported in a press release that the 25 youth plaintiffs would return to the court to seek a declaration that the government and other defendants have failed to fulfill the four orders the Supreme Court of Justice mandated. As of 2019, Dejustica claims that “the government’s proposed development plan has no commitment to reduce forest loss. On the contrary, the plan’s deforestation goals would allow approximately 800,000 hectares of forests to be cut down in the next four years.”

No More Loose and Incentive-based Commitments: Rights of Nature in Practice

As the youth lawsuits demonstrate, current climate change solutions are failing. Commitments to greenhouse gas emissions reductions are insufficient.

Other popular solutions such as REDD and geoengineering have major flaws and are incompatible with the Rights of Nature. REDD, led by the United Nations and others, seeks to reduce emissions from deforestation and forest degradation in developing countries by allowing rich countries to continue to pollute if they pay developing countries to preserve their forests. Keeping existing forests around will not be enough to stop climate change if emissions by wealthy countries are not stopped, as well. Nor will geoengineering solutions that pull carbon out of the atmosphere make it safe to keep emitting, because the technology needed to pull carbon out of the atmosphere is not yet proven and may never be feasible at the scale required to slow climate change.

The technology needed to create renewable energy from a variety of sources does exist, however. Though it will take time to transition our energy grid, we are ready to drastically slash emissions. If a Rights of Nature framework were implemented in climate change decision-making, “false solutions” such as REDD and geoengineering would be disregarded, as Rights of Nature requires us to address climate change at its source.

What does Nature’s right to a stable climate look like in practice? Consider the follow tenets:

1.     There is no “right to pollute” carbon, including by developed countries who can afford carbon credits. All countries must make necessary reductions to their emissions, with developed nations providing significant financial support to help developing countries do so. 

2.     Countries are legally bound to rapid de-carbonization to achieve net-zero then net-negative emissions in the near future, limiting near-term temperature increases to well below 1.5 degrees Celsius above pre-industrial levels and then fully stabilizing the climate system.

3.     Ecosystems have a “seat at the table,” both internationally during climate change negotiations as well as within domestic legal processes.  Nature may become an official party to climate change agreements if it wishes to do so.

4.     The global community commits to economic systems change by challenging overarching models of production and consumption, fully de-carbonizing in the near-future, achieving zero conversion of natural forests and supporting community forest management, living well within all planetary boundaries, and empowering Indigenous communities to serve as stewards of all ancestral lands.

5.     The Rights of Nature is recognized globally and is legally enforceable as a fundamental right. Nature’s right to a stable climate in particular is recognized and put into practice through enforceable climate change action plans.

Earth Law Center Advocates for Rights to a Stable Climate

Given the need for change in our decision making about the environment and the potential of a partnership between climate justice and Rights of Nature, ELC is launching a new “Right to a Stable Climate” initiative. The initiative will build on the work done by the climate justice movement through youth lawsuits to prioritize the human right to a stable climate by fighting for the right to a stable climate for all living entities. To accomplish this goal, ELC will partner with organizations and communities internationally to transform our law.

This initiative focuses particularly on assisting island nations and their communities, who are disproportionately affected by climate change and are some of the strongest proponents of climate action. Island nations represent just 5.3% of Earth’s land area yet are home to 19% of bird species and 17% of flowering plants. They are highly vulnerable to threats posed by climate change, including sea level rise, salinization of freshwater sources, and damage to coral reefs from ocean warming and acidification. Establishing the Nature’s right to a stable climate for island nations (or any other countries) can help permanently protects nature in the face of climate change and provides a platform for conservation partnerships.

Stay tuned for the next blog in this series to delve into this initiative further.

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Nature Runs For Mayor In Clearwater, Florida

Guest Blog by Elizabeth Drayer

A SEA TURTLE FOR MAYOR? WHY NOT!

            Six months ago, I donned a turtle suit and marched into the city clerk’s office in Clearwater, Florida. My mission: to enter a sea turtle in the mayor’s race. The clerk and her staff exchanged smiles, then puzzled looks. Was this turtle serious? They accepted my filing, but called me back to city hall the next day. The city attorney had determined non-humans couldn’t appear on the ballot. Would I agree to run as Elizabeth “Sea Turtle” Drayer instead? Challenge accepted.

So began my quest to give nature political representation in government. As a lawyer and environmental advocate, I realized years ago that our current laws can’t stop ecosystem decline. As long as sprawl and pollution generate profit, nature won’t stand a chance. We must change the system, and legal personhood for nature is step one.

Step two is political representation -- electing guardians to legislate in the best interests of nature. Natural resources sustain human life, so why don’t they rate representation in Congress and state legislatures? When I saw two pro-development candidates file to run for mayor in my town, I decided it was time to put nature on the ballot.

            Announcing my campaign in a turtle suit invited laughter but also significant interest. Local news outlets interviewed me, as did The Hill, a national publication. The point of the costume was to convey a clear message: nature needs a voice in government. As mayor, I’d act as guardian for ecosystems, voting in the best interests of air, water, wildlife and plants. This wasn’t the usual environmental campaign pushing recycling and plastic straw bans. This was a real effort to change the game.

FIRST THEY IGNORE YOU, THEN THEY LAUGH AT YOU, THEN THEY FIGHT YOU…

            Predictably, many tried to trivialize my campaign, including other candidates. One suggested I drop out of the race because I’d steal votes from his “serious” run. Community leaders declined to meet with me; no consultants or campaign manager types wanted to help me. Even liberals were a hard sell. “Clearwater’s an aging, conservative town and they’ll never buy what you’re selling” I was told again and again.

When I took my message to residents, nature rights drew raised eyebrows. Most listened politely to my pitch before sharing their own concerns. “Will you raise taxes?” “Our neighborhood park has no bathroom.” “We need a left turn lane in front of the mall.” The issue of greatest concern was the dominance of the Church of Scientology, whose adherents have bought up a large swath of property in downtown Clearwater. The fact that our beach community will be swamped by a few feet of sea level rise didn’t worry most people, nor did the wholesale paving of our natural areas. Many cared about environment in a general way, but were resigned to the wall of concrete on the beach as the sad consequence of “progress.”

For the next six months I pressed on, determined that nature rights get a real hearing. I fielded questions at forums, gave speeches to neighborhood groups, knocked on thousands of doors. I accepted no campaign contributions because turtles and trees can’t write checks. Nature was a huge underdog compared to my three well-connected opponents, two of whom served multiple terms on the city council, including a two-time mayor with a six-figure campaign fund.

Still, little by little, I garnered support. From residents in a mobile home park where the owner had razed dozens of old oaks. From neighborhoods fighting commercial rezoning alongside their quaint streets. From people fed up with nightmare traffic in a city with little public transport. Volunteers stepped up to knock on doors, make phone calls and wave signs. Leaders of bird and native plant groups endorsed me. Sierra Club and the National Organization for Women got behind my campaign. The more I talked, the more people listened.

ELECTION NIGHT - WOW!

Though I lacked connections and big money, Elizabeth “Sea Turtle” Drayer won 24% of the vote, placing second in a four-way race. I was baffled yet thrilled, never expecting this kind of showing. My goal was to put nature rights on the ballot and use the platform to spread the word. People actually voted for nature! Who knew?

LESSONS LEARNED

            Though I felt compelled to stand up when I saw pro-development candidates running for mayor, I should have started a year in advance laying the groundwork for a campaign. Through preparation, I could have mastered the technical side of campaigning and made important connections. Of course, experience is often the best teacher, and walking the walk was itself an education. Trying to spread the word about nature rights beyond Clearwater was a big task which I should have asked someone else to take on.

            The biggest challenge, though, was broadcasting the nature rights message while addressing non-nature issues. People would say, okay, you care about wildlife, but what about pensions for police and rising rents? What about humans? We need to convince voters nature protection is about humans -- these resources are vital to our survival and require representation by guardians committed to their well-being.

All these lessons can help other candidates who want to run in the future. Oh, I forgot the most important one -- don’t sprain your ankle six weeks before Election Day. That really takes the spring out of your step.

WHAT IS NEXT?

            Nature rights made a splash in one Florida city.  Now the challenge will be to get other candidates running in other towns, especially progressive ones where they can win. I’m ready to help anyone who wants to take on this challenge, and have high hopes we can pave the way for real change. Don’t let this experiment end with me! Let’s ride this wave and take nature rights to voters everywhere.

Emerging Education Initiatives In Earth Law

Photo by Iñaki del Olmo on Unsplash

By: Whitney Richardson

Introduction from Earth Law Center

This is the first post in Earth Law Center’s education series. Each post in the series will focus on educational initiatives that the Earth Law Center has created or promotes to benefit the public intellectual conversation around rights of nature initiatives. In this blog post, Earth Law Center contributor Whitney Richardson speaks about her personal experience studying Earth Law as a graduate student, as well as two new Earth Law educational initiatives, an Earth Law master’s program in Ecuador and the Earth Law Center’s first ever Earth Law textbook. The next post in the series will cover Earth Law Society, a membership based program founded by the Earth Law Center that will host debate panels and guest speakers at colleges and universities.

EARTH LAW Advocacy & Education

Advocacy and education work in tandem. The philosophy underlying Earth law far predates its adoption into law and informs lawyers and advocates who translate them into the legal context. The next natural step in the evolution of the Earth law movement is to formalize educational programs as a means to further develop it. Education programs can tell us where Earth law has come from and why, as well as where it’s been and is going.

Education brought me to ELC in the first place. I discovered Earth law as a Master of Science student in International Environmental Studies at the Norwegian University of Life Sciences. When discussing the intentions behind the term “ecosystem services,” I asked my professor if there was already a corresponding framework to communicate our responsibility to provide services to the Earth in return. He then directed me to the growing legal movement to recognize Nature’s rights to life.

This movement helps to formally consecrate our responsibility toward Earth; it does so by legally recognizing Earth’s intrinsic rights to exist and evolve. I learned that this rights-based legal framework protects and defends Nature for its intrinsic value and ensures harms done to Nature are considered by law.

From that day forward, I have centered my studies around this interest in emerging Earth law frameworks. I was drawn to this movement because it is value-driven – not in terms of economic value but, rather, in principles, ethics, and an innate desire to defend what matters most. Earth law recognizes the undeniable reality that human life has emerged from other life on Earth, and that it is our responsibility as humans to protect it.  By re-centering Nature’s intrinsic value in legal frameworks, we can begin to level the playing field against short-sighted profit interests that are harmful to human and non-human communities at large.

Earth law has been encoded in indigenous laws for millennia. A relatively recent codification of the law and the principles it contains can be found in Thomas Berry’s theory of ‘Earth Jurisprudence’ which argues that humans are a part of a larger ecosystem, wherein our welfare is dependent on the welfare of the earth as a whole.

One of the earliest practical applications of the law can be traced back to 2006 when Tamaqua Borough, Pennsylvania became the first U.S. municipality to adopt a local ordinance recognizing the rights of nature to exist in response to concerns over industrial toxic dumping in their community.  As momentum for Earth rights movements continues to build worldwide, educational initiatives that seek to develop knowledge of the movement continue to build as well.

In the year 2020, two major developments in Earth law education will hit the world stage -- an Earth rights-focused Master’s program that will begin in Quito, Ecuador and the release of the first Earth Law textbook.

Chimborazo, Ecuador; Photo by Fernando Tapia on Unsplash

OP-TIN Launches First Earth Law Master’s Program, Ecuador

For those familiar with Earth rights history, you may know that Latin America has paved the way for the development of Earth law worldwide. In 2008 and 2009, Ecuador and Bolivia became the first two countries to recognize Earth law, by placing the Rights of Mother Earth directly into their constitution and natio collaborative effort by 8 partner universities engaged in OPT-IN (The Intercultural Transnational law, respectively Shortly after, Bolivia pioneered a proposal to the UN to formally adopt a charter recognizing the rights of Mother Earth on a global scale.

Latin America continues to pave the way, as it prepares to host the first Earth law Master’s program – Interculturalidad, Paz y Derechos de la Naturaleza [Interculturalism, Peace and Rights of Nature] – at the Universidad Andina Simon Bolivar in Quito, Ecuador. The program will be led in Spanish, and the first cohort begins in October 2020.

The program is a product of an international, ational Operators Project). The mission of engaged universities is to defend Nature and build peace, by promoting cross-cultural exchange across academies and protecting diversity in its multiple expressions.

This year, I was able to travel to Colombia to investigate the emerging Earth law frameworks in the country. I had heard Adriana Rodriguez, Program Director of the forthcoming Master’s, present on a panel at the Foro Internacional de los Derechos por la Madre Tierra [International Forum of the Rights for Mother Earth] (read more about the conference here). In the panel, she discussed interculturalism, or the importance of cross-cultural dialogues, as a central component to Earth rights law.

Over coffee and fruit-drenched waffles one late afternoon, Adriana told me all about the program. I listened with delight, and I am excited to report what I learned from her. First, the basics: in 2017, Europe’s Erasmus network funded the development of the Master’s program. Ecuador was chosen as the host site, for being the first country to include Earth rights in the constitution. The Master’s invites participation from both lawyers and non-lawyers, by offering sociopolitical perspectives and context on public policy and litigative/legislative strategy.

The program serves a dual purpose in the context of Earth law in Latin America. First, it provides a much-needed platform to navigate juristic pluralism and strategies for intercultural cooperation in defense of Earth systems. Second, it recognizes the link between defense of Nature and defense of territory. Across Latin America, profit-driven extractivist models have spurred violence and conflict, causing grave harm to both humans and Nature.

In early September 2019, OP-TIN hosted two simultaneous 3-day-long seminars with course contents presented by participating professors from the forthcoming Master’s program. (Check out the link to the 3-day seminars to get a taste of what the Master’s program offerings will include.)

I sincerely hope those of you who are Spanish-speaking and Spanish-speaking hopefuls share information about the program with interested friends. It is open to students and professionals from a variety of backgrounds. Like many Master’s, the program will take place over a 2-year period and will admit up to 30 students per year. Admission to the program follows typical admission procedure to the host university.

ELC Advancing Earth Law Education, USA and Beyond

Earth Law Center drives Earth law education through a significant number of avenues.

First, ELC created mock trials for high school students centered on Earth law. These serve multiple purposes. Students become more familiar with Earth law and the American legal system’s structure and trials procedure. Students learn about Earth law in an applied sense and, in the process, practice vital communication skills – such as working effectively in teams and public speaking.  Also, mock trials provide insight into career pathways, inviting interest in the professional field of Earth law. Mock trials have taken place near ELC’s old home base in Brooklyn, NY, USA, with the Brooklyn College Community Partnership.

Secondly, ELC designed and has offered the ‘Earth Law’ course with Vermont Law School for the last 6 years; designed specifically for students engaged or interested in environmental law. Students learn how to discuss Earth Law, how to change the anthropocentric language of existing law to that which is ecocentric, the successes and challenges of the movement, and varying advocacy strategies and techniques to advance Earth law. Ocean Rights Manager at ELC, Michelle Bender took the class 5 years ago while at Vermont, and speaks highly of the experience. As a companion program to the Earth Law course, ELC also offers Earth Law Clubs as law schools – many of which have seen a spike in recruits as of late.

As Michelle Bender relays her experience, “I was taking all these classes on United States environmental law, and I was thinking that we just needed to better implement these laws. But the Earth Law course opened my eyes. I realized pushing for more implementation will not do the trick, the laws are flawed and not designed to have the Environment’s interests in mind. Not only did the course change how I thought about law, but it offered hands on practice in pushing for this paradigm shift. At the end of the course we had a project to participate in a mock community meeting on the Delta Tunnels in California. My group were fishermen advocating against the tunnels, and we decided to have one of our team members present as a coho salmon, and speak on behalf of the salmon. It seemed almost comical at the time-- but now that I am doing work to save the Southern Resident Orca’s in WA, I am consistently speaking on behalf of the salmon and Orcas and being their voice. It really comes full circle.”

ELC’s legal education initiatives continue to develop. Late this year, ELC will launch an Earth Law Society, similar in form to a Federalist Society. The Earth Law Society will advocate for an interpretation of the U.S. legal system aligned with Earth Jurisprudence. Subscribe to ELC’s newsletter and find out how to join the Earth Law Society when it launches.

Stowe, Vermont; Photo by Clay Kaufmann on Unsplash

First Earth Law Textbook

Inspired by the aforementioned efforts, Earth Law Center is getting set to launch the first ever textbook on Earth law with Wolters Kluwer in 2020! The textbook is geared toward law schools and universities across the US, but contains a wealth of knowledge for any audience regarding the Earth law movement globally.

As a basis, the textbook will review centuries of United States case law, legal precedents, and comparable legal components of Earth law, such as legal guardianship. It will review legal arguments to assign rights to Nature, including the rights of animals. It will also include arguments for the International Criminal Court of Justice to adopt ecocide law, and arguments for the rights of future generations (also known as intergenerational rights, or intergenerational justice). It  will also present case studies demonstrating the contemporary development of Earth law and Earth jurisprudence around the world.

From a conceptual standpoint, the textbook emphasizes an essential perspective shift – that Earth makes life possible, and that humans and Nature are interdependent. It is with this understanding that legal systems are to recognize the rights of Nature to exist, thrive and evolve. This legal transformation is seen as necessary to address growing environmental crises such as climate change.

Subscribe to ELC’s newsletter to get a pre-order link when it’s available!

Want ELC to participate in your education initiative? ELC regularly participates in speaking events at law schools and universities. Contact us (info@earthlaw.org) to schedule something.

Rights for a Free Snake River

“Snake River in Idaho” by Becherka - Own work, Public Domain

By Eliana Miller

Introduction

The four hydroelectric dams on the lower Snake River have pushed salmon populations to the verge of extinction. Their depletion has spelled disaster for a native ecosystem of over 135 other flora and fauna, including killer whales, otters, and old-growth trees. Experts are unequivocal that the removal of the dams is the only way to save salmon. Yet after decades of failed lawsuits, federal decrees and court decisions the salmon population continues to drop at alarming rates. In this blog post, Earth Law Center argues for a rights-based legal approach to revitalize and restore salmon in the Snake River.

Environmental Background of the Snake River 

The Snake River’s history is a case study in environmental damage and disregard for natural ecosystems. Once populous salmon populations have suffered at the hands of overzealous damming, of which there are now fifteen on the river, including four dams on the Lower Snake River alone. The four dams situated on the Lower Snake River have received notable opprobrium for their pernicious effect on native Salmon, with little economic or renewable energy benefit to justify their continued existence.

Advocates for the removal of the dams have cited high mortality rates of juvenile and adult salmon as they complete their migrations, with the USGS writing that Snake River Sockeye Salmon are “probably the most endangered salmon” and scientists predicting complete extinction of Columbia basin Salmon within the next two decades. A report released in 2019 revealed some of the lowest rates of salmons returning after their run, with only 15% of pre-dam returns for sockeye and chinook and only 3% for steelhead.

The disappearance of native salmon is also an existential threat to predator species including the Southern Resident Orcas. In late 2018, six leading killer whale scientists penned a letter to Governor Jay Inslee expressing an urgent need to “permanently restore the Snake River by removing the lower Snake River dams,” without which the continued survival of Orcas would be threatened. The parasitic eel-like Lamprey, a food source and symbiotic partner of the salmon, is also experiencing concerning drops in population.

The degradation of the Snake River has also had a disproportionate effect on tribes who live in the Columbia River Basin, including the Nez Perce, a federally recognized tribe located in north-central Idaho. As reported by the National Resource Defense Council, the current depletion of salmon threatens not only their access to nutrition – what John Sirois, committee coordinator for the Upper Columbia United Tribes has called a “food justice issue” – but also their cultural heritage, they cast lines in the same places that their ancestors fished. Julian Matthews, treasurer for Nimiipuu Protecting the Environment, a nonprofit organization led by Nez Perce tribal members, expressed concern that these traditions will not exist for future generations if the salmon populations fail to recover.

The four dams on lower Snake River © OpenStreetMap contributors

A Legal History of the Snake River ‘Salmon Wars’

The four dams on the Lower Snake River have been met with more than just decades of public consternation – they have also been the subject of legal response. The history of the ‘salmon wars’ can be traced back to 1855, when the United States government convened a series of sham treaty councils to coerce the Columbia Basin tribes, including the Nez Perce, to sign away millions of acres of land in the Pacific Northwest. Although both major treaties of 1855 and 1863 stipulated that ancestral tribal fishing rights would be left intact, in practice these treaties quashed what little was left of native sovereignty over the river.

In response to growing public outcry over the plight of the river, by Nez Perce tribe members and non-tribal members alike, Jimmy Carter signed the  Pacific Northwest Electric Power Planning and Conservation Act into law in 1980. The law was drafted ostensibly with the purpose of balancing a public desire for energy with environmental conservation, but in reality, it would do little more than provide a governmental fiat for continued hydroelectric dam use at the expense of salmon populations.

In Steven Hawley’s book Recovering a Lost River: Removing Dams, Rewilding Salmon, Revitalizing Communities – the product of meticulous research and interviews with the hydropower industry – Hawley writes that the reforms that the law specifies, a coequal and mutually beneficial relationship between hydropower and salmon, failed to meet the bare minimum necessary to protect salmon populations. Over three decades after the Act was signed, there have barely been any changes to provide river flows and spills to facilitate salmon migration.

In the 1990s, after petitions from conservation groups, Columbia River Basin salmon were added to the Endangered Species Act (ESA); however, much like the Northwest Power Act, this development would offer only a false assurance that conditions on the river would change. Despite the introduction of multiple biological opinions (BiOps) during the Clinton, Bush, and Obama eras that were purported to lay out a plan for revitalizing the river, and despite a 2001 lawsuit that alleged that gross federal mismanagement was driving Snake River salmon to extinction, the Columbia Basin remains disproportionately in the hands of the hydroelectric industry.

Illustration by Karen Holt from page 210 of Columbia River Basin Fish and Wildlife Program Salmon Recovery Hearing before the U.S. Senate (1996)

Recent Legal Efforts to Restore the Snake River 

The salmon wars continued into the 21st century. The brinkmanship continues to follow a tiresome pattern of lawsuits and judicial rulings lobbed back and forth between industry and environmental advocates. To illustrate this point: in 2017, conservation groups filed a lawsuit demanding more spills or releases of water over the dams that aid Salmon in their migration.  Federal District Court Judge Michael Simon responded affirmatively and ordered to increase spills on the river. The National Marine Fisheries Service, the United States federal agency responsible for the stewardship of national marine resources, along with two other federal agencies appealed this ruling to the chagrin of environmental advocates and the courts. In 2018, the Ninth Circuit U.S. Court of Appeals responded by affirming Judge Simon’s original ruling. 

However, advocates have repeatedly stressed any judicial attempts to mediate or mandate over the dams is an inferior strategy to removing them. Many conservationists are unequivocal: the dams have to go.  In 2020, after an almost thirty-year battle over the existential rights of Snake River salmon, the outcome is still uncertain.

Proposed Solutions to Save the Snake River

In 2011, journalist Steven Hawley wrote that the early history of the salmon wars was marred by “a skillfully directed symphony of public-relations scams, filthy politics, and crooked science.” This argument holds weight today. The federal government’s symbiotic relationship with industry, an impotent court system, and bad science weaponized by hydropower all help illustrate why previous legislative efforts have failed.

 However, such failures could never have occurred if our legal system didn’t treat Nature as expendable property, only stepping in to protect it when resources or animal populations are near extinction. In this way our environmental legal system is unsound and incoherent. It is nearly impossible to exploit a resource without destroying it, nor is such a strategy sustainable. It is akin to tight-rope walking while your rope burns at one end. The salmon of the Snake River are a perfect illustration of this point, as their existence hangs on the brink, we have to contend with the fact that much of the damage already done is irreversible, and the efforts to undo what we can will be far more arduous then they needed to be, had we not gotten to this point.

The idea that Nature is property also proves problematic when it silences one side of the legal battle. The salmon wars have never been a fair fight. Since the River and the salmon are presumed to be mere property and resources, the voices of hydropower hold primacy. This happened even as decades of public, scientific and judicial oversight argued the opposite – that our collective right to exist within Nature had a stronger argument than the hydropower industry. The decimation of salmon populations in the Snake River is a strong case study for why our environmental legal framework will need to radically change before we will be able to pass law that provides full and lasting protection for Nature.

Ice Harbor Dam on Lower Snake River, Public Domain

Advocacy to Gain Legal Rights for the Snake River

A better way to conceptualize environmental justice comes courtesy of the Nez Perce, who have lived alongside the Snake River for over ten millennia. Their longevity in the area has recently been confirmed by archeological evidence dating back 16,000 years, which would place the Nez Perce as one of the earliest, if not the earliest, aboriginal group to settle on the North American mainland. The tribe’s storied history alongside the river, and their subsequent disenfranchisement as their ancestral lands, fishing sites and cultural traditions have been stripped away by U.S. policy, has given them an intimate connection to the plight of the river –yet, throughout this the Nez Perce have professed a progressive environmental justice framework.

The Nez Perce environmental advocacy organization Nimiipuu Protecting the Environment in particular have been key advocates for a traditional ecological knowledge theory which co-founder and president Elliott Moffett describes as a belief that “all things are connected and sacred.” Moffett compounds on this by speaking about the way in which the Nimiipuu approach poverty eradication, a critical subject considering that the loss of Nimiipuu fishing sites has had a substantial impact on the livelihood of tribal members.

Contrary to certain historic assumptions that environmental conservation is a competing issue to economic concerns, the Nimiipuu argue that poverty eradication and environmental sustainability are inextricable – with human survival and prosperity being predicated on the existence of a healthy natural landscape. As a result, the Nimiipuu have made ecological conservation a part of their poverty eradication program. Furthermore, Nimiipuu Protecting the Environment believes that the best way to achieve these aims is to recognize legal rights for the Snake River. Moffett reiterates his group’s goal as, “prepared to help lead [the] effort to recognize the Rights of the Snake River to exist.”

As a practical application of Moffett’s philosophy, each year his environmental group holds the Nimiipuu River Rendezvous. This event, formally known as "Free the Snake" Flotilla is a mass camp-out on the banks of the Snake River and manages to be simultaneously political protest, community building, environmental advocacy and a public conversation between tribal members, anglers, orca lovers, Idaho residents and Rights of Nature advocates, who all share a goal of restoring the River. As reported by Earth Law Center volunteer Katy Scott, who had the opportunity to attend the event as a featured presenter in 2019, the event was replete with discussions led by tribal members and volunteers about the effect of dams on the River, and what it would take to advance an effective Rights of Nature initiative.

“Free The Snake Flotilla” from Nimiipuu Protecting The Environment

If given legal rights, the Snake River would not be the first in the United States. Earlier this year, the Yurok Tribal Council passed a resolution recognizing Rights of the Klamath River, as a major part of the plan for the largest dam removal and river restoration in the country. Other tribes have recognized the Rights of Nature, as well, including the Ponca Nation (which passed a Rights of Nature statute), the Ho-Chunk Nation (which is advancing a Rights of Nature amendment to its tribal constitution) and the White Earth Nation (who gave legal rights to wild rice). These examples demonstrate the leadership capacity of tribes in advancing Rights of Nature as well as a greater national awareness of alternative systems for conceptualizing environmental law. This feeds into the growing trend internationally for indigenous peoples (along with other frontline communities) to serve as legal guardians of Nature, a role for which they have unmatched legal, cultural, and ethical standing.

The Nez Perce and other tribes have used their environmental justice framework, that humans and the environment must exist symbiotically, to advocate for the revitalization of Nature and more crucially to divest from our current legal conception of Nature as mere property. Earth Law Center believes in this principle, that Nature should be given equal rights, as our existence depends on the existence of our environment.

To that end, Earth Law Center proposes, through working with and supporting tribal leaders, that we adopt alternative solutions to address the salmon wars. Alongside groups such as Nimiipuu Protecting the Environment, we agree that the species that live in and depend on Snake River should be given a voice in the political process. We believe that they have a right to be represented by a legal guardian in decisions and disputes that affect their rights and health, and to be afforded the same fundamental right we give to all humans, including the right to exist and thrive.

Furthermore, these proposals suggest rights for the Snake River itself.  Conceptualizing the issue as one of ‘River Rights’ serves to reinforce and remind us that the River is an interdependent ecosystem. The rights of humans, salmon and orcas can only exist if we have rights for the river as a whole. This idea is not new, rights have already been granted for numerous rivers already, including the Whanganui River in New Zealand, the Atrato River and seven others in Colombia, the Vilcabamba River in Ecuador, and all rivers in Bangladesh. Following on these successes, Earth Law Center plans will include The Snake River in future initiatives with the hope that it, too, may secure its basic rights.

Such a policy will heighten the status of the Nature, solidify its rights to existence as a first principle, and thus lead to environmental law policy that will be in the greater interest of the whole, not just the few.

Learn more about the campaign by emailing Grant Wilson at gwilson@earthlaw.org.

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ELC Partner Delivers Speech Advocating for Ocean Rights

Earth Law Center has partnered with groups and individuals across the Pacific, including Institut de Recherche pour le Développement (IRD), the Secretariat of the Pacific Regional Environment Programme (SPREP) and Conservation International Pacific Islands Programme plan to create a Convention on the Rights of the Pacific Ocean.

In November 2018 the first meeting of partners and groups produced a Statement from the Collective Thinking of those present to be used to invite communities, businesses, and governments to redefine their relationships with the ocean at local, regional and global scales.

One of our key partners advancing Ocean Rights forward is Jacqueline Evans, the former Director of the Marae Moana Coordination Office at the Cook Islands Office of the Prime Minister. Her lifelong commitment has been to the protection of the marine environment in the Cook Islands and received the 2019 Goldman Environmental Prize for Islands and Island Nations for her work to establish Marae Moana, the Cook Islands Marine Park, over the entire Cook Islands ocean territory. 

Photo by: Julius Silver, Aitutaki, Cook Islands

Jacqui recently presented the Keynote Address at the Pacific Workshop on Marine Priorities Leading for the CBD Post-2020 Biodiversity Strategy in Apia, Samoa. Below is her speech. 

“With the lessons humanity has learnt about our environment over the last five decades and the more recent awareness that has been raised about the plight of our ocean, the importance of marine conservation is obvious. The impact of our ever-growing, ever-demanding human species has been devastating on the rest of nature. Since the 1950’s we have removed 90% of all large predatory fish in the oceans . It’s estimated that around 10 million tonnes of plastic reaches the ocean each year . That works out to be 300 kilograms of plastic per second. Climate change is transforming our ocean’s chemistry leading to weaker coral reefs and coastlines more vulnerable to the impact of storms.

Following the growth of the environmental movement in the 1960s and 70s, we can celebrate some successes in the battle to save the planet. The implementation of the Montreal Protocol has turned back the tide on ozone depletion . Many countries are now putting in place policies and legislation to reduce their use of single-use plastics. Two years ago the world’s marine protected areas had increased in size by 25 times since the Great Barrier Reef Marine Park was declared in 1975. But we must do more.

The response to this crisis by the way of such things as Environmental Impact Assessments, protected areas, conventions and legislation has been so grossly inadequate that we now find ourselves asking that the international community recognise that the ocean has rights. The right to perform all of her natural functions, the right to have a voice in all of the decisions that affect her health, the right to clean water and a healthy existence.

We are proud in the Cook Islands that our communities and traditional leaders convinced our parliament to fully protect 50 nautical miles around each of our 15 islands. The percentage of our ocean territory protected from industrial fishing and seabed mining under the Marae Moana Act is 16%, or an area of 324,000 square kilometres, about the size of the country of Malaysia. As for the remaining 84% of our ocean territory, the Act states that any economic or research activities in our ocean territory must be consistent with protection and conservation of our marine biodiversity and environment. This means that with current technology, it is illegal under the Marae Moana Act to conduct seabed minerals exploration activities such as the testing of mining equipment. The only types of seabed minerals exploration activities that can legally be done under the Marae Moana Act are species inventories, low impact geological studies, and non-invasive measurements of oceanographic parameters and marine biological studies. It is illegal to mine the seabed under the Marae Moana Act using mining technology that has been developed to date.

But the effectiveness of this law on protecting the remaining 84% of our ocean territory, is dependent on its implementation. This is an important point, in light of setting our post-2020 targets. We must ensure that we invest in the implementation of marine managed space. For example, unless the Marae Moana Act is enforced precisely, using whole-of-society engagement, we are at risk of unravelling the effectiveness of protections under the Act.

The proposal to set a post-2020 target to protect 30% of our coastal and marine areas by 2030 has arisen from multiple studies. A review of 144 scientific studies of marine protected areas concluded that the required coverage to achieve, maximise or optimise biodiversity conservation objectives is 37% . Another review by IUCN found that the minimum percentage to protect a narrow subset of biodiversity values is 30% but that protected areas need to be selectively located, properly designed, well governed and effectively and equitably managed to achieve biodiversity outcomes.

I know that protecting more of our marine and coastal areas is very difficult to contemplate as a marine manager. I know that as Pacific Islanders when we consider our limited opportunities for economic development and the demands on our governments for sufficient budget to support health, education and infrastructure that protecting such a large proportion of our marine environment is a daunting prospect. But the evidence demonstrates that we need radical change if we are to achieve ecologically sustainable development of our marine resources. The alternative is to undermine the years of effort we have already put into managing them.

What is certain is, if we adopt a 30% marine protected areas target, we need to have clear standards for the remaining 70%. We need to invest in the protected areas that we have established and we need to clearly define what is permitted within those areas.

In the face of globalisation, biodiversity has suffered immensely. The rapid loss of species we are seeing today is estimated by experts to be between 1,000 and 10,000 times higher than the natural extinction rate. The impact of our activities are so enormous that scientists have named this geological period the Anthropocene. The driver of the Anthropocene is human population growth combined with our insatiable appetite for excess. Global meat production is increasing and is the single most important source of the greenhouse gas, methane. Agriculture uses more freshwater than any other human activity with nearly a third required for livestock. The demand for seafood has led to enormous pressure on fisheries. The over-consumption of material goods is driving the mining of minerals and fossil fuels. Even the growth in renewable energy is hurtling us towards a potential future of seabed mining because of the increasing demand for minerals like cobalt and rare earth elements.

In the Cook Islands, as with much of the world, we see our youth becoming increasingly angry about this. Our youth are angry that my generation has failed to deliver on climate change policy. These millennials, growing up in a society that over-values so called “economic development”, are angry that we have failed to reverse the trend of biodiversity decline. But because of this anger, I see a new culture on the rise. This new culture calls for greater transparency and accountability in decision-making. They value a plant-based diet, they value local vs imported produce. They value minimalism and condemn the wasteful, throw-away society that my generation has cultivated. These are the changes that are needed to reverse the horrendous statistics I’ve referred to earlier because they address the never-ending demands of the global economy on our natural resources. We must perpetuate these values.

Let’s use this spark of youth action that defies the culture of over-consumption to ignite a global movement. Let’s push for an increase in protected areas and invest more in their implementation and management. Let’s change the economic framework so that pollution is penalised and sustainability incentivised. Let’s take this opportunity to review our biodiversity targets to reflect the radical and transformative change upon which the survival of our species, and all species on this planet depends.”

ELC held a joint-webinar with the IUCN World Commission on Environmental Law and the Ecological Law and Governance Association (ELGA) on June 18th, 2018 on the emerging movement of Ocean Rights. Presenters included Michelle Bender, Ocean Rights Manager at ELC, Jacqueline Evans, and Barbara Lausche, an international environmental lawyer with over 30 years of experience. You can watch the webinar here. 

To learn more visit our website.

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Advocating for a More Verdant New York: Ecologically Sound and Progressive Policy for Pollinators

Photo by Aaron Burden on Unsplash

By: Zachary Davis

Introduction from Earth Law Center

“Earth law” as a field not only means establishing fundamental rights for Nature and environmental rights for humans, but ultimately requires broad reform throughout the entire legal system to harmonize human law with the laws of nature. This means changes in property law, corporate law, international law, and many other fields. In 2020, in addition to our normal blog content, we will feature guest blogs from frontlines advocates, legal scholars, and activists who are working to change our legal system, from the bottom up, to address the planet’s most pressing environmental challenges.

This week’s guest blog discusses how we can create common-sense policies that support pollinator species (be sure to sign this petition if you agree). It concludes by highlighting Earth Law Center’s new campaign to give legal rights to pollinator populations. 

Pollinators and a Changing Climate

We know that the climate is changing, compounding habitat loss and other threats to pollinators. We know that pollinators are important, including here in New York, where the apples, wines, and berries we pride ourselves on require pollinators to produce their fruits. And we also know that pollinator populations are in severe decline. 

So why is it that our policies, such as the codes which dictate what must be done to maintain our properties, fail to promote the overarching goal of promoting ecological health, including for pollinators? For example, Section 302.4 of the Property Maintenance Code of New York State requires all premises and immediate exterior property to be “free from weeds or plant growth in excess of 10 inches." But this definition has the consequence of prohibiting some native and protected plant species that would support pollinators. 

One reason for this shortcoming is society’s vision of a lawn as needing to be “neat and tidy.” And very green. But we now know that our priority must instead be promoting healthy ecosystems in urban environments, such as by creating flowering “bee lawns” and other pollinator-friendly environments. Fortunately, there are still steps we can all take as citizens and advocates to help pollinators.

Background on Pollinators and Insect Populations

Ecosystems are rooted by pollinators. Without pollinators 75% of flowering plant species could not reproduce, including 35% of the crops we grow for our food. Insects as a whole provide an astronomical $57,000,000,000 in ecosystem services to the U.S. alone. Humans, and other fauna, are therefore intimately entwined with insects and other pollinators, but unfortunately pesticide use, chemical pollutants, and habitat loss have set nearly half of the world’s insect species en route to extinction, and caused the loss of 1 in 4 bird species. 

“Bee Lawn” Best Practices

Fortunately, a growing number of governments are beginning to take action to maintain and restore pollinator populations. The State of Minnesota just devoted $900,000 to be available to landowners who wish to create pollinator habitat on their property. Canada, and many other countries around the globe have banned neonicotinoid pesticides, a major contributor to pollinator decline. Similarly, leaf blowers are being banned in Germany to protect insects.

Times are changing close to home as well. New York’s Albany County was the first to declare itself a “Pollinator Friendly County,” and Ulster County may be adopting a similar resolution. 

“Bee lawns,” which is simply a flowering lawn that supports bee populations, and pollinator-supporting green roofs are wonderful ideas. In fact, New York City recently passed legislation mandating all new buildings have a green roof. Meanwhile, residents of Albany County have created some prime examples of just how beautiful conservation can be by prioritizing yards with perennial native plants rather than grass. 

If you’re a landscaper, gardener, or someone devoted to their yard, then you are in a position to make a great difference in pollinator conservation. At some point I would love to follow suit. 

Figure 1 "A Bee Proud sign in a lawn" by USDAgov

Stop Mowing?

While these programs are admirable, many people—including myself—do not have the time or resources to replace their lawns. I don’t have the funds to purchase the tools and seeds needed to do this myself, unless I had some assistance from my municipality, and I certainly can’t afford to hire a private landscaper to do it. Besides, according to the State Department of Environmental Conservation, wildflowers will sprout from my lawn and help pollinators if I just don’t mow or use pesticides, and I believe conservation shouldn’t be limited to those who can afford it. 

So, I’m done mowing my lawn. 

And technically that’s illegal thanks to New York State’s Property Maintenance Codes.

But what am I left to do? 

I am compelled by this law to destroy the habitat I seek to create. I am compelled to chop up native plants because they are “too tall” according to arbitrary standards. 

Wild bergamot and blazing star, some of the most gorgeous native flowers that can grow in my region, are considered weeds, and destroyed because they can grow taller than a foot. They are destroyed in part because neighbors are worried about property value, and they think that because a yard has tall goldenrod and evening primrose growing on it during the winter to provide habitat for birds and bees, their property value will be negatively impacted.

Why are these outdated values still engrained in our society, particularly in the midst of a global ecological emergency?

In the time of climate change, biodiversity loss, and economic disparity, our laws should make it effortless for homeowners to contribute to conservation, instead of encouraging neighbors to act as lawn police. We shouldn’t have to fear sanctioning and stigma because we wish to promote biodiversity and some folks think that looks “untidy.”

Nature isn’t tidy. We shouldn’t value destruction.

Figure 2 Photo by Jeffrey Hamilton on Unsplash

Restoring Our Relationship with Nature in New York

Imagine a New York that provides resources to municipalities so they can shape their own communities’ conservation initiatives and aesthetics; to keep bees flourishing in our yards, and to put green roofs on our buildings and bus stops, for instance. We have the capacity to become a leader in both conservation and beauty.

But not with ecologically unsound laws on the books.

That is why I have started a campaign to rewrite our codes with ones that are ecologically sound. It’s time that New Yorkers lead the way on the creation of a more verdant New York. It’s time that we stop the destruction. We should enable efforts for conservation; we should set the example of a harmonious relationship with pollinators and other wild species and places. 

Please stand in solidarity with pollinators by signing this petition.

Looking Ahead: Rights for Insect Populations?

While changing local and state law to meet the needs of ecosystems is a good first step, we must also begin to pursue broader, systemic reform that recognizes Nature not as property, but as a subject of rights. Towards this goal, Earth Law Center (“ELC”) has launched a new campaign to recognize the rights of pollinators, including by opposing harmful practices that threaten their existence.

ELC has already drafted a model law to recognize pollinator rights. The law “recognizes the Rights of Nature to exist and flourish, which extends to all ecosystems and all native life forms within those ecosystems, including pollinators.” It also calls for governments to eliminate, repeal, or modify laws, policies, and practices that are detrimental to the life and continued existence of pollinators, including through a moratoria the use neonicotinoids and other insecticides detrimental to pollinators. 

In addition to saying “no,” this law would say “yes” by requiring governments to put into place best-practices that encourage thriving populations of pollinators and other insect populations. Some of these practices are discussed above.

Want to be a trailblazer in the Rights of Nature movement and become the first city, state/region, or country to recognize that pollinators have rights? Contact Earth Law Center at info@earthlaw.org to discuss how we can help.