By Michelle Bender and Grant Wilson
About the authors:
Grant Wilson worked for ELC from 2013-2015 until adventuring in Latin America. He since returned as ELC’s Directing Attorney, taking the lead on our rights for rivers and land-based ecosystem campaigns.
Michelle Bender started with ELC January 2016, assisting full time as an Earth Law Fellow and Policy and Advocacy, transitioning to Ocean Rights Manager in April this year.
The beginning of 2017 marked a time of transition for Earth Law Center. Though we were sad to see our founding Executive Director go, we could not have been more excited to welcome our new leader, Darlene Lee. She exhibited the team leadership and vision necessary for ELC to take our work to the next level, and establish ourselves as leaders of the Rights of Nature movement.
Recap on Oceans
Earth Law Center’s Ocean Rights Program promotes a new paradigm for ocean governance that focuses on the ocean’s own well-being. The program aims to not only establish protection for marine ecosystems, but to ensure these areas are fully protected and effectively managed. ELC’s objectives to ensure this outcome include:
- Creating a holistic and ocean rights-based model framework for marine protected areas.
- Establishing marine protected areas and sanctuaries, and securing legal rights for these areas.
- Ensuring international treaty laws reflect the inherent rights of the ocean (such as through the Marine Biodiversity Treaty for the High Seas and Beyond, currently under negotiation).
- Passing rights of nature laws in coastal communities.
Advancing the Rights of Oceans Worldwide
We gained significant headway in accomplishing our goals in 2017. We kicked off our international oceans work in June with the Rights of the Ocean Initiative at the United Nations Ocean Conference. This initiative not only put ELC on the radar as an ocean conservation organization, but gained ELC valuable partnerships, including in Uruguay, Brazil and South Africa. Building off this work, Michelle presented remotely on ‘Adopting Holistic and Ocean Rights-based Governance’ at the United Nations “6th Annual International Conference on Rights of Nature for Peace and Sustainable Development.”
At IMPAC4 Chile: Susana Claro, Fundacion Los Choros; Sylvia A. Earle, Mission Blue founder; Jennifer Sletten, Protected Seas; and Michelle Bender, ELC
Model framework for rights of marine protected areas
ELC completed a first draft of a model framework for marine protected areas after 500 hours of research and analysis. What originally started out as a 100-page document was trimmed succinctly to a 17-page main document plus appendices. The Framework was launched at the Fourth International Marine Protected Area Conference in Chile early September. It received enthusiastic support from respected ocean champions and organizations, including Mission Blue.
New Partners and Initiatives Worldwide
ELC launched oceans initiatives with new partners, too. For example, Organización para la Conservación de Cetaceos (OCC) and Earth Law Center (ELC) formed a partnership to establish legal rights for the Whale and Dolphin Sanctuary in Uruguay’s territorial waters. Though the Sanctuary was created in 2013, it still lacks a management plan. We started drafting the plan and will schedule stakeholder and government meetings in 2018 to gain consensus on aspects of the management plan.
Additionally, ELC was fortunate enough to work with groups in South Africa to call upon Parliament to amend the new Marine Spatial Planning Bill to include rights of nature and the precautionary approach. A comment letter has been passed to members of Parliament and we look forward to keeping you posted on the bill’s final language.
And finally, ELC was invited to collaborate with the French Research Institute for Development (IRD) on drafting a convention on the Rights of the Pacific Ocean. The objective is to create a treaty that all Pacific Island Nations sign and agree to implement. The treaty will focus on recognizing and respecting specific rights of the Pacific Ocean.
What’s next for oceans in 2018?
We do not want to stop with a successful Ocean Conference. We will kick off next year by getting the Rights of the Ocean Initiative in front of more organizations and stakeholders. Using our connections made in Geneva, ELC will begin outreach to UN Country representatives, in hopes of a UN resolution on the adoption of rights of the ocean into the Treaty for Biodiversity on the High Seas (which is due to begin negotiation in 2018). Additionally, meetings will begin between Pacific Island Nations, stakeholders and organizations to draft the convention on the Rights of the Pacific Ocean. The Treaty is expected to be signed by parties and binding in 2 years.
With regards to the Earth Law Framework for Marine Protected Areas, ELC will finalize the Framework using suggestions and comments gained from the expert ‘Call for Inputs.’ We anticipate officially releasing the final framework on Earth Day 2018 at the EarthX expo in Dallas, Texas, where ELC will be attending with partners Mission Blue.
ELC will also be taking rights of the ocean to Brazil, by inserting this paradigm in ongoing lawsuits through amicus curiae, and to the International Whaling Commission, with a declaration on the rights of cetaceans. You can read more on our key partners here and here. Additionally, ELC continues to draft model legislation for the Patagonian Shelf of Argentina and Uruguay, assisted in large part by Argentinean volunteer Andrea Galassi.
Finally, ELC will align with animal rights groups working to retire captive display cetaceans to seaside sanctuaries to adopt legal rights for these animals and their ecosystems.
Recap on Island Nations Initiative
ELC also kicked off a campaign to promote rights of nature within Island Nations. Establishing rights of nature in Island Nations permanently protects nature in the face of climate change while providing a platform for environmental and conservation partnerships. Prime Minister of the Cook Islands, Henry Puna, spoke on the rights of the ocean at the United Nations Ocean Conference this year. ELC’s Framework for Marine Protected Areas was received enthusiastically by the Office of the Prime Minister and forwarded to relevant agencies with ELC’s offer of assistance.
What’s next for island nations in 2018?
We await follow up with the Cook Islands Office of the Prime Minister and marine affairs agencies and will also be conducting outreach to other Island Nations, including Palau, French Polynesia and New Caledonia. We have also developed an extensive policy document on implementing rights of nature within island nations, thanks to our wonderful Research Fellow, Margarita Lavides. We plan to utilize that document to advise local advocates in numerous island nations on rights of nature law and policy.
Recap on Municipal Rights of Nature Work
ELC continued to push for the rights of nature at the municipal level. This work included ensuring full enforcement and implementation of the landmark Santa Monica Sustainability Rights Ordinance – the first-ever rights of nature ordinance on the West Coast of the United States. For example, ELC is currently working to implement the right of aquifers to sustainability through a proposed ban on new private wells. Additionally, ELC continues to work with San Francisco leaders to pass a law establishing a right to thriving biodiversity.
What’s next for municipal rights of nature work for 2018?
Earth Law Center will seek implementation the Sustainability Rights Ordinance in Santa Monica by working with partners to ensure full enforcement of nature’s rights. Additionally, ELC hopes that San Francisco can become a model of rights of nature activities from which other major cities worldwide can learn. Therefore, we will work to pass new laws and further engage the community on rights of nature, building from previous successes such as two Bay Area Rights of Nature Ethics Tribunals.
Recap on Rights for Rivers
Universal Declaration of River Rights
Earth Law Center's presentation on the Rights of Rivers (click to view).
ELC worked to integrate existing global victories for river rights (including in New Zealand and Colombia), as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Already, ELC’s Universal Declaration of Rights of Rivers was cited in an amicus brief in Patagonia, in support of the San Juan River’s right to flow. It also served as the basis for a rights of nature law in Mexico City (see below) – the first-ever such law in North America. We are also proud that environmental leaders worldwide have endorsed the document.
Rights of Rivers in Mexico
ELC has been working working with local partners – including Cuatro al Cubo and others – to secure legal rights for rivers in Mexico. Based on this effort, the Legislative Assembly of the Federal District included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (“Ley de Sustentabilidad Hídrica de la Ciudad de México”). This landmark water law recognizes that rivers, channels and streams possess a right to flow, a right to avoid harmful alterations to ecosystems and biodiversity, a right to be free from contamination, and a right to rescue and rehabilitate important water zones, amongst others. The law is only awaiting publication in the "Official Gazette" of Mexico City to become official.
In drafting the rights of waterways provision in the law, lawmakers looked to ELC’s Universal Declaration of the Rights of River, which was drafted by ELC with significant input from experts worldwide. However, it was the adamant efforts of Cuatro al Cubo, its lawyer, and many other leading environmental partners in Mexico that ensured this language was included in the law. ELC is proud to support their efforts!
What’s next for rivers in 2018?
ELC and partners seek to build from our victory in Mexico to secure immediate rights for three rivers in particular: the Magdalena, Atoyac (Puebla), and San Pedro Mezquital. All of these efforts will build from the existing momentum from the recent victory in Mexico City. To help achieve these goals and further mobilize support, ELC will attend the Rights of River Forum, to be held in Puebla, Mexico in March 2018. Finally, we will solicit feedback on and endorsements of the Universal Declaration of the Rights of Rivers from additional entities from across the globe in order to build consensus.
Enforcing the Rights of Rivers and Lakes in the United States and Canada
ELC continues to advocate for the California State Water Resources Control Board to formally identify the most over-diverted waterways as “impaired” due to low flows under the Clean Water Act. Identification would help restore water to these rivers and streams. In November 2017, ELC and co-plaintiffs filed a lawsuit on this issue, with Lawyers for Clean Water representing our organization.
ELC has also launched an amicus brief campaign to advocate for rights of rivers and lakes in US and Canadian courts. An amicus curiae – literally, "friend of the court" – is a non-party to the case that can submit a brief as an outside expert. This campaign will showcase the rights of rivers movement to judges and significantly increase our changes of a favorable court decision.
Finally, ELC is working with Juliee de la Terre (Sacred Land Sacred Water) to recognize the Great Lakes Ecosystem and a living legal entity. The ELC and partners have drafted a declaration defining the fundamental rights of the Great Lakes, which is still open for feedback and endorsement. We have also recently secured agreement from a major law school in the area to host one or more events on the rights of the Great Lakes (announcement coming soon).
What’s next for 2018?
ELC will continue to advance the lawsuit defending the right of waterways to be listed as “impaired” due to altered flows under the Clean Water Act. In addition, ELC will create a toolkit so that advocates across the country can make similar legal arguments in their states, resulting in great protections for flows, aquatic species, and freshwater ecosystems. ELC also plans to launch its amicus brief campaign by engaging in at least five lawsuits in the US and Canada as an amicus curiae. Finally, with regards to the Great Lakes, ELC will host several community events (including at a major law school) and will implement the rights of the Great Lakes into at least one local law.
Rights of Nature at the United Nations and IUCN
ELC also continued to engage the United Nations and International Union for Conservation of Nature (IUCN) on rights of nature. For example, ELC’s recent contribution to the UN Harmony with Nature resolution was highlighted as an example of successful Earth Law in practice. Additionally, ELC continued to engage the IUCN and World Commission on Environmental Law (WCEL) – an international body of legal experts of which ELC’s Directing Attorney is a member. For example, ELC submitted to the WCEL online seminar to train lawyers and judges on rights of nature issues (currently under consideration).
What’s next for 2018?
ELC will advance the rights of rivers within the United Nations, in order to reflect current legal developments in this area within international resolutions. Additionally, ELC will train judges and lawyers on rights of nature at its planned online seminar, which will feature leading judges and other legal experts from around the world. Other planned activities include distributing legal briefs to members and speaking at international events.
Michelle Bender at the 2017 Earth Expo in Oakland (Grant Wilson offscreen)
Thank you for your continued support on behalf of ELC and Mother Earth. We look forward to reporting back on the progress of all our initiatives. If you would like to learn more or volunteer you can contact Grant Wilson for River/Land Rights (gwilson@earthlaw.org) and Michelle Bender for Ocean Rights (mbender@earthlaw.org).
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